EXHIBIT 4.1


 


MERITAGE HOMES CORPORATION


 


AND


 


HSBC BANK USA, NATIONAL ASSOCIATION


 


AS TRUSTEE


 


GUARANTEED TO THE EXTENT SET FORTH THEREIN 

BY THE GUARANTORS NAMED HEREIN.


 


INDENTURE


 


DATED AS OF              


 

















 


CROSS REFERENCE SHEET*


 


Provisions of the Trust
Indenture Act of 1939 and the Indenture (the “Indenture”), dated as of                 ,       , by and among Meritage Homes
Corporation, a Maryland corporation, the guarantors listed on Schedule 1 to the
Indenture, and HSBC Bank USA, National Association, as Trustee:


 


	
  TIA Section

  	
   

  	
  Indenture

  Section

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  	
   

  
	
  310(a)(2)

  	
   

  	
  7.10

  	
   

  
	
  310(a)(3)

  	
   

  	
  Not applicable

  	
   

  
	
  310(a)(4)

  	
   

  	
  Not applicable

  	
   

  
	
  310(a)(5)

  	
   

  	
  Not applicable

  	
   

  
	
  310(b)

  	
   

  	
  7.03; 7.08; 7.10

  	
   

  
	
  310(b)(1)

  	
   

  	
  7.10

  	
   

  
	
  310(c)

  	
   

  	
  Not applicable

  	
   

  
	
  311(a)

  	
   

  	
  7.03; 7.11

  	
   

  
	
  311(b)

  	
   

  	
  7.03; 7.11

  	
   

  
	
  311(c)

  	
   

  	
  Not applicable

  	
   

  
	
  312(a)

  	
   

  	
  2.05

  	
   

  
	
  312(b)

  	
   

  	
  11.03

  	
   

  
	
  312(c)

  	
   

  	
  11.03

  	
   

  
	
  313(a)

  	
   

  	
  7.06

  	
   

  
	
  313(b)(1)

  	
   

  	
  Not applicable

  	
   

  
	
  313(b)(2)

  	
   

  	
  7.06

  	
   

  
	
  313(c)

  	
   

  	
  7.06;11.02

  	
   

  
	
  313(d)

  	
   

  	
  7.06

  	
   

  
	
  314(a)

  	
   

  	
  4.03; 4.04; 11.02

  	
   

  
	
  314(b)

  	
   

  	
  Not applicable

  	
   

  
	
  314(c)(1)

  	
   

  	
  11.04(a)

  	
   

  
	
  314(c)(2)

  	
   

  	
  11.04(b)

  	
   

  
	
  314(c)(3)

  	
   

  	
  Not applicable

  	
   

  
	
  314(d)

  	
   

  	
  Not applicable

  	
   

  
	
  314(e)

  	
   

  	
  11.05

  	
   

  
	
  314(f)

  	
   

  	
  Not applicable

  	
   

  
	
  315(a)

  	
   

  	
  7.01(b)

  	
   

  
	
  315(b)

  	
   

  	
  7.05; 11.02

  	
   

  
	
  315(c)

  	
   

  	
  7.01(a)

  	
   

  
	
  315(d)

  	
   

  	
  7.01(c)

  	
   

  
	
  315(e)

  	
   

  	
  6.12

  	
   

  
	
  316(a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
  316(a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
  316(a)(2)

  	
   

  	
  Not applicable

  	
   

  
	
  316(a) (last
  sentence)

  	
   

  	
  2.08; 6.04

  	
   

  
	
  316(b)

  	
   

  	
  6.08

  	
   

  
	
  317(a)(1)

  	
   

  	
  6.09

  	
   

  
	
  317(a)(2)

  	
   

  	
  6.10

  	
   

  
	
  317(b)

  	
   

  	
  2.04; 7.12

  	
   

  
	
  318(a)

  	
   

  	
  11.01

  	
   

  



 






*                 This
cross reference sheet shall not, for any purpose, be deemed to be a part of the
Indenture.


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
  Certain Definitions

  	
   

  	
  1

  
	
  SECTION 1.02

  	
  Other Definitions

  	
   

  	
  4

  
	
  SECTION 1.03

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  4

  
	
  SECTION 1.04

  	
  Rules of Construction

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  THE SECURITIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
  Unlimited in Amount, Issuable in Series, Form and Dating

  	
   

  	
  5

  
	
  SECTION 2.02

  	
  Execution and Authentication

  	
   

  	
  8

  
	
  SECTION 2.03

  	
  Registrar and Paying Agent

  	
   

  	
  8

  
	
  SECTION 2.04

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  9

  
	
  SECTION 2.05

  	
  Securityholder Lists

  	
   

  	
  9

  
	
  SECTION 2.06

  	
  Transfer and Exchange

  	
   

  	
  9

  
	
  SECTION 2.07

  	
  Replacement Securities

  	
   

  	
  10

  
	
  SECTION 2.08

  	
  Outstanding Securities

  	
   

  	
  10

  
	
  SECTION 2.09

  	
  Temporary Securities

  	
   

  	
  11

  
	
  SECTION 2.10

  	
  Cancellation

  	
   

  	
  11

  
	
  SECTION 2.11

  	
  Defaulted Interest

  	
   

  	
  11

  
	
  SECTION 2.12

  	
  Special Record Dates

  	
   

  	
  11

  
	
  SECTION 2.13

  	
  Global Securities

  	
   

  	
  12

  
	
  SECTION 2.14

  	
  CUSIP Numbers

  	
   

  	
  13

  
	
  SECTION 2.15

  	
  Computation of Interest

  	
   

  	
  13

  
	
  SECTION 2.16

  	
  Treasury Notes

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  REDEMPTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
  Notices to Trustee

  	
   

  	
  14

  
	
  SECTION 3.02

  	
  Selection of Securities to be Redeemed

  	
   

  	
  14

  
	
  SECTION 3.03

  	
  Notice of Redemption

  	
   

  	
  15

  
	
  SECTION 3.04

  	
  Effect of Notice of Redemption

  	
   

  	
  16

  
	
  SECTION 3.05

  	
  Deposit of Redemption Price

  	
   

  	
  16

  
	
  SECTION 3.06

  	
  Securities Redeemed or Purchased in Part

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
  Payment of Securities

  	
   

  	
  16

  
	
  SECTION 4.02

  	
  Maintenance of Office or Agency

  	
   

  	
  17

  
	
  SECTION 4.03

  	
  Reports

  	
   

  	
  17

  
	
  SECTION 4.04

  	
  Compliance Certificate

  	
   

  	
  17

  
	
  SECTION 4.05

  	
  Taxes

  	
   

  	
  18

  
	
  SECTION 4.06

  	
  Stay, Extension and Usury Laws

  	
   

  	
  18

  
	
  SECTION 4.07

  	
  Maintenance of Properties; Insurance; Compliance with Law

  	
   

  	
  18

  
	
  SECTION 4.08

  	
  Payments for Consent

  	
   

  	
  19

  
	
  SECTION 4.09

  	
  Legal Existence

  	
   

  	
  19

  
					



 


i

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  SUCCESSORS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
  When The Issuer May Merge, Etc

  	
   

  	
  19

  
	
  SECTION 5.02

  	
  Successor Person Substituted

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
  Events of Default

  	
   

  	
  20

  
	
  SECTION 6.02

  	
  Acceleration

  	
   

  	
  22

  
	
  SECTION 6.03

  	
  Other Remedies

  	
   

  	
  22

  
	
  SECTION 6.04

  	
  Waiver of Past Defaults

  	
   

  	
  22

  
	
  SECTION 6.05

  	
  Control by Majority

  	
   

  	
  23

  
	
  SECTION 6.06

  	
  Limitation on Suits

  	
   

  	
  23

  
	
  SECTION 6.07

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
   

  	
  23

  
	
  SECTION 6.08

  	
  Rights of Holders to Receive Payment

  	
   

  	
  24

  
	
  SECTION 6.09

  	
  Collection Suit by Trustee

  	
   

  	
  24

  
	
  SECTION 6.10

  	
  Trustee May File Proofs of Claim

  	
   

  	
  24

  
	
  SECTION 6.11

  	
  Priorities

  	
   

  	
  24

  
	
  SECTION 6.12

  	
  Undertaking for Costs

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
  Duties of Trustee

  	
   

  	
  25

  
	
  SECTION 7.02

  	
  Rights of Trustee

  	
   

  	
  26

  
	
  SECTION 7.03

  	
  Individual Rights of Trustee

  	
   

  	
  27

  
	
  SECTION 7.04

  	
  Trustee’s Disclaimer

  	
   

  	
  27

  
	
  SECTION 7.05

  	
  Notice of Defaults

  	
   

  	
  27

  
	
  SECTION 7.06

  	
  Reports by Trustee to Holders

  	
   

  	
  28

  
	
  SECTION 7.07

  	
  Compensation and Indemnity

  	
   

  	
  28

  
	
  SECTION 7.08

  	
  Replacement of Trustee

  	
   

  	
  29

  
	
  SECTION 7.09

  	
  Successor Trustee by Merger, Etc

  	
   

  	
  30

  
	
  SECTION 7.10

  	
  Eligibility; Disqualification

  	
   

  	
  30

  
	
  SECTION 7.11

  	
  Preferential Collection of Claims Against the Issuer

  	
   

  	
  30

  
	
  SECTION 7.12

  	
  Paying Agents

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  SATISFACTION AND DISCHARGE; DEFEASANCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
  Satisfaction and Discharge

  	
   

  	
  31

  
	
  SECTION 8.02

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  32

  
	
  SECTION 8.03

  	
  Legal Defeasance and Discharge

  	
   

  	
  32

  
	
  SECTION 8.04

  	
  Covenant Defeasance

  	
   

  	
  32

  
	
  SECTION 8.05

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  33

  
	
  SECTION 8.06

  	
  Deposited Money and Government Securities to be Held in Trust; Other
  Miscellaneous Provisions

  	
   

  	
  34

  
	
  SECTION 8.07

  	
  Repayment to the Issuer

  	
   

  	
  35

  
	
  SECTION 8.08

  	
  Reinstatement

  	
   

  	
  35

  
					



 


ii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  SUPPLEMENTS, AMENDMENTS AND WAIVERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
  Without Consent of Holders

  	
   

  	
  35

  
	
  SECTION 9.02

  	
  With Consent of Holders

  	
   

  	
  36

  
	
  SECTION 9.03

  	
  Compliance with the Trust Indenture Act

  	
   

  	
  37

  
	
  SECTION 9.04

  	
  Revocation and Effect of Consents

  	
   

  	
  37

  
	
  SECTION 9.05

  	
  Notation on or Exchange of Securities

  	
   

  	
  37

  
	
  SECTION 9.06

  	
  Trustee to Sign Amendments, Etc

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  GUARANTEES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  Guarantee

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
  Trust Indenture Act Controls

  	
   

  	
  38

  
	
  SECTION 11.02

  	
  Notices

  	
   

  	
  38

  
	
  SECTION 11.03

  	
  Communication by Holders With Other Holders

  	
   

  	
  39

  
	
  SECTION 11.04

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  40

  
	
  SECTION 11.05

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  40

  
	
  SECTION 11.06

  	
  Rules by Trustee and Agents

  	
   

  	
  40

  
	
  SECTION 11.07

  	
  Legal Holidays

  	
   

  	
  40

  
	
  SECTION 11.08

  	
  No Recourse Against Others

  	
   

  	
  41

  
	
  SECTION 11.09

  	
  Counterparts

  	
   

  	
  41

  
	
  SECTION 11.10

  	
  Governing Law

  	
   

  	
  41

  
	
  SECTION 11.11

  	
  Submission to Jurisdiction; Service of Process; Waiver of Jury Trial

  	
   

  	
  41

  
	
  SECTION 11.12

  	
  Severability

  	
   

  	
  42

  
	
  SECTION 11.13

  	
  Effect of Headings, Table of Contents, Etc

  	
   

  	
  42

  
	
  SECTION 11.14

  	
  Successors and Assigns

  	
   

  	
  42

  
	
  SECTION 11.15

  	
  No Interpretation of Other Agreements

  	
   

  	
  42

  
					



 


iii
















 


INDENTURE dated as of
                
by and among Meritage Homes Corporation, a Maryland corporation, (the
“Issuer”), the guarantors listed on Schedule 1 hereto (herein called the
“Guarantors”) and HSBC Bank USA, National Association, as Trustee (the “Trustee”).


 


The Issuer has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of
its debentures, notes or other evidences of indebtedness to be issued in one or
more series (the “Securities”), as herein provided, up to such principal
amount as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors or by supplemental indenture.


 


Each party agrees as follows for the benefit
of the other parties and for the equal and ratable benefit of the Holders of
each series of the Securities:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION  BY
REFERENCE


 


SECTION 1.01                                       Certain
Definitions.


 


“Affiliate” of any person means any
other person which directly or indirectly controls or is controlled by, or is
under direct or indirect common control with, the referent person.  For purposes of the covenant described under
“—Certain Covenants—Limitations on Transactions with Affiliates,” Affiliates shall
be deemed to include, with respect to any person, any other person (1) which
beneficially owns or holds, directly or indirectly, 10% or more of any class of
the voting stock of the referent person, (2) of which 10% or more of the
voting stock is beneficially owned or held, directly or indirectly, by the
referenced person or (3) with respect to an individual, any immediate
family member of such person.  For
purposes of this definition, “control”
of a person shall mean the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.


 


“Agent” means any Registrar, Paying
Agent, authenticating agent or co-Registrar.


 


“asset” means any asset or property.


 


“Board of Directors” means, with
respect to any Person, the board of directors of such Person (or, if such
Person is a limited liability company, the board of managers of such Person) or
similar governing body or any authorized committee thereof.


 


“Board Resolution” means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Issuer
to have been duly adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on
the date of such certification (and delivered to the Trustee, if appropriate).


 


“Business Day” means any day other
than a Legal Holiday.


 


“Closing Date” means the date on which
the Securities of a particular series were originally issued under this
Indenture.


 

















 


“Commission” means the Securities and
Exchange Commission.


 


“Corporate Trust Office” shall mean
the corporate trust office of the Trustee, which shall initially be HSBC Bank
USA, National Association, 10 East 40th Street, 14th Floor, New York, New York
10016.


 


“Default” means any event that is, or
with the passage of time or the giving of notice or both would be, an Event of
Default.


 


“Depositary” means, with respect to
the Securities of any series issuable or issued in whole or in part in the form
of one or more Global Securities, the person designated as Depositary for such
series by the Issuer, which Depositary shall be a clearing agency registered
under the Exchange Act; and if at any time there is more than one such person,
“Depositary” as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of such series.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended from time to time.


 


“GAAP” means generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the applicable measurement date.


 


“Global Security” shall mean a
Security issued to evidence all or a part of any series of Securities that is
executed by the Issuer and authenticated and delivered by the Trustee to a
Depositary or pursuant to such Depositary’s instructions, all in accordance
with this Indenture and pursuant to Section 2.01, which shall be
registered as to principal and interest in the name of such Depositary or its
nominee.


 


“Holder” or “Securityholder”
means a Person in whose name a Security is registered in the register of
Securities kept by the Registrar.


 


“Indenture” means this Indenture, as
amended or supplemented from time to time.


 


“Issuer” means the party named as such
above until a successor replaces it pursuant to this Indenture and thereafter
means the successor.


 


“Issuer Order” means a written order
signed in the name of the Issuer by two Officers, one of whom must be the
Issuer’s principal executive officer, principal financial officer, treasurer,
principal accounting officer or vice president and delivered to the Trustee.


 


“maturity” when used with respect to
any Security, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein provided,
whether at stated maturity or by declaration of acceleration, call for
redemption or otherwise.


 


2

















 


“Officer” means, with respect to any
Person, a chairman of the board, a chief executive officer, a president, the
chief financial officer, any vice-president, the treasurer, the controller, the
secretary, any assistant treasurer or any assistant secretary of such Person.


 


“Officers’ Certificate” means a
certificate signed by two or more Officers, one of whom must be the principal
executive officer, principal financial officer or principal accounting officer
of the Issuer that meets the requirements of Section 11.05 hereof.


 


“Opinion of Counsel” means an opinion
from legal counsel who is reasonably acceptable to the Trustee that meets the
requirements of Section 11.05 hereof. 
The counsel may be an employee of or counsel to the Issuer or the
Trustee.


 


“Person” means any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.


 


“principal” of a Security means the
principal amount due on the stated maturity of the Security plus the premium,
if any, on the Security.


 


“Securities” means the Securities
authenticated and delivered under this Indenture.


 


“Securities Act” means the Securities
Act of 1933, as amended from time to time.


 


“stated maturity” when used with
respect to any Security or any installment of interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.


 


“Subsidiary”
means, with respect to any Person:


 


(1)           any corporation, limited liability
company, association or other business entity of which more than 50% of the
total voting power of the Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Board of
Directors thereof are at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and


 


(2)           any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are
such Person or of one or more Subsidiaries of such Person (or any combination
thereof).


 


Unless
otherwise specified, “Subsidiary” refers to a Subsidiary of the Issuer.


 


“TIA” means the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA provided, however, that in the event the
TIA is amended after such date, “TIA” means, to the extent required by such
amendment, the Trust Indenture Act, as amended.


 


3

















 


“Trust Officer” when used with respect
to the Trustee, means any officer assigned to the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.


 


“Trustee” means the party named as
such above until a successor becomes such pursuant to this Indenture and
thereafter means or includes each party who is then a trustee hereunder, and if
at any time there is more than one such party, “Trustee” as used with respect
to the Securities of any series means the Trustee with respect to Securities of
that series.  If Trustees with respect to
different series of Securities are trustees under this Indenture, nothing herein
shall constitute the Trustees co-trustees of the same trust, and each Trustee
shall be the trustee of a trust separate and apart from any trust administered
by any other Trustee with respect to a different series of Securities.


 


“U.S. Government Obligations” means
securities that are (i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America that is not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such depository receipt.


 


SECTION 1.02                                       Other
Definitions.


 


	
  Term

  	
   

  	
  Defined

  in Section

  	
   

  
	
  “Bankruptcy Law”

  	
   

  	
  6.01

  	
   

  
	
  “Custodian”

  	
   

  	
  6.01

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Legal Holiday”

  	
   

  	
  11.07

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Place of Payment”

  	
   

  	
  2.01

  	
   

  
	
  “redemption price”

  	
   

  	
  3.03

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  



 


SECTION 1.03                                       Incorporation
by Reference of Trust Indenture Act.


 


Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of
this Indenture.  The following TIA terms
used in this Indenture have the following meanings:


 


4

















 


“indenture securities” means the
Securities.


 


“indenture securityholder” means a
Securityholder.


 


“indenture to be qualified” means this
Indenture.


 


“indenture trustee” or “institutional
trustee” means the Trustee.


 


“obligor” on the Securities means the
Issuer and any Guarantor and any successor obligor on the Securities.


 


All other terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined
by Commission rule under the TIA have the meanings so assigned to them.


 


SECTION 1.04                                       Rules of
Construction.


 


Unless the context otherwise requires:


 


(i)            a term has the
meaning assigned to it;


 


(ii)           an accounting term
not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(iii)          “or” is not
exclusive;


 


(iv)          words in the
singular include the plural, and in the plural include the singular;


 


(v)           provisions apply to
successive events and transactions; and


 


(vi)          references to
sections of or rules under the Securities Act shall be deemed to include
substitute, replacement of successor sections or rules adopted by the SEC
from time to time.


 


ARTICLE 2

THE SECURITIES


 


SECTION 2.01                                       Unlimited
in Amount, Issuable in Series, Form and Dating.


 


The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued in one or more
series.


 


There shall be established in or pursuant to
a Board Resolution or an Officers’ Certificate pursuant to authority granted
under a Board Resolution or established in one or more indentures supplemental
hereto authorized by a Board Resolution, prior to the issuance of Securities of
any series:


 


5

















 


(a)           the
title of the Securities of the series, whether the Securities rank as senior
Securities, senior subordinated Securities or subordinated Securities, or any
combination thereof;


 


(b)           the
price or prices (expressed as a percentage of the principal amount thereof) at
which the Securities of the series will be issued;


 


(c)           the
aggregate principal amount of the Securities and any limit upon the aggregate
principal amount of the Securities that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to this Article 2);


 


(d)           the
date or dates on which the principal on the Securities will be payable and the
amount of principal that will be payable;


 


(e)           the
rate or rates (which may be fixed or variable) at which the Securities of the
series will bear interest, if any, as well as the dates from which interest
will accrue, the dates on which the interest will be payable and the record
date for the interest payable on any payment date;


 


(f)            the
form and terms of any guarantee of the Securities, including the terms of
subordination, if any, of the series;


 


(g)           any
depositories, interest rate calculation agents or other agents with respect to
Securities of such series if other than those appointed herein;


 


(h)           the
right, if any, of Holders of the Securities to convert them into common stock
or other securities of the Issuer, including any provisions to prevent dilution
of such conversion rights;


 


(i)            the
place or places where the principal, premium, if any, and interest, if any, on
the Securities of the series will be payable and where the Securities which are
in registered form can be presented for registration of transfer or exchange
and the identification of any depositary or depositaries for any Global
Securities;


 


(j)            the
provisions, if any, regarding the Issuer’s right to redeem, repay or purchase
Securities of the series, in whole or in part, or the right of the Holders to
require the Issuer to redeem, repay or purchase Securities of the series, in
whole or in part;


 


(k)           the
provisions, if any, requiring or permitting the Issuer to make payments in a
sinking fund or analogous provision to be used to redeem the Securities of the
series or a purchase fund or analogous provision to purchase the Securities of
the series;


 


(l)            if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;


 


(m)          the
percentage of the principal amount at which the Securities of the series will
be issued and, if other than the full principal amount thereof, the percentage
of the principal 


 


6

















 


amount of the Securities of the series which is
payable if maturity of such Securities is accelerated because of a Default;


 


(n)           the
currency or currencies in which principal, premium, if any, and interest, if
any, of the Securities of the series will be payable;


 


(o)           if
payments of principal of, premium or interest on the Securities of the series
will be made in one or more currencies other than that or those in which the
Securities of the series are denominated, the manner in which the exchange rate
with respect to such payments will be determined;


 


(p)           the
manner in which the amounts of payment of principal of, or premium or interest
on the Securities of the series will be determined, if these amounts may be
determined by reference to an index based on a currency or currency other than
that in which the Securities of the series are denominated or designated to be
payable;


 


(q)           the
provisions, if any, relating to any security provided for the Securities of the
series;


 


(r)            any
addition to or change in the Events of Default with respect to the Securities
of a particular series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 6.02 hereof;


 


(s)           any
addition to, change in or deletion from, the covenants set forth in Articles 4
or 5 that applies to Securities of the series;


 


(t)            the
Trustee for the series of Securities;


 


(u)           any
other terms of the series (which terms may modify, supplement or delete any
provision of this Indenture with respect to such series; provided, however,
that no such term may modify or delete any provision hereof if imposed by the
TIA; and provided, further, that any modification or deletion of the rights,
duties or immunities of the Trustee hereunder shall have been consented to in
writing by the Trustee).


 


All Securities of any series shall be
substantially identical except as to denomination and except as may otherwise
be provided in or pursuant to such Board Resolution or Officers’ Certificate or
in any such indenture supplemental hereto.


 


The principal of and any interest on the
Securities shall be payable at the office or agency of the Issuer designated in
the form of Security for the series (each such place herein called the “Place
of Payment”); provided, however, that payment of interest may be made at
the option of the Issuer by check mailed to the address of the Person entitled
thereto as such address shall appear in the register of Securities referred to
in Section 2.03 hereof.


 


Each Security shall be in one of the forms
approved from time to time by or pursuant to a Board Resolution or Officers’
Certificate, or established in one or more indentures supplemental hereto.  Prior to the delivery of a Security to the
Trustee for authentication in any form approved 


 


7

















 


by or pursuant
to a Board Resolution or Officers’ Certificate, the Issuer shall deliver to the
Trustee the Board Resolution or Officers’ Certificate by or pursuant to which
such form of Security has been approved, which Board Resolution or Officers’
Certificate shall have attached thereto a true and correct copy of the form of
Security that has been approved by or pursuant thereto.


 


The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Security shall be dated the date of its
authentication.


 


SECTION 2.02                                       Execution
and Authentication.


 


One or more Officers shall sign the
Securities for the Issuer by manual or facsimile signature.


 


If an Officer whose signature is on a
Security no longer holds that office at the time the Security is authenticated,
the Security shall nevertheless be valid.


 


A Security shall not be valid until
authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.


 


The Trustee shall authenticate Securities for
original issue upon receipt of an Issuer Order.


 


The Trustee may appoint an authenticating
agent acceptable to the Issuer to authenticate Securities.  An authenticating agent may authenticate
Securities whenever the Trustee may do so. 
Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. 
An authenticating agent has the same rights as an Agent to deal with the
Issuer or an Affiliate of the Issuer.


 


SECTION 2.03                                       Registrar
and Paying Agent.


 


The Issuer shall maintain an office or agency
(which, unless otherwise set forth in a Board Resolution or Supplemental
Indenture, shall be located in the Borough of Manhattan in the City of New
York, State of New York) where Securities of a particular series may be
presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Securities of that series may be presented for
payment (a “Paying Agent”).  The
Registrar for a particular series of Securities shall keep a register of the
Securities of that series and of their registration of transfer and
exchange.  The Issuer may appoint one or
more co-Registrars and one or more additional paying agents for each series of
Securities.  The term “Paying Agent”
includes any additional paying agent. 
The Issuer may change any Paying Agent, Registrar or co-Registrar
without prior notice to any Securityholder. 
The Issuer shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture.


 


If the Issuer fails to maintain a Registrar or
Paying Agent for any series of Securities, the Trustee shall act as such.  The Issuer or any of its Affiliates may act
as Paying Agent, Registrar or co-Registrar.


 


8

















 


The Issuer hereby appoints the Trustee the
initial Registrar and Paying Agent for each series of Securities unless another
Registrar or Paying Agent, as the case may be, is appointed prior to the time
Securities of that series are first issued.


 


SECTION 2.04                                       Paying
Agent to Hold Money in Trust.


 


Whenever the Issuer has one or more Paying
Agents it will, prior to each due date of the principal of or interest on, any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal or interest, and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.


 


The Issuer shall require each Paying Agent
other than the Trustee to agree in writing that such Paying Agent will hold in
trust for the benefit of the Securityholders of the particular series for which
it is acting, or the Trustee, all money held by the Paying Agent for the
payment of principal or interest on the Securities of such series, and that
such Paying Agent will notify the Trustee of any Default by the Issuer or any
other obligor of the series of Securities in making any such payment and at any
time during the continuance of any such Default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.  If the Issuer or an
Affiliate acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Securityholders of the particular series for which
it is acting all money held by it as Paying Agent.  The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee.  Upon so doing, the Paying Agent (if other
than the Issuer or an Affiliate of the Issuer) shall have no further liability
for such money.  Upon any bankruptcy or
reorganization proceedings relating to the Issuer, the Trustee shall serve as
Paying Agent for the Securities.


 


SECTION 2.05                                       Securityholder
Lists.


 


The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Securityholders, separately by series, and shall
otherwise comply with TIA Section 312(a). 
If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee as of the relevant record date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Securityholders, separately
by series, relating to such interest payment date or request, as the case may
be.


 


SECTION 2.06                                       Transfer
and Exchange.


 


Where Securities of a series are presented to
the Registrar or a co-Registrar with a request to register a transfer or to
exchange them for an equal principal amount of Securities of the same series of
other authorized denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met.  To permit registrations of transfers and
exchanges, the Issuer shall issue and the Trustee shall authenticate Securities
at the Registrar’s request.


 


No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any transfer tax or similar governmental 


 


9

















 


charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.09, 2.13, 3.06
or 9.05).


 


The Issuer need not issue, and the Registrar
or co-Registrar need not register the transfer or exchange of, (i) any
Security of a particular series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of that series
for redemption under Section 3.02 and ending at the close of business on
the day of selection, or (ii) any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security of that series
being redeemed in part.


 


Any Holder of a Global Security shall, by
acceptance of such Global Security, agree that transfers of the beneficial
interests in such Global Security may be effected only through a book entry
system maintained by the Issuer of such Global Security (or its agent), and
that ownership of a beneficial interest in the Global Security shall be
required to be reflected in a book entry.


 


SECTION 2.07                                       Replacement
Securities.


 


If a mutilated Security is surrendered to the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Security of same series if the Issuer’s and the
Trustee’s requirements are met.  The
Trustee or the Issuer may require an indemnity bond to be furnished which is
sufficient in the judgment of both to protect the Issuer, the Trustee, and any
Agent from any loss which any of them may suffer if a Security is
replaced.  The Issuer or the Trustee may
charge such Holder for its expenses in replacing a Security.


 


Every replacement Security is an obligation
of the Issuer and shall be entitled to all the benefit of the Indenture equally
and proportionately with any and all other Securities of the same series.


 


SECTION 2.08                                       Outstanding
Securities.


 


The Securities of any series outstanding at
any time are all the Securities of that series authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, and
those described in this Section as not outstanding.


 


If a Security is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Security is held by a protected purchaser.


 


If Securities are considered paid under Section 4.01,
they cease to be outstanding and interest on them ceases to accrue.


 


Except as set forth in Section 2.09
hereof, a Security does not cease to be outstanding because the Issuer or an
Affiliate holds the Security.


 


10

















 


SECTION 2.09                                       Temporary
Securities.


 


Until definitive Securities are ready for
delivery, the Issuer may prepare and the Trustee shall authenticate temporary
Securities upon an Issuer Order. 
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Issuer considers appropriate for
temporary Securities.  Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities.


 


Holders of temporary Securities shall be
entitled to all of the benefits of this Indenture.


 


SECTION 2.10                                       Cancellation.


 


The Issuer at any time may deliver Securities
to the Trustee for cancellation.  The
Registrar and Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment.  The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall return such canceled Securities to the Issuer at the
Issuer’s written request.  The Issuer may
not issue new Securities to replace Securities that it has paid or that have
been delivered to the Trustee for cancellation.


 


SECTION 2.11                                       Defaulted
Interest.


 


If the Issuer fails to make a payment of
interest on any series of Securities, the Issuer shall pay such defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest, in any lawful manner.  It may
elect to pay such defaulted interest, plus any such interest payable on it, to
the Persons who are Holders of such Securities on which the interest is due on
a subsequent special record date.  The
Issuer shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each such Security and the date of the proposed
payment.  The Issuer shall fix or cause
to be fixed any such record date and payment date for such payment; provided,
however, that no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest.  At least 15 days before any such record date,
the Issuer shall mail to Securityholders affected thereby a notice that states
the record date, payment date, and amount of such interest to be paid.


 


SECTION 2.12                                       Special
Record Dates.


 


(a)           The
Issuer may, but shall not be obligated to, set a record date for the purpose of
determining the identity of Holders entitled to consent to any supplement,
amendment or waiver permitted by this Indenture.  If a record date is fixed, the Holders of
Securities of that series outstanding on such record date, and no other
Holders, shall be entitled to consent to such supplement, amendment or waiver
or revoke any consent previously given, whether or not such Holders remain
Holders after such record date.  No
consent shall be valid or effective for more than 90 days after such record
date unless consents from Holders of the principal amount of Securities of that
series required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.


 


(b)           The
Issuer may, but shall not be obligated to, fix any day as a record date for the
purpose of determining the Holders of any series of Securities entitled to join
in the 


 


11

















 


giving or making of any notice of Default, any
declaration of acceleration, any request to institute proceedings or any other
similar direction.  If a record date is
fixed, the Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided, however, that no such action shall be
effective hereunder unless taken on or prior to the date 90 days after such
record date.


 


SECTION 2.13                                       Global
Securities.


 


(a)           Terms
of Securities.  A Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate shall establish
whether the Securities of a series shall be issued in whole or in part in the
form of one or more Global Securities and the Depositary for such Global
Security or Securities.


 


(b)           Transfer
and Exchange.  Notwithstanding any
provisions to the contrary contained in Section 2.06 of this Indenture and
in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.06
of this Indenture for securities registered in the names of Holders other than
the Depositary for such Security or its nominee only if (i) such
Depositary notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary ceases to
be a clearing agency registered under the Exchange Act, and, in either case, the
Issuer fails to appoint a successor Depositary within 90 days of such event or (ii) the
Issuer executes and delivers to the Trustee an Officers’ Certificate to the
effect that such Global Security shall be so exchangeable.  Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as the Depositary shall direct in writing in an
aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.


 


Except as provided in this paragraph (b) of
this Section, a Global Security may not be transferred except as a whole by the
Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such a successor Depositary.


 


(c)           Legend.  Any Global Security issued hereunder shall
bear a legend in substantially the following form:


 


“Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation (“DTC”), New York, New York, to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as may be
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co. has an interest herein.”


 


12

















 


“Transfer of this Global Security shall be
limited to transfers in whole, but not in part, to nominees of DTC or to a
successor thereof or such successor’s nominee and limited to transfers made in
accordance with the restrictions set forth in the Indenture referred to
herein.”


 


(d)           Acts
of Holders.  The Depositary, as a Holder,
may appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under this Indenture.


 


(e)           Payments.  Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.01
hereof, payment of the principal of and interest, if any, on any Global
Security shall be made to the Person specified therein.


 


(f)            Consents,
Declaration and Directions.  Except as
provided in paragraph (e) of this Section, the Issuer, the Trustee and any
Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of such series represented by a Global Security as shall
be specified in a written statement of the Depositary with respect to such
Global Security, for purposes of obtaining any consents, declarations or
directions required to be given by the Holders pursuant to this Indenture.


 


SECTION 2.14                                       CUSIP
Numbers.


 


The Issuer in issuing any series of
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the
Trustee shall use “CUSIP” numbers in notices as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on such Securities
or as contained in any notice and that reliance may be placed only on the other
identification numbers printed on such Securities, and any such action relating
to such notice shall not be affected by any defect in or omission of such
numbers in such notice.  The Issuer shall
promptly notify the Trustee of any change in the “CUSIP” numbers.


 


SECTION 2.15                                       Computation
of Interest.


 


Unless otherwise set forth in a Board
Resolution or Supplemental Indenture, interest on the Securities will be
computed on the basis of a 360-day year of twelve 30-day months.


 


SECTION 2.16                                       Treasury
Notes.


 


In determining whether the Holders of the
required principal amount of Securities have concurred in any declaration of
acceleration or notice of default or direction, waiver or consent or any
amendment, modification or other change to this Indenture, Securities owned by
the Issuer or any other Affiliate of the Issuer shall be disregarded as though
they were not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent or any amendment, modification or other change to this Indenture, only
Securities as to which a responsible officer of the Trustee has received an
Officers’ Certificate stating that such Securities are so owned shall be so
disregarded.  Securities so owned which
have been pledged in good faith shall not be disregarded 


 


13

















 


if the pledgee
established to the satisfaction of the Trustee the pledgee’s right so to act
with respect to the Securities and that the pledgee is not the Issuer, a
Guarantor, any other obligor on the Securities or any of their respective
Affiliates.


 


ARTICLE 3

REDEMPTION


 


SECTION 3.01                                       Notices
to Trustee.


 


If the Issuer elects to redeem Securities of
any series pursuant to any optional redemption provisions thereof, it shall
furnish to the Trustee at least 45 days, but not more than 60 days before a
redemption date, an Officers’ Certificate which shall specify (i) the
provisions of such Security or this Indenture pursuant to which the redemption
shall occur, (ii) the redemption date, (iii) the principal amount of
Securities of that series to be redeemed and (iv) the redemption price.


 


If the Issuer elects to reduce the principal
amount of Securities of any series to be redeemed pursuant to mandatory
redemption provisions thereof, it shall notify the Trustee of the amount of,
and the basis for, any such reduction. 
If the Issuer elects to credit against any such mandatory redemption
Securities it has not previously delivered to the Trustee for cancellation, it
shall deliver such Securities with such notice.


 


SECTION 3.02                                       Selection
of Securities to be Redeemed.


 


If less than all the Securities of any series
are to be redeemed, or purchased in an offer to purchase at any time, the
Trustee shall select the Securities of that series to be redeemed or purchased
as follows: (1) if the Securities of such series are listed on any
national securities exchange, in compliance with the requirements of the
principal national securities exchange on which the Securities of that series
are listed or (2) if the Securities of that series are not listed on a
national securities exchange, on a pro rata basis, by lot or by such other
method as the Trustee deems fair and appropriate.  In the event of a partial redemption or
purchase by lot, the particular Securities to be redeemed or purchased will be
selected not less than 45 nor more than 60 days prior to the redemption or
purchase date by the Trustee from Securities of that series outstanding and not
previously called for redemption.


 


The Trustee shall notify the Issuer promptly
in writing of the Securities or portions of Securities to be called for
redemption or purchase and, in the case of any Securities selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased.  Except as otherwise provided
as to any particular series of Securities, Securities and portions thereof that
the Trustee selects shall be in amounts equal to the minimum authorized
denomination for Securities of the series to be redeemed or purchased or any
integral multiple thereof, except that if all of the Securities of the series
are to be redeemed or purchased, the entire outstanding amount of the
Securities of the series held by such Holder, even if not equal to the minimum
authorized denomination for the Securities of that series, shall be redeemed or
purchased.  Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.  The
Issuer may acquire Securities by means 


 


14

















 


other than
redemption, whether pursuant to an Issuer tender offer, open market purchase or
otherwise provided such acquisition does not otherwise violate the other terms
of this Indenture.


 


SECTION 3.03                                       Notice
of Redemption.


 


Except as otherwise provided as to any
particular series of Securities, at least 30 days but not more than 60 days
before a redemption date, the Issuer shall mail a notice of redemption to each
Holder whose Securities are to be redeemed.


 


The notice shall identify the Securities of
the series to be redeemed and shall state:


 


(1)           the redemption date;


 


(2)           the redemption price
fixed in accordance with the terms of the Securities of the series to be
redeemed, plus accrued interest, if any, to the date fixed for redemption (the
“redemption price”);


 


(3)           if any Security is
being redeemed in part, the portion of the principal amount of such Security to
be redeemed and that, after the redemption date, upon surrender of such
Security, a new Security or Securities in principal amount equal to the
unredeemed portion will be issued upon cancellation of the original Securities;


 


(4)           the name and address
of the Paying Agent;


 


(5)           that Securities
called for redemption must be surrendered to the Paying Agent to collect the
redemption price;


 


(6)           that, unless the
Issuer defaults in payment of the redemption price, interest on Securities
called for redemption ceases to accrue on and after the redemption date;


 


(7)           the CUSIP number, if
any, of the Securities to be redeemed;


 


(8)           the paragraph of the
Securities and/or the section of the Indenture pursuant to which the Securities
called for redemption are being redeemed; and


 


(9)           that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Securities.


 


At the Issuer’s request, the Trustee shall
give the notice of redemption in the Issuer’s name and at its expense,
provided, however, that the Issuer shall have delivered to the Trustee, at
least six Business Days prior to the date on which notice is to be given, an
Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.  The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. 
In any case, failure to give such notice by mail or any defect in the
notice of the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.


 


15

















 


SECTION 3.04                                       Effect
of Notice of Redemption.


 


Subject to the subordination provisions of
any series of Securities, once notice of redemption is mailed in accordance
with Section 3.03 hereof, Securities called for redemption become due and
payable on the redemption date for the redemption price.  Upon surrender to the Paying Agent, such
Securities will be paid at the redemption price.


 


SECTION 3.05                                       Deposit
of Redemption Price.


 


On or before 10:00 a.m., New York City
time, on the redemption or purchase date, the Issuer shall deposit with the
Trustee or Paying Agent (or, if the Issuer or any Affiliate is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
redemption or purchase price of all Securities called for redemption on that
date other than Securities that have previously been delivered by the Issuer to
the Trustee for cancellation.  The Paying
Agent shall return to the Issuer any money not required for that purpose.


 


If the Issuer complies with the provisions of
the preceding paragraph, on and after the redemption or purchase date, interest
shall cease to accrue on the Securities (or the portions thereof) called for redemption
or purchase.  If a Security is redeemed
or purchased on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Securities were registered at the close of
business on such record date.  If any
Securities called for redemption or purchase shall not be so paid upon
surrender for redemption because of the failure of the Issuer to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption or purchase date until such principal is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case at the
rate provided in accordance with the terms of the Securities of the series to
be redeemed.


 


SECTION 3.06                                       Securities
Redeemed or Purchased in Part.


 


Upon surrender of a Security that is redeemed
or purchased in part, the Issuer shall issue and the Trustee shall authenticate
for the Holder at the expense of the Issuer a new Security of same series equal
in principal amount to the unredeemed or unpurchased portion of the Security
surrendered.


 


ARTICLE 4

COVENANTS


 


SECTION 4.01                                       Payment
of Securities.


 


The Issuer shall pay or cause to be paid the
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in this Indenture and the Securities.  Principal, premium, if any, and interest
shall be considered paid on the date due if the Paying Agent, if other than the
Issuer or an Affiliate, holds as of 10:00 a.m., New York City time, on
that date immediately available funds designated for and sufficient to pay all
principal, premium, if any, and interest then due.


 


16
















 


To the extent lawful, the Issuer shall pay
interest on overdue principal and overdue installments of interest at the rate
per annum borne by the applicable series of Securities.


 


SECTION 4.02                                       Maintenance
of Office or Agency.


 


The Issuer shall maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee or Registrar) where Securities may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer in respect of the Securities and this Indenture
may be served.  The Issuer shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency.  If
at any time the Issuer shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.


 


The Issuer may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in the Borough of Manhattan, the City of New York for such
purposes.  The Issuer shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.


 


The Issuer hereby designates the Corporate
Trust Office of the Trustee as one such office or agency of the Issuer in
accordance with Section 2.03.


 


SECTION 4.03                                       Reports.


 


The Issuer shall deliver to the Trustee
within 15 days after it files them with the Commission copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and regulations
prescribe) that the Issuer is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act; provided, however, the Issuer shall not be
required to deliver to the Trustee any materials for which the Issuer has
sought and received confidential treatment by the Commission.  The Issuer also shall comply with the other
provisions of TIA Section 314(a). 
For the avoidance of doubt, nothing in this Section 4.03 shall
require the Issuer to file any such reports, information or documents with the
Commission.


 


Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuer’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


SECTION 4.04                                       Compliance
Certificate.


 


(a)           The
Issuer or any Guarantors shall deliver to the Trustee, within 90 days after the
end of each fiscal year of the Issuer, an Officers’ Certificate stating that a
review of the 


 


17

















 


activities of the Issuer and its Subsidiaries during
the preceding fiscal year (which ends December 31) has been made under the
supervision of the signing Officers (one of whom shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Issuer) with a view to determining whether the Issuer has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Issuer has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Issuer is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Securities is prohibited or if such
event has occurred, a description of the event and what action the Issuer is
taking or proposes to take with respect thereto.


 


(b)           The
Issuer shall, so long as any of the Securities are outstanding, deliver to the
Trustee, forthwith upon becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what
action the Issuer is taking or proposes to take with respect thereto.


 


SECTION 4.05                                       Taxes.


 


The Issuer shall pay prior to delinquency,
all material taxes, assessments and governmental levies except such as are
contested in good faith by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders of
any Securities.


 


SECTION 4.06                                       Stay,
Extension and Usury Laws.


 


The Issuer and any Guarantors covenant (to
the extent that it may lawfully do so) that they shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer and each Guarantor (to the extent that they may
lawfully do so) hereby expressly waive all benefits or advantages of any such
law, and covenant that they shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.


 


SECTION 4.07                                       Maintenance
of Properties; Insurance; Compliance with Law.


 


(a)           The
Issuer shall, and shall cause each of its Subsidiaries to, at all times cause
all properties used or useful in the conduct of their business to be maintained
and kept in good condition, repair and working order (reasonable wear and tear
excepted) and supplied with all necessary equipment, and shall cause to be made
all necessary repairs, renewals, replacements, necessary betterments and
necessary improvements thereto.


 


(b)           The
Issuer shall maintain, and shall cause to be maintained for each of its
Subsidiaries, insurance covering such risks as are usually and customarily
insured against by 


 


18

















 


corporations similarly situated in the markets where
the Issuer and the Subsidiaries conduct homebuilding operations, in such
amounts as shall be customary for corporations similarly situated and with such
deductibles and by such methods as shall be customary and reasonably consistent
with past practice.


 


(c)           The
Issuer shall, and shall cause each of its Subsidiaries to, comply with all
statutes, laws, ordinances or government rules and regulations to which
they are subject, non-compliance with which would materially adversely affect
the business, earnings, properties, assets or financial condition of the Issuer
and their Subsidiaries taken as a whole.


 


SECTION 4.08                                       Payments
for Consent.


 


The Issuer shall not, and shall not cause or
permit any of its Subsidiaries to, directly or indirectly, pay or cause to be
paid any consideration, whether by way of interest, fee or otherwise, to any
Holder of any Securities for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid or agreed to be paid to all
Holders which so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or agreement.


 


SECTION 4.09                                       Legal
Existence.


 


Subject to Article Five, the Issuer
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its legal existence, and the corporate, partnership
or other existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuer and its Subsidiaries; provided that the Issuer shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries if the Board of Directors of the
Issuer shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Issuer and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders.


 


ARTICLE 5

SUCCESSORS


 


SECTION 5.01                                       When
The Issuer May Merge, Etc.


 


In addition to provisions applicable to a
particular series of Securities, the Issuer shall not directly or indirectly: (i) consolidate
or merge with or into another Person (whether or not the Issuer is the
surviving Person), or (ii) sell, lease, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of
the Issuer and its Subsidiaries in one or more related transactions to any
Person unless:


 


(1)           either:


 


(a)           the
Issuer is the surviving Person; or


 


19

















 


(b)           the
Person formed by or surviving any such consolidation or merger (if other than
the Issuer) or to which such sale, lease, assignment, transfer, conveyance or
other disposition shall have been made assumes (by supplemental indenture
reasonably satisfactory to the Trustee) all the obligations of the Issuer under
the Securities and this Indenture;


 


and


 


(2)           immediately
after the transaction no Default or Event of Default exists.


 


The Issuer shall deliver to the Trustee on or
prior to the consummation of the proposed transaction an Officers’ Certificate
to the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.


 


SECTION 5.02                                       Successor
Person Substituted.


 


Upon any consolidation or merger, or any
sale, assignment, transfer, conveyance or other disposition (other than by
lease) of all or substantially all of the assets of the Issuer in accordance
with Section 5.01 hereof, the successor Person formed by such
consolidation or into which the Issuer is merged or to which such sale,
assignment, transfer, conveyance or other disposition is made shall succeed to,
and be substituted for (so that from and after the date of such consolidation,
merger, sale, conveyance or other disposition, the provisions of this Indenture
referring to the “Issuer” shall refer instead to the successor Person and not
to the Issuer), and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor Person had been named
as the Issuer herein; provided, however, that the predecessor Issuer shall not
be relieved from the obligation to pay principal of, and interest on, any
Securities except in the case of a sale, assignment, transfer, conveyance or
other disposition of all of the Issuer’s assets that meets the requirements of Section 5.01
hereof.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


SECTION 6.01                                       Events
of Default.


 


Unless as otherwise provided in the
establishing Board Resolution, Officers’ Certificate or supplemental indenture
hereto, an “Event of Default” occurs with respect to Securities of any
particular series if:


 


(1)           the Issuer
defaults in the payment of interest on any Security of that series when the
same becomes due and payable and the Default continues for a period of 30 days;


 


(2)           the
Issuer defaults in the payment, when due, of the principal of, or premium, if
any, on any Security of that series when the same becomes due and payable at
maturity, upon redemption (including in connection with any offer to purchase
under the terms of such Securities) or otherwise;


 


20

















 


(3)           an Event
of Default, as defined in the Securities of that series, occurs and is
continuing, or the Issuer fails to comply with any of its other agreements in
the Securities of that series or in this Indenture with respect to that series
and the Default continues for the period and after the notice specified below;


 


(4)           the
Issuer pursuant to or within the meaning of any Bankruptcy Law:


 


(A)          commences
a voluntary case;


 


(B)           consents
to the entry of an order for relief against it in an involuntary case;


 


(C)           consents
to the appointment of a Custodian of it or for all or substantially all of its
property;


 


(D)          makes a
general assignment for the benefit of its creditors; or


 


(E)           admits in
writing its inability generally to pay its debts as the same become due.


 


(5)           a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:


 


(A)          is for
relief against the Issuer in an involuntary case;


 


(B)           appoints
a Custodian of the Issuer or for all or substantially all of its property; or


 


(C)           orders the
liquidation of the Issuer; and the order or decree remains unstayed and in
effect for 60 days.


 


(6)           any other
Event of Default provided with respect to Securities of that series which is
specified in a Board Resolution, Officers’ Certificate or supplemental
indenture establishing that series of Securities.


 


The term “Bankruptcy Law” means Title 11,
U.S.  Code or any similar federal or
state law for the relief of debtors.  The
term “Custodian” means any receiver, trustee, assignee, liquidator or similar official
under any Bankruptcy Law.


 


A Default under clause (3) above is not
an Event of Default with respect to a particular series of Securities until the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities of that series notify the Issuer of the Default and the
Issuer does not cure the Default within 60 days after receipt of the
notice.  The notice must specify the
Default, demand that it be remedied and state that the notice is a “Notice of
Default.” Such notice shall be given by the Trustee if so requested in writing
by the Holders of 25% of the principal amount of the then outstanding
Securities of that series.


 


21

















 


SECTION 6.02                                       Acceleration.


 


If an Event of Default with respect to
Securities of any series (other than an Event of Default specified in clauses (4) and
(5) of Section 6.01) occurs and is continuing, the Trustee by notice
to the Issuer, or the Holders of at least 25% in principal amount of the then
outstanding Securities of that series by notice to the Issuer and the Trustee,
may, subject to any prior notice requirements set forth in any supplemental
indenture, declare the unpaid principal of and any accrued interest on all the
Securities of that series to be due and payable on the Securities of that
series.  Upon such declaration the
principal (or such lesser amount) and interest shall be due and payable
immediately.  If an Event of Default
specified in clause (4) or (5) of Section 6.01 occurs, all of
such amount shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.  The Holders of a majority in principal amount
of the then outstanding Securities of that series by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with
respect to that series have been cured or waived except nonpayment of principal
(or such lesser amount) or interest that has become due solely because of the
acceleration.


 


SECTION 6.03                                       Other
Remedies.


 


If an Event of Default with respect to
Securities of any series occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal or interest on the
Securities of that series or to enforce the performance of any provision of the
Securities of that series or this Indenture.


 


The Trustee may maintain a proceeding even if
it does not possess any of the Securities or does not produce any of them in
the proceeding.  A delay or omission by
the Trustee or any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent
permitted by law.


 


SECTION 6.04                                       Waiver
of Past Defaults.


 


Subject to Sections 6.02, 6.08 and 9.02, the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Securities of any series, by notice to the Trustee, may on behalf
of the Holders of the Securities of that series, waive an existing Default or
Event of Default with respect to that series and its consequences except a
continuing Default or Event of Default in the payment of the principal
(including any mandatory sinking fund or like payment) of, premium, if any, or
interest on any Security of that series (including in connection with an offer
to purchase); provided, however, that the Holders of a majority in aggregate
principal amount of the outstanding Securities of any series may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration and its consequences.  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


22

















 


SECTION 6.05                                       Control
by Majority.


 


The Holders of a majority in principal amount
of the then outstanding Securities of any series may direct the time, method
and place of conducting any proceeding for exercising any remedy with respect
to that series available to the Trustee or exercising any trust or power
conferred on it.  However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other
Holders of Securities of that series, or that may involve the Trustee in
personal liability.  The Trustee may take
any other action which it deems proper that is not inconsistent with any such
direction.  Notwithstanding any provision
to the contrary in this Indenture, the Trustee shall not be obligated to take
any action with respect to the provisions of the Section 6.02 unless
directed to do so pursuant to this Section 6.05.


 


SECTION 6.06                                       Limitation
on Suits.


 


A Holder of Securities of any series may not
pursue a remedy with respect to this Indenture or the Securities unless:


 


(1)           the
Holder gives to the Trustee written notice of a continuing Event of Default
with respect to that series;


 


(2)           the
Holders of at least 25% in principal amount of the then outstanding Securities
of that series make a written request to the Trustee to pursue the remedy;


 


(3)           such
Holder or Holders offer, and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;


 


(4)           the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and


 


(5)           during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Securities of that series do not give the Trustee a direction
inconsistent with the request.


 


No Holder of any series of Securities may use
this Indenture to prejudice the rights of another Holder of Securities of that
series or to obtain a preference or priority over another Holder of Securities
of that series.


 


SECTION 6.07                                       No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No director, officer, employee, incorporator
or stockholder of the Issuer will have any liability for any obligations of the
Issuer under the Securities or this Indenture or of any Guarantor under any
guarantee of any Security or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Security waives
and releases all such liability.  The
waiver and release are part of the consideration for issuance of the Securities
and any related Security guarantees.


 


23

















 


SECTION 6.08                                       Rights
of Holders to Receive Payment.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of
principal, premium, if any, and interest on the Security, on or after the
respective due dates expressed in the Security (including in connection with
any offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not, except as provided in the
subordination provisions, if any, applicable to such Security, be impaired or
affected without the consent of the Holder.


 


SECTION 6.09                                       Collection
Suit by Trustee.


 


If an Event of Default specified in Section 6.01(1) or
(2) hereof occurs and is continuing with respect to Securities of any series,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Issuer for the whole amount of principal (or such portion of
the principal as may be specified as due upon acceleration at that time in the
terms of that series of Securities), premium, if any, and interest, remaining
unpaid on the Securities of that series then outstanding, together with (to the
extent lawful) interest on overdue principal and interest, and such further
amount as shall be sufficient to cover the costs and, to the extent lawful,
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 7.07 hereof.


 


SECTION 6.10                                       Trustee
May File Proofs of Claim.


 


The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due to the Trustee under Section 7.07 hereof) and the
Securityholders allowed in any judicial proceedings relative to the Issuer (or
any other obligor on the Securities), its creditors or its property and shall
be entitled to and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims, and any custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. 
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.


 


SECTION 6.11                                       Priorities.


 


If the Trustee collects any money with
respect to Securities of any series pursuant to this Article, it shall pay out
the money in the following order:


 


24

















 


First: 
to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;


 


Second: 
in accordance with the subordination provisions, if any, of the
Securities of such series;


 


Third: 
to Securityholders for amounts due and unpaid on the Securities of such
series for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities of such series for principal, premium, if any, and interest,
respectively; and


 


Fourth: 
to the Issuer or to such party as a court of competent jurisdiction
shall direct.


 


The Trustee may fix a record date and payment
date for any payment to Holders of Securities of any series pursuant to this
Section.  The Trustee shall notify the
Issuer in writing reasonably in advance of any such record date and payment
date.


 


SECTION 6.12                                       Undertaking
for Costs.


 


In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defense made by the party litigant. 
This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.08 hereof or a suit by Holders of more than
10% in principal amount of the then outstanding Securities of any series.


 


ARTICLE 7

TRUSTEE


 


SECTION 7.01                                       Duties
of Trustee.


 


(a)           If
an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.


 


(b)           Except
during the continuance of an Event of Default known to the Trustee:


 


(i)            the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture or the TIA and the Trustee need perform only those duties that
are specifically set forth in this Indenture or the TIA and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and


 


25

















 


(ii)           in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture.  However,
in the case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine
the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(c)           The
Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:


 


(i)            this
paragraph does not limit the effect of paragraph (b) of this Section;


 


(ii)           the
Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer of the Trustee, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and


 


(iii)          the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05
hereof.


 


(d)           Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section.


 


(e)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability.  The
Trustee may refuse to perform any duty or exercise any right or power,
including without limitation, the provisions of Section 6.05 hereof, unless
it receives security and indemnity satisfactory to it against any loss,
liability or expense.


 


(f)            The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Issuer.  Absent written instruction from the Issuer,
the Trustee shall not be required to invest any such money.  Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.


 


SECTION 7.02                                       Rights
of Trustee.


 


Subject to TIA Section 315(a) through
(d) and Section 7.01 of this Indenture:


 


(a)           The
Trustee may conclusively rely on any document believed by it to be genuine and
to have been signed or presented by the proper person.  The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.


 


26

















 


(b)           Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both. 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.


 


(c)           The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.


 


(d)           The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers under
the Indenture, unless the Trustee’s conduct constitutes negligence.


 


(e)           Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer shall be sufficient if signed by an Officer
of the Issuer.


 


(f)            The
Trustee may consult with counsel of its selection and may rely upon the advice
of such counsel or any Opinion of Counsel.


 


(g)           The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless
written notice of any event that is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities generally or the Securities of a particular series,
as the case may be, and this Indenture.


 


(h)           The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as duties.


 


SECTION 7.03                                       Individual
Rights of Trustee.


 


The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Issuer or an Affiliate with the same rights it would have if it were
not Trustee.  Any Agent may do the same
with like rights.  However, the Trustee
is subject to TIA Sections 310(b) and 311.


 


SECTION 7.04                                       Trustee’s
Disclaimer.


 


The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Issuer’s use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities other than its
certificate of authentication.


 


SECTION 7.05                                       Notice
of Defaults.


 


If a Default or Event of Default with respect
to the Securities of any series occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to all Holders of Securities of that series
a notice of the Default or Event of Default within 90 days after it
occurs.  Except in the case of a Default
or Event of Default in payment on any such Security, the Trustee may 


 


27

















 


withhold the
notice if and so long as the Trustee in good faith determines that withholding
the notice is in the interests of such Securityholders.


 


SECTION 7.06                                       Reports
by Trustee to Holders.


 


Within 60 days after January 1 of any
year, the Trustee with respect to any series of Securities shall mail to
Holders of Securities of that series as provided in TIA Section 313(c) a
brief report dated as of such January 1 that complies with TIA Section 313(a) (if
such report is required by TIA Section 313(a)).  The Trustee shall also comply with TIA Section 313(b)(2).


 


A copy of each report at the time of its
mailing to Securityholders shall be mailed to the Issuer and filed with the
Commission and each stock exchange on which any of the Securities are listed,
as required by TIA Section 313(d). 
The Issuer shall notify the Trustee when the Securities are listed on
any stock exchange, and of any delisting thereof.


 


SECTION 7.07                                       Compensation
and Indemnity.


 


The Issuer shall pay to the Trustee from time
to time such compensation as shall be agreed upon in writing for its services
hereunder (which compensation shall not be limited by any provision of law in
regard to compensation of a trustee of an express trust).  The Issuer shall reimburse the Trustee upon
written request for all reasonable out-of-pocket expenses incurred by it.  Such expenses shall include the reasonable
compensation and out-of-pocket expenses of the Trustee’s agents and counsel.


 


The Issuer shall indemnify and hold harmless
each of the Trustee or any predecessor Trustee for any loss, liability, damage,
claims or expenses, including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee) incurred by it, without negligence
or bad faith on its part, in connection with the acceptance or administration
of this Indenture and its duties hereunder. 
The Trustee shall notify the Issuer promptly of any claim for which it
may seek indemnity.  The Trustee may have
separate counsel and the Issuer shall pay the reasonable fees and expenses of
such counsel.  The Issuer need not pay
for any settlement made without its consent.


 


Notwithstanding the foregoing, the Issuer and
the Guarantors need not reimburse the Trustee for any expense or indemnify it
against any loss or liability incurred by the Trustee through its negligence or
bad faith.  To secure the Issuer’s
payment obligations in this Section, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee in its
capacity as Trustee, except money or property held in trust to pay principal
and interest on particular Securities. 
Such lien will survive the satisfaction and discharge of this Indenture.  If the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.01(4) or (5) hereof
occurs, the expenses and the compensation for the services will be intended to
constitute expenses of administration under any applicable Bankruptcy Law.


 


This Section 7.07 shall survive the resignation
or renewal of the Trustee and the termination of this Indenture.


 


28

















 


SECTION 7.08                                       Replacement
of Trustee.


 


A resignation or removal of the Trustee with
respect to one or more or all series of Securities and appointment of a
successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section.


 


The Trustee may resign with respect to one or
more or all series of Securities by so notifying the Issuer in writing.  The Holders of a majority in principal amount
of the then outstanding Securities of any series may remove the Trustee as to
that series by so notifying the Trustee in writing and may appoint a successor
Trustee with the Issuer’s consent.  The
Issuer may remove the Trustee with respect to one or more or all series of
Securities if:


 


(1)           the
Trustee fails to comply with Section 7.10 hereof;


 


(2)           the
Trustee is adjudged a bankrupt or an insolvent;


 


(3)           a
receiver or other public officer takes charge of the Trustee or its property;
or


 


(4)           the
Trustee becomes incapable of acting.


 


If, as to any series of Securities, the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Issuer shall promptly appoint a successor Trustee for that
series.  Within one year after the
successor Trustee with respect to any series takes office, the Holders of a
majority in principal amount of the then outstanding Securities of that series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Issuer.  If a successor Trustee as to
a particular series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders
of at least 10% in principal amount of the then outstanding Securities of that
series may petition any court of competent jurisdiction for the appointment of
a successor Trustee.


 


If the Trustee fails to comply with Section 7.10
hereof with respect to any series, any Holder of Securities of that series who
satisfies the requirements of TIA Section 310(b) may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee for that series.


 


A successor Trustee as to any series of
Securities shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Issuer. 
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07 hereof), the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture as to
that series.  The successor Trustee shall
mail a notice of its succession to the Holders of Securities of that series.


 


Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07
hereof shall continue for the benefit of the retiring trustee.


 


29

















 


In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more (but not all)
series, the Issuer, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and that (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
or desirable to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; provided, however, that nothing herein or
in such supplemental Indenture shall constitute such Trustee co-trustees of the
same trust and that each such Trustee shall be trustee of a trust hereunder
separate and apart from any trust hereunder administered by any other such
Trustee.


 


Upon the execution and delivery of such
supplemental Indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.


 


SECTION 7.09                                       Successor
Trustee by Merger, Etc.


 


If the Trustee as to any series of Securities
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee as to that series.


 


SECTION 7.10                                       Eligibility;
Disqualification.


 


Each series of Securities shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1) and
(2).  The Trustee as to any series of
Securities shall always have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition.  The Trustee is subject to TIA
Section 310(b), including the provision in Section 310(b)(1).


 


SECTION 7.11                                       Preferential
Collection of Claims Against the Issuer.


 


The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).  A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated
therein.


 


SECTION 7.12                                       Paying
Agents.


 


The Issuer shall cause each Paying Agent
other than the Trustee to execute and deliver to it and the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:


 


30

















 


(a)           that
it will hold all sums held by it as agent for the payment of principal of, or
premium, if any, or interest on, the Securities (whether such sums have been
paid to it by the Issuer or by any obligor on the Securities) in trust for the
benefit of Holders or the Trustee;


 


(b)           that
it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in
trust by it together with a full accounting thereof; and


 


(c)           that
it will give the Trustee written notice within three (3) Business Days of
any failure of the Issuer (or by any obligor on the Securities) in the payment
of any installment of the principal of, premium, if any, or interest on, the
Securities when the same shall be due and payable.


 


ARTICLE 8

SATISFACTION AND DISCHARGE; DEFEASANCE


 


SECTION 8.01                                       Satisfaction
and Discharge.


 


This Indenture will be discharged and will
cease to be of further effect with respect to any series of Securities issued
hereunder, when either:


 


(1)           all
Securities of such series that have been authenticated (except lost, stolen or
destroyed Securities that have been replaced or paid and Securities for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Issuer) have been delivered to the Trustee for cancellation; or


 


(2)           (a)           all Securities of such
series that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the making of a notice of redemption or otherwise
or will become due and payable within one year and the Issuer or any Guarantor
has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the Securities not
delivered to the Trustee for cancellation for principal, premium and accrued
interest to the date of maturity or redemption,


 


(b)           no
Default or Event of Default with respect to such series of Securities shall
have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other material instrument to
which the Issuer or any Guarantor is a party to or by which the Issuer or any
Guarantor is bound;


 


(c)           the
Issuer or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture with respect to such series of Securities; and


 


31
















 


(d)           the Issuer has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of the Securities of such series at
maturity or the redemption date, as the case may be.


 


In addition, the Issuer must deliver an
Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.


 


Notwithstanding, the satisfaction and
discharge of this Indenture with respect to a series of Securities, if money
shall have been deposited with the Trustee pursuant to subclause (a) of
clause (2) of this Section, the provisions of Section 8.06 shall
survive.


 


SECTION 8.02                                       Option
to Effect Legal Defeasance or Covenant Defeasance.


 


Unless Section 8.03 or 8.04 is otherwise
specified to be inapplicable to Securities of a series, the Issuer may, at the
option of its Board of Directors evidenced by a resolution set forth in an
Officers’ Certificate, at any time, elect to have either Section 8.03 or 8.04
hereof be applied to all outstanding Securities of any such series upon
compliance with the conditions set forth below in this Article Eight.


 


SECTION 8.03                                       Legal
Defeasance and Discharge.


 


Upon the Issuer’s exercise under
Section 8.02 hereof of the option applicable to this Section 8.03,
the Issuer and any Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 8.05 hereof, be deemed to have been
discharged from their respective obligations with respect to all outstanding Securities
of any series on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).  For
this purpose, Legal Defeasance means that the Issuer and any Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Securities of a series, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.06 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Securities to receive solely from
the trust fund described in Section 8.05 hereof, and as more fully set
forth in such Section, payments in respect of the principal of, premium and
interest on such Securities when such payments are due, (b) the Issuer’s
obligations with respect to such Securities under Article 2 and
Section 4.03 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Issuer’s or any Guarantors’
obligations in connection therewith and (d) this Article Eight.  Subject to compliance with this
Article Eight, the Issuer may exercise its option under this
Section 8.03 notwithstanding the prior exercise of its option under
Section 8.04 hereof.


 


SECTION 8.04                                       Covenant
Defeasance.


 


Upon the Issuer’s exercise under
Section 8.02 hereof of the option applicable to this Section 8.04,
the Issuer or any Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.05 hereof, be released from their
respective obligations under the covenants contained in Sections 4.03, 4.04,
4.05, 4.06, 4.07 and 4.08, and Section 5.01 hereof with respect 


 


32

















 


to the outstanding Securities of any series
on and after the date the conditions set forth in Section 8.05 are
satisfied (hereinafter, “Covenant Defeasance”), and the Securities of such
series shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Securities of any
series, the Issuer or any Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.  In addition, upon the Issuer’s exercise under
Section 8.02 hereof of the option applicable to this Section 8.04
hereof, subject to the satisfaction of the conditions set forth in
Section 8.05 hereof, Sections 6.01(3) through 6.01(6) hereof
shall not constitute Events of Default.


 


SECTION 8.05                                       Conditions
to Legal or Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.03 or 8.04 hereof to the outstanding
Securities of any series.  In order to
exercise either Legal Defeasance or Covenant Defeasance:


 


(a)           the Issuer must irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium and interest on the outstanding Securities on the stated date for
payment thereof or on the applicable redemption date, as the case may be;


 


(b)           in the case of an election under
Section 8.03 hereof, the Issuer shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date hereof,
there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;


 


(c)           in the case of an election under
Section 8.04 hereof, the Issuer shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;


 


33

















 


(d)           no Default or Event of Default shall
have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the incurrence of Indebtedness all
or a portion of the proceeds of which will be used to defease the Securities
pursuant to this Article Eight concurrently with such incurrence) or
insofar as Sections 6.01(4) or 6.01(5) hereof is concerned, at any time in
the period ending on the 91st day after the date of deposit;


 


(e)           such Legal Defeasance or Covenant
Defeasance shall not result in a breach or violation of, or constitute a
default under, any material agreement or instrument (other than this Indenture)
to which the Issuer or any of its Subsidiaries is a party or by which the
Issuer or any of its Subsidiaries is bound;


 


(f)            the Issuer shall have delivered to
the Trustee an Officers’ Certificate stating that the deposit was not made by
the Issuer with the intent of preferring the Holders over any other creditors
of the Issuer or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Issuer; and


 


(g)           the Issuer shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.


 


SECTION 8.06                                       Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions


 


Subject to Section 8.07 hereof, all
money and non-callable U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 8.06, the “Trustee”) pursuant to
Section 8.01 or Section 8.05 hereof in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.


 


The Issuer shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash or non-callable U.S. Government Obligations deposited pursuant to
Section 8.05 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Securities.


 


Anything in this Article Eight to the
contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from
time to time upon the request of the Issuer any money or non-callable U.S.
Government Obligations held by it as provided in Section 8.05 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under
Section 8.05(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.


 


34

















 


SECTION 8.07                                       Repayment
to the Issuer.


 


Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of, premium, if any, or interest on any Securities and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Issuer on its request or (if
then held by the Issuer) shall be discharged from such trust; and the Holder of
such Securities shall thereafter look only to the Issuer for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.


 


SECTION 8.08                                       Reinstatement.


 


If the Trustee or Paying Agent is unable to
apply any United States dollars or non-callable U.S. Government Securities in
accordance with Section 8.01, 8.03 or 8.04 hereof, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.03
or 8.04 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.03 or 8.04 hereof, as
the case may be; provided, however, that, if the Issuer makes any payment of
principal of, premium, if any, or interest on any Securities following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the Trustee or Paying Agent.


 


ARTICLE 9


SUPPLEMENTS,
AMENDMENTS AND WAIVERS


 


SECTION 9.01                                       Without
Consent of Holders.


 


The Issuer and the Trustee as to any series
of Securities may supplement or amend this Indenture or the Securities without
notice to or the consent of any Securityholder:


 


(1)           to
cure any ambiguity, defect or inconsistency;


 


(2)           to
comply with Article 5;


 


(3)           to
comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA;


 


(4)           to
provide for uncertificated Securities in addition to or in place of
certificated Securities;


 


35

















 


(5)           to
add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities; provided, however, that any such addition,
change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no outstanding Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision;


 


(6)           to
make any change that does not adversely affect in any material respect the
interests of the Securityholders of any series; or


 


(7)           to
establish additional series of Securities as permitted by Section 2.01
hereof.


 


SECTION 9.02                                       With
Consent of Holders.


 


This Indenture or any series of Securities
may be amended with the consent (which may include consents obtained in
connection with a tender offer or exchange offer for that series of Securities)
of the Holders of at least a majority in aggregate principal amount of the
series of the Securities then outstanding, and any existing Default under, or
compliance with any provision of, this Indenture may be waived (other than any
continuing Default in the payment of the principal or interest on the
Securities) with the consent (which may include consents obtained in connection
with a tender offer or exchange offer for that series of Securities) of the
Holders of a majority in aggregate principal amount of the Securities of that
series then outstanding; provided that
without the consent of each Holder affected, the Issuer and the Trustee may
not:


 


(1)           change
the maturity of any Security;


 


(2)           reduce
the amount, extend the due date or otherwise affect the terms of any scheduled
payment of interest on or principal of the Securities;


 


(3)           reduce
any premium payable upon optional redemption of the Securities, change the date
on which any Securities are subject to redemption or otherwise alter the
provisions with respect to the redemption of the Securities;


 


(4)           make
any Security payable in money or currency other than that stated in the
Securities;


 


(5)           modify
or change any provision of this Indenture or the related definitions to affect
the ranking of the Securities or any Security guarantee in a manner that
adversely affects the Holders;


 


(6)           reduce
the percentage of Holders necessary to consent to an amendment or waiver to
this Indenture or the Securities;


 


(7)           impair
the rights of Holders to receive payments of principal of or interest on the
Securities;


 


36

















 


(8)           release
any Guarantor from any of its obligations under its Security guarantee or this
Indenture, except as permitted by this Indenture; or


 


(9)           make
any change in this Section 9.02.


 


After an amendment, supplement or waiver
under this Section 9.02 becomes effective, the Issuer shall mail to the
Holders a notice briefly describing the amendment, supplement or waiver.


 


Upon the written request of the Issuer,
accompanied by a Board Resolution authorizing the execution of any such
supplemental indenture, and upon the receipt by the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Holders as
aforesaid and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall join with the Issuer and the Guarantors in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture, in
which case the Trustee may, but shall not be obligated to, enter into such
supplemental indenture.


 


It shall not be necessary for the consent of
the Holders under this Section to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.


 


SECTION 9.03                                       Compliance
with the Trust Indenture Act.


 


Every amendment or supplement to this
Indenture or the Securities shall comply with the TIA as then in effect.


 


SECTION 9.04                                       Revocation
and Effect of Consents.


 


Until an amendment or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if
notation of the consent is not made on any Security; provided, however, any
such Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the written notice of revocation
before the date on which the amendment, supplement or waiver becomes
effective.  An amendment, supplement or
waiver shall become effective in accordance with its terms and thereafter shall
bind every Holder of Securities of that series.


 


SECTION 9.05                                       Notation
on or Exchange of Securities.


 


If an amendment, supplement or waiver changes
the terms of a Security: (a) the Trustee may require the Holder of the
Security to deliver it to the Trustee, the Trustee may, at the written
direction of the Issuer and at the Issuer’s expense, place an appropriate
notation on the Security about the changed terms and return it to the Holder
and the Trustee may place an appropriate notation on any Security thereafter
authenticated; or (b) if the Issuer or the Trustee so determines, the
Issuer in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.


 


37

















 


Failure to make the appropriate notation or
issue a new Security shall not affect the validity and effect of such
amendment, supplement or waiver.


 


SECTION 9.06                                       Trustee
to Sign Amendments, Etc.


 


Subject to the preceding sentence, the
Trustee shall sign any amendment of supplement Indenture if the same does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee.  The Trustee may, but shall not
be obligated to, execute any such amendment, supplement or waiver that affects
the Trustee’s own rights, duties, liabilities or immunities under this
Indenture or otherwise.  The Issuer may
not sign an amendment or supplemental Indenture until the Board of Directors
approves it.  In executing any amended or
supplemental Indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01) shall be fully protected in relying upon, in addition to
the documents required by Section 11.04 hereof, an Officers’ Certificate
and an Opinion of Counsel stating that the execution of such amended or
supplemental Indenture is authorized or permitted by this Indenture.


 


ARTICLE
10


GUARANTEES


 


SECTION 10.01                                 Guarantee.


 


Any series of Securities may be guaranteed by
one or more of the Guarantors.  The terms
and the form of any such guarantee will be established in the manner
contemplated by Section 2.01 for that particular series of Securities.


 


ARTICLE
11


MISCELLANEOUS


 


SECTION 11.01                                 Trust
Indenture Act Controls.


 


If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.  If any provision of this Indenture modifies
any TIA provision that may be so modified, such TIA provision shall be deemed
to apply to this Indenture as so modified. 
If any provision of this Indenture excludes any TIA provision that may
be so excluded, such TIA provision shall be excluded from this Indenture.


 


The provision of TIA Sections 310 through 317
that impose duties on any Person (including the provisions automatically deemed
included unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.


 


SECTION 11.02                                 Notices.


 


Any notice or communication is duly given if
in writing and delivered in person or sent by first-class mail (registered or
certified, return receipt requested), telecopier or overnight air courier
guaranteeing next-day delivery, addressed as follows:


 


38

















 


If to the Issuer and/or any Guarantor:


 


Meritage Homes Corporation


17851 N. 85th Street, Suite 300


Scottsdale, Arizona  85255


Attention: 
Chief Financial Officer


 


with a copy to:


 


DLA Piper US LLP


2415 East Camelback Road, Suite 700


Phoenix, Arizona  85016-4245


Attention: 
Steven D. Pidgeon, Esq.


 


If to the Trustee:


 


HSBC Bank USA, National Association


10 East 40th Street, 14th Floor


New York, New York  10016


Attention: 
Corporate Trust and Loan Services


 


The Issuer or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.


 


All notices and communications (other than
those sent to Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if telecopied; and the next business day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next-day delivery.


 


Any notice or communication to a
Securityholder shall be mailed by first-class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next day
delivery to his address shown on the register kept by the Registrar.  Failure to mail a notice or communication to
a Security holder or any defect in it shall not affect its sufficiency with
respect to other Securityholders.  If the
Issuer mails a notice or communication to Securityholders, it shall mail a copy
to the Trustee at the same time.  Any
notice or communication shall also be mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA.


 


If a notice or communication is mailed in the
manner provided above within the time prescribed, it is duly given, whether or
not the addressee receives it.


 


SECTION 11.03                                 Communication
by Holders With Other Holders.


 


Holders may communicate pursuant to TIA
Section 312(b) with other Holders with respect to their rights under
this Indenture or the Securities.  The
Issuer, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).


 


39

















 


SECTION 11.04                                 Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or application by the Issuer
to the Trustee to take any action under this Indenture, the Issuer shall
furnish to the Trustee:


 


(a)           an Officers’ Certificate, in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been complied with; and


 


(b)           an Opinion of Counsel, in form and
substance reasonably satisfactory to the Trustee (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, such action is authorized or permitted by this Indenture and that all
such conditions precedent have been complied with.


 


SECTION 11.05                                 Statements
Required in Certificate or Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificate provided pursuant to TIA Section 314(a)(4)) shall
include:


 


(1)           a
statement that the Person making such certificate or opinion has read such
covenant or condition;


 


(2)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(3)           a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(4)           a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an officers’ certificate or
certificates of public officials.


 


SECTION 11.06                                 Rules by
Trustee and Agents.


 


The Trustee as to Securities of any series
may make reasonable rules for action by or at a meeting of Holders of
Securities of that series.  The Registrar
and any Paying Agent or Authenticating Agent may make reasonable rules and
set reasonable requirements for their functions.


 


SECTION 11.07                                 Legal
Holidays.


 


A “Legal Holiday” is a Saturday, a Sunday or
a day on which banking institutions in the City of New York, New York or at a
place of payment are authorized by law, regulation or 


 


40

















 


executive order to remain closed.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.


 


SECTION 11.08                                 No
Recourse Against Others.


 


No past, present or future director, officer,
employee, manager, securityholder or incorporator, as such, of the Issuer or
any successor Person shall have any liability for any obligations of the Issuer
or any Guarantor under any series of Securities, any guarantees thereof, or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation.  Each
Securityholder by accepting a Security waives and releases all such
liability.  The waiver and release are
part of the consideration of issuance of the Securities.


 


SECTION 11.09                                 Counterparts.


 


This Indenture may be executed 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.


 


SECTION 11.10                                 Governing
Law.


 


The internal laws of the State of New York
shall govern and be used to construe this Indenture and the Securities
(including any guarantees thereof), without giving effect to the applicable
principles of conflicts of laws to the extent that the application of the laws
of another jurisdiction would be required thereby.


 


SECTION 11.11                                 Submission
to Jurisdiction; Service of Process; Waiver of Jury Trial.


 


Each party hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State Court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Indenture, the Securities (including any guarantee thereof) or the transactions
contemplated hereby and thereby.  EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.  Process in any such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the State of New York.  Without limiting the foregoing, the parties
agree that service of process upon such party at the address referred to in
Section 11.02, together with written notice of such service to such party,
shall be deemed effective service of process upon such party.  EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES (INCLUDING ANY
GUARANTEE THEREOF) OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.


 


41

















 


SECTION 11.12                                 Severability.


 


In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


SECTION 11.13                                 Effect
of Headings, Table of Contents, Etc.


 


The Article and Section headings
herein and the table of contents are for convenience only and shall not affect
the construction hereof.


 


SECTION 11.14                                 Successors
and Assigns.


 


All covenants and agreements of the Issuer in
this Indenture and the Securities shall bind its successors and assigns.  All agreements of the Trustee in this
Indenture shall bind its successor.  All
agreements of any Guarantor in this Indenture shall bind its successors, except
as otherwise provided by the terms hereof.


 


SECTION 11.15                                 No
Interpretation of Other Agreements.


 


This Indenture may not be used to interpret
another indenture, loan or debt agreement of the Issuer or any subsidiary or of
any Person.  Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.


 


[Signature Page Follows]


 


42
















 


IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed, all
as of the date first above written.


 


 


	
   

  	
  MERITAGE HOMES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer, Executive 

  
	
   

  	
   

  	
  Vice President
  and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GREATER HOMES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE PASEO CROSSING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage Homes
  of Arizona, Inc., its Sole

  
	
   

  	
   

  	
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES OF NEVADA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
					



 


43

















 


	
   

  	
  MERITAGE PASEO CONSTRUCTION, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes Construction, Inc.,

  
	
   

  	
   

  	
  its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES OF ARIZONA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES CONSTRUCTION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE
  HOMES OF TEXAS HOLDING,

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  



 


44

















 


	
   

  	
  MERITAGE
  HOMES OF TEXAS JOINT

  VENTURE HOLDING COMPANY L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes of Texas, LLC, its Sole

  Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes of Texas Holding, Inc., its

  Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES OF CALIFORNIA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES OF TEXAS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes of Texas Holding, Inc., its

  Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  



 


45

















 


	
   

  	
  MERITAGE
  HOMES OPERATING COMPANY,

  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Holdings, L.L.C., its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes of Texas Holding, Inc., its

  Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOLDINGS, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes of Texas Holding, Inc., its

  Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MTH-CAVALIER, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes Construction, Inc., its Sole

  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief

  
	
   

  	
   

  	
  Financial
  Officer

  



 


46

















 


	
   

  	
  MTH GOLF, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes Construction, Inc., its Sole

  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES OF COLORADO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MERITAGE HOMES OF FLORIDA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CALIFORNIA URBAN BUILDERS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  



 


47

















 


	
   

  	
  CALIFORNIA URBAN HOMES, LLC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Meritage
  Homes of California, Inc., its Sole 

  
	
   

  	
  Member and
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Larry W.
  Seay

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President - Chief 

  
	
   

  	
   

  	
  Financial
  Officer

  



 


48

















 


	
   

  	
  HSBC BANK
  USA, NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


49