Exhibit 4.3.3
THIRD SUPPLEMENTAL INDENTURE, dated as of October 21, 2002 (the "THIRD
SUPPLEMENTAL INDENTURE") between Meritage Corporation, a corporation organized
under the laws of the State of Maryland (the "ISSUER"), the Guarantors named
therein, MTH-Homes Nevada, Inc., an Arizona corporation (the "ADDITIONAL
GUARANTOR") and Wells 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, Hulen Park Venture, LLC,
Meritage Holdings, L.L.C. and the Trustee are parties to that certain First
Supplemental Indenture, dated as of September 20, 2001 (the "FIRST SUPPLEMENTAL
INDENTURE") pursuant to which Hulen Park 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 GP II, Inc., MTH-Texas LP II, Inc. and the Trustee are parties to that
certain Second Supplemental Indenture, dated as of July 12, 2002 (the "SECOND
SUPPLEMENTAL INDENTURE") pursuant to which MTH Homes-Texas, L.P., MTH-Texas GP
II, Inc. and MTH-Texas LP II, Inc. were added as Guarantors;
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 Third 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 Third 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 Third 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
(as now in effect) of the Additional Guarantor necessary to make this Third
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 Third Supplemental Indenture, the Additional Guarantor shall become
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 Third 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 Third 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 Third Supplemental Indenture refer to this Third 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 Third 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 Third 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 Third Supplemental Indenture shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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8. COUNTERPARTS. This Third 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 Third 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 Guarantor and the Trustee
have caused this Third Supplemental Indenture to be duly executed as of the date
first above written.
ISSUER:
MERITAGE CORPORATION
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman and Chief Executive Officer
By: /s/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman and Chief Executive Officer
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Chief Executive Officer,
Vice President-Finance,
Secretary and Treasurer
ADDITIONAL GUARANTOR:
MTH-HOMES NEVADA, INC.
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman, President and
Chief Executive Officer
By: /s/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Vice President and Secretary
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TRUSTEE:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Jeanie Mar
---------------------------------------
Jeanie Mar
Its: Vice President
MONTEREY HOMES ARIZONA, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
MERITAGE PASEO CROSSING, LLC
By: Meritage Homes of Arizona, Inc., its
Sole Member
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
MONTEREY HOMES CONSTRUCTION, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
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MERITAGE PASEO CONSTRUCTION, LLC
By: Meritage Homes Construction, Inc., its
Sole Member
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Co-CEO
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
MERITAGE HOMES OF ARIZONA, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
MERITAGE HOMES CONSTRUCTION, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
MTH-TEXAS GP, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ John R. Landon
---------------------------------------
Name: John R. Landon
Title: Co-CEO
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MTH-TEXAS LP, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ John R. Landon
---------------------------------------
Name: John R. Landon
Title: Co-CEO
LEGACY/MONTEREY HOMES L.P.
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ John R. Landon
---------------------------------------
Name: John R. Landon
Title: Co-CEO
MERITAGE HOMES OF NORTHERN CALIFORNIA, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
HANCOCK-MTH BUILDERS, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: Co-CEO
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HANCOCK-MTH COMMUNITIES, INC.
By: /s/ Larry W. Seay
---------------------------------------
Name: Larry W. Seay
Title: Vice President
By: /s/ Steven J. Hilton
---------------------------------------
Name: Steven J. Hilton
Title: 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/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman and Chief Executive Officer
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman and Chief Executive Officer
By: /s/ Richard T. Morgan
---------------------------------------
Richard T. Morgan
Its: Vice President of Finance, Texas
Division, Chief Financial Officer and
Assistant Secretary
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Vice-President, Treasurer and Secretary
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HULEN PARK VENTURE, LLC
By: Legacy/Monterey Homes L.P., its Sole
Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman and Chief Executive Officer
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman and Chief Executive Officer
By: /s/ Richard T. Morgan
---------------------------------------
Richard T. Morgan
Its: Vice President of Finance, Texas
Division, Chief Financial Officer and
Assistant Secretary
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
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/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman and Chief Executive Officer
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman and Chief Executive Officer
By: /s/ Richard T. Morgan
---------------------------------------
Richard T. Morgan
Its: Vice President of Finance, Texas
Division, Chief Financial Officer and
Assistant Secretary
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By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Vice-President, Treasurer and Secretary
MTH HOMES-TEXAS, L.P.
By: MTH-Texas GP II, Inc., its General
Partner
By: /s/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman, President and Chief
Executive Officer
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Vice President, Treasurer and Secretary
By: /s/ Richard T. Morgan
---------------------------------------
Richard T. Morgan
Its: Vice President and Chief Financial
Officer
MTH-TEXAS GP II, INC.
By: /s/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman, President and
Chief Executive Officer
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Vice President, Treasurer and Secretary
By: /s/ Richard T. Morgan
---------------------------------------
Richard T. Morgan
Its: Vice President and Chief Financial
Officer
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MTH-TEXAS LP II, INC.
By: /s/ John R. Landon
---------------------------------------
John R. Landon
Its: Co-Chairman, President and Chief
Executive Officer
By: /s/ Steven J. Hilton
---------------------------------------
Steven J. Hilton
Its: Co-Chairman
By: /s/ Larry W. Seay
---------------------------------------
Larry W. Seay
Its: Vice President, Treasurer and Secretary
By: /s/ Richard T. Morgan
---------------------------------------
Richard T. Morgan
Its: Vice President and Chief Financial
Officer
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