Exhibit 4.3.1
FIRST SUPPLEMENTAL INDENTURE, dated as of May 14, 2004 (the "First
Supplemental Indenture") between Meritage Corporation, a corporation organized
under the laws of the State of Maryland (the "Issuer"), the Guarantors named
therein, Meritage Homes of Colorado, Inc. (the "Additional Guarantor") and Xxxxx
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 April 21, 2004 (the "Indenture") pursuant to
which the Company issued its 7% Senior Notes 2014 (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 Guarantor is a Restricted Subsidiary of the
Issuer;
WHEREAS, the Issuer and the Trustee desire to have the Additional
Guarantor enter into this First Supplemental Indenture and agree to guaranty the
obligations of the Issuer under the Indenture and the Notes and the Additional
Guarantor desires 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 Incorporation
and Bylaws of the Additional Guarantor (as now in effect) necessary to make this
First Supplemental Indenture a valid instrument legally binding on the
Additional Guarantor 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 Guarantor 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 Guarantor as Guarantor. As of the date hereof and pursuant
to this First Supplemental Indenture, the Additional Guarantor shall become a
Guarantor 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
Guarantor (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 Guarantor, respectively, and makes no representations
as to the validity or enforceability against either the Issuer or the Additional
Guarantor.
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 Guarantor 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/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman, Co-President and Co-Chief
Executive Officer
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Chief Financial Officer, Vice
President-Finance and Secretary
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ADDITIONAL GUARANTOR:
MERITAGE HOMES OF COLORADO, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman and CEO
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
TRUSTEE:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxx Mar
Its: Vice President
GUARANTORS:
MONTEREY HOMES ARIZONA, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO, President and Chief
Executive Officer
MERITAGE PASEO CROSSING, LLC
By: Meritage Homes of Arizona, Inc., its
Sole Member
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO and Chairman
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MONTEREY HOMES CONSTRUCTION, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO, President and Chief
Executive Officer
MERITAGE PASEO CONSTRUCTION, LLC
By: Meritage Homes Construction, Inc., its
Sole Member
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO and Co-Chairman
MERITAGE HOMES OF ARIZONA, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO and Co-Chairman
MERITAGE HOMES CONSTRUCTION, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO and Co-Chairman
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MTH-TEXAS GP, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman
MTH-TEXAS LP, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman
LEGACY/MONTEREY HOMES L.P.
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman
MERITAGE HOMES OF CALIFORNIA, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO, President and Chief
Executive Officer
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XXXXXXX-MTH BUILDERS, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman and Co-CEO
XXXXXXX-MTH COMMUNITIES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman and Co-CEO
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/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
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XXXXX XXXX VENTURE, LLC
By: Legacy/Monterey Homes L.P., its Sole
Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-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/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
MTH HOMES-TEXAS, L.P.
By: MTH-Texas XX XX, Inc., its General
Partner
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
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MTH-TEXAS XX XX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
MTH-TEXAS XX XX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
MTH-HOMES NEVADA, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman and Chief Executive Officer
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
MTH-CAVALIER, LLC
By: Monterey Homes Construction, Inc., its
Sole Member
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-CEO, President and Chief
Executive Officer
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MTH GOLF
By: Xxxxxxx-MTH Builders, Inc., its Sole
Member
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President-Secretary
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman and Co-CEO
LEGACY-XXXXXXXX MATERIALS, 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/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Co-Chairman
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Its: Vice President-Secretary
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