1
Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
Dated as of May 30, 2001
By and Among
MERITAGE CORPORATION
as Issuer,
the GUARANTORS named herein
and
UBS WARBURG LLC
and
DEUTSCHE BANC ALEX. BROWN INC.
as Initial Purchasers
9-3/4% Senior Notes due 2011
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TABLE OF CONTENTS
Page
----
Section 1. Definitions ...................................................... 1
Section 2. Exchange Offer ................................................... 4
Section 3. Shelf Registration Statement ..................................... 7
Section 4. Liquidated Damages ............................................... 9
Section 5. Registration Procedures .......................................... 10
Section 6. Registration Expenses ............................................ 19
Section 7. Indemnification .................................................. 19
Section 8. Rules 144 and 144A ............................................... 23
Section 9. Underwritten Registrations ....................................... 23
Section 10. Miscellaneous .................................................... 23
(a) No Inconsistent Agreements .............................. 23
(b) Adjustments Affecting Registrable Notes ................. 23
(c) Amendments and Waivers .................................. 24
(d) Notices ................................................. 24
(e) Guarantors .............................................. 25
(f) Successors and Assigns .................................. 26
(g) Counterparts ............................................ 26
(h) Headings ................................................ 26
(i) Governing Law ........................................... 26
(j) Severability ............................................ 26
(k) Securities Held by the Company or Its Affiliates ........ 26
(l) Third-Party Beneficiaries ............................... 26
(m) Attorneys' Fees ......................................... 26
(n) Entire Agreement ........................................ 26
SIGNATURES ......................................................................... S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of May 30, 2001, by and among Meritage Corporation, a Maryland corporation
(the "Company"), and each of the Guarantors (as defined herein) (the Company and
the Guarantors are referred to collectively herein as the "Issuers"), on the one
hand, and UBS Warburg LLC and Deutsche Banc Alex. Brown Inc. (the "Initial
Purchasers") on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 22, 2001, by and among the Issuers and the Initial
Purchasers (the "Purchase Agreement"), relating to the offering of $165,000,000
aggregate principal amount of the Company's 9-3/4% Senior Notes due 2011
(including the guarantees thereof by the Guarantors, the "Notes"). The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c)
hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in
Section 2(b) hereof.
"Board of Directors" shall have the meaning set forth in
Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
"Commission" shall mean the Securities and Exchange
Commission.
"day" shall mean a calendar day.
"Delay Period" shall have the meaning set forth in Section 5
hereof.
"Effectiveness Period" shall have the meaning set forth in the
second paragraph of Section 3(a) hereof.
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"Event Date" shall have the meaning set forth in Section 4(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
set forth in Section 2(a) hereof.
"Guarantors" means each of the Persons executing this
Agreement (as set forth on Schedule A) on the date hereof and each Person who
executes and delivers a counterpart of this Agreement hereafter pursuant to
Section 10(e) hereof.
"Holder" shall mean any holder of a Registrable Note or
Registrable Notes.
"Indenture" shall mean the Indenture, dated as of May 30,
2001, by and among the Issuers and Wells Fargo Bank, National Association, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
first introductory paragraph hereof.
"Initial Shelf Registration Statement" shall have the meaning
set forth in Section 3(a) hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean May 30, 2001, the date of original
issuance of the Notes.
"Issuers" shall have the meaning set forth in the introductory
paragraph hereto.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in
Section 4(a) hereof.
"Losses" shall have the meaning set forth in Section 7(a)
hereof.
"NASD" shall have the meaning set forth in Section 5(s)
hereof.
"Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
hereof.
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"Participating Broker-Dealer" shall have the meaning set forth
in Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership,
joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section
2(b) hereof.
"Private Exchange Notes" shall have the meaning set forth in
Section 2(b) hereof.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the
second introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n)
hereof.
"Registrable Notes" shall mean each Note upon its original
issuance and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iv) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect only to any Exchange Note as to which
Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the Commission and such Note, Exchange Note or such
Private Exchange Note, as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Note has been exchanged
pursuant to the Exchange Offer for an Exchange Note or Exchange Notes that may
be resold without restriction under state and federal securities laws, (iii)
such Note, Exchange Note or Private Exchange Note, as the case may be, ceases to
be outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in
Section 4(a) hereof.
"Registration Statement" shall mean any appropriate
registration statement of the Issuers covering any of the Registrable Notes
filed with the Commission under the Securities Act, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"Requesting Participating Broker-Dealer" shall have the
meaning set forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144A) or regulation hereafter adopted by the Commission
providing for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration Statement" shall have the meaning set
forth in Section 3(b) hereof.
"Subsequent Shelf Registration Statement" shall have the
meaning set forth in Section 3(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes and Private
Exchange Notes.
"underwritten registration or underwritten offering" shall
mean a registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
Section 2. Exchange Offer
(a) The Issuers shall (i) file a Registration Statement (the
"Exchange Offer Registration Statement") within 75 days after the Issue Date
with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (including the
guarantees with respect thereto, the "Exchange Notes") that are identical in all
material respects to the Notes (except that the Exchange Notes bear no
restrictive legend thereon and shall not contain terms with respect to
Liquidated Damages upon a Registration Default), (ii) use their respective
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act
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within 150 days after the Issue Date and (iii) use their respective reasonable
best efforts to complete the Exchange Offer within 180 days after the Issue
Date. The Exchange Offer shall be deemed completed or consummated for purposes
of this Agreement upon delivery by the Company to the Trustee under the
Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Notes tendered (and not withdrawn) by Holders
thereof pursuant to the Exchange Offer. Upon the Exchange Offer Registration
Statement being declared effective by the Commission, the Company will offer the
Exchange Notes in exchange for surrender of the Notes. The Company shall keep
the Exchange Offer open for not less than 20 Business Days (or longer if
required by applicable law to complete the Exchange Offer) after the date notice
of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Company in writing (which may be contained in the
applicable letter of transmittal) that (i) any Exchange Notes to be received by
it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the Securities Act, (iii) it is not an affiliate (as defined in Rule 405 under
the Securities Act) of any Issuer or, if it is an affiliate, it will comply with
the registration and prospectus delivery requirements of the Securities Act to
the extent applicable, (iv) if such Holder is not a broker-dealer, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes,
(v) if such Holder is a broker-dealer that will receive Exchange Notes for its
own account in exchange for Notes that were acquired as a result of
market-making or other trading activities, it will deliver a prospectus in
connection with any resale of such Exchange Notes and (vi) the Holder is not
acting on behalf of any Persons who could not truthfully make the foregoing
representations.
(b) The Company and the Initial Purchasers acknowledge that
the staff of the Commission has taken the position that any broker-dealer that
elects to exchange Notes that were acquired by such broker-dealer for its own
account as a result of market-making or other trading activities for Exchange
Notes in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Company and the Initial Purchasers also acknowledge that
the staff of the Commission has taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers agree to
use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period of up to 180 days after the
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date on which the Exchange Offer Registration Statement is declared effective,
or such longer period if extended pursuant to the last paragraph of Section 5
hereof (such period, the "Applicable Period"), or such earlier date as all
Requesting Participating Broker-Dealers shall have notified the Company in
writing that such Requesting Participating Broker-Dealers have resold all
Exchange Notes acquired in the Exchange Offer. The Company shall include a plan
of distribution in such Exchange Offer Registration Statement that meets the
requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, any Holder
holds any Notes acquired by it that have, or that are reasonably likely to be
determined to have, the status of an unsold allotment in an initial
distribution, or if any Holder is not entitled to participate in the Exchange
Offer, the Company upon the request of any such Holder shall simultaneously with
the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to
any such Holder, in exchange (the "Private Exchange") for such Notes held by any
such Holder, a like principal amount of notes (the "Private Exchange Notes") of
the Company that are identical in all material respects to the Exchange Notes,
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer and the
Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Notes of such Holder so
accepted for exchange.
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The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuers to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuers that would impair their ability to so proceed and (iii) all governmental
approvals shall have been obtained, which approvals the Issuers deem necessary
for the consummation of the Exchange Offer or Private Exchange.
In the event that the Issuers are unable to consummate the
Exchange Offer or the Private Exchange due to any event listed in clauses (i)
through (iii) above, the Issuers shall not be deemed to have breached any
covenant under this Section 2.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture (in either case, with such changes as are necessary to
comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA and shall provide that the Exchange Notes shall not be
subject to the transfer restrictions set forth in the Indenture. The Indenture
or such other indenture shall provide that when a vote or consent of the Holders
is required, the Exchange Notes, the Private Exchange Notes and the Notes shall
vote and consent together on all matters as one class and that none of the
Exchange Notes, the Private Exchange Notes or the Notes will have the right to
vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuers to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 180 days of the Issue Date, (iii) any Holder notifies the
Company that it is prohibited by law or the applicable interpretations of the
staff of the Commission from participating in the Exchange Offer, (iv) in the
case of any Holder that participates in the Exchange Offer, such Holder does not
receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of any Issuer), (v) the Initial
Purchasers so request with respect to Notes that have, or that are reasonably
likely to be determined to have, the status of unsold allotments in an initial
distribution or (vi) any Holder of Private Exchange Notes so requests (each such
event referred to in clauses (i) through (vi) of this sentence, a "Shelf Filing
Event"), then the Issuers shall file a Shelf Registration Statement pursuant to
Section 3 hereof.
Section 3. Shelf Registration Statement
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration Statement. The Issuers shall file with
the Commission a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Notes not exchanged in the Exchange Offer, Private Exchange Notes and
Exchange Notes as to which Section 2(c)(iv) is applicable, which may be
an
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amendment to the Exchange Offer Registration Statement (the "Initial
Shelf Registration Statement"). The Issuers shall file with the
Commission the Initial Shelf Registration Statement as promptly as
practicable and in any event on or prior to 45 days after the Company
determines or is notified that a Shelf Filing Event has occurred. The
Initial Shelf Registration Statement shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings).
The Issuers shall not permit any securities other than the Registrable
Notes to be included in the Initial Shelf Registration Statement or in
any Subsequent Shelf Registration Statement (as defined below).
The Issuers shall use their respective reasonable best efforts
(x) to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act on or prior to the 90th day after
the Company determines or is notified that such a Shelf Filing Event
has occurred and (y) to keep the Initial Shelf Registration Statement
continuously effective under the Securities Act for the period ending
on the date which is two years from the date it becomes effective (or
one year if the Initial Shelf Registration Statement is filed at the
request of an Initial Purchaser), subject to extension pursuant to the
penultimate paragraph of Section 5 hereof (the "Effectiveness Period"),
or such shorter period ending when (i) all Registrable Notes covered by
the Initial Shelf Registration Statement have been sold in the manner
set forth and as contemplated in the Initial Shelf Registration
Statement or cease to be outstanding, (ii) all Registrable Notes are
eligible to be sold to the public pursuant to Rule 144(k) under the
Securities Act or (iii) a Subsequent Shelf Registration Statement
covering all of the Registrable Notes covered by and not sold under the
Initial Shelf Registration Statement or an earlier Subsequent Shelf
Registration Statement has been declared effective under the Securities
Act; provided, however, that (i) the Effectiveness Period in respect of
the Initial Shelf Registration Statement shall be extended to the
extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Company may suspend the
effectiveness of the Initial Shelf Registration Statement by written
notice to the Holders solely as a result of the filing of a
post-effective amendment to the Initial Shelf Registration Statement
where such post-effective amendment is not yet effective and needs to
be declared effective to permit holders to use the related Prospectus.
(b) Subsequent Shelf Registration Statements. If the Initial
Shelf Registration Statement or any Subsequent Shelf Registration
Statement ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
securities registered thereunder), the Issuers shall use their
respective reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall
as soon as practicable after such cessation amend the Initial Shelf
Registration Statement or such Subsequent Shelf Registration Statement,
as the case may be, in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the
Registrable Notes covered by and not sold under the Initial Shelf
Registration Statement or such earlier Subsequent Shelf Registration
Statement (each, a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Issuers shall use
their re-
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spective reasonable best efforts to cause the Subsequent Shelf
Registration Statement to be declared effective under the Securities
Act as soon as practicable after such filing and to keep such
Subsequent Shelf Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement was
previously continuously effective. As used herein, the term "Shelf
Registration Statement" means the Initial Shelf Registration Statement
and any Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Issuers agree to
supplement or make amendments to the Shelf Registration Statement as
and when required by the rules, regulations or instructions applicable
to the registration form used for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration, or if reasonably requested by the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or by any underwriter of such Registrable Notes;
provided, however, that the Issuers shall not be required to supplement
or amend any Shelf Registration Statement upon the request of a Holder
or any underwriter if such requested supplement or amendment would, in
the good faith judgment of the Company (based on advice of counsel),
violate the Securities Act, the Exchange Act or the rules and
regulations promulgated thereunder.
Section 4. Liquidated Damages
(a) Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree that if:
(i) the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 75th day following the Issue
Date, or, if that day is not a Business Day, then the next day that is
a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 150th day following the Issue Date, or, if
that day is not a Business Day, then the next day that is a Business
Day,
(iii) the Exchange Offer is not completed on or prior to the
180th day following the Issue Date, or, if that day is not a Business
Day, then the next day that is a Business Day, or
(iv) the Shelf Registration Statement is required to be filed
but is not filed or declared effective within the time periods set
forth herein or is declared effective but thereafter ceases to be
effective or usable prior to the expiration of the Effectiveness
Period, except if the Shelf Registration Statement ceases to be
effective or usable as specifically permitted by the penultimate
paragraph of Section 5 hereof
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(each such event referred to in clauses (i) through (iv) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Liquidated Damages") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum for the first 90-day period (or portion thereof) immediately following the
occurrence of a Registration Default, increasing by an additional 0.25% per
annum with respect to each subsequent 90-day period (or portion thereof) up to a
maximum amount of additional interest of 1.00% per annum, from and including the
date on which any such Registration Default shall occur to, but excluding, the
earlier of (1) the date on which all Registration Defaults have been cured or
(2) the date on which all the Notes and Exchange Notes otherwise become freely
transferable by Holders other than affiliates of the Issuers without further
registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated
Damages payable shall not increase because more than one Registration Default
has occurred and is pending, (2) a Holder of Notes or Exchange Notes who is not
entitled to the benefits of the Shelf Registration Statement (i.e., such Holder
has not elected to include information) shall not be entitled to Liquidated
Damages with respect to a Registration Default that pertains to the Shelf
Registration Statement and (3) no holder of Notes constituting an unsold
allotment from the original sale of the Notes by the Company to the Initial
Purchasers shall be entitled to Liquidated Damages by reason of a Registration
Default that pertains to an Exchange Offer.
Notwithstanding anything to the contrary set forth herein,
with respect to any Registration Default, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of clause (i) or (iv) above, (2) upon the effectiveness
of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of clause (ii) or (iv) above, (3) upon
completion of the Exchange Offer, in the case of clause (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable, the applicable Registration Default shall be
deemed to have been cured.
(b) The Company shall notify the Trustee within one Business
Day after each and every date on which an event occurs in respect of which
Liquidated Damages are required to be paid (an "Event Date"). Any amounts of
Liquidated Damages due pursuant to this Section 4 will be payable in addition to
any other interest payable from time to time with respect to the Registrable
Notes in cash semi-annually on the interest payment dates specified in the
Indenture (to the holders of record as specified in the Indenture), commencing
with the first such interest payment date occurring after any such Liquidated
Damages commence to accrue. The amount of Liquidated Damages will be determined
in a manner consistent with the calculation of interest under the Indenture.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, the
Issuers shall:
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(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3
hereof, and use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if (1) such filing is
pursuant to Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in
each case at least five Business Days prior to such filing). The
Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriters, if any, shall
reasonably object within five Business Days after receipt thereof.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Initial Shelf Registration Statement
or Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may
be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act with respect to the disposition
of all securities covered by such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus, in each case, in
accordance with the intended methods of distribution set forth in such
Registration Statement or Prospectus, as so amended.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom the Issuers have received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, as promptly as possible, and, if
requested by any such Person, confirm such notice in writing, (i) when
a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request in writing, obtain, at the sole expense of the
Company, one conformed copy of such Registration Statement or
post-effective amend-
14
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ment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of
any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m) hereof cease to be
true and correct in all material respects, (iv) of the receipt by any
of the Issuers of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Notes or the Exchange Notes for
offer or sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known to any
Issuer that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements
to such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vi) of the Company's determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use their reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Notes or the Exchange Notes, as the case may be, for
sale in any jurisdiction, and, if any such order is issued, to use
their reasonable best efforts to obtain the withdrawal of any such
order at the earliest practicable moment.
(e) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period and if requested by the managing underwriter or underwriters (if
any), the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or any
Participating Broker-Dealer, as the case may be, (i) as promptly as
practicable incorporate in such Registration Statement or Prospectus a
prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders or any
15
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Participating Broker-Dealer, as the case may be (based upon advice of
counsel), reasonably request as necessary to be included therein and
(ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however,
that the Issuers shall not be required to take any action hereunder
that would, in the good faith judgment of the Company (based on advice
of counsel), violate applicable laws.
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes and a
single counsel to such Holders, or each such Participating
Broker-Dealer and their counsel, as the case may be, who so requests
and each managing underwriter, if any, and a single counsel for such
underwriters, at the sole expense of the Company, one conformed copy of
the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and any exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes and a
single counsel to such Holders, or each such Participating
Broker-Dealer and their counsel, as the case may be, and the
underwriters, if any, and a single counsel for such underwriters, at
the sole expense of the Company, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Issuers hereby consent to
the use of such Prospectus and each amendment or supplement thereto
(provided the manner of such use complies with any limitations
resulting from any applicable laws, including state securities or "Blue
Sky" laws, and subject to the provisions of this Agreement) by each of
the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of
the Registrable Notes or the sale by Participating Broker-Dealers of
the Exchange Notes covered by or pursuant to such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
Exchange Notes or any delivery of a Prospectus contained in the
Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use their reasonable best efforts to register or qualify, and
to cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the regis-
16
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tration or qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as the case
may be, for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; provided, however, that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Company agrees to cause the Company's counsel to perform
Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h), keep each such
registration or qualification (or exemption therefrom) effective during
the period such Registration Statement is required to be kept effective
and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such
Exchange Notes or Registrable Notes covered by the applicable
Registration Statement; provided, however, that no Issuer shall be
required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where
it is not then so subject or (C) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Registrable
Notes and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable
Notes to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or selling Holders may
reasonably request at least two Business Days prior to any sale of such
Registrable Notes or Exchange Notes.
(j) Use their reasonable best efforts to cause the Registrable
Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes or Exchange Notes,
except as may be required solely as a consequence of the nature of such
selling Holder's business, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration Statement
and the granting of such approvals.
(k) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by Section
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) and the penultimate paragraph of this Section
5 file with the Commission, at the sole expense of the Company, a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Notes
17
-15-
being sold thereunder or to the purchasers of the Exchange Notes to
whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration Statement, enter
into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes in form reasonably
satisfactory to the Issuers and take all such other actions as are
reasonably requested by the managing underwriter or underwriters, if
any, in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers and their
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and
confirm the same in writing if and when requested in form reasonably
satisfactory to the Issuers; (ii) upon the request of any underwriter,
use their reasonable best efforts to obtain the written opinions of
counsel to the Company and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) upon the request of any underwriter,
use their reasonable best efforts to obtain "cold comfort" letters and
updates thereof in form, scope and substance reasonably satisfactory to
the managing underwriter or underwriters from the independent certified
public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt securities
similar to the Notes, and such other matters as reasonably requested by
the managing underwriter or underwriters as permitted by the Statement
on Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or
underwriters or agents, if any) with respect to all parties to be
indemnified pursuant to said Section. The above shall be
18
-16-
done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(n) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any selling Holder of such
Registrable Notes being sold or each such Participating Broker-Dealer,
as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the appropriate officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such
Registration Statement and Prospectus. Each Inspector shall agree in
writing that it will keep the Records confidential and not disclose any
Records that the Company determines, in good faith, to be confidential
and that it notifies the Inspectors in writing are confidential unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (iii) disclosure of
such information is necessary or advisable in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or the Purchase Agreement, or
any transactions contemplated hereby or thereby or arising hereunder or
thereunder, or (iv) the information in such Records has been made
generally available to the public other than through an act of such
Inspector in violation of this Section 5(n); provided, however, that,
if practicable, prior notice shall be provided as soon as practicable
to the Issuers of the potential disclosure of any information by such
Inspector pursuant to clause (ii) of this sentence to permit the
Issuers to obtain a protective order or to take other appropriate
action to prevent the disclosure of such information and that such
Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an impairment of
or in derogation of the rights and interests of the Holder or any
Inspector.
(o) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(b) hereof to be qualified
under the TIA not later than the effective date of the Exchange Offer
or the first Registration Statement relating to the Registrable Notes;
and in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes or Exchange Notes,
as applicable, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their reasonable best efforts to
cause such trustee to execute, all documents as may be
19
-17-
required to effect such changes, and all other forms and documents
required to be filed with the Commission to enable such indenture to be
so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Company's
securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) (i) commencing at
the end of any fiscal quarter in which Registrable Notes or Exchange
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement.
(q) Upon the request of a Holder, upon consummation of the
Exchange Offer or a Private Exchange, use their reasonable best efforts
to obtain an opinion of counsel to the Issuers, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of
all Holders of Registrable Notes participating in the Exchange Offer or
the Private Exchange, as the case may be, that the Exchange Notes or
Private Exchange Notes, as the case may be, and the related indenture
constitute legal, valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with its respective
terms, subject to customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, mark, or cause to be marked, on such Registrable Notes
that such Registrable Notes are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(t) Use their reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable Notes or
Exchange Notes as to which any registration is being effected to furnish to the
Issuers such information regarding such seller and the distribution of such
Registrable Notes or Exchange Notes as the Company may, from time to time,
reasonably request. The Issuers may exclude from such registration the
Registrable Notes or Exchange Notes of any seller so long as such seller fails
to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed
20
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in order to make any information previously furnished to the Company by such
seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Company (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, or (y) that the Board of Directors of the Company (the "Board
of Directors") has resolved that the Company has a bona fide business purpose
for doing so, then the Company may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration Statement, in all cases, for a
period (a "Delay Period") expiring upon the earlier to occur of (i) in the case
of the immediately preceding clause (x), such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto or
(ii) in the case of the immediately preceding clause (y), the date which is the
earlier of (A) the date on which such business purpose ceases to interfere with
the Company's obligations to file or maintain the effectiveness of any such
Registration Statement pursuant to this Agreement or (B) 60 days after the
Company notifies the Holders of such good faith determination. There shall not
be more than 60 days of Delay Periods during any 12-month period. Each of the
Effectiveness Period and the Applicable Period, if applicable, shall be extended
by the number of days during any Delay Period. Any Delay Period will not alter
the obligations of the Company to pay Liquidated Damages under the circumstances
set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
21
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Section 6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers,
whether or not the Exchange Offer Registration Statement or the Shelf
Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of one counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of an Exchange Offer, or (y) as
provided in Section 5(h) hereof, in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and reasonable fees and disbursements
of one special counsel for all of the sellers of Registrable Notes (exclusive of
any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuers desire such insurance, (vii)
fees and expenses of all other Persons retained by any of the Issuers, (viii)
internal expenses of the Issuers (including, without limitation, all salaries
and expenses of officers and employees of any of the Issuers performing legal or
accounting duties), (ix) the expense of any audit, (x) the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement. Notwithstanding the foregoing or anything to the contrary, each
Holder shall pay all underwriting discounts and commissions of any underwriters
with respect to any Registrable Notes sold by or on behalf of it.
Section 7. Indemnification
(a) Each Issuer, jointly and severally, agrees to indemnify
and hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, each Person,
if any, who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, the agents, employees,
officers and directors of each Holder and each such Participating Broker-Dealer
and the agents, employees, officers and directors of any such controlling Person
(each, a "Participant") from and against any and all losses, liabilities,
claims, damages and expenses whatsoever (including, but not limited to,
reasonable
22
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attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation) (collectively, "Losses") to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, provided that (A) the foregoing indemnity
shall not be available to any Participant insofar as such Losses are caused by
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to such Participant
furnished to the Company in writing by or on behalf of such Participant
expressly for use therein and (B) with respect to any such untrue statement or
omission made in any preliminary Prospectus, the indemnity contained in this
Section 7(a) (to the extent and only to the extent that such losses, claims,
damages or liabilities resulted from the untrue statement or omission described
in clause (2) below) shall not inure to the benefit of a Participant if it shall
be established that both (1) a copy of the amended or supplemented Prospectus
was not sent or given by such Participant to the Person asserting any such
losses, claims, damages or liabilities and such Participant was required by law
to so send or give such Prospectus to such Person and (2) the untrue statement
or omission in the preliminary Prospectus was corrected in the amended or
supplemented Prospectus, unless, in either case, such failure to deliver the
amended or supplemented Prospectus was a result of noncompliance by an Issuer
with any of its covenants or obligations in this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless each Issuer, each Person, if any, who controls any
Issuer within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, and each of their respective agents, employees, officers
and directors and the agents, employees, officers and directors of any such
controlling Person from and against any Losses to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise insofar
as such Losses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by, arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the case of the Prospectus, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that any such Loss arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information relating to such Participant furnished in
writing to the Company by or on behalf of such Participant expressly for use
therein; provided, however, that with respect to any such untrue statement or
omission made in any preliminary Prospectus, the indemnity contained in this
Section 7(b) (to the extent and only to the extent that such losses, claims,
damages or liabilities resulted from an untrue statement or omission in the
preliminary Prospectus that was corrected in the amended or supplemented
Prospectus) shall not inure to the benefit of an Issuer if it shall be
estab-
23
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lished that (1) both (A) a copy of the amended or supplemented Prospectus was
sent or given by such Participant to the Person asserting any such losses,
claims, damages or liabilities and (B) the untrue statement or omission in the
preliminary Prospectus was corrected in the amended or supplemented Prospectus
or (2) such failure to deliver the amended or supplemented Prospectus was a
result of non-compliance by an Issuer with any of its covenants or obligations
in this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure or from any liability which
it otherwise may have). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement of
such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
the indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them that are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party will not be liable for
the fees and expenses of more than one counsel (together with appropriate local
counsel) designated by the indemnified party or parties at any time for all
indemnified parties in connection with any one action or separate but similar or
related actions arising out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent, which consent may not be unreasonably
withheld. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 7 is for any reason held
to be unavailable from the indemnifying party, or is insufficient to hold
harmless a party indemnified under this Section 7, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each
24
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indemnifying party, on the one hand, and each indemnified party, on the other
hand, from the sale of the Notes to the Initial Purchasers or the resale of the
Registrable Notes by such Holder, as applicable, or (ii) if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
each indemnified party, on the one hand, and each indemnifying party, on the
other hand, in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. The relative
benefits received by the Issuers, on the one hand, and each Participant, on the
other hand, shall be deemed to be in the same proportion as (x) the total
proceeds from the sale of the Notes to the Initial Purchasers (net of discounts
and commissions but before deducting expenses) received by the Issuers are to
(y) the total net profit received by such Participant in connection with the
sale of the Registrable Notes. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers or such
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or alleged
statement or omission.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to
contribute any amount in excess of the amount by which the net profit received
by such Participant in connection with the sale of the Registrable Notes exceeds
the amount of any damages that such Participant has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each Person, if any, who controls any Participant within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
director, officer, employee and agent of such Participant shall have the same
rights to contribution as such Participant, and each Person, if any, who
controls any Issuer within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and each director, officer, employee and agent of such
Issuer or Person who controls such Issuer shall have the same rights to
contribution as such Issuer. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 7, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise, except to
the extent that it has been prejudiced in any material respect by such failure;
provided, however, that no additional notice shall be required with respect to
any action for which notice has been given under this Section 7 for purposes of
indemnification. Anything in this section to the contrary notwithstanding, no
party shall be liable for contribution with respect to any action or claim
settled without its written consent; provided, however, that such written
consent was not unreasonably withheld.
25
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Section 8. Rules 144 and 144A
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Company is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act, in each case for so long as any Registrable Notes remain
outstanding. The Issuers further covenant for so long as any Registrable Notes
remain outstanding that they will take such further action as any Holder of
Registrable Notes may reasonably request from time to time to enable such Holder
to sell Registrable Notes without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under
the Securities Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and shall
be reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not entered,
as of the date hereof, and shall not enter, after the date of this Agreement,
into any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. The Issuers have
not entered and will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect
26
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the ability of the Holders of Registrable Notes to include such Registrable
Notes in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given except pursuant to a
written agreement duly signed and delivered by (I) the Issuers and (II)(A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
7 and this Section 10(c) may not be amended, modified or supplemented except
pursuant to a written agreement duly signed and delivered by each Holder and
each Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) adversely affected
by any such amendment, modification, supplement or waiver. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold
pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuers, at the address as follows:
Meritage Corporation
6613 North Scottsdale Road
Suite 200
Scottsdale, Arizona 85250
Telephone: (480) 998-8700
Fax: (480) 998-9178
Attention: Larry W. Seay
27
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With a copy to:
Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren Street
Phoenix, Arizona 85004-2202
Telephone: (602) 382-6000
Fax: (602) 382-6070
Attention: Steven D. Pidgeon, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Telephone: (212) 821-3000
Fax number: (212) 821-6890
Attention: Syndicate Department
With a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telephone: (212) 701-3000
Fax: (212) 269-5420
Attention: Daniel J. Zubkoff, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Guarantors. So long as any Registrable Notes remain
outstanding, the Issuers shall cause each Person that becomes a guarantor of the
Notes under the Indenture to execute and deliver a counterpart to this Agreement
which subjects such Person to the provisions of this Agreement as a Guarantor.
Each of the Guarantors agrees to join the Company in all of its undertakings
hereunder to effect the Exchange Offer for the Exchange Notes and the filing of
any Shelf Registration Statement required hereunder.
28
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(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(g) Counterparts. This Agreement may be executed by facsimile
and in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.
(k) Securities Held by the Company or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners
of Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) Attorneys' Fees. As between the parties to this Agreement,
in any action or proceeding brought to enforce any provision of this Agreement,
or where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(n) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and
29
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any and all prior oral or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and memoranda between
the Holders on the one hand and the Issuers on the other, or between or among
any agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
30
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
MERITAGE CORPORATION
By:
-------------------------------------------
Name:
Title:
MONTEREY HOMES ARIZONA, INC.
By:
-------------------------------------------
Name:
Title:
MERITAGE PASEO CROSSING, LLC
By: Monterey Homes Arizona, Inc.,
its Sole Member
By:
-------------------------------------------
Name:
Title:
MONTEREY HOMES CONSTRUCTION, INC.
By:
-------------------------------------------
Name:
Title:
31
S-2
MERITAGE PASEO CONSTRUCTION, LLC
By: Monterey Homes Construction, Inc.,
its Sole Member
By:
-------------------------------------------
Name:
Title:
MERITAGE HOMES OF ARIZONA, INC.
By:
-------------------------------------------
Name:
Title:
MERITAGE HOMES CONSTRUCTION, INC.
By:
-------------------------------------------
Name:
Title:
MTH-TEXAS GP, INC.
By:
-------------------------------------------
Name:
Title:
MTH-TEXAS LP, INC.
By:
-------------------------------------------
Name:
Title:
32
S-3
LEGACY/MONTEREY HOMES L.P.
By: MTH-Texas GP, Inc., its General Partner
By:
-------------------------------------------
Name:
Title:
MERITAGE HOMES OF NORTHERN
CALIFORNIA, INC.
By:
-------------------------------------------
Name:
Title:
HANCOCK-MTH BUILDERS, INC.
By:
-------------------------------------------
Name:
Title:
HANCOCK-MTH COMMUNITIES, INC.
By:
-------------------------------------------
Name:
Title:
LEGACY OPERATING COMPANY, L.P.
By: MTH-Texas GP, Inc., its General Partner
By:
-------------------------------------------
Name:
Title:
33
S-4
UBS WARBURG LLC
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
DEUTSCHE BANC ALEX. BROWN INC.
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
34
Schedule A
GUARANTORS
1. Monterey Homes Arizona, Inc.
2. Meritage Paseo Crossing, LLC
3. Monterey Homes Construction, Inc.
4. Meritage Paseo Construction, LLC
5. Meritage Homes of Arizona, Inc.
6. Meritage Homes Construction, Inc.
7. MTH-Texas GP, Inc.
8. MTH-Texas LP, Inc.
9. Legacy/Monterey Homes, LP
10. Meritage Homes of Northern California, Inc.
11. Hancock-MTH Builders, Inc.
12. Hancock-MTH Communities, Inc.
13. Legacy Operating Company, L.P.