Exhibit 4.3.1
FIRST SUPPLEMENTAL INDENTURE, dated as of September 20, 2001 (the "FIRST
SUPPLEMENTAL INDENTURE") between Meritage Corporation, a corporation organized
under the laws of the State of Maryland (the "ISSUER"), the Guarantors named
therein, ▇▇▇▇▇ ▇▇▇▇ Venture, LLC, a Texas limited liability company, Meritage
Holdings, L.L.C., a Texas Limited Liability Company ("ADDITIONAL Guarantors")
and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the "TRUSTEE"), under
the Indenture (as defined below). Capitalized terms used and not defined herein
shall have the same meanings given in the Indenture unless otherwise indicated.
WHEREAS, the Issuer, the Guarantors thereto and the Trustee are parties to
that certain Indenture dated as of May 30, 2001 (the "INDENTURE") pursuant to
which the Company issued its 9 3/4% Senior Notes 2011 (the "NOTES") and the
Guarantors guaranteed the obligations of the Issuer under the Indenture and the
Notes;
WHEREAS, pursuant to Section 4.13 of the Indenture, if the Issuer acquires
or creates any additional subsidiary which is a Restricted Subsidiary, each such
subsidiary shall execute and deliver a supplemental indenture pursuant to which
such subsidiary shall unconditionally guaranty the Issuer's obligations under
the Notes;
WHEREAS, the Additional Guarantors are Restricted Subsidiaries of the
Issuer;
WHEREAS, the Issuer and the Trustee desire to have the Additional
Guarantors enter into this First Supplemental Indenture and agree to guaranty
the obligations of the Issuer under the Indenture and the Notes and the
Additional Guarantors desire to enter into this First Supplemental Indenture and
to guaranty the obligations of the Issuer under the Indenture and the Notes as
of such date;
WHEREAS, Section 8.01 of the Indenture provides that the Issuer, the
Guarantors and the Trustee may, without the written consent of the Holders of
the outstanding Notes, amend the Indenture as provided herein;
WHEREAS, by entering into this First Supplemental Indenture, the Issuer and
the Trustee have consented to amend the Indenture in accordance with the terms
and conditions herein;
WHEREAS, each Guarantor hereby acknowledges and consents to amend the
Indenture in accordance with the terms and conditions herein; and
WHEREAS, all acts and things prescribed by the Articles of Organization (as
now in effect) of the Additional Guarantors necessary to make this First
Supplemental Indenture a valid instrument legally binding on the Additional
Guarantors for the purposes herein expressed, in accordance with its terms, have
been duly done and performed.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Issuer,
the Additional Guarantors and the Trustee hereby agree for the benefit of each
other and the equal and ratable benefit of the Holders of the Notes as follows:
1. ADDITIONAL GUARANTORS AS GUARANTOR. As of the date hereof and pursuant
to this First Supplemental Indenture, the Additional Guarantors shall become
Guarantors under the definition of Guarantor in the Indenture in accordance with
the terms and conditions of the Indenture and shall assume all rights and
obligations of a Guarantor thereunder.
2. COMPLIANCE WITH AND FULFILLMENT OF CONDITION OF SECTION 4.13. The
execution and delivery of this First Supplemental Indenture by the Additional
Guarantors (along with such documentation relating thereto as the Trustee shall
require fulfills the obligations of the Issuer under Section 4.13 of the
Indenture.
3. CONSTRUCTION. For all purposes of this First Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the defined terms and expressions used herein shall have the same
meanings as corresponding terms and expressions used in the Indenture; and (ii)
the words "herein," "hereof" and "hereby" and other words of similar import used
in this First Supplemental Indenture refer to this First Supplemental Indenture
as a whole and not to any particular Section hereof.
4. TRUSTEE ACCEPTANCE. The Trustee accepts the amendment of the Indenture
effected by this First Supplemental Indenture, as hereby amended, but only upon
the terms and conditions set forth in the Indenture, as hereby amended,
including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee in the performance of its duties and obligations
under the Indenture, as hereby amended. Without limiting the generality of the
foregoing, the Trustee has no responsibility for the correctness of the recitals
of fact herein contained which shall be taken as the statements of each of the
Issuer and the Additional Guarantors, respectively, and makes no representations
as to the validity or enforceability against any of the Issuer or the Additional
Guarantors.
5. INDENTURE RATIFIED. Except as expressly amended hereby, the Indenture is
in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect.
6. HOLDERS BOUND. This First Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Holder of the Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
7. SUCCESSORS AND ASSIGNS. This First Supplemental Indenture shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
8. COUNTERPARTS. This First Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and the
same instrument.
9. GOVERNING LAW. This First Supplemental Indenture shall be governed by
and construed in accordance with the internal laws of the State of New York
without giving effect to principles of conflicts of laws.
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IN WITNESS WHEREOF, the Issuer, the Additional Guarantors and the Trustee
have caused this First Supplemental Indenture to be duly executed as of the date
first above written.
ISSUER:
MERITAGE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Chief Executive Officer,
Vice President-Finance,
Secretary and Treasurer
ADDITIONAL GUARANTORS:
▇▇▇▇▇ ▇▇▇▇ VENTURE, LLC
By: Legacy/Monterey Homes, L.P.,
its Sole Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President of Finance,
Texas Division, Chief Financial Officer
and Assistant Secretary
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice-President, Treasurer and Secretary
MERITAGE HOLDINGS, L.L.C.
By: Legacy/Monterey Homes, L.P., its
Sole Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President of Finance,
Texas Division, Chief Financial Officer
and Assistant Secretary
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice-President, Treasurer and Secretary
TRUSTEE:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇ Mar
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▇▇▇▇▇▇ Mar
Its: Vice President
MONTEREY HOMES ARIZONA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MERITAGE PASEO CROSSING, LLC
By: Monterey Homes Arizona, Inc.,
its Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MONTEREY HOMES CONSTRUCTION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MERITAGE PASEO CONSTRUCTION, LLC
By: Monterey Homes Construction, Inc.,
its Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
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MERITAGE HOMES OF ARIZONA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MERITAGE HOMES CONSTRUCTION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MTH-TEXAS GP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MTH-TEXAS LP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
LEGACY/MONTEREY HOMES L.P.
By: MTH-Texas GP, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice-President
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By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
MERITAGE HOMES OF NORTHERN CALIFORNIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
▇▇▇▇▇▇▇-MTH BUILDERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
▇▇▇▇▇▇▇-MTH COMMUNITIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO
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LEGACY OPERATING COMPANY, L.P.
By: Meritage Holdings, L.L.C.,
its General Partner
By: Legacy/Monterey Homes L.P.,
its Sole Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President of Finance,
Texas Division, Chief Financial Officer
and Assistant Secretary
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice-President, Treasurer and Secretary
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