Exhibit 4.2.7
SEVENTH SUPPLEMENTAL INDENTURE, dated as of December 20, 2004 (the “Seventh Supplemental Indenture”) between Meritage Homes Corporation, a corporation organized under the laws of the State of Maryland (the “Issuer”), the Guarantors named therein, Meritage Homes of Florida, Inc., an Arizona corporation (the “Additional Guarantor”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), under the Indenture (as defined below). Capitalized terms used and not defined herein shall have the same meanings given in the Indenture unless otherwise indicated.
WHEREAS, the Issuer, the Guarantors thereto and the Trustee are parties to that certain Indenture dated as of May 30, 2001 (the “Indenture”) pursuant to which the Company issued its 9 ¾% 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, 2003 (the “Fourth Supplemental Indenture”) pursuant to which MTH Cavalier, LLC was added as a Guarantor;
WHEREAS, the Issuer, the Guarantors thereto, Mission Royale Golf Course, LLC, Legacy-Hammonds Materials, L.P. and the Trustee are parties to that Fifth Supplemental Indenture, dated as of August 22, 2003 (the “Fifth Supplemental Indenture”) pursuant to which Mission Royale Golf Course, LLC and Legacy-Hammonds Materials, L.P. were added as Guarantors;
WHEREAS, the Issuer, the Guarantors thereof, Meritage Homes of Colorado, Inc. and the Trustee are parties to the Sixth Supplemental Indenture, dated as of May 14, 2004 (the “Sixth Supplemental Indenture”) pursuant to which Meritage Homes of Colorado, Inc. was added as a Guarantor;
WHEREAS, the Additional Guarantor is a Restricted Subsidiary of the Issuer;
WHEREAS, the Issuer and the Trustee desire to have the Additional Guarantor enter into this Seventh Supplemental Indenture and agree to guaranty the obligations of the Issuer under the Indenture and the Notes and the Additional Guarantor desires to enter into this Seventh 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 Seventh Supplemental Indenture, the Issuer and the Trustee have consented to amend the Indenture in accordance with the terms and conditions herein;
WHEREAS, each Guarantor hereby acknowledges and consents to amend the Indenture in accordance with the terms and conditions herein; and
WHEREAS, all acts and things prescribed by the Articles of Incorporation and Bylaws (as now in effect) of the Additional Guarantor necessary to make this Seventh Supplemental Indenture a valid instrument legally binding on the Additional Guarantor for the purposes herein expressed, in accordance with its terms, have been duly done and performed.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Additional Guarantor and the Trustee hereby agree for the benefit of each other and the equal and ratable benefit of the Holders of the Notes as follows:
1. Additional Guarantor as Guarantor. As of the date hereof and pursuant to this Seventh Supplemental Indenture, the Additional Guarantor shall become a Guarantor under the definition of Guarantor in the Indenture in accordance with the terms and conditions of the Indenture and shall assume all rights and obligations of a Guarantor thereunder.
2. Compliance with and Fulfillment of Condition of Section 4.13. The execution and delivery of this Seventh Supplemental Indenture by the Additional Guarantor (along with such documentation relating thereto as the Trustee shall require) fulfills the obligations of the Issuer under Section 4.13 of the Indenture.
3. Construction. For all purposes of this Seventh 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 Seventh Supplemental Indenture refer to this Seventh Supplemental Indenture as a whole and not to any particular Section hereof.
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4. Trustee Acceptance. The Trustee accepts the amendment of the Indenture effected by this Seventh Supplemental Indenture, as hereby amended, but only upon the terms and conditions set forth in the Indenture, as hereby amended, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee in the performance of its duties and obligations under the Indenture, as hereby amended. Without limiting the generality of the foregoing, the Trustee has no responsibility for the correctness of the recitals of fact herein contained which shall be taken as the statements of each of the Issuer and the Additional Guarantor, respectively, and makes no representations as to the validity or enforceability against either the Issuer or the Additional Guarantor.
5. Indenture Ratified. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
6. Holders Bound. This Seventh 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 Seventh Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
8. Counterparts. This Seventh 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 Seventh Supplemental Indenture shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to principles of conflicts of laws.
IN WITNESS WHEREOF, the Issuer, the Additional Guarantor and the Trustee have caused this Seventh Supplemental Indenture to be duly executed as of the date first above written.
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ISSUER: |
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MERITAGE HOMES CORPORATION |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman, Co-President and Co-Chief Executive Officer |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Chief Financial Officer, Vice President-Finance and Secretary |
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ADDITIONAL GUARANTOR: |
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MERITAGE HOMES OF FLORIDA, INC. |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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TRUSTEE: |
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WELLS FARGO BANK, NATIONAL |
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By: |
/s/ Jeanie Mar |
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Its: |
Vice President |
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GUARANTORS: |
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MONTEREY HOMES ARIZONA, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO, President and Chief Executive Officer |
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MERITAGE PASEO CROSSING, LLC |
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By: |
Meritage Homes of Arizona, Inc., its Sole |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO and Chairman |
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ADDITIONAL GUARANTOR: |
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MERITAGE HOMES OF FLORIDA, INC. |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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TRUSTEE: |
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WELLS FARGO BANK, NATIONAL |
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By: |
/s/ Maddy Hall |
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Its: |
Trust Officer |
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GUARANTORS: |
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MONTEREY HOMES ARIZONA, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO, President and Chief Executive Officer |
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MERITAGE PASEO CROSSING, LLC |
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By: |
Meritage Homes of Arizona, Inc., its Sole |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO and Chairman |
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MONTEREY HOMES CONSTRUCTION, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO, President and Chief Executive Officer |
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MERITAGE PASEO CONSTRUCTION, LLC |
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By: |
Meritage Homes Construction, Inc., its Sole |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO and Co-Chairman |
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MERITAGE HOMES OF ARIZONA, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO and Co-Chairman |
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MERITAGE HOMES CONSTRUCTION, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO and Co-Chairman |
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MTH-TEXAS GP, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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MTH-TEXAS LP, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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LEGACY/MONTEREY HOMES L.P. |
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By: |
MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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MERITAGE HOMES OF CALIFORNIA, INC. |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO, President and Chief Executive Officer |
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LEGACY OPERATING COMPANY, L.P. |
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By: |
Meritage Holdings, L.L.C., its General |
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By: |
Legacy/Monterey Homes L.P., its Sole |
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By: |
MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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HULEN PARK VENTURE, LLC |
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By: |
Legacy/Monterey Homes L.P., its Sole |
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By: |
MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MERITAGE HOLDINGS, L.L.C. |
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By: |
Legacy/Monterey
Homes L.P., its Sole |
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By: |
MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MTH HOMES-TEXAS, L.P. |
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By: |
MTH-Texas GP II, Inc., its General Partner |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MTH-TEXAS GP II, INC. |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MTH-TEXAS LP II, INC. |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MTH-HOMES NEVADA, INC. |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman and Chief Executive Officer |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MTH-CAVALIER, LLC |
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By: |
Monterey Homes Construction, Inc., its Sole |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-CEO, President and Chief Executive Officer |
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MTH GOLF, LLC |
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By: |
Hancock-MTH Builders, Inc., its Sole |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman and Co-CEO |
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LEGACY-HAMMONDS MATERIALS, L.P. |
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By: |
Meritage Holdings, L.L.C., its General |
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By: |
Legacy/Monterey Homes L.P., its Sole |
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By: |
MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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MERITAGE HOMES OF COLORADO, INC. |
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By: |
/s/ Steven J. Hilton |
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Name: Steven J. Hilton |
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Title: Co-Chairman and CEO |
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By: |
/s/ Larry W. Seay |
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Name: Larry W. Seay |
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Title: Vice President-Secretary |
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