Exhibit 4.2.5 FIFTH SUPPLEMENTAL INDENTURE, dated as of August 22, 2003 (the "Fifth Supplemental Indenture") between Meritage Corporation, a corporation organized under the laws of the State of Maryland (the "Issuer"), the Guarantors named therein, Mission Royale Golf Course, LLC, an Arizona limited liability company ("Mission Royale") and Legacy-Hammonds Materials, L.P., a Texas limited partnership ("Legacy-Hammonds") (Mission Royale and Legacy-Hammonds together, the "Additional Guarantors") and Wells Fargo Bank, National Association, as trustee (the "Trustee"), under the Indenture (as defined below). Capitalized terms used and not defined herein shall have the same meanings given in the Indenture unless otherwise indicated. WHEREAS, the Issuer, the Guarantors thereto and the Trustee are parties to that certain Indenture dated as of May 30, 2001 (the "Indenture") pursuant to which the Company issued its 9 3/4% Senior Notes 2011 (the "Notes") and the Guarantors guaranteed the obligations of the Issuer under the Indenture and the Notes; WHEREAS, pursuant to Section 4.13 of the Indenture, if the Issuer acquires or creates any additional subsidiary which is a Restricted Subsidiary, each such subsidiary shall execute and deliver a supplemental indenture pursuant to which such subsidiary shall unconditionally guaranty the Issuer's obligations under the Notes; WHEREAS, the Issuer, the Guarantors thereto, Hulen Park Venture, LLC, Meritage Holdings, L.L.C. and the Trustee are parties to that First Supplemental Indenture, dated as of September 20, 2001 (the "First Supplemental Indenture") pursuant to which Hulen Park Venture, LLC and Meritage Holdings, L.L.C. were added as Guarantors; WHEREAS, the Issuer, the Guarantors thereto, MTH Homes-Texas, L.P., MTH-Texas GP II, Inc., MTH-Texas LP II, Inc. and the Trustee are parties to that Second Supplemental Indenture, dated as of July 12, 2002 (the "Second Supplemental Indenture") pursuant to which MTH Homes-Texas, L.P., MTH-Texas GP II, Inc. and MTH-Texas LP II, Inc. were added as Guarantors; WHEREAS, the Issuer, the Guarantors thereto, MTH Homes-Nevada, Inc. and the Trustee are parties to that Third Supplemental Indenture, dated as of October 21, 2002 (the "Third Supplemental Indenture") pursuant to which MTH Homes-Nevada, Inc. was added as a Guarantor; WHEREAS, the Issuer, the Guarantors thereto, MTH Cavalier, LLC and the Trustee are parties to that Fourth Supplemental Indenture, dated as of February 19, 2002 (the "Fourth Supplemental Indenture") pursuant to which MTH Cavalier, LLC was added as a Guarantor; WHEREAS, the Additional Guarantors are Restricted Subsidiaries of the Issuer; WHEREAS, the Issuer and the Trustee desire to have the Additional Guarantors enter into this Fifth Supplemental Indenture and agree to guaranty the obligations of the Issuer under the Indenture and the Notes and the Additional Guarantors desire to enter into this Fifth Supplemental Indenture and to guaranty the obligations of the Issuer under the Indenture and the Notes as of such date; WHEREAS, Section 8.01 of the Indenture provides that the Issuer, the Guarantors and the Trustee may, without the written consent of the Holders of the outstanding Notes, amend the Indenture as provided herein; WHEREAS, by entering into this Fifth Supplemental Indenture, the Issuer and the Trustee have consented to amend the Indenture in accordance with the terms and conditions herein; WHEREAS, each Guarantor hereby acknowledges and consents to amend the Indenture in accordance with the terms and conditions herein; and WHEREAS, all acts and things prescribed by the Articles of Organization of Mission Royale (as now in effect) and the Certificate of Limited Partnership and the Agreement of Limited Partnership of Legacy-Hammonds (as now in effect) necessary to make this Fifth Supplemental Indenture a valid instrument legally binding on the Additional Guarantors for the purposes herein expressed, in accordance with its terms, have been duly done and performed. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Additional Guarantors and the Trustee hereby agree for the benefit of each other and the equal and ratable benefit of the Holders of the Notes as follows: 1. Additional Guarantors as Guarantors. As of the date hereof and pursuant to this Fifth Supplemental Indenture, the Additional Guarantors shall become Guarantors under the definition of Guarantor in the Indenture in accordance with the terms and conditions of the Indenture and shall assume all rights and obligations of a Guarantor thereunder. 2. Compliance with and Fulfillment of Condition of Section 4.13. The execution and delivery of this Fifth Supplemental Indenture by the Additional Guarantors (along with such documentation relating thereto as the Trustee shall require) fulfills the obligations of the Issuer under Section 4.13 of the Indenture. 3. Construction. For all purposes of this Fifth Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the defined terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the words "herein," "hereof" and "hereby" and other words of similar import used in this Fifth Supplemental Indenture refer to this Fifth Supplemental Indenture as a whole and not to any particular Section hereof. 4. Trustee Acceptance. The Trustee accepts the amendment of the Indenture effected by this Fifth Supplemental Indenture, as hereby amended, but only upon the terms and conditions set forth in the Indenture, as hereby amended, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee in the performance of its duties and obligations under the Indenture, as hereby amended. Without limiting the generality of the foregoing, the Trustee has no responsibility for the correctness of the recitals of fact herein contained which shall be taken as the statements of each of the Issuer and the Additional Guarantors, respectively, and makes no representations as to the validity or enforceability against either the Issuer or the Additional Guarantors. -2- 5. Indenture Ratified. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. 6. Holders Bound. This Fifth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the Notes heretofore or hereafter authenticated and delivered shall be bound hereby. 7. Successors and Assigns. This Fifth Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 8. Counterparts. This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and all of such counterparts shall together constitute one and the same instrument. 9. Governing Law. This Fifth Supplemental Indenture shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to principles of conflicts of laws. IN WITNESS WHEREOF, the Issuer, the Additional Guarantors and the Trustee have caused this Fifth Supplemental Indenture to be duly executed as of the date first above written. ISSUER: MERITAGE CORPORATION By: /s/ Steven J. Hilton --------------------------------------- Steven J. Hilton Its: Co-Chairman, Co-President and Co-Chief Executive Officer By: /s/ Larry W. Seay --------------------------------------- Larry W. Seay Its: Chief Financial Officer, Vice President- Finance and Secretary -3- ADDITIONAL GUARANTORS: MISSION ROYALE GOLF COURSE, LLC By: Hancock-MTH Builders, Inc., its Sole Member By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-Chairman and Co-CEO LEGACY-HAMMONDS MATERIALS, L.P. By: Meritage Holdings, L.L.C., its General Partner By: Legacy/Monterey Homes L.P., its Sole Member By: MTH-Texas GP, Inc., its General Partner By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary TRUSTEE: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Jeanie Mar ---------------------------------------- Its: Vice President -4- GUARANTORS: MONTEREY HOMES ARIZONA, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO, President and Chief Executive Officer MERITAGE PASEO CROSSING, LLC By: Meritage Homes of Arizona, Inc., its Sole Member By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO and Chairman MONTEREY HOMES CONSTRUCTION, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO, President and Chief Executive Officer MERITAGE PASEO CONSTRUCTION, LLC By: Meritage Homes Construction, Inc., its Sole Member By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO and Co-Chairman -5- MERITAGE HOMES OF ARIZONA, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO and Co-Chairman MERITAGE HOMES CONSTRUCTION, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO and Co-Chairman MTH-TEXAS GP, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-Chairman MTH-TEXAS LP, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-Chairman -6- LEGACY/MONTEREY HOMES L.P. By: MTH-Texas GP, Inc., its General Partner By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-Chairman MERITAGE HOMES OF NORTHERN CALIFORNIA, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO, President and Chief Executive Officer HANCOCK-MTH BUILDERS, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-Chairman and Co-CEO HANCOCK-MTH COMMUNITIES, INC. By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-Chairman and Co-CEO -7- LEGACY OPERATING COMPANY, L.P. By: Meritage Holdings, L.L.C., its General Partner By: Legacy/Monterey Homes L.P., its Sole Member By: MTH-Texas GP, Inc., its General Partner By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary HULEN PARK VENTURE, LLC By: Legacy/Monterey Homes L.P., its Sole Member By: MTH-Texas GP, Inc., its General Partner By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary MERITAGE HOLDINGS, L.L.C. By: Legacy/Monterey Homes L.P., its Sole Member By: MTH-Texas GP, Inc., its General Partner By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary -8- MTH HOMES-TEXAS, L.P. By: MTH-Texas GP II, Inc., its General Partner By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary MTH-TEXAS GP II, INC. By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary MTH-TEXAS LP II, INC. By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary MTH-HOMES NEVADA, INC. By: /s/ Steven J. Hilton ---------------------------------------- Steven J. Hilton Its: Co-Chairman and Chief Executive Officer By: /s/ Larry W. Seay ---------------------------------------- Larry W. Seay Its: Vice President-Secretary -9- MTH-CAVALIER, LLC By: Monterey Homes Construction, Inc., its Sole Member By: /s/ Larry W. Seay ---------------------------------------- Name: Larry W. Seay Title: Vice President-Secretary By: /s/ Steven J. Hilton ---------------------------------------- Name: Steven J. Hilton Title: Co-CEO, President and Chief Executive Officer -10-