Exhibit 4.2.5
FIFTH SUPPLEMENTAL INDENTURE, dated as of August 22, 2003 (the "Fifth
Supplemental Indenture") between Meritage Corporation, a corporation organized
under the laws of the State of Maryland (the "Issuer"), the Guarantors named
therein, Mission Royale Golf Course, LLC, an Arizona limited liability company
("Mission Royale") and Legacy-▇▇▇▇▇▇▇▇ Materials, L.P., a Texas limited
partnership ("Legacy-▇▇▇▇▇▇▇▇") (Mission Royale and Legacy-▇▇▇▇▇▇▇▇ together,
the "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 Issuer, the Guarantors thereto, ▇▇▇▇▇ ▇▇▇▇ Venture, LLC,
Meritage Holdings, L.L.C. and the Trustee are parties to that First Supplemental
Indenture, dated as of September 20, 2001 (the "First Supplemental Indenture")
pursuant to which ▇▇▇▇▇ ▇▇▇▇ Venture, LLC and Meritage Holdings, L.L.C. were
added as Guarantors;
WHEREAS, the Issuer, the Guarantors thereto, MTH Homes-Texas, L.P.,
MTH-Texas ▇▇ ▇▇, Inc., MTH-Texas ▇▇ ▇▇, Inc. and the Trustee are parties to that
Second Supplemental Indenture, dated as of July 12, 2002 (the "Second
Supplemental Indenture") pursuant to which MTH Homes-Texas, L.P., MTH-Texas ▇▇
▇▇, Inc. and MTH-Texas ▇▇ ▇▇, Inc. were added as Guarantors;
WHEREAS, the Issuer, the Guarantors thereto, MTH Homes-Nevada, Inc. and
the Trustee are parties to that Third Supplemental Indenture, dated as of
October 21, 2002 (the "Third Supplemental Indenture") pursuant to which MTH
Homes-Nevada, Inc. was added as a Guarantor;
WHEREAS, the Issuer, the Guarantors thereto, MTH Cavalier, LLC and the
Trustee are parties to that Fourth Supplemental Indenture, dated as of February
19, 2002 (the "Fourth Supplemental Indenture") pursuant to which MTH Cavalier,
LLC was added as a Guarantor;
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 Fifth 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 Fifth 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 Fifth 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
of Mission Royale (as now in effect) and the Certificate of Limited Partnership
and the Agreement of Limited Partnership of Legacy-▇▇▇▇▇▇▇▇ (as now in effect)
necessary to make this Fifth 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 Guarantors. As of the date hereof and
pursuant to this Fifth 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 Fifth 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 Fifth 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 Fifth Supplemental Indenture refer to this Fifth
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 Fifth 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 either
the Issuer or the Additional Guarantors.
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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 Fifth 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 Fifth Supplemental Indenture
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
8. Counterparts. This Fifth 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 Fifth 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.
IN WITNESS WHEREOF, the Issuer, the Additional Guarantors and the
Trustee have caused this Fifth 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, Co-President and Co-Chief
Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Chief Financial Officer, Vice President-
Finance and Secretary
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ADDITIONAL GUARANTORS:
MISSION ROYALE GOLF COURSE, LLC
By: ▇▇▇▇▇▇▇-MTH Builders, Inc., its Sole
Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman and Co-CEO
LEGACY-▇▇▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
TRUSTEE:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇ Mar
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Its: Vice President
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GUARANTORS:
MONTEREY HOMES ARIZONA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO, President and Chief
Executive Officer
MERITAGE PASEO CROSSING, LLC
By: Meritage Homes of Arizona, Inc., its
Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO and Chairman
MONTEREY HOMES CONSTRUCTION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO, President and Chief
Executive Officer
MERITAGE PASEO CONSTRUCTION, LLC
By: Meritage Homes Construction, Inc., its
Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO and Co-Chairman
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MERITAGE HOMES OF ARIZONA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO and Co-Chairman
MERITAGE HOMES CONSTRUCTION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO and Co-Chairman
MTH-TEXAS GP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman
MTH-TEXAS LP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman
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LEGACY/MONTEREY HOMES L.P.
By: MTH-Texas GP, Inc., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman
MERITAGE HOMES OF NORTHERN
CALIFORNIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO, President and Chief
Executive Officer
▇▇▇▇▇▇▇-MTH BUILDERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman and Co-CEO
▇▇▇▇▇▇▇-MTH COMMUNITIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman and 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
▇▇▇▇▇ ▇▇▇▇ 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
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
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MTH HOMES-TEXAS, L.P.
By: MTH-Texas ▇▇ ▇▇, Inc., its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
MTH-TEXAS ▇▇ ▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
MTH-TEXAS ▇▇ ▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
MTH-HOMES NEVADA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Co-Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President-Secretary
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MTH-CAVALIER, LLC
By: Monterey Homes Construction, Inc., its
Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President-Secretary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-CEO, President and Chief
Executive Officer
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