exv10w1






Exhibit 10.1




 

 










REGISTRATION RIGHTS AGREEMENT




Dated as of April 13, 2010



By and Among



MERITAGE HOMES CORPORATION

as Issuer,




the GUARANTORS named herein



and



CITIGROUP GLOBAL MARKETS INC.

and

J.P. MORGAN SECURITIES INC.

as Initial Purchasers,



7.15% Senior Notes due 2020



 

 


















 













TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 1.

	 	Definitions
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 2.

	 	Exchange Offer
	 	 	4	 
	 
	 	 	 	 	 	 
	Section 3.

	 	Shelf Registration Statement
	 	 	7	 
	 
	 	 	 	 	 	 
	Section 4.

	 	Liquidated Damages
	 	 	9	 
	 
	 	 	 	 	 	 
	Section 5.

	 	Registration Procedures
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 6.

	 	Registration Expenses
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 7.

	 	Indemnification
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 8.

	 	Rules 144 and 144A
	 	 	21	 
	 
	 	 	 	 	 	 
	Section 9.

	 	Underwritten Registrations
	 	 	21	 
	 
	 	 	 	 	 	 
	Section 10.

	 	Miscellaneous
	 	 	21	 
	 
	 	 	 	 	 	 
	 

	 	(a)     No Inconsistent Agreements
	 	 	21	 
	 

	 	(b)     Adjustments Affecting Registrable Notes
	 	 	22	 
	 

	 	(c)     Amendments and Waivers
	 	 	22	 
	 

	 	(d)     Notices
	 	 	22	 
	 

	 	(e)     Guarantors
	 	 	23	 
	 

	 	(f)      Successors and Assigns
	 	 	24	 
	 

	 	(g)     Counterparts
	 	 	24	 
	 

	 	(h)     Headings
	 	 	24	 
	 

	 	(i)     Governing Law
	 	 	24	 
	 

	 	(j)     Severability
	 	 	24	 
	 

	 	(k)     Securities Held by the Company or Its Affiliates
	 	 	24	 
	 

	 	(l)     Third-Party Beneficiaries
	 	 	24	 
	 

	 	(m)    Attorneys’ Fees
	 	 	24	 
	 

	 	(n)     Entire Agreement
	 	 	24	 
	 
	 	 	 	 	 	 
	SIGNATURES	 	 	S-1	 






-i- 








 




REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (this “Agreement”) is dated as of April 13, 2010,
by and among Meritage Homes Corporation, a Maryland corporation (the “Company”), and each
of the Guarantors (as defined herein) (the Company and the Guarantors are referred to collectively
herein as the “Issuers”), on the one hand, and Citigroup Global Markets Inc. and J.P.
Morgan Securities Inc. (together, the “Initial Purchasers”), on the other hand.




          This Agreement is entered into in connection with the Purchase Agreement, dated as of April
13, 2010, by and among the Issuers and the Initial Purchasers, (the “Purchase Agreement”),
relating to the offering of $200,000,000 aggregate principal amount of the Company’s 7.15% Senior
Notes due 2020 (including the guarantees thereof by the Guarantors, the “Notes”). The
execution and delivery of this Agreement is a condition to the Initial Purchasers’ obligation to
purchase the Notes under the Purchase Agreement.




          The parties hereby agree as follows:




     Section 1. Definitions



          As used in this Agreement, the following terms shall have the following meanings:




          “action” shall have the meaning set forth in Section 7(c) hereof.




          “Advice” shall have the meaning set forth in Section 5 hereof.




          “Agreement” shall have the meaning set forth in the first introductory paragraph
hereto.




          “Applicable Period” shall have the meaning set forth in Section 2(b) hereof.




          “Board of Directors” shall have the meaning set forth in Section 5 hereof.




          “Business Day” shall mean a day that is not a Legal Holiday.




          “Company” shall have the meaning set forth in the introductory paragraph hereto and
shall also include the Company’s permitted successors and assigns.




          “Commission” shall mean the Securities and Exchange Commission.




          “day” shall mean a calendar day.




          “Delay Period” shall have the meaning set forth in Section 5 hereof.




          “Effectiveness Period” shall have the meaning set forth in the second paragraph of
Section 3(a) hereof.




          “Event Date” shall have the meaning set forth in Section 4(b) hereof.













 



-2-




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.




          “Exchange Notes” shall have the meaning set forth in Section 2(a) hereof.




          “Exchange Offer” shall have the meaning set forth in Section 2(a) hereof.




          “Exchange Offer Registration Statement” shall have the meaning set forth in Section
2(a) hereof.




          “FINRA” shall have the meaning set forth in Section 5(s) hereof.




          “Free Writing Prospectus” shall mean each free writing prospectus (as defined in Rule
405 under the Securities Act) prepared by or on behalf of the Company or used or referred to by the
Company in connection with sale of the Notes or the Exchange Notes.




          “Guarantors” shall mean each of the Persons executing this Agreement (as set forth on
Schedule A) on the date hereof and each Person who executes and delivers a counterpart of
this Agreement hereafter pursuant to Section 10(e) hereof.




          “Holder” shall mean any holder of a Registrable Note or Registrable Notes.




          “Indenture” shall mean the Indenture, dated as of April 13, 2010, by and among the
Issuers and HSBC Bank USA, National Association, as trustee, pursuant to which the Notes are being
issued, as amended or supplemented from time to time in accordance with the terms thereof.




          “Initial Purchasers” shall have the meaning set forth in the first introductory
paragraph hereof.




          “Initial Shelf Registration Statement” shall have the meaning set forth in Section
3(a) hereof.




          “Inspectors” shall have the meaning set forth in Section 5(n) hereof.




          “Issue Date” shall mean April 13, 2010, the date of original issuance of the Notes.




          “Issuers” shall have the meaning set forth in the introductory paragraph hereto.




          “Legal Holiday” shall mean a Saturday, a Sunday or a day on which banking institutions
in New York, New York are required by law, regulation or executive order to remain closed.




          “Liquidated Damages” shall have the meaning set forth in Section 4(a) hereof.




          “Losses” shall have the meaning set forth in Section 7(a) hereof.




          “Notes” shall have the meaning set forth in the second introductory paragraph hereto.




          “Participant” shall have the meaning set forth in Section 7(a) hereof.













 



-3-




          “Participating Broker-Dealer” shall have the meaning set forth in Section 2(b) hereof.




          “Person” shall mean an individual, corporation, partnership, joint venture
association, joint stock company, trust, unincorporated limited liability company, government or
any agency or political subdivision thereof or any other entity.




          “Private Exchange” shall have the meaning set forth in Section 2(b) hereof.




          “Private Exchange Notes” shall have the meaning set forth in Section 2(b) hereof.




          “Prospectus” shall mean the prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.




          “Purchase Agreement” shall have the meaning set forth in the second introductory
paragraph hereof.




          “Records” shall have the meaning set forth in Section 5(n) hereof.




          “Registrable Notes” shall mean each Note upon its original issuance and at all times
subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange Note upon original
issuance thereof and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect only to any Exchange Note as to which Section 2(c)(iv) hereof
is applicable, the Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the Commission and such Note, Exchange Note or
such Private Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer
for an Exchange Note or Exchange Notes that may be resold without restriction under state and
federal securities laws or (iii) such Note, Exchange Note or Private Exchange Note, as the case may
be, ceases to be outstanding for purposes of the Indenture or (iv) the later of (x) the date which
is two years after the Issue Date and (y) the date upon which such Note or Private Exchange Note
has been sold in compliance with Rule 144.




          “Registration Default” shall have the meaning set forth in Section 4(a) hereof.




          “Registration Statement” shall mean any appropriate registration statement of the
Issuers covering any of the Registrable Notes filed with the Commission under the Securities Act,
and all amendments and supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.




          “Requesting Participating Broker-Dealer” shall have the meaning set forth in Section
2(b) hereof.













 



-4-




          “Rule 144” shall mean Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or regulation hereafter
adopted by the Commission providing for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements of the Securities
Act.




          “Rule 144A” shall mean Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or regulation hereafter
adopted by the Commission.




          “Rule 415” shall mean Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission.




          “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.




          “Shelf Filing Event” shall have the meaning set forth in Section 2(c) hereof.




          “Shelf Registration Statement” shall have the meaning set forth in Section 3(b)
hereof.




          “Subsequent Shelf Registration Statement” shall have the meaning set forth in Section
3(b) hereof.




          “TIA” shall mean the Trust Indenture Act of 1939, as amended.




          “Trustee” shall mean the trustee under the Indenture and the trustee (if any) under
any indenture governing the Exchange Notes and Private Exchange Notes.




          “underwritten registration or underwritten offering” shall mean a registration in
which securities of the Company are sold to an underwriter for reoffering to the public.




     Section 2. Exchange Offer



          (a) The Issuers shall (i) file a Registration Statement (the “Exchange Offer Registration
Statement”) within 120 days after the Issue Date with the Commission on an appropriate
registration form with respect to a registered offer (the “Exchange Offer”) to exchange any
and all of the Registrable Notes for a like aggregate principal amount of notes (including the
guarantees with respect thereto, the “Exchange Notes”) that are identical in all material
respects to the Notes (except that the Exchange Notes bear no restrictive legend thereon and shall
not contain terms with respect to Liquidated Damages upon a Registration Default), (ii) use their
respective reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 150 days after the Issue Date and (iii) use
their respective reasonable best efforts to complete the Exchange Offer within 210 days after the
Issue Date. The Exchange Offer shall be deemed completed or consummated for purposes of this
Agreement upon delivery by the Company to the Trustee under the Indenture of Exchange Notes in the
same aggregate principal amount as the aggregate principal amount of Notes tendered (and not
withdrawn) by Holders thereof pursuant to the Exchange Offer. Upon the Exchange Offer Registration
Statement being declared effective by the Commission, the Company will offer the Exchange Notes in












 



-5-



exchange for surrender of the Notes. The Company shall keep the Exchange Offer open for not
less than 20 Business Days (or longer if required by applicable law to complete the Exchange Offer)
after the date notice of the Exchange Offer is mailed to Holders.




          Each Holder that participates in the Exchange Offer will be required to represent to the
Company in writing (which may be contained in the applicable letter of transmittal) that (i) any
Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii)
it has no arrangement or understanding with any Person to participate in the distribution (within
the meaning of the Securities Act) of the Exchange Notes in violation of the Securities Act, (iii)
it is not an affiliate (as defined in Rule 405 under the Securities Act) of any Issuer or, if it is
an affiliate, it will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes, (v) if such Holder
is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that
were acquired as a result of market-making or other trading activities, it will deliver a
prospectus in connection with any resale of such Exchange Notes and (vi) the Holder is not acting
on behalf of any Persons who could not truthfully make the foregoing representations.




          (b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has
taken the position that any broker-dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be
an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the Notes).




          The Company and the Initial Purchasers also acknowledge that the staff of the Commission has
taken the position that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under
the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as
the Prospectus otherwise meets the requirements of the Securities Act.




          In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting
Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective for a period of up to 180 days
after the date on which the Exchange Offer Registration Statement is declared effective, or such
longer period if extended pursuant to the last paragraph of Section 5 hereof (such period, the
“Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers
shall have notified the Company in writing that such Requesting Participating Broker-Dealers have
resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of
distribution in such Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.




          If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to participate in the
Exchange Offer, the Company












 



-6-



upon the request of any such Holder shall simultaneously with the delivery of the Exchange
Notes in the Exchange Offer, issue and deliver to any such Holder, in exchange (the “Private
Exchange”) for such Notes held by any such Holder, a like principal amount of notes (the
“Private Exchange Notes”) of the Company that are identical in all material respects to the
Exchange Notes, except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.




          In connection with the Exchange Offer, the Company shall:





     (1) mail or cause to be mailed to each Holder entitled to participate in the Exchange
Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;




     (2) utilize the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York;




     (3) permit Holders to withdraw tendered Notes at any time prior to the close of
business, New York time, on the last Business Day on which the Exchange Offer shall remain
open; and




     (4) otherwise comply in all material respects with all applicable laws, rules and
regulations.



          As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any,
the Company shall:





     (1) accept for exchange all Registrable Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;




     (2) deliver or cause to be delivered to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and




     (3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes,
Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to
the Notes of such Holder so accepted for exchange.



          The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than
that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable
law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private
Exchange, and no material adverse development shall have occurred in any existing action or
proceeding with respect to the Issuers that would impair their ability to so proceed and (iii) all
governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the
consummation of the Exchange Offer or Private Exchange.













 



-7-




          In the event that the Issuers are unable to consummate the Exchange Offer or the Private
Exchange due to any event listed in clauses (i) through (iii) above, the Issuers shall not be
deemed to have breached any covenant under this Section 2.




          The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture (in either case, with such
changes as are necessary to comply with any requirements of the Commission to effect or maintain
the qualification thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such other indenture shall provide that when a vote or
consent of the Holders is required, the Exchange Notes, the Private Exchange Notes and the Notes
shall vote and consent together on all matters as one class and that none of the Exchange Notes,
the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class
on any matter.




          (c) In the event that (i) any changes in law or the applicable interpretations of the staff of
the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the
Exchange Offer is not consummated within 210 days of the Issue Date, (iii) any Holder notifies the
Company that it is prohibited by law or the applicable interpretations of the staff of the
Commission from participating in the Exchange Offer, (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities laws (other than
due solely to the status of such holder as an affiliate of any Issuer), (v) any Initial Purchaser
so requests with respect to Notes that have, or that are reasonably likely to be determined to
have, the status of unsold allotments in an initial distribution or (vi) any Holder of Private
Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of this
sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration
Statement pursuant to Section 3 hereof.




     Section 3. Shelf Registration Statement



          If at any time a Shelf Filing Event shall occur, then:





     (a) Shelf Registration Statement. The Issuers shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Notes not exchanged in the Exchange Offer, Private Exchange
Notes and Exchange Notes as to which Section 2(c)(iv) is applicable, which may be an
amendment to the Exchange Offer Registration Statement (the “Initial Shelf Registration
Statement”). The Issuers shall file with the Commission the Initial Shelf Registration
Statement as promptly as practicable and in any event on or prior to 45 days after the
Company determines or is notified that a Shelf Filing Event has occurred. The Initial Shelf
Registration Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten offerings). The
Issuers shall not permit any securities other than the Registrable Notes to be included in
the Initial Shelf Registration Statement or in any Subsequent Shelf Registration Statement
(as defined below). Notwithstanding the foregoing, in the event a Shelf Filing Event occurs
as a result of the event set forth in Section 2(c)(ii), the Issuers’ obligation to file an
Initial Shelf Registration pursuant to this Section 3 shall cease ab initio if the Exchange
Offer is com-









 



-8-



pleted within 255 days of the Issue Date, or, if such date is not a Business Day, the
next day that is a Business Day.




     The Issuers shall use their respective reasonable best efforts (x) to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act on or prior
to the 90th day after the Company determines or is notified that such a Shelf Filing Event
has occurred and (y) to keep the Initial Shelf Registration Statement continuously effective
under the Securities Act for the period ending on the date which is two years from the date
it becomes effective (or one year if the Initial Shelf Registration Statement is filed at
the request of an Initial Purchaser), subject to extension pursuant to the penultimate
paragraph of Section 5 hereof (the “Effectiveness Period”), or such shorter period
ending when (i) all Registrable Notes covered by the Initial Shelf Registration Statement
have been sold in the manner set forth and as contemplated in the Initial Shelf Registration
Statement or cease to be outstanding or (ii) a Subsequent Shelf Registration Statement
covering all of the Registrable Notes covered by and not sold under the Initial Shelf
Registration Statement or an earlier Subsequent Shelf Registration Statement has been
declared effective under the Securities Act; provided, however, that (i) the
Effectiveness Period in respect of the Initial Shelf Registration Statement shall be
extended to the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise provided herein
and (ii) the Company may suspend the effectiveness of the Initial Shelf Registration
Statement by written notice to the Holders solely as a result of the filing of a
post-effective amendment to the Initial Shelf Registration Statement where such
post-effective amendment is not yet effective and needs to be declared effective to permit
holders to use the related Prospectus.




     (b) Subsequent Shelf Registration Statements. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to be effective
for any reason at any time during the Effectiveness Period (other than because of the sale
of all of the securities registered thereunder), the Issuers shall use their respective
reasonable best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall as soon as practicable after such cessation
amend the Initial Shelf Registration Statement or such Subsequent Shelf Registration
Statement, as the case may be, in a manner to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional “shelf” Registration Statement pursuant to
Rule 415 covering all of the Registrable Notes covered by and not sold under the Initial
Shelf Registration Statement or such earlier Subsequent Shelf Registration Statement (each,
a “Subsequent Shelf Registration Statement”). If a Subsequent Shelf Registration
Statement is filed, the Issuers shall use their respective reasonable best efforts to cause
the Subsequent Shelf Registration Statement to be declared effective under the Securities
Act as soon as practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement was previously
continuously effective. As used herein, the term “Shelf Registration Statement”
means the Initial Shelf Registration Statement and any Subsequent Shelf Registration
Statement.




     (c) Supplements and Amendments. The Issuers agree to supplement or make
amendments to the Shelf Registration Statement as and when required by the rules,
regulations or instructions applicable to the registration form used for such Shelf
Registration Statement or by









 



-9-



the Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any underwriter of such
Registrable Notes; provided, however, that the Issuers shall not be required
to supplement or amend any Shelf Registration Statement upon the request of a Holder or any
underwriter if such requested supplement or amendment would, in the good faith judgment of
the Company (based on advice of counsel), violate the Securities Act, the Exchange Act or
the rules and regulations promulgated thereunder.



     Section 4. Liquidated Damages



          (a) The Issuers and the Initial Purchasers agree that the Holders will suffer damages if the
Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision. Accordingly, the Issuers agree
that if:





     (i) the Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 120th day following the Issue Date, or, if that day is not a Business Day, then
the next day that is a Business Day,




     (ii) the Exchange Offer Registration Statement is not declared effective on or prior to
the 150th day following the Issue Date, or, if that day is not a Business Day, then the next
day that is a Business Day,




     (iii) the Exchange Offer is not completed on or prior to the 210th day following the
Issue Date, or, if that day is not a Business Day, then the next day that is a Business Day,
or




     (iv) the Shelf Registration Statement is required to be filed but is not filed or
declared effective within the time periods set forth herein or is declared effective but
thereafter ceases to be effective or usable prior to the expiration of the Effectiveness
Period, except if the Shelf Registration Statement ceases to be effective or usable as
specifically permitted by the penultimate paragraph of Section 5 hereof


(each such event referred to in clauses (i) through (iv) a “Registration Default”),
liquidated damages in the form of additional cash interest (“Liquidated Damages”) will
accrue on the affected Notes and the affected Exchange Notes, as applicable. The rate of
Liquidated Damages will be 0.25% per annum for the first 90-day period (or portion thereof)
immediately following the occurrence of a Registration Default, increasing by an additional 0.25%
per annum with respect to each subsequent 90-day period (or portion thereof) up to a maximum amount
of additional interest of 1.00% per annum, from and including the date on which any such
Registration Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the second anniversary of the Issue Date.




          Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable shall not increase
because more than one Registration Default has occurred and is pending, (2) a Holder of Notes or
Exchange Notes who is not entitled to the benefits of the Shelf Registration Statement
(i.e., such Holder has not elected to include information) shall not be entitled to
Liquidated Damages with respect to a Registration Default that pertains to the Shelf Registration
Statement and (3) no holder of Notes constituting an unsold allotment from the original sale of the
Notes by the Company to the Initial Purchasers shall be entitled to Liquidated Damages by reason of a Registration Default that pertains to
an Exchange Offer.













 



-10-




          Notwithstanding anything to the contrary set forth herein, with respect to any Registration
Default, (1) upon filing of the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of clause (i) or (iv) above, (2) upon the effectiveness
of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of clause (ii) or (iv) above, (3) upon completion of the Exchange Offer, in
the case of clause (iii) above, or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable, the applicable Registration Default shall be deemed to have been
cured.




          (b) The Company shall notify the Trustee within one Business Day after each and every date on
which an event occurs in respect of which Liquidated Damages are required to be paid (an “Event
Date”). Any amounts of Liquidated Damages due pursuant to this Section 4 will be payable in
addition to any other interest payable from time to time with respect to the Registrable Notes in
cash semi-annually on the interest payment dates specified in the Indenture (to the holders of
record as specified in the Indenture), commencing with the first such interest payment date
occurring after any such Liquidated Damages commence to accrue. The amount of Liquidated Damages
will be determined in a manner consistent with the calculation of interest under the Indenture.




     Section 5. Registration Procedures



          In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof,
the Issuers shall effect such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, the Issuers shall:





     (a) Prepare and file with the Commission the Registration Statement or Registration
Statements prescribed by Section 2 or 3 hereof, and use their reasonable best efforts to
cause each such Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period
relating thereto, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least five Business Days prior to such filing). The Issuers shall
not file any Registration Statement or Prospectus or any amendments or supplements thereto
if the Holders of a majority in aggregate principal amount of the Registrable Notes covered
by such Registration Statement, or any such Participating Broker-Dealer, as the case may be,
their counsel, or the managing underwriters, if any, shall reasonably object within five
Business Days after receipt thereof.




     (b) Prepare and file with the Commission such amendments and post-effective amendments
to each Initial Shelf Registration Statement or Exchange Offer Registration State-









 



-11-

ment, as
the case may be, as may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus, in each case, in accordance with
the intended methods of distribution set forth in such Registration Statement or Prospectus,
as so amended.





     (c) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto
from whom the Issuers have received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, notify the selling Holders of Registrable Notes, or
each such Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested by any such Person, confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request in writing,
obtain, at the sole expense of the Company, one conformed copy of such Registration
Statement or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary prospectus or
the initiation of any proceedings for that purpose, (iii) if at any time when a Prospectus
is required by the Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m) hereof cease to be true and correct in
all material respects, (iv) of the receipt by any of the Issuers of any notification with
respect to the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange Notes for offer or
sale in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or any
information becoming known to any Issuer that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not mis
leading, and (vi) of the Company’s determination that a post-effective amendment to a
Registration Statement would be appropriate.









 



-12-



     (d) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use their
reasonable best efforts to prevent the issuance of any order suspending the effectiveness of
a Registration Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the Registrable
Notes or the Exchange Notes, as the case may be, for sale in any jurisdiction, and, if any
such order is issued, to use their reasonable best efforts to obtain the withdrawal of any
such order at the earliest practicable moment.




     (e) If (1) a Shelf Registration Statement is filed pursuant to Section 3 or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period and if requested
by the managing underwriter or underwriters (if any), the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration Statement or any
Participating Broker-Dealer, as the case may be, (i) as promptly as practicable incorporate
in such Registration Statement or Prospectus a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters (if any), such
Holders or any Participating Broker-Dealer, as the case may be (based upon advice of
counsel), reasonably request as necessary to be included therein and (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment; provided, however,
that the Issuers shall not be required to take any action hereunder that would, in the good
faith judgment of the Company (based on advice of counsel), violate applicable laws.




     (f) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, furnish to each
selling Holder of Registrable Notes and a single counsel to such Holders, or each such
Participating Broker-Dealer and their counsel, as the case may be, who so requests and each
managing underwriter, if any, and a single counsel for such underwriters, at the sole
expense of the Company, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and any exhibits.




     (g) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, deliver to each
selling Holder of Registrable Notes and a single counsel to such Holders, or each such
Participating Broker-Dealer and their counsel, as the case may be, and the underwriters, if
any, and a single counsel for such underwriters, at the sole expense of the Company, as many
copies of the Prospectus or Prospec
tuses (including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers hereby consent to
the use of such









 



-13-



Prospectus and each amendment or supplement thereto (provided the manner of
such use complies with any limitations resulting from any applicable laws, including state
securities or “Blue Sky” laws, and subject to the provisions of this Agreement) by each of
the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the
case may be, and the underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Notes or the sale by Participating
Broker-Dealers of the Exchange Notes covered by or pursuant to such Prospectus and any
amendment or supplement thereto.




     (h) Prior to any public offering of Registrable Notes or Exchange Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use their
reasonable best efforts to register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or qualification) of such
Registrable Notes or Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or underwriters reasonably
request in writing; provided, however, that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Company agrees to cause the Company’s counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed pursuant to
this Section 5(h), keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept effective and
do any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer shall
be required to (A) qualify generally to do business in any jurisdiction where it is not then
so qualified, (B) take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.




     (i) If a Shelf Registration Statement is filed pursuant to Section 3 hereof, cooperate
with the selling Holders of Registrable Notes and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or selling Holders may reasonably request at least two
Business Days prior to any sale of such Registrable Notes or Exchange Notes.




     (j) Use their reasonable best efforts to cause the Registrable Notes or Exchange Notes
covered by any Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of
such Registrable Notes or Exchange Notes, except as may be required solely as a consequence of
the nature of such selling Holder’s business, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration Statement and the granting of
such approvals.









 



-14-



     (k) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) and the penultimate paragraph of this
Section 5) file with the Commission, at the sole expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by reference,
or file any other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the Exchange Notes to
whom such Prospectus will be delivered by a Participating Broker-Dealer, any such Prospectus
will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.




     (l) Prior to the effective date of the first Registration Statement relating to the
Registrable Notes, (i) provide the Trustee with certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Registrable Notes.




     (m) In connection with any underwritten offering of Registrable Notes pursuant to a
Shelf Registration Statement, enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Notes in form reasonably
satisfactory to the Issuers and take all such other actions as are reasonably requested by
the managing underwriter or underwriters, if any, in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the underwriters with respect to
the business of the Issuers and their subsidiaries (including any acquired business,
properties or entity, if applicable) and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten offerings of debt
securities similar to the Notes, and confirm the same in writing if and when requested in
form reasonably satisfactory to the Issuers; (ii) upon the request of any underwriter, use
their reasonable best efforts to obtain the written opinions of counsel to the Company and
written updates thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by the managing underwriter or underwriters; (iii) upon the request of
any underwriter, use their reasonable best efforts to obtain “cold comfort” letters and
updates thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such letters to
be in customary form and covering matters of the type customarily covered in “cold
comfort” letters in connection with underwritten offerings of debt securities similar to the
Notes, and such other matters as reasonably requested by the managing underwriter or
underwriters as permitted by the Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered









 



-15-



into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate principal amount
of Registrable Notes covered by such Registration Statement and the managing underwriter or
underwriters or agents, if any) with respect to all parties to be indemnified pursuant to
said Section. The above shall be done at each closing under such underwriting agreement, or
as and to the extent required thereunder.




     (n) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make available
for inspection by any selling Holder of such Registrable Notes being sold or each such
Participating Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the “Inspectors”), at the offices where
normally kept, during reasonable business hours, all financial and other records, pertinent
corporate documents and instruments of the Company and its subsidiaries (collectively, the
“Records”) as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the appropriate officers, directors and
employees of the Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement and Prospectus. Each
Inspector shall agree in writing that it will keep the Records confidential and not disclose
any Records that the Company determines, in good faith, to be confidential and that it
notifies the Inspectors in writing are confidential unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such Registration
Statement or Prospectus, (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction, (iii) disclosure of such information
is necessary or advisable in connection with any action, claim, suit or proceeding, directly
or indirectly, involving or potentially involving such Inspector and arising out of, based
upon, relating to, or involving this Agreement or the Purchase Agreement, or any
transactions contemplated hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records has been made generally available to the public other than
through an act of such Inspector in violation of this Section 5(n); provided,
however, that, if practicable, prior notice shall be provided as soon as practicable
to the Issuers of the potential disclosure of any information by such Inspector pursuant to
clause (ii) of this sentence to permit the Issuers to obtain a protective order or to take
other appropriate action to prevent the disclosure of such information and that such
Inspector shall take such actions as are reasonably necessary to protect the confidentiality
of such information (if practicable) to the extent such action is otherwise not inconsistent
with, an impairment of or in derogation of the rights and interests of the Holder or any
Inspector.




     (o) Provide an indenture trustee for the Registrable Notes or the Exchange Notes, as
the case may be, and cause the Indenture or the trust indenture provided for in Section 2(b)
hereof to be qualified under the TIA not later than the effective date of the Exchange Offer
or the first Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate
with the trustee under any such indenture and the Holders of the Registrable Notes or
Exchange Notes, as applicable, to effect such changes to such indenture as may be required
for such indenture to be so qualified in accordance with the terms of the TIA; and execute,
and use their reasonable best efforts to cause such trustee to execute, all documents as may
be required to effect such









 



-16-



changes, and all other forms and documents required to be filed
with the Commission to enable such indenture to be so qualified in a timely manner.




     (p) Comply with all applicable rules and regulations of the Commission and make
generally available to the Company’s securityholders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) (i) commencing at the end of any fiscal quarter
in which Registrable Notes or Exchange Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement.




     (q) Upon the request of a Holder, upon consummation of the Exchange Offer or a Private
Exchange, use their reasonable best efforts to obtain an opinion of counsel to the Issuers,
in a form customary for underwritten transactions, addressed to the Trustee for the benefit
of all Holders of Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange Notes, as the case
may be, and the related indenture constitute legal, valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with its respective terms, subject to
customary exceptions and qualifications.




     (r) If the Exchange Offer or a Private Exchange is to be consummated, upon delivery of
the Registrable Notes by Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be, mark, or cause to be marked, on such Registrable Notes that such Registrable Notes are
being cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.




     (s) Cooperate with each seller of Registrable Notes covered by any Registration
Statement and each underwriter, if any, participating in the disposition of such Registrable
Notes and their respective counsel in connection with any filings required to be made with
the Financial Industry Regulatory Authority, Inc. (“FINRA”).




     (t) Use their reasonable best efforts to take all other steps necessary or advisable to
effect the registration of the Exchange Notes and/or Registrable Notes covered by a
Registration Statement contemplated hereby.




     (u) The Company represents, warrants and covenants that it (including its agents and
representatives) will not prepare, make, use, authorize, approve or refer to any Free
Writing Prospectus in connection with the Exchange Offer or any Shelf Registration
Statement.



          The Company may require each seller of Registrable Notes or Exchange Notes as to which any
registration is being effected to furnish to the Issuers such information regarding such seller
and the distribution of such Registrable Notes or Exchange Notes as the Company may, from time
to time, reasonably request. The Issuers may exclude from such registration the Registrable Notes
or Exchange Notes of any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any Shelf Registration
Statement is being effected










 



-17-



agrees to furnish promptly to the Company all information required to
be disclosed in order to make any information previously furnished to the Company by such seller
not materially misleading.




          If any such Registration Statement refers to any Holder by name or otherwise as the holder of
any securities of the Company, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to
the time that such reference ceases to be required.




          Each Holder of Registrable Notes and each Participating Broker-Dealer agrees by acquisition of
such Registrable Notes or Exchange Notes that, upon actual receipt of any notice from the Company
(x) of the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, or (y) that the Board of Directors of the Company (the “Board of
Directors”) has resolved that the Company has a bona fide business purpose for doing so, then
the Company may delay the filing or the effectiveness of the Exchange Offer Registration Statement
or the Shelf Registration Statement (if not then filed or effective, as applicable) and shall not
be required to maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration Statement, in all cases, for a period (a
“Delay Period”) expiring upon the earlier to occur of (i) in the case of the immediately
preceding clause (x), such Holder’s or Participating Broker-Dealer’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or until it is advised in
writing (the “Advice”) by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the date on which such
business purpose ceases to interfere with the Company’s obligations to file or maintain the
effectiveness of any such Registration Statement pursuant to this Agreement or (B) 60 days after
the Company notifies the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. Each of the Effectiveness Period and the
Applicable Period, if applicable, shall be extended by the number of days during any Delay Period.
Any Delay Period will not alter the obligations of the Company to pay Liquidated Damages under the
circumstances set forth in Section 4 hereof.




          In the event of any Delay Period pursuant to clause (y) of the preceding paragraph, notice
shall be given as soon as practicable after the Board of Directors makes such a determination of
the need for a Delay Period and shall state, to the extent practicable, an estimate of the duration
of such Delay Period and shall advise the recipient thereof of the agreement of such Holder
provided in the next succeeding sentence. Each Holder, by his acceptance of any Registrable Note,
agrees that during any Delay Period, each Holder will discontinue disposition of such Notes or
Exchange Notes covered by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be.

















 





-18-




     Section 6. Registration Expenses



          All fees and expenses incident to the performance of or compliance with this Agreement by the
Issuers shall be borne by the Issuers, whether or not the Exchange Offer Registration Statement or
the Shelf Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with FINRA in connection
with an underwritten offering and (B) fees and expenses of compliance with state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of one counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for investment under
the laws of such jurisdictions (x) where the holders of Registrable Notes are located, in the case
of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the case of Exchange Notes to
be sold by a Participating Broker-Dealer during the Applicable Period)), (ii) printing expenses,
including, without limitation, expenses of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust Company and of printing prospectuses
if the printing of prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable Notes included in
any Registration Statement or in respect of Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuers and reasonable fees and
disbursements of one special counsel for all of the sellers of Registrable Notes (exclusive of any
counsel retained pursuant to Section 7 hereof), (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and “cold comfort” letters required by or incident to
such performance), (vi) Securities Act liability insurance, if the Issuers desire such insurance,
(vii) fees and expenses of all other Persons retained by any of the Issuers, (viii) internal
expenses of the Issuers (including, without limitation, all salaries and expenses of officers and
employees of any of the Issuers performing legal or accounting duties), (ix) the expense of any
audit, (x) the fees and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the securities, in each
case, if applicable, and (xi) the expenses relating to printing, word processing and distributing
all Registration Statements, underwriting agreements, indentures and any other documents necessary
in order to comply with this Agreement. Notwithstanding the foregoing or anything to the contrary,
each Holder shall pay all underwriting discounts and commissions of any underwriters with respect
to any Registrable Notes sold by or on behalf of it.




     Section 7. Indemnification



          (a) Each Issuer, jointly and severally, agrees to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of each Holder and each such Participating Broker-Dealer and the agents, employees, officers and
directors of any such controlling Person (each, a “Participant”) from and against any and
all losses, liabilities, claims, damages and expenses whatsoever (including, but not limited to,
reasonable attorneys’ fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all reasonable amounts paid in settlement of any claim or litigation)
(collectively, “Losses”) to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions in re-











 



-19-



spect thereof) arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Company shall have furnished any amendments or supplements
thereto), any preliminary prospectus or any Free Writing Prospectus used in violation of this
Agreement or any issuer information filed or required to be filed pursuant to Rule 433(d) under the
Securities Act, or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in the light of the circumstances under which they were
made, not misleading; provided that the foregoing indemnity shall not be available to any
Participant insofar as such Losses are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information relating to such
Participant furnished to the Company in writing by or on behalf of such Participant expressly for
use therein.




          (b) Each Participant agrees, severally and not jointly, to indemnify and hold harmless each
Issuer, each Person, if any, who controls any Issuer within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their respective agents,
employees, officers and directors and the agents, employees, officers and directors of any such
controlling Person from and against any Losses to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to the extent, that any
such Loss arises out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Company by or on behalf of such Participant expressly
for use therein.




          (c) Promptly after receipt by an indemnified party under subsection 7(a) or 7(b) above of
notice of the commencement of any action, suit or proceeding (collectively, an “action”),
such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have under this Section 7
except to the extent that it has been prejudiced in any material respect by such failure or from
any liability which it otherwise may have). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement of such action, the
indemnifying party will be entitled to participate in such action, and to the extent it may elect
by written notice delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to take charge of the defense of such action within a reasonable time after notice
of commencement of the action, or









 



-20-


(iii)
the indemnified party or parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to those available to one or all of
the indemnifying parties (in which case the indemnifying parties shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying parties;
provided, however, that the indemnifying party will not be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) designated by the
indemnified party or parties at any time for all indemnified parties in connection with any one
action or separate but similar or related actions arising out of the same general allegations or
circumstances. An indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent, which consent may not be unreasonably withheld. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.




          (d) In order to provide for contribution in circumstances in which the indemnification
provided for in this Section 7 is for any reason held to be unavailable from the indemnifying
party, or is insufficient to hold harmless a party indemnified under this Section 7, each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such aggregate Losses (i) in such proportion as is appropriate to reflect the relative
benefits received by each indemnifying party, on the one hand, and each indemnified party, on the
other hand, from the sale of the Notes to the Initial Purchasers or the resale of the Registrable
Notes by such Holder, as applicable, or (ii) if such allocation is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of each indemnified party, on the one hand, and each indemnifying
party, on the other hand, in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. The relative benefits received by
the Issuers, on the one hand, and each Participant, on the other hand, shall be deemed to be in the
same proportion as (x) the total proceeds from the sale of the Notes to the Initial Purchasers (net
of discounts and commissions but before deducting expenses) received by the Issuers are to (y) the
total net profit received by such Participant in connection with the sale of the Registrable Notes.
The relative fault of the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers or such Participant and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.




          (e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to contribute any amount in
excess of the amount by which the net profit received by such Participant in connection with the
sale of the Registrable Notes exceeds the amount of any damages that such Participant has otherwise
been required to pay by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7, each Person, if any, who
controls any Participant within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act and each director, officer, employee and











 



-21-



agent of such Participant shall have the same rights to contribution as such Participant, and
each Person, if any, who controls any Issuer within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act and each director, officer, employee and agent of such Issuer
or Person who controls such Issuer shall have the same rights to contribution as such Issuer. Any
party entitled to contribution will, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made against another party
or parties under this Section 7, notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material respect by such
failure; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under this Section 7 for purposes of
indemnification. Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its written consent;
provided, however, that such written consent was not unreasonably withheld.




     Section 8. Rules 144 and 144A



          The Company covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the Commission
thereunder in a timely manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Company is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make available such information
necessary to permit sales pursuant to Rule 144A under the Securities Act, in each case for so long
as any Registrable Notes remain outstanding. The Issuers further covenant for so long as any
Registrable Notes remain outstanding that they will take such further action as any Holder of
Registrable Notes may reasonably request from time to time to enable such Holder to sell
Registrable Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 and Rule 144A under the Securities Act, as such Rules may be
amended from time to time, or (b) any similar rule or regulation hereafter adopted by the
Commission.




     Section 9. Underwritten Registrations



          If any of the Registrable Notes covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the investment banker or investment bankers and manager or managers that
will manage the offering will be selected by the Holders of a majority in aggregate principal
amount of such Registrable Notes included in such offering and shall be reasonably acceptable to
the Company.




          No Holder of Registrable Notes may participate in any underwritten registration hereunder if
such Holder does not (a) agree to sell such Holder’s Registrable Notes on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements
and (b) complete and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.




     Section 10. Miscellaneous



          (a) No Inconsistent Agreements. The Issuers have not entered, as of the date hereof,
and shall not enter, after the date of this Agreement,
into any agreement with respect to any of their secur-









 



-22-


ities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not conflict with and are
not inconsistent with, in any material respect, the rights granted to the holders of any of the
Issuers’ other issued and outstanding securities under any such agreements. The Issuers have not
entered and will not enter into any agreement with respect to any of their securities which will
grant to any Person piggy-back registration rights with respect to any Registration Statement.




          (b) Adjustments Affecting Registrable Notes. The Issuers shall not, directly or
indirectly, take any action with respect to the Registrable Notes as a class that would adversely
affect the ability of the Holders of Registrable Notes to include such Registrable Notes in a
registration undertaken pursuant to this Agreement.




          (c) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not
be given except pursuant to a written agreement duly signed and delivered by (I) the Issuers and
(II) (A) the Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not be amended, modified or
supplemented except pursuant to a written agreement duly signed and delivered by each Holder and
each Participating Broker-Dealer (including any Person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be, disposed of pursuant to
any Registration Statement) adversely affected by any such amendment, modification, supplement or
waiver. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders of Registrable Notes
whose securities are being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of Registrable Notes may
be given by Holders of at least a majority in aggregate principal amount of the Registrable Notes
being sold pursuant to such Registration Statement.




          (d) Notices. All notices and other communications (including, without limitation, any
notices or other communications to the Trustee) provided for or permitted hereunder shall be made
in writing by hand-delivery, registered first-class mail, next-day air courier or telecopier:





     (i) if to a Holder of the Registrable Notes or any Participating Broker-Dealer, at the
most current address of such Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture.




     (ii) if to the Issuers, at the address as follows:



Meritage Homes Corporation

17851 N. 85th Street

Suite 300

Scottsdale, AZ 85255

Telephone: (480) 515-8100

Fax: (480) 998-9162

Attention: Larry W. Seay










 



-23-



     With a copy to:



Snell & Wilmer L.L.P.

One Arizona Center

400 E. Van Buren Street

Phoenix, Arizona 85004-2223

Telephone: (602) 382-6000

Fax: (602) 382-6070

Attention: Jeffrey Beck, Esq.





     (iii) if to the Initial Purchasers, at the address as follows:



Citigroup Global Markets Inc.

388 Greenwich Street

New York, NY 10010

Fax: (212) 816-7912

Attention: General Counsel




and




J.P. Morgan Securities Inc.

383 Madison Avenue

New York, New York 10179

Fax: (646) 534-6397

Attention: Assistant General Counsel





     With a copy to:



Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

Telephone: (212) 701-3000

Fax: (212) 269-5420

Attention: Daniel J. Zubkoff, Esq.




          All such notices and communications shall be deemed to have been duly given: when delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged by the recipient’s telecopier machine, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.




          Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address and in the manner specified in such
Indenture.




          (e) Guarantors. So long as any Registrable Notes remain outstanding, the Issuers
shall cause each Person that becomes a guarantor of the Notes under the Indenture to execute and
deliver a counterpart to this Agreement which subjects such Person to the provisions of this
Agreement as a Gua-









 



-24-


rantor. Each of the Guarantors agrees to join the Company in all of its
undertakings hereunder to effect the Exchange Offer for the Exchange Notes and the filing of any
Shelf Registration Statement required hereunder.




          (f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto, the Holders and the
Participating Broker-Dealers; provided, however, that this Agreement shall not inure to the benefit
of or be binding upon a successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.




          (g) Counterparts. This Agreement may be executed by facsimile and in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.




          (h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.




          (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.




          (j) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term, provision, covenant or
restriction.




          (k) Securities Held by the Company or Its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Company or any of its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.




          (l) Third-Party Beneficiaries. Holders and beneficial owners of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this Agreement, and this
Agreement may be enforced by such Persons. No other Person is intended to be, or shall be
construed as, a third-party beneficiary of this Agreement.




          (m) Attorneys’ Fees. As between the parties to this Agreement, in any action or
proceeding brought to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover reasonable
attorneys’ fees actually incurred in addition to its costs and expenses and any other available
remedy.




          (n) Entire Agreement. This Agreement, together with the Purchase Agreement and the
Indenture, is intended by the parties as a final and exclusive statement of the agreement and
under-









 



-25-


standing of the parties hereto in respect of the subject matter contained herein and therein
and any and all prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders on the one hand and
the Issuers on the other, or between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect to the subject matter
hereof and thereof are merged herein and replaced hereby.














 



S-1




          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 
	 	MERITAGE HOMES CORPORATION

 	 
	 	By:  	/s/
Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE PASEO CROSSING, LLC

 	 
	 	By:  	Meritage Homes of Arizona, Inc.
 	 
	 	Its: 	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
/s/ Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE PASEO CONSTRUCTION, LLC

 	 
	 	By:  	Meritage Homes Construction, Inc.
 	 
	 	Its: 	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
/s/ Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE HOMES OF ARIZONA, INC.

 	 
	 	By:  	/s/ Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 









 



S-2

	 	 	 	 	 



	 	 	 	 	 
	 	MERITAGE HOMES CONSTRUCTION, INC.

 	 
	 	By:  	/s/ Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE HOMES OF TEXAS HOLDING, INC.

 	 
	 	By:  	/s/ Larry W. Seay	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and-Assistant Secretary 	 
	 
	 	MERITAGE HOMES OF CALIFORNIA, INC.

 	 
	 	By:  	/s/ Larry W. Seay	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 










 



S-3

	 	 	 	 	 
	 	MERITAGE HOMES OF TEXAS JOINT VENTURE 

HOLDING COMPANY, LLC

 	 
	 	By:  	Meritage Homes of Texas, LLC
 	 
	 	Its: 	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                 Meritage Homes of Texas Holding, Inc.
 	 
	 	Its: 	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	  /s/ Larry W. Seay 
 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE HOLDINGS, L.L.C.

 	 
	 	By:  	Meritage Homes of Texas Holding, Inc.
 	 
	 	Its:  	     Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	    /s/ Larry W. Seay 
 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE HOMES OF NEVADA, INC.

 	 
	 	By:  	/s/ Larry W. Seay  	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 










 



S-4

	 	 	 	 	 



	 	 	 	 	 
	 	MTH-CAVALIER, LLC

 	 
	 	By:  	Meritage Homes Construction, Inc.
 	 
	 	Its:  	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
/s/ Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MTH GOLF, LLC

 	 
	 	By:  	Meritage Homes Construction, Inc.
 	 
	 	Its:  	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
/s/ Larry W. Seay 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 










 



S-5

	 	 	 	 	 
	 	MERITAGE HOMES OF COLORADO, INC.

 	 
	 	By:  	/s/ Larry W. Seay	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	MERITAGE HOMES OF FLORIDA, INC.

 	 
	 	By:  	/s/ Larry W. Seay	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	CALIFORNIA URBAN BUILDERS, INC.

 	 
	 	By:  	/s/ Larry W. Seay	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer and Assistant Secretary 	 
	 
	 	CALIFORNIA URBAN HOMES, LLC

 	 
	 	By:  	Meritage Homes of California, Inc.
 	 
	 	Its:  	      Sole Member and Manager 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	/s/ Larry W. Seay
 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer and Assistant Secretary 	 










 



S-6

	 	 	 	 	 



	 	 	 	 	 
	 	MERITAGE HOMES OF TEXAS, LLC

 	 
	 	By:  	Meritage Homes of Texas Holding, Inc.
 	 
	 	Its:  	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	/s/ Larry W. Seay
 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer and Assistant Secretary 	 
	 



	 	 	 	 	 
	 	MERITAGE HOMES OPERATING COMPANY, LLC

 	 
	 	By:  	Meritage Holdings, L.L.C.
 	 
	 	Its:  	      Manager 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	             Meritage Homes of Texas Holding, Inc.
 	 
	 	Its:  	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	/s/ Larry W. Seay
 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer and Assistant Secretary 	 
	 
	 	WW PROJECT SELLER, LLC

 	 
	 	By:  	Meritage Paseo Crossing. LLC
 	 
	 	Its:  	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                Meritage Homes of Arizona, Inc.
 	 
	 	Its:  	      Sole Member 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	/s/ Larry W. Seay
 	 
	 	 	Name:  	Larry W. Seay 	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer and Assistant Secretary 	 










 



S-7

	 	 	 	 	 
	 	CITIGROUP GLOBAL MARKETS INC.

 	 
	 	By:  	/s/ David Leland 	 
	 	 	Name:  	David Leland 	 
	 	 	Title:  	Director 	 
	 










 



S-1

	 	 	 	 	 
	 	J.P. MORGAN SECURITIES INC.

 	 
	 	By:  	/s/ Jack Smith	 
	 	 	Name:  	Jack Smith	 
	 	 	Title:  	Executive Director	 










 



 

	 	 	 	 	 




Schedule A




Guarantors




	 	 	 

	1.

	 	Meritage Paseo Crossing, LLC
	2.

	 	Meritage Paseo Construction, LLC
	3.

	 	Meritage Homes of Arizona, Inc.
	4.

	 	Meritage Homes Construction, Inc.
	5.

	 	Meritage Homes of Texas Holding, Inc.
	6.

	 	Meritage Homes of California, Inc.
	7.

	 	Meritage Homes of Texas Joint Venture Holding Company, LLC
	8.

	 	Meritage Holdings, L.L.C.
	9.

	 	Meritage Homes of Nevada, Inc.
	10.

	 	MTH-Cavalier, LLC
	11.

	 	MTH Golf, LLC
	12.

	 	Meritage Homes of Colorado, Inc.
	13.

	 	Meritage Homes of Florida, Inc.
	14.

	 	California Urban Builders, Inc.
	15.

	 	California Urban Homes, LLC
	16.

	 	Meritage Homes of Texas, LLC
	17.

	 	Meritage Homes Operating Company, LLC
	18.

	 	WW Project Seller, LLC