MTH Meritage Homes Corp

Table of Contents

As filed with Securities and Exchange Commission on June 24, 2015

Registration Statement No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

MERITAGE HOMES CORPORATION

Co-registrants are listed on the following page

(Exact name of registrant as specified in its charter)

 

 

 

Maryland		1531		86-0611231
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(IRS Employer Identification Number)
		8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260 (480) 515-8100

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

 

Larry W. Seay Executive Vice President and Chief Financial Officer 8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260 (480) 515-8100 (Name, address, including zip code, and telephone number, including area code, of agent for service)		Copies to:   Jeffrey E. Beck Snell & Wilmer L.L.P. One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202 (602) 382-6316

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective and all other conditions to the exchange offer set forth in the registration rights agreement described in the enclosed prospectus have been satisfied or waived.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.  ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer		x		Accelerated filer		¨
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ¨

Exchange Act Rule 14d-1(a) (Cross-Border Third-Party Tender Offer)  ¨

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.

 

 

CALCULATION OF REGISTRATION FEE

 

Title of each class of securities to be registered		Amount to be registered		Proposed maximum offering price per unit		Proposed maximum aggregate offering price (1)		Amount of registration fee
6.00% Senior Notes due 2025		$200,000,000		100%		$200,000,000		$23,240
Guarantees of 6.00% Senior Notes due 2025		$200,000,000		(2)		(2)		(2)

(1)

The registration fee was calculated pursuant to Rule 457(f) under the Securities Act of 1933, as amended (the “Securities Act”). For purposes of this calculation, the offering price per note was assumed to be the stated principal amount of each original note that may be received by the registrant in the exchange transaction in which the notes will be offered.

(2)

The guarantees are the full and unconditional guarantee of Meritage Homes Corporation’s payment obligations under its 6.00% Senior Notes due 2025 by its direct and indirect wholly-owned subsidiaries listed as co-registrants on the following page. No separate consideration will be received for the guarantees. In accordance with Rule 457(n) under the Securities Act, no separate fee is required for the registration of guarantees.

 

 

 

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Table of Co-Registrants

The following direct and indirect 100% owned subsidiaries of Meritage Homes Corporation will guarantee Meritage Homes Corporation’s payment obligations under its 6.00% Senior Notes due 2025 and are co-registrants under this registration statement. The address, including zip code, and telephone number, including area code, of each co-registrant is 8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260, (480) 515-8100.

 

Name of Each Co-Registrant as Specified in Its Charter (1)		State or Other Jurisdiction of Incorporation or Organization		IRS Employer Identification No.
Meritage Paseo Crossing, LLC		Arizona		86-1006497
Meritage Paseo Construction, LLC		Arizona		86-0863537
Meritage Homes of Arizona, Inc.		Arizona		86-1028848
Meritage Homes Construction, Inc.		Arizona		86-1028847
Meritage Homes of California, Inc.		California		86-0917765
Meritage Homes of Nevada, Inc.		Arizona		43-1976353
Meritage Holdings, L.L.C.		Texas		42-1732552
Meritage Homes of Texas Holding, Inc.		Arizona		86-0875147
Meritage Homes of Texas Joint Venture Holding Company, LLC		Texas		75-2771799
Meritage Homes of Texas, LLC		Arizona		65-1308131
Meritage Homes Operating Company, LLC		Arizona		65-1308133
MTH-Cavalier, LLC		Arizona		86-0863537
MTH Golf, LLC		Arizona		56-2379206
Meritage Homes of Colorado, Inc.		Arizona		20-1091787
Meritage Homes of Florida, Inc.		Florida		59-1107583
California Urban Homes, LLC		California		20-2707345
WW Project Seller, LLC		Arizona		86-1006497
Meritage Homes of the Carolinas, Inc.		Arizona		27-5411983
Carefree Title Agency, Inc.		Texas		45-3742536
M&M Fort Myers Holdings, LLC		Delaware		26-3996740
Meritage Homes of Florida Realty LLC		Florida		59-1107583
Meritage Homes of Georgia Realty, LLC		Arizona		47-1171110
Meritage Homes of Georgia, Inc.		Arizona		47-1171110
Meritage Homes of South Carolina, Inc.		Arizona		46-5709345
Meritage Homes of Tennessee, Inc.		Arizona		46-3409691
MLC Holdings, Inc. dba MLC Land Holdings, Inc.		Arizona		47-1967950
MTH GA Realty LLC		Arizona		47-1171110
MTH Realty LLC		Arizona		86-1006497
MTH SC Realty LLC		Arizona		46-5709345
MTH Shelf Co., Inc.		Arizona

 

(1)

Each Co-Registrant guarantor subsidiary is “100% owned” directly or indirectly by Meritage Homes Corporation as defined by Article 3-10(h)(1) of Regulation S-X. The guarantees are full and unconditional and joint and several. In the event that a guarantor sells or disposes of all of such guarantor’s assets, or in the event that we sell or dispose of all of the equity interests in a guarantor, by way of merger, consolidation or otherwise, in each case in accordance with the terms and conditions set forth in the Indenture, then such guarantor will be released and relieved of any obligations under its note guarantee.

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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

SUBJECT TO COMPLETION, DATED JUNE 24, 2015

PROSPECTUS

 

OFFER TO EXCHANGE

$200,000,000 of 6.00% Senior Notes due 2025

and the full and unconditional, joint and several

guarantees thereof by all of our existing subsidiaries

(other than our Unrestricted Subsidiaries)

that have been registered under the Securities Act of 1933

for any and all of our outstanding

$200,000,000 of 6.00% Senior Notes due 2025

and the full and unconditional, joint and several

guarantees thereof by all of our existing subsidiaries

(other than our Unrestricted Subsidiaries)

that have not been registered under the Securities Act of 1933

THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,

NEW YORK CITY TIME, ON                 , 2015, UNLESS EXTENDED.

We are offering to exchange up to $200 million aggregate principal amount of our registered 6.00% Senior Notes due 2025 (the “exchange notes”), for the identical aggregate principal amount of our outstanding unregistered 6.00% Senior Notes due 2025, which were issued on June 2, 2015 (the “outstanding notes”). The aggregate principal amount of the outstanding notes, and therefore, the aggregate principal amount of exchange notes which would be issued if all the outstanding notes were exchanged, is $200 million. The exchange offer will expire at 5:00 p.m., New York City time, on                     , 2015 unless we extend the offer. Promptly following the expiration of the exchange offer, we will exchange the exchange notes for all outstanding notes that are validly tendered and not withdrawn prior to the expiration of the exchange offer. You may withdraw tenders of outstanding notes at any time prior to the expiration of the exchange offer. The terms of the exchange notes to be issued will be identical in all material respects to those of the outstanding notes, except that the exchange notes do not have any transfer restrictions, registration rights or rights to additional interest. We will not receive any cash proceeds from the exchange offer.

The notes are our unsecured senior obligations. The notes rank equally with all of our other unsecured senior indebtedness.

Prior to the exchange offer, there has been no public market for the exchange notes. We do not currently intend to list the exchange notes on a securities exchange or seek approval for quotation of the exchange notes on an automated quotation system. Therefore, it is unlikely that an active trading market for the exchange notes will develop.

The exchange agent for the exchange offer is Wells Fargo Bank, National Association.

See “Risk Factors” beginning on page 11, for a discussion of certain factors that should be considered in evaluating the exchange offer.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

Broker-dealers who receive new securities pursuant to the exchange offer acknowledge that they will deliver a prospectus in connection with any resale of such new securities. Broker-dealers who acquired the old securities as a result of market-making or other trading activities may use the prospectus for the exchange offer, as supplemented or amended, in connection with resales of the new securities.

The date of this prospectus is                     , 2015.

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TABLE OF CONTENTS

 

Prospectus Summary			1
Risk Factors			11
Use of Proceeds			15
Capitalization			15
Description of the Exchange Notes			16
The Exchange Offer			34
United States Federal Income Tax Considerations			41
Plan of Distribution			46
Legal Matters			47
Experts			47
Available Information			47
Incorporation of Certain Information by Reference			48
Financial Statements and Subsidiary Guarantors			49

 

 

ADDITIONAL INFORMATION

This prospectus incorporates important business and financial information about us that is not included in or delivered with the document. This information is available without charge to security holders upon written or oral request. You may request a copy of this information, at no cost, by calling us or by writing to us at our principal executive offices in Arizona at the following address:

Meritage Homes Corporation

8800 East Raintree Drive, Suite 300

Scottsdale, Arizona 85260

Attention: Investor Relations

Telephone: (480) 515-8100

In order to obtain timely delivery, you must make your request no later than five business days before the expiration of the exchange offer. The exchange offer will expire on                     , 2015, unless extended.

Our obligations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to file periodic reports and other information with the SEC may be suspended, under certain circumstances, if our common stock and exchange notes are each held by fewer than 300 holders of record at the beginning of any fiscal year and are not listed on a national securities exchange. We have agreed that, whether or not we are required to do so by the rules and regulations of the Securities and Exchange Commission (the “SEC”), for so long as any of the exchange notes remain outstanding we will furnish to the holders of the exchange notes, and if required by the Exchange Act, file with the SEC, all annual, quarterly and current reports that we are or would be required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act. In addition, we have agreed that, as long as any of the outstanding notes remain outstanding, we will make the information required by Rule 144A(d)(4) under the Securities Act of 1933, as amended (the “Securities Act”), available to any prospective purchaser of outstanding notes or beneficial owner of outstanding notes in connection with a sale of them.

No person has been authorized to give any information or to make any representations, other than those contained in this prospectus. If given or made, that information or those representations may not be relied upon as having been authorized by us. This prospectus does not constitute an offer to or solicitation of any person in any jurisdiction in which such an offer or solicitation would be unlawful.

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RISK FACTORS

In this section, we describe risks relating to the exchange notes. Investors considering investing in the exchange notes should read the description of risks relating to our business included in Item 1A of our Annual Report on Form 10-K for our fiscal year ended December 31, 2014 and in our subsequent filings with the SEC. If any of those risks develop into actual events, the exchange notes or our business, financial condition, results of operations, cash flows, strategies or properties could be materially adversely affected.

Our level of indebtedness could adversely affect our financial condition and prevent us from fulfilling our obligations on the notes.

As of March 31, 2015 after giving effect to the issuance of the outstanding notes and the application of the proceeds therefrom, we would have had $1.14 billion of indebtedness. In addition, subject to restrictions in the indenture governing the exchange notes offered hereby and the indentures for our existing senior and convertible senior notes, we may incur additional indebtedness. The high level of our indebtedness could have important consequences to you, including the following:

 

•

our ability to obtain additional financing for working capital, capital expenditures, acquisitions or general corporate purposes may be impaired;

 

•

we must use a substantial portion of our cash flow from operations to pay interest and principal on the notes and other indebtedness, which will reduce the funds available to us for other purposes such as capital expenditures;

 

•

our level of indebtedness may put us at a competitive disadvantage and reduce our flexibility in planning for, or responding to, changing conditions in our industry, including increased competition; and

 

•

we are more vulnerable to economic downturns and adverse developments in our business.

We expect to obtain the money to pay our expenses and to pay the interest on the notes and the principal payments and interest on our other debt from cash flow from our operations. After giving effect to the issuance of the outstanding notes and the application of the proceeds therefrom, our current annual debt service requirements for our existing senior and convertible senior notes is approximately $64.7 million.

We cannot be certain that our cash flow will be sufficient to allow us to pay principal and interest on our debt, including the exchange notes, and meet our other obligations. If we do not have sufficient funds, we may be required to refinance all or part of our existing debt, including the exchange notes, sell assets or borrow more money. We cannot guarantee that we will be able to do so on terms acceptable to us, if at all. In addition, the terms of existing or future debt agreements may restrict us from pursuing any of these alternatives.

The exchange notes are effectively subordinated to our secured debt and structurally subordinated to any liabilities of our non-guarantor subsidiaries.

The exchange notes will rank senior in right of payment to our existing and future indebtedness that is expressly subordinated in right of payment to the exchange notes; equal in right of payment to our existing and future indebtedness that is not so subordinated; junior in right of payment to any of our secured indebtedness, including any secured indebtedness of our guarantor subsidiaries, to the extent of the value of the assets securing such indebtedness; and structurally junior to all indebtedness (including trade payables) of our subsidiaries that do not guarantee the exchange notes. In the event of our bankruptcy, liquidation, reorganization or other winding up, our assets that secure debt ranking senior or equal in right of payment to the exchange notes will be available to pay obligations on the exchange notes only after the secured debt has been repaid in full from these assets. There may not be sufficient assets remaining to pay amounts due on any or all of the exchange notes then outstanding. The indenture governing the exchange notes will not prohibit us from incurring additional senior debt or secured debt, nor will it prohibit any of our subsidiaries from incurring additional liabilities.

 

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Upon a Change of Control Triggering Event, we may not have the ability to raise the funds necessary to finance the change of control offer required by the Indenture governing the notes, which would violate the terms of the exchange notes.

Upon a Change of Control Triggering Event, we will be required to make an offer to repurchase all outstanding notes at a price in cash equal to 101% of the principal amount of the exchange notes, plus any accrued and unpaid interest, if any, to, but not including, the repurchase date. To the extent that we are required to offer to repurchase the notes upon the occurrence of a Change of Control Triggering Event, we may not have sufficient funds to repurchase the notes in cash at such time. In addition, our ability to repurchase the notes for cash may be limited by law or the terms of other agreements relating to our indebtedness outstanding at the time. The failure to make such repurchase would result in a default under the Indenture governing the notes. See “Description of the Exchange Notes — Change of Control.”

There is uncertainty about the meaning of the phrase “all or substantially all” under applicable laws in connection with determining whether a change of control has occurred.

One of the events that triggers our obligation to repurchase the exchange notes upon a Change of Control Triggering Event is the sale of all or substantially all of our assets. The phrase “all or substantially all” as used in the indenture varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under the law that governs the indenture and is subject to judicial interpretation. In certain circumstances, there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of “all or substantially all” of our assets, and therefore, it may be unclear as to whether a change of control has occurred and whether you have the right to require us to repurchase the notes.

The terms of the indenture governing the exchange notes provide only limited protection against significant corporate events that could affect adversely your investment in the exchange notes.

While the indenture governing the exchange notes contains terms intended to provide protection to holders upon the occurrence of certain events involving significant corporate transactions and our creditworthiness, these terms are limited and may not be sufficient to protect your investment in the exchange notes. As described under “Description of the Exchange Notes — Change of Control,” upon the occurrence of a change of control triggering event, holders are entitled to require us to repurchase their exchange notes at 101% of their principal amount. However, the definition of the term “change of control triggering event” is limited and does not cover a variety of transactions (such as acquisitions by us or recapitalizations) that could negatively affect the value of your exchange notes. If we were to enter into a significant corporate transaction that negatively affects the value of the exchange notes, but would not constitute a change of control triggering event, you would not have any rights to require us to repurchase the exchange notes prior to their maturity, which also would adversely affect your investment.

Federal and state fraudulent transfer laws and suretyship defenses may permit a court to void the exchange notes and/or the guarantees, and if that occurs, you may not receive any payments on the exchange notes.

Federal and state fraudulent transfer and conveyance statutes may apply to the issuance of the exchange notes and the incurrence of the guarantees of the exchange notes. Under federal bankruptcy law and comparable provisions of state fraudulent transfer or conveyance laws, which may vary from state to state, the exchange notes or the guarantees thereof could be voided as a fraudulent transfer or conveyance if we or any of the subsidiary guarantors, as applicable, (a) issued the exchange notes or incurred the guarantees with the intent of hindering, delaying or defrauding creditors or (b) received less than reasonably equivalent value or fair consideration in return for either issuing the exchange notes or incurring the guarantees and, in the case of (b) only, one of the following is also true at the time thereof:

 

•

we or any of the subsidiary guarantors, as applicable, were insolvent or rendered insolvent by reason of the issuance of the exchange notes or the incurrence of the guarantees;

 

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•

the issuance of the exchange notes or the incurrence of the guarantees left us or any of the subsidiary guarantors, as applicable, with an unreasonably small amount of capital or assets to carry on the business;

 

•

we or any of the subsidiary guarantors intended to, or believed that we or such subsidiary guarantor would, incur debts beyond our or such subsidiary guarantor’s ability to pay as they mature; or

 

•

we or any of the subsidiary guarantors were a defendant in an action for money damages, or had a judgment for money damages docketed against us or the subsidiary guarantors if, in either case, the judgment is unsatisfied after final judgment.

As a general matter, value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or a valid antecedent debt is secured or satisfied. A court would likely find that a subsidiary guarantor did not receive reasonably equivalent value or fair consideration for its exchange note guarantee to the extent the subsidiary guarantor did not obtain a reasonably equivalent benefit directly or indirectly from the issuance of the exchange notes.

We cannot be certain as to the standards a court would use to determine whether or not we or the subsidiary guarantors were insolvent at the relevant time or, regardless of the standard that a court uses, whether the exchange notes or the guarantees would be subordinated to our or any of our subsidiary guarantors’ other debt. In general, however, a court would deem an entity insolvent if:

 

•

the sum of its debts, including contingent and unliquidated liabilities, was greater than the fair saleable value of all of its assets;

 

•

the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or

 

•

it could not pay its debts as they became due.

The guarantees of the exchange notes will contain a provision to limit each guarantor’s liability to the maximum amount that it could incur without causing the incurrence of obligations under its guarantee to be a fraudulent transfer. However, under recent case law, this provision may not be effective to protect such guarantee from being voided under fraudulent transfer law or otherwise determined to be unenforceable. If a court were to find that the issuance of the exchange notes or the incurrence of a guarantee was a fraudulent transfer or conveyance, the court could void the payment obligations under the exchange notes or that exchange note guarantee, could subordinate the exchange notes or that guarantee to presently existing and future indebtedness of ours or of the related subsidiary guarantor or could require the holders of the exchange notes to repay any amounts received with respect to that guarantee. In the event of a finding that a fraudulent transfer or conveyance occurred, you may not receive any repayment on the exchange notes. Further, the avoidance of the exchange notes could result in an event of default with respect to our and our subsidiaries’ other debt that could result in acceleration of that debt.

Also, although guarantees provide the holders of the exchange notes with a direct claim against the assets of the guarantors, enforcement of the guarantees against any guarantor would be subject to certain “suretyship” defenses available to guarantors generally. Enforcement could also be subject to other defenses available to the guarantors in certain circumstances. To the extent that the guarantees are not enforceable, you would not be able to assert a claim successfully against such guarantors.

Finally, as a court of equity, a bankruptcy court may subordinate the claims in respect of the exchange notes to other claims against us under the principle of equitable subordination if the court determines that (1) the holder of exchange notes engaged in some type of inequitable conduct, (2) the inequitable conduct resulted in injury to our other creditors or conferred an unfair advantage upon the holders of exchange notes and (3) equitable subordination is not inconsistent with the provisions of the bankruptcy code.

 

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Because the notes are structurally subordinated to the obligations of our subsidiaries that are not guarantors, you may not be fully repaid if we become insolvent.

Substantially all of our operating assets are held by our subsidiaries. Holders of any indebtedness of any of our future subsidiaries that are not guarantors and other creditors of any of those subsidiaries, including trade creditors, have and will have access to the assets of those subsidiaries that are prior to those of the noteholders. As a result, the exchange notes are structurally subordinated to the debts and other obligations of those non-guarantor subsidiaries.

There is no public market for the exchange notes, so you may be unable to sell the exchange notes.

The exchange notes are new securities for which there is currently no public trading market. Consequently, the exchange notes may be relatively illiquid, and you may be unable to sell your exchange notes. We do not intend to list the exchange notes on any securities exchange or to include the exchange notes in any automated quotation system.

There may be adverse consequences to holders of outstanding notes that do not tender their outstanding notes pursuant to the exchange offer.

If you fail to properly exchange your outstanding notes for exchange notes, you will continue to hold outstanding notes subject to transfer restrictions, and the liquidity of the trading market for any untendered outstanding notes may be substantially limited.

We will only issue exchange notes in exchange for outstanding notes that you timely and properly tender. You should allow sufficient time to ensure timely delivery of the outstanding notes, and you should carefully follow the instructions on how to tender your outstanding notes set forth under the “The Exchange Offer — Procedures for Tendering” and in the letter of transmittal that accompanies this prospectus. Neither we nor the exchange agent is required to notify you of any defects or irregularities relating to your tender of notes.

The holders of outstanding notes that do not exchange them pursuant to this exchange offer will continue to be subject to restrictions on the transfer of the outstanding notes because the issuance of the outstanding notes was not registered under the Securities Act or registered or qualified under any state securities laws. We do not currently anticipate that, except in certain limited circumstances, we will register the outstanding notes under the Securities Act. To the extent that we exchange outstanding notes as a result of this exchange offer, the ability to trade untendered outstanding notes may be adversely affected.

 

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USE OF PROCEEDS

We will use the net proceeds from the offering of the outstanding notes for general corporate purposes, including to repay outstanding borrowings under our unsecured revolving credit facility. We will receive no proceeds from the completion of the exchange offer.

CAPITALIZATION

The table below shows our cash and cash equivalents and capitalization on an actual and as adjusted basis as of March 31, 2015. The as adjusted data gives effect to the issuance of $200 million aggregate principal amount of the 6.00% Senior Notes due 2025.

 

		As of March 31, 2015
		Actual				As Adjusted
		(In thousands)
Cash and equivalents (1)		$	89,245			$	196,285
Debt:
Unsecured revolving credit facility (2)			27,000				—
4.50% Senior Notes due 2018			175,000				175,000
7.15% Senior Notes due 2020 (3)			302,844				302,844
7.00% Senior Notes due 2022			300,000				300,000
6.00% Senior Notes due 2025			—				200,000
1.875% Convertible Notes due 2032			126,500				126,500
Other borrowings, real estate notes payable (4)			34,406				34,406
Total debt			965,750				1,138,750
Stockholders’ equity:
Preferred stock, par value $0.01, none issued and outstanding			—				—
Common stock, par value $0.01			396				396
Additional paid-in capital			548,182				548,182
Retained earnings			586,710				586,710
Total stockholders’ equity			1,135,288				1,135,288
Total capitalization		$	2,101,038			$	2,274,038

 

(1)

As adjusted cash and cash equivalents reflects actual cash and cash equivalents adjusted to give effect to the net proceeds of the offering of the outstanding 6.00% Senior Notes due 2025 after repayment of outstanding borrowings under our unsecured revolving credit facility, which totaled $90.0 million at May 15, 2015.

(2)	Matures in June 2018. Total availability of up to $500 million is subject to a borrowing base. As of May 15, 2015, we had outstanding borrowings of $90.0 million, all of which will be repaid with the proceeds of the offering of the outstanding 6.00% Senior Notes due 2025.

(3)	Includes unamortized premium of $2.844 million at March 31, 2015.

(4)	Includes non-recourse notes payable in connection with land purchases, with interest rates ranging from less than 1% to 6%.

 

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DESCRIPTION OF THE EXCHANGE NOTES

As used below in this “Description of the Exchange Notes” section, the “Issuer” means Meritage Homes Corporation, a Maryland corporation, and its successors, but not any of its subsidiaries. The Issuer will issue the exchange notes described herein (which we sometimes refer to as the “Notes” or the “notes”) under an indenture, dated as of June 2, 2015, among the Issuer, the Guarantors and Wells Fargo Bank, National Association, as trustee. The terms of the notes include those set forth in the indenture and those made part of the indenture by reference to the Trust Indenture Act.

The following is a summary of the material terms and provisions of the notes. As used in this “Description of the Exchange Notes,” the terms “Notes” and “notes” mean the series of the Issuer’s senior debt securities issued under the indenture designated as its 6.00% Senior Notes due 2025, in each case except as otherwise expressly provided or as the context otherwise requires. The following summary does not purport to be a complete description of the notes and is subject to the detailed provisions of the indenture. You can find definitions of certain terms used in this description under the heading “— Certain Definitions.”

PRINCIPAL, MATURITY AND INTEREST

The notes will mature on June 1, 2025. The notes will bear interest at the rate shown on the cover page of this prospectus, payable on June 1 and December 1 of each year, commencing on December 1, 2015, to Holders of record at the close of business on May 15 or November 15, as the case may be immediately preceding the relevant interest payment date. Interest on the notes will be computed on the basis of a 360-day year of twelve 30-day months.

The notes will be issued in registered form, without coupons, and in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

The Issuer may issue an unlimited amount of notes having identical terms and conditions to the notes being issued in this offering (“Additional Notes”). Any Additional Notes will be part of the same issue as the notes being issued in this offering and will vote on all matters as one class with the notes being issued in this offering, including, without limitation, waivers, amendments, redemptions and offers to purchase. For purposes of the “Description of the Exchange Notes,” references to the notes include Additional Notes, if any.

METHODS OF RECEIVING PAYMENTS ON THE NOTES

If a holder has given wire transfer instructions to the Issuer at least ten business days prior to the applicable payment date, the Issuer will make all payments (but only to the extent the Issuer acts as its own paying agent) on such holder’s notes in accordance with those instructions. Otherwise, payments on the notes will be made at the office or agency of the paying agent and registrar for the notes within the City and State of Minneapolis, Minnesota unless the Issuer elects to make interest payments (but only to the extent the Issuer acts as its own paying agent) by check mailed to the holders at their addresses set forth in the register of holders.

RANKING

The notes will be general unsecured obligations of the Issuer. The notes will rank senior in right of payment to all future obligations of the Issuer that are, by their terms, expressly subordinated in right of payment to the notes and pari passu in right of payment with all existing and future unsecured obligations of the Issuer that are not so subordinated. Each note guarantee will be a general unsecured obligation of the Guarantor thereof and will rank senior in right of payment to all future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such note guarantee and pari passu in right of payment with all existing and future unsecured obligations of such Guarantor that are not so subordinated.

 

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The notes and each note guarantee will be effectively subordinated to secured Indebtedness of the Issuer and the applicable Guarantor to the extent of the value of the assets securing such Indebtedness. Although the indenture contains limitations on the amount of additional Secured Indebtedness that the Issuer and the Subsidiaries may incur, under certain circumstances, the amount of this Indebtedness could be substantial. See “— Certain Covenants — Restrictions on Secured Debt.”

NOTE GUARANTEES

The Issuer’s obligations under the notes and the indenture will be fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis by each Guarantor.

As of the date of the issuance of the notes offered by this offering memorandum, all of our Subsidiaries will be Guarantors (except for Buckeye Land, L.L.C., Arcadia Ranch, L.L.C. and Sundance Buckeye, LLC). However, our future Financial Services Subsidiaries will not be required to guarantee the notes. See “— Certain Covenants — Additional Note Guarantees.” In the event of a bankruptcy, liquidation or reorganization of any of these non-guarantor Subsidiaries, these non-guarantor Subsidiaries will pay the holders of their debts and their trade creditors before they will be able to distribute any of their assets to us.

The obligations of each Guarantor under its note guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its note guarantee or pursuant to its contribution obligations under the indenture, result in the obligations of such Guarantor under its note guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. However, this provision may not be effective to protect the subsidiary guarantees from being voided under fraudulent conveyance law. Each Guarantor that makes a payment for distribution under its note guarantee is entitled to a contribution from each other Guarantor in a pro rata amount based on adjusted net assets of each Guarantor.

In the event of a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the Equity Interests of any Guarantor then held by the Issuer and the Subsidiaries, then that Guarantor will be released and relieved of any obligations under its note guarantee.

OPTIONAL REDEMPTION

Prior to March 1, 2025, we may, at our option, redeem the notes in whole at any time or in part from time to time, on at least 30 but not more than 60 days’ prior notice to holders, at a redemption price equal to the greater of:

 

•

100% of the principal amount of the notes being redeemed, or

 

•

the sum of the present values of the Remaining Scheduled Payments on the notes being redeemed, discounted to the date of redemption, on a semiannual basis, at the Treasury Rate plus 50 basis points (0.50%).

On or after March 1, 2025, we may redeem all of the notes at any time at a redemption price equal to 100% of the principal amount of the notes being redeemed plus accrued and unpaid interest on the notes to the redemption date.

In each case, we will also pay accrued interest on the notes being redeemed to the date of redemption. In determining the redemption price and accrued interest, interest will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

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Any redemption or notice of redemption may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, including the occurrence of a Change of Control, and any redemption date may be delayed in order to fulfill any such condition precedent by a notice delivered in writing to the trustee

“Comparable Treasury Issue” means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of the notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the notes.

“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference Treasury Dealer Quotations are provided to the trustee, the average of all such quotations.

“Reference Treasury Dealer” means J.P. Morgan Securities LLC and its successors; provided, however, that, if the foregoing ceases to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), we will substitute another Primary Treasury Dealer.

“Reference Treasury Dealer Quotation” means, with respect to the Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the trustee by the Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.

“Remaining Scheduled Payments” means, with respect to any note, the remaining scheduled payments of the principal (or of the portion) thereof to be redeemed and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest payment date with respect to such note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

The Issuer may acquire notes by means other than a redemption, whether pursuant to an issuer tender offer, open market purchase or otherwise, so long as the acquisition does not otherwise violate the terms of the indenture.

SELECTION AND NOTICE OF REDEMPTION

In the event that less than all of the notes are to be redeemed at any time pursuant to an optional redemption, selection of the notes for redemption will be made by the trustee in compliance with the requirements of the principal national securities exchange, if any, on which the notes are listed or, if the notes are not then listed on a national securities exchange, prorated, by lot or by such method as may be required by DTC’s procedures; provided, however, that no notes of a principal amount of $2,000 or less shall be redeemed in part.

Notice of redemption will be mailed by first-class mail (in the case of notes held in book entry form, sent by electronic transmission) at least 30 but not more than 60 days before the date of redemption to each holder of notes to be redeemed at its registered address. If any note is to be redeemed in part only, the notice of redemption that relates to that note will state the portion of the principal amount of the note to be redeemed. A new note in a principal amount equal to the unredeemed portion of the note will be issued in the name of the holder of the note

 

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upon cancellation of the original note. On and after the date of redemption, interest will cease to accrue on notes or portions thereof called for redemption so long as the Issuer has deposited with the paying agent for the notes funds in satisfaction of the redemption price (including accrued and unpaid interest on the notes to be redeemed) pursuant to the indenture.

CHANGE OF CONTROL

Upon the occurrence of a Change of Control Triggering Event, each holder will have the right to require that the Issuer purchase that holder’s notes for a cash price (the “Change of Control Purchase Price”) equal to 101% of the principal amount of the notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase.

Within 30 days following a Change of Control Triggering Event, the Issuer will mail, or caused to be mailed (in the case of notes held in book entry form, sent by electronic transmission), to the holders a notice:

(1) describing the transaction or transactions that constitute the Change of Control;

(2) offering to purchase, pursuant to the procedures required by the indenture and described in the notice, on a date specified in the notice (which shall be a business day not earlier than 30 days nor later than 60 days from the date the notice is sent) and for the Change of Control Purchase Price, all notes properly tendered by such holder pursuant to such change of control offer; and

(3) describing the procedures that holders must follow to accept the change of control offer.

The change of control offer is required to remain open for at least 20 business days or for such longer period as is required by law. The Issuer will publicly announce the results of the change of control offer on or as soon as practicable after the date of purchase.

If a change of control offer is made, there can be no assurance that the Issuer will have available funds sufficient to pay for all or any of the notes that might be delivered by holders seeking to accept the change of control offer. In addition, we cannot assure you that in the event of a Change of Control Triggering Event the Issuer will be able to obtain the consents necessary to consummate a change of control offer from the lenders under agreements governing outstanding Indebtedness which may prohibit the offer.

The provisions described above that require us to make a change of control offer following a Change of Control Triggering Event will be applicable regardless of whether any other provisions of the indenture are applicable. Except as described above with respect to a Change of Control Triggering Event, the indenture does not contain provisions that permit the holders of the notes to require that the Issuer purchase or redeem the notes in the event of a takeover, recapitalization or similar transaction.

The Issuer’s obligation to make a change of control offer will be satisfied if a third party makes the change of control offer in the manner and at the times and otherwise in compliance with the requirements applicable to a change of control offer made by the Issuer and purchases all notes properly tendered and not withdrawn under the change of control offer.

A “Change of Control” includes certain sales of all or substantially all of the assets of the Issuer and the Subsidiaries. The phrase “all or substantially all” as used in the indenture (including as set forth under “— Certain Covenants — Limitations on Mergers, Consolidations, Etc.” below) varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under New York law (which governs the indenture) and is subject to judicial interpretation. Accordingly, in certain circumstances there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of “all or substantially all” of the assets of the Issuer, and therefore it may be unclear as to whether a Change of Control has occurred and whether the holders have the right to require the Issuer to purchase notes.

 

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The Issuer will comply with applicable tender offer rules, including the requirements of Rule 14e-l under the Exchange Act and any other applicable laws and regulations in connection with the purchase of notes pursuant to a change of control offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of the indenture, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the “Change of Control” provisions of the indenture by virtue of this compliance.

CERTAIN COVENANTS

In connection with the notes, we have not agreed to any financial covenants or any restrictions on the payment of dividends or the issuance or repurchase of our securities. We have agreed to no covenants or other provisions to protect holders of the notes in the event of a highly leveraged transaction, other than with respect to certain change of control transactions. See “— Change of Control.”

Restrictions on Secured Debt

The indenture provides that the Issuer will not, and will not cause or permit a Restricted Subsidiary to, create, incur, assume or guarantee any Secured Debt unless the notes will be secured equally and ratably with (or prior to) such Secured Debt, with certain exceptions. This restriction does not prohibit the creation, incurrence, assumption or guarantee of Secured Debt which is secured by:

(1) Liens on model homes, homes held for sale, homes that are under contract for sale, contracts for the sale of homes, land (improved or unimproved), manufacturing plants, warehouses or office buildings and fixtures and equipment located thereat, or thereon;

(2) Liens on assets of a Person existing at the time such Person is acquired or merged with or into or consolidated with the Issuer or any such Restricted Subsidiary (and not created in anticipation or contemplation thereof);

(3) Liens arising from conditional sales agreements or title retention agreements with respect to property acquired by the Issuer or a Restricted Subsidiary; and

(4) Liens securing Indebtedness of a Restricted Subsidiary owed to the Issuer or to a Wholly Owned Restricted Subsidiary of the Issuer.

Additionally, such permitted Secured Debt includes any amendment, restatement, supplement, renewal, replacement, extension or refunding in whole or in part, of Secured Debt permitted at the time of the original incurrence thereof.

In addition, the Issuer and its Restricted Subsidiaries may create, incur, assume or guarantee Secured Debt, without equally or ratably securing the notes, if immediately thereafter the sum of (1) the aggregate principal amount of all Secured Debt outstanding (excluding (i) Secured Debt permitted under clauses (1) through (4) above and (ii) any Secured Debt in relation to which the notes have been equally and ratably secured) and (2) all Attributable Debt in respect of Sale and Leaseback Transactions (excluding Attributable Debt in respect of Sale and Leaseback Transactions satisfying the conditions set forth in clauses (1), (2) and (3) under “—Restrictions on Sale and Leaseback Transactions”) as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets.

The provisions described above with respect to limitations on Secured Debt are not applicable to Non-Recourse Land Financing by virtue of the definition of Secured Debt, and will not restrict or limit our or our Restricted Subsidiaries’ ability to create, incur, assume or guarantee any unsecured Indebtedness, or of any subsidiary which is not a Restricted Subsidiary to create, incur, assume or guarantee any secured or unsecured Indebtedness.

 

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Restrictions on Sale and Leaseback Transactions

The indenture provides that the Issuer will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless:

(1) written notice is promptly given to the trustee of the Sale and Leaseback Transaction;

(2) fair value is received by the Issuer or the relevant Restricted Subsidiary for the property sold (as determined in good faith pursuant to a resolution of the Board of Directors of the Issuer delivered to the trustee); and

(3) the Issuer or such Restricted Subsidiary, within 365 days after the completion of the Sale and Leaseback Transaction, applies an amount equal to the net proceeds therefrom either:

 

•

to the redemption, repayment or retirement of debt securities of any series under the indenture (including the cancellation by the trustee of any debt securities of any series delivered by the Issuer to the trustee) or Senior Indebtedness of the Issuer, or

 

•

to the purchase by the Issuer or any Restricted Subsidiary of the Issuer of property substantially similar to the property sold or transferred.

In addition, the Issuer and its Restricted Subsidiaries may enter into a Sale and Leaseback Transaction if immediately thereafter the sum of (1) the aggregate principal amount of all Secured Debt outstanding (excluding Secured Debt permitted under clauses (1) through (4) described in “— Restrictions on Secured Debt,” above or Secured Debt in relation to which the notes have been equally and ratably secured) and (2) all Attributable Debt in respect of Sale and Leaseback Transactions (excluding Attributable Debt in respect of Sale and Leaseback Transactions satisfying the conditions set forth in clauses (1), (2) and (3) above) as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets.

Limitations on Mergers, Consolidations, Etc.

The Issuer will not, directly or indirectly, in a single transaction or a series of related transactions, (a) consolidate or merge with or into (other than a merger that satisfies the requirements of clause (1) below with a Wholly Owned Restricted Subsidiary solely for the purpose of changing the Issuer’s jurisdiction of incorporation to another State of the United States), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of the Issuer or the Issuer and its Restricted Subsidiaries (taken as a whole) or (b) adopt a plan of liquidation unless, in either case:

(1) either:

(a) the Issuer will be the surviving or continuing Person; or

(b) the Person formed by or surviving such consolidation or merger or to which such sale, lease, conveyance or other disposition shall be made (or, in the case of a plan of liquidation, any Person to which assets are transferred) (collectively, the “Successor”) is a corporation or limited liability company organized and existing under the laws of any State of the United States of America or the District of Columbia, and the Successor expressly assumes, by supplemental indenture in form and substance satisfactory to the trustee, all of the obligations of the Issuer under the notes, the indenture and the Registration Rights Agreement; provided that at any time the Successor is a limited liability company, there shall be a co-issuer of the notes that is a corporation; and

(2) immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above and the incurrence of any Indebtedness to be incurred in connection therewith, no Default shall have occurred and be continuing.

The Issuer shall deliver to the Trustee on or prior to the consummation of a transaction proposed pursuant to clause 1(b) of the first or second paragraph of this section above an officer’s certificate and an opinion of counsel stating that the proposed transaction and such supplemental indenture comply with the indenture and constitutes the legal, valid and binding obligation of the Issuer, enforceable against it in accordance with its terms.

 

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Except as provided under the caption “— Note Guarantees,” no Guarantor may consolidate with or merge with or into another Person, whether or not affiliated with such Guarantor, unless:

(1) either:

(a) such Guarantor will be the surviving or continuing Person; or

(b) the Person formed by or surviving any such consolidation or merger assumes, by supplemental indenture in form and substance satisfactory to the trustee, all of the obligations of such Guarantor under the note guarantee of such Guarantor, the indenture and the Registration Rights Agreement; and

(2) immediately after giving effect to such transaction, no Default shall have occurred and be continuing.

For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the assets of one or more Restricted Subsidiaries, the Equity Interests of which constitute all or substantially all of the assets of the Issuer, will be deemed to be the transfer of all or substantially all of the assets of the Issuer.

Upon any consolidation, combination or merger of the Issuer or a Guarantor, or any transfer of all or substantially all of the assets of the Issuer in accordance with the foregoing, in which the Issuer or such Guarantor is not the continuing obligor under the notes or its note guarantee, the surviving entity formed by such consolidation or into which the Issuer or such Guarantor is merged or to which the conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor under the indenture, the notes and the note guarantees with the same effect as if such surviving entity had been named therein as the Issuer or such Guarantor and, except in the case of a conveyance, transfer or lease, the Issuer or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the notes or in respect of its note guarantee, as the case may be, and all of the Issuer’s or such Guarantor’s other obligations and covenants under the notes, the indenture and its note guarantee, if applicable.

Notwithstanding the foregoing, any Restricted Subsidiary may merge into the Issuer or another Restricted Subsidiary.

Additional Note Guarantees

If, after the Issue Date, the Issuer or any Restricted Subsidiary shall acquire or create another Restricted Subsidiary, then the Issuer shall cause such Subsidiary to:

(1) execute and deliver to the trustee (a) a supplemental indenture in form and substance satisfactory to the trustee pursuant to which such Restricted Subsidiary shall unconditionally guarantee all of the Issuer’s obligations under the notes and the indenture and (b) a notation of guarantee in respect of its note guarantee; and

(2) deliver to the trustee one or more opinions of counsel that such supplemental indenture:

(a) has been duly authorized, executed and delivered by such Restricted Subsidiary; and

(b) constitutes a valid and legally binding obligation of such Restricted Subsidiary enforceable against it in accordance with its terms.

Reports

Whether or not required by the SEC, so long as any notes are outstanding, the Issuer will furnish to the trustee and the holders of notes, within the time periods specified in the SEC’s rules and regulations (including any grace periods or extensions permitted by the SEC):

(1) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer were required to file these Forms, including a

 

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“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and

(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file these reports.

In addition, whether or not required by the SEC, the Issuer will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the SEC’s rules and regulations (unless the SEC will not accept the filing) and make the information available to securities analysts and prospective investors upon request. The Issuer and the Guarantors have agreed that, for so long as any notes remain outstanding, the Issuer will furnish to the holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

EVENTS OF DEFAULT

Each of the following is an “Event of Default”:

(1) failure by the Issuer to pay interest on any of the notes when it becomes due and payable and the continuance of any such failure for 30 days;

(2) failure by the Issuer to pay the principal on any of the notes when it becomes due and payable, whether at stated maturity, upon redemption, upon purchase, upon acceleration or otherwise;

(3) failure by the Issuer to comply with any of its agreements or covenants described above under “—Certain Covenants — Limitations on Mergers, Consolidations, Etc.”;

(4) failure by the Issuer to comply with any other agreement or covenant in the indenture and continuance of this failure for 30 days after notice of the failure has been given to the Issuer by the trustee or by the holders of at least 25% of the aggregate principal amount of the notes then outstanding;

(5) default under any mortgage, indenture or other instrument or agreement under which there may be issued or by which there may be secured or evidenced Indebtedness (other than Non-Recourse Land Financing) of the Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is incurred after the Issue Date, which default:

(a) is caused by a failure to pay when due principal on such Indebtedness within the applicable express grace period,

(b) results in the acceleration of such Indebtedness prior to its express final maturity, or

(c) results in the commencement of judicial proceedings to foreclose upon, or to exercise remedies under applicable law or applicable security documents to take ownership of, the assets securing such Indebtedness,

and in each case, the principal amount of such Indebtedness, together with any other Indebtedness with respect to which an event described in clause (a), (b) or (c) has occurred and is continuing, aggregates (i) $30 million or more or (ii) such lesser amount as may be applicable to the corresponding event of default in any other capital markets Indebtedness (other than Non-Recourse Land Financing) of the Issuer or any of its Restricted Subsidiaries which is outstanding on the Issue Date (the “cross acceleration provisions”);

(6) one or more judgments or orders that exceed (i) $25 million or (ii) such lesser amount as may be applicable to the corresponding event of default in any other capital market Indebtedness (other than Non-Recourse Land Financing) of the Issuer or any of its Restricted Subsidiaries which is outstanding on the Issue Date, in each case, in the aggregate (net of amounts covered by insurance or bonded) for the payment of money have been entered by a court or courts of competent jurisdiction against the Issuer or any Restricted Subsidiary and such judgment or judgments have not been satisfied, stayed, annulled or rescinded within 60 days of being entered (the “judgment default provisions”);

 

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(7) the Issuer or any Significant Subsidiary pursuant to or within the meaning of any bankruptcy law:

(a) commences a voluntary case,

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

(c) consents to the appointment of a custodian of it or for all or substantially all of its assets, or

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

(8) a court of competent jurisdiction enters an order or decree under any bankruptcy law that:

(a) is for relief against the Issuer or any Significant Subsidiary as debtor in an involuntary case,

(b) appoints a custodian of the Issuer or any Significant Subsidiary or a custodian for all or substantially all of the assets of the Issuer or any Significant Subsidiary, or

(c) orders the liquidation of the Issuer or any Significant Subsidiary, and the order or decree remains unstayed and in effect for 60 days; or

(9) any note guarantee of any Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such note guarantee and the indenture) or is declared null and void and unenforceable or found to be invalid or any Guarantor denies its liability under its note guarantee (other than by reason of release of a Guarantor from its note guarantee in accordance with the terms of the indenture and the note guarantee).

If an Event of Default (other than an Event of Default specified in clause (7) or (8) above with respect to the Issuer), shall have occurred and be continuing under the indenture, the trustee, by written notice to the Issuer, or the holders of at least 25% in aggregate principal amount of the notes then outstanding by written notice to the Issuer and the trustee, may declare all amounts owing under the notes to be due and payable immediately. Upon such declaration of acceleration, the aggregate principal of and accrued and unpaid interest on the outstanding notes shall immediately become due and payable; provided, however, that after such acceleration, but before a judgment or decree based on acceleration, the holders of a majority in aggregate principal amount of such outstanding notes may, under certain circumstances, rescind and annul such acceleration if all Events of Default, other than the nonpayment of accelerated principal and interest, have been cured or waived as provided in the indenture. If an Event of Default specified in clause (7) or (8) with respect to the Issuer occurs, all outstanding notes shall become due and payable without any further action or notice.

The trustee shall, within 30 days after the occurrence of any Default with respect to the notes, give the holders written notice of all uncured Defaults thereunder known to it; provided, however, that, except in the case of an Event of Default in payment with respect to the notes or a Default in complying with “— Certain Covenants — Limitations on Mergers, Consolidations, Etc.,” the trustee shall be protected in withholding such notice if and so long as a committee of its trust officers in good faith determines that the withholding of such notice is in the interest of the holders.

No holder will have any right to institute any proceeding with respect to the indenture or for any remedy thereunder, unless the trustee:

(1) has failed to act for a period of 60 days after receiving written notice of a continuing Event of Default by such holder and a request to act by holders of at least 25% in aggregate principal amount of notes outstanding;

(2) has been offered indemnity against loss, liability or expense satisfactory to it in its reasonable judgment; and

(3) has not received from the holders of a majority in aggregate principal amount of the outstanding notes a direction inconsistent with such request.

 

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However, such limitations do not apply to a suit instituted by a holder of any Note for enforcement of payment of the principal of or interest on such note on or after the due date therefor (after giving effect to the grace period specified in clause (1) of the first paragraph of this “— Events of Default” section).

The Issuer is required to deliver to the trustee annually a statement regarding compliance with the indenture and, upon any officer of the Issuer becoming aware of any Default, a statement specifying such Default and what action the Issuer is taking or proposes to take with respect thereto.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

The Issuer may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors discharged with respect to the outstanding notes. Legal defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the notes and the note guarantees, and the Indenture shall cease to be of further effect as to all outstanding notes and note guarantees, except as to:

(1) rights of holders to receive payments in respect of the principal of and interest on the notes when such payments are due from the trust funds referred to below,

(2) the Issuer’s obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes, and the maintenance of an office or agency for payment and money for security payments held in trust,

(3) the rights, powers, trust, duties, and immunities of the trustee, and the Issuer’s obligation in connection therewith, and

(4) the legal defeasance provisions of the indenture.

In addition, the Issuer may, at its option and at any time, elect to have its obligations and the obligations of the Guarantors released with respect to most of the covenants under the indenture (including, without limitation, the cross acceleration provisions and the judgment default provisions), except as described otherwise in the indenture, and thereafter any omission to comply with such obligations shall not constitute a Default. In the event covenant defeasance occurs, certain Events of Default (not including nonpayment and, solely for a period of 91 days following the deposit referred to in clause (1) of the next paragraph, bankruptcy, receivership, rehabilitation and insolvency events) will no longer apply. Covenant defeasance will not be effective until such bankruptcy, receivership, rehabilitation and insolvency events no longer apply. The Issuer may exercise its legal defeasance option regardless of whether it previously exercised covenant defeasance.

In order to exercise either legal defeasance or covenant defeasance:

(1) the Issuer must irrevocably deposit with the trustee, in trust, for the benefit of the holders, U.S. legal tender, U.S. Government obligations or a combination thereof, in such amounts as will be sufficient (without reinvestment) in the opinion of a nationally recognized firm of independent public accountants selected by the Issuer, to pay the principal of and interest on the notes on the stated date for payment or on the redemption date of the principal or installment of principal of or interest on the notes, and the trustee must have a valid, perfected, exclusive security interest in such trust,

(2) in the case of legal defeasance, the Issuer shall have delivered to the trustee an opinion of counsel in the United States reasonably acceptable to the trustee confirming that:

(a) the Issuer has received from, or there has been published by the Internal Revenue Service, a ruling, or

(b) since the date of the indenture, there has been a change in the applicable U.S. federal income tax law,

 

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in either case to the effect that, and based thereon this opinion of counsel shall confirm that, the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred,

(3) in the case of covenant defeasance, the Issuer shall have delivered to the trustee an opinion of counsel in the United States reasonably acceptable to the trustee confirming that the holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the covenant defeasance had not occurred,

(4) no Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing),

(5) the legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under the indenture or any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound,

(6) the Issuer shall have delivered to the trustee an officers’ certificate stating that the deposit was not made by it with the intent of preferring the holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors or others, and

(7) the Issuer shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that the conditions provided for, in the case of the officers’ certificate, clauses (1) through (6) and, in the case of the opinion of counsel, clauses (1) (with respect to the validity and perfection of the security interest), (2) and/or (3) and (5) of this paragraph have been complied with.

If the funds deposited with the trustee to effect covenant defeasance are insufficient to pay the principal of and interest on the notes when due, then our obligations and the obligations of Guarantors under the indenture will be revived and no such defeasance will be deemed to have occurred.

SATISFACTION AND DISCHARGE

The indenture will be discharged and will cease to be of further effect (except as to rights of registration of transfer or exchange of notes which shall survive until all notes have been canceled) as to all outstanding notes when either:

(1) all the notes that have been authenticated and delivered (except lost, stolen or destroyed notes which have been replaced or paid and notes for whose payment money has been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from this trust) have been delivered to the trustee for cancellation, or

(2) (a) all notes not delivered to the trustee for cancellation otherwise have become due and payable or have been called for redemption pursuant to the provisions described under “— Optional Redemption,” and the Issuer has irrevocably deposited or caused to be deposited with the trustee trust funds in trust in an amount of money sufficient to pay and discharge the entire Indebtedness (including all principal and accrued interest) on the notes not theretofore delivered to the trustee for cancellation,

(b) the Issuer has paid all sums payable by it under the indenture,

(c) the Issuer has delivered irrevocable instructions to the trustee to apply the deposited money toward the payment of the notes at maturity or on the date of redemption, as the case may be, and

(d) the trustee, for the benefit of the holders, has a valid, perfected, exclusive security interest in this trust.

In addition, the Issuer must deliver an officers’ certificate and an opinion of counsel (as to legal matters) stating that all conditions precedent to satisfaction and discharge have been complied with.

 

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TRANSFER AND EXCHANGE

A holder will be able to register the transfer of or exchange of any notes only in accordance with the provisions of the indenture. The registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the indenture. Without the prior consent of the Issuer, the registrar is not required (1) to register the transfer of or exchange any note selected for redemption, (2) to register the transfer of or exchange any note for a period of 15 days before a selection of notes to be redeemed or (3) to register the transfer or exchange of a note between a record date and the next succeeding interest payment date.

The notes will be issued in registered form and the registered holder will be treated as the owner of such note for all purposes.

AMENDMENT, SUPPLEMENT AND WAIVER

Subject to certain exceptions, the indenture or the notes may be amended with the consent (which may include consents obtained in connection with a tender offer or exchange offer for notes) of the holders of at least a majority in principal amount of the notes then outstanding, and any existing Default under, or compliance with any provision of, the indenture may be waived (other than any continuing Default in the payment of the principal or interest on the notes) with the consent (which may include consents obtained in connection with a tender offer or exchange offer for notes) of the holders of a majority in principal amount of the notes then outstanding; provided that:

(a) no such amendment may, without the consent of the holders of two-thirds in aggregate principal amount of notes then outstanding, amend the obligation of the Issuer under the heading “— Change of Control” or the related definitions that could adversely affect the rights of any holder; and

(b) without the consent of each holder affected, the Issuer and the trustee may not:

(1) change the maturity of any note;

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

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

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

(5) modify or change any provision of the indenture or the related definitions to affect the ranking of the notes or any note guarantee in a manner that adversely affects the holders;

(6) reduce the percentage of holders necessary to consent to an amendment or waiver to the indenture or the notes;

(7) impair the rights of holders to receive payments of principal of or interest on the notes;

(8) release any Guarantor from any of its obligations under its note guarantee or the indenture, except as permitted by the indenture; or

(9) make any change in these amendment and waiver provisions.

Notwithstanding the foregoing, the Issuer and the trustee may amend the indenture, the note guarantees or the notes without the consent of any holder, to cure any ambiguity, defect or inconsistency, to provide for uncertificated notes in addition to or in place of certificated notes, to provide for the assumption of the Issuer’s obligations to the holders in the case of a merger or acquisition, to release any Guarantor from any of its obligations under its note guarantee or the indenture (to the extent permitted by the indenture), to make any change that does not materially adversely affect the rights of any holder or, in the case of the indenture, to maintain the qualification of the indenture under the Trust Indenture Act.

 

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NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS

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

CONCERNING THE TRUSTEE

Wells Fargo Bank, National Association is the trustee under the indenture and has been appointed by the Issuer as registrar and paying agent with regard to the notes. The indenture contains certain limitations on the rights of the trustee, should it become a creditor of the Issuer, to obtain payment of claims in certain cases, or to realize on certain assets received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest (as defined in the indenture), it must eliminate such conflict or resign.

The holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The indenture provides that, in case an Event of Default occurs and is not cured, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in similar circumstances in the conduct of his or her own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any holder, unless such holder shall have offered to the trustee security and indemnity satisfactory to the trustee.

GOVERNING LAW

The indenture, the notes and the note guarantees will be governed by, and construed in accordance with, the laws of the State of New York.

CERTAIN DEFINITIONS

Set forth below is a summary of certain of the defined terms used in the indenture. Reference is made to the indenture for the full definition of all such terms.

“Attributable Indebtedness”, when used with respect to any Sale and Leaseback Transaction, means, as at the time of determination, the present value (discounted at a rate equivalent to the Issuer’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of any Capitalized Lease included in any such Sale and Leaseback Transaction.

“Bankruptcy Event” means the commencement of any case under the Bankruptcy Code (Title 11 of the United States Code) or the commencement of any other bankruptcy, reorganization, receivership, or similar proceeding under any federal, state or foreign law or by or against any Person for whom the Issuer or a Restricted Subsidiary has executed a Springing Guarantee for the benefit of such Person; provided, however, that the filing of an involuntary case against such Person shall only be a Bankruptcy Event if: (i) such involuntary case is filed in whole or in part by the Issuer or a Restricted Subsidiary, any member in such Person which is an affiliate of the Issuer or a Restricted Subsidiary, or any other affiliate of the Issuer or a Restricted Subsidiary, or (ii) the Issuer or a Restricted Subsidiary, any member in such Person which is an affiliate of the Issuer or a Restricted Subsidiary, or any other affiliate of the Issuer or a Restricted Subsidiary shall in any way induce or participate in the filing, whether directly or indirectly, of an involuntary bankruptcy case against such Person or any other Person, and such involuntary case or proceeding is not dismissed with prejudice within 120 days of the filing thereof.

 

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“Capitalized Lease” means a lease required to be capitalized for financial reporting purposes in accordance with GAAP.

“Capitalized Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under a Capitalized Lease, and the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

“Change of Control” means the occurrence of any of the following events:

(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause that person or group shall be deemed to have “beneficial ownership” of all securities that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of voting stock representing more than 50% of the voting power of the total outstanding voting stock of the Issuer;

(2) during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors (together with any new directors whose election to such board of directors or whose nomination for election by the stockholders of the Issuer was approved by a vote of the majority of the directors of the Issuer then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of the Issuer;

(3) (a) all or substantially all of the assets of the Issuer and the Restricted Subsidiaries are sold or otherwise transferred to any person other than a Wholly Owned Restricted Subsidiary or one or more Permitted Holders or (b) the Issuer consolidates or merges with or into another person other than a Permitted Holder or any person other than a Permitted Holder consolidates or merges with or into the Issuer, in either case under this clause (3), in one transaction or a series of related transactions in which immediately after the consummation thereof persons owning voting stock representing in the aggregate 100% of the total voting power of the voting stock of the Issuer immediately prior to such consummation do not own voting stock representing a majority of the total voting power of the voting stock of the Issuer or the surviving or transferee person; or

(4) the Issuer shall adopt a plan of liquidation or dissolution or any such plan shall be approved by the stockholders of the Issuer.

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Decline.

“Consolidated Net Tangible Assets” means, as of any date, the total amount of assets which would be included on a combined balance sheet of the Restricted Subsidiaries (not including the Issuer) together with the total amount of assets that would be included on the Issuer’s balance sheet, not including its subsidiaries, under GAAP (less applicable reserves and other properly deductible items) after deducting therefrom:

(1) all short-term liabilities, except for liabilities payable by their terms more than one year from the date of determination (or renewable or extendible at the option of the obligor for a period ending more than one year after such date);

(2) investments in Subsidiaries that are not Restricted Subsidiaries; and

(3) all goodwill, trade names, trademarks, patents, unamortized debt discount, unamortized expense incurred in the issuance of debt and other intangible assets.

“Default” means (1) any Event of Default or (2) any event, act or condition that, after notice or the passage of time or both, would be an Event of Default.

 

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“Equity Interests” of any Person means (1) any and all shares or other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person.

“Financial Services Subsidiary” means a Subsidiary engaged exclusively in mortgage banking (including mortgage origination, loan servicing, mortgage brokerage and title and escrow businesses), master servicing and related activities, including, without limitation, a Subsidiary which facilitates the financing of mortgage loans and mortgage-backed securities and the securitization of mortgage-backed bonds and other activities ancillary thereto.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect on the Measurement Date.

“Guarantors” means each Restricted Subsidiary of the Issuer on the Issue Date, and each other Person that is required to become a Guarantor by the terms of the indenture after the Issue Date, in each case, until such Person is released from its note guarantee.

“Hedging Obligations” of any Person means the obligations of such Person pursuant to (1) any interest rate swap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect such Person against fluctuations in interest rates, (2) agreements or arrangements designed to protect such Person against fluctuations in foreign currency exchange rates in the conduct of its operations, or (3) any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person against fluctuations in commodity prices, in each case entered into in the ordinary course of business for bona fide hedging purposes and not for the purpose of speculation.

“Indebtedness” means:

(1) any liability of any Person:

(A) for borrowed money, or

(B) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any businesses, properties or assets of any kind (other than a trade payable or a current liability arising in the ordinary course of business), or

(C) for the payment of money relating to a Capitalized Lease Obligation, or

(D) for all Redeemable Capital Stock valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;

(2) any liability of others described in the preceding clause (1) that such Person has guaranteed or that is otherwise its legal liability; provided, however, that a Springing Guarantee shall not be deemed to be Indebtedness under this clause (2) until the earliest to occur of (a) the demand by a lender for payment under such Springing Guarantee, (b) the occurrence or failure to occur of any event, act or circumstance that, with or without the giving of notice and/or passage of time, entitles a lender to make a demand for payment thereunder or (c) a Bankruptcy Event;

(3) all Indebtedness referred to in (but not excluded from) clauses (1) and (2) above of other persons and all dividends of other Persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; and

 

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(4) any amendment, supplement, modification, deferral, renewal, extension or refunding or any liability of the types referred to in clauses (1), (2) and (3) above.

“Issue Date” means June 2, 2015.

“Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory or other), pledge, lease, easement, restriction, covenant, charge, security interest or other encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, and any lease in the nature thereof, any option or other agreement to sell, and any filing of, or agreement to give, any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction (other than cautionary filings in respect of operating leases).

“Moody’s” means Moody’s Investors Service, Inc., and its successors.

“Non-Recourse Land Financing” means any Indebtedness of the Issuer or any Restricted Subsidiary for which the holder of such Indebtedness has no recourse, directly or indirectly, to the Issuer or such Restricted Subsidiary for the principal of, premium, if any, and interest on such Indebtedness, and for which the Issuer or such Restricted Subsidiary is not, directly or indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such Indebtedness, except pursuant to mortgages, deeds of trust or other Liens or other recourse obligations or liabilities in respect of specific land or other real property interests of the Issuer or such Restricted Subsidiary; provided that recourse obligations or liabilities of the Issuer or such Restricted Subsidiary solely for indemnities, covenants (including, without limitation, performance, completion or similar covenants), or breach of any warranty, representation or covenant in respect of any Indebtedness, including liability by reason of any agreement by the Issuer or any Restricted Subsidiary to provide additional capital or maintain the financial condition of or otherwise support the credit of the Person incurring the Indebtedness, will not prevent Indebtedness from being classified as Non-Recourse Land Financing.

“Permitted Holders” means Steven J. Hilton, his wife and children, any corporation, limited liability company or partnership in which he has voting control and is the direct and beneficial owner of a majority of the Equity Interests and any trust for the benefit of him or his wife or children.

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

“Rating Agency” means each of (a) S&P and (b) Moody’s.

“Rating Category” means:

(1) with respect to S&P, any of the following categories: BB, B, CCC, CC, C and D (or equivalent successor categories); and

(2) with respect to Moody’s, any of the following categories: Ba, B, Caa, Ca, C and D (or equivalent successor categories).

In determining whether the rating of the notes has decreased by one or more gradations, gradations within Rating Categories (+ and – for S&P; or 1, 2 and 3 for Moody’s) will be taken into account (e.g., with respect to S&P a decline in rating from BB+ to BB, as well as from BB– to B+, will constitute a decrease of one gradation).

“Rating Date” means the date which is 90 days prior to the earlier of (1) a Change of Control and (2) public notice of the occurrence of a Change of Control or of the intention by the Issuer to effect a Change of Control.

“Rating Decline” means the decrease (as compared with the Rating Date) by one or more gradations within Rating Categories as well as between Rating Categories of the rating of the notes by a Rating Agency on, or

 

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within 120 days after, the earlier of the date of public notice of the occurrence of a Change of Control or of the intention by the Issuer to effect a Change of Control (which period will be extended for so long as the rating of the notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

“Redeemable Capital Stock” means any capital stock of the Issuer or any Subsidiary that, either by its terms, by the terms of any security into which it is convertible or exchangeable or otherwise, (1) is or upon the happening of an event or passage of time would be required to be redeemed on or prior to the final stated maturity of the notes or (2) is redeemable at the option of the holder thereof at any time prior to such final stated maturity or (3) is convertible into or exchangeable for debt securities at any time prior to such final stated maturity.

“Registration Rights Agreement” means the registration rights agreement dated as of the Issue Date among the Issuer, the Guarantors and the Initial Purchasers and any registration rights agreement related to Additional Notes entered into after the Issue Date.

“Restricted Subsidiary” means any Subsidiary of the Issuer, which is not: (i) a Financial Services Subsidiary or (ii) an Unrestricted Subsidiary.

“S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc., and its successors.

“Sale and Leaseback Transaction” means a sale or transfer made by the Issuer or a Restricted Subsidiary (except a sale or transfer made to the Issuer or another Restricted Subsidiary) of any property which is either (1) a manufacturing facility, office building or warehouse whose book value equals or exceeds 1% of Consolidated Net Tangible Assets as of the date of determination or (2) another property (not including a model home) which exceeds 5% of Consolidated Net Tangible Assets as of the date of determination, if such sale or transfer is made with the agreement, commitment or intention of leasing such property to the Issuer or a Restricted Subsidiary.

“Secured Debt” means any Indebtedness which is secured by (1) a Lien on any property of the Issuer or the property of any Restricted Subsidiary or (2) a Lien on shares of stock owned directly or indirectly by the Issuer or a Restricted Subsidiary in a corporation or on equity interests owned by the Issuer or a Restricted Subsidiary in a partnership or other entity not organized as a corporation or in the Issuer’s rights or the rights of a Restricted Subsidiary in respect of Indebtedness of a corporation, partnership or other entity in which the Issuer or a Restricted Subsidiary has an equity interest; provided that “Secured Debt” shall not include Non-Recourse Land Financing that consists exclusively of “land under development,” “land held for future development” or “improved lots and parcels,” as such categories of assets are determined in accordance with GAAP. The securing in the foregoing manner of any such Indebtedness which immediately prior thereto was not Secured Debt shall be deemed to be the creation of Secured Debt at the time security is given.

“Senior Indebtedness” means the principal of (and premium, if any, on) and interest on (including interest accruing after the occurrence of an Event of Default or after the filing of a petition initiating any proceeding pursuant to any bankruptcy law whether or not such interest is an allowable claim in any such proceeding) and other amounts due on or in connection with any Indebtedness of the Issuer, whether outstanding on the date hereof or hereafter created, incurred or assumed, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall not be senior in right of payment to the debt securities. Notwithstanding the foregoing, “Senior Indebtedness” shall not include (1) Indebtedness of the Issuer that is expressly subordinated in right of payment to any Senior Indebtedness of the Issuer, (2) Indebtedness of the Issuer that by operation of law is subordinate to any general unsecured obligations of the Issuer, (3) Indebtedness of the Issuer to any Subsidiary, (4) Indebtedness of the Issuer incurred in violation of the restrictions described under “Restrictions on Secured Debt” and “Restrictions on Sale and Leaseback Transactions,” (5) to the extent it might constitute Indebtedness, any liability for federal, state or local taxes or other taxes, owed or owing by the Issuer, and (6) to the extent it might constitute Indebtedness, trade account payables owed or owing by the Issuer or any of its Subsidiaries.

 

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“Significant Subsidiary” means (1) any Restricted Subsidiary that would be a “significant subsidiary” as defined in Regulation S-X promulgated pursuant to the Securities Act of 1933 as such regulation is in effect on the Issue Date and (2) any Restricted Subsidiary that, when aggregated with all other Restricted Subsidiaries that are not otherwise Significant Subsidiaries and as to which any event described in clause (7) or (8) under “Events of Default” has occurred and is continuing, would constitute a Significant Subsidiary under clause (1) of this definition.

“Springing Guarantee” means a guarantee by a Person which by its express terms does not become effective until the occurrence of a Bankruptcy Event.

“Subsidiary” means, with respect to any Person:

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

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

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

“Unrestricted Subsidiary” means a Subsidiary designated by the Issuer (evidenced by resolutions of the board of directors of the Issuer and an officer’s certificate, delivered to the trustee certifying compliance with this definition) as a Subsidiary resulting from any investment (including any guarantee of Indebtedness) made by the Issuer or any Restricted Subsidiary of the Issuer in joint ventures engaged in homebuilding, land acquisition or land development businesses and businesses that are reasonably related thereto or reasonable extensions thereof with unaffiliated third parties; provided that the aggregate amount of investments in all Unrestricted Subsidiaries shall not exceed (i) $20 million or (ii) such lesser amount as may be applicable to the corresponding investment limitation in any other capital markets Indebtedness (other than Non-Recourse Land Financing) of the Issuer or any of its Restricted Subsidiaries which is outstanding on the Issue Date (with the amount of each investment being calculated based upon the amount of investments made on or after the date such joint venture becomes a Subsidiary) (the “Investment Basket”); provided, further that if the Issuer subsequently designates a Subsidiary, which previously had been designated an Unrestricted Subsidiary, to be a Restricted Subsidiary (evidenced by resolutions of the board of directors of the Issuer and an officers’ certificate, delivered to the trustee certifying compliance with this definition) and causes such Subsidiary to comply with provisions set forth under the covenant “Guarantees — Additional Guarantees”, then the amount of any investments in such Unrestricted Subsidiary made on or after the date such joint venture became a Subsidiary shall be credited against the Investment Basket (up to a maximum amount of (i) $20 million or (ii) such lesser amount as may be applicable to the corresponding investment limitation in any other capital markets Indebtedness (other than Non-Recourse Land Financing) of the Issuer or any of its Restricted Subsidiaries which is outstanding on the Issue Date). As of the Issue Date, Buckeye Land, L.L.C., Arcadia Ranch L.L.C. and Sundance Buckeye, LLC are designated as Unrestricted Subsidiaries.

“Wholly Owned Restricted Subsidiary” means a Restricted Subsidiary of which 100% of the Equity Interests (except for directors’ qualifying shares or certain minority interests owned by other Persons solely due to local law requirements that there be more than one stockholder, but which interest is not in excess of what is required for such purpose) are owned directly by the Issuer or through one or more Wholly Owned Restricted Subsidiaries.

 

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THE EXCHANGE OFFER

Purposes and Effects

We issued the outstanding notes on June 2, 2015 to the initial purchasers, who resold the outstanding notes to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and certain non-U.S. persons in accordance with Regulation S of the Securities Act. In connection with the sale of the outstanding notes, we and the initial purchasers entered into the registration rights agreement pursuant to which we agreed to file with the SEC a registration statement with respect to an offer to exchange the outstanding notes with the exchange notes within 120 days after the outstanding notes were issued. In addition, we agreed to use our reasonable best efforts to cause the registration statement to become effective under the Securities Act within 180 days after the outstanding notes were issued and to issue the exchange notes pursuant to the exchange offer. A copy of the registration rights agreement has been filed as an exhibit to the registration statement of which this prospectus is a part.

The exchange offer is being made pursuant to the registration rights agreement. Holders of outstanding notes who do not tender their outstanding notes or whose outstanding notes are tendered but not accepted would have to rely on exemptions from registration requirements under the securities laws, including the Securities Act, if they wish to sell their outstanding notes.

Based on interpretations by the staff of the SEC set forth in no-action letters issued to persons unrelated to us, we believe the exchange notes issued pursuant to the exchange offer in exchange for outstanding notes may be offered for sale, sold and otherwise transferred by any holder (other than a person that is an “affiliate” of ours within the meaning of Rule 405 under the Securities Act and except as set forth in the next paragraph) without registration or the delivery of a prospectus under the Securities Act, provided the holder acquires the exchange notes in the ordinary course of the holder’s business and the holder is not participating and does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the exchange notes.

If a person were to participate in the exchange offer for the purpose of distributing securities in a manner not permitted by the SEC’s interpretation, (1) the position of the staff of the SEC enunciated in the no-action letters would not be applicable to the person and (2) the person would be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with a sale of the exchange notes with any such resale transaction effected by it covered by an effective registration statement containing the selling securityholder information required by Item 507 or 508 of the SEC’s Regulation S-K.

Each broker-dealer that receives exchange notes for its own account in exchange for outstanding notes which the broker-dealer acquired as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any sale of those exchange notes.

The exchange offer is not being made to, nor will we accept surrenders for exchange from, holders of exchange notes with addresses in any jurisdiction in which the exchange offer or the issuance of exchange notes pursuant to it would violate applicable securities or blue sky laws. Prior to the exchange offer, however, we will register or qualify, or cooperate with the holders of the outstanding notes and their respective counsel in connection with the registration or qualification of, the exchange notes for offer and sale under the securities or blue sky laws of such jurisdictions as are necessary to permit consummation of the exchange offer and do anything else which is necessary or advisable to enable the offer and issuance of the exchange notes in those jurisdictions.

Terms of the Exchange Offer

Upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, promptly following expiration of the exchange offer, we will issue exchange notes in exchange for all outstanding notes which are validly tendered prior to 5:00 p.m., New York City time, on the expiration date (as

 

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defined below) and not withdrawn. The principal amount of the exchange notes issued in the exchange will be the same as the principal amount of the outstanding notes for which they are exchanged. Holders may tender some or all of their outstanding notes in response to the exchange offer.

However, outstanding notes may be tendered only in denominations of $2,000 and integral multiples of $1,000 in excess thereof. See “Description of the Exchange Notes.”

The form and terms of the exchange notes will be the same in all material respects as the form and terms of the outstanding notes, except that (1) the exchange notes will be registered under the Securities Act and hence will not bear legends regarding restrictions on transfer and (2) because the exchange notes will be registered, holders of exchange notes will not be, and upon the consummation of the exchange offer, except under limited circumstances, holders of outstanding notes will no longer be, entitled to rights under the registration rights agreement intended for holders of unregistered securities.

Outstanding notes which are not tendered for exchange or are tendered but not accepted in the exchange offer will remain outstanding and be entitled to the benefits of the indenture, but will not be entitled to any registration rights under the registration rights agreement.

We will be deemed to accept all the outstanding notes which are validly tendered and not withdrawn when we give oral or written notice to that effect to the exchange agent. The exchange agent will act as agent for the tendering holders for the purpose of receiving exchange notes from us.

If any tendered outstanding notes are not accepted for exchange because of an invalid tender or otherwise, those outstanding notes will be returned, without expense, to the tendering holder promptly after the expiration date.

Holders who tender outstanding notes in response to the exchange offer will not be required to pay brokerage commissions or fees or, except as described in the instructions in the letter of transmittal, transfer taxes. We will pay all charges and expenses, other than certain taxes described below, in connection with the exchange offer. See “— Fees and Expenses.”

Expiration Date; Extension; Termination; Amendments

The exchange offer will expire at 5:00 p.m., New York City time, on                     , 2015, the “expiration date” unless we extend it by notice to the exchange agent. The expiration date will be at least 20 business days after commencement of the exchange offer in accordance with Rule 14e-1(a) under the Exchange Act. We reserve the right to extend the exchange offer at our discretion. If we extend the exchange offer, the term “expiration date” will mean the time and date on which the exchange offer as extended will expire. We will notify the exchange agent of any extension by oral or written notice and will make a public announcement of any extension, not later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date. We may terminate the exchange offer by written notice to the exchange agent if any of the conditions described below under “— Conditions of the Exchange Offer” is not satisfied. If the exchange offer is amended in a manner that we determine to constitute a material change, including the waiver of a material condition, we will promptly disclose the amendment in a prospectus supplement that will be distributed to the registered holders and we will extend the offer period if necessary so that at least five business days remain in the offer following notice of the material change.

Interest on Exchange Notes

The exchange notes will bear interest at 6.00% per year from and including June 2, 2015. Interest on the exchange notes will be payable twice a year, on June 1 and December 1, beginning December 1, 2015. In order to avoid duplicative payment of interest, all interest accrued on outstanding notes that are accepted for exchange before December 1, 2015 will be superseded by the interest that is deemed to have accrued on the exchange notes from June 2, 2015 through the date of exchange.

 

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Termination of Certain Rights

The registration rights agreement provides that, with certain exceptions, if: (1) the exchange offer registration statement has not been filed with the SEC on or prior to the 120^th calendar day following the date of original issue of the outstanding notes; (2) the exchange offer registration statement has not been declared effective on or prior to the 180^th calendar day following the date of original issue of the outstanding notes, or (3) the exchange offer is not consummated on or prior to the 240^th day following the date of original issue of the outstanding notes (each event referred to in clauses (1) through (3) above being a “registration default”), the interest rate borne by the outstanding notes will be increased by 0.25% per annum upon the occurrence of a registration default. This rate will continue to increase by 0.25% each 90 day period that the liquidated damages (as defined below) continue to accrue under any such circumstance. However, the maximum total increase in the interest rate will in no event exceed one percent (1.0%) per year. We refer to this increase in the interest rate on the notes as “liquidated damages.” Such interest is payable in addition to any other interest payable from time to time with respect to the outstanding notes and the exchange notes in cash on each interest payment date to the holders of record for such interest payment date. After the cure of registration defaults, the accrual of liquidated damages will stop and the interest rate will revert to the original rate.

Holders of exchange notes will not be and, upon consummation of the exchange offer, holders of outstanding notes will no longer be, entitled to rights under the registration rights agreement intended for holders of outstanding notes which are restricted as to transferability, except as otherwise provided in the registration rights agreement. The exchange offer will be deemed consummated when we deliver to the exchange agent exchange notes in the same aggregate principal amount as that of the outstanding notes which are validly tendered and not withdrawn.

In the event that:

 

•

any changes in law or the applicable interpretations of the SEC do not permit us to effect the exchange offer;

 

•

the exchange offer is not consummated within 240 days after the original issue date of the outstanding notes;

 

•

any holder notifies us that it is prohibited by law or applicable interpretations of the SEC from participating in the exchange offer;

 

•

in the case of any holder that participates in the exchange offer, such holder does not receive freely transferable notes on the date of the exchange (other than due solely to the status of such holder as an affiliate of the Issuer);

 

•

the initial purchasers of the outstanding notes so requests with respect to notes that have, or are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution; or

 

•

or any holder of notes that is not entitled to participate in the exchange offer so requests

then, the Issuer and the Guarantors shall as promptly as practicable, but in no event later than 45 days after the occurrence of any of the above shelf registration statement triggering events, file with the SEC a shelf registration statement covering resales of the outstanding notes by holders who satisfy certain conditions relating to the provision of information in connection with the shelf registration statement.

Procedures for Tendering

All of the outstanding notes were issued in book-entry form, and all of the outstanding notes are currently represented by global certificates held for the account of DTC. We have confirmed with DTC that the outstanding notes may be tendered using ATOP. The exchange agent will establish an account with DTC for purposes of the exchange offer promptly after the commencement of the exchange offer, and DTC participants may electronically transmit their acceptance of the exchange offer by causing DTC to transfer their outstanding

 

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notes to the exchange agent via ATOP. In connection with the transfer, DTC will send an “agent’s message” to the exchange agent as well as a book-entry confirmation of the transfer of the tendered outstanding notes into the exchange agent’s account at DTC. The agent’s message will state that DTC has received instructions from the participant to tender outstanding notes and that the participant agrees to be bound by the terms of the letter of transmittal. By using the ATOP procedures described above, you will not be required to deliver a letter of transmittal to the exchange agent. You will, however, be bound by the letter of transmittal’s terms just as if you had signed it. The agent’s message must be received by the exchange agent at or prior to the expiration of the exchange offer; compliance with ATOP or other applicable DTC procedures does not itself constitute delivery to the exchange agent.

A tender of outstanding notes by a holder will constitute an agreement by the holder to transfer the outstanding notes to us in exchange for exchange notes on the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal.

If you are the beneficial owner of outstanding notes that are registered in the name of a broker-dealer, commercial bank, trust company, or other nominee and you wish to tender, you should contact the registered holder promptly and instruct such holder on your behalf.

All questions as to the validity, form, eligibility (including time of receipt) and acceptance and withdrawal of tendered outstanding notes will be determined by us in our sole discretion, and that determination will be final and binding. We reserve the right to reject any outstanding notes which are not properly tendered or the acceptance of which we believe might be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular outstanding notes, without being required to waive the same defects, irregularities or conditions as to other outstanding notes. Our interpretation of the terms and conditions of the exchange offer (including the instructions in the letter of transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of outstanding notes must be cured by the expiration date, or by such later time as we may determine. Although we intend to request the exchange agent to notify holders of defects or irregularities with respect to tenders of outstanding notes, neither we, the exchange agent nor any other person will incur any liability for failure to give such notification. Tenders of outstanding notes will not be deemed to have been made until all defects and irregularities have been cured or waived. Any outstanding notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the exchange agent to the tendering holders, unless otherwise provided in the letter of transmittal, promptly following the expiration date.

We have the right (subject to limitations contained in the indenture) (1) to purchase or make offers for any outstanding notes that remain outstanding after the expiration date and (2) to the extent permitted by applicable law, to purchase outstanding notes in privately negotiated transactions or otherwise. The terms of any such purchases or offers could differ from the terms of the exchange offer.

By tendering, a holder will be representing to us, among other things, that: (1) it or the person who will acquire the exchange notes being issued as a result of the exchange offer (whether or not that is the holder) will be acquiring them in the ordinary course of that person’s business, (2) neither the holder nor any such other person has an arrangement or understanding with any person to participate in a distribution of the exchange notes, (3) it is not a broker-dealer that owns outstanding notes acquired directly from us or an affiliate of ours, (4) it is not an “affiliate” of the company (as defined in Rule 405 under the Securities Act) or any of the guarantors, and (5) it is not acting on behalf of any other person who could not truthfully make the representation described in this paragraph. In addition, if the holder is a broker-dealer that will receive exchange notes for its own account in exchange for outstanding notes that were acquired as result of market-making activities or other trading activities, the holder will, by tendering, acknowledge that it will comply with the prospectus delivery requirements of the Securities Act in connection with any resale of those exchange notes.

 

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Conditions of the Exchange Offer

Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or exchange securities for, any outstanding notes, if:

(a) any action or proceeding is instituted or threatened in any court or by or before any governmental agency which might materially impair our or the guarantors’ ability to proceed with the exchange offer or any material adverse development has occurred in any existing action or proceeding with respect to us or any of the guarantors that would impair our or their ability to proceed;

(b) the exchange offer would violate any law or interpretation by the staff of the SEC; or

(c) any governmental approval has not been obtained, which approval we deem necessary for the consummation of the exchange offer.

If any of the conditions are not satisfied, we may (1) refuse to accept any outstanding notes and return all tendered outstanding notes to the tendering holders, (2) extend the exchange offer and retain all outstanding notes tendered prior to the expiration of the exchange offer, subject, however, to the rights of holders to withdraw such outstanding notes (see “— Withdrawal of Tenders”), (3) waive such unsatisfied conditions with respect to the exchange offer and accept all properly tendered outstanding notes which have not been withdrawn, (4) terminate the exchange offer, or (5) amend the exchange offer.

Guaranteed Delivery Procedures

Holders who wish to tender their outstanding notes but cannot complete the procedure for book-entry transfer prior to the expiration of the exchange offer may effect a tender if:

(a) The tender is made through an eligible institution;

(b) Prior to the expiration date, the exchange agent receives from the eligible institution a properly completed and duly executed notice of guaranteed delivery (by facsimile transmission, mail or hand) setting forth the name and address of the eligible holder and the principal amount of outstanding notes tendered, stating that the tender is being made by that notice of guaranteed delivery, and guaranteeing that, within three New York Stock Exchange trading days after the expiration date, confirmation of a book-entry transfer into the exchange agent’s account at DTC and an agent’s message will be delivered to the exchange agent; and

(c) Confirmation of a book-entry transfer into the exchange agent’s account at DTC and an agent’s message is received by the exchange agent within three New York Stock Exchange trading days after the expiration date.

Upon the request to the exchange agent, a form of notice of guaranteed delivery will be sent to holders who wish to use the guaranteed delivery procedures described above.

Withdrawal of Tenders

Except as otherwise described below, tenders of outstanding notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration date. For a withdrawal to be effective, you must comply with the appropriate procedures of the ATOP system. Any notice of withdrawal must (1) specify the name of the person who deposited the outstanding notes to be withdrawn, (2) identify the outstanding notes to be withdrawn (including the principal amounts of the outstanding notes), (3) specify the name in which the withdrawn outstanding notes are to be registered, if different from that of the depositor, and (4) otherwise comply with the requirements of DTC and ATOP. All questions as to the validity, form and eligibility (including time of receipt) of withdrawal notices will be determined by us in our sole discretion, and that determination will be final and binding on all parties. Any outstanding notes which are withdrawn will be deemed not to have been validly tendered for purposes of the exchange offer, and no exchange notes will be issued with respect to those outstanding notes unless they are validly re-tendered. Any outstanding notes which have been tendered but which

 

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are not accepted for exchange or which are withdrawn will be returned to the holder without cost to the holder promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn outstanding notes may be re-tendered at any time prior to the expiration date in accordance with the procedures described above under “— Procedures for Tendering.”

Fees and Expenses

We will bear the expenses of soliciting tenders pursuant to the exchange offer. The principal solicitation of tenders is being made by mail. However, solicitations also may be made by telecopy, telephone or in person by officers and regular employees of ours and our affiliates.

We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to brokers, dealers or others for soliciting acceptances of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and reimburse it for its reasonable out-of-pocket expenses in connection with the exchange offer. We may also reimburse brokerage houses and other custodians, nominees and fiduciaries for the reasonable out-of-pocket expenses they incur in forwarding copies of this prospectus, letters of transmittal and related documents to the beneficial owners of the outstanding notes and in handling or forwarding tenders for exchange. We will pay the other expenses incurred in connection with the exchange offer, including fees and expenses of the trustee, accounting and legal fees and printing costs.

We will pay all transfer taxes, if any, applicable to the exchange of outstanding notes for exchange notes pursuant to the exchange offer. If, however, exchange notes or outstanding notes for principal amounts which are not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, a person other than the registered holder of the outstanding notes tendered, or if tendered outstanding notes are registered in the name of a person other than the person who agrees to be bound by the letter of transmittal, or if a transfer tax is imposed for any other reason, other than the exchange of outstanding notes for exchange notes pursuant to the exchange offer, the tendering holder must pay the transfer taxes (whether imposed on the registered holder or any other person). Unless satisfactory evidence of payment of transfer taxes or exemption from the need to pay them is submitted with the letter of transmittal, the amount of the transfer taxes will be billed directly to the tendering holder. We may refuse to issue exchange notes in exchange for outstanding notes, or to return outstanding notes which are not exchanged, until we receive evidence satisfactory to us that any transfer taxes payable by the holder have been paid.

Consequences of Failure to Exchange Outstanding Notes

If a holder does not exchange outstanding notes for exchange notes in response to the exchange offer, the outstanding notes will continue to be subject to the restrictions on transfer described in the legend on the certificate evidencing the outstanding notes, and will not have the benefit of any agreement by us to register outstanding notes under the Securities Act. In general, notes may not be offered or sold, unless the sale is registered under the Securities Act, or unless the offer and sale are exempt from, or not subject to, the Securities Act or any applicable state securities laws.

Participation in the exchange offer is voluntary and holders should carefully consider whether to accept the exchange offer and tender their outstanding notes. Holders of outstanding notes are urged to consult their financial and tax advisors in making their own decisions on what action to take.

Accounting Treatment

The exchange notes will be recorded in our accounting records at the same carrying value as the outstanding notes on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes as a result of the exchange offer. We will amortize the expenses of the exchange offer over the term of the exchange notes.

 

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Exchange Agent

Wells Fargo Bank, National Association has been appointed as exchange agent for the exchange offer. All correspondence in connection with the exchange offer should be addressed to the exchange agent, as follows:

 

By Registered or Certified Mail:		By Regular Mail or Overnight Courier
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480   In Person by Hand Only:   WELLS FARGO BANK, N.A. 12th Floor – Northstar East Building Corporate Trust Operations 608 Second Avenue South Minneapolis, MN 55479		WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479   By Facsimile:   (For Eligible Institutions Only): Fax (612) 667-6282 Attn: Bondholder Communications
For Information or Confirmation by Telephone: (800) 344-5128, Option 0 Attn: Bondholder Communications

Requests for additional copies of this prospectus or the letter of transmittal or accompanying documents should be directed to the exchange agent.

 

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UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS

The following discussion describes material United States federal income tax consequences to you associated with (1) the exchange offer and (2) the ownership and disposition of exchange notes. This summary is based on the Internal Revenue Code of 1986, as amended (the “Code”), legislative history, administrative pronouncements and practices of the IRS, judicial decisions and final, temporary and proposed Treasury regulations, all as of the date hereof. Future changes, legislation, Treasury regulations, administrative interpretations and practices and court decisions may adversely affect, perhaps retroactively, the tax consequences contained in this discussion. We have not sought any ruling from the IRS, nor have we sought an opinion from counsel with respect to the statements made and the conclusions reached in the following discussion. There can be no assurance that the IRS will agree with these statements and conclusions, nor is there any assurance that such statements and conclusions will be sustained by a court if challenged by the IRS.

This discussion assumes, that the notes are held (and the exchange notes will be held) as capital assets within the meaning of section 1221 of the Code. This discussion does not address all the tax consequences that may be relevant to you in light of your particular circumstances. State, local and non-U.S. income tax laws may differ substantially from the corresponding United States federal income tax laws, and this discussion does not purport to describe any aspect of the tax laws of any state, local or non-U.S. jurisdiction. Additionally, this discussion also does not address any aspects of United States federal tax law other than income tax law, such as estate or gift tax laws. Further, this summary does not address the tax consequences relevant to persons who receive special treatment under the United States federal income tax laws including, without limitation:

 

•

banks, thrifts, and other financial institutions;

 

•

insurance companies;

 

•

tax-exempt entities;

 

•

regulated investment companies and real estate investment trusts;

 

•

U.S. expatriates;

 

•

non-U.S. trusts and estates with U.S. beneficiaries;

 

•

dealers in securities or currencies;

 

•

traders in securities that elect to use a mark-to-market method of accounting;

 

•

persons holding notes as a hedge against currency risks or as a position in a straddle;

 

•

persons subject to alternative minimum tax;

 

•

U.S. holders (as defined below) that hold their notes through non-U.S. brokers or other non-U.S. intermediaries; and

 

•

U.S. holders whose functional currency is not the United States dollar.

United States tax federal income treatment with respect to a note held by an entity that is classified as a partnership for United States federal income tax purposes will depend on the activities of the entity and the status of the members or partners of the entity. Members or partners of an entity classified as a partnership for United States federal income tax purposes should consult their own tax advisor regarding the United States federal income tax consequences to them associated with the exchange offer as well as the ownership and disposition by such entity of the exchange notes.

PROSPECTIVE PURCHASERS OF NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS BASED ON THEIR PARTICULAR CIRCUMSTANCES WITH RESPECT TO THE UNITED STATES FEDERAL, STATE, LOCAL, NON-U.S. AND OTHER TAX CONSEQUENCES TO THEM OF THE EXCHANGE OFFER AS WELL AS THE OWNERSHIP AND DISPOSITION OF EXCHANGE NOTES.

 

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HOLDERS OF EXCHANGE NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE UNITED STATES FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATION AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.

As used in this section, the term “U.S. holder” means the beneficial owner of a note or an exchange note, as applicable, that is, for United States federal income tax purposes:

 

•

an individual who is a citizen or resident of the United States;

 

•

a corporation, including an entity treated as a corporation, created or organized in or under the laws of the United States or any state thereof or the District of Columbia;

 

•

an estate the income of which is subject to United States federal income taxation regardless of its source; or

 

•

a trust whose administration is subject to the primary supervision of a United States court and which has one or more United States persons who have the authority to control all substantial decisions of such trust, or that has made a valid election to be treated as a United States person.

As used in this section, the term “non-U.S. holder” means the beneficial owner of a note or an exchange note, as applicable, that is, for United States federal income tax purposes, an individual, corporation, estate or trust and is not a U.S. holder.

Exchange Offer

An exchange of outstanding notes for exchange notes pursuant to the exchange offer will not constitute a significant modification of the terms of the notes and therefore will not constitute a taxable exchange or other taxable event for United States federal income tax purposes. Accordingly, there will be no United States federal income tax consequences to holders who exchange their outstanding notes for exchange notes in connection with the exchange offer and any such holder will have the same adjusted tax basis and holding period in the exchange notes as such holder had in the outstanding notes immediately before the exchange.

Effect of Certain Contingent Payments

In certain circumstances, we may be obligated to pay amounts in excess of the stated interest or principal on the exchange notes. The obligation to make such payments may implicate the provisions of Treasury regulations relating to “contingent payment debt instruments.” Under applicable Treasury regulations, the possibility that such an amount will be paid will not affect the amount, timing or character of income recognized by a holder with respect to the notes if, as of the date the notes were issued, there is only a remote chance that any such amount will be paid, such amounts (in the aggregate) are incidental, or certain other exceptions apply. We intend to take the position that the contingencies associated with the exchange notes should not cause the exchange notes to be subject to the contingent payment debt instrument rules. Our determination is binding on a holder unless such holder discloses its contrary position in the manner required by applicable Treasury regulations. Our determination is not, however, binding on the IRS, and if the IRS were to successfully challenge this determination, a holder subject to U.S. federal income taxation might be required to accrue interest income at a higher rate than the stated interest rate on the exchange notes, and to treat as ordinary income (rather than capital gain) any gain realized on the taxable disposition of an exchange note. The remainder of this discussion assumes that the exchange notes will not be treated as contingent payment debt instruments. Investors should consult their own tax advisor about this issue.

 

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U.S. Holders — Ownership and Disposition of Notes

Stated Interest

A U.S. holder generally will include in gross income payments of stated interest received or accrued on an exchange note in accordance with the U.S. holder’s regular method of accounting for U.S. federal income tax purposes as ordinary interest income.

Sale or Exchange of Exchange Notes

A U.S. holder generally will recognize gain or loss upon the sale or exchange (including a retirement or redemption) of an exchange note equal to the difference, if any, between the amount realized upon such sale or exchange (excluding any amounts attributable to accrued but unpaid stated interest, which will be taxed as ordinary interest income to the extent not previously so taxed) and the U.S. holder’s adjusted tax basis in the exchange note. A U.S. holder’s adjusted tax basis of an exchange note is generally equal to the cost it paid for such exchange note. Generally, any gain or loss recognized upon a sale or exchange of an exchange note by a U.S. holder will be capital gain or loss. Any capital gain or loss will be long-term capital gain or loss if the U.S. holder’s holding period for the exchange notes is more than one year at the time of the sale or exchange. For non-corporate U.S. holders, long-term capital gains may be subject to reduced rates of taxation when compared to the rates of taxation applicable to ordinary income. The deductibility of capital losses is subject to certain limitations.

Additional Medicare Surtax

In addition to the U.S. federal income tax imposed on interest income and capital gain (discussed above) certain individuals, estates and trusts whose income exceeds an applicable threshold generally are required to pay a 3.8% Medicare surtax on “net investment income.” For these purposes, “net investment income” includes, among other things, interest income and gain from the sale or other disposition in respect of securities like the exchange notes.

Backup Withholding and Information Reporting

We will, where required, report to the U.S. holders of exchange notes and the IRS the amount of any stated interest paid on the exchange notes as well as proceeds from the disposition (including retirement or redemption) of exchange notes in each calendar year and the amounts of tax withheld, if any, from those payments. A U.S. holder of an exchange note may be subject to backup withholding with respect to payments made on the exchange notes as well as proceeds from the disposition of exchange notes unless the holder:

 

•

is a corporation or comes within other exempt categories and, when required, demonstrates this fact; or

 

•

provides a taxpayer identification number, certifies that it is not subject to backup withholding, and otherwise complies with applicable requirements of the backup withholding rules.

Each U.S. holder may provide such U.S. holder’s correct taxpayer identification number and certify that such U.S. holder is not subject to backup withholding by completing and submitting IRS Form W-9 or its substitute form. A U.S. holder of exchange notes who does not provide the payor with his or her correct taxpayer identification number may be subject to penalties imposed by the IRS.

Amounts withheld and remitted to the IRS pursuant to the backup withholding rules do not constitute an additional tax and will be credited against the U.S. holder’s United States federal income tax liabilities, so long as the required information is timely provided to the IRS. If backup withholding results in an overpayment of tax for a particular U.S. holder, then such U.S. holder may be entitled to a refund so long as the required information is timely provided to the IRS.

 

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Non-U.S. Holders — Ownership and Disposition of Notes

Stated Interest

Subject to the discussions of backup withholding and FATCA below, interest received or accrued on the exchange notes by a non-U.S. holder will not be subject to United States federal income taxes or withholding tax if such interest is not effectively connected with the conduct of a trade or business within the United States by such non-U.S. holder and such non-U.S. holder:

 

•

does not actually or constructively own 10% or more of the total combined voting power of our outstanding stock;

 

•

is not controlled foreign corporation related to us;

 

•

is not a bank receiving interest described in Section 881(c)(3)(A) of the Code; and

 

•

appropriately certifies as to its foreign status.

A non-U.S. holder can generally meet this certification requirement by providing a properly executed IRS Form W-8BEN or W-8BEN-E, as applicable, or appropriate substitute form to us or the applicable withholding agent.

If a non-U.S. holder does not qualify for an exemption from withholding under these rules, then interest income will be subject to withholding tax at the rate of 30% at the time such amount is paid, unless the holder provides us with either (i) a properly executed IRS Form W-8BEN or W-8BEN-E, as applicable (or similar form), claiming an exemption from or reduction in withholding under the benefit of an applicable tax treaty, or (ii) a properly executed IRS Form W-8ECI (or similar form) stating that interest paid on the exchange note is not subject to withholding tax because it is effectively connected with such holder’s United States trade or business.

If a non-U.S. holder is engaged in a trade or business in the United States and interest on an exchange note is effectively connected with the conduct of that trade or business, such holder will be subject to United States federal income tax on a net income basis generally in the same manner as a U.S. holder, unless an applicable income tax treaty provides otherwise. In addition, if such non-U.S. holder is a foreign corporation, it generally will be subject to a 30% (or a lower applicable treaty rate) branch profits tax on its effectively connected earnings and profits.

Sales or Exchanges of Exchange Notes

Subject to the discussions of backup withholding and FATCA below, a non-U.S. holder generally will not be subject to United States federal income tax on any amount which constitutes capital gain upon the sale or exchange (including retirement or redemption) of an exchange note, unless either of the following is true:

 

•

The holder’s gain on the sale or exchange of the exchange notes is effectively connected with a United States trade or business; or

 

•

The holder is an individual who is present in the United States for 183 or more days in the taxable year within which the sale or exchange takes place and certain other requirements are met.

Any gain recognized by a non-U.S. holder described in the first bullet point above would be subject to United States federal income tax on a net basis in generally the same manner as a U.S. holder, unless an applicable income tax treaty provides otherwise. In addition, if such non-U.S. holder is a foreign corporation, it generally will be subject to a 30% (or a lower applicable treaty rate) branch profits tax on its effectively connected earnings and profits (subject to adjustments). A non-U.S. holder described in the second bullet point will generally be subject to a flat 30% (or lower applicable treaty rate) tax on any gain derived from that sale or exchange, which gain may be offset by U.S. source capital losses of such non-U.S. holder, if any.

 

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Backup Withholding and Information Reporting

Under current law, backup withholding and information reporting will generally be required with respect to interest on exchange notes paid to non-U.S. holders unless the beneficial owner of the exchange note certifies its non-U.S. status by providing a statement described above in “Non-U.S. holders — Taxation of Interest” ( e.g., IRS Form W-8BEN or W-8BEN-E) or the non-U.S. holder is an exempt recipient and, in each case, the payor does not have actual knowledge or reason to know that the beneficial owner is a United States person.

Information reporting requirements and, depending on the circumstances, backup withholding will apply to any payment of the proceeds of the sale (including a retirement or redemption) of an exchange note effected within the United States or conducted through certain U.S. related financial intermediaries, unless the beneficial owner certifies that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that the beneficial owner is a U.S. person as defined in the Code), or the beneficial owner otherwise establishes its right to an exemption.

If you are a non-U.S. holder of exchange notes, you should consult your tax advisor regarding the application of information reporting and backup withholding in your particular situation, the availability of an exemption therefrom, and the procedure for obtaining the exemption, if available. Any amounts withheld from payments to you under the backup withholding rules do not constitute an additional tax and will be allowed as a refund or a credit against your United States federal income tax liability, provided that the required information is timely furnished to the IRS.

The Foreign Account Tax Compliance Act (“FATCA”)

Under FATCA, certain foreign entities and foreign financial institutions ( e.g., foreign entities acting as intermediaries for investors, most hedge funds, private equity funds, mutual funds, securitization vehicles and any other investment vehicles regardless of size) (collectively “foreign payees”) must comply with information reporting rules with respect to their U.S. account holders and investors. These information reporting rules require foreign payees to provide extensive information to the IRS regarding all U.S. persons who have accounts in (or in some instances, who own debt or equity interest in) such foreign payees and in certain cases enter into an agreement with the IRS. Failure of such foreign payees to comply with these information reporting rules will result in a U.S. Federal withholding tax on U.S. source payments made to such foreign payees.

A foreign payee that does not comply with the FATCA reporting requirements generally will be subject to a 30% withholding tax with respect to any “withholdable payments” made after certain applicable dates. For this purpose, “withholdable payments” includes, by way of example only, current and future payments of interest and payments of gross proceeds arising from the sale (including a retirement or redemption) of securities, such as the exchange notes for a sale occurring after December 31, 2016. This withholding tax generally applies to withholdable payments to noncompliant foreign payees even if such payments would not have been subject to the withholding tax rules otherwise applicable to certain payments to Non-U.S. holders.

Holders of the exchange notes are urged to consult with their own tax advisors regarding the effect, if any, of the FATCA provisions to them based on their particular circumstances.

Exchange Offer

Pursuant to the exchange offer, the outstanding notes may be exchanged for exchange notes which will be identical in all respects to the notes except that they will have been registered under the Securities Act. The exchange of outstanding notes for exchange notes will be treated as a “non-event” for United States federal income tax purposes because the exchange notes will not be considered to differ materially in kind or extent from the outstanding notes. A holder of outstanding notes will have the same basis and holding period in the exchange notes that it had in the outstanding notes immediately prior to the exchange.

 

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PLAN OF DISTRIBUTION

Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. The prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with sales of exchange notes received in exchange for outstanding notes which were acquired as a result of market-making activities or other trading activities. We have agreed that, starting on the expiration date and ending on the close of business on the date that is 180 days after the expiration date, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.

We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of those methods of resale, at prices which may or may not be based upon market prices prevailing at the time of the sale. Any such sale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from the selling broker-dealer and/or the purchasers of the exchange notes. Any broker-dealer that sells exchange notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such exchange notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit from sale of the exchange notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation. The letter of transmittal states that a broker-dealer will not, by delivering a prospectus, be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

We have agreed to pay all expenses incident to the exchange offer other than commissions or concessions of any brokers or dealers and will indemnify the holders of the outstanding notes and the exchange notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

 

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LEGAL MATTERS

The validity of the exchange notes and the related guarantees has been passed upon for Meritage by Snell & Wilmer L.L.P., Phoenix, Arizona.

EXPERTS

The consolidated financial statements incorporated in this prospectus by reference from Meritage Homes Corporation’s Annual Report on Form 10-K for the year ended December 31, 2014 and the effectiveness of Meritage Homes Corporation’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.

The audited financial statements of MTH Mortgage, LLC as of and for the year ended December 31, 2012, including the report of Grant Thornton, LLP, independent certified public accountants, filed pursuant to Rule 3-09 of Regulation S-X, are incorporated by reference herein. Such financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

The audited financial statements of BK Residential Construction, LLC as of and for the year ended December 31, 2013, including the report of Frazier & Deeter, LLC, an independent registered public accounting firm, filed pursuant to Rule 3-10(g) of Regulation S-X, are incorporated by reference herein. Such financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

AVAILABLE INFORMATION

Meritage and the Guarantors have filed with the SEC a registration statement on Form S-4 (together with all amendments and exhibits thereto, the “registration statement”) under the Securities Act for the registration of the exchange notes offered hereby. As permitted by the rules and regulations of the SEC, this prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules thereto. For further information with respect to Meritage, the Guarantors and the exchange notes offered hereby, reference is made to the registration statement and to the exhibits and schedules filed therewith. Statements contained in this prospectus concerning the contents of any contract or other document are not necessarily complete. With respect to each such contract or other document filed with the SEC as an exhibit to the registration statement, reference is made to the exhibit for a more complete description of the matter involved.

We are subject to the informational requirements of the Exchange Act, and file reports, proxy statements and other information with the SEC. These reports, proxy statements and other information may be read and copied at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet site that contains reports, proxy and information statements and other information regarding registrants like us that file electronically with the SEC (at http://www.sec.gov). Meritage’s common stock is listed on the New York Stock Exchange under the symbol “MTH”. Reports, proxy statements and other information relating to Meritage can be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. You may also find the reports, proxy statements and other information we file with the SEC on our website at www.meritagehomes.com.

 

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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

We are incorporating by reference certain information that we have filed under the informational requirements of the Exchange Act. The information contained in the documents we are incorporating by reference is considered part of this prospectus. We are incorporating by reference the following documents, which we have already filed or furnished with the SEC:

 

Filing		Date Filed
Annual Report on Form 10-K for the year ended December 31, 2014		February 17, 2015
Quarterly Report on Form 10-Q for the quarter ended March 31, 2015		May 1, 2015
Selected portions of our Proxy Statement on Schedule 14A for our 2015 Annual Meeting of Stockholders that are incorporated by reference in Part III of our Annual Report on Form 10-K for the year ended December 31, 2014		March 24, 2015
Current Report on Form 8-K		February 24, 2015 (only the second such report filed on such date reporting under Items 1.01 and 2.03)
Current Report on Form 8-K		April 1, 2015
Current Report on Form 8-K		May 14, 2015
Current Report on Form 8-K		May 28, 2015
Current Report on Form 8-K		June 2, 2015

All documents filed by Meritage under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this prospectus until the exchange offer is completed are incorporated into this prospectus by reference and will constitute part of this prospectus from the date they are filed.

Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other document subsequently filed with the SEC which is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

If information in any of these incorporated documents conflicts with information in this prospectus you should rely on the most recent information. If information in an incorporated document conflicts with information in another incorporated document, you should rely on the information in the most recent incorporated document.

You may request from us a copy of any document we incorporate by reference at no cost, excluding all exhibits to such incorporated documents unless we have specifically incorporated by reference such exhibits either in this prospectus or in the incorporated document, by making such a request in writing or by telephone to the following address:

Meritage Homes Corporation

8800 East Raintree Drive, Suite 300

Scottsdale, Arizona 85260

Attention: Investor Relations

(480) 515-8100

Except as provided above, no other information (including information on our website) is incorporated by reference into this prospectus.

 

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FINANCIAL STATEMENTS AND SUBSIDIARY GUARANTORS

Each subsidiary guarantor is exempt from Exchange Act reporting pursuant to Rule 12h-5 under the Exchange Act, as:

 

•

Meritage Homes Corporation has no independent assets or operations;

 

•

the guarantees of the subsidiary guarantors are full and unconditional and joint and several; and

 

•

any subsidiaries of Meritage Homes Corporation other than the subsidiary guarantors are, individually and in the aggregate, minor.

There are no significant restrictions on the ability of Meritage Homes Corporation or any subsidiary guarantor to obtain funds from its subsidiaries by dividend or loan. In the event that a guarantor sells or disposes of all of such guarantor’s assets, or in the event that we sell or dispose of all of the equity interests in a guarantor, by way of merger, consolidation or otherwise, in each case in accordance with the terms and conditions set forth in the Indenture, then such guarantor will be released and relieved of any obligations under its note guarantee.

Effective August 1, 2014, we acquired the homebuilding assets and operations of BK Residential Construction, LLC and affiliated entities (“Legendary Communities”). The assets and operations of Legendary Communities are included in the following subsidiary guarantors: Meritage Homes of the Carolinas, Inc., Meritage Homes of Georgia, Inc., Meritage Homes of Georgia Realty, LLC, Meritage Homes of South Carolina, Inc., MTH GA Realty LLC and MTH SC Realty LLC. The financial statements of BK Residential Construction, LLC as of and for the year ended December 31, 2013, including the report of Frazier & Deeter, LLC, an independent registered public accounting firm, and the unaudited financial statements as of and for the six months ended June 30, 2014 are filed, pursuant to Rule 3-10(g) of Regulation S-X, at Exhibit 99.6 and 99.7, respectively, to this Form S-4 registration statement of which this prospectus is a part, and are incorporated by reference herein.

The audited consolidated financial statements of MTH Mortgage, LLC (which is not a guarantor of the notes) as of and for the year ended December 31, 2012, including the report of Grant Thornton, LLP, independent certified public accountants, filed pursuant to Rule 3-09 of Regulation S-X, are filed at Exhibit 99.8 to this Form S-4 registration statement of which this prospectus is a part, and are incorporated by reference herein.

The unaudited consolidated financial statements of MTH Mortgage, LLC as of and for the years ended December 31, 2014 and 2013, filed pursuant to Rule 3-09 of Regulation S-X, are filed at Exhibit 99.9 to this Form S-4 registration statement of which this prospectus is a part, and are incorporated by reference herein.

 

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$200,000,000

 

 

OFFER TO EXCHANGE

$200,000,000 of 6.00% Senior Notes due 2025

and the full and unconditional, joint and several

guarantees thereof by all of our existing subsidiaries

(other than our Unrestricted Subsidiaries)

that have been registered under the Securities Act of 1933

for any and all of our outstanding

$200,000,000 of 6.00% Senior Notes due 2025

and the full and unconditional, joint and several

guarantees thereof by all of our existing subsidiaries

(other than our Unrestricted Subsidiaries)

that have not been registered under the Securities Act of 1933

 

 

PROSPECTUS

                    , 2015

 

 

Each broker-dealer that receives exchange notes for its own account in the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of those exchange notes. The letter of transmittal states that, by so acknowledging and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding notes where the outstanding notes were acquired by the broker-dealer as a result of market-making activities or other trading activities.

We have agreed that, for a period of 180 days after the consummation of this exchange offer, we will make this prospectus available to any broker-dealer for use in connection with the resale of exchange notes. See “Plan of Distribution.”

 

 

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 20.

Indemnification of Directors and Officers

Meritage Homes Corporation

Under the provisions of the Maryland General Corporation Law (the “MGCL”), a corporation’s charter may, with certain exceptions, include any provision expanding or limiting the liability of its directors and officers to the corporation or its stockholders for money damages, but may not include any provision that restricts or limits the liability of its directors or officers to the corporation or its stockholders to the extent that (1) it is proved that the person actually received an improper benefit or profit in money, property, or services for the amount of the benefit or profit in money, property, or services actually received or (2) a judgment or other final adjudication adverse to the person is entered in a proceeding based on a finding in the proceeding that the person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. Meritage’s charter contains a provision limiting the personal liability of officers and directors to Meritage and its stockholders to the fullest extent permitted under Maryland law.

In addition, the provisions of the MGCL permit a corporation to indemnify its present and former directors and officers, among others, against liability incurred, unless it is established that (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty, or (2) the director or officer actually received an improper personal benefit in money, property, or services, or (3) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (a) a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or on his behalf to repay the amount paid or reimbursed by the corporation if it shall ultimately be determined that the standard of conduct was not met. Meritage’s charter provides that it will indemnify and advance expenses to its directors, officers and others so designated by the board of directors to the full extent permitted under Maryland law.

Meritage Homes Corporation also maintains, for the benefit of its and its subsidiaries’ directors and officers, insurance against certain asserted or incurred liabilities, including certain liabilities under the Securities Act.

Subsidiary Guarantors

Arizona Corporate Guarantors

Arizona Revised Statutes (“ARS”) § 10-851 allows a corporation, in certain circumstances, to indemnify its directors against costs and expenses (including attorneys’ fees) reasonably incurred in connection with threatened, pending or completed civil, criminal, administrative or investigative actions, suits or proceedings, in which such persons were or are parties, or are threatened to be made parties, by reason of the fact that they were or are directors of the corporation, if such persons acted in good faith and either (1) in a manner they reasonably believed to be in the best interests of the corporation (if acting in an official capacity), or (2) in a manner they reasonably believed was at least not opposed to the corporation’s best interests (in all other cases). A corporation may indemnify its directors with respect to any criminal action or proceeding if, in addition to the above conditions being met, the individual had no reasonable cause to believe his or her conduct was unlawful. Directors may not be indemnified under ARS § 10-851 in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or in connection with any other proceeding charging improper financial benefit to the director in which the director was adjudged liable on the basis that financial benefit was improperly received by the director. In addition, under ARS § 10-202(B), a corporation’s articles of incorporation may indemnify a director for conduct for which broader indemnification has been made permissible or mandatory under other ARS provisions.

ARS § 10-202 provides that the articles of incorporation may set forth a provision eliminating or limiting the liability of a director to the corporation or its shareholders for money damages, and permitting or making obligatory indemnification of a director, for liability for any action taken or any failure to take any action as a director, except liability for any of the following: (1) the amount of a financial benefit received by a director to which the director is not entitled, (2) an intentional infliction of harm on the corporation or the shareholders, (3) unlawful distributions and (4) an intentional violation of criminal law.

ARS § 10-850 defines a director as including an individual who is or was a director of a corporation or an individual while a director of a corporation is or was serving at the corporation’s request as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other entity.

 

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ARS § 10-852 provides for mandatory indemnification in certain situations such that, unless limited by its articles of incorporation, a corporation shall indemnify a director who was the prevailing party, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding.

ARS § 10-856 provides that a corporation may indemnify its officers against costs and expenses (including attorneys’ fees) reasonably incurred in connection with threatened, pending or completed civil, criminal, administrative or investigative actions, suits or proceedings, in which such persons were or are parties, or are threatened to be made parties because the individual is or was an officer of the corporation to the same extent as a director. If the individual is an officer but not a director (or is both but is made a party to the proceeding solely because of an act or omission as an officer), a corporation may indemnify and advance expenses to the further extent as may be provided by the articles of incorporation, the bylaws, a resolution of the board of directors or contract except for (1) liability in connection with a proceeding by or in the right of the corporation other than for reasonable expenses incurred in connection with the proceeding or (2) liability arising out of conduct that constitutes (a) receipt by the officer of a financial benefit to which the officer is not entitled, (b) an intentional infliction of harm on the corporation or the shareholders or (c) an intentional violation of criminal law. An officer of a corporation who is not a director is entitled to mandatory indemnification as a prevailing party under ARS § 10-852.

ARS § 10-857 provides that a corporation may purchase and maintain insurance, including retrospectively rated and self-insured programs, on behalf of an individual who is or was a director or officer of the corporation or who, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other entity, against liability asserted against or incurred by the individual in that capacity or arising from the individual’s status as a director or officer, whether or not the corporation would have power to indemnify or advance expenses to the individual against the same liability under Arizona law.

The articles of incorporation of Meritage Homes of Arizona, Inc., Meritage Homes Construction, Inc., Meritage Homes of Nevada, Inc., Meritage Homes of Colorado, Inc., Meritage Homes of Texas Holding, Inc., and Meritage Homes of North Carolina, Inc., each of which is an Arizona corporation, provide that the liability of a director or former director to the corporation or its shareholders shall be eliminated to the fullest extent permitted by Arizona law. In addition, the articles of incorporation of each of these corporations, other than Meritage Homes of Texas Holding, Inc., provide that the corporation shall indemnify any and all of its existing and former directors and officers to the fullest extent permitted by Arizona law.

Arizona Limited Liability Company Guarantors

ARS § 29-610 provides that, unless otherwise limited in a company’s articles of organization, an Arizona limited liability company may indemnify a member, manager, employee, officer or agent or any other person. The articles of organization for each of Meritage Homes Operating Company, LLC, Meritage Homes of Texas, LLC, Meritage Paseo Crossing, LLC, Meritage Paseo Construction, LLC, MTH-Cavalier, LLC, MTH Golf, LLC, and WW Project Seller, LLC each of which is an Arizona limited liability company, do not contain any such restrictions.

The operating agreement for each of MTH-Cavalier, LLC and MTH Golf, LLC provides that its members and their respective affiliates will be indemnified and held harmless, to the extent of the applicable company’s assets, for, from, and against any liability, damage, cost, expense, loss, claim, or judgment incurred arising out of any claim based upon acts performed or omitted to be performed by in connection with the business of the applicable company. However, the operating agreement for each of MTH-Cavalier, LLC and MTH Golf, LLC further provides that, notwithstanding the foregoing, no such person shall be indemnified or held harmless for claims based upon acts or omissions in breach of the operating agreement or that constitute fraud, gross negligence, or willful misconduct. In addition, the operating agreement for each of MTH-Cavalier, LLC and MTH Golf, LLC provides that no members or their respective affiliates shall be personally liable, responsible, or accountable in damages or otherwise to the applicable company for any act or omission performed or omitted in connection with the applicable company or its business, and that any member’s liability for the debts and obligations of the applicable company shall be limited as set forth under applicable law.

California Corporate Guarantor

Section 317 of the California General Corporation Law (the “CGCL”) allows a corporation, in certain circumstances, to indemnify its directors and officers against certain expenses (including attorneys’ fees and certain expenses of establishing a right to indemnification), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with threatened, pending or completed civil, criminal, administrative or investigative actions, suits or proceedings (other than an action by or in the right of the corporation), in which such persons were or are parties, or are threatened to be made parties, by reason of the fact that they were or are directors or officers of the corporation, if such persons acted in good faith and in a manner they reasonably believed to be in the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. In addition, a corporation is, in certain circumstances, permitted to indemnify its directors and officers against certain expenses incurred in connection with the defense or settlement of a threatened, pending or completed action by or in the right of the corporation, and against amounts paid in settlement of any such action, if such persons acted in good faith and in a manner they believed to be in the best interests of the corporation and its shareholders, provided that the specified court approval is obtained.

 

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Furthermore, a corporation may purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent’s status as such, whether or not the corporation would have the power to indemnify the agent against such liability under California law.

Section 204(a)(10) of the CGCL allows a corporation to include a provision in its articles of incorporation eliminating or limiting the personal liability of a director for monetary damages in an action brought by or in the right of the corporation for breach of the director’s duties to the corporation and its shareholders, except for the liability of a director resulting from (1) acts or omissions involving intentional misconduct or a knowing and culpable violation of law, (2) any transaction from which a director derived an improper personal benefit, (3) acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (4) acts or omissions showing a reckless disregard for the director’s duty to the corporation or its shareholders, (5) acts or omissions constituting an unexcused pattern of inattention to the director’s duty, (6) liability under California law relating to transactions between corporations and directors or corporations having interrelated directors or (7) the making of an illegal distribution or loan to shareholders.

The articles of incorporation of Meritage Homes of California, Inc., which is a California corporation, provides that the liability of directors for monetary damages shall be eliminated to the fullest extent permissible under California law and that the corporation is authorized to provide indemnification of its officers and directors through bylaw provisions, agreements with officers and directors, vote of shareholders or disinterested directors or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the CGCL, subject only to the applicable limits set forth in Section 204 of the CGCL. The bylaws of Meritage Homes of California, Inc. provide that the corporation shall indemnify each of its directors and officers to the maximum extent and in the manner permitted by the CGCL.

California Limited Liability Company Guarantor

Section 17155 of the California Beverly-Killea Limited Liability Company Act provides that, except for a breach of a manager’s fiduciary duties of loyalty and care owed to the limited liability company and to its members, the articles of organization or written operating agreement of a California limited liability company may provide for indemnification of any person, including, without limitation, any manager, member, officer, employee, or agent of the limited liability company, against judgments, settlements, penalties, fines, or expenses of any kind incurred as a result of acting in that capacity. Section 17155 further provides that a California limited liability company shall have power to purchase and maintain insurance on behalf of any manager, member, officer, employee, or agent of the limited liability company against any liability asserted against or incurred by the person in that capacity or arising out of the person’s status as a manager, member, officer, employee, or agent of the limited liability company.

The operating agreement for California Urban Builders, LLC, which is a California limited liability company, provides that neither the company’s member nor its manager shall be liable, responsible, or accountable in damages or otherwise to the company or to its member or its members’ assignees for any loss, damage, cost, liability or expense incurred by reason of or caused by any act or omission performed or omitted by such member or manager, whether alleged to be based upon or arising from errors in judgment, negligence or breach of duty (including alleged breach of any duty of care or duty of loyalty or other fiduciary duty), except for (1) acts or omissions the member or manager knew at the time of the acts or omissions were clearly in conflict with the interest of the company, or (2) any transaction from which the member or manager derived an improper personal benefit, (3) a willful breach of the company’s operating agreement, or (4) gross negligence, recklessness, willful misconduct, or knowing violation of law. In addition, the operating agreement provides that, without limiting the foregoing, neither the manager nor the member shall in any event be liable for (a) the failure to take any action not specifically required to be taken by the member or manager under the terms of the operating agreement or (b) any mistake, misconduct, negligence, dishonesty or bad faith on the part of any employee or other agent of the company appointed in good faith by the manager.

Delaware Limited Liability Company Guarantor

M&M Fort Myers Holdings, LLC is a Delaware limited liability company and is subject to Section 18-108 of the Delaware Limited Liability Company Act, which provides that, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.

The limited liability company agreement of M&M Fort Myers Holdings, LLC provides that it shall indemnify, defend and hold harmless the member and manager (and their respective affiliates) (each, an “Actor”) to the extent of M&M Fort Myers Holdings, LLC’s assets for, from and against any Losses (as defined in the operating agreement) stemming from actions taken in good faith in connection with M&M Fort Myers Holdings, LLC or its business; provided that the Actor will remain liable for acts in breach of the operating agreement or that constitute bad faith, fraud, willful misconduct or gross negligence. The limited liability company agreement of M&M Fort Myers Holdings, LLC also provides that Actor shall not be liable for any actions taken in good faith in connection with M&M Fort Myers Holdings, LLC or its business; provided that the Actor will remain liable for acts in breach of the operating agreement or that constitute bad faith, fraud, willful misconduct or gross negligence.

 

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Texas Corporate Guarantor

Section 8.101 of the Texas Business Organizations Code (the “TBOC”) provides that, subject to certain limitations and in addition to other provisions, a Texas corporation may indemnify a person who was, is, or is threatened to be made a named defendant or respondent in a proceeding because the person is or was a director only if it is determined in accordance with certain requirements that: the person: (A) acted in good faith; (B) reasonably believed: (i) in the case of conduct in the person’s official capacity, that the person’s conduct was in the enterprise’s best interests; and (ii) in any other case, that the person’s conduct was not opposed to the enterprise’s best interests; and (C) in the case of a criminal proceeding, did not have a reasonable cause to believe the person’s conduct was unlawful.

Section 8.051 of the TBOC also provides that a Texas corporation shall indemnify a director against reasonable expenses actually incurred by the director in connection with a proceeding in which the director is a named defendant or respondent because he or she is or was a director if the director is wholly successful, on the merits or otherwise, in the defense of the proceeding. In addition, Section 8.052 of the TBOC requires indemnification by a Texas corporation to the fullest extent that a court so orders.

The certificate of formation for Carefree Title Agency, Inc. provides that the liability of a director or former director to the corporation and its shareholders shall be eliminated to the fullest extent permitted under the TBOC. The certificate of formation for Carefree Title Agency, Inc. also provides that the corporation shall indemnify any and all existing and former directors and officers to the fullest extent permitted under Texas law. If the TBOC is amended to authorize corporate action further eliminating or limiting the liability of directors, or if Texas law is amended to authorize the corporation to broaden its ability to indemnify its directors and officers, the liability of a director shall be eliminated or limited, and the ability of the corporation to indemnify its directors and officers shall be expanded, to the fullest extent permitted under the TBOC and Texas law, as amended, respectively.

Texas Limited Liability Company Guarantors

Section 101.402 of the TBOC provides that a Texas limited liability company may (1) indemnify a person; (2) pay in advance or reimburse expenses incurred by a person; and (3) purchase or procure or establish and maintain insurance or another arrangement to indemnify or hold harmless a person. For the purposes of Section 101.402 of the TBOC, a person includes a member, manager, or officer of a limited liability company or an assignee of a membership interest in the company. In addition, Section 101.401 of the TBOC provides that the company agreement of a limited liability company may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person has to the company or to a member or manager of the company. Therefore, under the TBOC, indemnification of the governing persons of a Texas limited liability company is a contractual matter to be governed by the entity’s company agreement or other constituent documents, as applicable, and subject to any common law established by the courts.

The regulations for Meritage Holdings, L.L.C. provide that each member shall be indemnified against any and all liability and reasonable expense that may be incurred by or in connection with or resulting from (1) any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, (2) an appeal in such an event, or (3) any inquiry or investigation that could lead to such an event, all to the full extent permitted by applicable law. The regulations for Meritage Holdings, L.L.C. further provide that, upon a determination by the member to do so, Meritage Holdings, L.L.C. may indemnify its current and past officers and agents in their capacities as such and, if serving at the request of Meritage Holdings, L.L.C. as a director, manager, officer, trustee, employee, agent, or similar functionary of another foreign or domestic corporation, limited liability company, trust, partnership, joint venture, sole proprietorship, employee benefit plan, or other enterprise, in each of those capacities, against any and all liability and reasonable expense that may be incurred by them in connection with or resulting from the events listed in (1), (2), and (3) of this paragraph, all to the full extent permitted by applicable law.

The Amended and Restated Company Agreement of Meritage Homes of Texas Joint Venture Holding Company, LLC provides that each person who was or is a member or officer of the both in their capacities as such and, if serving at the request of Meritage Homes of Texas Joint Venture Holding Company, LLC as a director, manager, officer, trustee, employee, agent, or similar functionary of another foreign or domestic limited liability company, corporation, trust, partnership, joint venture, sole proprietorship, employee benefit plan, or other enterprise, in each of those capacities shall be indemnified against any and all liability and reasonable expense that may be incurred by them in connection with or resulting from (1) any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative (2) an appeal in such an event, (3) any inquiry or investigation that could lead to such an event, or (4) all loss, damage, expense (including without limitation fees and expenses of attorneys and other advisors and any court costs incurred by any such person) or liability by reason of anything any such person does or refrains from doing for, or in connection with the business or affairs of, Meritage Homes of Texas Joint Venture Holding Company, LLC, all to the fullest extent permitted by applicable law.

Florida Corporate Guarantor

Section 607.0850 of the Florida Business Corporation Act (“FBCA”) permits, subject to certain exclusions, and in some cases requires, a corporation to indemnify its directors, officers, employees, or agents, or any person serving at its request in any such capacity, against certain expenses and liabilities incurred as a party to any proceeding brought against such person by reason of the fact that such person is or was a director, officer, employee, or agent of a corporation or is or was serving in such capacity at the request of the corporation. With respect to proceedings, other than an action by, or in the right of the corporation, such indemnification

 

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is permitted if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the corporation, and with respect to any criminal action or proceeding, if such person had no reasonable cause to believe his or her conduct was unlawful.

With respect to any action threatened, pending or completed by or in the right of a corporation to procure a judgment in its favor against any such person, a corporation may indemnify any such person against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit, including the appeal thereof, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which any such person shall have been adjudged to be liable unless, and only to the extent that, the court in which the action was brought, or any other court of competent jurisdiction, determines that despite the adjudication of liability, but in view of all the circumstances in the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Section 607.0850 of the FBCA also provides that if any such person has been successful on the merits or otherwise in defense of any action, suit or proceeding whereby indemnification of persons acting on behalf of the corporation has been authorized by the corporation, whether brought in the right of a corporation or otherwise, such person shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith. Any such indemnification not made pursuant to a determination by a court shall be made by the corporation only as authorized in the specific case upon a determination made by the applicable listed alternative parties and in the manner set forth in the FBCA that indemnification of the director, officer, employee or agent is proper because he or she has met the applicable standard of conduct.

Section 607.0850 of the FBCA also contains a provision authorizing corporations to purchase and maintain liability insurance on behalf of its directors and officers.

The bylaws of Meritage Homes of Florida, Inc., which is a Florida corporation, provide that the corporation is authorized to provide indemnification of its directors, officers, employees, or agents, or any person serving at its request in any such capacity to the maximum extent permitted by the FBCA.

Florida Limited Liability Company Guarantor

Section 608.4229 of the Florida Limited Liability Company Act (“FLLA”) permits, but does not require, subject to standards and restrictions, if any, in its articles of organization or operating agreement, a limited liability company to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. However, indemnification or advancement of expenses shall not be made to or on behalf of any member, manager, managing member, officer, employee, or agent if a judgment or other final adjudication establishes that the actions, or omissions to act, of such member, manager, managing member, officer, employee, or agent were material to the cause of action so adjudicated and constitute any of the following: (a) a violation of criminal law, unless the member, manager, managing member, officer, employee, or agent had no reasonable cause to believe such conduct was unlawful; (b) a transaction from which the member, manager, managing member, officer, employee, or agent derived an improper personal benefit; (c) in the case of a manager or managing member, a circumstance under which the liability attaches for unlawful distribution; and (d) willful misconduct or a conscious disregard for the best interests of the limited liability company in a proceeding by or in the right of the limited liability company to procure a judgment in its favor or in a proceeding by or in the right of a member.

The operating agreement of Meritage Homes of Florida Realty LLC, which is a Florida limited liability company, provides that no manager, nor any member, nor any of their respective affiliates shall be liable to the company for actions taken in good faith by such persons in connection with the company or its business; provided that such persons shall in all instances remain liable for acts in breach of the operating agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence. The company, its receiver or trustee shall indemnify, defend, and hold harmless such persons, to the extent of the company’s assets (without any obligation or any member to make contributions to the company to fulfill such indemnity), for, from, and against any losses, costs, and expenses incurred by such persons arising out of any claim based upon acts performed or omitted to be performed by such persons in connection with the business of the company; provided that such persons shall not be indemnified for claims based upon acts performed or omitted in material breach of the operating agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence.

 

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Item 21.

Exhibits and Financial Statement Schedules

(a) Exhibits:

 

Exhibit Number		Description		Page or Method of Filing
2.1		Agreement and Plan of Reorganization, dated as of September 13, 1996, by and among Homeplex, the Monterey Merging Companies and the Monterey Stockholders		Incorporated by reference to Appendix A of Form S-4 Registration Statement No. 333-15937.
3.1		Restated Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Exhibit 3 of Form 8-K dated June 20, 2002.
3.1.1		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Exhibit 3.1 of Form 8-K dated September 15, 2004.
3.1.2		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Appendix A of the Proxy Statement for the 2006 Annual Meeting of Stockholders.
3.1.3		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Appendix B of the Proxy Statement for the 2008 Annual Meeting of Stockholders.
3.1.4		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Appendix A of the Definitive Proxy Statement filed with the Securities and Exchange Commission on January 9, 2009.
3.2		Amended and Restated Bylaws of Meritage Homes Corporation		Incorporated by reference to Exhibit 3.1 of Form 8-K dated November 24, 2014.
3.3		Articles of Organization of Meritage Paseo Crossing, LLC		Incorporated by reference to Exhibit 3.6 of Form S-4 Registration Statement No. 333-64538.
3.4		Articles of Incorporation of Meritage Homes Construction, Inc. (formerly known as Hancock-MTH Builders, Inc.)		Incorporated by reference to Exhibit 3.19 of Form S-4 Registration Statement No. 333-64538.
3.4.1		Articles of Amendment and Merger of Meritage Homes Construction, Inc. (formerly known as Hancock-MTH Builders, Inc.)		Incorporated by reference to Exhibit 3.4.1 of Form S-4 Registration Statement No. 333-166972.
3.5		Bylaws of Meritage Homes Construction, Inc. (formerly known as Hancock-MTH Builders, Inc.)		Incorporated by reference to Exhibit 3.20 of Form S-4 Registration Statement No. 333-64538.
3.6		Articles of Organization of Meritage Paseo Construction, LLC (formerly known as Chandler 110, LLC)		Incorporated by reference to Exhibit 3.9 of Form S-4 Registration Statement No. 333-64538.
3.6.1		Amendment to Articles of Organization of Meritage Paseo Construction, LLC (formerly known as Chandler 110, LLC)		Incorporated by reference to Exhibit 3.9.1 of Form S-4 Registration Statement No. 333-64538.
3.7		Articles of Incorporation of Meritage Homes of California, Inc. (formerly known as Meritage Homes of Northern California, Inc.)		Incorporated by reference to Exhibit 3.17 of Form S-4 Registration Statement No. 333-64538.
3.7.1		Certificate of Amendment of Articles of Incorporation for Meritage Homes of California, Inc. (formerly known as Meritage Homes of Northern California, Inc.)		Incorporated by reference to Exhibit 3.17.1 of Form S-4 Registration Statement No. 333-115610.
3.8		Bylaws of Meritage Homes of California, Inc. (formerly known as Meritage Homes of Northern California, Inc.)		Incorporated by reference to Exhibit 3.18 of Form S-4 Registration Statement No. 333-64538.

 

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Exhibit Number		Description		Page or Method of Filing
3.9		Articles of Incorporation of Meritage Homes of Arizona, Inc. (formerly known as Hancock-MTH Communities, Inc.)		Incorporated by reference to Exhibit 3.21 of Form S-4 Registration Statement No. 333-64538.
3.9.1		Articles of Amendment and Merger of Meritage Homes of Arizona, Inc. (formerly known as Hancock-MTH Communities, Inc.)		Incorporated by reference to Exhibit 3.9.1 of Form S-4 Registration Statement No. 333-166972.
3.10		Bylaws of Meritage Homes of Arizona, Inc. (formerly known as Hancock-MTH Communities, Inc.)		Incorporated by reference to Exhibit 3.22 of Form S-4 Registration Statement No. 333-64538.
3.11		Articles of Incorporation of Meritage Homes of Nevada, Inc. (formerly known as MTH-Homes Nevada, Inc.)		Incorporated by reference to Exhibit 3.30 of Form S-4 Registration Statement No. 333-105043.
3.11.1		Articles of Amendment of Meritage Homes of Nevada, Inc. (formerly known as MTH-Homes Nevada, Inc.)		Incorporated by reference to Exhibit 3.11.1 of Form S-4 Registration Statement No. 333-166972.
3.12		Bylaws of Meritage Homes of Nevada, Inc. (formerly known as MTH-Homes Nevada, Inc.)		Incorporated by reference to Exhibit 3.31 of Form S-4 Registration Statement No. 333-105043.
3.13		Articles of Organization of Meritage Holdings, L.L.C.		Incorporated by reference to Exhibit 3.32 of Form S-4 Registration Statement No. 333-105043.
3.14		Regulations of Meritage Holdings, L.L.C.		Incorporated by reference to Exhibit 3.33 of Form S-4 Registration Statement No. 333-105043.
3.15		Articles of Organization of MTH-Cavalier, LLC		Incorporated by reference to Exhibit 3.38 of Form S-4 Registration Statement No. 333-105043.
3.16		Operating Agreement of MTH-Cavalier, LLC		Incorporated by reference to Exhibit 3.39 of Form S-4 Registration Statement No. 333-105043.
3.17		Articles of Organization of MTH Golf, LLC (formerly known as Mission Royale Golf Course, LLC)		Incorporated by reference to Exhibit 3.40 of Form S-4 Registration Statement No. 333-109933.
3.17.1		Articles of Amendment of MTH Golf, LLC (formerly known as Mission Royale Golf Course, LLC)		Incorporated by reference to Exhibit 3.40.1 of Form S-4 Registration Statement No. 333-109933.
3.18		Operating Agreement of MTH Golf, LLC		Incorporated by reference to Exhibit 3.18 of Form S-4 Registration Statement No. 333-166972.
3.19		Articles of Incorporation of Meritage Homes of Colorado, Inc.		Incorporated by reference to Exhibit 3.43 of Form S-4 Registration Statement No. 333-115610.
3.20		Bylaws of Meritage Homes of Colorado, Inc.		Incorporated by reference to Exhibit 3.44 of Form S-4 Registration Statement No. 333-115610.
3.21		Articles of Incorporation of Meritage Homes of Florida, Inc. (formerly known as Greater Homes, Inc.)		Incorporated by reference to Exhibit 3.21 of Form S-4 Registration Statement No. 333-166972.
3.22		Bylaws of Meritage Homes of Florida, Inc. (formerly known as Greater Homes, Inc.)		Incorporated by reference to Exhibit 3.22 of Form S-4 Registration Statement No. 333-166972.

 

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Exhibit Number		Description		Page or Method of Filing
3.23		Articles of Incorporation of Meritage Homes of the Carolinas, Inc. (formerly known as Meritage Homes of North Carolina, Inc.)		Incorporated by reference to Exhibit 3.23 of Form S-4 Registration Statement No. 333-181336.
3.24		Bylaws of Meritage Homes of the Carolinas, Inc. (formerly known as Meritage Homes of North Carolina, Inc.)		Incorporated by reference to Exhibit 3.24 of Form S-4 Registration Statement No. 333-181336.
3.25		Articles of Organization of California Urban Homes, LLC		Incorporated by reference to Exhibit 3.44 of Form S-4 Registration Statement No. 333-123661.
3.26		Limited Liability Company Operating Agreement of California Urban Homes, LLC		Incorporated by reference to Exhibit 3.45 of Form S-4 Registration Statement No. 333-123661.
3.26.1		First Amendment to the Limited Liability Company Operating Agreement of California Urban Homes, LLC		Incorporated by reference to Exhibit 3.45.1 of Form S-4 Registration Statement No. 333-123661.
3.27		Articles of Incorporation of Meritage Homes of Texas Holding, Inc. (formerly known as MTH-Texas LP, Inc.)		Incorporated by reference to Exhibit 3.14 of Form S-4 Registration Statement No. 333-64538.
3.27.1		Articles of Merger and Amendment of Meritage Homes of Texas Holding, Inc. (formerly known as MTH-Texas LP, Inc.)		Incorporated by reference to Exhibit 3.27.1 of Form S-4 Registration Statement No. 333-166972.
3.28		Bylaws of Meritage Homes of Texas Holding, Inc. (formerly known as MTH-Texas LP, Inc.)		Incorporated by reference to Exhibit 3.15 of Form S-4 Registration Statement No. 333-64538.
3.29		Restated Articles of Organization of Meritage Homes of Texas Joint Venture Holding Company, LLC (formerly known as Hulen Park Venture, LLC)		Incorporated by reference to Exhibit 3.29 of Form S-4 Registration Statement No. 333-181336.
3.30		Amended and Restated Company Agreement of Meritage Homes of Texas Joint Venture Holding Company, LLC (formerly known as Hulen Park Venture, LLC)		Incorporated by reference to Exhibit 3.30 of Form S-4 Registration Statement No. 333-181336.
3.31		Articles of Organization of Meritage Homes of Texas, LLC		Incorporated by reference to Exhibit 3.31 of Form S-4 Registration Statement No. 333-166972.
3.32		Operating Agreement of Meritage Homes of Texas, LLC		Incorporated by reference to Exhibit 3.32 of Form S-4 Registration Statement No. 333-166972.
3.33		Articles of Organization of Meritage Homes Operating Company, LLC		Incorporated by reference to Exhibit 3.33 of Form S-4 Registration Statement No. 333-166972.
3.34		Operating Agreement of Meritage Homes Operating Company, LLC		Incorporated by reference to Exhibit 3.34 of Form S-4 Registration Statement No. 333-166972.
3.35		Articles of Organization of WW Project Seller, LLC		Incorporated by reference to Exhibit 3.35 of Form S-4 Registration Statement No. 333-166972.
3.36		Certificate of Formation of Carefree Title Agency, Inc.		Incorporated by reference to Exhibit 3.36 of Form S-4 Registration Statement No. 333-181336.

 

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Exhibit Number		Description		Page or Method of Filing
3.37		Bylaws of Carefree Title Agency, Inc.		Incorporated by reference to Exhibit 3.37 of Form S-4 Registration Statement No. 333-181336.
3.38		Certificate of Formation of M&M Fort Myers Holdings, LLC		Incorporated by reference to Exhibit 3.38 of Form S-4 Registration Statement No. 333-181336.
3.39		Limited Liability Company Agreement of M&M Fort Myers Holdings, LLC		Incorporated by reference to Exhibit 3.39 of Form S-4 Registration Statement No. 333-181336.
3.40		Articles of Organization of Meritage Homes of Florida Realty LLC		Incorporated by reference to Exhibit 3.40 of the initial filing of this Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
3.41		Operating Agreement of Meritage Homes of Florida Realty LLC		Incorporated by reference to Exhibit 3.41 of the initial filing of this Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
3.42		Articles of Incorporation of Meritage Homes of Tennessee, Inc.		Incorporated by reference to Exhibit 3.42 of Form S-4 Registration Statement No. 333-192730.
3.43		Bylaws of Meritage Homes of Tennessee Inc.		Incorporated by reference to Exhibit 3.43 of Form S-4 Registration Statement No. 333-192730.
3.44		Articles of Organization of Meritage Homes of Georgia Realty, LLC		Filed herewith.
3.45		Operating Agreement of Meritage Homes of Georgia Realty, LLC		Filed herewith.
3.46		Articles of Incorporation of Meritage Homes of Georgia, Inc.		Filed herewith.
3.47		Bylaws of Meritage Homes of Georgia, Inc.		Filed herewith.
3.48		Articles of Incorporation of Meritage Homes of South Carolina, Inc.		Filed herewith.
3.49		Bylaws of Meritage Homes of South Carolina, Inc.		Filed herewith.
3.50		Articles of Incorporation of MLC Holdings, Inc. (dba MLC Land Holdings, Inc.)		Filed herewith.
3.51		Bylaws of MLC Holdings, Inc. (dba MLC Land Holdings, Inc.)		Filed herewith.
3.52		Articles of Organization of MTH GA Realty LLC		Filed herewith.
3.53		Operating Agreement of MTH GA Realty LLC		Filed herewith.

 

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Exhibit Number		Description		Page or Method of Filing
3.54		Articles of Organization of MTH Realty LLC (formerly known as Meritage Homes of Arizona Realty LLC)		Filed herewith.
3.54.1		Articles of Amendment of MTH Realty LLC		Filed herewith.
3.55		Operating Agreement of MTH Realty LLC (formerly known as Meritage Homes of Arizona Realty LLC)		Filed herewith.
3.56		Articles of Organization of MTH SC Realty LLC		Filed herewith.
3.57		Operating Agreement of MTH SC Realty LLC		Filed herewith.
3.58		Articles of Incorporation of MTH Shelf Co., Inc. (formerly known as Meritage Homes of Georgia Realty, Inc.)		Filed herewith.
3.58.1		Articles of Amendment of MTH Shelf Co., Inc.		Filed herewith.
3.59		Bylaws of MTH Shelf Co., Inc. (formerly known as Meritage Homes of Georgia Realty, Inc.)		Filed herewith.
4.1		Form of Specimen of Common Stock Certificate		Incorporated by reference to Exhibit 4.1 of Form 10-K for the year ended December 31, 2007.
4.2		Indenture, dated April 13, 2010 (re 7.15% Senior Notes due 2020) and Form of 7.15% Senior Notes due 2020		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on April 14, 2010.
4.2.1		First Supplemental Indenture, dated April 6, 2011 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.2 of Form 10-Q for the quarter ended March 31, 2011.
4.2.2		Second Supplemental Indenture, dated February 14, 2012 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4.2 of Form 10-K for the year ended December 31, 2011.
4.2.3		Third Supplemental Indenture, dated March 7, 2012 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4 of Form 10-Q for the quarter ended March 31, 2012.
4.2.4		Fourth Supplemental Indenture, dated August 21, 2012 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.3.4 of Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
4.2.5		Agreement of Resignation, Appointment and Acceptance, dated as of September 27, 2012, by and among Meritage Homes Corporation, Wells Fargo Bank, National Association and HSBC Bank USA, National Association (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on October 1, 2012.
4.2.6		Fifth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4 of Form 10-Q for the quarter ended September 30, 2013.
4.2.7		Sixth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.2.7 of Form S-4 Registration Statement No. 333-192730.
4.2.8		Sixth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.3 of Form 10-Q for the quarter ended June 30, 2014.

 

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Exhibit Number		Description		Page or Method of Filing
4.2.9		Seventh Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4 of Form 10-Q for the quarter ended June 30, 2014.
4.2.10		Eighth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.2.10 of Form 10-K for the year ended December 31, 2014.
4.3		Indenture, dated April 10, 2012 (re 7.00% Senior Notes due 2022) and Form of 7.00% Senior Notes due 2022		Incorporated by reference to Exhibit 4.1 of Form 8-K dated April 10, 2012.
4.3.1		First Supplemental Indenture, dated August 21, 2012 (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.4.1 of Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
4.3.2		Agreement of Resignation, Appointment and Acceptance, dated as of September 27, 2012, by and among Meritage Homes Corporation, Wells Fargo Bank, National Association and HSBC Bank USA, National Association (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on October 1, 2012
4.3.3		Second Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.2 of Form 10-Q for the quarter ended September 30, 2013.
4.3.4		Third Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.5 of Form 10-Q for the quarter ended June 30, 2014.
4.3.5		Fourth Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.6 of Form 10-Q for the quarter ended June 30, 2014.
4.3.6		Fifth Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.3.5 of Form 10-K for the year ended December 31, 2014.
4.4		Indenture, dated as of September 18, 2012		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on September 18, 2012.
4.4.1		Supplemental Indenture No. 1, dated as of September 18, 2012 (re 1.875% Convertible Senior Notes due 2032) and form of 1.875% Convertible Senior Notes due 2032		Incorporated by reference to Exhibit 4.2 of Form 8-K filed on September 18, 2012.
4.4.2		Supplemental Indenture No. 2 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.3 of Form 10-Q for the quarter ended September 30, 2013.
4.4.3		Supplemental Indenture No. 3 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.7 of Form 10-Q for the quarter ended June 30, 2014.
4.4.4		Supplemental Indenture No. 4 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.8 of Form 10-Q for the quarter ended June 30, 2014.
4.4.5		Supplemental Indenture No. 5 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.4.5 of Form 10-K for the year ended December 31, 2014.
4.5		Indenture, dated March 13, 2013 (re 4.50% Senior Notes due 2018), and Form of 4.50% Senior Note		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on March 13, 2013.

 

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Exhibit Number		Description		Page or Method of Filing
4.5.1		First Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.1 of Form 10-Q for the quarter ended September 30, 2013.
4.5.2		Second Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.1 of Form 10-Q for the quarter ended June 30, 2014.
4.5.3		Third Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.2 of Form 10-Q for the quarter ended June 30, 2014.
4.5.4		Fourth Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.5.4 of Form 10-K for the year ended December 31, 2014.
4.6		Indenture, dated June 2, 2015 (re 6.00% Senior Notes due 2025), and Form of Note		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on June 2, 2015.
4.7		Registration Rights Agreement, dated June 2, 2015 (re 6.00% Senior Notes due 2025)		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on June 2, 2015.
5.1		Opinion of Snell & Wilmer L.L.P. regarding the legality of the securities being registered		Filed herewith.
10.1		2006 Executive Management Incentive Plan*		Incorporated by reference to Appendix B of the Proxy Statement for the 2014 Annual Meeting of Stockholders.
10.2		Amended 1997 Meritage Stock Option Plan*		Incorporated by reference to Exhibit 10.3 of Form 10-K for the year ended December 31, 2004.
10.3		Meritage Homes Corporation Amended and Restated 2006 Stock Incentive Plan, as amended*		Incorporated by reference to Appendix A of the Proxy Statement for the 2014 Annual Meeting of Stockholders.
10.3.1		Representative Form of Restricted Stock Agreement*		Incorporated by reference to Exhibit 4.9 of Form S-8 Registration Statement No. 333-166991.
10.3.2		Representative Form of Restricted Stock Agreement (2006 Plan; Executive Officer)*		Incorporated by reference to Exhibit 4.9.1 of Form S-8 Registration Statement No. 333-166991.
10.3.3		Representative Form of Restricted Stock Agreement (2006 Plan; Non-Employee Director)*		Incorporated by reference to Exhibit 4.9.2 of Form S-8 Registration Statement No. 333-166991.
10.3.4		Representative Form of Non-Qualified Stock Option Agreement (2006 Plan)*		Incorporated by reference to Exhibit 4.10 of Form S-8 Registration Statement No. 333-166991.
10.3.5		Representative Form of Incentive Stock Option Agreement (2006 Plan)*		Incorporated by reference to Exhibit 4.4 of Form S-8 Registration Statement No. 333-134637.
10.3.6		Representative Form of Stock Appreciation Rights Agreement (2006 Plan)*		Incorporated by reference to Exhibit 4.5 of Form S-8 Registration Statement No. 333-134637.
10.3.7		Representative Form of Performance Share Award Agreement*		Incorporated by reference to Exhibit 10.9 of Form 8-K filed on March 28, 2014.

 

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Exhibit Number		Description		Page or Method of Filing
10.3.8		Representative Form of Restricted Stock Unit Agreement*		Incorporated by reference to Exhibit 10.10 of Form 8-K filed on March 28, 2014.
10.4		Fourth Amended and Restated Employment Agreement between the Company and Steven J. Hilton*		Incorporated by reference to Exhibit 10.1 of Form 8-K dated March 28, 2014.
10.4.1		Third Amended and Restated Change of Control Agreement between the Company and Steven J. Hilton*		Incorporated by reference to Exhibit 10.5 of Form 8-K dated January 19, 2010.
10.4.2		Second Amendment to Third Amended and Restated Change of Control Agreement for Steven J. Hilton*		Incorporated by reference to Exhibit 10.5 of Form 8-K filed on March 28, 2014.
10.5		Fourth Amended and Restated Employment Agreement between the Company and Larry W. Seay*		Incorporated by reference to Exhibit 10.2 of Form 8-K dated March 28, 2014.
10.5.1		Third Amended and Restated Change of Control Agreement between the Company and Larry W. Seay*		Incorporated by reference to Exhibit 10.6 of Form 8-K dated January 19, 2010.
10.5.2		Second Amendment to Third Amended and Restated Change of Control Agreement between the Company and Larry W. Seay*		Incorporated by reference to Exhibit 10.6 of Form 8-K filed on March 28, 2014.
10.6		Second Amended and Restated Employment Agreement between the Company and Steven Davis*		Incorporated by reference to Exhibit 10.4 of Form 8-K dated March 28, 2014.
10.6.1		Amended and Restated Change of Control Agreement between the Company and Steven Davis*		Incorporated by reference to Exhibit 10.8 of Form 8-K dated January 19, 2010.
10.6.2		Second Amendment to Amended and Restated Change of Control Agreement between the Company and Steven Davis*		Incorporated by reference to Exhibit 10.8 of Form 8-K filed on March 28, 2014.
10.7		Second Amended and Restated Employment Agreement between the Company and C. Timothy White*		Incorporated by reference to Exhibit 10.3 of Form 8-K dated March 28, 2014.
10.7.1		Amended and Restated Change of Control Agreement between the Company and C. Timothy White*		Incorporated by reference to Exhibit 10.7 of Form 8-K dated January 19, 2010.
10.7.2		Second Amendment to Amended and Restated Change of Control Agreement between the Company and C. Timothy White*		Incorporated by reference to Exhibit 10.7 of Form 8-K filed on March 28, 2014.
10.8		Amended and Restated Credit Agreement, dated as of June 13, 2014		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on June 16, 2014.
10.9		Meritage Homes Corporation Nonqualified Deferred Compensation Plan*		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on June 10, 2013.
10.10		Asset Purchase Agreement dated July 10, 2014 re the Acquisition of Legendary Communities**		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on July 14, 2014.
10.11		Phillippe Lord Employment Letter**		Incorporated by reference to Exhibit 10.2 of Form 8-K filed on April 1, 2015.

 

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Exhibit Number		Description		Page or Method of Filing
12.1		Calculation of Ratio of Earnings to Total Fixed Charges		Filed herewith.
21.1		List of Subsidiaries		Filed herewith.
23.1		Consent of Deloitte & Touche LLP		Filed herewith.
23.2		Consent of Grant Thornton, LLP		Filed herewith.
23.3		Consent of Frazier & Deeter, LLC		Filed herewith.
23.4		Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1)		Filed herewith.
24.1		Powers of Attorney		Included in Signature Pages.
25.1		Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Wells Fargo Bank, National Association		Filed herewith.
99.1		Form of Letter of Transmittal		Filed herewith.
99.2		Form of Notice of Guaranteed Delivery		Filed herewith.
99.3		Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees		Filed herewith.
99.4		Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees		Filed herewith.
99.5		Form of Instructions from Beneficial Owner to DTC Participant		Filed herewith.
99.6		Audited consolidated financial statements of BK Residential Construction, LLC and report of independent registered public accounting firm as of and for the year ended December 31, 2013		Filed herewith.
99.7		Unaudited consolidated financial statements of BK Residential Construction, LLC as of and for the six-month period ended June 30, 2014		Filed herewith.
99.8		Audited consolidated financial statements of MTH Mortgage, LLC and report of independent certified public accountants as of and for the year ended December 31, 2012		Incorporated by reference to Exhibit 99.1 of Form 10-K for the year ended December 31, 2012.
99.9		Unaudited consolidated financial statements of MTH Mortgage, LLC as of and for the years ended December 31, 2014 and December 31, 2013		Incorporated by reference to Exhibit 99.1 of Form 10-K for the year ended December 31, 2014.

 

*	Indicates a management contract or compensation plan.

**	Confidential information on this exhibit has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request.

 

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(b) Financial Statement Schedules:

Schedules have been omitted because of the absence of conditions under which they are required or because the required material information is included in the Consolidated Financial Statements or Notes to the Consolidated Financial Statements included in the reports incorporated by reference herein.

 

Item 22.

Undertakings

The undersigned registrants hereby undertake:

 

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i)

To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this registration statement;

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in the registration statement.

 

(2)

That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4)

That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

(5)

That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:

The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i)

Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii)

Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

 

(iii)

The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

 

(iv)

Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

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(6)

That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(7)

To respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

 

(8)

To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been informed that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scottsdale, State of Arizona, on June 24, 2015.

 

 

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The following direct and indirect subsidiaries of the registrant will guarantee the notes and are co-registrants under this registration statement.

Name of Co-Registrant

California Urban Homes, LLC (1)

Meritage Holdings, L.L.C. (2)

Meritage Homes Construction, Inc.

Meritage Homes of Arizona, Inc.

Meritage Homes of California, Inc.

Meritage Homes of Colorado, Inc.

Meritage Homes of Florida, Inc.

Meritage Homes of Nevada, Inc.

Meritage Homes of Texas Holding, Inc.

Meritage Homes of Texas Joint Venture Holding Company, LLC (3)

Meritage Homes of Texas, LLC (2)

Meritage Homes Operating Company, LLC (4)

Meritage Paseo Construction, LLC (5)

Meritage Paseo Crossing, LLC (6)

MTH-Cavalier, LLC (5)

MTH Golf, LLC (5)

WW Project Seller, LLC (7)

Meritage Homes of the Carolinas, Inc.

Carefree Title Agency, Inc.

M&M Fort Myers Holdings, LLC (7)

Meritage Homes of Florida Realty LLC (8)

Meritage Homes of Georgia Realty, LLC (9)

Meritage Homes of Georgia, Inc.

Meritage Homes of South Carolina, Inc.

Meritage Homes of Tennessee, Inc.

MLC Holdings, Inc. dba MLC Land Holdings, Inc.

MTH GA Realty LLC (9)

MTH Realty LLC (7)

MTH SC Realty LLC (10)

MTH Shelf Co., Inc.

 

 

 

(1)	Executed by Meritage Homes of California, Inc., as sole member

(2)	Executed by Meritage Homes of Texas Holding, Inc., as sole member

(3)	Executed by Meritage Homes of Texas Holding, Inc., as sole member of Meritage Homes of Texas, LLC, which is the sole member of this co-registrant

(4)	Executed by Meritage Homes of Texas Holding, Inc., as 99% member of this co-registrant and the sole member of Meritage Holdings, L.L.C., which owns the remaining 1% of this co-registrant

(5)	Executed by Meritage Homes Construction, Inc., as sole member

(6)	Executed by Meritage Homes of Arizona, Inc., as sole member

(7)	Executed by Meritage Homes of Arizona, Inc., as the sole member of Meritage Paseo Crossing, LLC, which is the sole member of this co-registrant

(8)	Executed by Meritage Homes of Florida, Inc., as sole member and manager

(9)	Executed by Meritage Homes of Georgia, Inc., as sole member and manager

(10)	Executed by Meritage Homes of South Carolina, Inc., as sole member and manager

 

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Steven J. Hilton and Larry W. Seay, and each of them, with full power of substitution and full power to act without the other, his true and lawful attorney-in-fact and agent to act for him in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file this registration statement, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to effectuate the same as fully, to all intents and purposes, as they, he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

ON BEHALF OF MERITAGE HOMES CORPORATION:

 

Signature				Title		Date
By:		/s/ STEVEN J. HILTON		Chairman and Chief Executive Officer		June 24, 2015
		Steven J. Hilton		(Principal Executive Officer)
By:		/s/ LARRY W. SEAY		Executive Vice President and		June 24, 2015
		Larry W. Seay		Chief Financial Officer
				(Principal Financial Officer)
By:		/s/ HILLA SFERRUZZA		Senior Vice President, Corporate Controller and		June 24, 2015
		Hilla Sferruzza		Chief Accounting Officer
				(Principal Accounting Officer)
By:		/s/ PETER L. AX		Director		June 24, 2015
		Peter L. Ax
By:		/s/ RAYMOND OPPEL		Director		June 24, 2015
		Raymond Oppel
By:		/s/ ROBERT G. SARVER		Director		June 24, 2015
		Robert G. Sarver
By:		/s/ RICHARD T. BURKE, SR.		Director		June 24, 2015
		Richard T. Burke, Sr.
By:		/s/ GERALD W. HADDOCK		Director		June 24, 2015
		Gerald W. Haddock
By:		/s/ DANA BRADFORD		Director		June 24, 2015
		Dana Bradford
By:		/s/ MICHAEL R. ODELL		Director		June 22, 2015
		Michael R. Odell

 

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ON BEHALF OF THE FOLLOWING INCORPORATED CO-REGISTRANTS:

Name of Co-Registrant:

Meritage Homes Construction, Inc.

Meritage Homes of Arizona, Inc.

Meritage Homes of California, Inc.

Meritage Homes of Colorado, Inc.

Meritage Homes of Florida, Inc.

Meritage Homes of Nevada, Inc.

Meritage Homes of Texas Holding, Inc.

Meritage Homes of the Carolinas, Inc.

Carefree Title Agency, Inc. Meritage Homes of Georgia, Inc.

Meritage Homes of South Carolina, Inc.

Meritage Homes of Tennessee, Inc.

MLC Holdings, Inc. dba MLC Land Holdings, Inc.

MTH Shelf Co., Inc.

 

Signature				Title		Date
By:		/s/ STEVEN J. HILTON		Chief Executive Officer and Director		June 24, 2015
		Steven J. Hilton		(Principal Executive Officer)
By:		/s/ LARRY W. SEAY		Executive Vice President, Chief		June 24, 2015
		Larry W. Seay		Financial Officer, Assistant Secretary and Director
				(Principal Financial Officer)
By:		/s/ HILLA SFERRUZZA		Vice President, Chief Accounting Officer,		June 24, 2015
		Hilla Sferruzza		Corporate Controller and Assistant Secretary (Principal Accounting Officer)

ON BEHALF OF THE FOLLOWING INCORPORATED CO-REGISTRANT:

Name of Co-Registrant

Meritage Homes of Florida, Inc.

 

By:		/s/ C. TIMOTHY WHITE		Director		June 24, 2015
		C. Timothy White

 

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ON BEHALF OF THE FOLLOWING LIMITED LIABILITY COMPANY CO-REGISTRANTS:

Name of Co-Registrant

California Urban Homes, LLC

Meritage Holdings, L.L.C.

Meritage Homes of Texas Joint Venture Holding Company, LLC

Meritage Homes of Texas, LLC

Meritage Homes Operating Company, LLC

Meritage Paseo Construction, LLC

Meritage Paseo Crossing, LLC

MTH-Cavalier, LLC

MTH Golf, LLC

WW Project Sellor, LLC

M&M Fort Myers Holdings, LLC

Meritage Homes of Florida Realty LLC Meritage Homes of Georgia Realty, LLC

MTH GA Realty LLC

MTH Realty LLC

MTH SC Realty LLC

Sole Member or Manager of Co-Registrant

Meritage Homes of California, Inc.

Meritage Homes of Texas Holding, Inc.

Meritage Homes of Texas, LLC

Meritage Holdings, L.L.C.

Meritage Homes Construction, Inc.

Meritage Homes of Arizona, Inc.

Meritage Paseo Crossing, LLC Meritage Homes of Florida, Inc.

Meritage Homes of Georgia, Inc.

Meritage Homes of South Carolina, Inc.

 

Signature				Title		Date
By:		/s/ STEVEN J. HILTON		Chief Executive Officer and Director of each of:		June 24, 2015
		Steven J. Hilton		Meritage Homes Construction, Inc.,
				Meritage Homes of Arizona, Inc.,
				Meritage Homes of California, Inc.,
				Meritage Homes of Texas Holding, Inc.,
				Meritage Homes of Florida, Inc.,
				Meritage Homes of Georgia, Inc., and
				Meritage Homes of South Carolina, Inc.
				(Principal Executive Officer)
By:		/s/ LARRY W. SEAY		Executive Vice President, Chief Financial		June 24, 2015
		Larry W. Seay		Officer, Assistant Secretary and Director of each of:
				Meritage Homes Construction, Inc.,
				Meritage Homes of Arizona, Inc.,
				Meritage Homes of California, Inc.,
				Meritage Homes of Texas Holding, Inc.
				Meritage Homes of Florida, Inc.,
				Meritage Homes of Georgia, Inc., and
				Meritage Homes of South Carolina, Inc.
				(Principal Financial Officer)

 

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By:		/s/ HILLA SFERRUZZA		Vice President, Chief Accounting Officer,		June 24, 2015
		Hilla Sferruzza		Corporate Controller and Assistant Secretary     Meritage Homes Construction, Inc.,
				Meritage Homes of Arizona, Inc.,
				Meritage Homes of California, Inc.,
				Meritage Homes of Texas Holding, Inc.
				Meritage Homes of Florida, Inc.,
				Meritage Homes of Georgia, Inc., and
				Meritage Homes of South Carolina, Inc.
				(Principal Accounting Officer)
By:		/s/ C. TIMOTHY WHITE		Director		June 24, 2015
		C. Timothy White		Meritage Homes of Florida, Inc.

 

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INDEX OF EXHIBITS

 

Exhibit Number		Description		Page or Method of Filing
2.1		Agreement and Plan of Reorganization, dated as of September 13, 1996, by and among Homeplex, the Monterey Merging Companies and the Monterey Stockholders		Incorporated by reference to Appendix A of Form S-4 Registration Statement No. 333-15937.
3.1		Restated Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Exhibit 3 of Form 8-K dated June 20, 2002.
3.1.1		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Exhibit 3.1 of Form 8-K dated September 15, 2004.
3.1.2		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Appendix A of the Proxy Statement for the 2006 Annual Meeting of Stockholders.
3.1.3		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Appendix B of the Proxy Statement for the 2008 Annual Meeting of Stockholders.
3.1.4		Amendment to Articles of Incorporation of Meritage Homes Corporation		Incorporated by reference to Appendix A of the Definitive Proxy Statement filed with the Securities and Exchange Commission on January 9, 2009.
3.2		Amended and Restated Bylaws of Meritage Homes Corporation		Incorporated by reference to Exhibit 3.1 of Form 8-K dated November 24, 2014.
3.3		Articles of Organization of Meritage Paseo Crossing, LLC		Incorporated by reference to Exhibit 3.6 of Form S-4 Registration Statement No. 333-64538.
3.4		Articles of Incorporation of Meritage Homes Construction, Inc. (formerly known as Hancock-MTH Builders, Inc.)		Incorporated by reference to Exhibit 3.19 of Form S-4 Registration Statement No. 333-64538.
3.4.1		Articles of Amendment and Merger of Meritage Homes Construction, Inc. (formerly known as Hancock-MTH Builders, Inc.)		Incorporated by reference to Exhibit 3.4.1 of Form S-4 Registration Statement No. 333-166972.
3.5		Bylaws of Meritage Homes Construction, Inc. (formerly known as Hancock-MTH Builders, Inc.)		Incorporated by reference to Exhibit 3.20 of Form S-4 Registration Statement No. 333-64538.
3.6		Articles of Organization of Meritage Paseo Construction, LLC (formerly known as Chandler 110, LLC)		Incorporated by reference to Exhibit 3.9 of Form S-4 Registration Statement No. 333-64538.
3.6.1		Amendment to Articles of Organization of Meritage Paseo Construction, LLC (formerly known as Chandler 110, LLC)		Incorporated by reference to Exhibit 3.9.1 of Form S-4 Registration Statement No. 333-64538.
3.7		Articles of Incorporation of Meritage Homes of California, Inc. (formerly known as Meritage Homes of Northern California, Inc.)		Incorporated by reference to Exhibit 3.17 of Form S-4 Registration Statement No. 333-64538.
3.7.1		Certificate of Amendment of Articles of Incorporation for Meritage Homes of California, Inc. (formerly known as Meritage Homes of Northern California, Inc.)		Incorporated by reference to Exhibit 3.17.1 of Form S-4 Registration Statement No. 333-115610.
3.8		Bylaws of Meritage Homes of California, Inc. (formerly known as Meritage Homes of Northern California, Inc.)		Incorporated by reference to Exhibit 3.18 of Form S-4 Registration Statement No. 333-64538.

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Exhibit Number		Description		Page or Method of Filing
3.9		Articles of Incorporation of Meritage Homes of Arizona, Inc. (formerly known as Hancock-MTH Communities, Inc.)		Incorporated by reference to Exhibit 3.21 of Form S-4 Registration Statement No. 333-64538.
3.9.1		Articles of Amendment and Merger of Meritage Homes of Arizona, Inc. (formerly known as Hancock-MTH Communities, Inc.)		Incorporated by reference to Exhibit 3.9.1 of Form S-4 Registration Statement No. 333-166972.
3.10		Bylaws of Meritage Homes of Arizona, Inc. (formerly known as Hancock-MTH Communities, Inc.)		Incorporated by reference to Exhibit 3.22 of Form S-4 Registration Statement No. 333-64538.
3.11		Articles of Incorporation of Meritage Homes of Nevada, Inc. (formerly known as MTH-Homes Nevada, Inc.)		Incorporated by reference to Exhibit 3.30 of Form S-4 Registration Statement No. 333-105043.
3.11.1		Articles of Amendment of Meritage Homes of Nevada, Inc. (formerly known as MTH-Homes Nevada, Inc.)		Incorporated by reference to Exhibit 3.11.1 of Form S-4 Registration Statement No. 333-166972.
3.12		Bylaws of Meritage Homes of Nevada, Inc. (formerly known as MTH-Homes Nevada, Inc.)		Incorporated by reference to Exhibit 3.31 of Form S-4 Registration Statement No. 333-105043.
3.13		Articles of Organization of Meritage Holdings, L.L.C.		Incorporated by reference to Exhibit 3.32 of Form S-4 Registration Statement No. 333-105043.
3.14		Regulations of Meritage Holdings, L.L.C.		Incorporated by reference to Exhibit 3.33 of Form S-4 Registration Statement No. 333-105043.
3.15		Articles of Organization of MTH-Cavalier, LLC		Incorporated by reference to Exhibit 3.38 of Form S-4 Registration Statement No. 333-105043.
3.16		Operating Agreement of MTH-Cavalier, LLC		Incorporated by reference to Exhibit 3.39 of Form S-4 Registration Statement No. 333-105043.
3.17		Articles of Organization of MTH Golf, LLC (formerly known as Mission Royale Golf Course, LLC)		Incorporated by reference to Exhibit 3.40 of Form S-4 Registration Statement No. 333-109933.
3.17.1		Articles of Amendment of MTH Golf, LLC (formerly known as Mission Royale Golf Course, LLC)		Incorporated by reference to Exhibit 3.40.1 of Form S-4 Registration Statement No. 333-109933.
3.18		Operating Agreement of MTH Golf, LLC		Incorporated by reference to Exhibit 3.18 of Form S-4 Registration Statement No. 333-166972.
3.19		Articles of Incorporation of Meritage Homes of Colorado, Inc.		Incorporated by reference to Exhibit 3.43 of Form S-4 Registration Statement No. 333-115610.
3.20		Bylaws of Meritage Homes of Colorado, Inc.		Incorporated by reference to Exhibit 3.44 of Form S-4 Registration Statement No. 333-115610.
3.21		Articles of Incorporation of Meritage Homes of Florida, Inc. (formerly known as Greater Homes, Inc.)		Incorporated by reference to Exhibit 3.21 of Form S-4 Registration Statement No. 333-166972.
3.22		Bylaws of Meritage Homes of Florida, Inc. (formerly known as Greater Homes, Inc.)		Incorporated by reference to Exhibit 3.22 of Form S-4 Registration Statement No. 333-166972.

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Exhibit Number		Description		Page or Method of Filing
3.23		Articles of Incorporation of Meritage Homes of the Carolinas, Inc. (formerly known as Meritage Homes of North Carolina, Inc.)		Incorporated by reference to Exhibit 3.23 of Form S-4 Registration Statement No. 333-181336.
3.24		Bylaws of Meritage Homes of the Carolinas, Inc. (formerly known as Meritage Homes of North Carolina, Inc.)		Incorporated by reference to Exhibit 3.24 of Form S-4 Registration Statement No. 333-181336.
3.25		Articles of Organization of California Urban Homes, LLC		Incorporated by reference to Exhibit 3.44 of Form S-4 Registration Statement No. 333-123661.
3.26		Limited Liability Company Operating Agreement of California Urban Homes, LLC		Incorporated by reference to Exhibit 3.45 of Form S-4 Registration Statement No. 333-123661.
3.26.1		First Amendment to the Limited Liability Company Operating Agreement of California Urban Homes, LLC		Incorporated by reference to Exhibit 3.45.1 of Form S-4 Registration Statement No. 333-123661.
3.27		Articles of Incorporation of Meritage Homes of Texas Holding, Inc. (formerly known as MTH-Texas LP, Inc.)		Incorporated by reference to Exhibit 3.14 of Form S-4 Registration Statement No. 333-64538.
3.27.1		Articles of Merger and Amendment of Meritage Homes of Texas Holding, Inc. (formerly known as MTH-Texas LP, Inc.)		Incorporated by reference to Exhibit 3.27.1 of Form S-4 Registration Statement No. 333-166972.
3.28		Bylaws of Meritage Homes of Texas Holding, Inc. (formerly known as MTH-Texas LP, Inc.)		Incorporated by reference to Exhibit 3.15 of Form S-4 Registration Statement No. 333-64538.
3.29		Restated Articles of Organization of Meritage Homes of Texas Joint Venture Holding Company, LLC (formerly known as Hulen Park Venture, LLC)		Incorporated by reference to Exhibit 3.29 of Form S-4 Registration Statement No. 333-181336.
3.30		Amended and Restated Company Agreement of Meritage Homes of Texas Joint Venture Holding Company, LLC (formerly known as Hulen Park Venture, LLC)		Incorporated by reference to Exhibit 3.30 of Form S-4 Registration Statement No. 333-181336.
3.31		Articles of Organization of Meritage Homes of Texas, LLC		Incorporated by reference to Exhibit 3.31 of Form S-4 Registration Statement No. 333-166972.
3.32		Operating Agreement of Meritage Homes of Texas, LLC		Incorporated by reference to Exhibit 3.32 of Form S-4 Registration Statement No. 333-166972.
3.33		Articles of Organization of Meritage Homes Operating Company, LLC		Incorporated by reference to Exhibit 3.33 of Form S-4 Registration Statement No. 333-166972.
3.34		Operating Agreement of Meritage Homes Operating Company, LLC		Incorporated by reference to Exhibit 3.34 of Form S-4 Registration Statement No. 333-166972.
3.35		Articles of Organization of WW Project Seller, LLC		Incorporated by reference to Exhibit 3.35 of Form S-4 Registration Statement No. 333-166972.
3.36		Certificate of Formation of Carefree Title Agency, Inc.		Incorporated by reference to Exhibit 3.36 of Form S-4 Registration Statement No. 333-181336.

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Table of Contents

Exhibit Number		Description		Page or Method of Filing
3.37		Bylaws of Carefree Title Agency, Inc.		Incorporated by reference to Exhibit 3.37 of Form S-4 Registration Statement No. 333-181336.
3.38		Certificate of Formation of M&M Fort Myers Holdings, LLC		Incorporated by reference to Exhibit 3.38 of Form S-4 Registration Statement No. 333-181336.
3.39		Limited Liability Company Agreement of M&M Fort Myers Holdings, LLC		Incorporated by reference to Exhibit 3.39 of Form S-4 Registration Statement No. 333-181336.
3.40		Articles of Organization of Meritage Homes of Florida Realty LLC		Incorporated by reference to Exhibit 3.40 of the initial filing of this Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
3.41		Operating Agreement of Meritage Homes of Florida Realty LLC		Incorporated by reference to Exhibit 3.41 of the initial filing of this Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
3.42		Articles of Incorporation of Meritage Homes of Tennessee, Inc.		Incorporated by reference to Exhibit 3.42 of Form S-4 Registration Statement No. 333-192730.
3.43		Bylaws of Meritage Homes of Tennessee Inc.		Incorporated by reference to Exhibit 3.43 of Form S-4 Registration Statement No. 333-192730.
3.44		Articles of Organization of Meritage Homes of Georgia Realty, LLC		Filed herewith.
3.45		Operating Agreement of Meritage Homes of Georgia Realty, LLC		Filed herewith.
3.46		Articles of Incorporation of Meritage Homes of Georgia, Inc.		Filed herewith.
3.47		Bylaws of Meritage Homes of Georgia, Inc.		Filed herewith.
3.48		Articles of Incorporation of Meritage Homes of South Carolina, Inc.		Filed herewith.
3.49		Bylaws of Meritage Homes of South Carolina, Inc.		Filed herewith.
3.50		Articles of Incorporation of MLC Holdings, Inc. (dba MLC Land Holdings, Inc.)		Filed herewith.
3.51		Bylaws of MLC Holdings, Inc. (dba MLC Land Holdings, Inc.)		Filed herewith.
3.52		Articles of Organization of MTH GA Realty LLC		Filed herewith.
3.53		Operating Agreement of MTH GA Realty LLC		Filed herewith.

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Table of Contents

Exhibit Number		Description		Page or Method of Filing
3.54		Articles of Organization of MTH Realty LLC (formerly known as Meritage Homes of Arizona Realty LLC)		Filed herewith.
3.54.1		Articles of Amendment of MTH Realty LLC		Filed herewith.
3.55		Operating Agreement of MTH Realty LLC (formerly known as Meritage Homes of Arizona Realty LLC)		Filed herewith.
3.56		Articles of Organization of MTH SC Realty LLC		Filed herewith.
3.57		Operating Agreement of MTH SC Realty LLC		Filed herewith.
3.58		Articles of Incorporation of MTH Shelf Co., Inc. (formerly known as Meritage Homes of Georgia Realty, Inc.)		Filed herewith.
3.58.1		Articles of Amendment of MTH Shelf Co., Inc.		Filed herewith.
3.59		Bylaws of MTH Shelf Co., Inc. (formerly known as Meritage Homes of Georgia Realty, Inc.)		Filed herewith.
4.1		Form of Specimen of Common Stock Certificate		Incorporated by reference to Exhibit 4.1 of Form 10-K for the year ended December 31, 2007.
4.2		Indenture, dated April 13, 2010 (re 7.15% Senior Notes due 2020) and Form of 7.15% Senior Notes due 2020		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on April 14, 2010.
4.2.1		First Supplemental Indenture, dated April 6, 2011 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.2 of Form 10-Q for the quarter ended March 31, 2011.
4.2.2		Second Supplemental Indenture, dated February 14, 2012 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4.2 of Form 10-K for the year ended December 31, 2011.
4.2.3		Third Supplemental Indenture, dated March 7, 2012 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4 of Form 10-Q for the quarter ended March 31, 2012.
4.2.4		Fourth Supplemental Indenture, dated August 21, 2012 (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.3.4 of Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
4.2.5		Agreement of Resignation, Appointment and Acceptance, dated as of September 27, 2012, by and among Meritage Homes Corporation, Wells Fargo Bank, National Association and HSBC Bank USA, National Association (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on October 1, 2012.
4.2.6		Fifth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4 of Form 10-Q for the quarter ended September 30, 2013.
4.2.7		Sixth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.2.7 of From S-4 Registration Statement No. 333-192730.
4.2.8		Sixth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.3 of Form 10-Q for the quarter ended June 30, 2014.

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Table of Contents

Exhibit Number		Description		Page or Method of Filing
4.2.9		Seventh Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.4 of Form 10-Q for the quarter ended June 30, 2014.
4.2.10		Eighth Supplemental Indenture (re 7.15% Senior Notes due 2020)		Incorporated by reference to Exhibit 4.2.10 of Form 10-K for the year ended December 31, 2014.
4.3		Indenture, dated April 10, 2012 (re 7.00% Senior Notes due 2022) and Form of 7.00% Senior Notes due 2022		Incorporated by reference to Exhibit 4.1 of Form 8-K dated April 10, 2012.
4.3.1		First Supplemental Indenture, dated August 21, 2012 (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.4.1 of Form S-4 Registration Statement No. 333-187457 filed with the Commission on March 22, 2013.
4.3.2		Agreement of Resignation, Appointment and Acceptance, dated as of September 27, 2012, by and among Meritage Homes Corporation, Wells Fargo Bank, National Association and HSBC Bank USA, National Association (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on October 1, 2012
4.3.3		Second Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.2 of Form 10-Q for the quarter ended September 30, 2013.
4.3.4		Third Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.5 of Form 10-Q for the quarter ended June 30, 2014.
4.3.5		Fourth Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.6 of Form 10-Q for the quarter ended June 30, 2014.
4.3.6		Fifth Supplemental Indenture (re 7.00% Senior Notes due 2022)		Incorporated by reference to Exhibit 4.3.5 of Form 10-K for the year ended December 31, 2014.
4.4		Indenture, dated as of September 18, 2012		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on September 18, 2012.
4.4.1		Supplemental Indenture No. 1, dated as of September 18, 2012 (re 1.875% Convertible Senior Notes due 2032) and form of 1.875% Convertible Senior Notes due 2032		Incorporated by reference to Exhibit 4.2 of Form 8-K filed on September 18, 2012.
4.4.2		Supplemental Indenture No. 2 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.3 of Form 10-Q for the quarter ended September 30, 2013.
4.4.3		Supplemental Indenture No. 3 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.7 of Form 10-Q for the quarter ended June 30, 2014.
4.4.4		Supplemental Indenture No. 4 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.8 of Form 10-Q for the quarter ended June 30, 2014.
4.4.5		Supplemental Indenture No. 5 (re 1.875% Convertible Senior Notes due 2032)		Incorporated by reference to Exhibit 4.4.5 of Form 10-K for the year ended December 31, 2014.
4.5		Indenture, dated March 13, 2013 (re 4.50% Senior Notes due 2018), and Form of 4.50% Senior Note		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on March 13, 2013.

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Table of Contents

Exhibit Number		Description		Page or Method of Filing
4.5.1		First Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.1 of Form 10-Q for the quarter ended September 30, 2013.
4.5.2		Second Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.1 of Form 10-Q for the quarter ended June 30, 2014.
4.5.3		Third Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.2 of Form 10-Q for the quarter ended June 30, 2014.
4.5.4		Fourth Supplemental Indenture (re 4.50% Senior Notes due 2018)		Incorporated by reference to Exhibit 4.5.4 of Form 10-K for the year ended December 31, 2014.
4.6		Indenture, dated June 2, 2015 (re 6.00% Senior Notes due 2025), and Form of Note		Incorporated by reference to Exhibit 4.1 of Form 8-K filed on June 2, 2015.
4.7		Registration Rights Agreement, dated June 2, 2015 (re 6.00% Senior Notes due 2025)		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on June 2, 2015.
5.1		Opinion of Snell & Wilmer L.L.P. regarding the legality of the securities being registered		Filed herewith.
10.1		2006 Executive Management Incentive Plan*		Incorporated by reference to Appendix B of the Proxy Statement for the 2014 Annual Meeting of Stockholders.
10.2		Amended 1997 Meritage Stock Option Plan*		Incorporated by reference to Exhibit 10.3 of Form 10-K for the year ended December 31, 2004.
10.3		Meritage Homes Corporation Amended and Restated 2006 Stock Incentive Plan, as amended*		Incorporated by reference to Appendix A of the Proxy Statement for the 2014 Annual Meeting of Stockholders.
10.3.1		Representative Form of Restricted Stock Agreement*		Incorporated by reference to Exhibit 4.9 of Form S-8 Registration Statement No. 333-166991.
10.3.2		Representative Form of Restricted Stock Agreement (2006 Plan; Executive Officer)*		Incorporated by reference to Exhibit 4.9.1 of Form S-8 Registration Statement No. 333-166991.
10.3.3		Representative Form of Restricted Stock Agreement (2006 Plan; Non-Employee Director)*		Incorporated by reference to Exhibit 4.9.2 of Form S-8 Registration Statement No. 333-166991.
10.3.4		Representative Form of Non-Qualified Stock Option Agreement (2006 Plan)*		Incorporated by reference to Exhibit 4.10 of Form S-8 Registration Statement No. 333-166991.
10.3.5		Representative Form of Incentive Stock Option Agreement (2006 Plan)*		Incorporated by reference to Exhibit 4.4 of Form S-8 Registration Statement No. 333-134637.
10.3.6		Representative Form of Stock Appreciation Rights Agreement (2006 Plan)*		Incorporated by reference to Exhibit 4.5 of Form S-8 Registration Statement No. 333-134637.
10.3.7		Representative Form of Performance Share Award Agreement*		Incorporated by reference to Exhibit 10.9 of Form 8-K filed on March 28, 2014.

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Table of Contents

Exhibit Number		Description		Page or Method of Filing
10.3.8		Representative Form of Restricted Stock Unit Agreement*		Incorporated by reference to Exhibit 10.10 of Form 8-K filed on March 28, 2014.
10.4		Fourth Amended and Restated Employment Agreement between the Company and Steven J. Hilton*		Incorporated by reference to Exhibit 10.1 of Form 8-K dated March 28, 2014.
10.4.1		Third Amended and Restated Change of Control Agreement between the Company and Steven J. Hilton*		Incorporated by reference to Exhibit 10.5 of Form 8-K dated January 19, 2010.
10.4.2		Second Amendment to Third Amended and Restated Change of Control Agreement for Steven J. Hilton*		Incorporated by reference to Exhibit 10.5 of Form 8-K filed on March 28, 2014.
10.5		Fourth Amended and Restated Employment Agreement between the Company and Larry W. Seay*		Incorporated by reference to Exhibit 10.2 of Form 8-K dated March 28, 2014.
10.5.1		Third Amended and Restated Change of Control Agreement between the Company and Larry W. Seay*		Incorporated by reference to Exhibit 10.6 of Form 8-K dated January 19, 2010.
10.5.2		Second Amendment to Third Amended and Restated Change of Control Agreement between the Company and Larry W. Seay*		Incorporated by reference to Exhibit 10.6 of Form 8-K filed on March 28, 2014.
10.6		Second Amended and Restated Employment Agreement between the Company and Steven Davis*		Incorporated by reference to Exhibit 10.4 of Form 8-K dated March 28, 2014.
10.6.1		Amended and Restated Change of Control Agreement between the Company and Steven Davis*		Incorporated by reference to Exhibit 10.8 of Form 8-K dated January 19, 2010.
10.6.2		Second Amendment to Amended and Restated Change of Control Agreement between the Company and Steven Davis*		Incorporated by reference to Exhibit 10.8 of Form 8-K filed on March 28, 2014.
10.7		Second Amended and Restated Employment Agreement between the Company and C. Timothy White*		Incorporated by reference to Exhibit 10.3 of Form 8-K dated March 28, 2014.
10.7.1		Amended and Restated Change of Control Agreement between the Company and C. Timothy White*		Incorporated by reference to Exhibit 10.7 of Form 8-K dated January 19, 2010.
10.7.2		Second Amendment to Amended and Restated Change of Control Agreement between the Company and C. Timothy White*		Incorporated by reference to Exhibit 10.7 of Form 8-K filed on March 28, 2014.
10.8		Amended and Restated Credit Agreement, dated as of June 13, 2014		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on June 16, 2014.
10.9		Meritage Homes Corporation Nonqualified Deferred Compensation Plan*		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on June 10, 2013.
10.10		Asset Purchase Agreement dated July 10, 2014 re the Acquisition of Legendary Communities**		Incorporated by reference to Exhibit 10.1 of Form 8-K filed on July 14, 2014.
10.11		Phillippe Lord Employment Letter**		Incorporated by reference to Exhibit 10.2 of Form 8-K filed on April 1, 2015.

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Table of Contents

Exhibit Number		Description		Page or Method of Filing
12.1		Calculation of Ratio of Earnings to Total Fixed Charges		Filed herewith.
21.1		List of Subsidiaries		Filed herewith.
23.1		Consent of Deloitte & Touche LLP		Filed herewith.
23.2		Consent of Grant Thornton, LLP		Filed herewith.
23.3		Consent of Frazier & Deeter, LLC		Filed herewith.
23.4		Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1)		Filed herewith.
24.1		Powers of Attorney		Included in Signature Pages.
25.1		Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Wells Fargo Bank, National Association		Filed herewith.
99.1		Form of Letter of Transmittal		Filed herewith.
99.2		Form of Notice of Guaranteed Delivery		Filed herewith.
99.3		Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees		Filed herewith.
99.4		Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees		Filed herewith.
99.5		Form of Instructions from Beneficial Owner to DTC Participant		Filed herewith.
99.6		Audited consolidated financial statements of BK Residential Construction, LLC and report of independent registered public accounting firm as of and for the year ended December 31, 2013		Filed herewith.
99.7		Unaudited consolidated financial statements of BK Residential Construction, LLC as of and for the six-month period ended June 30, 2014		Filed herewith.
99.8		Audited consolidated financial statements of MTH Mortgage, LLC and report of independent certified public accountants as of and for the year ended December 31, 2012		Incorporated by reference to Exhibit 99.1 of Form 10-K for the year ended December 31, 2012.
99.9		Unaudited consolidated financial statements of MTH Mortgage, LLC as of and for the years ended December 31, 2014 and December 31, 2013		Incorporated by reference to Exhibit 99.1 of Form 10-K for the year ended December 31, 2014

 

*	Indicates a management contract or compensation plan.

**	Confidential information on this exhibit has been omitted and filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request.

Exhibit 3.44

ARTICLES OF ORGANIZATION

OF

MERITAGE HOMES OF GEORGIA REALTY, LLC

Pursuant to Arizona Revised Statutes § 29-632, the undersigned states as follows:

1. Name. The name of the limited liability company (the “Company”) formed by this instrument is “Meritage Homes of Georgia Realty, LLC”.

2. Office. The address of the Company’s known place of business in Arizona is 8800 E. Raintree Dr., Suite 300, Scottsdale, Arizona 85260.

3. Agent. The name and street address in Arizona of the initial statutory agent of the Company is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

4. Management. Management of the Company is vested in one or more managers.

5. Manager(s). The name and address of the Company’s managers at the time of its formation are as follows:

Meritage Homes of Georgia, Inc.

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

Ronald A. Machler

6140 Central Church Rd.

Douglasville, Georgia 30135

6. Member(s). The name and address of each member who owns a twenty percent or greater interest in the capital or profits of the Company are as follows:

Meritage Homes of Georgia, Inc.

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

7. Additional Matters. The Company is authorized to engage in any and all business authorized by law. The managers of the Company shall have the authority to execute and deliver documents and instruments on behalf of the Company, all of which shall be binding on the Company; provided, however, that any action undertaken by a manager other than Meritage Homes of Georgia, Inc. shall also require joinder by Meritage Homes of Georgia, Inc.

 

Dated: November 5, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer

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OPERATING AGREEMENT

OF

MERITAGE HOMES OF GEORGIA REALTY, LLC

This OPERATING AGREEMENT (the “Agreement”) is entered into as of November 6, 2014, by and between Meritage Homes of Georgia, Inc., an Arizona corporation, as a Manager (in such capacity, “Manager”) and the sole Member (in such capacity, “Member”) of the Company, and Ronald A. Machler (“Machler”), as an Additional Manager of the Company.

SECTION 1. DEFINITIONS; THE COMPANY

1.1. Formation. The Company was formed as a limited liability company pursuant to the provisions of the Arizona Limited Liability Company Act (the “Act”) and upon the terms and conditions set forth in this Agreement and the Company’s Articles of Organization (as amended, the “Articles”). Each of Member, Manager, Machler, and each Additional Manager hereby ratifies and confirms in all respects the contents of the Articles and the filing of the Articles by the authorized person/entity named therein.

1.2. Name. The name of the Company is MERITAGE HOMES OF GEORGIA REALTY, LLC. The name of the Company may be changed from time to time upon the approval of Member.

1.3. Purposes. The sole purposes of the Company are to:

(a) apply for and obtain any required licenses under applicable law to operate as a real estate broker in the State of Georgia;

(b) operate as a real estate broker in the State of Georgia; and

(c) engage in all activities that are necessary, incidental, related, or convenient to the foregoing (collectively, the “Business”).

The purposes of the Company shall be limited to only those purposes specified in this Section 1.3. Without the consent of Member, the Company shall not engage in any activity or business other than the Business.

1.4. Offices. The Company shall maintain a registered office in Arizona at a location designated by Manager and approved by Member. The registered office may be changed to any other place within the State of Arizona as may from time to time be designated by Manager and approved by Member. The Company’s principal place of business and/or any place of business located in Georgia shall be at such location or locations as may be designated by Manager and approved by Member from time to time.

1.5. Agent for Service of Process. The initial agent for service of legal process on the Company in Arizona shall be as specified in the Articles. Manager shall designate an agent for service of legal process on the Company in Georgia. Any of such agents may be changed from time to time in accordance with applicable law upon approval by Member.

 

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1.6. Term. The term of the Company commenced upon the filing of the Articles with the Arizona Corporation Commission and shall continue until the Company is dissolved in accordance with this Agreement.

1.7 Public Filings. The Manager shall cause to be filed with the Secretary of State of Georgia such documents as are necessary to qualify the Company to transact business in Georgia as a foreign limited liability company (the “Application for Registration”). The Manager shall cause to be filed any amendments to the Articles and/or the Application for Registration that are necessary to reflect amendments to this Agreement adopted by Member in accordance with the terms hereof or to comply with the requirements of applicable laws.

SECTION 2. CAPITAL CONTRIBUTIONS

Member may from time to time contribute cash or property to the Company at such time, and in such amounts and in such forms, as it may deem appropriate from time to time in its sole discretion. No member or manager of the Company shall be under any obligation at any time to make any capital contributions to the Company unless such member or manager agrees in writing to do so.

SECTION 3. DISTRIBUTIONS

During the term of the Company, cash and property shall be distributed periodically and solely to Member, at such time as Manager and Member may determine from time to time in its/their (as applicable) sole discretion. No distribution shall be declared and paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company. No manager of the Company shall have any right to receive or otherwise participate in any cash or property distributed by the Company.

SECTION 4. MEMBERS AND MANAGERS OF THE COMPANY

4.1. Members. Member shall be the sole initial member of the Company. Additional members may be admitted to the Company only upon the written consent of Manager and Member.

4.2. Managers. Manager is hereby designated a manager of the Company. Manager may be replaced as manager at any time by Member in its sole discretion. Any replacement manager designated by Member pursuant to the immediately preceding sentence shall succeed to all rights and obligation of Manager as a manager under this Agreement. Machler is hereby designated as an additional manager (an “Additional Manager”) of the Company to serve as its designated broker pursuant to applicable Georgia law. Any Additional Manager then serving may be removed at any time, effective upon written notice from Manager or Member. One or more Additional Managers or a replacement for any Additional Manager may be designated from time to time by Manager and Member. Each individual designated as an Additional Manager shall sign a signature page to this Agreement (in the form attached hereto) agreeing to be bound by the terms and conditions hereof that are or may be applicable to such individual.

 

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4.3. Authority of Managers.

(a) Authority of Manager. Except as specifically set forth in the remaining provisions of this Section 4.3, the business and affairs of the Company shall be managed exclusively by Manager (and not any Additional Manager). Manager shall have full, complete, and unlimited authority, power, and discretion to make any and all decisions and to do any and all things that it deems to be necessary or advisable to accomplish the Business, without the adoption of any resolutions or further act or writing and without the joinder of any other manager or any member of the Company. The signature of Manager, as a manager of the Company, shall be sufficient to execute any document, agreement, or instrument that is to be binding on the Company. Any person or entity dealing with the Company may rely, absolutely and without further inquiry whatsoever, upon the signature of Manager as being binding on the Company. If requested by Manager, Member and any other manager(s) shall execute and deliver resolutions confirming the absolute authority of Manager to act for and bind the Company on any and all matters described in such resolutions.

(b) Authority of Additional Manager. From time to time in its sole discretion, Manager may adopt resolutions, with the joint signature of the Additional Manager (“Joint Resolutions”), which shall set forth the authority of the Additional Manager, in his or her capacity as an Additional Manager and/or as the designated broker of the Company, to bind the Company with respect to specific matters identified in the Joint Resolutions. The Additional Manager, in his or her capacity as an Additional Manager and/or the designated broker of the Company, shall have the authority to bind the Company as to matters within the scope of any such Joint Resolutions. In the absence of Joint Resolutions granting authority to the Additional Manager to bind the Company, the Additional Manager shall have no authority to bind the Company as to any matter. Without limiting the generality of the foregoing, the Additional Manager shall have no authority in his or her capacity as an Additional Manager and/or designated broker of the Company to: incur any debt or other liabilities or obligations on behalf of the Company; take any act that is outside the scope of the Business; take any action to dissolve the Company; or file, consent to, or acquiesce in any act or event that would constitute an event of bankruptcy with respect to the Company.

4.4. Duties and Compensation of Additional Manager. Each individual appointed as an Additional Manager shall perform broker and related services for the Company as set forth in any Joint Resolutions. Each Additional Manager shall devote such time to the Company and the Business as is appropriate to conduct the Business and to fulfill his/her obligations under this Agreement in an effective manner, but shall not be required to devote his/her full time efforts to the Company. No Additional Manager shall be entitled to compensation or reimbursement of expenses from the Company unless the amounts of any such compensation or reimbursement are approved by Manager and Member. The Additional Manager shall have no right to participate in distributions from the Company and shall not be treated as a member of the Company for any purpose. The Additional Manager shall have no right to inspect the books or records of the Company, and the Company shall be under no obligation to provide reports of any kind or nature relating to the Company or its business to the Additional Manager.

4.5. Independent Activities. Except as may be set forth in any other agreement, any person or entity holding an interest as a member of the Company or serving as a manager of the

 

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Company shall be free to acquire, own, or otherwise participate in business, investment, and personal activities of any kind or nature that are not owned or operated by the Company, even if such other activities are or may be in competition with the Company. No member or manager of the Company shall be required to allow the Company or any other member or manager to participate in the ownership or profits of any business, investment, or personal activities described in the immediately preceding sentence. Each member and manager of the Company hereby represents and warrants to the other members and managers of the Company that it, he, or she has not been offered, as an inducement to enter into this Agreement, the opportunity to participate with any such other member or manager in the ownership or profits of any other business, investment, or personal activity of any kind whatsoever. The provisions of this Section 4.5 shall apply with equal force to the affiliates and related parties of each member and manager of the Company.

4.6. Limitations on Liability; Indemnity. No manager, nor any member, nor any of their respective Affiliates (each, an “Actor”) shall be liable to the Company for actions taken in good faith by the Actor in connection with the Company or its business; provided that the Actor shall in all instances remain liable for acts in breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence. The Company, its receiver or trustee shall indemnify, defend, and hold harmless each Actor, to the extent of the Company’s assets (without any obligation of any member to make contributions to the Company to fulfill such indemnity), for, from, and against any losses, costs, and expenses incurred by the Actor arising out of any claim based upon acts performed or omitted to be performed by the Actor in connection with the Business of the Company; provided that no Actor shall be indemnified for claims based upon acts performed or omitted in material breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence.

SECTION 5. ACCOUNTING AND TAX ELECTIONS

5.1. Tax Returns. The Company, as a single-member limited liability company, shall not file separate federal and state tax returns.

5.2. Method of Accounting. The books of account of the Company shall be prepared and maintained on such basis as may be determined by Manager in its sole discretion.

5.3. Bank Accounts. The funds of the Company shall be maintained in a separate account or accounts in the name of the Company and selected by Manager in its sole discretion. The Additional Manager shall have no signature authority over the accounts of the Company (except such authority over trust accounts, if any, as may be mandated by Georgia law applicable to real estate brokers with responsibility over trust accounts).

5.4. Records. The Company shall maintain or cause to be maintained records and accounts of all operations and expenditures of the Company. At a minimum, the Company shall keep at its registered office, during the term of the Company, the records required by the Act.

 

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SECTION 6. DISSOLUTION AND TERMINATION

6.1. Dissolution. The Company shall dissolve upon the first to occur of any of the following events (each a “Dissolution Event”):

(a) Upon the election of Member to dissolve the Company; or

(b) The happening of any other event that makes it unlawful or impossible to carry on the Business.

The Company shall not dissolve or terminate upon the occurrence of any event of withdrawal with respect to Member (as set forth in Section 29-733 of the Act) if Manager approves the admission of any or all of the legal successor(s) to Member as member(s) in the Company.

6.2. Articles of Dissolution. As soon as possible following the occurrence of a Dissolution Event, if the Company is not continued, a representative of the Company shall execute and file Articles of Dissolution with the Arizona Corporation Commission.

6.3. Winding Up. Upon a Dissolution Event, the Company shall cease to carry on its business, except insofar as may be necessary for the winding up of its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors, but the separate existence of the Company shall continue as and to the extent provided in the Act.

6.4. Liquidation and Distribution of Assets. Manager, a successor in interest to Manager designated in writing by Member, or in the event of the failure of Manager or any such successor to serve, a court appointed trustee, shall be responsible for overseeing the winding up and liquidation of the Company and shall take full account of the Company’s liabilities and assets upon a Dissolution Event. Any assets not required to discharge any liabilities of the Company shall be distributed to Member. Upon the completion of the winding up, liquidation, and distribution of the Company’s assets the Company shall be deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining to the winding up of the affairs of the Company and the final distribution of its assets.

SECTION 7. MISCELLANEOUS

7.1. Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legatees, legal representatives, successors, transferees, and assigns.

7.2. Construction. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party.

7.3. Time. Time is of the essence with respect to this Agreement. In the event that the last day for performance of an act or the exercise of a right under this Agreement falls on a day other than a business day, then the last day for such performance or exercise shall be the first business day thereafter.

 

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7.4. Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

7.5. Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal, invalid, or unenforceable for any reason whatsoever, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the remainder of this Agreement.

7.6. Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, and singular or plural, as the identity of the person(s) or entity/entities may require.

7.7. Counterpart Execution; Facsimile Signatures. This Agreement may be executed in any number of counterparts pursuant to original or facsimile copies of signatures with the same effect as if the parties had signed the same document pursuant to original signatures. All counterparts shall be construed together and shall constitute one agreement.

7.8. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. All prior agreements among the parties with respect to the subject matter of this Agreement, whether written or oral, are merged herein and shall be of no force or effect. This Agreement can be modified or amended only upon the written consent of Manager and Member. The signature of the Additional Manager shall not be required to any amendment to this Agreement; provided that any such amendment does not does not impose any obligations on the Additional Manager in addition to those set forth herein.

7.9. Limitation on Liability. Member’s liability for the debts and obligations of the Company shall be strictly limited as set forth in the Act and other applicable law.

7.10. Governing Law. The laws of the State of Arizona shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto.

7.11. No Third-Party Beneficiaries. No term or provision of this Agreement is intended to or shall be for the benefit of any person, firm, corporation, or other entity not a party hereto, and no such other person, firm, corporation, or other entity shall have any right or cause of action hereunder.

[SIGNATURES BEGIN ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, this Operating Agreement of Meritage Homes of Georgia Realty, LLC has been executed as of the date first set forth above.

 

 

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By signing this Agreement, each individual designated as an Additional Manager agrees to be bound by all terms and conditions hereof that are or may be applicable to such individual under this Agreement. Each individual designated as an Additional Manager to replace the individual designated above shall sign a signature page in the form attached as Schedule 1 to this Agreement, and by signing such signature page shall be deemed to have made the agreements set forth in this paragraph.

 

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SCHEDULE 1

SIGNATURE FOR ADDITIONAL MANAGER

 

ADDITIONAL MANAGER:*

Signature:

Print Name:

Signature Date:

 

Schedule 1 – Page 1

Exhibit 3.46

ARTICLES OF INCORPORATION

OF

MERITAGE HOMES OF GEORGIA, INC.

FIRST: The name of the corporation is Meritage Homes of Georgia, Inc.

SECOND: The purpose for which the corporation is organized is the transaction of any or all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. The character of business which the corporation initially intends actually to conduct is the development, construction, and sale of residences.

THIRD: The aggregate number of shares that the corporation shall have authority to issue is one thousand (1,000) common shares, all of which shares shall be of a single class, and shall be without par.

FOURTH: The name and street address in Arizona of the initial statutory agent of the corporation is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

FIFTH: The number of directors constituting the initial board of directors of the corporation is two (2). The names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders, or until their successors are elected and qualified, are:

 

NAME		ADDRESS
Steven J. Hilton		8800 East Raintree Drive, Suite 300
		Scottsdale, Arizona 85260
Larry W. Seay		8800 East Raintree Drive, Suite 300
		Scottsdale, Arizona 85260

The number of persons to serve on the board of directors thereafter shall be fixed by the bylaws of the corporation.

SIXTH: The name and address of the incorporator is Mel Faraoni, 8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260.

SEVENTH: The liability of a director or former director to the corporation or its shareholders shall be eliminated to the fullest extent permitted by Section 10-202.B.1 of the Arizona Revised Statutes.

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If the Arizona Business Corporation Act is amended to authorize corporate action further eliminating or limiting the liability of directors, the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Arizona Business Corporation Act, as amended.

Any repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

The provisions of this Article Seventh shall not be deemed to limit or preclude indemnification of a director by the corporation for any liability of a director which has not been eliminated by the provisions of this Article Seventh.

EIGHTH: The corporation shall indemnify any and all of its existing and former directors and officers to the fullest extent permitted by Arizona law. If Arizona law is amended to authorize corporate action broadening the corporation’s ability to indemnify its directors and officers, the corporation shall indemnify its existing and former directors and officers to the fullest extent permitted by Arizona law, as amended. Any repeal or modification of this Article Eighth shall not adversely affect any right or protection of any existing or former director or officer of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

 

DATED: June 18, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator

 

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

Meritage Homes of Georgia, Inc., a to-be-formed Arizona corporation, Meritage Homes of Arizona, Inc., Meritage Homes of Colorado, Inc., Meritage Homes of Nevada, Inc., Meritage Homes of Texas Holding, Inc., Meritage Homes of Tennessee, Inc., Meritage Homes of the Carolinas, Inc. and Meritage Homes of South Carolina, Inc. are affiliated in that they have the same ultimate parent.

 

DATED: June 18, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator for
						Meritage Homes of Georgia, Inc. and Vice President – Associate General Counsel for:
						Meritage Homes of Arizona, Inc.
						Meritage Homes of Colorado, Inc.
						Meritage Homes of Nevada, Inc.
						Meritage Homes of Texas Holding, Inc.
						Meritage Homes of Tennessee, Inc.
						Meritage Homes of the Carolinas, Inc.
						Meritage Homes of South Carolina, Inc.

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for Meritage Homes of Georgia, Inc., hereby accepts said appointment and agrees to serve in that capacity until replaced by the corporation or until the effective date of any resignation submitted by the undersigned.

 

Exhibit 3.47

MERITAGE HOMES OF GEORGIA, INC.

(an Arizona Corporation)

BYLAWS

I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION

1.01. Certain References. Any reference herein made to law will be deemed to refer to the law of the State of Arizona, including any applicable provision of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes, or any successor statute, as from time to time amended and in effect (sometimes referred to herein as the “Arizona Business Corporation Act”). Any reference herein made to the corporation’s Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. Except as otherwise required by law and subject to any procedures established by the corporation pursuant to Arizona Revised Statutes Section 723, the term “shareholder” as used herein shall mean one who is a holder of record of shares of the corporation. References to specific sections of law herein made shall be deemed to refer to such sections, or any comparable successor provisions, as from time to time amended and in effect.

1.02. Seniority. The law and the Articles (in that order of precedence) will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the law and such Articles (in that order of precedence), and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist.

1.03. Computation of Time. The time during which an act is required to be done, including the time for the giving of any required notice herein, shall be computed by excluding the first day or hour, as the case may be, and including the last day or hour.

II. OFFICES

2.01. Principal Office. The principal office of the corporation shall be located at any place either within or outside the State of Arizona as designated in the corporation’s most current Annual Report filed with the Arizona Corporation Commission or in any other document executed and delivered to the Arizona Corporation Commission for filing. If a principal office is not so designated, the principal office of the corporation shall mean the known place of business of the corporation. The corporation may have such other offices, either within or without the State of Arizona, as the Board of Directors may designate or as the business of the corporation may require from time to time.

2.02. Known Place of Business. A known place of business of the corporation shall be located within the State of Arizona and may be, but need not be, the address of the statutory agent of the corporation. The corporation may change its known place of business from time to time in accordance with the relevant provisions of the Arizona Business Corporation Act.

 

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III. SHAREHOLDERS

3.01. Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on a date and at a time and place designated by the Board of Directors each year, either within or without the State of Arizona, or, in the absence of action by the Board, as set forth in the notice given or waiver signed with respect to such meeting pursuant to Section 3.03 below, for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting. If any annual meeting is for any reason not held on the date determined as aforesaid, a deferred annual meeting may thereafter be called and held in lieu thereof, at which the same proceedings may be conducted. If the day fixed for the annual meeting shall be a legal holiday in the State of Arizona such meeting shall be held on the next succeeding business day.

3.02. Special Shareholder Meetings. Special meetings of the shareholders may be held whenever and wherever, either within or without the State of Arizona, called for by or at the direction of the Chairman of the Board, the President, or the Board of Directors.

3.03. Notice of Shareholders Meetings.

(a) Required Notice. Notice stating the place, day and hour of any annual or special shareholders meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting by or at the direction of the person or persons calling the meeting, to each shareholder entitled to vote at such meeting and to any other shareholder entitled to receive notice of the meeting by law or the Articles. Notices to shareholders shall be given in accordance with, and shall be deemed to be effective at the time and in the manner described in, Arizona Revised Statutes Section 10-141. If no designation is made of the place at which an annual or special meeting will be held in the notice for such meeting, the place of the meeting will be at the principal place of business of the corporation.

(b) Adjourned Meeting. If any shareholder’s meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place are announced at the meeting before adjournment. But if a new record date for the adjourned meeting is fixed or must be fixed in accordance with law or these Bylaws, then notice of the adjourned meeting shall be given to those persons who are shareholders as of the new record date and who are entitled to such notice pursuant to Section 3.03(a) above.

(c) Waiver of Notice. Any shareholder may waive notice of a meeting (or any notice of any other action required to be given by the Arizona Business Corporation Act, the corporation’s Articles, or these Bylaws), at any time before, during, or after the meeting or other action, by a writing signed by the shareholder entitled to the notice. Each such waiver shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. Under certain circumstances, a shareholder’s attendance at a meeting may constitute a waiver of notice, unless the shareholder takes certain actions to preserve his/her objections as described in the Arizona Business Corporation Act.

 

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(d) Contents of Notice. The notice of each special shareholders meeting shall include a description of the purpose or purposes for which the meeting is called. Except as required by law or the corporation’s Articles, the notice of an annual shareholders meeting need not include a description of the purpose or purposes for which the meeting is called.

3.04. Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is so fixed by the Board of Directors, the record date for the determination of shareholders shall be as provided in the Arizona Business Corporation Act.

When a determination of shareholders entitled to notice of or to vote at any meeting of shareholders has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting.

3.05. Shareholder List. The corporation shall make a complete record of the shareholders entitled to notice of each meeting of shareholders thereof, arranged in alphabetical order, listing the address and the number of shares held by each. The list shall be arranged by voting group and within each voting group by class or series of shares. The shareholder list shall be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation’s principal office or at another place identified in the meeting notice in the city where the meeting is to be held. Failure to comply with this section shall not affect the validity of any action taken at the meeting.

3.06. Shareholder Quorum and Voting Requirements.

(a) If the Articles or the Arizona Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group.

(b) If the Articles or the Arizona Business Corporation Act provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately.

(c) Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a-quorum of those shares exists with respect to that matter. Unless the Articles or the Arizona Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter.

 

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(d) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is or must be set for that adjourned meeting.

(e) If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles or the Arizona Business Corporation Act require a greater number of affirmative votes.

(f) Voting will be by ballot on any question as to which a ballot vote is demanded prior to the time the voting begins by any person entitled to vote on such question; otherwise, a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the ending of the announced time for voting.

3.07. Proxies. At all meetings of shareholders, a shareholder may vote in person or by proxy duly executed in writing by the shareholder or the shareholder’s duly authorized attorney-in-fact. Such proxy shall comply with law and shall be filed with the Secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. The burden of proving the validity of any undated, irrevocable, or otherwise contested proxy at a meeting of the shareholders will rest with the person seeking to exercise the same. A facsimile appearing to have been transmitted by a shareholder or by such shareholder’s duly authorized attorney-in-fact may be accepted as a sufficiently written and executed proxy.

3.08. Voting of Shares. Unless otherwise provided in the Articles or the Arizona Business Corporation Act, each outstanding share entitled to vote shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of shareholders.

3.09. Voting for Directors. Unless otherwise provided in the Articles, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present at the time of such vote. As provided by law, shareholders shall be entitled to cumulative voting in the election of directors.

3.10. Election Inspectors. The Board of Directors, in advance of any meeting of the shareholders, may appoint an election inspector or inspectors to act at such meeting (and at any adjournment thereof). If an election inspector or inspectors are not so appointed, the chairman of the meeting may, or upon request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the election inspector or inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity, and effect of proxies, the credentials of persons purporting to be shareholders or persons named or referred to in proxies, and the number of shares represented at the meeting in person and by proxy; will

 

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receive and count votes, ballots, and consents and announce the results thereof; will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such election inspector need be a shareholder of the corporation.

3.11. Organization and Conduct of Meetings. Each meeting of the shareholders will be called to order and thereafter chaired by the Chairman of the Board of Directors if there is one, or, if not, or if the Chairman of the Board is absent or so requests, then by the President, or if both the Chairman of the Board and the President are unavailable, then by such other officer of the corporation or such shareholder as may be appointed by the Board of Directors. The corporation’s Secretary or in his or her absence, an Assistant Secretary will act as secretary of each meeting of the shareholders. If neither the Secretary nor an Assistant Secretary is in attendance, the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary for the meeting. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person and the filing of all proxies with the election inspector or inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions, or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his or her part, the chairman of a meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, to determine the order of business to be conducted at such meeting, and to establish reasonable rules for expediting the business of the meeting and preserving the orderly conduct thereof (including any informal, or question and answer portions thereof).

3.12. Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification of the shareholders at a duly constituted meeting of the shareholders. Except as otherwise required by law, if any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the corporation and all of its shareholders as it would be if it were the act of its shareholders.

3.13. Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting of the shareholders or in the areas of credentials, proxies, quorums, voting, and similar matters, will be deemed waived if no objection is made at the meeting.

3.14. Shareholder Action by Written Consent. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one (1) or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. The consents shall be delivered to the corporation for inclusion in the minutes or filing with the corporate record. Action taken by consent is effective when the last shareholder signs the consent, unless the consent specifies a different effective date, except that if, by law, the action to be taken requires that notice be given to shareholders who are not entitled to vote on the matter, the effective date

 

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shall not be prior to ten (10) days after the corporation shall give such shareholders written notice of the proposed action, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

IV. BOARD OF DIRECTORS

4.01. General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the Board of Directors.

4.02. Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the Articles of Incorporation, the authorized number of directors shall be not less than one (1) nor more than ten (10). The number of directors in office from time to time shall be within the limits specified above, as prescribed from time to time by resolution adopted by either the shareholders or the Board of Directors. The directors will regularly be elected at each annual meeting of the shareholders, but directors may be elected at any other meeting of the shareholders. Each director shall hold office until the annual meeting of shareholders following his/her election, subject to his/her earlier resignation or removal. However, if a director’s term expires, he/she shall continue to serve until his/her successor shall have been elected and qualified, until his/her resignation or removal, or until there is a decrease in the number of directors. Unless required by the Articles, directors do not need to be residents of the State of Arizona or shareholders of the corporation.

4.03. Regular Meetings of the Board of Directors. A regular annual meeting of the Board of Directors is to be held as soon as practicable after the adjournment of each annual meeting of the shareholders, either at the place of the shareholders meeting or at such other place as the directors elected at the shareholders meeting may have been informed of at or prior to the time of their election. Additional regular meetings may be held at regular intervals at such places and at such times as the Board of Directors may determine.

4.04. Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be held whenever and wherever called for by the Chairman of the Board, the President, or the number of directors that would be required to constitute a quorum.

4.05. Notices. No notice need be given of regular meetings of the Board of Directors. Notice of the time and place of any special directors meeting shall be given at least 48 hours prior thereto. Notice shall be given in accordance with and shall be deemed to be effective at the time and in the manner described in Arizona Revised Statutes Section 10-141. Any director may waive notice of any meeting and any adjournment thereof at any time before, during, or after it is held. Except as provided in the next sentence below, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at or participation of a director in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting (or promptly upon his/her arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting.

 

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4.06. Director Quorum. A majority of the number of directors prescribed according to Section 4.02 above, or if no number is so prescribed, the number in office immediately before the meeting begins, shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the Articles require a greater number.

4.07. Directors, Manner of Acting.

(a) If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present shall be the act of the Board of Directors unless the Articles require a greater percentage.

(b) Unless the Articles provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting, in which case, any required notice of the meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. A director participating in a meeting by this means is deemed to be present in person at the meeting.

(c) A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon his/her arrival) to holding it or transacting business at the meeting; or (2) his/her dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he/she delivers written notice of his/her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation before 5:00 p.m. on the next business day after the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.

4.08. Director Action Without a Meeting. Unless the Articles provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if the action is taken by unanimous written consent of the Board of Directors as evidenced by one (1) or more written consents describing the action taken, signed by each director and filed with the minutes or corporate records. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document.

4.09. Removal of Directors by Shareholders. The shareholders may remove one (1) or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the Articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in a shareholder vote to remove him. If less than the entire Board of Directors is to be removed, a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director’s removal.

 

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4.10. Board of Director Vacancies.

(a) Unless the Articles provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, either the shareholders or the Board of Directors may fill the vacancy.

(b) If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.

(c) A vacancy that will occur at a specific later date (by reason of resignation effective at a later date) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

(d) The term of a director elected to fill a vacancy expires at the next shareholders meeting at which directors are elected.

4.11. Director Compensation. Unless otherwise provided in the Articles by resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors or any committee thereof, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or any committee thereof, or both. No such payment shall preclude any director from serving the corporation in any capacity and receiving compensation therefor.

4.12. Director Committees.

(a) Creation of Committees. Unless the Articles provide otherwise, the Board of Directors may create one (1) or more committees and appoint members of the Board of Directors to serve on them. Each committee shall have one (1) or more members, who serve at the pleasure of the Board of Directors.

(b) Selection of Members. The creation of a committee and appointment of members to it shall be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the Articles to take such action.

(c) Required Procedures. Sections 4.03 through 4.08 of this Article IV, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, apply to committees and their members.

(d) Authority. Unless limited by the Articles, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee, provided, however, that a committee may not: (1) authorize distributions; (2) approve or propose to shareholders

 

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action that requires shareholder approval under the Arizona Business Corporation Act; (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the Articles of Incorporation without shareholder action as provided by law; (5) adopt, amend or repeal these Bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except within limits specifically prescribed by the Board of Directors; or (9) fix the compensation of directors for serving on the Board of Directors or any committee of the Board of Directors.

4.13. Director Resignations. Any director or committee member may resign from his or her office at any time by written notice delivered to the Board of Directors, the Chairman of the Board, or the corporation at its known place of business. Any such resignation will be effective upon its receipt unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective.

V. OFFICERS

5.01. Number of Officers. The officers of the corporation shall be a President, a Chief Financial Officer, and a Secretary, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any Vice Presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one (1) or more other officers or assistant officers. The same individual may simultaneously hold more than one (1) office in the corporation.

5.02. Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. The designation of a specified term grants to the officer no contract rights, and the Board of Directors can remove the officer at any time prior to the termination of such term. If no term is specified, an officer of the corporation shall hold office until he or she resigns, dies, or until he or she is removed in the manner provided by law or in Section 5.03 of this Article V. The regular election or appointment of officers will take place at each annual meeting of the Board of Directors, but elections of officers may be held at any other meeting of the Board.

5.03. Resignation and Removal of Officers. An officer may resign at any time by delivering written notice to the corporation at its known place of business. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or event. Any officer may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer shall not of itself create contract rights.

5.04. Duties of Officers. Officers of the corporation shall have authority to perform such duties as may be prescribed from time to time by law, in these Bylaws, or by the Board of Directors, the President, or the superior officer of any such officer. Each officer of the corporation (in the order designated herein or by the Board) will be vested with all of the powers and charged with all of the duties of his or her superior officer in the event of such superior officer’s absence, death, or disability.

 

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5.05. Bonds and Other Requirements. The Board of Directors may require any officer to give bond to the corporation (with sufficient surety and conditioned for the faithful performance of the duties of his or her office) and to comply with such other conditions as may from time to time be required of him or her by the Board of Directors.

5.06. President. Unless otherwise specified by resolution of the Board of Directors, the President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all of the business and affairs of the corporation and the performance by all of its other officers of their respective duties and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. The President shall, when present, and in the absence of a Chairman of the Board, preside at all meetings of the shareholders and of the Board of Directors. The President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. The President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons.

5.07. Vice-President. If appointed, in the absence of the President or in the event of his/her death or disability, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. If there is no Vice-President or in the event of the death or disability of all Vice-Presidents, then the Chief Financial Officer shall perform such duties of the President in the event of his or her absence, death, or disability. Each Vice-President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. Any Vice-President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of

 

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Directors may from time to time confer the foregoing authority upon any other person or persons. A Vice-President shall perform such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors.

5.08. Secretary. The Secretary shall: (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors and any committee of the Board of Directors and all unanimous written consents of the shareholders, Board of Directors, and any committee of the Board of Directors in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the address of each shareholder which shall be furnished to the Secretary by such shareholder; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to take charge of the corporation’s stock transfer books and to compile the voting record pursuant to Section 3.05 above, and to impress the corporation’s seal, if any, on any instrument signed by the President, any Vice President, or any other duly authorized person, and to attest to the same. In the absence of the Secretary, a secretary pro tempore may be chosen by the directors or shareholders as appropriate to perform the duties of the Secretary.

5.09. Chief Financial Officer. The Chief Financial Officer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such bank, trust companies, or other depositories as shall be selected by the Board of Directors or any proper officer; (c) keep full and accurate accounts of receipts and disbursements in books and records of the corporation; and (d) in general perform all of the duties incident to the office of Chief Financial Officer and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. The Chief Financial Officer will render to the President, the directors, and the shareholders at proper times an account of all his or her transactions as Chief Financial Officer and of the financial condition of the corporation. The Chief Financial Officer shall be responsible for preparing and filing such financial reports, financial statements, and returns as may be required by law.

5.10. Assistant Secretaries. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice-President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Secretary or by the President or the Board of Directors.

5.11. Chairman of the Board. The Board of Directors may elect a Chairman to serve as a general executive officer of the corporation, and, if specifically designated as such by the Board of Directors, as the chief executive officer of the corporation. If elected, the Chairman will preside at all meetings of the Board of Directors and be vested with such other powers and duties as the Board of Directors may from time to time delegate to him or her.

 

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5.12. Salaries. The salaries of the officers of the corporation may be fixed from time to time by the Board of Directors or (except as to the President’s own) left to the discretion of the President. No officer will be prevented from receiving a salary by reason of the fact that he or she is also a director of the corporation.

5.13. Additional Appointments. In addition to the officers contemplated in this Article V, the Board of Directors may appoint other agents of the corporation with such authority to perform such duties as may be prescribed from time to time by the Board of Directors.

VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER

6.01. Certificates for Shares.

(a) Content. Certificates representing shares of the corporation shall, at a minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of Arizona, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents. Such certificates shall be signed (either manually or by facsimile to the extent allowable by law) by one or more officers of the corporation, as determined by the Board of Directors, or, if no such determination is made, by any of the Chairman of the Board (if any), the President, any Vice-President, the Chief Financial Officer, or the Secretary of the corporation, and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified and will exhibit such information as may be required by law. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the office of the corporation indicated on such certificates or ceases to be the transfer agent or registrar of the corporation, they may still be issued by the corporation and countersigned, registered, issued, and delivered by the corporation’s transfer agent and/or registrar thereafter, as though such person had continued to hold the office indicated on such certificate.

(b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish a shareholder this information on request in writing and without charge.

(c) Shareholder List. The name and address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.

 

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(d) Certificates. In the event of the loss, theft, or destruction of any certificate representing shares of the corporation or of any predecessor corporation, the corporation may issue (or, in the case of any such shares as to which a transfer agent and/or registrar have been appointed, may direct such transfer agent and/or registrar to countersign, register, and issue) a new certificate, and cause the same to be delivered to the registered owner of the shares represented thereby; provided that such owner shall have submitted such evidence showing the circumstances of the alleged loss, theft, or destruction, and his, her, or its ownership of the certificate, as the corporation considers satisfactory, together with any other facts that the corporation considers pertinent; and further provided that, if so required by the corporation, the owner shall provide a bond or other indemnity in form and amount satisfactory to the corporation (and to its transfer agent and/or registrar, if applicable).

6.02. Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the corporation will be entitled to treat the registered owner of any share of the capital stock of the corporation as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable, or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by applicable law.

6.03. Shares Without Certificates. The Board of Directors may authorize the issuance of uncertificated shares by the corporation and may prescribe procedures for the issuance and registration of transfer thereof and with respect to such other matters as the Board of Directors shall deem necessary or appropriate.

VII. DISTRIBUTIONS

7.01. Distributions. Subject to such restrictions or requirements as may be imposed by applicable law or the corporation’s Articles or as may otherwise be binding upon the corporation, the Board of Directors may from time to time declare, and the corporation may pay or make, dividends or other distributions to its shareholders.

VIII. CORPORATE SEAL

8.01. Corporate Seal. The Board of Directors may provide for a corporate seal of the corporation that will have inscribed thereon any designation including the name of the corporation, Arizona as the state of incorporation, the year of incorporation, and the words “Corporate Seal.”

IX. AMENDMENTS

9.01. Amendments. The corporation’s Board of Directors may amend or repeal the corporation’s Bylaws unless:

 

(1)

the Articles or the Arizona Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or

 

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(2)

the shareholders in adopting, amending, or repealing a particular Bylaw provide expressly that the Board of Directors may not amend or repeal that Bylaw.

The corporation’s shareholders may amend or repeal the corporation’s Bylaws even though the Bylaws may also be amended or repealed by its Board of Directors.

 

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CERTIFICATION OF ADOPTION

I, C. Timothy White, certify that I am the Executive Vice-President and Secretary of Meritage Homes of Georgia, Inc., an Arizona Corporation (the “Corporation”), and have been designated by the Board of Directors to act in that capacity. I also certify that the foregoing Bylaws have been adopted as the Bylaws of the Corporation by its Board of Directors by unanimous written consent, in lieu of a meeting, and that such Bylaws, as of the date of this Certificate, have not been repealed, altered, amended, restated, or superseded, and remain in full force and effect.

DATED as of the 18^th day of June 2014.

 

Exhibit 3.48

ARTICLES OF INCORPORATION

OF

MERITAGE HOMES OF SOUTH CAROLINA, INC.

FIRST: The name of the corporation is Meritage Homes of South Carolina, Inc.

SECOND: The purpose for which the corporation is organized is the transaction of any or all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. The character of business which the corporation initially intends actually to conduct is the development, construction, and sale of residences.

THIRD: The aggregate number of shares that the corporation shall have authority to issue is one thousand (1,000) common shares, all of which shares shall be of a single class, and shall be without par.

FOURTH: The name and street address in Arizona of the initial statutory agent of the corporation is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

FIFTH: The number of directors constituting the initial board of directors of the corporation is two (2). The names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders, or until their successors are elected and qualified, are:

 

NAME		ADDRESS
Steven J. Hilton		8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260
Larry W. Seay		8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260

The number of persons to serve on the board of directors thereafter shall be fixed by the bylaws of the corporation.

SIXTH: The name and address of the incorporator is Mel Faraoni, 8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260.

SEVENTH: The liability of a director or former director to the corporation or its shareholders shall be eliminated to the fullest extent permitted by Section 10-202.B.1 of the Arizona Revised Statutes.

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If the Arizona Business Corporation Act is amended to authorize corporate action further eliminating or limiting the liability of directors, the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Arizona Business Corporation Act, as amended.

Any repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

The provisions of this Article Seventh shall not be deemed to limit or preclude indemnification of a director by the corporation for any liability of a director which has not been eliminated by the provisions of this Article Seventh.

EIGHTH: The corporation shall indemnify any and all of its existing and former directors and officers to the fullest extent permitted by Arizona law. If Arizona law is amended to authorize corporate action broadening the corporation’s ability to indemnify its directors and officers, the corporation shall indemnify its existing and former directors and officers to the fullest extent permitted by Arizona law, as amended. Any repeal or modification of this Article Eighth shall not adversely affect any right or protection of any existing or former director or officer of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

 

DATED: May 14, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator

 

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

Meritage Homes of South Carolina, Inc., a to-be-formed Arizona corporation, Meritage Homes of Arizona, Inc., Meritage Homes of Colorado, Inc., Meritage Homes of Nevada, Inc., Meritage Homes of Texas Holding, Inc., Meritage Homes of Tennessee, Inc. and Meritage Homes of the Carolinas, Inc. are affiliated in that they have the same ultimate parent.

 

DATED: May 14, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator for
						Meritage Homes of South Carolina, Inc. and Vice President – Associate General Counsel for:
						Meritage Homes of Arizona, Inc.
						Meritage Homes of Colorado, Inc.
						Meritage Homes of Nevada, Inc.
						Meritage Homes of Texas Holding, Inc.
						Meritage Homes of Tennessee, Inc.
						Meritage Homes of the Carolinas, Inc.

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for Meritage Homes of South Carolina, Inc., hereby accepts said appointment and agrees to serve in that capacity until replaced by the corporation or until the effective date of any resignation submitted by the undersigned.

 

Exhibit 3.49

MERITAGE HOMES OF SOUTH CAROLINA, INC.

(an Arizona Corporation)

BYLAWS

I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION

1.01. Certain References. Any reference herein made to law will be deemed to refer to the law of the State of Arizona, including any applicable provision of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes, or any successor statute, as from time to time amended and in effect (sometimes referred to herein as the “Arizona Business Corporation Act”). Any reference herein made to the corporation’s Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. Except as otherwise required by law and subject to any procedures established by the corporation pursuant to Arizona Revised Statutes Section 723, the term “shareholder” as used herein shall mean one who is a holder of record of shares of the corporation. References to specific sections of law herein made shall be deemed to refer to such sections, or any comparable successor provisions, as from time to time amended and in effect.

1.02. Seniority. The law and the Articles (in that order of precedence) will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the law and such Articles (in that order of precedence), and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist.

1.03. Computation of Time. The time during which an act is required to be done, including the time for the giving of any required notice herein, shall be computed by excluding the first day or hour, as the case may be, and including the last day or hour.

II. OFFICES

2.01. Principal Office. The principal office of the corporation shall be located at any place either within or outside the State of Arizona as designated in the corporation’s most current Annual Report filed with the Arizona Corporation Commission or in any other document executed and delivered to the Arizona Corporation Commission for filing. If a principal office is not so designated, the principal office of the corporation shall mean the known place of business of the corporation. The corporation may have such other offices, either within or without the State of Arizona, as the Board of Directors may designate or as the business of the corporation may require from time to time.

2.02. Known Place of Business. A known place of business of the corporation shall be located within the State of Arizona and may be, but need not be, the address of the statutory agent of the corporation. The corporation may change its known place of business from time to time in accordance with the relevant provisions of the Arizona Business Corporation Act.

 

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III. SHAREHOLDERS

3.01. Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on a date and at a time and place designated by the Board of Directors each year, either within or without the State of Arizona, or, in the absence of action by the Board, as set forth in the notice given or waiver signed with respect to such meeting pursuant to Section 3.03 below, for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting. If any annual meeting is for any reason not held on the date determined as aforesaid, a deferred annual meeting may thereafter be called and held in lieu thereof, at which the same proceedings may be conducted. If the day fixed for the annual meeting shall be a legal holiday in the State of Arizona such meeting shall be held on the next succeeding business day.

3.02. Special Shareholder Meetings. Special meetings of the shareholders may be held whenever and wherever, either within or without the State of Arizona, called for by or at the direction of the Chairman of the Board, the President, or the Board of Directors.

3.03. Notice of Shareholders Meetings.

(a) Required Notice. Notice stating the place, day and hour of any annual or special shareholders meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting by or at the direction of the person or persons calling the meeting, to each shareholder entitled to vote at such meeting and to any other shareholder entitled to receive notice of the meeting by law or the Articles. Notices to shareholders shall be given in accordance with, and shall be deemed to be effective at the time and in the manner described in, Arizona Revised Statutes Section 10-141. If no designation is made of the place at which an annual or special meeting will be held in the notice for such meeting, the place of the meeting will be at the principal place of business of the corporation.

(b) Adjourned Meeting. If any shareholder’s meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place are announced at the meeting before adjournment. But if a new record date for the adjourned meeting is fixed or must be fixed in accordance with law or these Bylaws, then notice of the adjourned meeting shall be given to those persons who are shareholders as of the new record date and who are entitled to such notice pursuant to Section 3.03(a) above.

(c) Waiver of Notice. Any shareholder may waive notice of a meeting (or any notice of any other action required to be given by the Arizona Business Corporation Act, the corporation’s Articles, or these Bylaws), at any time before, during, or after the meeting or other action, by a writing signed by the shareholder entitled to the notice. Each such waiver shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. Under certain circumstances, a shareholder’s attendance at a meeting may constitute a waiver of notice, unless the shareholder takes certain actions to preserve his/her objections as described in the Arizona Business Corporation Act.

 

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(d) Contents of Notice. The notice of each special shareholders meeting shall include a description of the purpose or purposes for which the meeting is called. Except as required by law or the corporation’s Articles, the notice of an annual shareholders meeting need not include a description of the purpose or purposes for which the meeting is called.

3.04. Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is so fixed by the Board of Directors, the record date for the determination of shareholders shall be as provided in the Arizona Business Corporation Act.

When a determination of shareholders entitled to notice of or to vote at any meeting of shareholders has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting.

3.05. Shareholder List. The corporation shall make a complete record of the shareholders entitled to notice of each meeting of shareholders thereof, arranged in alphabetical order, listing the address and the number of shares held by each. The list shall be arranged by voting group and within each voting group by class or series of shares. The shareholder list shall be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation’s principal office or at another place identified in the meeting notice in the city where the meeting is to be held. Failure to comply with this section shall not affect the validity of any action taken at the meeting.

3.06. Shareholder Quorum and Voting Requirements.

(a) If the Articles or the Arizona Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group.

(b) If the Articles or the Arizona Business Corporation Act provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately.

(c) Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a-quorum of those shares exists with respect to that matter. Unless the Articles or the Arizona Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter.

 

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(d) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is or must be set for that adjourned meeting.

(e) If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles or the Arizona Business Corporation Act require a greater number of affirmative votes.

(f) Voting will be by ballot on any question as to which a ballot vote is demanded prior to the time the voting begins by any person entitled to vote on such question; otherwise, a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the ending of the announced time for voting.

3.07. Proxies. At all meetings of shareholders, a shareholder may vote in person or by proxy duly executed in writing by the shareholder or the shareholder’s duly authorized attorney-in-fact. Such proxy shall comply with law and shall be filed with the Secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. The burden of proving the validity of any undated, irrevocable, or otherwise contested proxy at a meeting of the shareholders will rest with the person seeking to exercise the same. A facsimile appearing to have been transmitted by a shareholder or by such shareholder’s duly authorized attorney-in-fact may be accepted as a sufficiently written and executed proxy.

3.08. Voting of Shares. Unless otherwise provided in the Articles or the Arizona Business Corporation Act, each outstanding share entitled to vote shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of shareholders.

3.09. Voting for Directors. Unless otherwise provided in the Articles, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present at the time of such vote. As provided by law, shareholders shall be entitled to cumulative voting in the election of directors.

3.10. Election Inspectors. The Board of Directors, in advance of any meeting of the shareholders, may appoint an election inspector or inspectors to act at such meeting (and at any adjournment thereof). If an election inspector or inspectors are not so appointed, the chairman of the meeting may, or upon request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the election inspector or inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity, and effect of proxies, the credentials of persons purporting to be shareholders or persons named or referred to in proxies, and the number of shares represented at the meeting in person and by proxy; will

 

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receive and count votes, ballots, and consents and announce the results thereof; will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such election inspector need be a shareholder of the corporation.

3.11. Organization and Conduct of Meetings. Each meeting of the shareholders will be called to order and thereafter chaired by the Chairman of the Board of Directors if there is one, or, if not, or if the Chairman of the Board is absent or so requests, then by the President, or if both the Chairman of the Board and the President are unavailable, then by such other officer of the corporation or such shareholder as may be appointed by the Board of Directors. The corporation’s Secretary or in his or her absence, an Assistant Secretary will act as secretary of each meeting of the shareholders. If neither the Secretary nor an Assistant Secretary is in attendance, the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary for the meeting. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person and the filing of all proxies with the election inspector or inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions, or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his or her part, the chairman of a meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, to determine the order of business to be conducted at such meeting, and to establish reasonable rules for expediting the business of the meeting and preserving the orderly conduct thereof (including any informal, or question and answer portions thereof).

3.12. Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification of the shareholders at a duly constituted meeting of the shareholders. Except as otherwise required by law, if any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the corporation and all of its shareholders as it would be if it were the act of its shareholders.

3.13. Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting of the shareholders or in the areas of credentials, proxies, quorums, voting, and similar matters, will be deemed waived if no objection is made at the meeting.

3.14. Shareholder Action by Written Consent. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one (1) or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. The consents shall be delivered to the corporation for inclusion in the minutes or filing with the corporate record. Action taken by consent is effective when the last shareholder signs the consent, unless the consent specifies a different effective date, except that if, by law, the action to be taken requires that notice be given to shareholders who are not entitled to vote on the matter, the effective date

 

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shall not be prior to ten (10) days after the corporation shall give such shareholders written notice of the proposed action, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

IV. BOARD OF DIRECTORS

4.01. General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the Board of Directors.

4.02. Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the Articles of Incorporation, the authorized number of directors shall be not less than one (1) nor more than ten (10). The number of directors in office from time to time shall be within the limits specified above, as prescribed from time to time by resolution adopted by either the shareholders or the Board of Directors. The directors will regularly be elected at each annual meeting of the shareholders, but directors may be elected at any other meeting of the shareholders. Each director shall hold office until the annual meeting of shareholders following his/her election, subject to his/her earlier resignation or removal. However, if a director’s term expires, he/she shall continue to serve until his/her successor shall have been elected and qualified, until his/her resignation or removal, or until there is a decrease in the number of directors. Unless required by the Articles, directors do not need to be residents of the State of Arizona or shareholders of the corporation.

4.03. Regular Meetings of the Board of Directors. A regular annual meeting of the Board of Directors is to be held as soon as practicable after the adjournment of each annual meeting of the shareholders, either at the place of the shareholders meeting or at such other place as the directors elected at the shareholders meeting may have been informed of at or prior to the time of their election. Additional regular meetings may be held at regular intervals at such places and at such times as the Board of Directors may determine.

4.04. Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be held whenever and wherever called for by the Chairman of the Board, the President, or the number of directors that would be required to constitute a quorum.

4.05. Notices. No notice need be given of regular meetings of the Board of Directors. Notice of the time and place of any special directors meeting shall be given at least 48 hours prior thereto. Notice shall be given in accordance with and shall be deemed to be effective at the time and in the manner described in Arizona Revised Statutes Section 10-141. Any director may waive notice of any meeting and any adjournment thereof at any time before, during, or after it is held. Except as provided in the next sentence below, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at or participation of a director in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting (or promptly upon his/her arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting.

 

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4.06. Director Quorum. A majority of the number of directors prescribed according to Section 4.02 above, or if no number is so prescribed, the number in office immediately before the meeting begins, shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the Articles require a greater number.

4.07. Directors, Manner of Acting.

(a) If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present shall be the act of the Board of Directors unless the Articles require a greater percentage.

(b) Unless the Articles provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting, in which case, any required notice of the meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. A director participating in a meeting by this means is deemed to be present in person at the meeting.

(c) A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon his/her arrival) to holding it or transacting business at the meeting; or (2) his/her dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he/she delivers written notice of his/her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation before 5:00 p.m. on the next business day after the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.

4.08. Director Action Without a Meeting. Unless the Articles provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if the action is taken by unanimous written consent of the Board of Directors as evidenced by one (1) or more written consents describing the action taken, signed by each director and filed with the minutes or corporate records. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document.

4.09. Removal of Directors by Shareholders. The shareholders may remove one (1) or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the Articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in a shareholder vote to remove him. If less than the entire Board of Directors is to be removed, a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director’s removal.

 

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4.10. Board of Director Vacancies.

(a) Unless the Articles provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, either the shareholders or the Board of Directors may fill the vacancy.

(b) If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.

(c) A vacancy that will occur at a specific later date (by reason of resignation effective at a later date) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

(d) The term of a director elected to fill a vacancy expires at the next shareholders meeting at which directors are elected.

4.11. Director Compensation. Unless otherwise provided in the Articles by resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors or any committee thereof, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or any committee thereof, or both. No such payment shall preclude any director from serving the corporation in any capacity and receiving compensation therefor.

4.12. Director Committees.

(a) Creation of Committees. Unless the Articles provide otherwise, the Board of Directors may create one (1) or more committees and appoint members of the Board of Directors to serve on them. Each committee shall have one (1) or more members, who serve at the pleasure of the Board of Directors.

(b) Selection of Members. The creation of a committee and appointment of members to it shall be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the Articles to take such action.

(c) Required Procedures. Sections 4.03 through 4.08 of this Article IV, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, apply to committees and their members.

(d) Authority. Unless limited by the Articles, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee, provided, however, that a committee may not: (1) authorize distributions; (2) approve or propose to shareholders

 

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action that requires shareholder approval under the Arizona Business Corporation Act; (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the Articles of Incorporation without shareholder action as provided by law; (5) adopt, amend or repeal these Bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except within limits specifically prescribed by the Board of Directors; or (9) fix the compensation of directors for serving on the Board of Directors or any committee of the Board of Directors.

4.13. Director Resignations. Any director or committee member may resign from his or her office at any time by written notice delivered to the Board of Directors, the Chairman of the Board, or the corporation at its known place of business. Any such resignation will be effective upon its receipt unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective.

V. OFFICERS

5.01. Number of Officers. The officers of the corporation shall be a President, a Chief Financial Officer, and a Secretary, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any Vice Presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one (1) or more other officers or assistant officers. The same individual may simultaneously hold more than one (1) office in the corporation.

5.02. Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. The designation of a specified term grants to the officer no contract rights, and the Board of Directors can remove the officer at any time prior to the termination of such term. If no term is specified, an officer of the corporation shall hold office until he or she resigns, dies, or until he or she is removed in the manner provided by law or in Section 5.03 of this Article V. The regular election or appointment of officers will take place at each annual meeting of the Board of Directors, but elections of officers may be held at any other meeting of the Board.

5.03. Resignation and Removal of Officers. An officer may resign at any time by delivering written notice to the corporation at its known place of business. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or event. Any officer may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer shall not of itself create contract rights.

5.04. Duties of Officers. Officers of the corporation shall have authority to perform such duties as may be prescribed from time to time by law, in these Bylaws, or by the Board of Directors, the President, or the superior officer of any such officer. Each officer of the corporation (in the order designated herein or by the Board) will be vested with all of the powers and charged with all of the duties of his or her superior officer in the event of such superior officer’s absence, death, or disability.

 

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5.05. Bonds and Other Requirements. The Board of Directors may require any officer to give bond to the corporation (with sufficient surety and conditioned for the faithful performance of the duties of his or her office) and to comply with such other conditions as may from time to time be required of him or her by the Board of Directors.

5.06. President. Unless otherwise specified by resolution of the Board of Directors, the President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all of the business and affairs of the corporation and the performance by all of its other officers of their respective duties and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. The President shall, when present, and in the absence of a Chairman of the Board, preside at all meetings of the shareholders and of the Board of Directors. The President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. The President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons.

5.07. Vice-President. If appointed, in the absence of the President or in the event of his/her death or disability, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. If there is no Vice-President or in the event of the death or disability of all Vice-Presidents, then the Chief Financial Officer shall perform such duties of the President in the event of his or her absence, death, or disability. Each Vice-President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. Any Vice-President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of

 

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Directors may from time to time confer the foregoing authority upon any other person or persons. A Vice-President shall perform such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors.

5.08. Secretary. The Secretary shall: (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors and any committee of the Board of Directors and all unanimous written consents of the shareholders, Board of Directors, and any committee of the Board of Directors in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the address of each shareholder which shall be furnished to the Secretary by such shareholder; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to take charge of the corporation’s stock transfer books and to compile the voting record pursuant to Section 3.05 above, and to impress the corporation’s seal, if any, on any instrument signed by the President, any Vice President, or any other duly authorized person, and to attest to the same. In the absence of the Secretary, a secretary pro tempore may be chosen by the directors or shareholders as appropriate to perform the duties of the Secretary.

5.09. Chief Financial Officer. The Chief Financial Officer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such bank, trust companies, or other depositories as shall be selected by the Board of Directors or any proper officer; (c) keep full and accurate accounts of receipts and disbursements in books and records of the corporation; and (d) in general perform all of the duties incident to the office of Chief Financial Officer and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. The Chief Financial Officer will render to the President, the directors, and the shareholders at proper times an account of all his or her transactions as Chief Financial Officer and of the financial condition of the corporation. The Chief Financial Officer shall be responsible for preparing and filing such financial reports, financial statements, and returns as may be required by law.

5.10. Assistant Secretaries. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice-President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Secretary or by the President or the Board of Directors.

5.11. Chairman of the Board. The Board of Directors may elect a Chairman to serve as a general executive officer of the corporation, and, if specifically designated as such by the Board of Directors, as the chief executive officer of the corporation. If elected, the Chairman will preside at all meetings of the Board of Directors and be vested with such other powers and duties as the Board of Directors may from time to time delegate to him or her.

 

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5.12. Salaries. The salaries of the officers of the corporation may be fixed from time to time by the Board of Directors or (except as to the President’s own) left to the discretion of the President. No officer will be prevented from receiving a salary by reason of the fact that he or she is also a director of the corporation.

5.13. Additional Appointments. In addition to the officers contemplated in this Article V, the Board of Directors may appoint other agents of the corporation with such authority to perform such duties as may be prescribed from time to time by the Board of Directors.

VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER

6.01. Certificates for Shares.

(a) Content. Certificates representing shares of the corporation shall, at a minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of Arizona, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents. Such certificates shall be signed (either manually or by facsimile to the extent allowable by law) by one or more officers of the corporation, as determined by the Board of Directors, or, if no such determination is made, by any of the Chairman of the Board (if any), the President, any Vice-President, the Chief Financial Officer, or the Secretary of the corporation, and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified and will exhibit such information as may be required by law. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the office of the corporation indicated on such certificates or ceases to be the transfer agent or registrar of the corporation, they may still be issued by the corporation and countersigned, registered, issued, and delivered by the corporation’s transfer agent and/or registrar thereafter, as though such person had continued to hold the office indicated on such certificate.

(b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish a shareholder this information on request in writing and without charge.

(c) Shareholder List. The name and address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.

 

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(d) Certificates. In the event of the loss, theft, or destruction of any certificate representing shares of the corporation or of any predecessor corporation, the corporation may issue (or, in the case of any such shares as to which a transfer agent and/or registrar have been appointed, may direct such transfer agent and/or registrar to countersign, register, and issue) a new certificate, and cause the same to be delivered to the registered owner of the shares represented thereby; provided that such owner shall have submitted such evidence showing the circumstances of the alleged loss, theft, or destruction, and his, her, or its ownership of the certificate, as the corporation considers satisfactory, together with any other facts that the corporation considers pertinent; and further provided that, if so required by the corporation, the owner shall provide a bond or other indemnity in form and amount satisfactory to the corporation (and to its transfer agent and/or registrar, if applicable).

6.02. Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the corporation will be entitled to treat the registered owner of any share of the capital stock of the corporation as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable, or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by applicable law.

6.03. Shares Without Certificates. The Board of Directors may authorize the issuance of uncertificated shares by the corporation and may prescribe procedures for the issuance and registration of transfer thereof and with respect to such other matters as the Board of Directors shall deem necessary or appropriate.

VII. DISTRIBUTIONS

7.01. Distributions. Subject to such restrictions or requirements as may be imposed by applicable law or the corporation’s Articles or as may otherwise be binding upon the corporation, the Board of Directors may from time to time declare, and the corporation may pay or make, dividends or other distributions to its shareholders.

VIII. CORPORATE SEAL

8.01. Corporate Seal. The Board of Directors may provide for a corporate seal of the corporation that will have inscribed thereon any designation including the name of the corporation, Arizona as the state of incorporation, the year of incorporation, and the words “Corporate Seal.”

IX. AMENDMENTS

9.01. Amendments. The corporation’s Board of Directors may amend or repeal the corporation’s Bylaws unless:

 

(1)

the Articles or the Arizona Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or

 

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(2)

the shareholders in adopting, amending, or repealing a particular Bylaw provide expressly that the Board of Directors may not amend or repeal that Bylaw.

The corporation’s shareholders may amend or repeal the corporation’s Bylaws even though the Bylaws may also be amended or repealed by its Board of Directors.

 

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CERTIFICATION OF ADOPTION

I, C. Timothy White, certify that I am the Executive Vice-President and Secretary of Meritage Homes of South Carolina, Inc., an Arizona Corporation (the “Corporation”), and have been designated by the Board of Directors to act in that capacity. I also certify that the foregoing Bylaws have been adopted as the Bylaws of the Corporation by its Board of Directors by unanimous written consent, in lieu of a meeting, and that such Bylaws, as of the date of this Certificate, have not been repealed, altered, amended, restated, or superseded, and remain in full force and effect.

DATED as of the 14^th day of May 2014.

 

Exhibit 3.50

ARTICLES OF INCORPORATION

OF

MLC HOLDINGS, INC.

FIRST: The name of the corporation is MLC Holdings, Inc.

SECOND: The purpose for which the corporation is organized is the transaction of any or all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. The character of business which the corporation initially intends actually to conduct is the development, construction, and sale of residences.

THIRD: The aggregate number of shares that the corporation shall have authority to issue is one thousand (1,000) common shares, all of which shares shall be of a single class, and shall be without par.

FOURTH: The name and street address in Arizona of the initial statutory agent of the corporation is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

FIFTH: The number of directors constituting the initial board of directors of the corporation is two (2). The names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders, or until their successors are elected and qualified, are:

 

NAME		ADDRESS
Steven J. Hilton		8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260
Larry W. Seay		8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260

The number of persons to serve on the board of directors thereafter shall be fixed by the bylaws of the corporation.

SIXTH: The name and address of the incorporator is Mel Faraoni, 8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260.

SEVENTH: The liability of a director or former director to the corporation or its shareholders shall be eliminated to the fullest extent permitted by Section 10-202.B.1 of the Arizona Revised Statutes.

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If the Arizona Business Corporation Act is amended to authorize corporate action further eliminating or limiting the liability of directors, the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Arizona Business Corporation Act, as amended.

Any repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

The provisions of this Article Seventh shall not be deemed to limit or preclude indemnification of a director by the corporation for any liability of a director which has not been eliminated by the provisions of this Article Seventh.

EIGHTH: The corporation shall indemnify any and all of its existing and former directors and officers to the fullest extent permitted by Arizona law. If Arizona law is amended to authorize corporate action broadening the corporation’s ability to indemnify its directors and officers, the corporation shall indemnify its existing and former directors and officers to the fullest extent permitted by Arizona law, as amended. Any repeal or modification of this Article Eighth shall not adversely affect any right or protection of any existing or former director or officer of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

 

DATED: September 18, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator

 

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

MLC Holdings, Inc. a to-be-formed Arizona corporation, Meritage Homes of Georgia Realty, Inc., Meritage Homes of Georgia, Inc., Meritage Homes of Arizona, Inc., Meritage Homes of Colorado, Inc., Meritage Homes of Nevada, Inc., Meritage Homes of Texas Holding, Inc., Meritage Homes of Tennessee, Inc., Meritage Homes of the Carolinas, Inc. and Meritage Homes of South Carolina, Inc. are affiliated in that they have the same ultimate parent.

 

DATED: September 18, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator for MLC Holdings, Inc.
						and Vice President – Associate General Counsel for:
						Meritage Homes of Arizona, Inc.
						Meritage Homes of Colorado, Inc.
						Meritage Homes of Nevada, Inc.
						Meritage Homes of Texas Holding, Inc.
						Meritage Homes of Tennessee, Inc.
						Meritage Homes of the Carolinas, Inc.
						Meritage Homes of South Carolina, Inc.
						Meritage Homes of Georgia, Inc.
						Meritage Homes of Georgia Realty, Inc.

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for MLC Holdings, Inc., hereby accepts said appointment and agrees to serve in that capacity until replaced by the corporation or until the effective date of any resignation submitted by the undersigned.

 

Exhibit 3.51

MLC HOLDINGS, INC.

(an Arizona Corporation)

BYLAWS

I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION

1.01. Certain References. Any reference herein made to law will be deemed to refer to the law of the State of Arizona, including any applicable provision of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes, or any successor statute, as from time to time amended and in effect (sometimes referred to herein as the “Arizona Business Corporation Act”). Any reference herein made to the corporation’s Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. Except as otherwise required by law and subject to any procedures established by the corporation pursuant to Arizona Revised Statutes Section 723, the term “shareholder” as used herein shall mean one who is a holder of record of shares of the corporation. References to specific sections of law herein made shall be deemed to refer to such sections, or any comparable successor provisions, as from time to time amended and in effect.

1.02. Seniority. The law and the Articles (in that order of precedence) will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the law and such Articles (in that order of precedence), and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist.

1.03. Computation of Time. The time during which an act is required to be done, including the time for the giving of any required notice herein, shall be computed by excluding the first day or hour, as the case may be, and including the last day or hour.

II. OFFICES

2.01. Principal Office. The principal office of the corporation shall be located at any place either within or outside the State of Arizona as designated in the corporation’s most current Annual Report filed with the Arizona Corporation Commission or in any other document executed and delivered to the Arizona Corporation Commission for filing. If a principal office is not so designated, the principal office of the corporation shall mean the known place of business of the corporation. The corporation may have such other offices, either within or without the State of Arizona, as the Board of Directors may designate or as the business of the corporation may require from time to time.

2.02. Known Place of Business. A known place of business of the corporation shall be located within the State of Arizona and may be, but need not be, the address of the statutory agent of the corporation. The corporation may change its known place of business from time to time in accordance with the relevant provisions of the Arizona Business Corporation Act.

 

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III. SHAREHOLDERS

3.01. Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on a date and at a time and place designated by the Board of Directors each year, either within or without the State of Arizona, or, in the absence of action by the Board, as set forth in the notice given or waiver signed with respect to such meeting pursuant to Section 3.03 below, for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting. If any annual meeting is for any reason not held on the date determined as aforesaid, a deferred annual meeting may thereafter be called and held in lieu thereof, at which the same proceedings may be conducted. If the day fixed for the annual meeting shall be a legal holiday in the State of Arizona such meeting shall be held on the next succeeding business day.

3.02. Special Shareholder Meetings. Special meetings of the shareholders may be held whenever and wherever, either within or without the State of Arizona, called for by or at the direction of the Chairman of the Board, the President, or the Board of Directors.

3.03. Notice of Shareholders Meetings.

(a) Required Notice. Notice stating the place, day and hour of any annual or special shareholders meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting by or at the direction of the person or persons calling the meeting, to each shareholder entitled to vote at such meeting and to any other shareholder entitled to receive notice of the meeting by law or the Articles. Notices to shareholders shall be given in accordance with, and shall be deemed to be effective at the time and in the manner described in, Arizona Revised Statutes Section 10-141. If no designation is made of the place at which an annual or special meeting will be held in the notice for such meeting, the place of the meeting will be at the principal place of business of the corporation.

(b) Adjourned Meeting. If any shareholder’s meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place are announced at the meeting before adjournment. But if a new record date for the adjourned meeting is fixed or must be fixed in accordance with law or these Bylaws, then notice of the adjourned meeting shall be given to those persons who are shareholders as of the new record date and who are entitled to such notice pursuant to Section 3.03(a) above.

(c) Waiver of Notice. Any shareholder may waive notice of a meeting (or any notice of any other action required to be given by the Arizona Business Corporation Act, the corporation’s Articles, or these Bylaws), at any time before, during, or after the meeting or other action, by a writing signed by the shareholder entitled to the notice. Each such waiver shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. Under certain circumstances, a shareholder’s attendance at a meeting may constitute a waiver of notice, unless the shareholder takes certain actions to preserve his/her objections as described in the Arizona Business Corporation Act.

 

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(d) Contents of Notice. The notice of each special shareholders meeting shall include a description of the purpose or purposes for which the meeting is called. Except as required by law or the corporation’s Articles, the notice of an annual shareholders meeting need not include a description of the purpose or purposes for which the meeting is called.

3.04. Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is so fixed by the Board of Directors, the record date for the determination of shareholders shall be as provided in the Arizona Business Corporation Act.

When a determination of shareholders entitled to notice of or to vote at any meeting of shareholders has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting.

3.05. Shareholder List. The corporation shall make a complete record of the shareholders entitled to notice of each meeting of shareholders thereof, arranged in alphabetical order, listing the address and the number of shares held by each. The list shall be arranged by voting group and within each voting group by class or series of shares. The shareholder list shall be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation’s principal office or at another place identified in the meeting notice in the city where the meeting is to be held. Failure to comply with this section shall not affect the validity of any action taken at the meeting.

3.06. Shareholder Quorum and Voting Requirements.

(a) If the Articles or the Arizona Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group.

(b) If the Articles or the Arizona Business Corporation Act provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately.

(c) Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a-quorum of those shares exists with respect to that matter. Unless the Articles or the Arizona Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter.

 

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(d) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is or must be set for that adjourned meeting.

(e) If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles or the Arizona Business Corporation Act require a greater number of affirmative votes.

(f) Voting will be by ballot on any question as to which a ballot vote is demanded prior to the time the voting begins by any person entitled to vote on such question; otherwise, a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the ending of the announced time for voting.

3.07. Proxies. At all meetings of shareholders, a shareholder may vote in person or by proxy duly executed in writing by the shareholder or the shareholder’s duly authorized attorney-in-fact. Such proxy shall comply with law and shall be filed with the Secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. The burden of proving the validity of any undated, irrevocable, or otherwise contested proxy at a meeting of the shareholders will rest with the person seeking to exercise the same. A facsimile appearing to have been transmitted by a shareholder or by such shareholder’s duly authorized attorney-in-fact may be accepted as a sufficiently written and executed proxy.

3.08. Voting of Shares. Unless otherwise provided in the Articles or the Arizona Business Corporation Act, each outstanding share entitled to vote shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of shareholders.

3.09. Voting for Directors. Unless otherwise provided in the Articles, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present at the time of such vote. As provided by law, shareholders shall be entitled to cumulative voting in the election of directors.

3.10. Election Inspectors. The Board of Directors, in advance of any meeting of the shareholders, may appoint an election inspector or inspectors to act at such meeting (and at any adjournment thereof). If an election inspector or inspectors are not so appointed, the chairman of the meeting may, or upon request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the election inspector or inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity, and effect of proxies, the credentials of persons purporting to be shareholders or persons named or referred to in proxies, and the number of shares represented at the meeting in person and by proxy; will

 

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receive and count votes, ballots, and consents and announce the results thereof; will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such election inspector need be a shareholder of the corporation.

3.11. Organization and Conduct of Meetings. Each meeting of the shareholders will be called to order and thereafter chaired by the Chairman of the Board of Directors if there is one, or, if not, or if the Chairman of the Board is absent or so requests, then by the President, or if both the Chairman of the Board and the President are unavailable, then by such other officer of the corporation or such shareholder as may be appointed by the Board of Directors. The corporation’s Secretary or in his or her absence, an Assistant Secretary will act as secretary of each meeting of the shareholders. If neither the Secretary nor an Assistant Secretary is in attendance, the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary for the meeting. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person and the filing of all proxies with the election inspector or inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions, or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his or her part, the chairman of a meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, to determine the order of business to be conducted at such meeting, and to establish reasonable rules for expediting the business of the meeting and preserving the orderly conduct thereof (including any informal, or question and answer portions thereof).

3.12. Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification of the shareholders at a duly constituted meeting of the shareholders. Except as otherwise required by law, if any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the corporation and all of its shareholders as it would be if it were the act of its shareholders.

3.13. Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting of the shareholders or in the areas of credentials, proxies, quorums, voting, and similar matters, will be deemed waived if no objection is made at the meeting.

3.14. Shareholder Action by Written Consent. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one (1) or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. The consents shall be delivered to the corporation for inclusion in the minutes or filing with the corporate record. Action taken by consent is effective when the last shareholder signs the consent, unless the consent specifies a different effective date, except that if, by law, the action to be taken requires that notice be given to shareholders who are not entitled to vote on the matter, the effective date

 

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shall not be prior to ten (10) days after the corporation shall give such shareholders written notice of the proposed action, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

IV. BOARD OF DIRECTORS

4.01. General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the Board of Directors.

4.02. Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the Articles of Incorporation, the authorized number of directors shall be not less than one (1) nor more than ten (10). The number of directors in office from time to time shall be within the limits specified above, as prescribed from time to time by resolution adopted by either the shareholders or the Board of Directors. The directors will regularly be elected at each annual meeting of the shareholders, but directors may be elected at any other meeting of the shareholders. Each director shall hold office until the annual meeting of shareholders following his/her election, subject to his/her earlier resignation or removal. However, if a director’s term expires, he/she shall continue to serve until his/her successor shall have been elected and qualified, until his/her resignation or removal, or until there is a decrease in the number of directors. Unless required by the Articles, directors do not need to be residents of the State of Arizona or shareholders of the corporation.

4.03. Regular Meetings of the Board of Directors. A regular annual meeting of the Board of Directors is to be held as soon as practicable after the adjournment of each annual meeting of the shareholders, either at the place of the shareholders meeting or at such other place as the directors elected at the shareholders meeting may have been informed of at or prior to the time of their election. Additional regular meetings may be held at regular intervals at such places and at such times as the Board of Directors may determine.

4.04. Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be held whenever and wherever called for by the Chairman of the Board, the President, or the number of directors that would be required to constitute a quorum.

4.05. Notices. No notice need be given of regular meetings of the Board of Directors. Notice of the time and place of any special directors meeting shall be given at least 48 hours prior thereto. Notice shall be given in accordance with and shall be deemed to be effective at the time and in the manner described in Arizona Revised Statutes Section 10-141. Any director may waive notice of any meeting and any adjournment thereof at any time before, during, or after it is held. Except as provided in the next sentence below, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at or participation of a director in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting (or promptly upon his/her arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting.

 

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4.06. Director Quorum. A majority of the number of directors prescribed according to Section 4.02 above, or if no number is so prescribed, the number in office immediately before the meeting begins, shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the Articles require a greater number.

4.07. Directors, Manner of Acting.

(a) If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present shall be the act of the Board of Directors unless the Articles require a greater percentage.

(b) Unless the Articles provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting, in which case, any required notice of the meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. A director participating in a meeting by this means is deemed to be present in person at the meeting.

(c) A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon his/her arrival) to holding it or transacting business at the meeting; or (2) his/her dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he/she delivers written notice of his/her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation before 5:00 p.m. on the next business day after the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.

4.08. Director Action Without a Meeting. Unless the Articles provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if the action is taken by unanimous written consent of the Board of Directors as evidenced by one (1) or more written consents describing the action taken, signed by each director and filed with the minutes or corporate records. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document.

4.09. Removal of Directors by Shareholders. The shareholders may remove one (1) or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the Articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in a shareholder vote to remove him. If less than the entire Board of Directors is to be removed, a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director’s removal.

 

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4.10. Board of Director Vacancies.

(a) Unless the Articles provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, either the shareholders or the Board of Directors may fill the vacancy.

(b) If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.

(c) A vacancy that will occur at a specific later date (by reason of resignation effective at a later date) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

(d) The term of a director elected to fill a vacancy expires at the next shareholders meeting at which directors are elected.

4.11. Director Compensation. Unless otherwise provided in the Articles by resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors or any committee thereof, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or any committee thereof, or both. No such payment shall preclude any director from serving the corporation in any capacity and receiving compensation therefor.

4.12. Director Committees.

(a) Creation of Committees. Unless the Articles provide otherwise, the Board of Directors may create one (1) or more committees and appoint members of the Board of Directors to serve on them. Each committee shall have one (1) or more members, who serve at the pleasure of the Board of Directors.

(b) Selection of Members. The creation of a committee and appointment of members to it shall be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the Articles to take such action.

(c) Required Procedures. Sections 4.03 through 4.08 of this Article IV, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, apply to committees and their members.

(d) Authority. Unless limited by the Articles, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee, provided, however, that a committee may not: (1) authorize distributions; (2) approve or propose to shareholders

 

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action that requires shareholder approval under the Arizona Business Corporation Act; (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the Articles of Incorporation without shareholder action as provided by law; (5) adopt, amend or repeal these Bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except within limits specifically prescribed by the Board of Directors; or (9) fix the compensation of directors for serving on the Board of Directors or any committee of the Board of Directors.

4.13. Director Resignations. Any director or committee member may resign from his or her office at any time by written notice delivered to the Board of Directors, the Chairman of the Board, or the corporation at its known place of business. Any such resignation will be effective upon its receipt unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective.

V. OFFICERS

5.01. Number of Officers. The officers of the corporation shall be a President, a Chief Financial Officer, and a Secretary, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any Vice Presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one (1) or more other officers or assistant officers. The same individual may simultaneously hold more than one (1) office in the corporation.

5.02. Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. The designation of a specified term grants to the officer no contract rights, and the Board of Directors can remove the officer at any time prior to the termination of such term. If no term is specified, an officer of the corporation shall hold office until he or she resigns, dies, or until he or she is removed in the manner provided by law or in Section 5.03 of this Article V. The regular election or appointment of officers will take place at each annual meeting of the Board of Directors, but elections of officers may be held at any other meeting of the Board.

5.03. Resignation and Removal of Officers. An officer may resign at any time by delivering written notice to the corporation at its known place of business. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or event. Any officer may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer shall not of itself create contract rights.

5.04. Duties of Officers. Officers of the corporation shall have authority to perform such duties as may be prescribed from time to time by law, in these Bylaws, or by the Board of Directors, the President, or the superior officer of any such officer. Each officer of the corporation (in the order designated herein or by the Board) will be vested with all of the powers and charged with all of the duties of his or her superior officer in the event of such superior officer’s absence, death, or disability.

 

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5.05. Bonds and Other Requirements. The Board of Directors may require any officer to give bond to the corporation (with sufficient surety and conditioned for the faithful performance of the duties of his or her office) and to comply with such other conditions as may from time to time be required of him or her by the Board of Directors.

5.06. President. Unless otherwise specified by resolution of the Board of Directors, the President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all of the business and affairs of the corporation and the performance by all of its other officers of their respective duties and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. The President shall, when present, and in the absence of a Chairman of the Board, preside at all meetings of the shareholders and of the Board of Directors. The President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. The President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons.

5.07. Vice-President. If appointed, in the absence of the President or in the event of his/her death or disability, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. If there is no Vice-President or in the event of the death or disability of all Vice-Presidents, then the Chief Financial Officer shall perform such duties of the President in the event of his or her absence, death, or disability. Each Vice-President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. Any Vice-President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of

 

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Directors may from time to time confer the foregoing authority upon any other person or persons. A Vice-President shall perform such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors.

5.08. Secretary. The Secretary shall: (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors and any committee of the Board of Directors and all unanimous written consents of the shareholders, Board of Directors, and any committee of the Board of Directors in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the address of each shareholder which shall be furnished to the Secretary by such shareholder; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to take charge of the corporation’s stock transfer books and to compile the voting record pursuant to Section 3.05 above, and to impress the corporation’s seal, if any, on any instrument signed by the President, any Vice President, or any other duly authorized person, and to attest to the same. In the absence of the Secretary, a secretary pro tempore may be chosen by the directors or shareholders as appropriate to perform the duties of the Secretary.

5.09. Chief Financial Officer. The Chief Financial Officer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such bank, trust companies, or other depositories as shall be selected by the Board of Directors or any proper officer; (c) keep full and accurate accounts of receipts and disbursements in books and records of the corporation; and (d) in general perform all of the duties incident to the office of Chief Financial Officer and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. The Chief Financial Officer will render to the President, the directors, and the shareholders at proper times an account of all his or her transactions as Chief Financial Officer and of the financial condition of the corporation. The Chief Financial Officer shall be responsible for preparing and filing such financial reports, financial statements, and returns as may be required by law.

5.10. Assistant Secretaries. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice-President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Secretary or by the President or the Board of Directors.

5.11. Chairman of the Board. The Board of Directors may elect a Chairman to serve as a general executive officer of the corporation, and, if specifically designated as such by the Board of Directors, as the chief executive officer of the corporation. If elected, the Chairman will preside at all meetings of the Board of Directors and be vested with such other powers and duties as the Board of Directors may from time to time delegate to him or her.

 

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5.12. Salaries. The salaries of the officers of the corporation may be fixed from time to time by the Board of Directors or (except as to the President’s own) left to the discretion of the President. No officer will be prevented from receiving a salary by reason of the fact that he or she is also a director of the corporation.

5.13. Additional Appointments. In addition to the officers contemplated in this Article V, the Board of Directors may appoint other agents of the corporation with such authority to perform such duties as may be prescribed from time to time by the Board of Directors.

VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER

6.01. Certificates for Shares.

(a) Content. Certificates representing shares of the corporation shall, at a minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of Arizona, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents. Such certificates shall be signed (either manually or by facsimile to the extent allowable by law) by one or more officers of the corporation, as determined by the Board of Directors, or, if no such determination is made, by any of the Chairman of the Board (if any), the President, any Vice-President, the Chief Financial Officer, or the Secretary of the corporation, and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified and will exhibit such information as may be required by law. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the office of the corporation indicated on such certificates or ceases to be the transfer agent or registrar of the corporation, they may still be issued by the corporation and countersigned, registered, issued, and delivered by the corporation’s transfer agent and/or registrar thereafter, as though such person had continued to hold the office indicated on such certificate.

(b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish a shareholder this information on request in writing and without charge.

(c) Shareholder List. The name and address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.

 

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(d) Certificates. In the event of the loss, theft, or destruction of any certificate representing shares of the corporation or of any predecessor corporation, the corporation may issue (or, in the case of any such shares as to which a transfer agent and/or registrar have been appointed, may direct such transfer agent and/or registrar to countersign, register, and issue) a new certificate, and cause the same to be delivered to the registered owner of the shares represented thereby; provided that such owner shall have submitted such evidence showing the circumstances of the alleged loss, theft, or destruction, and his, her, or its ownership of the certificate, as the corporation considers satisfactory, together with any other facts that the corporation considers pertinent; and further provided that, if so required by the corporation, the owner shall provide a bond or other indemnity in form and amount satisfactory to the corporation (and to its transfer agent and/or registrar, if applicable).

6.02. Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the corporation will be entitled to treat the registered owner of any share of the capital stock of the corporation as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable, or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by applicable law.

6.03. Shares Without Certificates. The Board of Directors may authorize the issuance of uncertificated shares by the corporation and may prescribe procedures for the issuance and registration of transfer thereof and with respect to such other matters as the Board of Directors shall deem necessary or appropriate.

VII. DISTRIBUTIONS

7.01. Distributions. Subject to such restrictions or requirements as may be imposed by applicable law or the corporation’s Articles or as may otherwise be binding upon the corporation, the Board of Directors may from time to time declare, and the corporation may pay or make, dividends or other distributions to its shareholders.

VIII. CORPORATE SEAL

8.01. Corporate Seal. The Board of Directors may provide for a corporate seal of the corporation that will have inscribed thereon any designation including the name of the corporation, Arizona as the state of incorporation, the year of incorporation, and the words “Corporate Seal.”

IX. AMENDMENTS

9.01. Amendments. The corporation’s Board of Directors may amend or repeal the corporation’s Bylaws unless:

 

(1)

the Articles or the Arizona Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or

 

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(2)

the shareholders in adopting, amending, or repealing a particular Bylaw provide expressly that the Board of Directors may not amend or repeal that Bylaw.

The corporation’s shareholders may amend or repeal the corporation’s Bylaws even though the Bylaws may also be amended or repealed by its Board of Directors.

 

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CERTIFICATION OF ADOPTION

I, C. Timothy White, certify that I am the Executive Vice-President and Secretary of MLC Holdings, Inc., an Arizona Corporation (the “Corporation”), and have been designated by the Board of Directors to act in that capacity. I also certify that the foregoing Bylaws have been adopted as the Bylaws of the Corporation by its Board of Directors by unanimous written consent, in lieu of a meeting, and that such Bylaws, as of the date of this Certificate, have not been repealed, altered, amended, restated, or superseded, and remain in full force and effect.

DATED as of the 24^th day of September 2014.

 

Exhibit 3.52

ARTICLES OF ORGANIZATION

OF

MTH GA REALTY LLC

Pursuant to Arizona Revised Statutes § 29-632, the undersigned states as follows:

1. Name. The name of the limited liability company (the “Company”) formed by this instrument is “MTH GA Realty LLC”.

2. Office. The address of the Company’s known place of business in Arizona is 8800 E. Raintree Dr., Suite 300, Scottsdale, Arizona 85260.

3. Agent. The name and street address in Arizona of the initial statutory agent of the Company is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

4. Management. Management of the Company is vested in one or more managers.

5. Manager(s). The name and address of the Company’s managers at the time of its formation are as follows:

Meritage Homes of Georgia, Inc.

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

Ronald A. Machler

6140 Central Church Rd.

Douglasville, Georgia 30135

6. Member(s). The name and address of each member who owns a twenty percent or greater interest in the capital or profits of the Company are as follows:

Meritage Homes of Georgia, Inc.

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

7. Additional Matters. The Company is authorized to engage in any and all business authorized by law. The managers of the Company shall have the authority to execute and deliver documents and instruments on behalf of the Company, all of which shall be binding on the Company; provided, however, that any action undertaken by a manager other than Meritage Homes of Georgia, Inc. shall also require joinder by Meritage Homes of Georgia, Inc.

 

Dated: August 26, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

MTH GA Realty LLC, a to-be-formed Arizona limited liability company, and MTH Realty LLC are affiliated in that they have the same ultimate parent.

 

DATED: August 26, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer for
						MTH GA Realty LLC and authorized signatory for Meritage Paseo Crossing, LLC, manager of MTH Realty LLC

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for MTH GA Realty LLC, hereby accepts said appointment and agrees to serve in that capacity until replaced by the limited liability company or until the effective date of any resignation submitted by the undersigned.

 

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OPERATING AGREEMENT

OF

MTH GA REALTY LLC

This OPERATING AGREEMENT (the “Agreement”) is entered into as of September 1, 2014, by and between Meritage Homes of Georgia, Inc., an Arizona corporation, as a Manager (in such capacity, “Manager”) and the sole Member (in such capacity, “Member”) of the Company, and Ronald A. Machler (“Machler”), as an Additional Manager of the Company.

SECTION 1. DEFINITIONS; THE COMPANY

1.1. Formation. The Company was formed as a limited liability company pursuant to the provisions of the Arizona Limited Liability Company Act (the “Act”) and upon the terms and conditions set forth in this Agreement and the Company’s Articles of Organization (as amended, the “Articles”). Each of Member, Manager, Machler, and each Additional Manager hereby ratifies and confirms in all respects the contents of the Articles and the filing of the Articles by the authorized person/entity named therein.

1.2. Name. The name of the Company is MTH GA REALTY LLC. The name of the Company may be changed from time to time upon the approval of Member.

1.3. Purposes. The sole purposes of the Company are to:

(a) apply for and obtain any required licenses under applicable law to operate as a realtor in the State of Georgia;

(b) obtain access to and participate in any Multiple Listing Service active in the State of Georgia for the listing of real property located in the State of Georgia designated by Member (individually and collectively, “MLS”);

(c) list on the MLS real property owned by Member or in which Member otherwise has an interest, and manage such listings; and

(d) engage in all activities that are necessary, incidental, related, or convenient to the foregoing (collectively, the “Business”).

The purposes of the Company shall be limited to only those purposes specified in this Section 1.3. Without the consent of Member, the Company shall not engage in any activity or business other than the Business.

1.4. Offices. The Company shall maintain a registered office in Arizona at a location designated by Manager and approved by Member. The registered office may be changed to any other place within the State of Arizona as may from time to time be designated by Manager and approved by Member. The Company’s principal place of business and/or any place of business located in Georgia shall be at such location or locations as may be designated by Manager and approved by Member from time to time.

 

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1.5. Agent for Service of Process. The initial agent for service of legal process on the Company in Arizona shall be as specified in the Articles. Manager shall designate an agent for service of legal process on the Company in Georgia. Any of such agents may be changed from time to time in accordance with applicable law upon approval by Member.

1.6. Term. The term of the Company commenced upon the filing of the Articles with the Arizona Corporation Commission and shall continue until the Company is dissolved in accordance with this Agreement.

1.7 Public Filings. The Manager shall cause to be filed with the Secretary of State of Georgia such documents as are necessary to qualify the Company to transact business in Georgia as a foreign limited liability company (the “Application for Registration”). The Manager shall cause to be filed any amendments to the Articles and/or the Application for Registration that are necessary to reflect amendments to this Agreement adopted by Member in accordance with the terms hereof or to comply with the requirements of applicable laws.

SECTION 2. CAPITAL CONTRIBUTIONS

Member may from time to time contribute cash or property to the Company at such time, and in such amounts and in such forms, as it may deem appropriate from time to time in its sole discretion. No member or manager of the Company shall be under any obligation at any time to make any capital contributions to the Company unless such member or manager agrees in writing to do so.

SECTION 3. DISTRIBUTIONS

During the term of the Company, cash and property shall be distributed periodically and solely to Member, at such time as Manager and Member may determine from time to time in its/their (as applicable) sole discretion. No distribution shall be declared and paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company. No manager of the Company shall have any right to receive or otherwise participate in any cash or property distributed by the Company.

SECTION 4. MEMBERS AND MANAGERS OF THE COMPANY

4.1. Members. Member shall be the sole initial member of the Company. Additional members may be admitted to the Company only upon the written consent of Manager and Member.

4.2. Managers. Manager is hereby designated a manager of the Company. Manager may be replaced as manager at any time by Member in its sole discretion. Any replacement manager designated by Member pursuant to the immediately preceding sentence shall succeed to all rights and obligation of Manager as a manager under this Agreement. Machler is hereby designated as an additional manager (an “Additional Manager”) of the Company to serve as its designated broker pursuant to applicable Georgia law. Any Additional Manager then serving may be removed at any time, effective upon written notice from Manager or Member. One or more Additional Managers or a replacement for any Additional Manager may be designated

 

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from time to time by Manager and Member. Each individual designated as an Additional Manager shall sign a signature page to this Agreement (in the form attached hereto) agreeing to be bound by the terms and conditions hereof that are or may be applicable to such individual.

4.3. Authority of Managers.

(a) Authority of Manager. Except as specifically set forth in the remaining provisions of this Section 4.3, the business and affairs of the Company shall be managed exclusively by Manager (and not any Additional Manager). Manager shall have full, complete, and unlimited authority, power, and discretion to make any and all decisions and to do any and all things that it deems to be necessary or advisable to accomplish the Business, without the adoption of any resolutions or further act or writing and without the joinder of any other manager or any member of the Company. The signature of Manager, as a manager of the Company, shall be sufficient to execute any document, agreement, or instrument that is to be binding on the Company. Any person or entity dealing with the Company may rely, absolutely and without further inquiry whatsoever, upon the signature of Manager as being binding on the Company. If requested by Manager, Member and any other manager(s) shall execute and deliver resolutions confirming the absolute authority of Manager to act for and bind the Company on any and all matters described in such resolutions.

(b) Authority of Additional Manager. From time to time in its sole discretion, Manager may adopt resolutions, with the joint signature of the Additional Manager (“Joint Resolutions”), which shall set forth the authority of the Additional Manager, in his or her capacity as an Additional Manager and/or as the designated broker of the Company, to bind the Company with respect to specific matters identified in the Joint Resolutions. The Additional Manager, in his or her capacity as an Additional Manager and/or the designated broker of the Company, shall have the authority to bind the Company as to matters within the scope of any such Joint Resolutions. In the absence of Joint Resolutions granting authority to the Additional Manager to bind the Company, the Additional Manager shall have no authority to bind the Company as to any matter. Without limiting the generality of the foregoing, the Additional Manager shall have no authority in his or her capacity as an Additional Manager and/or designated broker of the Company to: incur any debt or other liabilities or obligations on behalf of the Company; take any act that is outside the scope of the Business; take any action to dissolve the Company; or file, consent to, or acquiesce in any act or event that would constitute an event of bankruptcy with respect to the Company.

4.4. Duties and Compensation of Additional Manager. Each individual appointed as an Additional Manager shall perform broker and related services for the Company as set forth in any Joint Resolutions. Each Additional Manager shall devote such time to the Company and the Business as is appropriate to conduct the Business and to fulfill his/her obligations under this Agreement in an effective manner, but shall not be required to devote his/her full time efforts to the Company. No Additional Manager shall be entitled to compensation or reimbursement of expenses from the Company unless the amounts of any such compensation or reimbursement are approved by Manager and Member. The Additional Manager shall have no right to participate in distributions from the Company and shall not be treated as a member of the Company for any purpose. The Additional Manager shall have no right to inspect the books or records of the Company, and the Company shall be under no obligation to provide reports of any kind or nature relating to the Company or its business to the Additional Manager.

 

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4.5. Independent Activities. Except as may be set forth in any other agreement, any person or entity holding an interest as a member of the Company or serving as a manager of the Company shall be free to acquire, own, or otherwise participate in business, investment, and personal activities of any kind or nature that are not owned or operated by the Company, even if such other activities are or may be in competition with the Company. No member or manager of the Company shall be required to allow the Company or any other member or manager to participate in the ownership or profits of any business, investment, or personal activities described in the immediately preceding sentence. Each member and manager of the Company hereby represents and warrants to the other members and managers of the Company that it, he, or she has not been offered, as an inducement to enter into this Agreement, the opportunity to participate with any such other member or manager in the ownership or profits of any other business, investment, or personal activity of any kind whatsoever. The provisions of this Section 4.5 shall apply with equal force to the affiliates and related parties of each member and manager of the Company.

4.6. Limitations on Liability; Indemnity. No manager, nor any member, nor any of their respective Affiliates (each, an “Actor”) shall be liable to the Company for actions taken in good faith by the Actor in connection with the Company or its business; provided that the Actor shall in all instances remain liable for acts in breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence. The Company, its receiver or trustee shall indemnify, defend, and hold harmless each Actor, to the extent of the Company’s assets (without any obligation of any member to make contributions to the Company to fulfill such indemnity), for, from, and against any losses, costs, and expenses incurred by the Actor arising out of any claim based upon acts performed or omitted to be performed by the Actor in connection with the Business of the Company; provided that no Actor shall be indemnified for claims based upon acts performed or omitted in material breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence.

SECTION 5. ACCOUNTING AND TAX EELCTIONS

5.1. Tax Returns. The Company, as a single-member limited liability company, shall not file separate federal and state tax returns.

5.2. Method of Accounting. The books of account of the Company shall be prepared and maintained on such basis as may be determined by Manager in its sole discretion.

5.3. Bank Accounts. The funds of the Company shall be maintained in a separate account or accounts in the name of the Company and selected by Manager in its sole discretion. The Additional Manager shall have no signature authority over the accounts of the Company (except such authority over trust accounts, if any, as may be mandated by Georgia law applicable to real estate brokers with responsibility over trust accounts).

 

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5.4. Records. The Company shall maintain or cause to be maintained records and accounts of all operations and expenditures of the Company. At a minimum, the Company shall keep at its registered office, during the term of the Company, the records required by the Act.

SECTION 6. DISSOLUTION AND TERMINATION

6.1. Dissolution. The Company shall dissolve upon the first to occur of any of the following events (each a “Dissolution Event”):

(a) Upon the election of Member to dissolve the Company; or

(b) The happening of any other event that makes it unlawful or impossible to carry on the Business.

The Company shall not dissolve or terminate upon the occurrence of any event of withdrawal with respect to Member (as set forth in Section 29-733 of the Act) if Manager approves the admission of any or all of the legal successor(s) to Member as member(s) in the Company.

6.2. Articles of Dissolution. As soon as possible following the occurrence of a Dissolution Event, if the Company is not continued, a representative of the Company shall execute and file Articles of Dissolution with the Arizona Corporation Commission.

6.3. Winding Up. Upon a Dissolution Event, the Company shall cease to carry on its business, except insofar as may be necessary for the winding up of its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors, but the separate existence of the Company shall continue as and to the extent provided in the Act.

6.4. Liquidation and Distribution of Assets. Manager, a successor in interest to Manager designated in writing by Member, or in the event of the failure of Manager or any such successor to serve, a court appointed trustee, shall be responsible for overseeing the winding up and liquidation of the Company and shall take full account of the Company’s liabilities and assets upon a Dissolution Event. Any assets not required to discharge any liabilities of the Company shall be distributed to Member. Upon the completion of the winding up, liquidation, and distribution of the Company’s assets the Company shall be deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining to the winding up of the affairs of the Company and the final distribution of its assets.

SECTION 7. MISCELLANEOUS

7.1. Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legatees, legal representatives, successors, transferees, and assigns.

7.2. Construction. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party.

 

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7.3. Time. Time is of the essence with respect to this Agreement. In the event that the last day for performance of an act or the exercise of a right under this Agreement falls on a day other than a business day, then the last day for such performance or exercise shall be the first business day thereafter.

7.4. Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

7.5. Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal, invalid, or unenforceable for any reason whatsoever, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the remainder of this Agreement.

7.6. Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, and singular or plural, as the identity of the person(s) or entity/entities may require.

7.7. Counterpart Execution; Facsimile Signatures. This Agreement may be executed in any number of counterparts pursuant to original or facsimile copies of signatures with the same effect as if the parties had signed the same document pursuant to original signatures. All counterparts shall be construed together and shall constitute one agreement.

7.8. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. All prior agreements among the parties with respect to the subject matter of this Agreement, whether written or oral, are merged herein and shall be of no force or effect. This Agreement can be modified or amended only upon the written consent of Manager and Member. The signature of the Additional Manager shall not be required to any amendment to this Agreement; provided that any such amendment does not does not impose any obligations on the Additional Manager in addition to those set forth herein.

7.9. Limitation on Liability. Member’s liability for the debts and obligations of the Company shall be strictly limited as set forth in the Act and other applicable law.

7.10. Governing Law. The laws of the State of Arizona shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto.

7.11. No Third-Party Beneficiaries. No term or provision of this Agreement is intended to or shall be for the benefit of any person, firm, corporation, or other entity not a party hereto, and no such other person, firm, corporation, or other entity shall have any right or cause of action hereunder.

 

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[SIGNATURES BEGIN ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, this Operating Agreement of MTH GA Realty LLC has been executed as of the date first set forth above.

 

 

*

By signing this Agreement, each individual designated as an Additional Manager agrees to be bound by all terms and conditions hereof that are or may be applicable to such individual under this Agreement. Each individual designated as an Additional Manager to replace the individual designated above shall sign a signature page in the form attached as Schedule 1 to this Agreement, and by signing such signature page shall be deemed to have made the agreements set forth in this paragraph.

 

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SCHEDULE 1

SIGNATURE FOR ADDITIONAL MANAGER

 

ADDITIONAL MANAGER:*
Signature:

Print Name:

Signature Date:

 

Schedule 1 – Page 1

Exhibit 3.54

ARTICLES OF ORGANIZATION

OF

MERITAGE HOMES OF ARIZONA REALTY LLC

Pursuant to Arizona Revised Statutes § 29-632, the undersigned states as follows:

1. Name. The name of the limited liability company (the “Company”) formed by this instrument is “Meritage Homes of Arizona Realty LLC”.

2. Office. The address of the Company’s known place of business in Arizona is 8800 E. Raintree Dr., Suite 300, Scottsdale, Arizona 85260.

3. Agent. The name and street address in Arizona of the initial statutory agent of the Company is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

4. Management. Management of the Company is vested in one or more managers.

5. Manager(s). The name and address of the Company’s managers at the time of its formation are as follows:

Meritage Paseo Crossing, LLC

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

Janine Long

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

6. Member(s). The name and address of each member who owns a twenty percent or greater interest in the capital or profits of the Company are as follows:

Meritage Paseo Crossing, LLC

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

7. Additional Matters. The Company is authorized to engage in any and all business authorized by law. The managers of the Company shall have the authority to execute and deliver documents and instruments on behalf of the Company, all of which shall be binding on the Company; provided, however, that any action undertaken by a manager other than Meritage Paseo Crossing, LLC shall also require joinder by Meritage Paseo Crossing, LLC.

 

Dated: June 17, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

Meritage Homes of Arizona Realty LLC, a to-be-formed Arizona limited liability company, Meritage Homes Operating Company, LLC, Meritage Homes of Arizona, Inc., Meritage Homes of Colorado, Inc., Meritage Homes of Nevada, Inc., Meritage Homes of Texas Holding, Inc., Meritage Homes of Tennessee, Inc. Meritage Homes of the Carolinas, Inc., and Meritage Homes of South Carolina, Inc. are affiliated in that they have the same ultimate parent.

 

DATED: June 17, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer for
						Meritage Homes of Arizona Realty LLC and Vice President – Associate General Counsel for:
						Meritage Homes Operating Company, LLC
						Meritage Homes of Arizona, Inc.
						Meritage Homes of Colorado, Inc.
						Meritage Homes of Nevada, Inc.
						Meritage Homes of Texas Holding, Inc.
						Meritage Homes of Tennessee, Inc.
						Meritage Homes of the Carolinas, Inc.
						Meritage Homes of South Carolina, Inc.

 

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for Meritage Homes of Arizona Realty LLC, hereby accepts said appointment and agrees to serve in that capacity until replaced by the limited liability company or until the effective date of any resignation submitted by the undersigned.

 

Exhibit 3.54.1

 

 

DO NOT WRITE ABOVE THIS LINE; RESERVED FOR ACC USE ONLY.

ARTICLES OF AMENDMENT (SHORT FORM)

Read the Instructions LO16i

 

1.	ENTITY NAME – give the exact name of the LLC as currently shown in A.C.C. records:

MERITAGE HOMES OF ARIZONA REALTY LLC

 

2.	A.C.C. FILE NUMBER: L-1933784-8

Find the A.C.C. file number on the upper corner of filed documents OR on our website at: http://www.azcc.gov/Divisions/Corporations

CHECK THE BOX NEXT TO EACH CHANGE BEING MADE AND

COMPLETE THE REQUESTED INFORMATION FOR THAT CHANGE.

 

3.	þ   ENTITY NAME CHANGE – type or print the exact NEW name of the LLC in the space provided:

MTH REALTY LLC

 

4.      ¨   MANAGEMENT STRUCTURE CHANGE – see Instructions L016i – check only one box below and follow instructions:
¨		CHANGING TO MANAGER-MANAGED LLC – complete and attach the Manager Structure Attachment form L040. The filing will be rejected if it is submitted without the attachment.		¨		CHANGING TO MEMBER-MANAGED LLC – complete and attach the Member Structure Attachment form L041. The filing will be rejected if it is submitted without the attachment.

 

5.      ¨   DURATION CHANGE – check only one box to indicate the NEW duration or life period of the LLC:
¨       Perpetual		¨    The LLC’s life period will end on this date:				¨    The LLC’s life period will end upon the occurrence of this event:

 

6.      ¨   ENTITY TYPE CHANGE – check one and follow instructions:
¨		CHANGING TO PROFESSIONAL LLC – number 7 must also be completed.		¨		CHANGING TO NON-PROFESSIONAL LLC – (professional LLC becoming a regular LLC).

 

7.	¨   PROFESSIONAL SERVICES CHANGE – describe the NEW type of professional services of the LLC:

 

8.	¨   OTHER AMENDMENT – if an amendment was made that was not addressed by the check boxes on this form, then you must attach to these Articles of Amendment a complete copy of the amendment.

 

SIGNATURE:		By checking the box marked “I accept” below, I acknowledge under penalty of perjury that this document together with any attachments is submitted in compliance with Arizona law.

 

		þ I ACCEPT
		MEL FARAONI		07/01/2014
Signature		Printed Name		Date (mm/dd/yy)

REQUIRED – check only one and fill in the corresponding blank if signing for an entity:

 

		This is a manager-managed LLC and I am signing individually as a manager or I am signing for an entity manager named:				¨		This is a member-managed LLC and I am signing individually as a member or I am signing for an entity member named:
		MERITAGE PASEO CROSSING LLC

 

Page 1 of 1

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OPERATING AGREEMENT

OF

MTH REALTY LLC

This OPERATING AGREEMENT (the “Agreement”) is entered into as of July 2, 2014, by and between Meritage Paseo Crossing, LLC, an Arizona limited liability company, as a Manager (in such capacity “Meritage”) and the sole Member (in such capacity, “Member”) of the Company, and Janine Long (“Long”), as an Additional Manager of the Company.

SECTION 1. DEFINITIONS; THE COMPANY

1.1. Formation. The Company was formed as a limited liability company pursuant to the provisions of the Arizona Limited Liability Company Act (the “Act”) and upon the terms and conditions set forth in this Agreement and the Company’s Articles of Organization (as amended, the “Articles”). Each of the Member, Meritage, and the Additional Manager hereby ratifies and confirms in all respects the contents of the Articles and the filing of the Articles by the authorized person/entity named therein.

1.2. Name. The name of the Company is MTH REALTY LLC. The name of the Company may be changed from time to time upon the approval of the Member.

1.3. Purposes. The sole purposes of the Company are to:

(a) apply for and obtain any required licenses under applicable law to operate as a realtor in the State of Arizona;

(b) obtain access to and participate in any Multiple Listing Service active in the State of Arizona for the listing of real property located in the State of Arizona designated by Member (individually and collectively, “MLS”);

(c) list on the MLS real property owned by Member or in which Member otherwise has an interest, and manage such listings; and

(d) engage in all activities that are necessary, incidental, related, or convenient to the foregoing (collectively, the “Business”).

The purposes of the Company shall be limited to only those purposes specified in this Section 1.3. Without the consent of the Member, the Company shall not engage in any activity or business other than the Business.

1.4. Offices. The Company shall maintain a registered office in Arizona at a location designated by a Manager and approved by the Member. The registered office may be changed to any other place within the State of Arizona as may from time to time be approved by the Member. The Company’s principal place of business shall be at such location or locations as may be approved by the Member from time to time.

 

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1.5. Agent for Service of Process. The initial agent for service of legal process on the Company in Arizona shall be as specified in the Articles. Such agent may be changed from time to time in accordance with applicable law upon approval by the Member.

1.6. Term. The term of the Company commenced upon the filing of the Articles with the Arizona Corporation Commission and shall continue until the Company is dissolved in accordance with this Agreement.

SECTION 2. CAPITAL CONTRIBUTIONS

Member may from time to time contribute cash or property to the Company at such time, and in such amounts and in such forms, as it may deem appropriate from time to time in its sole discretion. No member or manager of the Company shall be under any obligation at any time to make any capital contributions to the Company unless such member or manager agrees in writing to do so.

SECTION 3. DISTRIBUTIONS

During the term of the Company, cash and property shall be distributed periodically and solely to Member, at such time as Meritage and Member may determine from time to time in its/their (as applicable) sole discretion. No distribution shall be declared and paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company. No manager of the Company shall have any right to receive or otherwise participate in any cash or property distributed by the Company.

SECTION 4. MEMBERS AND MANAGERS OF THE COMPANY

4.1. Members. Member shall be the sole initial member of the Company. Additional members may be admitted to the Company only upon the written consent of Meritage and Member.

4.2. Managers. Meritage is hereby designated a manager of the Company. Meritage may be replaced as manager at any time by Member in its sole discretion. Any replacement manager designated by Member pursuant to the immediately preceding sentence shall succeed to all rights and obligation of Meritage as a manager under this Agreement. Long is hereby designated as an additional manager (an “Additional Manager”) of the Company to serve as its designated broker pursuant to applicable Arizona law. Any Additional Manager then serving may be removed at any time, effective upon written notice from Meritage or Member. One or more Additional Managers or a replacement for any Additional Manager may be designated from time to time by Meritage and Member. Each individual designated as an Additional Manager shall sign a signature page to this Agreement (in the form attached hereto) agreeing to be bound by the terms and conditions hereof that are or may be applicable to such individual.

4.3. Authority of Managers.

(a) Authority of Meritage. Except as specifically set forth in the remaining provisions of this Section 4.3, the business and affairs of the Company shall be managed exclusively by Meritage. Meritage shall have full, complete, and unlimited authority, power, and

 

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discretion to make any and all decisions and to do any and all things that it deems to be necessary or advisable to accomplish the Business, without the adoption of any resolutions or further act or writing and without the joinder of any other manager or any member of the Company. The signature of Meritage, as a manager of the Company, shall be sufficient to execute any document, agreement, or instrument that is to be binding on the Company. Any person or entity dealing with the Company may rely, absolutely and without further inquiry whatsoever, upon the signature of Meritage as being binding on the Company. If requested by Meritage, the member and any other manager(s) shall execute and deliver resolutions confirming the absolute authority of Meritage to act for and bind the Company on any and all matters described in such resolutions.

(b) Authority of Additional Manager. From time to time in its sole discretion, Meritage may adopt resolutions, with the joint signature of the Additional Manager (“Joint Resolutions”), which shall set forth the authority of the Additional Manager, in his or her capacity as an Additional Manager and/or as the designated broker of the Company, to bind the Company with respect to specific matters identified in the Joint Resolutions. The Additional Manager, in his or her capacity as an Additional Manager and/or the designated broker of the Company, shall have the authority to bind the Company as to matters within the scope of any such Joint Resolutions. In the absence of Joint Resolutions granting authority to the Additional Manager to bind the Company, the Additional Manager shall have no authority to bind the Company as to any matter. Without limiting the generality of the foregoing, the Additional Manager shall have no authority in his or her capacity as an Additional Manager and/or designated broker of the Company to: incur any debt or other liabilities or obligations on behalf of the Company; take any act that is outside the scope of the Business; take any action to dissolve the Company; or file, consent to, or acquiesce in any act or event that would constitute an event of bankruptcy with respect to the Company.

4.4. Duties and Compensation of Additional Manager. Each individual appointed as an Additional Manager shall perform broker and related services for the Company set forth in any joint Resolutions. Each Additional Manager shall devote such time to the Company and the Business as is appropriate to conduct the Business and to fulfill his/her obligations under this Agreement in an effective manner, but shall not be required to devote his/her full time efforts to the Company. No Additional Manager shall be entitled to compensation or reimbursement of expenses from the Company unless the amounts of any such compensation or reimbursement are approved by the Manager. The Additional Manager shall have no right to participate in distributions from the Company and shall not be treated as a member of the Company for any purpose. The Additional Manager shall have no right to inspect the books or records of the Company, and the Company shall be under no obligation to provide reports of any kind or nature relating to the Company or its business to the Additional Manager.

4.5. Independent Activities. Except as may be set forth in any other agreement, any person or entity holding an interest as a member of the Company or serving as a manager of the Company shall be free to acquire, own, or otherwise participate in business, investment, and personal activities of any kind or nature that are not owned or operated by the Company, even if such other activities are or may be in competition with the Company. No member or manager of the Company shall be required to allow the Company or any other member or manager to participate in the ownership or profits of any business, investment, or personal activities

 

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described in the immediately preceding sentence. Each member and manager of the Company hereby represents and warrants to the other members and managers of the Company that it, he, or she has not been offered, as an inducement to enter into this Agreement, the opportunity to participate with any such other member or manager in the ownership or profits of any other business, investment, or personal activity of any kind whatsoever. The provisions of this Section 4.5 shall apply with equal force to the affiliates and related parties of each member and manager of the Company.

4.6. Limitations on Liability; Indemnity. No manager, nor any member, nor any of their respective Affiliates (each, an “Actor”) shall be liable to the Company for actions taken in good faith by the Actor in connection with the Company or its business; provided that the Actor shall in all instances remain liable for acts in breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence. The Company, its receiver or trustee shall indemnify, defend, and hold harmless each Actor, to the extent of the Company’s assets (without any obligation of any member to make contributions to the Company to fulfill such indemnity), for, from, and against any losses, costs, and expenses incurred by the Actor arising out of any claim based upon acts performed or omitted to be performed by the Actor in connection with the Business of the Company; provided that no Actor shall be indemnified for claims based upon acts performed or omitted in material breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence.

SECTION 5. ACCOUNTING AND TAX EELCTIONS

5.1. Tax Returns. The Company, as a single-member limited liability company, shall not file separate federal and state tax returns.

5.2. Method of Accounting. The books of account of the Company shall be prepared and maintained on such basis as may be determined by Meritage in its sole discretion.

5.3. Bank Accounts. The funds of the Company shall be maintained in a separate account or accounts in the name of the Company and selected by Meritage in its sole discretion. The Additional Manager shall have no signature authority over the accounts of the Company (except such authority over trust accounts, if any, as may be mandated by Arizona law applicable to real estate brokers with responsibility over trust accounts).

5.4. Records. The Company shall maintain or cause to be maintained records and accounts of all operations and expenditures of the Company. At a minimum, the Company shall keep at its registered office, during the term of the Company, the records required by the Act.

SECTION 6. DISSOLUTION AND TERMINATION

6.1. Dissolution. The Company shall dissolve upon the first to occur of any of the following events (each a “Dissolution Event”):

(a) Upon the election of Member to dissolve the Company; or

 

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(b) The happening of any other event that makes it unlawful or impossible to carry on the Business.

The Company shall not dissolve or terminate upon the occurrence of any event of withdrawal with respect to Member (as set forth in Section 29-733 of the Act) if Meritage approves the admission of any or all of the legal successor(s) to Member as member(s) in the Company.

6.2. Articles of Dissolution. As soon as possible following the occurrence of a Dissolution Event, if the Company is not continued, a representative of the Company shall execute and file Articles of Dissolution with the Arizona Corporation Commission.

6.3. Winding Up. Upon a Dissolution Event, the Company shall cease to carry on its business, except insofar as may be necessary for the winding up of its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors, but the separate existence of the Company shall continue as and to the extent provided in the Act.

6.4. Liquidation and Distribution of Assets. Meritage, a successor in interest to Meritage designated in writing by Member, or in the event of the failure of Meritage or any such successor to serve, a court appointed trustee, shall be responsible for overseeing the winding up and liquidation of the Company and shall take full account of the Company’s liabilities and assets upon a Dissolution Event. Any assets not required to discharge any liabilities of the Company shall be distributed to Member. Upon the completion of the winding up, liquidation, and distribution of the Company’s assets the Company shall be deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining to the winding up of the affairs of the Company and the final distribution of its assets.

SECTION 7. MISCELLANEOUS

7.1. Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legatees, legal representatives, successors, transferees, and assigns.

7.2. Construction. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party.

7.3. Time. Time is of the essence with respect to this Agreement. In the event that the last day for performance of an act or the exercise of a right under this Agreement falls on a day other than a business day, then the last day for such performance or exercise shall be the first business day thereafter.

7.4. Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

 

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7.5. Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal, invalid, or unenforceable for any reason whatsoever, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the remainder of this Agreement.

7.6. Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, and singular or plural, as the identity of the person(s) or entity/entities may require.

7.7. Counterpart Execution; Facsimile Signatures. This Agreement may be executed in any number of counterparts pursuant to original or facsimile copies of signatures with the same effect as if the parties had signed the same document pursuant to original signatures. All counterparts shall be construed together and shall constitute one agreement.

7.8. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. All prior agreements among the parties with respect to the subject matter of this Agreement, whether written or oral, are merged herein and shall be of no force or effect. This Agreement can be modified or amended only upon the written consent of Meritage and Member. The signature of the Additional Manager shall not be required to any amendment to this Agreement; provided that any such amendment does not does not impose any obligations on the Additional Manager in addition to those set forth herein.

7.9. Limitation on Liability. Member’s liability for the debts and obligations of the Company shall be strictly limited as set forth in the Act and other applicable law.

7.10. Governing Law. The laws of the State of Arizona shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto.

7.11. No Third-Party Beneficiaries. No term or provision of this Agreement is intended to or shall be for the benefit of any person, firm, corporation, or other entity not a party hereto, and no such other person, firm, corporation, or other entity shall have any right or cause of action hereunder.

[SIGNATURES BEGIN ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, this Operating Agreement of MTH Realty LLC has been executed as of the date first set forth above.

 

 

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By signing this Agreement, each individual designated as an Additional Manager agrees to be bound by all terms and conditions hereof that are or may be applicable to such individual under this Agreement. Each individual designated as an Additional Manager to replace the individual designated above shall sign a signature page in the form attached as Schedule 1 to this Agreement, and by signing such signature page shall be deemed to have made the agreements set forth in this paragraph.

 

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SCHEDULE 1

SIGNATURE FOR ADDITIONAL MANAGER

ADDITIONAL MANAGER:*

 

Signature:

Print Name:

Signature Date:

Schedule 1 – Page 1

Exhibit 3.56

ARTICLES OF ORGANIZATION

OF

MTH SC REALTY LLC

Pursuant to Arizona Revised Statutes § 29-632, the undersigned states as follows:

1. Name. The name of the limited liability company (the “Company”) formed by this instrument is “MTH SC Realty LLC”.

2. Office. The address of the Company’s known place of business in Arizona is 8800 E. Raintree Dr., Suite 300, Scottsdale, Arizona 85260.

3. Agent. The name and street address in Arizona of the initial statutory agent of the Company is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

4. Management. Management of the Company is vested in one or more managers.

5. Manager(s). The name and address of the Company’s managers at the time of its formation are as follows:

Meritage Homes of South Carolina, Inc.

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

Ronald A. Machler

6140 Central Church Rd.

Douglasville, Georgia 30135

6. Member(s). The name and address of each member who owns a twenty percent or greater interest in the capital or profits of the Company are as follows:

Meritage Homes of South Carolina, Inc.

8800 E. Raintree Dr., Suite 300

Scottsdale, Arizona 85260

7. Additional Matters. The Company is authorized to engage in any and all business authorized by law. The managers of the Company shall have the authority to execute and deliver documents and instruments on behalf of the Company, all of which shall be binding on the Company; provided, however, that any action undertaken by a manager other than Meritage Homes of Georgia, Inc. shall also require joinder by Meritage Homes of Georgia, Inc.

 

Dated: August 26, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

MTH SC Realty LLC, a to-be-formed Arizona limited liability company, and MTH Realty LLC are affiliated in that they have the same ultimate parent.

 

DATED: August 26, 2014						/s/ Mel Faraoni
						Mel Faraoni, Organizer for
						MTH SC Realty LLC and authorized signatory for Meritage Paseo Crossing, LLC, manager of MTH Realty LLC

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for MTH SC Realty LLC, hereby accepts said appointment and agrees to serve in that capacity until replaced by the limited liability company or until the effective date of any resignation submitted by the undersigned.

 

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OPERATING AGREEMENT

OF

MTH SC REALTY LLC

This OPERATING AGREEMENT (the “Agreement”) is entered into as of September 1, 2014, by and between Meritage Homes of South Carolina, Inc., an Arizona corporation, as a Manager (in such capacity, “Manager”) and the sole Member (in such capacity, “Member”) of the Company, and Ronald A. Machler (“Machler”), as an Additional Manager of the Company.

SECTION 1. DEFINITIONS; THE COMPANY

1.1. Formation. The Company was formed as a limited liability company pursuant to the provisions of the Arizona Limited Liability Company Act (the “Act”) and upon the terms and conditions set forth in this Agreement and the Company’s Articles of Organization (as amended, the “Articles”). Each of Member, Manager, Machler, and each Additional Manager hereby ratifies and confirms in all respects the contents of the Articles and the filing of the Articles by the authorized person/entity named therein.

1.2. Name. The name of the Company is MTH SC REALTY LLC. The name of the Company may be changed from time to time upon the approval of Member.

1.3. Purposes. The sole purposes of the Company are to:

(a) apply for and obtain any required licenses under applicable law to operate as a realtor in the State of South Carolina;

(b) obtain access to and participate in any Multiple Listing Service active in the State of South Carolina for the listing of real property located in the State of South Carolina designated by Member (individually and collectively, “MLS”);

(c) list on the MLS real property owned by Member or in which Member otherwise has an interest, and manage such listings; and

(d) engage in all activities that are necessary, incidental, related, or convenient to the foregoing (collectively, the “Business”).

The purposes of the Company shall be limited to only those purposes specified in this Section 1.3. Without the consent of Member, the Company shall not engage in any activity or business other than the Business.

1.4. Offices. The Company shall maintain a registered office in Arizona at a location designated by Manager and approved by Member. The registered office may be changed to any other place within the State of Arizona as may from time to time be designated by Manager and approved by Member. The Company’s principal place of business and/or any place of business located in South Carolina shall be at such location or locations as may be designated by Manager and approved by Member from time to time.

 

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1.5. Agent for Service of Process. The initial agent for service of legal process on the Company in Arizona shall be as specified in the Articles. Manager shall designate an agent for service of legal process on the Company in South Carolina. Any of such agents may be changed from time to time in accordance with applicable law upon approval by Member.

1.6. Term. The term of the Company commenced upon the filing of the Articles with the Arizona Corporation Commission and shall continue until the Company is dissolved in accordance with this Agreement.

1.7 Public Filings. The Manager shall cause to be filed with the Secretary of State of South Carolina such documents as are necessary to qualify the Company to transact business in South Carolina as a foreign limited liability company (the “Application for Registration”). The Manager shall cause to be filed any amendments to the Articles and/or the Application for Registration that are necessary to reflect amendments to this Agreement adopted by Member in accordance with the terms hereof or to comply with the requirements of applicable laws.

SECTION 2. CAPITAL CONTRIBUTIONS

Member may from time to time contribute cash or property to the Company at such time, and in such amounts and in such forms, as it may deem appropriate from time to time in its sole discretion. No member or manager of the Company shall be under any obligation at any time to make any capital contributions to the Company unless such member or manager agrees in writing to do so.

SECTION 3. DISTRIBUTIONS

During the term of the Company, cash and property shall be distributed periodically and solely to Member, at such time as Manager and Member may determine from time to time in its/their (as applicable) sole discretion. No distribution shall be declared and paid unless, after the distribution is made, the assets of the Company are in excess of all liabilities of the Company. No manager of the Company shall have any right to receive or otherwise participate in any cash or property distributed by the Company.

SECTION 4. MEMBERS AND MANAGERS OF THE COMPANY

4.1. Members. Member shall be the sole initial member of the Company. Additional members may be admitted to the Company only upon the written consent of Manager and Member.

4.2. Managers. Manager is hereby designated a manager of the Company. Manager may be replaced as manager at any time by Member in its sole discretion. Any replacement manager designated by Member pursuant to the immediately preceding sentence shall succeed to all rights and obligation of Manager as a manager under this Agreement. Machler is hereby designated as an additional manager (an “Additional Manager”) of the Company to serve as its designated broker pursuant to applicable South Carolina law. Any Additional Manager then serving may be removed at any time, effective upon written notice from Manager or Member. One or more Additional Managers or a replacement for any Additional Manager may be

 

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designated from time to time by Manager and Member. Each individual designated as an Additional Manager shall sign a signature page to this Agreement (in the form attached hereto) agreeing to be bound by the terms and conditions hereof that are or may be applicable to such individual.

4.3. Authority of Managers.

(a) Authority of Manager. Except as specifically set forth in the remaining provisions of this Section 4.3, the business and affairs of the Company shall be managed exclusively by Manager (and not any Additional Manager). Manager shall have full, complete, and unlimited authority, power, and discretion to make any and all decisions and to do any and all things that it deems to be necessary or advisable to accomplish the Business, without the adoption of any resolutions or further act or writing and without the joinder of any other manager or any member of the Company. The signature of Manager, as a manager of the Company, shall be sufficient to execute any document, agreement, or instrument that is to be binding on the Company. Any person or entity dealing with the Company may rely, absolutely and without further inquiry whatsoever, upon the signature of Manager as being binding on the Company. If requested by Manager, Member and any other manager(s) shall execute and deliver resolutions confirming the absolute authority of Manager to act for and bind the Company on any and all matters described in such resolutions.

(b) Authority of Additional Manager. From time to time in its sole discretion, Manager may adopt resolutions, with the joint signature of the Additional Manager (“Joint Resolutions”), which shall set forth the authority of the Additional Manager, in his or her capacity as an Additional Manager and/or as the designated broker of the Company, to bind the Company with respect to specific matters identified in the Joint Resolutions. The Additional Manager, in his or her capacity as an Additional Manager and/or the designated broker of the Company, shall have the authority to bind the Company as to matters within the scope of any such Joint Resolutions. In the absence of Joint Resolutions granting authority to the Additional Manager to bind the Company, the Additional Manager shall have no authority to bind the Company as to any matter. Without limiting the generality of the foregoing, the Additional Manager shall have no authority in his or her capacity as an Additional Manager and/or designated broker of the Company to: incur any debt or other liabilities or obligations on behalf of the Company; take any act that is outside the scope of the Business; take any action to dissolve the Company; or file, consent to, or acquiesce in any act or event that would constitute an event of bankruptcy with respect to the Company.

4.4. Duties and Compensation of Additional Manager. Each individual appointed as an Additional Manager shall perform broker and related services for the Company as set forth in any Joint Resolutions. Each Additional Manager shall devote such time to the Company and the Business as is appropriate to conduct the Business and to fulfill his/her obligations under this Agreement in an effective manner, but shall not be required to devote his/her full time efforts to the Company. No Additional Manager shall be entitled to compensation or reimbursement of expenses from the Company unless the amounts of any such compensation or reimbursement are approved by Manager and Member. The Additional Manager shall have no right to participate in distributions from the Company and shall not be treated as a member of the Company for any purpose. The Additional Manager shall have no right to inspect the books or records of the Company, and the Company shall be under no obligation to provide reports of any kind or nature relating to the Company or its business to the Additional Manager.

 

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4.5. Independent Activities. Except as may be set forth in any other agreement, any person or entity holding an interest as a member of the Company or serving as a manager of the Company shall be free to acquire, own, or otherwise participate in business, investment, and personal activities of any kind or nature that are not owned or operated by the Company, even if such other activities are or may be in competition with the Company. No member or manager of the Company shall be required to allow the Company or any other member or manager to participate in the ownership or profits of any business, investment, or personal activities described in the immediately preceding sentence. Each member and manager of the Company hereby represents and warrants to the other members and managers of the Company that it, he, or she has not been offered, as an inducement to enter into this Agreement, the opportunity to participate with any such other member or manager in the ownership or profits of any other business, investment, or personal activity of any kind whatsoever. The provisions of this Section 4.5 shall apply with equal force to the affiliates and related parties of each member and manager of the Company.

4.6. Limitations on Liability; Indemnity. No manager, nor any member, nor any of their respective Affiliates (each, an “Actor”) shall be liable to the Company for actions taken in good faith by the Actor in connection with the Company or its business; provided that the Actor shall in all instances remain liable for acts in breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence. The Company, its receiver or trustee shall indemnify, defend, and hold harmless each Actor, to the extent of the Company’s assets (without any obligation of any member to make contributions to the Company to fulfill such indemnity), for, from, and against any losses, costs, and expenses incurred by the Actor arising out of any claim based upon acts performed or omitted to be performed by the Actor in connection with the Business of the Company; provided that no Actor shall be indemnified for claims based upon acts performed or omitted in material breach of this Agreement or that constitute bad faith, fraud, willful misconduct, or gross negligence.

SECTION 5. ACCOUNTING AND TAX EELCTIONS

5.1. Tax Returns. The Company, as a single-member limited liability company, shall not file separate federal and state tax returns.

5.2. Method of Accounting. The books of account of the Company shall be prepared and maintained on such basis as may be determined by Manager in its sole discretion.

5.3. Bank Accounts. The funds of the Company shall be maintained in a separate account or accounts in the name of the Company and selected by Manager in its sole discretion. The Additional Manager shall have no signature authority over the accounts of the Company (except such authority over trust accounts, if any, as may be mandated by South Carolina law applicable to real estate brokers with responsibility over trust accounts).

 

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5.4. Records. The Company shall maintain or cause to be maintained records and accounts of all operations and expenditures of the Company. At a minimum, the Company shall keep at its registered office, during the term of the Company, the records required by the Act.

SECTION 6. DISSOLUTION AND TERMINATION

6.1. Dissolution. The Company shall dissolve upon the first to occur of any of the following events (each a “Dissolution Event”):

(a) Upon the election of Member to dissolve the Company; or

(b) The happening of any other event that makes it unlawful or impossible to carry on the Business.

The Company shall not dissolve or terminate upon the occurrence of any event of withdrawal with respect to Member (as set forth in Section 29-733 of the Act) if Manager approves the admission of any or all of the legal successor(s) to Member as member(s) in the Company.

6.2. Articles of Dissolution. As soon as possible following the occurrence of a Dissolution Event, if the Company is not continued, a representative of the Company shall execute and file Articles of Dissolution with the Arizona Corporation Commission.

6.3. Winding Up. Upon a Dissolution Event, the Company shall cease to carry on its business, except insofar as may be necessary for the winding up of its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors, but the separate existence of the Company shall continue as and to the extent provided in the Act.

6.4. Liquidation and Distribution of Assets. Manager, a successor in interest to Manager designated in writing by Member, or in the event of the failure of Manager or any such successor to serve, a court appointed trustee, shall be responsible for overseeing the winding up and liquidation of the Company and shall take full account of the Company’s liabilities and assets upon a Dissolution Event. Any assets not required to discharge any liabilities of the Company shall be distributed to Member. Upon the completion of the winding up, liquidation, and distribution of the Company’s assets the Company shall be deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining to the winding up of the affairs of the Company and the final distribution of its assets.

SECTION 7. MISCELLANEOUS

7.1. Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legatees, legal representatives, successors, transferees, and assigns.

7.2. Construction. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party.

 

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7.3. Time. Time is of the essence with respect to this Agreement. In the event that the last day for performance of an act or the exercise of a right under this Agreement falls on a day other than a business day, then the last day for such performance or exercise shall be the first business day thereafter.

7.4. Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

7.5. Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal, invalid, or unenforceable for any reason whatsoever, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the remainder of this Agreement.

7.6. Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, and singular or plural, as the identity of the person(s) or entity/entities may require.

7.7. Counterpart Execution; Facsimile Signatures. This Agreement may be executed in any number of counterparts pursuant to original or facsimile copies of signatures with the same effect as if the parties had signed the same document pursuant to original signatures. All counterparts shall be construed together and shall constitute one agreement.

7.8. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. All prior agreements among the parties with respect to the subject matter of this Agreement, whether written or oral, are merged herein and shall be of no force or effect. This Agreement can be modified or amended only upon the written consent of Manager and Member. The signature of the Additional Manager shall not be required to any amendment to this Agreement; provided that any such amendment does not does not impose any obligations on the Additional Manager in addition to those set forth herein.

7.9. Limitation on Liability. Member’s liability for the debts and obligations of the Company shall be strictly limited as set forth in the Act and other applicable law.

7.10. Governing Law. The laws of the State of Arizona shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto.

7.11. No Third-Party Beneficiaries. No term or provision of this Agreement is intended to or shall be for the benefit of any person, firm, corporation, or other entity not a party hereto, and no such other person, firm, corporation, or other entity shall have any right or cause of action hereunder.

 

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[SIGNATURES BEGIN ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, this Operating Agreement of MTH SC Realty LLC has been executed as of the date first set forth above.

 

 

*

By signing this Agreement, each individual designated as an Additional Manager agrees to be bound by all terms and conditions hereof that are or may be applicable to such individual under this Agreement. Each individual designated as an Additional Manager to replace the individual designated above shall sign a signature page in the form attached as Schedule 1 to this Agreement, and by signing such signature page shall be deemed to have made the agreements set forth in this paragraph.

 

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SCHEDULE 1

SIGNATURE FOR ADDITIONAL MANAGER

ADDITIONAL MANAGER:*

 

Signature:

Print Name:

Signature Date:

Schedule 1 – Page 1

Exhibit 3.58

ARTICLES OF INCORPORATION

OF

MERITAGE HOMES OF GEORGIA REALTY, INC.

FIRST: The name of the corporation is Meritage Homes of Georgia Realty, Inc.

SECOND: The purpose for which the corporation is organized is the transaction of any or all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. The character of business which the corporation initially intends actually to conduct is the development, construction, and sale of residences.

THIRD: The aggregate number of shares that the corporation shall have authority to issue is one thousand (1,000) common shares, all of which shares shall be of a single class, and shall be without par.

FOURTH: The name and street address in Arizona of the initial statutory agent of the corporation is Corporation Service Company, 2338 W. Royal Palm Road, Suite J, Phoenix, Arizona 85012.

FIFTH: The number of directors constituting the initial board of directors of the corporation is two (2). The names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders, or until their successors are elected and qualified, are:

 

NAME		ADDRESS
Steven J. Hilton		8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260
Larry W. Seay		8800 East Raintree Drive, Suite 300 Scottsdale, Arizona 85260

The number of persons to serve on the board of directors thereafter shall be fixed by the bylaws of the corporation.

SIXTH: The name and address of the incorporator is Mel Faraoni, 8800 East Raintree Drive, Suite 300, Scottsdale, Arizona 85260.

SEVENTH: The liability of a director or former director to the corporation or its shareholders shall be eliminated to the fullest extent permitted by Section 10-202.B.1 of the Arizona Revised Statutes.

 

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If the Arizona Business Corporation Act is amended to authorize corporate action further eliminating or limiting the liability of directors, the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Arizona Business Corporation Act, as amended.

Any repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

The provisions of this Article Seventh shall not be deemed to limit or preclude indemnification of a director by the corporation for any liability of a director which has not been eliminated by the provisions of this Article Seventh.

EIGHTH: The corporation shall indemnify any and all of its existing and former directors and officers to the fullest extent permitted by Arizona law. If Arizona law is amended to authorize corporate action broadening the corporation’s ability to indemnify its directors and officers, the corporation shall indemnify its existing and former directors and officers to the fullest extent permitted by Arizona law, as amended. Any repeal or modification of this Article Eighth shall not adversely affect any right or protection of any existing or former director or officer of the corporation existing hereunder with respect to any act or omission occurring prior to or at the time of such repeal or modification.

 

DATED: August 27, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator

 

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STATEMENT OF AFFILIATION

To the Arizona Corporation Commission:

Meritage Homes of Georgia Realty, Inc., a to-be-formed Arizona corporation, Meritage Homes of Georgia, Inc., Meritage Homes of Arizona, Inc., Meritage Homes of Colorado, Inc., Meritage Homes of Nevada, Inc., Meritage Homes of Texas Holding, Inc., Meritage Homes of Tennessee, Inc., Meritage Homes of the Carolinas, Inc. and Meritage Homes of South Carolina, Inc. are affiliated in that they have the same ultimate parent.

 

DATED: August 27, 2014						/s/ Mel Faraoni
						Mel Faraoni, Incorporator for
						Meritage Homes of Georgia Realty, Inc. and Vice President –Associate General Counsel for:
						Meritage Homes of Arizona, Inc.
						Meritage Homes of Colorado, Inc.
						Meritage Homes of Nevada, Inc.
						Meritage Homes of Texas Holding, Inc.
						Meritage Homes of Tennessee, Inc.
						Meritage Homes of the Carolinas, Inc.
						Meritage Homes of South Carolina, Inc.
						Meritage Homes of Georgia, Inc.

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ACCEPTANCE OF STATUTORY AGENT

Corporation Service Company, having been appointed to serve as statutory agent for Meritage Homes of Georgia Realty, Inc., hereby accepts said appointment and agrees to serve in that capacity until replaced by the corporation or until the effective date of any resignation submitted by the undersigned.

 

Exhibit 3.58.1

 

 

DO NOT WRITE ABOVE THIS LINE; RESERVED FOR ACC USE ONLY.

ARTICLES OF AMENDMENT

FOR-PROFIT CORPORATION

Read the Instructions C014i

 

1.		ENTITY NAME – give the exact name of the corporation as currently shown in A.C.C. records:
		MERITAGE HOMES OF GEORGIA REALTY, INC.
2.		A.C.C. FILE NUMBER: -1949155-3
		Find the A.C.C. file number on the upper corner of filed documents OR on our website at: http://www.azcc.gov/Divisions/Corporations
3.		Date on which the attached amendment was adopted: 10/28/2014.
4.		Does the amendment provide for an exchange, reclassification or cancellation of issued shares?
		¨ Yes – go to number 4.1 and continue.         No – go to number 5 and continue.
		4.1    If your answer to number 4 was “yes,” does the amendment contain provisions for implementing the exchange, reclassification or cancellation of issued shares?
		¨ Yes – go to number 5 and continue.     ¨ No – go to number 4.2 and continue.
		4.2    If your answer to number 4.1 was “no,” you must provide a statement of the provisions for implementing the exchange, reclassification or cancellation of issued shares – attach a separate sheet with the statement.
5.		Check one box concerning approval of the amendment and follow instructions (review the Instructions C014i for information about voting groups):
		¨    Approved by incorporators or board of directors without shareholder action, and shareholder approval was not required or no shares have been issued- go to number 6.
		Approved by shareholders but not voting groups – complete numbers 5.1 and 5.2.
		¨    Approved by shareholders and voting groups – complete numbers 5.1, 5.2, and 5.3.
		¨    Approved by voting group(s) only – complete numbers 5.1 and 5.3.
		5.1    Shares – list below each class and/or series of shares and the total number of outstanding shares for each class or series (example: common stock, 100 shares). If more space is needed, check this box ¨ and complete and attach the Shares Issued Attachment form C097.

 

Class:  Common		Series:   N/A		Total:   1,000
Class:		Series:		Total:
Class:		Series:		Total:
Class:		Series:		Total:
Class:		Series:		Total:

 

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5.2	Shareholder approval (all blanks must be filled in):

 

Total votes entitled to be     cast		Votes in favor that were sufficient for approval of amendments		Votes against amendments
1,000		1,000		0

 

5.3	Voting Groups – complete each blank below for each voting group. Review the Instructions C014i for information about voting groups. If more space is needed, check this box and complete and attach the Voting Attachment form C089.

 

Voting Group             (class / series)		Total votes in     voting group		Indisputable votes   at meeting		Votes in favor that were sufficient for approval of amendments		Votes against     amendments

 

6.	A copy of the corporation’s amendment must be attached to these Articles.

 

SIGNATURE:		By checking the box marked “I accept” below, I acknowledge under penalty of perjury that this document together with any attachments is submitted in compliance with Arizona law.

 

		þ I ACCEPT       Mel Faraoni		10/29/14

 

Signature		Printed Name		Date

REQUIRED – check only one:

 

¨		I am the Chairman of the Board of Directors of the corporation filing this document.				I am a duly-authorized Officer of the corporation filing this document.		¨		I am a duly authorized bankruptcy trustee, receiver, or other court-appointed fiduciary for the corporation filing this document.

 

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EXHIBIT A

AMENDMENT TO THE

ARTICLES OF INCORPORATION

OF

MERITAGE HOMES OF GEORGIA REALTY, INC.

Article First of the Articles of Incorporation is amended to read as follows:

“The name of the corporation is MTH Shelf Co., Inc.”

 

A-1

Exhibit 3.59

MERITAGE HOMES OF GEORGIA REALTY, INC.

(an Arizona Corporation)

BYLAWS

I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION

1.01. Certain References. Any reference herein made to law will be deemed to refer to the law of the State of Arizona, including any applicable provision of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes, or any successor statute, as from time to time amended and in effect (sometimes referred to herein as the “Arizona Business Corporation Act”). Any reference herein made to the corporation’s Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. Except as otherwise required by law and subject to any procedures established by the corporation pursuant to Arizona Revised Statutes Section 723, the term “shareholder” as used herein shall mean one who is a holder of record of shares of the corporation. References to specific sections of law herein made shall be deemed to refer to such sections, or any comparable successor provisions, as from time to time amended and in effect.

1.02. Seniority. The law and the Articles (in that order of precedence) will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the law and such Articles (in that order of precedence), and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist.

1.03. Computation of Time. The time during which an act is required to be done, including the time for the giving of any required notice herein, shall be computed by excluding the first day or hour, as the case may be, and including the last day or hour.

II. OFFICES

2.01. Principal Office. The principal office of the corporation shall be located at any place either within or outside the State of Arizona as designated in the corporation’s most current Annual Report filed with the Arizona Corporation Commission or in any other document executed and delivered to the Arizona Corporation Commission for filing. If a principal office is not so designated, the principal office of the corporation shall mean the known place of business of the corporation. The corporation may have such other offices, either within or without the State of Arizona, as the Board of Directors may designate or as the business of the corporation may require from time to time.

2.02. Known Place of Business. A known place of business of the corporation shall be located within the State of Arizona and may be, but need not be, the address of the statutory agent of the corporation. The corporation may change its known place of business from time to time in accordance with the relevant provisions of the Arizona Business Corporation Act.

 

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III. SHAREHOLDERS

3.01. Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on a date and at a time and place designated by the Board of Directors each year, either within or without the State of Arizona, or, in the absence of action by the Board, as set forth in the notice given or waiver signed with respect to such meeting pursuant to Section 3.03 below, for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting. If any annual meeting is for any reason not held on the date determined as aforesaid, a deferred annual meeting may thereafter be called and held in lieu thereof, at which the same proceedings may be conducted. If the day fixed for the annual meeting shall be a legal holiday in the State of Arizona such meeting shall be held on the next succeeding business day.

3.02. Special Shareholder Meetings. Special meetings of the shareholders may be held whenever and wherever, either within or without the State of Arizona, called for by or at the direction of the Chairman of the Board, the President, or the Board of Directors.

3.03. Notice of Shareholders Meetings.

(a) Required Notice. Notice stating the place, day and hour of any annual or special shareholders meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting by or at the direction of the person or persons calling the meeting, to each shareholder entitled to vote at such meeting and to any other shareholder entitled to receive notice of the meeting by law or the Articles. Notices to shareholders shall be given in accordance with, and shall be deemed to be effective at the time and in the manner described in, Arizona Revised Statutes Section 10-141. If no designation is made of the place at which an annual or special meeting will be held in the notice for such meeting, the place of the meeting will be at the principal place of business of the corporation.

(b) Adjourned Meeting. If any shareholder’s meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place are announced at the meeting before adjournment. But if a new record date for the adjourned meeting is fixed or must be fixed in accordance with law or these Bylaws, then notice of the adjourned meeting shall be given to those persons who are shareholders as of the new record date and who are entitled to such notice pursuant to Section 3.03(a) above.

(c) Waiver of Notice. Any shareholder may waive notice of a meeting (or any notice of any other action required to be given by the Arizona Business Corporation Act, the corporation’s Articles, or these Bylaws), at any time before, during, or after the meeting or other action, by a writing signed by the shareholder entitled to the notice. Each such waiver shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. Under certain circumstances, a shareholder’s attendance at a meeting may constitute a waiver of notice, unless the shareholder takes certain actions to preserve his/her objections as described in the Arizona Business Corporation Act.

 

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(d) Contents of Notice. The notice of each special shareholders meeting shall include a description of the purpose or purposes for which the meeting is called. Except as required by law or the corporation’s Articles, the notice of an annual shareholders meeting need not include a description of the purpose or purposes for which the meeting is called.

3.04. Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is so fixed by the Board of Directors, the record date for the determination of shareholders shall be as provided in the Arizona Business Corporation Act.

When a determination of shareholders entitled to notice of or to vote at any meeting of shareholders has been made as provided in this Section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting.

3.05. Shareholder List. The corporation shall make a complete record of the shareholders entitled to notice of each meeting of shareholders thereof, arranged in alphabetical order, listing the address and the number of shares held by each. The list shall be arranged by voting group and within each voting group by class or series of shares. The shareholder list shall be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation’s principal office or at another place identified in the meeting notice in the city where the meeting is to be held. Failure to comply with this section shall not affect the validity of any action taken at the meeting.

3.06. Shareholder Quorum and Voting Requirements.

(a) If the Articles or the Arizona Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group.

(b) If the Articles or the Arizona Business Corporation Act provide for voting by two (2) or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately.

(c) Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a-quorum of those shares exists with respect to that matter. Unless the Articles or the Arizona Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter.

 

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(d) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is or must be set for that adjourned meeting.

(e) If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles or the Arizona Business Corporation Act require a greater number of affirmative votes.

(f) Voting will be by ballot on any question as to which a ballot vote is demanded prior to the time the voting begins by any person entitled to vote on such question; otherwise, a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the ending of the announced time for voting.

3.07. Proxies. At all meetings of shareholders, a shareholder may vote in person or by proxy duly executed in writing by the shareholder or the shareholder’s duly authorized attorney-in-fact. Such proxy shall comply with law and shall be filed with the Secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. The burden of proving the validity of any undated, irrevocable, or otherwise contested proxy at a meeting of the shareholders will rest with the person seeking to exercise the same. A facsimile appearing to have been transmitted by a shareholder or by such shareholder’s duly authorized attorney-in-fact may be accepted as a sufficiently written and executed proxy.

3.08. Voting of Shares. Unless otherwise provided in the Articles or the Arizona Business Corporation Act, each outstanding share entitled to vote shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of shareholders.

3.09. Voting for Directors. Unless otherwise provided in the Articles, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present at the time of such vote. As provided by law, shareholders shall be entitled to cumulative voting in the election of directors.

3.10. Election Inspectors. The Board of Directors, in advance of any meeting of the shareholders, may appoint an election inspector or inspectors to act at such meeting (and at any adjournment thereof). If an election inspector or inspectors are not so appointed, the chairman of the meeting may, or upon request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the election inspector or inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity, and effect of proxies, the credentials of persons purporting to be shareholders or persons named or referred to in proxies, and the number of shares represented at the meeting in person and by proxy; will

 

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receive and count votes, ballots, and consents and announce the results thereof; will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such election inspector need be a shareholder of the corporation.

3.11. Organization and Conduct of Meetings. Each meeting of the shareholders will be called to order and thereafter chaired by the Chairman of the Board of Directors if there is one, or, if not, or if the Chairman of the Board is absent or so requests, then by the President, or if both the Chairman of the Board and the President are unavailable, then by such other officer of the corporation or such shareholder as may be appointed by the Board of Directors. The corporation’s Secretary or in his or her absence, an Assistant Secretary will act as secretary of each meeting of the shareholders. If neither the Secretary nor an Assistant Secretary is in attendance, the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary for the meeting. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person and the filing of all proxies with the election inspector or inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions, or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his or her part, the chairman of a meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, to determine the order of business to be conducted at such meeting, and to establish reasonable rules for expediting the business of the meeting and preserving the orderly conduct thereof (including any informal, or question and answer portions thereof).

3.12. Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification of the shareholders at a duly constituted meeting of the shareholders. Except as otherwise required by law, if any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the corporation and all of its shareholders as it would be if it were the act of its shareholders.

3.13. Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting of the shareholders or in the areas of credentials, proxies, quorums, voting, and similar matters, will be deemed waived if no objection is made at the meeting.

3.14. Shareholder Action by Written Consent. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one (1) or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. The consents shall be delivered to the corporation for inclusion in the minutes or filing with the corporate record. Action taken by consent is effective when the last shareholder signs the consent, unless the consent specifies a different effective date, except that if, by law, the action to be taken requires that notice be given to shareholders who are not entitled to vote on the matter, the effective date

 

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shall not be prior to ten (10) days after the corporation shall give such shareholders written notice of the proposed action, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

IV. BOARD OF DIRECTORS

4.01. General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the Board of Directors.

4.02. Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the Articles of Incorporation, the authorized number of directors shall be not less than one (1) nor more than ten (10). The number of directors in office from time to time shall be within the limits specified above, as prescribed from time to time by resolution adopted by either the shareholders or the Board of Directors. The directors will regularly be elected at each annual meeting of the shareholders, but directors may be elected at any other meeting of the shareholders. Each director shall hold office until the annual meeting of shareholders following his/her election, subject to his/her earlier resignation or removal. However, if a director’s term expires, he/she shall continue to serve until his/her successor shall have been elected and qualified, until his/her resignation or removal, or until there is a decrease in the number of directors. Unless required by the Articles, directors do not need to be residents of the State of Arizona or shareholders of the corporation.

4.03. Regular Meetings of the Board of Directors. A regular annual meeting of the Board of Directors is to be held as soon as practicable after the adjournment of each annual meeting of the shareholders, either at the place of the shareholders meeting or at such other place as the directors elected at the shareholders meeting may have been informed of at or prior to the time of their election. Additional regular meetings may be held at regular intervals at such places and at such times as the Board of Directors may determine.

4.04. Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be held whenever and wherever called for by the Chairman of the Board, the President, or the number of directors that would be required to constitute a quorum.

4.05. Notices. No notice need be given of regular meetings of the Board of Directors. Notice of the time and place of any special directors meeting shall be given at least 48 hours prior thereto. Notice shall be given in accordance with and shall be deemed to be effective at the time and in the manner described in Arizona Revised Statutes Section 10-141. Any director may waive notice of any meeting and any adjournment thereof at any time before, during, or after it is held. Except as provided in the next sentence below, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at or participation of a director in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting (or promptly upon his/her arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting.

 

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4.06. Director Quorum. A majority of the number of directors prescribed according to Section 4.02 above, or if no number is so prescribed, the number in office immediately before the meeting begins, shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the Articles require a greater number.

4.07. Directors, Manner of Acting.

(a) If a quorum is present when a vote is taken, the affirmative vote of a majority of the directors present shall be the act of the Board of Directors unless the Articles require a greater percentage.

(b) Unless the Articles provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting, in which case, any required notice of the meeting may generally describe the arrangements (rather than or in addition to the place) for the holding thereof. A director participating in a meeting by this means is deemed to be present in person at the meeting.

(c) A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) the director objects at the beginning of the meeting (or promptly upon his/her arrival) to holding it or transacting business at the meeting; or (2) his/her dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he/she delivers written notice of his/her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation before 5:00 p.m. on the next business day after the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.

4.08. Director Action Without a Meeting. Unless the Articles provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if the action is taken by unanimous written consent of the Board of Directors as evidenced by one (1) or more written consents describing the action taken, signed by each director and filed with the minutes or corporate records. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document.

4.09. Removal of Directors by Shareholders. The shareholders may remove one (1) or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the Articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in a shareholder vote to remove him. If less than the entire Board of Directors is to be removed, a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director’s removal.

 

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4.10. Board of Director Vacancies.

(a) Unless the Articles provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, either the shareholders or the Board of Directors may fill the vacancy.

(b) If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.

(c) A vacancy that will occur at a specific later date (by reason of resignation effective at a later date) may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

(d) The term of a director elected to fill a vacancy expires at the next shareholders meeting at which directors are elected.

4.11. Director Compensation. Unless otherwise provided in the Articles by resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors or any committee thereof, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or any committee thereof, or both. No such payment shall preclude any director from serving the corporation in any capacity and receiving compensation therefor.

4.12. Director Committees.

(a) Creation of Committees. Unless the Articles provide otherwise, the Board of Directors may create one (1) or more committees and appoint members of the Board of Directors to serve on them. Each committee shall have one (1) or more members, who serve at the pleasure of the Board of Directors.

(b) Selection of Members. The creation of a committee and appointment of members to it shall be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the Articles to take such action.

(c) Required Procedures. Sections 4.03 through 4.08 of this Article IV, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors, apply to committees and their members.

(d) Authority. Unless limited by the Articles, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee, provided, however, that a committee may not: (1) authorize distributions; (2) approve or propose to shareholders

 

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action that requires shareholder approval under the Arizona Business Corporation Act; (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the Articles of Incorporation without shareholder action as provided by law; (5) adopt, amend or repeal these Bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except within limits specifically prescribed by the Board of Directors; or (9) fix the compensation of directors for serving on the Board of Directors or any committee of the Board of Directors.

4.13. Director Resignations. Any director or committee member may resign from his or her office at any time by written notice delivered to the Board of Directors, the Chairman of the Board, or the corporation at its known place of business. Any such resignation will be effective upon its receipt unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective.

V. OFFICERS

5.01. Number of Officers. The officers of the corporation shall be a President, a Chief Financial Officer, and a Secretary, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any Vice Presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one (1) or more other officers or assistant officers. The same individual may simultaneously hold more than one (1) office in the corporation.

5.02. Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. The designation of a specified term grants to the officer no contract rights, and the Board of Directors can remove the officer at any time prior to the termination of such term. If no term is specified, an officer of the corporation shall hold office until he or she resigns, dies, or until he or she is removed in the manner provided by law or in Section 5.03 of this Article V. The regular election or appointment of officers will take place at each annual meeting of the Board of Directors, but elections of officers may be held at any other meeting of the Board.

5.03. Resignation and Removal of Officers. An officer may resign at any time by delivering written notice to the corporation at its known place of business. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or event. Any officer may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer shall not of itself create contract rights.

5.04. Duties of Officers. Officers of the corporation shall have authority to perform such duties as may be prescribed from time to time by law, in these Bylaws, or by the Board of Directors, the President, or the superior officer of any such officer. Each officer of the corporation (in the order designated herein or by the Board) will be vested with all of the powers and charged with all of the duties of his or her superior officer in the event of such superior officer’s absence, death, or disability.

 

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5.05. Bonds and Other Requirements. The Board of Directors may require any officer to give bond to the corporation (with sufficient surety and conditioned for the faithful performance of the duties of his or her office) and to comply with such other conditions as may from time to time be required of him or her by the Board of Directors.

5.06. President. Unless otherwise specified by resolution of the Board of Directors, the President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all of the business and affairs of the corporation and the performance by all of its other officers of their respective duties and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time. The President shall, when present, and in the absence of a Chairman of the Board, preside at all meetings of the shareholders and of the Board of Directors. The President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. The President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons.

5.07. Vice-President. If appointed, in the absence of the President or in the event of his/her death or disability, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated at the time of their election, or in the absence of any such designation, then in the order of their appointment) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. If there is no Vice-President or in the event of the death or disability of all Vice-Presidents, then the Chief Financial Officer shall perform such duties of the President in the event of his or her absence, death, or disability. Each Vice-President will be a proper officer to sign on behalf of the corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture, contract, or other instrument, except in each such case where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed. Any Vice-President may represent the corporation at any meeting of the shareholders or members of any other corporation, association, partnership, joint venture, or other entity in which the corporation then holds shares of capital stock or has an interest, and may vote such shares of capital stock or other interest in person or by proxy appointed by him or her, provided that the Board of

 

10

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Directors may from time to time confer the foregoing authority upon any other person or persons. A Vice-President shall perform such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors.

5.08. Secretary. The Secretary shall: (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors and any committee of the Board of Directors and all unanimous written consents of the shareholders, Board of Directors, and any committee of the Board of Directors in one (1) or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the address of each shareholder which shall be furnished to the Secretary by such shareholder; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to take charge of the corporation’s stock transfer books and to compile the voting record pursuant to Section 3.05 above, and to impress the corporation’s seal, if any, on any instrument signed by the President, any Vice President, or any other duly authorized person, and to attest to the same. In the absence of the Secretary, a secretary pro tempore may be chosen by the directors or shareholders as appropriate to perform the duties of the Secretary.

5.09. Chief Financial Officer. The Chief Financial Officer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such bank, trust companies, or other depositories as shall be selected by the Board of Directors or any proper officer; (c) keep full and accurate accounts of receipts and disbursements in books and records of the corporation; and (d) in general perform all of the duties incident to the office of Chief Financial Officer and such other duties as from time to time may be assigned to him/her by the President or by the Board of Directors. The Chief Financial Officer will render to the President, the directors, and the shareholders at proper times an account of all his or her transactions as Chief Financial Officer and of the financial condition of the corporation. The Chief Financial Officer shall be responsible for preparing and filing such financial reports, financial statements, and returns as may be required by law.

5.10. Assistant Secretaries. The Assistant Secretaries, when authorized by the Board of Directors, may sign with the President or a Vice-President certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board of Directors. The Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Secretary or by the President or the Board of Directors.

5.11. Chairman of the Board. The Board of Directors may elect a Chairman to serve as a general executive officer of the corporation, and, if specifically designated as such by the Board of Directors, as the chief executive officer of the corporation. If elected, the Chairman will preside at all meetings of the Board of Directors and be vested with such other powers and duties as the Board of Directors may from time to time delegate to him or her.

 

11

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5.12. Salaries. The salaries of the officers of the corporation may be fixed from time to time by the Board of Directors or (except as to the President’s own) left to the discretion of the President. No officer will be prevented from receiving a salary by reason of the fact that he or she is also a director of the corporation.

5.13. Additional Appointments. In addition to the officers contemplated in this Article V, the Board of Directors may appoint other agents of the corporation with such authority to perform such duties as may be prescribed from time to time by the Board of Directors.

VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER

6.01. Certificates for Shares.

(a) Content. Certificates representing shares of the corporation shall, at a minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of Arizona, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents. Such certificates shall be signed (either manually or by facsimile to the extent allowable by law) by one or more officers of the corporation, as determined by the Board of Directors, or, if no such determination is made, by any of the Chairman of the Board (if any), the President, any Vice-President, the Chief Financial Officer, or the Secretary of the corporation, and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified and will exhibit such information as may be required by law. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the office of the corporation indicated on such certificates or ceases to be the transfer agent or registrar of the corporation, they may still be issued by the corporation and countersigned, registered, issued, and delivered by the corporation’s transfer agent and/or registrar thereafter, as though such person had continued to hold the office indicated on such certificate.

(b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish a shareholder this information on request in writing and without charge.

(c) Shareholder List. The name and address of the person to whom shares are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation.

 

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(d) Certificates. In the event of the loss, theft, or destruction of any certificate representing shares of the corporation or of any predecessor corporation, the corporation may issue (or, in the case of any such shares as to which a transfer agent and/or registrar have been appointed, may direct such transfer agent and/or registrar to countersign, register, and issue) a new certificate, and cause the same to be delivered to the registered owner of the shares represented thereby; provided that such owner shall have submitted such evidence showing the circumstances of the alleged loss, theft, or destruction, and his, her, or its ownership of the certificate, as the corporation considers satisfactory, together with any other facts that the corporation considers pertinent; and further provided that, if so required by the corporation, the owner shall provide a bond or other indemnity in form and amount satisfactory to the corporation (and to its transfer agent and/or registrar, if applicable).

6.02. Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the corporation will be entitled to treat the registered owner of any share of the capital stock of the corporation as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable, or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by applicable law.

6.03. Shares Without Certificates. The Board of Directors may authorize the issuance of uncertificated shares by the corporation and may prescribe procedures for the issuance and registration of transfer thereof and with respect to such other matters as the Board of Directors shall deem necessary or appropriate.

VII. DISTRIBUTIONS

7.01. Distributions. Subject to such restrictions or requirements as may be imposed by applicable law or the corporation’s Articles or as may otherwise be binding upon the corporation, the Board of Directors may from time to time declare, and the corporation may pay or make, dividends or other distributions to its shareholders.

VIII. CORPORATE SEAL

8.01. Corporate Seal. The Board of Directors may provide for a corporate seal of the corporation that will have inscribed thereon any designation including the name of the corporation, Arizona as the state of incorporation, the year of incorporation, and the words “Corporate Seal.”

IX. AMENDMENTS

9.01. Amendments. The corporation’s Board of Directors may amend or repeal the corporation’s Bylaws unless:

 

(1)

the Articles or the Arizona Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or

 

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(2)

the shareholders in adopting, amending, or repealing a particular Bylaw provide expressly that the Board of Directors may not amend or repeal that Bylaw.

The corporation’s shareholders may amend or repeal the corporation’s Bylaws even though the Bylaws may also be amended or repealed by its Board of Directors.

 

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CERTIFICATION OF ADOPTION

I, C. Timothy White, certify that I am the Executive Vice-President and Secretary of Meritage Homes of Georgia Realty, Inc., an Arizona corporation (the “Corporation”), and have been designated by the Board of Directors to act in that capacity. I also certify that the foregoing Bylaws have been adopted as the Bylaws of the Corporation by its Board of Directors by unanimous written consent, in lieu of a meeting, and that such Bylaws, as of the date of this Certificate, have not been repealed, altered, amended, restated, or superseded, and remain in full force and effect.

DATED as of the 28^th day of August 2014.

 

Exhibit 5.1

June 24, 2015

Meritage Homes Corporation

8800 East Raintree Drive, Suite 300

Scottsdale, Arizona 85260

Each of the subsidiaries of Meritage Homes Corporation listed on Schedule I attached hereto

c/o Meritage Homes Corporation

8800 East Raintree Drive, Suite 300

Scottsdale, Arizona 85260

     Re: Exchange Offer relating to the additional 6.00% Senior Notes due 2025

Ladies and Gentlemen:

Reference is made to the Registration Statement on Form S-4, including amendments and exhibits thereto (the “Registration Statement”), for the proposed offer to exchange (the “Exchange Offer”) by Meritage Homes Corporation, a Maryland corporation (the “Company”), and each of the subsidiary guarantors listed on Schedule I attached hereto (collectively, the “Guarantors”), up to an aggregate of $200 million in principal amount of its 6.00% Senior Notes due 2025 that have been registered under the Securities Act of 1933, as amended (the “Securities Act” and such notes, the “Exchange Notes”), for a like principal amount of its outstanding unregistered 6.00% Senior Notes due 2025 (the “Outstanding Notes”) and the guarantees by the Guarantors of the Exchange Notes. The Outstanding Notes were issued, and the Exchange Notes are issuable, pursuant to an Indenture, dated June 2, 2015, by and among the Company, the Guarantors and Wells Fargo Bank, National Association, as trustee (the “Indenture”).

Based on the foregoing, and subject to the qualifications and limitations set forth herein, we advise you that:

1. The Exchange Notes, assuming the due authorization, execution, authentication and delivery thereof by the Trustee, when delivered by the Company in accordance with the terms of the Indenture and in exchange for the Outstanding Notes as contemplated in the Registration Statement, will be valid and legally binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.

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Meritage Homes Corporation

June 24, 2015

Page 2

 

2. The guarantees by the Guarantors to be endorsed on the Exchange Notes, assuming the due authorization, execution, authentication and delivery of the Exchange Notes by the Trustee, when the Exchange Notes are issued and delivered by the Company in accordance with the terms of the Indenture and as contemplated in the Registration Statement, will be valid and legally binding obligations of the Guarantors enforceable against each of them in accordance with their terms.

In rendering this opinion, we have reviewed and relied upon the Indenture, the Outstanding Notes, the form of Exchange Notes and such documents, records and other instruments of the Company and the Guarantors as we have deemed necessary.

The opinions set forth above are subject to the following qualifications:

(i) The opinions are subject to and may be limited by (a) applicable bankruptcy, insolvency, liquidation, fraudulent conveyance or transfer, moratorium, reorganization or other similar laws affecting creditors’ rights generally; (b) general equitable principles and rules of law governing specific performance, estoppel, waiver, injunctive relief and other equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity), and the discretion of any court before which a proceeding may be brought; (c) duties and standards of good faith, reasonableness and fair dealing imposed on creditors and parties to contracts; (d) the limitation in certain circumstances of provisions imposing liquidated damages, usury limitations or increases in interest rates upon delinquency in payment or the occurrence of a default; and (e) a court determination that any fees payable pursuant to a provision requiring the payment of attorneys’ fees is reasonable.

(ii) We have assumed: (a) the genuineness of the signatures and the authenticity of documents submitted to us as originals, and the conformity to originals of all documents submitted to us as certified or photostatic copies; (b) that such documents accurately describe the mutual understanding of the parties as to all matters contained therein and that no other agreements or undertakings exist between the parties that would affect the documents relating to the transactions contemplated by such documents and agreements; (c) the due authorization, execution, and delivery of the documents discussed herein by all parties thereto except the Company and the Guarantors, that such documents will be valid and legally binding upon, and enforceable in accordance with their terms against, all parties thereto except the Company and the Guarantors, and that the execution, delivery and performance of such documents by parties other than the Company and the Guarantors will not violate any provision of any charter document, law, rule, regulation, judgment, order, decree, agreement or other document binding upon or applicable to such other parties or their respective assets; (d) the accuracy, completeness and genuineness of all representations and certifications made to or obtained by us, including

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Meritage Homes Corporation

June 24, 2015

Page 3

 

those of public officials; (e) the accuracy and completeness of records of the Company and the Guarantors; and (f) that no fraud or dishonesty exists with respect to any matters relevant to our opinions.

(iii) We express no opinion regarding compliance by the Company or any Guarantor with any financial covenants required to be maintained by them under any agreement or document, or as to the financial ability of the Company or any Guarantors to meet its obligations under the documents described herein.

(iv) This opinion letter is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Registration Statement.

 

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SCHEDULE I

Subsidiary Guarantors

Meritage Paseo Crossing, LLC

Meritage Paseo Construction, LLC

Meritage Homes of Arizona, Inc.

Meritage Homes Construction, Inc.

Meritage Homes of California, Inc.

Meritage Homes of Nevada, Inc.

Meritage Holdings, L.L.C.

Meritage Homes of Texas Holding, Inc.

Meritage Homes of Texas Joint Venture Holding Company, LLC

Meritage Homes of Texas, LLC

Meritage Homes Operating Company, LLC

MTH-Cavalier, LLC

MTH Golf, LLC

Meritage Homes of Colorado, Inc.

Meritage Homes of Florida, Inc.

California Urban Homes, LLC

WW Project Seller, LLC

Meritage Homes of the Carolinas, Inc.

Carefree Title Agency, Inc.

M&M Fort Myers Holdings, LLC

Meritage Homes of Florida Realty LLC

Meritage Homes of Georgia Realty, LLC

Meritage Homes of Georgia, Inc.

Meritage Homes of South Carolina, Inc.

Meritage Homes of Tennessee, Inc.

MLC Holdings, Inc. dba MLC Land Holdings, Inc.

MTH GA Realty LLC

MTH Realty LLC

MTH SC Realty LLC

MTH Shelf Co., Inc.

Exhibit 12.1

Meritage Homes Corporation

Calculation of Ratio of Earnings to Total Fixed Charges

(Dollars in thousands)

 

		Three Months Ended March
		31,				Year Ended December 31,
		2015				2014				2013				2012				2011				2010
Income/(Loss) from continuing operations before income taxes and minority interest		$	25,297				208,417				177,672				28,854				(20,376	)			2,484
Loss/(Income) from equity method investees			(2,421	)			(10,422	)			(12,805	)			(10,233	)			(5,849	)			(5,243	)
			22,876				197,995				164,867				18,621				(26,225	)			(2,759	)
Add/(deduct):
+ Fixed Charges			15,791				60,541				53,285				47,968				45,441				45,936
+ Amortization of Capitalized Interest			9,345				32,143				24,668				15,101				9,863				12,228
+ Distributed income of equity method investees			3,035				11,613				13,013				9,648				6,497				7,263
- Interest capitalized			(12,128	)			(53,211	)			(36,060	)			(21,891	)			(12,994	)			(9,720	)
Earnings available for fixed charges		$	38,919				249,081				219,773				69,447				22,582				52,948
Fixed Charges:
Interest and other financial charges expensed and capitalized			15,282				58,374				51,152				46,135				43,393				43,442
Interest factor attributed to rentals (a)			509				2,167				2,133				1,833				2,048				2,494
Fixed Charges		$	15,791				60,541				53,285				47,968				45,441				45,936
Ratio of earnings to fixed charges (b)			2.5	x			4.1	x			4.1	x			1.4	x			0.5	x (c)			1.2	x

 

(a)	The interest factor attributable to rentals consists of one-third of rental charges, which is deemed by the Company to be representative of the interest factor inherent in rent.

(b)	There was no outstanding preferred stock during the periods presented; therefore, the ratio of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends were the same.

(c)	Earnings were not adequate to cover fixed charges by $22.9 million for the year ended December 31, 2011.

Exhibit 21.1

MERITAGE HOMES CORPORATION

LIST OF SUBSIDIARIES

 

State of Organization		Legal Entity
Arizona		Meritage Homes of Arizona, Inc.
Arizona		Meritage Paseo Crossing, LLC
Arizona		Meritage Homes Construction, Inc.
Arizona		Meritage Paseo Construction, LLC
Arizona		Meritage Homes of Colorado, Inc.
Arizona		Meritage Homes of Nevada, Inc.
Arizona		MTH-Cavalier, LLC
Arizona		MTH Golf, LLC
Arizona		Meritage Homes Operating Company, LLC
Arizona		Meritage Homes of Texas, LLC
Arizona		Meritage Homes of Texas Holding, Inc.
Arizona		WW Project Seller, LLC
Arizona		Meritage Homes of the Carolinas, Inc.
Arizona		Meritage Homes of Tennessee, Inc.
Arizona		MLC Holdings, Inc.
Arizona		Meritage Homes of Georgia, Inc.
Arizona		Meritage Homes of Georgia Realty, LLC
Arizona		MTH GA Realty, LLC
Arizona		Meritage Homes of South Carolina, Inc.
Arizona		MTH SC Realty LLC
Arizona		Buckeye Land, L.L.C.
Arizona		MTH Realty LLC
Arizona		MTH Shelf Co., Inc.
California		Meritage Homes of California, Inc.
California		California Urban Homes, LLC
Florida		Meritage Homes of Florida, Inc.
Florida		Meritage Homes of Florida Realty LLC
Texas		Meritage Holdings, L.L.C.
Texas		Meritage Homes of Texas Joint Venture Holding Company, LLC
Texas		Carefree Title Agency, Inc.
Delaware		M&M Fort Myers Holding, LLC

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-4 of our reports dated February 17, 2015, relating to the consolidated financial statements of Meritage Homes Corporation and subsidiaries, and the effectiveness of Meritage Homes Corporation and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of Meritage Homes Corporation for the year ended December 31, 2014, and to the reference to us under the heading “Experts” in the Prospectus, which is part of such Registration Statement.

/s/ DELOITTE & TOUCHE LLP

Phoenix, Arizona

June 24, 2015

Exhibit 23.2

CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS

We have issued our report dated February 13, 2013, with respect to the financial statements of MTH Mortgage, LLC included in the Annual Report on Form 10-K for the year ended December 31, 2012 of Meritage Homes Corporation, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report, and to the use of our name as it appears under the caption “Experts.”

/s/ GRANT THORNTON LLP

Los Angeles, California

June 24, 2015

Exhibit 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the use in the Registration Statement on Form S-4 of Meritage Homes Corporation of our report dated January 26, 2015, relating to the financial statements of BK Residential Construction, LLC as of December 31, 2013 and for the year then ended, appearing in this Registration Statement and to the reference of our firm under the caption “Experts” in the Prospectus, which is part of this Registration Statement.

/s/ Frazier & Deeter, LLC

Atlanta, GA

June 24, 2015

Exhibit 25.1

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM T-1

 

 

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939

OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

¨	CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

(Exact name of trustee as specified in its charter)

 

 

 

A National Banking Association		94-1347393
(Jurisdiction of incorporation or organization if not a U.S. national bank)		(I.R.S. Employer Identification No.)

 

101 North Phillips Avenue Sioux Falls, South Dakota		57104
(Address of principal executive offices)		(Zip code)

Wells Fargo & Company

Law Department, Trust Section

MAC N9305-175

Sixth Street and Marquette Avenue, 17^th Floor

Minneapolis, Minnesota 55479

(612) 667-4608

(Name, address and telephone number of agent for service)

 

 

Meritage Homes Corporation

ADDITIONAL REGISTRANTS LISTED BELOW

(Exact name of obligor as specified in its charter)

 

 

 

Maryland		86-0611231
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
8800 East Raintree Drive, Suite 300, Scottsdale, Arizona		85260
(Address of principal executive offices)		(Zip code)

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Name of Each Co-Registrant		State or Other Jurisdiction of Incorporation or Organization		I.R.S. Employer Identification No.		Address of Principle Executive Offices
California Urban Homes, LLC		California		20-2707345		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Holdings, L.L.C.		Texas		42-1732552		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes Construction, Inc.		Arizona		86-1028847		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Arizona, Inc.		Arizona		86-1028848		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of California, Inc.		California		86-0917765		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Colorado, Inc.		Arizona		20-1091787		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Florida, Inc.		Florida		59-1107583		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Nevada, Inc.		Arizona		43-1976353		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Texas Holding, Inc.		Arizona		86-0875147		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Texas Joint Venture Holding Company, LLC		Texas		75-2771799		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Texas, LLC		Arizona		65-1308131		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes Operating Company, LLC		Arizona		65-1308133		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Paseo Crossing, LLC		Arizona		86-1006497		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Paseo Construction, LLC		Arizona		86-0863537		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260

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MTH-Cavalier, LLC		Arizona		86-1028847		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
MTH Golf, LLC		Arizona		56-2379206		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
WW Project Seller, LLC		Arizona		86-1006497		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of the Carolinas, Inc.		Arizona		27-5411983		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Carefree Title Agency, Inc.		Texas		45-3742536		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
M&M Fort Myers Holdings, LLC		Delaware		26-3996740		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Florida Realty LLC		Florida		59-1107583		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of South Carolina, Inc.		Arizona		46-5709345		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
MTH Realty LLC		Arizona		86-1006497		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Georgia, Inc.		Arizona		47-1171110		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
MTH GA Realty LLC		Arizona		47-1171110		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
MTH SC Realty LLC		Arizona		46-5709345		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
MTH Shelf Co., Inc.		Arizona				8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
MLC Holdings, Inc. dba MLC Land Holdings, Inc.		Arizona		47-1967950		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Georgia Realty, LLC		Arizona		47-1171110		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260
Meritage Homes of Tennessee, Inc.		Arizona		46-3409691		8800 E. Raintree Drive Suite 300 Scottsdale, Arizona 85260

 

 

Debt Securities

(Title of the indenture securities)

 

 

 

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Item 1. General Information. Furnish the following information as to the trustee:

 

(a)

Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Treasury Department

Washington, D.C.

Federal Deposit Insurance Corporation

Washington, D.C.

Federal Reserve Bank of San Francisco

San Francisco, California 94120

 

(b)

Whether it is authorized to exercise corporate trust powers.

The trustee is authorized to exercise corporate trust powers.

Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.

None with respect to the trustee.

No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.

Item 15. Foreign Trustee. Not applicable.

Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.

 

Exhibit 1.		A copy of the Articles of Association of the trustee now in effect.*
Exhibit 2.		A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo Bank, National Association, dated June 27, 2012.**
Exhibit 3.		A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated December 21, 2011. **
Exhibit 4.		Copy of By-laws of the trustee as now in effect.***
Exhibit 5.		Not applicable.
Exhibit 6.		The consent of the trustee required by Section 321(b) of the Act.
Exhibit 7.		A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
Exhibit 8.		Not applicable.
Exhibit 9.		Not applicable.

 

*	Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784-06.

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**	Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-3 dated January 23, 2013 of file number 333-186155.

***	Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated May 26, 2005 of file number 333-125274.

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SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles and State of California on the 16th day of June, 2015.

 

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EXHIBIT 6

June 16, 2015

Securities and Exchange Commission

Washington, D.C. 20549

Gentlemen:

In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

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Exhibit 7

Consolidated Report of Condition of

Wells Fargo Bank National Association

of 101 North Phillips Avenue, Sioux Falls, SD 57104

And Foreign and Domestic Subsidiaries,

at the close of business March 31, 2015, filed in accordance with 12 U.S.C. §161 for National Banks.

 

						Dollar Amounts In Millions
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin						$	18,155
Interest-bearing balances							253,636
Securities:
Held-to-maturity securities							67,133
Available-for-sale securities							227,089
Federal funds sold and securities purchased under agreements to resell:
Federal funds sold in domestic offices							625
Securities purchased under agreements to resell							22,376
Loans and lease financing receivables:
Loans and leases held for sale							19,541
Loans and leases, net of unearned income			822,149
LESS: Allowance for loan and lease losses			10,790
Loans and leases, net of unearned income and allowance							811,359
Trading Assets							41,469
Premises and fixed assets (including capitalized leases)							7,480
Other real estate owned							2,217
Investments in unconsolidated subsidiaries and associated companies							869
Direct and indirect investments in real estate ventures							1
Intangible assets
Goodwill							21,627
Other intangible assets							17,259
Other assets							60,553
Total assets						$	1,571,389
LIABILITIES
Deposits:
In domestic offices						$	1,093,967
Noninterest-bearing			336,758
Interest-bearing			757,209
In foreign offices, Edge and Agreement subsidiaries, and IBFs							150,855
Noninterest-bearing			912
Interest-bearing			149,943
Federal funds purchased and securities sold under agreements to repurchase:
Federal funds purchased in domestic offices							1,004
Securities sold under agreements to repurchase							15,906

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		Dollar Amounts In Millions
Trading liabilities			24,062
Other borrowed money           (includes mortgage indebtedness and obligations under capitalized leases)			87,908
Subordinated notes and debentures			16,899
Other liabilities			33,851
Total liabilities		$	1,424,452
EQUITY CAPITAL
Perpetual preferred stock and related surplus			0
Common stock			519
Surplus (exclude all surplus related to preferred stock)			106,692
Retained earnings			34,702
Accumulated other comprehensive income			4,587
Other equity capital components			0
Total bank equity capital			146,500
Noncontrolling (minority) interests in consolidated subsidiaries			437
Total equity capital			146,937
Total liabilities, and equity capital		$	1,571,389

I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.

 

We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

John Stumpf		Directors
James Quigley
Enrique Hernandez, Jr.

Exhibit 99.1

LETTER OF TRANSMITTAL

 

 

TO TENDER FOR EXCHANGE

6.00% Senior Notes due 2025

that have not been registered under the Securities Act of 1933

Pursuant to the Prospectus dated            , 2015

THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,

ON            , 2015, UNLESS EXTENDED.

The Exchange Agent is:

Wells Fargo Bank, National Association

 

By Registered or Certified Mail:		By Regular Mail or Overnight Courier
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480   In Person by Hand Only:   WELLS FARGO BANK, N.A. 12th Floor – Northstar East Building Corporate Trust Operations 608 Second Avenue South Minneapolis, MN 55479		WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479   By Facsimile:   (For Eligible Institutions Only): Fax (612) 667-6282 Attn: Bondholder Communications

For Information or Confirmation by

Telephone: (800) 344-5128, Option 0

Attn: Bondholder Communications

TO TENDER OUTSTANDING NOTES, AN AGENT’S MESSAGE MUST BE DELIVERED TO THE EXCHANGE AGENT AT ITS ADDRESS SET FORTH ABOVE, WITH ALL REQUIRED DOCUMENTATION, AT OR BEFORE THE EXPIRATION TIME SPECIFIED ABOVE. DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE VALID DELIVERY TO THE EXCHANGE AGENT. DELIVERY OF DOCUMENTS TO THE DEPOSITORY TRUST COMPANY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY

BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.

The undersigned acknowledges receipt of the Prospectus dated             , 2015 (the “Prospectus”), of Meritage Homes Corporation, a Maryland corporation (the “Company”), relating to the offer (the “Exchange Offer”) of the Company, upon

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the terms and subject to the conditions set forth in the Prospectus and herein and the instructions hereto, to exchange up to $200,000,000 aggregate principal amount of its 6.00% Senior Notes due 2025 (the “Exchange Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for up to $200,000,000 aggregate principal amount of its outstanding unregistered 6.00% Senior Notes due 2025 (the “Outstanding Notes”), upon the terms and subject to the conditions set forth in the Prospectus and this Letter of Transmittal. The minimum permitted tender is $2,000 principal amount of Outstanding Notes, and all other tenders must be in integral multiples of $1,000 in excess thereof. Capitalized terms used but not defined herein have the meanings given to them in the Prospectus.

TO TENDER OUTSTANDING NOTES, AN AGENT’S MESSAGE MUST BE DELIVERED TO THE EXCHANGE AGENT AT ITS ADDRESS SET FORTH ABOVE, WITH ALL REQUIRED DOCUMENTATION, AT OR BEFORE THE EXPIRATION TIME (AS DEFINED BELOW). DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION BY FACSIMILE, OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.

THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.

The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2015, unless extended (such date and time, as the same may be extended from time to time, the “Expiration Time”). Tenders may be withdrawn at any time at or prior to the Expiration Time. Holders who wish to be eligible to receive Exchange Notes pursuant to the Exchange Offer must validly tender and not withdraw their Outstanding Notes to the Exchange Agent prior to the Expiration Time.

This Letter of Transmittal is to be used to tender Outstanding Notes:

 

•

If a tender is made by book-entry transfer to the Exchange Agent’s account at The Depository Trust Company (“DTC”) through DTC’s Automated Tender Offer Program (“ATOP”) pursuant to the procedures set forth in the Prospectus under the heading “The Exchange Offer — Procedures for Tendering”, with an Agent’s Message (as defined below) to be transmitted to the Exchange Agent confirming such book-entry transfer; or

 

•

If a tender is made pursuant to the guaranteed delivery procedures set forth in the Prospectus under the heading “The Exchange Offer — Guaranteed Delivery Procedures.”

The term “Agent’s Message” means a message, electronically transmitted by DTC to the Exchange Agent, forming part of a book-entry transfer, which states that DTC has received an express acknowledgment from the tendering holder of the Outstanding Notes that such holder has received and agrees to be bound by, and makes each of the representations and warranties contained in, this Letter of Transmittal, and, further, that such holder agrees that the Company may enforce this Letter of Transmittal against such holder.

Only registered holders are entitled to tender their Outstanding Notes for exchange in the Exchange Offer. In order for any holder of Outstanding Notes to tender in the Exchange Offer all or any portion of such holder’s Outstanding Notes, the Exchange Agent must receive, at or before the Expiration Time, an Agent’s Message, a confirmation of the book-entry transfer of the Outstanding Notes being tendered into the Exchange Agent’s account at DTC, and all documents required by this Letter of Transmittal, or the holder must comply with the guaranteed delivery procedures set forth below.

Any participant in DTC’s system whose name appears on a security position listing as the registered owner of Outstanding Notes and who wishes to make book-entry delivery of Outstanding Notes to the Exchange Agent’s account at DTC can execute the tender through ATOP, for which the Exchange Offer will be eligible, by following the applicable procedures thereof. Upon such tender of Outstanding Notes:

 

•

DTC will verify the acceptance of the tender and execute a book-entry delivery of the tendered Outstanding Notes to the Exchange Agent’s account at DTC;

 

•

DTC will send to the Exchange Agent for its acceptance an Agent’s Message forming part of such book-entry transfer; and

 

•

transmission of the Agent’s Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agent’s Message.

Delivery of documents to DTC does not constitute delivery to the Exchange Agent.

In order to properly complete this Letter of Transmittal, a holder of Outstanding Notes must:

 

•

complete the box entitled “Description of Outstanding Notes Tendered”;

 

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•

if appropriate, check and complete the boxes relating to book-entry transfer, guaranteed delivery, broker dealers, and special issuance instructions; and

 

•

complete the Substitute Form W-9 accompanying this Letter of Transmittal or the applicable IRS Form W-8, which may be obtained from the Exchange Agent.

If a holder of Outstanding Notes desires to tender his, her, or its Outstanding Notes for exchange and, at or before the Expiration Time, the procedures for book-entry transfer cannot be completed, then such holder may effect a tender of Outstanding Notes for exchange in accordance with the guaranteed delivery procedures set forth in the Prospectus under the heading “The Exchange Offer — Guaranteed Delivery Procedures.” See Instruction 2.

The Exchange Offer may be extended, terminated, or amended as provided in the Prospectus. During any such extension of the Exchange Offer, all Outstanding Notes previously tendered and not withdrawn pursuant to the Exchange Offer will remain subject to the Exchange Offer. The Exchange Offer is scheduled to expire at 5:00 p.m., New York City time, on            , 2015, unless extended by the Company.

Persons who are beneficial owners of Outstanding Notes but are not registered holders and who desire to tender Outstanding Notes should contact the registered holder of such Outstanding Notes and instruct such registered holder to tender on such beneficial owner’s behalf.

SIGNATURES MUST BE PROVIDED BELOW.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.

DESCRIPTION OF OUTSTANDING NOTES TENDERED

 

Name(s) and Address(es) of Registered Holder(s) (Please fill in, if blank)		Total Principal Amount of Outstanding Notes Tendered (must be at least $2,000 and integral multiples of $1,000 in excess thereof)

 

¨	CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:

 

Name of Tendering Institution:  ____________________________________________________________________________________

DTC Account Number:  _________________________________________________________________________________________

Transaction Code Number:  _______________________________________________________________________________________

By crediting Outstanding Notes to the Exchange Agent’s account at DTC in accordance with ATOP and by complying with applicable ATOP procedures with respect to the Exchange Offer, including transmitting an Agent’s Message to the Exchange Agent in which the holder of the Outstanding Notes acknowledges and agrees to be bound by the terms of this Letter of Transmittal, the participant in ATOP confirms on behalf of itself and the beneficial owners of such Outstanding Notes all provisions of this Letter of Transmittal applicable to it and such beneficial owners as if it had completed the information required herein and executed and delivered this Letter of Transmittal to the Exchange Agent.

 

¨	CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):

 

Name(s) of Registered Holder(s):  ____________________________________________________________________________________

Window Ticket Number (if any):  ____________________________________________________________________________________

Date of Execution of Notice of Guaranteed Delivery:  ___________________________________________________________________

Name of Institution that Guaranteed Delivery:  ______________________________________________________________________

 

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¨	CHECK HERE IF YOU ARE A BROKER-DEALER AND COMPLETE THE FOLLOWING:

 

 

¨	CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.

Ladies and Gentlemen:

Upon the terms and subject to the conditions of the Exchange Offer, the undersigned tenders to the Company for exchange the Outstanding Notes indicated above. Subject to, and effective upon, acceptance for exchange of the Outstanding Notes tendered herewith, the undersigned sells, assigns and transfers to the Company all right, title, and interest in and to all such Outstanding Notes tendered for exchange hereby. The undersigned irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as agent of the Company) with respect to such Outstanding Notes, with full power of substitution and resubstitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to:

 

•

transfer ownership of such Outstanding Notes on the account books maintained by DTC, together with all accompanying evidences of transfer and authenticity to the Company;

 

•

present and deliver such Outstanding Notes for transfer on the books of the Company; and

 

•

receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Outstanding Notes, all in accordance with the terms of the Exchange Offer.

The undersigned represents and warrants that it has full power and authority to tender, exchange, assign and transfer the Outstanding Notes and to acquire the Exchange Notes issuable upon the exchange of such tendered Outstanding Notes, and that, when the Outstanding Notes are accepted for exchange, the Company will acquire good and unencumbered title to the tendered Outstanding Notes, free and clear of all liens, restrictions, charges, and encumbrances and not subject to any adverse claim. The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Company to be necessary or desirable to complete the exchange, assignment, and transfer of tendered Outstanding Notes or transfer ownership of such Outstanding Notes on the account books maintained by DTC.

The undersigned also acknowledges that the Exchange Offer is being made by the Company in reliance on interpretations by the staff of the Securities and Exchange Commission (the “SEC”), as set forth in no-action letters issued to third parties. Based on interpretations of the staff of the SEC, as set forth in such series of no-action letters, the Company believes that Exchange Notes may be offered for resale, resold, and otherwise transferred by holders thereof (other than any such holder that is an “affiliate” of the Company within the meaning of Rule 405 under the Securities Act or that tenders Outstanding Notes for the purpose of participating in a distribution of the Exchange Notes), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such holders’ business, and such holders have no arrangement or understanding with any person to participate in the distribution of the Exchange Notes. However, the Company does not intend to request that the SEC consider, and the SEC has not considered, the Exchange Offer in the context of a no-action letter and therefore the Company cannot guarantee that the staff of the SEC would make a similar determination with respect to the Exchange Offer. The undersigned acknowledges that if the interpretation of the Company of the above mentioned no-action letters is incorrect such holder may be held liable for any offers, resales or transfers by the undersigned of the Exchange Notes that are in violation of the Securities Act. The undersigned further acknowledges that neither the Company nor the Exchange Agent will indemnify any holder for any such liability under the Securities Act.

The undersigned represents and warrants that:

 

•

the Exchange Notes issued in the Exchange Offer are acquired in the ordinary course of the undersigned’s business;

 

•

the undersigned has no arrangement or understanding with any person to participate, and is not participating, in the distribution of the Exchange Notes within the meaning of the Securities Act;

 

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•

the undersigned is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act and as interpreted by the SEC;

 

•

the undersigned is not holding Outstanding Notes that have, or that are reasonably likely to have, the status of an unsold allotment in the initial offering of the Outstanding Notes;

 

•

if the undersigned is not a broker-dealer, the undersigned is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes; and

 

•

if the undersigned is a broker-dealer, such broker-dealer will receive the Exchange Notes for its own account in exchange for Outstanding Notes and that:

 

•

such Outstanding Notes were acquired by such broker-dealer as a result of market-making or other trading activities; and

 

•

it will deliver a prospectus meeting the requirements of the Securities Act in connection with the resale of Exchange Notes, and will comply with the applicable provisions of the Securities Act with respect to resale of any Exchange Notes.

Any holder of Outstanding Notes who is an affiliate of the Company who tenders Outstanding Notes in the Exchange Offer for the purpose of participating in a distribution of the Exchange Notes:

 

•

may not rely on the position of the staff of the SEC enunciated in its series of interpretive no-action letters with respect to exchange offers; and

 

•

must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction.

All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal and every obligation of the undersigned hereunder is binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy, and personal and legal representatives of the undersigned and will not be affected by, and will survive, the death or incapacity of the undersigned.

Outstanding Notes properly tendered may be withdrawn at any time at or before the Expiration Time in accordance with the terms of the Prospectus and this Letter of Transmittal. The Exchange Offer is subject to certain conditions, some of which may be waived or modified by the Company, in whole or in part, at any time and from time to time at or prior to the Expiration Time, as described in the Prospectus under the heading “The Exchange Offer — Conditions of the Exchange Offer.” The undersigned recognizes that as a result of such conditions the Company may not be required to accept for exchange, or to issue Exchange Notes in exchange for, any Outstanding Notes and may terminate or amend the Exchange Offer, by oral or written notice to the Exchange Agent or by a timely press release, if the conditions to the Exchange Offer have not been satisfied or waived at the then scheduled Expiration Times. All tendering holders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance or rejection of their Outstanding Notes for exchange.

The Company is not aware of any jurisdiction in which the making of the Exchange Offer or the tender of Outstanding Notes in connection therewith would not be in compliance with the laws of such jurisdiction. The Exchange Notes may not be offered or sold in any state unless they have been registered or qualified for sale in such state or an exemption from registration or qualification is available and complied with by the holders selling the Exchange Notes. The Company currently does not intend to register or qualify the sale of the Exchange Notes in any state.

Unless otherwise indicated under “Special Issuance Instructions,” please credit the account of the undersigned maintained at DTC appearing under the table “Description of Outstanding Notes Tendered” with any Outstanding Notes not accepted for exchange or any Exchange Notes issued in exchange for Outstanding Notes. The undersigned recognizes that the Company has no obligation pursuant to the special issuance instructions to transfer any Outstanding Notes from the name of the holder thereof if the Company does not accept for exchange any of the Outstanding Notes so tendered or if such transfer would not be in compliance with any transfer restrictions applicable to such Outstanding Notes.

 

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SPECIAL ISSUANCE INSTRUCTIONS

(SEE INSTRUCTIONS 1, 6, 7 and 8)

To be completed ONLY if Outstanding Notes tendered by book-entry transfer that are not exchanged are to be returned by credit to an account maintained at DTC other than the account indicated above. ISSUE TO:

 

Name (Please type or print):  ____________________________________________________________________________________

Address (Include Zip Code):  ____________________________________________________________________________________

Taxpayer ID or Social Security Number:   ____________________________________________________________________________________

Credit DTC Account Number:   ____________________________________________________________________________________

SIGN HERE TO TENDER YOUR OUTSTANDING NOTES IN THE EXCHANGE OFFER

 

Signature of each holder of Outstanding Notes* ____________________________________________________________________________________

Capacity (Full Title): **   _________________________________________________________________________________________

Name (Please type or print):   ____________________________________________________________________________________

Address (Include Zip Code):  ____________________________________________________________________________________

Area Code and Telephone Number:  ____________________________________________________________________________________

Dated:             , 2015

 

 

*	Must be signed by each registered holder of Outstanding Notes exactly as such holder’s name appears on certificate(s) representing the Outstanding Notes or on a security position listing, or by each person authorized to become a registered holder by certificates and documents transmitted herewith.

**	Please provide if signature is by an attorney-in-fact, executor, administrator, trustee, guardian, officer of a corporation, or other person acting in a fiduciary or representative capacity. See Instruction 6.

GUARANTEE OF SIGNATURE

(IF REQUIRED – SEE INSTRUCTIONS 1 AND 6)

 

Authorized Signature:   __________________________________________________________________________________________

Name (Please type or print):   ____________________________________________________________________________________

Title:   ________________________________________________________________________________________________________

Name of Firm:   _________________________________________________________________________________________________

Address (Include Zip Code):   ____________________________________________________________________________________

Area Code and Telephone Number:  ____________________________________________________________________________________

Dated:             , 2015

 

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IMPORTANT: COMPLETE AND SIGN THE SUBSTITUTE FORM W-9

ACCOMPANYING THIS LETTER OF TRANSMITTAL

INSTRUCTIONS

FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER

 

1.	Guarantee of Signatures.

Except as otherwise provided below, all signatures on this Letter of Transmittal must be guaranteed by an institution which is a member of the New York Stock Exchange Medallion Signature Program or an “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (an “Eligible Institution”). Signatures on this Letter of Transmittal need not be guaranteed if such Outstanding Notes are tendered for the account of an Eligible Institution. IN ALL OTHER CASES, ALL SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.

 

2.	Delivery of this Letter of Transmittal and Outstanding Notes; Guaranteed Delivery Procedures.

In order for a holder of Outstanding Notes to tender all or any portion of such holder’s Outstanding Notes, the Exchange Agent must receive an Agent’s Message with respect to such holder, a confirmation of the book-entry transfer of the Outstanding Notes being tendered into the Exchange Agent’s account at DTC, and any other required documents, at or before the Expiration Time, or the tendering holder must comply with the guaranteed delivery procedures set forth below. Delivery of the documents to DTC does not constitute delivery to the Exchange Agent.

THE METHOD OF DELIVERY OF OUTSTANDING NOTES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING HOLDER OF OUTSTANDING NOTES. EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. BY USING THE ATOP PROCEDURES TO TENDER OUTSTANDING NOTES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER, YOU WILL BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGEMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF YOU HAD SIGNED IT.

If holders desire to tender Outstanding Notes for exchange pursuant to the Exchange Offer and, if at or before the Expiration Tim, the procedures for book-entry transfer cannot be completed, such holder may effect a tender of Outstanding Notes for exchange in accordance with the guaranteed delivery procedures set forth in the Prospectus under the caption “The Exchange Offer — Guaranteed Delivery Procedures.” Pursuant to the guaranteed delivery procedures:

 

•

such tender must be made by or through an Eligible Institution;

 

•

at or prior to the Expiration Time, the Exchange Agent must have received from an Eligible Institution a validly completed and executed Notice of Guaranteed Delivery, substantially in the form accompanying this Letter of Transmittal, by facsimile transmission, mail, or hand delivery, setting forth the name and address of the holder of the Outstanding Notes being tendered and the amount of the Outstanding Notes being tendered. The Notice of Guaranteed Delivery must state that the tender is being made and guarantee that within three New York Stock Exchange trading days after the date of execution of the Notice of Guaranteed Delivery a book-entry confirmation, together with an Agent’s Message and any other documents required by the Letter of Transmittal, will be transmitted to the Exchange Agent; and

 

•

the Exchange Agent must receive a book-entry confirmation, together with an Agent’s Message and any other documents required by the Letter of Transmittal, within three New York Stock Exchange trading days after the date of execution of the Notice of Guaranteed Delivery.

All tendering holders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance or rejection of their Outstanding Notes for exchange.

 

3.	Inadequate Space.

If the space provided in the box entitled “Description of Outstanding Notes” above is inadequate, the principal amounts of the Outstanding Notes being tendered should be listed on a separate signed schedule affixed hereto.

 

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4.	Withdrawals.

A tender of Outstanding Notes may be withdrawn at any time at or before the Expiration Time by delivery of a written or facsimile notice of withdrawal to the Exchange Agent at the address set forth on the cover of this Letter of Transmittal. To be effective, a notice of withdrawal must:

 

•

be received by the Exchange Agent at or before the Expiration Time;

 

•

specify the name of the person having tendered the Outstanding Notes to be withdrawn;

 

•

specify the principal amount of Outstanding Notes to be withdrawn;

 

•

specify the name and number of the account at DTC to be credited with the withdrawn Outstanding Notes and otherwise comply with the procedures of DTC (including ATOP procedures);

 

•

include a statement that such holder is withdrawing his, her or its election to have such Outstanding Notes exchanged; and

 

•

bear the signature of the holder in the same manner as the original signature on the Letter of Transmittal, if any, by which such Outstanding Notes were tendered, with such signature guaranteed by an Eligible Institution (unless such withdrawing holder is an Eligible Institution).

The Exchange Agent will promptly return any properly withdrawn Outstanding Notes following receipt of the notice of withdrawal. All questions as to the validity of notices of withdrawal, including time of receipt, will be determined by the Company in its sole discretion and such determination will be final and binding on all parties.

Any Outstanding Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Outstanding Notes that have been tendered for exchange but that are not exchanged for any reason will be credited to an account with DTC specified by the holder) after withdrawal, rejection of tender, or termination of the Exchange Offer. Properly withdrawn Outstanding Notes may be retendered by following one of the procedures described under the heading “The Exchange Offer — Procedures for Tendering” in the Prospectus at any time at or before the Expiration Time.

 

5.	Partial Tenders.

Tenders of Outstanding Notes will be accepted only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. If a tender for exchange is to be made with respect to less than the entire principal amount of any Outstanding Notes, fill in the principal amount of Outstanding Notes which are tendered for exchange in the appropriate column of the box entitled “Description of Outstanding Notes.” In case of a partial tender for exchange, the untendered principal amount of the Outstanding Notes will be credited to the DTC account of the tendering holder, unless otherwise indicated in the appropriate box on this Letter of Transmittal, as promptly as practicable after the expiration or termination of the Exchange Offer.

 

6.	Signatures on this Letter of Transmittal and Powers of Attorney.

 

•

If this Letter of Transmittal is signed by the registered holder(s) of the Outstanding Notes tendered for exchange hereby, each signature must correspond exactly with each name as written on the face of the certificate without alteration, enlargement, or any change whatsoever.

 

•

If any of the Outstanding Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.

 

•

If any tendered Outstanding Notes are registered in different names on several certificates, it will be necessary to complete, sign, and submit as many separate copies of this Letter of Transmittal and any necessary or required documents as there are names in which Outstanding Notes are held.

 

•

If this Letter of Transmittal or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations, or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Company of such person’s authority to so act must be submitted, unless waived by the Company.

 

•

If this Letter of Transmittal is signed by the registered holder(s) of the Outstanding Notes listed and transmitted hereby, no endorsements of certificates or separate bond powers are required, unless certificates for Outstanding Notes not tendered or not accepted for exchange are to be issued or returned in the name of a person other than the holder(s) thereof. In such event, signatures on this Letter of Transmittal or such certificates must be guaranteed by an Eligible Institution (unless signed by an Eligible Institution).

 

8

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•

If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Outstanding Notes, the certificates representing such Outstanding Notes must be properly endorsed for transfer by the registered holder or be accompanied by a properly completed bond power from the registered holder, in either case signed by each such registered holder exactly as the name of each registered holder of the Outstanding Notes appears on the Company’s records. Signatures on the endorsement or bond power must be guaranteed by an Eligible Institution (unless signed by an Eligible Institution).

 

•

If the Outstanding Notes or the Exchange Notes issued in exchange for the Outstanding Notes are to be issued in the name of a person other than the registered holder(s), this Letter of Transmittal must be accompanied by bond powers or other documents of transfer sufficient to permit the transfer of such Outstanding Notes into the name of such person.

 

7.	Transfer Taxes.

Except as set forth in this Instruction 7, the Company will pay or cause to be paid any transfer taxes applicable to the exchange by the Company of Outstanding Notes pursuant to the Exchange Offer. If, however, a transfer tax is imposed for any reason other than the exchange by the Company of Outstanding Notes pursuant to the Exchange Offer, then the amount of any transfer taxes (whether imposed on the registered holder(s) or any other persons) will be payable by the tendering holder. If satisfactory evidence of the payment of such taxes or exemptions therefrom is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holder.

 

8.	Special Issuance Instructions.

If the Exchange Notes are to be issued or if any Outstanding Notes not tendered or not accepted for exchange are to be issued or sent to a person other than the person(s) signing this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. Holders of Outstanding Notes tendering Outstanding Notes by book-entry transfer may request that Outstanding Notes not accepted for exchange be credited to such other account maintained at DTC as such holder may designate. In such event, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution.

 

9.	Irregularities.

All questions as to the forms of all documents and the validity of (including time of receipt) and acceptance of the tenders and withdrawals of Outstanding Notes will be determined by the Company, in its sole discretion, which determination will be final and binding. Alternative, conditional, or contingent tenders will not be considered valid. The Company reserves the absolute right to reject any or all tenders of Outstanding Notes that are not in proper form or the acceptance of which would, in the Company’s opinion, be unlawful. The Company also reserves the right to waive any defects or irregularities as to the tender of any particular Outstanding Notes. The Company’s interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding. Any defect or irregularity in connection with tenders of Outstanding Notes must be cured within such time as the Company determines, unless waived by the Company. Tenders of Outstanding Notes will not be deemed to have been made until all defects or irregularities have been waived by the Company or cured. Neither the Company nor the Exchange Agent, nor any other person will be under any duty to give notice of any defects or irregularities in tenders of Outstanding Notes, or will incur any liability to registered holders or beneficial owners or of Outstanding Notes or any other persons for failure to give such notice.

 

10.	Waiver of Conditions.

To the extent permitted by applicable law, the Company reserves the right to waive any and all conditions to the Exchange Offer on or before the Expiration Time as described under “The Exchange Offer — Conditions of the Exchange Offer” in the Prospectus, and accept for exchange any Outstanding Notes tendered. To the extent that the Company waives any condition to the Exchange Offer, it will waive such condition as to all Outstanding Notes.

 

11.	Tax Identification Number and Backup Withholding.

Federal income tax law generally requires that a holder of Outstanding Notes whose tendered Outstanding Notes are accepted for exchange or such holder’s assignee (in either case, the “Payee”), provide the Exchange Agent (the “Payor”) with such Payee’s correct Taxpayer Identification Number (“TIN”), which, in the case of a Payee who is an individual, is such Payee’s social security number. If the Payor is not provided with the correct TIN or an adequate basis for an exemption, such Payee may be subject to a $50 penalty imposed by the Internal Revenue Service and backup withholding at the applicable withholding rate (which is currently 28%) on all reportable payments (such as interest), that are made to the Payee with respect to the Exchange Notes. If withholding results in an overpayment of taxes, a refund may be obtained.

 

9

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To prevent backup withholding, each Payee must provide the Exchange Agent such Payee’s correct TIN by completing the “Substitute Form W-9” accompanying this Letter of Transmittal, certifying that the TIN provided is correct (or that such Payee is awaiting a TIN) and that:

 

•

the Payee is exempt from backup withholding;

 

•

the Payee has not been notified by the Internal Revenue Service that such Payee is subject to backup withholding as a result of a failure to report all interest or dividends; or

 

•

the Internal Revenue Service has notified the Payee that such Payee is no longer subject to backup withholding.

If the Payee does not have a TIN, such Payee should consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the “W-9 Guidelines”) for instructions on applying for a TIN. A Payee who has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future should check the “Awaiting TIN” box in Part 3 of the Substitute Form W-9, and should sign and date the Substitute Form W-9 and the Certificate of Awaiting Taxpayer Identification Number set forth therein. If such a Payee does not provide his, her, or its TIN to the Exchange Agent within 60 days, backup withholding on all reportable payments will begin and continue until such Payee furnishes such Payee’s TIN to the Exchange Agent.

If the Outstanding Notes are held in more than one name or are not in the name of the actual owner, consult the W-9 Guidelines for information on which TIN to report.

Exempt Payees (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt Payee must enter its correct TIN in Part 1 of the Substitute Form W-9, check the “Exempt” box in Part 4 of such form and sign and date the form. See the W-9 Guidelines for additional instructions. In order for a nonresident alien or foreign entity to qualify as exempt from these backup withholding and information reporting requirements, such person must complete and submit an appropriate Form W-8, signed under penalty of perjury attesting to such exempt status. Such form may be obtained from the Exchange Agent.

 

12.	Requests for Information or Additional Copies.

Requests for assistance with respect to the procedures for the Exchange Offer or for additional copies of the Prospectus, this Letter of Transmittal, the Notice of Guaranteed Delivery, or the W-9 Guidelines may be directed to the Exchange Agent at its address set forth on the cover of this Letter of Transmittal.

 

13.	Incorporation of this Letter of Transmittal.

This Letter of Transmittal will be deemed to be incorporated in, and acknowledged and accepted by, a tender through DTC’s ATOP procedures by any participant on behalf of itself and the beneficial owners of any Outstanding Notes so tendered by such participant.

 

IMPORTANT:

CONFIRMATION OF BOOK-ENTRY TRANSFER AND AN AGENT’S MESSAGE, TOGETHER WITH ALL OTHER REQUIRED DOCUMENTS, OR A NOTICE OF GUARANTEED DELIVERY, MUST BE RECEIVED BY THE EXCHANGE AGENT AT OR BEFORE THE EXPIRATION TIME.

 

10

Exhibit 99.2

NOTICE OF GUARANTEED DELIVERY

 

OFFER TO EXCHANGE

$200,000,000 of 6.00% Senior Notes due 2025

that have been registered under the Securities Act of 1933

for any and all of our outstanding

$200,000,000 of 6.00% Senior Notes due 2025

that have not been registered under the Securities Act of 1933

Pursuant to the Prospectus dated             , 2015

THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,

ON             , 2015, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE

EXTENDED FROM TIME TO TIME, THE “EXPIRATION TIME”). TENDERS MAY BE

WITHDRAWN AT ANY TIME AT OR BEFORE THE EXPIRATION TIME.

The Exchange Agent is:

Wells Fargo Bank, National Association

 

By Registered or Certified Mail:		By Regular Mail or Overnight Courier
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480   In Person by Hand Only:   WELLS FARGO BANK, N.A. 12th Floor – Northstar East Building Corporate Trust Operations 608 Second Avenue South Minneapolis, MN 55479		WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479   By Facsimile:   (For Eligible Institutions Only): Fax (612) 667-6282 Attn: Bondholder Communications

For Information or Confirmation by

Telephone: (800) 344-5128, Option 0

Attn: Bondholder Communications

---

As set forth in the prospectus dated             , 2015 (the “Prospectus”), of Meritage Homes Corporation, a Maryland corporation (the “Company”), and in the accompanying Letter of Transmittal (the “Letter of Transmittal”), this Notice of Guaranteed Delivery must be used to accept the Company’s offer to exchange (the “Exchange Offer”) up to $200,000,000 in aggregate principal amount of its 6.00% Senior Notes due 2025 (the “Exchange Notes”) that have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for a like principal amount of its outstanding unregistered 6.00% Senior Notes due 2025 (the “Outstanding Notes”), if at or before the Expiration Time the procedures for book-entry transfer cannot be completed. This form must be delivered by an Eligible Institution (as defined below) by mail or hand delivery or transmitted via facsimile to the Exchange Agent at its address set forth above at or before the Expiration Time. Capitalized terms used but not defined herein have the meanings given to them in the Letter of Transmittal.

Transmission of this Notice of Guaranteed Delivery via facsimile to a number other than as set forth above or delivery of this Notice of Guaranteed Delivery to an address other than as set forth above will not constitute a valid delivery.

This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If a signature on the Letter of Transmittal is required to be guaranteed by an eligible institution under the instructions thereto, such signature guarantee must appear in the applicable space provided on the Letter of Transmittal.

 

2

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Ladies and Gentlemen:

The undersigned hereby tenders to the Company, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal (receipt of which are hereby acknowledged), the principal amount of Outstanding Notes specified below pursuant to the guaranteed delivery procedures set forth in the Prospectus and in Instruction 2 of the Letter of Transmittal. By so tendering, the undersigned does hereby make as of the date hereof, the representations and warranties of a tendering holder of Outstanding Notes set forth in the Letter of Transmittal. The undersigned hereby authorizes the Exchange Agent to deliver this Notice of Guaranteed Delivery to the Company with respect to the Outstanding Notes tendered pursuant to the Exchange Offer.

The undersigned understands that tenders of the Outstanding Notes will be accepted only in principal amounts equal to $2,000 and integral multiples of $1,000 in excess thereof. The undersigned also understands that tenders of the Outstanding Notes pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Time. For a withdrawal of a tender of Outstanding Notes to be effective, it must be made in accordance with the procedures set forth in the prospectus under “The Exchange Offer — Withdrawal of Tenders.”

The undersigned understands that the exchange of any Exchange Notes for Outstanding Notes will be made only after timely receipt by the Exchange Agent of (1) a book-entry confirmation of the transfer of such Outstanding Notes into the Exchange Agent’s account at DTC, and (2) a properly transmitted Agent’s Message, within three New York Stock Exchange trading days after the execution hereof.

All authority herein conferred or agreed to be conferred by this notice of guaranteed delivery shall not be affected by, and shall survive, the death or incapacity of the undersigned, and every obligation of the undersigned under this notice of guaranteed delivery shall be binding upon the heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives of the undersigned.

SIGNATURES BEGIN ON NEXT PAGE

 

3

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PLEASE SIGN AND COMPLETE

Signature(s) of registered holder(s) or Authorized Signatory*:

___________________________________________________________________________________________________________________________________________________________________________________________________________

Name(s) of registered holder(s) (Please type or print):

___________________________________________________________________________________________________________________________________________________________________________________________________________

 

Title (Capacity)**:  ______________________________________________________________________________________________________________________________________________________________________

Address (Include Zip Code):  ____________________________________________________________________________________

Area Code and Telephone No.:  ____________________________________________________________________________________

Date:             , 2015

 

Principal Amount of Outstanding 6.00% Senior Notes due 2025 Tendered:  _______________________________________________

Name of Tendering Institution:  ____________________________________________________________________________________

DTC Account Number:  _______________________________________________________________________________________

Transaction Code Number:  ____________________________________________________________________________________

 

 

*	Must be signed exactly as such participant’s name appears on a security position listing as the owner of the Outstanding Notes, or by each person authorized to become a registered holder by endorsements and documents transmitted with this Notice of Guaranteed Delivery.

**	Please provide if signature is by an attorney-in-fact, executor, administrator, trustee, guardian, officer of a corporation, or other person acting in a fiduciary or representative capacity.

GUARANTEE ON NEXT PAGE MUST BE COMPLETED

 

4

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GUARANTEE

(MUST BE COMPLETED; NOT TO BE USED FOR SIGNATURE GUARANTEE)

The undersigned, a recognized member in good standing of a Medallion Signature Guarantee Program recognized by the Exchange Agent, such as a firm which is a member of a registered national securities exchange, a member of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States, or certain other eligible institutions as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an “Eligible Institution”), guarantees that the confirmation of book-entry transfer of the Outstanding Notes referenced above into the Exchange Agent’s account at the Depository Trust Company facility, together with an Agent’s Message (as defined in the Letter of Transmittal) and any other documents required by the Letter of Transmittal, will be received by the Exchange Agent at its address set forth above within three New York Stock Exchange trading days after the date of execution hereof.

The Eligible Institution that completes this form must communicate the guarantee to the Exchange Agent and must deliver an Agent’s Message and confirmation of the book-entry transfer of such Outstanding Notes into the Exchange Agent’s account at the Depository Trust Company, within the time periods shown herein. The undersigned acknowledges that failure to do so could result in a financial loss to such Eligible Institution.

PLEASE PRINT NAME AND ADDRESS

 

Name of Firm:  ______________________________________________________________________________________________________________________________________________________________________________

Authorized Signature:  ________________________________________________________________________________________________________________________________________________________________________

Name (Please type or print):  __________________________________________________________________________________________________________________________________________

Title:  _______________________________________________________________________________________________________________________________________________________________________

Address (Include Zip Code):  _________________________________________________________________________________________________________________________________________

Area Code and Telephone Number:  ___________________________________________________________________________________________________________________________________

Date:             , 2015

 

5

Exhibit 99.3

 

OFFER TO EXCHANGE

$200,000,000 of 6.00% Senior Notes due 2025

that have been registered under the Securities Act of 1933

for any and all of our outstanding

$200,000,000 of 6.00% Senior Notes due 2025

that have not been registered under the Securities Act of 1933

Pursuant to the Prospectus dated            , 2015

THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,

ON            , 2015, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE

EXTENDED FROM TIME TO TIME, THE “EXPIRATION TIME”). TENDERS MAY BE

WITHDRAWN AT ANY TIME AT OR BEFORE THE EXPIRATION TIME.

To DTC Participants:

Meritage Homes Corporation, a Maryland corporation (the “Company”), is offering to exchange, upon the terms and subject to the conditions set forth in the prospectus dated            , 2015 (the “Prospectus”), and the accompanying Letter of Transmittal (the “Letter of Transmittal”), up to $200,000,000 in aggregate principal amount of its 6.00% Senior Notes due 2025 (the “Exchange Notes”) that have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for a like principal amount of outstanding unregistered 6.00% Senior Notes due 2025 (the “Outstanding Notes”), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal (which, together, as they may be amended, supplemented or otherwise modified from time to time, constitute the “Exchange Offer”). As set forth in the Prospectus, the terms of the Exchange Notes are substantially identical to the Outstanding Notes, except that the transfer restrictions, registration rights, and additional interest provisions relating to the Outstanding Notes will not apply to the Exchange Notes. The Prospectus and the Letter of Transmittal more fully describe the Exchange Offer. Capitalized terms used but not defined herein have the meanings given to them in the Letter of Transmittal.

We are requesting that you contact your clients for whom you hold Outstanding Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Outstanding Notes registered in your name or in the name of your nominee, we are enclosing the following documents:

 

1.

The Prospectus;

 

2.

The Letter of Transmittal (including a Substitute Form W-9 and Guidelines for Certification of Taxpayer identification number on Substitute Form W-9);

 

3.

A Notice of Guaranteed Delivery to be used to accept the Exchange Offer if, at or before the Expiration Time, the procedure for book-entry transfer cannot be completed;

 

4.

A form of letter that may be sent to your clients for whose account you hold Outstanding Notes registered in your name or the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Exchange Offer; and

 

5.

A form of instruction letter that may be used by beneficial holders to provide instructions to you or other DTC participants in connection with the Exchange Offer.

Your prompt action is required. The Exchange Offer will expire at 5:00 p.m., New York City time, on            , 2015, unless extended. Outstanding Notes tendered pursuant to the Exchange Offer may be withdrawn at any time at or before the Expiration Time.

To participate in the Exchange Offer, you must arrange for DTC to transmit to the Exchange Agent certain required information, including an Agent’s Message forming part of a book-entry transfer in which you agree to be bound by the terms of the Letter of Transmittal, and transfer the Outstanding Notes being tendered into the Exchange Agent’s account at DTC prior to the Expiration Time, all in accordance with the instructions set forth in the Letter of Transmittal and the Prospectus.

---

The Company will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Outstanding Notes held by such brokers, dealers, commercial banks, and trust companies as nominee or in a fiduciary capacity. The Company will pay or cause to be paid all transfer taxes applicable to the exchange of Outstanding Notes pursuant to the Exchange Offer, except as set forth in Instruction 7 of the Letter of Transmittal. Otherwise, the Company will not pay any fees or commissions to any broker or dealer or any other person (other than the Exchange Agent) for soliciting tenders of the Outstanding Notes pursuant to the Exchange Offer.

Any inquiries you may have regarding the procedure for tendering Outstanding Notes pursuant to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to Wells Fargo Bank, National Association, the Exchange Agent for the Exchange Offer, at its address and telephone number set forth below:

 

By Registered or Certified Mail:		By Regular Mail or Overnight Courier
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480   In Person by Hand Only:   WELLS FARGO BANK, N.A. 12th Floor – Northstar East Building Corporate Trust Operations 608 Second Avenue South Minneapolis, MN 55479		WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479   By Facsimile:   (For Eligible Institutions Only): Fax (612) 667-6282 Attn: Bondholder Communications

For Information or Confirmation by

Telephone: (800) 344-5128, Option 0

Attn: Bondholder Communications

 

NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS CONSTITUTES YOU OR ANY OTHER PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZES YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.

 

2

Exhibit 99.4

 

OFFER TO EXCHANGE

$200,000,000 of 6.00% Senior Notes due 2025

that have been registered under the Securities Act of 1933

for any and all of our outstanding

$200,000,000 of 6.00% Senior Notes due 2025

that have not been registered under the Securities Act of 1933

Pursuant to the Prospectus dated            , 2015

THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,

ON            , 2015, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE

EXTENDED FROM TIME TO TIME, THE “EXPIRATION TIME”). TENDERS MAY BE

WITHDRAWN AT ANY TIME AT OR BEFORE THE EXPIRATION TIME.

To Our Clients:

We are enclosing for your consideration (i) a prospectus dated            , 2015 (the “Prospectus”) of Meritage Homes Corporation, a Maryland corporation (the “Company”), (ii) a related Letter of Transmittal (which together with the Prospectus constitutes the “Exchange Offer”) relating to the offer by the Company to exchange up to $200,000,000 aggregate principal amount of its 6.00% Senior Notes due 2025 (the “Exchange Notes”) that have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for up to $200,000,000 aggregate principal amount of its outstanding unregistered 6.00% Senior Notes due 2025 (the “Outstanding Notes”), upon the terms and subject to the conditions set forth in the Exchange Offer, and (iii) an Instruction to Registered Holder from Beneficial Owner. As set forth in the Prospectus, the terms of the Exchange Notes are substantially identical to the Outstanding Notes, except that the transfer restrictions, registration rights, and additional interest provisions relating to the Outstanding Notes will not apply to the Exchange Notes. The Prospectus and the Letter of Transmittal more fully describe the Exchange Offer. Capitalized terms used but not defined herein have the meanings given to them in the Letter of Transmittal.

This material is being forwarded to you as the beneficial owner of the Outstanding Notes carried by us in your account, but not registered in your name. A tender of such Outstanding Notes can be made only by us as the registered holder for your account and pursuant to your instructions. The enclosed Letter of Transmittal is furnished to you for your information only and cannot be used to tender Outstanding Notes.

Accordingly, we request instructions as to whether you wish us to tender on your behalf the Outstanding Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal.

Your attention is directed to the following:

 

1.

The Exchange Offer is described in and subject to the terms and conditions set forth in the Prospectus and the Letter of Transmittal.

 

2.

The Exchange Offer is for any and all Outstanding Notes.

 

3.

Subject to the terms and conditions of the Exchange Offer, the Company will accept for exchange promptly following the Expiration Time all Outstanding Notes validly tendered and will issue Exchange Notes promptly after such acceptance.

 

4.

The Exchange Offer is being made pursuant to the registration rights agreement entered into on June 2, 2015, among the Company and the initial purchasers of the Outstanding Notes.

 

5.

Any transfer taxes incident to the transfer of Outstanding Notes from the holder to the Company will be paid by the Company, except as otherwise provided in Instruction 7 of the Letter of Transmittal.

 

6.

The Exchange Offer will expire at 5:00 p.m., New York City time, on            , 2015, unless extended by the Company. If you desire to exchange your Outstanding Notes in the Exchange Offer, your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Outstanding Notes on your behalf at or before the Expiration Time in accordance with the provisions of the Exchange Offer. Any Outstanding Notes tendered pursuant to the Exchange Offer may be withdrawn at any time at or before the Expiration Time.

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Pursuant to the Letter of Transmittal, each holder of Outstanding Notes must represent to the Company that:

 

•

the Exchange Notes issued in the Exchange Offer are acquired in the ordinary course of the holder’s business;

 

•

the holder has no arrangement or understanding with any person to participate, and is not participating, in the distribution of the Exchange Notes within the meaning of the Securities Act;

 

•

the holder is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act and as interpreted by the Securities Exchange Commission;

 

•

the holder is not holding Outstanding Notes that have, or that are reasonably likely to have, the status of an unsold allotment in the initial offering of the Outstanding Notes;

 

•

if the holder is not a broker-dealer, the holder is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes; and

 

•

if such a holder is a broker-dealer, such broker-dealer will receive the Exchange Notes for its own account in exchange for Outstanding Notes and that:

 

•

such Outstanding Notes were acquired by such broker-dealer as a result of market-making or other trading activities; and

 

•

it will deliver a prospectus meeting the requirements of the Securities Act in connection with the resale of Exchange Notes, and will comply with the applicable provisions of the Securities Act with respect to resale of any Exchange Notes.

Any person who is an affiliate of the Company, or is participating in the Exchange Offer for the purpose of distributing the Exchange Notes, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a resale transaction of the Exchange Notes acquired by such person and such person cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its series of interpretative no-action letters with respect to exchange offers.

The enclosed “Instructions to Registered Holder from Beneficial Owner” form contains an authorization by you, as the beneficial owner of Outstanding Notes, for us to make, among other things, the foregoing representations on your behalf.

We urge you to read the enclosed Prospectus and Letter of Transmittal in conjunction with the Exchange Offer carefully before providing instructions regarding your Outstanding Notes. If you wish to tender any or all of the Outstanding Notes held by us for your account, please so instruct us by completing, executing, detaching, and returning to us the instruction form attached hereto.

None of the Outstanding Notes held by us for your account will be tendered unless we receive written instructions from you to do so. Unless a specific contrary instruction is given, your signature on the attached “Instructions to Registered Holder from Beneficial Holder” constitutes an instruction to us to tender ALL of the Outstanding Notes held by us for your account.

 

2

Exhibit 99.5

INSTRUCTION TO REGISTERED HOLDER

From Beneficial Owner of

Meritage Homes Corporation’s

6.00% Senior Notes due 2025

To DTC Participant:

The undersigned hereby acknowledges receipt of the prospectus dated            , 2015 (the “Prospectus”) of Meritage Homes Corporation, a Maryland corporation (the “Company”), and accompanying Letter of Transmittal (the “Letter of Transmittal”), which together constitute the Company’s offer (“Exchange Offer”) to exchange up to $200,000,000 in aggregate principal amount of its 6.00% Senior Notes due 2025 (the “Exchange Notes”) that have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for a like principal amount of its outstanding unregistered 6.00% Senior Notes due 2025 (the “Outstanding Notes”). Tenders of Outstanding Notes may be made only in principal amounts equal to $2,000 and integral multiples of $1,000 in excess thereof. Capitalized terms used but not defined have the meanings assigned to them in the Letter of Transmittal.

The undersigned understands and agrees that the Company has filed a registration statement to register the Exchange Notes under the Securities Act and will not accept for exchange any Outstanding Notes until the registration statement has become effective under the Securities Act.

This will instruct you as to the action to be taken by you relating to the Exchange Offer with respect to the Outstanding Notes held by you for the account of the undersigned.

The aggregate face amount of the Outstanding Notes held by you for the account of the undersigned is (fill in amount):

$          of Outstanding Notes

 

___________________________________________________________________________________________________________________________________________________________________________________________________________

With respect to the Exchange Offer, the undersigned hereby instructs you to (check one of the following boxes):

 

¨	TENDER the following Outstanding Notes held by you for the account of the undersigned (insert principal amount of Outstanding Notes to be tendered, if any):

$          of Outstanding Notes

 

¨	NOT TENDER any Outstanding Notes held by you for the account of the undersigned.

 

___________________________________________________________________________________________________________________________________________________________________________________________________________

If the undersigned is instructing you to tender the Outstanding Notes held by you for the account of the undersigned, the undersigned agrees and acknowledges that you are authorized:

 

•

to make, on behalf of the undersigned (and the undersigned, by its signature below, makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Outstanding Notes, including but not limited to the representations that:

 

•

the Exchange Notes issued in the Exchange Offer are acquired in the ordinary course of the undersigned’s business;

 

•

the undersigned has no arrangement or understanding with any person to participate, and is not participating, in the distribution of the Exchange Notes within the meaning of the Securities Act;

 

•

the undersigned is not an “affiliate” of the Company within the meaning of Rule 405 of the Securities Act and as interpreted by the Securities Exchange Commission;

 

•

the undersigned is not holding Outstanding Notes that have, or that are reasonably likely to have, the status of an unsold allotment in the initial offering of the Outstanding Notes;

 

•

if the undersigned is not a broker-dealer, the undersigned is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes; and

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•

if the undersigned is a broker-dealer, such broker-dealer will receive the Exchange Notes for its own account in exchange for Outstanding Notes and that:

 

•

such Outstanding Notes were acquired by such broker-dealer as a result of market-making or other trading activities; and

 

•

it will deliver a prospectus meeting the requirements of the Securities Act in connection with the resale of Exchange Notes, and will comply with the applicable provisions of the Securities Act with respect to resale of any Exchange Notes; and

 

•

the undersigned acknowledges that any person who is an affiliate of the Company or is participating in the Exchange Offer for the purpose of distributing the Exchange Notes must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a resale transaction of the Exchange Notes acquired by such person and such person cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its series of interpretative no-action letters with respect to exchange offers;

 

•

to agree, on behalf of the undersigned, as set forth in the Letter of Transmittal; and

 

•

to take such other action as necessary under the Prospectus or the Letter of Transmittal to effect the valid tender of the Outstanding Notes.

SIGN HERE

 

Signature(s) of Owner(s):   __________________________________________________________________________________________

Name(s) (Please type or print):   ____________________________________________________________________________________

Tax ID or Social Security Number:  ____________________________________________________________________________________

Title (Capacity):  _________________________________________________________________________________________________

Address (Include Zip Code):  ____________________________________________________________________________________

Area Code and Telephone No.:  ____________________________________________________________________________________

Date:             , 2015

 

2

Exhibit 99.6

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders

Meritage Homes Corporation

Scottsdale, Arizona

We have audited the accompanying balance sheet of BK Residential Construction, LLC (the Company) as of December 31, 2013, and the related statements of income, members’ equity, and cash flows for the year then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of BK Residential Construction, LLC as of December 31, 2013, and the results of its operations and its cash flows for the year then ended, in accordance with accounting principles generally accepted in the United States of America.

January 26, 2015

/s/ Frazier & Deeter, LLC

Atlanta, GA

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BK RESIDENTIAL CONSTRUCTION, LLC

Balance Sheet

December 31, 2013

 

 

 

Assets
Cash and cash equivalents		$	5,309,218
Real estate			77,393,391
Deposits on real estate under contract or option			750,500
Prepaids and other assets			142,527
Property and equipment, net			1,236,593
Total assets		$	84,832,229

 

Liabilities
Accounts payable		$	2,553,287
Accrued liabilities			3,233,663
Home sale deposits			2,282,563
Notes payable			43,483,260
Borrowings from related parties			24,242,622
Total liabilities			75,795,395

 

Members’ Equity
Total members’ equity			9,036,834
Total liabilities and members’ equity		$	84,832,229

SEE NOTES TO FINANCIAL STATEMENTS

 

Page 1

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BK RESIDENTIAL CONSTRUCTION, LLC

Income Statement

For the Year Ended December 31, 2013

 

 

 

Home closing revenue		$	156,486,624
Cost of home closings			(118,075,015	)
Home closing gross profit			38,411,609
Commissions and other sale costs			(12,498,638	)
General and administrative expenses			(14,300,895	)
Interest expense			(319,618	)
Other income, net			139,880
Net income		$	11,432,338

SEE NOTES TO FINANCIAL STATEMENTS

 

Page 2

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BK RESIDENTIAL CONSTRUCTION, LLC

Statement of Members’ Equity

For the Year Ended December 31, 2013

 

 

 

		Total
Balance at January 1, 2013		$	7,432,975
Net income			11,432,338
Distributions			(9,828,479	)
Balance at December 31, 2013		$	9,036,834

SEE NOTES TO FINANCIAL STATEMENTS

 

Page 3

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BK RESIDENTIAL CONSTRUCTION, LLC

Statement of Cash Flows

For the Year Ended December 31, 2013

 

 

 

Cash flows from operating activities:
Net income		$	11,432,338
Adjustments to reconcile net income to net cash used in operating activities
Depreciation			159,795
Changes in assets and liabilities:
Real estate			(23,497,825	)
Deposits on real estate under contract or option			(625,275	)
Prepaids and others assets			315,997
Accounts payable and accrued liabilities			3,925,392
Home sale deposits			543,632
Net cash used in operating activities			(7,745,946	)
Cash flows from investing activities:
Purchase of property and equipment			(791,181	)
Net cash used in investing activities			(791,181	)
Cash flows from financing activities:
Net proceeds from notes payable and borrowing from related parties			21,313,798
Distributions to members			(9,828,479	)
Net cash provided by financing activities			11,485,319
Net increase in cash and cash equivalents			2,948,192
Cash and cash equivalents, beginning of year			2,361,026
Cash and cash equivalents, end of year		$	5,309,218
Supplemental Disclosure of Cash Flow Information:
Cash paid for interest		$	3,294,827

SEE NOTES TO FINANCIAL STATEMENTS

 

Page 4

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements

December 31, 2013

 

 

Note 1 - Description of business and summary of significant accounting policies:

Nature of business

BK Residential Construction, LLC (the Company) was incorporated under the laws of the State of Georgia in March 2009. The Company’s principal activity is the construction and sale of single-family homes in Georgia, South Carolina, and North Carolina.

The following is a summary of the most important accounting principles and policies followed by the Company:

Basis of presentation

The Company has adopted the Financial Accounting Standards Board (FASB) Codification (Codification). The Codification is the single official source of authoritative accounting principles generally accepted in the United States of America (U.S. GAAP) recognized by the FASB to be applied by nongovernmental entities and all of the Codification’s content carries the same level of authority. The results of the Company include the operations of all of its markets, and any intercompany balances and transactions have been eliminated in consolidation.

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Use of estimates

The Company relies on certain estimates to determine construction and land development costs as well as warranty costs for homes closed. Construction and land development costs are comprised of direct and allocated costs, including estimated future costs. Estimated warranty costs are accrued at the time of closing based on known and anticipated costs based on historical averages.

Cash and cash equivalents

The Company considers all highly liquid investments with original maturities of three months or less to be cash equivalents.

Marketing and sales

The Company expenses all marketing and sales costs as incurred. Marketing and sales costs were approximately $69,000 for the year ended December 31, 2013.

 

Page 5

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 1 - Description of business and summary of significant accounting policies - continued:

Real estate and cost of home closings

Real estate consists primarily of the capitalized costs of finished homes, homes under construction, and residential lots, all of which are valued at the lower of cost or market on a specific identification basis. During construction, all direct costs, such as subcontractors, materials, labor (superintendents and laborers), and construction period interest are capitalized in inventory. An allocation of construction overhead expenses is also capitalized as a component of the cost of houses.

Cost of home closings includes the construction cost of the home, the lot cost for the home, interest costs during the construction period until substantial completion, estimated warranty costs for the home, and closing costs applicable to the home. The construction cost of the home includes amounts paid through the closing date of the home, plus an appropriate accrual for costs incurred but not yet paid, based on an analysis of budgeted construction costs. The accrual and estimated warranty costs are reviewed for accuracy based on actual payments made after closing compared with the amount accrued, and adjustments are made if needed.

Revenue and cost recognition

Homebuilding revenue and related profit are generally recognized at the time of the closing of the home, when title to and possession of the property are transferred to the buyer. Sales incentives are a reduction of revenues when the respective unit is closed. All home sale deposits and advances for homes under construction are recorded as liabilities. Capitalized costs including interest capitalized as a cost of inventories and any estimated costs to complete are charged to earnings upon closing using the specific identification method. Costs incurred in connection with completed homes, marketing and selling, as well as general and administrative costs are charged to expense as incurred.

Deposits

Deposits paid related to purchase contracts and land options are recorded and classified as Deposits on real estate under contract or option until the related land is purchased. Deposits are reclassified as a component of real estate inventory at the time the deposit is used to offset the acquisition price of the lots based on the terms of the underlying agreements. To the extent they are non-refundable, deposits are charged to expense if the land acquisition is terminated or no longer considered probable. Since the acquisition contracts typically do not require specific performance, we do not consider such contracts to be contractual obligations to purchase the land and our total exposure under such contracts is limited to the loss of the non-refundable deposits and any ancillary capitalized costs.

 

Page 6

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 1 - Description of business and summary of significant accounting policies - continued:

Accrued liabilities

Accrued liabilities at December 31, 2013 consisted of the following:

 

Accruals related to real-estate development and construction activities		$	2,183,712
Payroll and other benefits			61,536
Accrued warranty insurance premiums			616,872
Other accruals			371,543
Total		$	3,233,663

Accrued warranty costs

Home purchasers are provided with warranties against certain building defects for up to one year after the settlement date. The Company also purchases extended warranties from unrelated third parties on behalf of the home purchaser. The Company estimates the costs to be incurred under these warranties and, if necessary, records a liability in the amount of such costs at the time revenue is recognized. The Company periodically assesses the adequacy of its recorded warranty liability and adjusts the amounts as necessary. Actual warranty costs in the future could differ from the current estimates. There was no warranty accrual as of December 31, 2013.

Property and equipment

Property and equipment are recorded at cost. Depreciation is determined using the straight-line method over the estimated useful lives of the assets which range from three to ten years.

Expenditures for maintenance and repairs are charged to income as incurred. Additions are capitalized. The cost of property and equipment sold or otherwise disposed of, and the accumulated depreciation thereon, is eliminated from the property and equipment and reserve accounts, and gains and losses are reflected in the statement of operations and members’ equity.

At December 31, 2013, property and equipment, net consisted of the following:

 

Computer and equipment		$	43,463
Furniture			1,202,431
Vehicles			44,081
Leasehold improvements			217,238
Accumulated depreciation			(270,620	)
Property and equipment, net		$	1,236,593

 

 

Page 7

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 1 - Description of business and summary of significant accounting policies - continued:

Impairment of long-lived assets and long-lived assets to be disposed

The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of the asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair values of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell. There was no impairment during the year ended December 31, 2013.

Income taxes

The Company has elected to be treated as an S Corporation for federal and state income tax purposes and, consequently, does not pay federal or state income taxes. The Company’s income is presented without a provision or credit for federal or state income taxes. The members include their respective shares of the Company’s income or losses, determined on an income tax basis, in their individual tax returns.

The Company recognizes the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authority, based on the technical merits of the position. Tax years that remain subject to examination by major tax jurisdictions date back to the period ended December 31, 2010. All federal and state income tax positions taken or anticipated to be taken in the income tax returns are attributable to the members and not to the entity. As of December 31, 2013, there are no known items which would result in a material accrual related to where the Company has federal or state attributable tax positions.

Subsequent events

The Company has evaluated subsequent events through January 26, 2015, which is the date these financial statements were available to be issued. All subsequent events, if any, requiring recognition as of December 31, 2013 have been incorporated into these financial statements.

 

Page 8

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 2 - Real estate:

Real estate consists of the following as of December 31, 2013:

 

Lots held for construction		$	5,675,830
Houses under construction			71,717,561
Total real estate		$	77,393,391

The Company capitalizes into inventory interest costs incurred on lots held for construction and houses under construction during the construction period until substantial completion. The Company does not capitalize interest on lots held for construction on houses where construction has been suspended. During the year ended December 31, 2013, the Company incurred $3,712,778 in interest costs, $3,393,160 of which was capitalized into inventory. Included in inventory as of December 31, 2013 are interest costs totaling $1,289,309. Construction period interest totaling $1,535,544 associated with homes closed during the year ended December 31, 2013 was allocated to cost of home closings. Interest expense associated with model homes and completed homes available for sale during the year ended December 31, 2013 totaled $319,618.

Inventory under speculative construction as of December 31, 2013 totaled $20,631,146.

The Company enters into option and purchase agreements for land or lots as part of its normal course of business. These option and purchase agreements enable the Company to acquire properties at one or multiple future dates at pre-determined prices.

 

Page 9

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 2 - Real estate - continued:

The table below presents a summary of lots under contract or option at December 31, 2013:

 

		Number of Lots				Purchase Price				Option/Earnest Money Deposits Cash
Option and purchase contracts not recorded on balance sheet – non-refundable deposits, committed (1)			2,672			$	126,526,232			$	450,500
Purchase contracts not recorded on balance sheet – refundable deposits, committed (2)			333				20,330,000				300,000
Total option contracts not recorded on balance sheet			3,005			$	146,856,232			$	750,500	(3)

 

(1)	Deposits are generally non-refundable except if certain contractual conditions fail or certain contractual obligations are not performed by the selling party.

(2)	Deposits are refundable at the Company’s sole discretion. The Company has not completed its acquisition evaluation process and has not internally committed to purchase these lots.

(3)	Amount is reflected in the Company’s balance sheet in the line item “Deposits on real estate under contract or option” as of December 31, 2013.

Generally, options to purchase lots remain effective as long as the Company purchases a pre-established minimum number of lots periodically, as determined by the terms of the respective agreement. In nearly all of the option contracts, the Company has the right not to exercise the option to purchase the lots and forfeit the related deposit without further consequences. Accordingly, the Company does not consider the lot purchase price to be a firm contractual obligation. The pre-established number of lot purchases is typically structured to approximate the expected rate of home construction starts.

 

Page 10

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 3 - Notes payable:

Notes payable consist of 10 construction loans payable aggregating to $43,483,260, with the following terms as of December 31, 2013:

Construction loans are payable to a bank under a guidance line, collateralized by real property. Monthly payments of interest only at variable rates, subject to a floor, as defined in the agreement. Principal and interest on the individual loans are due at the closing of the sale of the related houses. The agreement has a 12 month maturity and is subject to renewal annually.

Interest rates on the notes payable range from 5.0% to 5.5% at December 31, 2013. Accrued interest related to these loans totaled $179,121 as of December 31, 2013. Future maturities of notes payable are $43,483,260 for the year ending December 31, 2014.

The construction loans are secured by the Company’s inventory and are personally guaranteed by the Company’s majority owner.

Certain of the Company’s notes payable have covenants requiring audited financial statements by 120 days after year end. The Company was not in compliance with this covenant; however, a waiver was obtained.

Note 4 – Fair value disclosures:

The Company accounts for the non-recurring fair value measurements of our non-financial assets and liabilities in accordance with Codification Section 820-10, Fair Value Measurement and Disclosure. This guidance defines fair value, establishes a framework for measuring fair value and addresses required disclosures about fair value measurements. This standard establishes a three-level hierarchy for fair value measurements based upon the significant inputs used to determine fair value. Observable inputs are those which are obtained from market participants external to the Company while unobservable inputs are generally developed internally, utilizing management’s estimates, assumptions and specific knowledge of the assets/liabilities and related markets. The three levels are defined as follows:

 

•

Level 1 — Valuation is based on quoted prices in active markets for identical assets and liabilities.

 

•

Level 2 — Valuation is determined from quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar instruments in markets that are not active, or by model-based techniques in which all significant inputs are observable in the market.

 

•

Level 3 — Valuation is derived from model-based techniques in which at least one significant input is unobservable and based on the Company’s own estimates about the assumptions that market participants would use to value the asset or liability.

 

Page 11

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 4 – Fair value disclosures - continued:

If the only observable inputs are from inactive markets or for transactions which the Company evaluates as “distressed”, the use of Level 1 inputs should be modified by the Company to properly address these factors, or the reliance of such inputs may be limited, with a greater weight attributed to Level 3 inputs. Due to the short-term nature of the Company’s non-related party notes payable and other financial assets and liabilities, the Company considers the carrying amounts of its short-term financial instruments to approximate fair value.

Note 5 - Commitments and contingencies:

The Company has a contractual obligation to pay one-half of its annual profits to a related party that had an option to purchase a one-half interest in the Company at an exercise price of $10,000, with an expiration date of April 2, 2019.

The Company is subject to certain contingent liabilities resulting from litigation, claims, and other commitments which arise in the ordinary course of business. Management and legal counsel believe that the probable resolution of such contingencies will not materially affect the financial position, results of operations, or cash flows of the Company.

Note 6 - Transactions with related parties:

The Company incurs marketing and realty expenses from a related party. Total expense for 2013 was $6,201,575. As of December 31, 2013, the Company owed this related party $364,921.

The above entity has been identified as a variable interest entity (VIE). Management has not identified the Company as the primary beneficiary of the VIE and does not believe it is subject to consolidation for financial reporting purposes.

The Company pays consulting fees to a related party that has an option to purchase 50% of the company. Total fees of $10,740,977 were paid during the year ended December 31, 2013, which were included in general and administrative expenses.

The Company purchases building lots from a related party. The total cost of lots the Company purchased from this related party was $3,039,488 during the year ended December 31, 2013.

The Company has an unsecured note with a member for $7,500,000 and an unsecured note with a related party for $7,500,000. These unsecured notes bear interest at 6% per annum, due quarterly, with all principal and accrued unpaid interest due December 31, 2015.

 

Page 12

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 6 - Transactions with related parties - continued:

The Company also has an unsecured note with a related party for $2,475,000, bearing interest at 6% per annum, due quarterly, with all principal and accrued unpaid interest due December 31, 2014. As the notes to related parties bear an interest rate that is in line with market, the carrying amounts of such notes approximate fair value.

The Company has an unsecured line of credit with total availability of $15,000,000 with a member, an unsecured line of credit with a total availability of $15,000,000 with a related party, and an unsecured line of credit with a total availability of $5,000,000 with a related party. All of the lines of credit bear interest at 5% per annum, due quarterly, with all principal and accrued unpaid interest due December 31, 2014. At December 31, 2013, amounts outstanding under these lines of credit totaled $6,767,622.

Note 7 - Concentrations of credit risk:

The Company routinely maintains cash and cash equivalent balances in excess of the federally insured limit of $250,000 at several financial institutions. The Company does not believe it is exposed to credit risk on cash balances.

Note 8 - Major suppliers:

During the year ended December 31, 2013, the Company incurred costs totaling approximately $22,273,000, or 15% of total purchases, from one vendor.

As of December 31, 2013, accounts payable to two major vendors totaled approximately $1,391,000, or 28% of total accounts payable.

Note 9 - Operating leases:

The Company leases offices and a design center under various operating leases. The leases expire at various dates. The leases for the office in Douglasville, Georgia and the design center in Greenville, South Carolina have escalation clauses, which call for increases in the monthly payments throughout the term of the leases. The future minimum lease payments under the leases are as follows:

 

Year ending December 31,
2014		$	113,264
2015			103,975
2016			16,275
		$	233,514

 

Page 13

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

December 31, 2013

 

 

 

Note 10 - Subsequent Events:

In a transaction dated July 31, 2014, substantially all assets of the Company were acquired by Meritage Homes Corporation for approximately $130,700,000.

 

Page 14

Exhibit 99.7

BK RESIDENTIAL CONSTRUCTION, LLC

Balance Sheet (unaudited)

June 30, 2014

 

 

 

Assets
Cash and cash equivalents		$	5,520,362
Real estate			88,072,848
Deposits on real estate under contract or option			1,635,050
Prepaids and other assets			268,093
Property and equipment, net			1,511,136
Total assets		$	97,007,489
Liabilities
Accounts payable		$	3,250,807
Accrued liabilities			5,177,263
Home sale deposits			2,335,301
Notes payable			53,224,630
Borrowings from related parties			27,336,622
Total liabilities			91,324,623
Members’ Equity
Total members’ equity			5,682,866
Total liabilities and members’ equity		$	97,007,489

 

SEE NOTES TO FINANCIAL STATEMENTS

Page 1

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BK RESIDENTIAL CONSTRUCTION, LLC

Income Statement (unaudited)

For the Six Month Period Ended June 30, 2014

 

 

 

Home closing revenue		$	79,423,568
Cost of home closings			(60,760,569	)
Home closing gross profit			18,662,999
Commissions and other sale costs			(6,039,553	)
General and administrative expenses			(6,688,405	)
Interest expense			(1,315,344	)
Other income, net			101,247
Net income		$	4,720,944

 

SEE NOTES TO FINANCIAL STATEMENTS

Page 2

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BK RESIDENTIAL CONSTRUCTION, LLC

Statement of Members’ Equity (unaudited)

For the Six Month Period Ended June 30, 2014

 

 

 

		Total
Balance at January 1, 2014		$	9,036,834
Net earnings			4,720,944
Distributions			(8,074,912	)
Balance at June 30, 2014		$	5,682,866

 

SEE NOTES TO FINANCIAL STATEMENTS

Page 3

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BK RESIDENTIAL CONSTRUCTION, LLC

Statement of Cash Flows (unaudited)

For the Six Month Period Ended June 30, 2014

 

 

 

Cash flows from operating activities:
Net income		$	4,720,944
Adjustments to reconcile net income to net cash used in operating activities
Depreciation			72,346
Changes in assets and liabilities:
Real estate			(10,679,457	)
Deposits on real estate under option or contract			(884,550	)
Prepaids and others assets			(125,566	)
Accounts payable and accrued liabilities			2,641,119
Home sale deposits			52,739
Net cash used in operating activities			(4,202,425	)
Cash flows from investing activities:
Purchase of property and equipment			(346,889	)
Net cash used in investing activities			(346,889	)
Cash flows from financing activities:
Net proceeds from notes payable and other borrowings			12,835,370
Distributions to members			(8,074,912	)
Net cash provided by financing activities			4,760,458
Net increase in cash and cash equivalents			211,144
Cash and cash equivalents, beginning of period			5,309,218
Cash and cash equivalents, end of period		$	5,520,362
Supplemental Disclosure of Cash Flow Information:
Cash paid for interest		$	1,867,317

 

SEE NOTES TO FINANCIAL STATEMENTS

Page 4

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements

June 30, 2014

 

 

 

Note 1 - Description of business and summary of significant accounting policies:

Nature of business

BK Residential Construction, LLC (the Company) was incorporated under the laws of the State of Georgia in March 2009. The Company’s principal activity is the construction and sale of single-family homes in Georgia, South Carolina, and North Carolina.

The following is a summary of the most important accounting principles and policies followed by the Company:

Basis of presentation

The Company has adopted the Financial Accounting Standards Board (FASB) Codification (Codification). The Codification is the single official source of authoritative accounting principles generally accepted in the United States of America (U.S. GAAP) recognized by the FASB to be applied by nongovernmental entities and all of the Codification’s content carries the same level of authority. The results of the Company include the operations of all of its markets, and any intercompany balances and transactions have been eliminated in consolidation.

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Results for interim periods are not necessarily indicative of results to be expected for the full year.

Use of estimates

The Company relies on certain estimates to determine construction and land development costs as well as warranty costs for homes closed. Construction and land development costs are comprised of direct and allocated costs, including estimated future costs. Estimated warranty costs are accrued at the time of closing based on known and anticipated costs based on historical averages.

Cash and cash equivalents

The Company considers all highly liquid investments with original maturities of three months or less to be cash equivalents.

 

Page 5

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

Marketing and sales

The Company expenses all marketing and sales costs as incurred. Marketing and sales costs were approximately $52,000 for the six months ended June 30, 2014.

Real estate and cost of home closings

Real estate consists primarily of the capitalized costs of finished homes, homes under construction, and residential lots, all of which are valued at the lower of cost or market on a specific identification basis. During construction, all direct costs, such as subcontractors, materials, labor (superintendents and laborers), and construction period interest are capitalized in inventory. An allocation of construction overhead expenses is capitalized as a component of the cost of houses.

Cost of home closings includes the construction cost of the home, the lot cost for the home, interest costs during the construction period until substantial completion, estimated warranty costs for the home, and closing costs applicable to the home. The construction cost of the home includes amounts paid through the closing date of the home, plus an appropriate accrual for costs incurred but not yet paid, based on an analysis of budgeted construction costs. The accrual and estimated warranty costs are reviewed for accuracy based on actual payments made after closing compared with the amount accrued, and adjustments are made if needed.

Revenue and cost recognition

Homebuilding revenue and related profit are generally recognized at the time of the closing of the home, when title to and possession of the property are transferred to the buyer. Sales incentives are a reduction of revenues when the respective unit is closed. All home sale deposits and advances for homes under construction are recorded as liabilities. Capitalized costs including interest capitalized as a cost of inventories and any estimated costs to complete are charged to earnings upon closing using the specific identification method. Costs incurred in connection with completed homes, marketing and selling, as well as general and administrative costs are charged to expense as incurred.

Deposits

Deposits paid related to purchase contracts and land options are recorded and classified as Deposits on real estate under contract or option until the related land is purchased. Deposits are reclassified as a component of real estate inventory at the time the deposit is used to offset the acquisition price of the lots based on the terms of the underlying agreements. To the extent they are non-refundable, deposits are charged to expense if the land acquisition is terminated or no longer considered probable. Since the acquisition contracts typically do not require specific performance, we do not consider such contracts to be contractual obligations to purchase the land and our total exposure under such contracts is limited to the loss of the non-refundable deposits and any ancillary capitalized costs.

 

Page 6

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

Accrued liabilities

Accrued liabilities at June 30, 2014 consisted of the following:

 

Accruals related to real-estate development and construction activities		$	1,189,959
Accrual related to amount due to a related party under contractual obligation to pay one-half of earnings			3,470,945
Payroll and other benefits			228,532
Accrued interest			168,350
Other accruals			119,477
Total		$	5,177,263

Accrued warranty costs

Home purchasers are provided with warranties against certain building defects for up to one year after the settlement date. The Company also purchases extended warranties from unrelated third parties on behalf of the home purchaser. The Company estimates the costs to be incurred under these warranties and, if necessary, records a liability in the amount of such costs at the time revenue is recognized. The Company periodically assesses the adequacy of its recorded warranty liability and adjusts the amounts as necessary. Actual warranty costs in the future could differ from the current estimates. There was no warranty accrual as of June 30, 2014.

Property and equipment

Property and equipment are recorded at cost. Depreciation is determined using the straight-line method over the estimated useful lives of the assets which range from three to ten years.

Expenditures for maintenance and repairs are charged to income as incurred. Additions are capitalized. The cost of property and equipment sold or otherwise disposed of, and the accumulated depreciation thereon, is eliminated from the property and equipment and reserve accounts, and gains and losses are reflected in the statement of operations and members’ equity.

At June 30, 2014, property and equipment, net consisted of the following:

 

Computer and equipment		$	43,463
Furniture			1,512,362
Vehicles			40,127
Leasehold improvements			219,818
Accumulated depreciation			(304,634	)
Property and equipment, net		$	1,511,136

 

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

Impairment of long-lived assets and long-lived assets to be disposed

The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of the asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair values of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell. There was no impairment during the six month period ended June 30, 2014.

Income taxes

The Company has elected to be treated as an S Corporation for federal and state income tax purposes and, consequently, does not pay federal or state income taxes. The Company’s income is presented without a provision or credit for federal or state income taxes. The members include their respective shares of the Company’s income or losses, determined on an income tax basis, in their individual tax returns.

The Company recognizes the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authority, based on the technical merits of the position. Tax years that remain subject to examination by major tax jurisdictions date back to the period ended December 31, 2010. All federal and state income tax positions taken or anticipated to be taken in the income tax returns are attributable to the members and not to the entity. As of June 30, 2014, there are no known items which would result in a material accrual related to where the Company has federal or state attributable tax positions.

The Company has evaluated subsequent events through November 3, 2014, which is the date these financial statements were available to be issued. All subsequent events, if any, requiring recognition as of June 30, 2014 have been incorporated into these financial statements.

Note 2 – Real estate:

Real estate consists of the following as of June 30, 2014:

 

Lots held for construction		$	10,407,561
Houses under construction			77,665,287
Total real estate		$	88,072,848

 

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

The Company capitalizes into inventory interest costs incurred on lots held for construction and houses under construction during the construction period until substantial completion. The Company does not capitalize interest on lots held for construction on houses where construction has been suspended. During the six month period ended June 30, 2014, the Company incurred $2,341,770 in interest costs, $1,026,426 of which was capitalized into inventory. Included in inventory as of June 30, 2014 are interest costs totaling $1,131,235. Construction period interest totaling $954,028 associated with homes closed during the six month period ended June 30, 2014 was allocated to cost of home closings. Interest expense associated with model homes and completed homes available for sale during the six month period ended June 30, 2014 totaled $1,315,344.

Inventory under speculative construction as of June 30, 2014 totaled $17,890,164.

The Company enters into option and purchase agreements for land or lots as part of its normal course of business. These option and purchase agreements enable the Company to acquire properties at one or multiple future dates at pre-determined prices.

The table below presents a summary of our lots under option or contract at June 30, 2014 (dollars in thousands):

 

		Number of Lots				Purchase Price				Option/Earnest Money Deposits Cash (3)
Option and purchase contracts not recorded on balance sheet – non-refundable deposits, committed (1)			2,901			$	140,976,911			$	881,300
Purchase contracts not recorded on balance sheet – refundable deposits, committed (2)			634				34,751,160				753,750
Total option contracts not recorded on balance sheet			3,535			$	175,728,071			$	1,635,050

 

(1)	Deposits are generally non-refundable except if certain contractual conditions fail or certain contractual obligations are not performed by the selling party.

(2)	Deposits are refundable at the Company’s sole discretion. The Company has not completed its acquisition evaluation process and has not internally committed to purchase these lots.

(3)	Amount is reflected in our balance sheet in the line item “Deposits on real estate under contract or option” as of June 30, 2014.

 

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

Generally, options to purchase lots remain effective as long as the Company purchases a pre-established minimum number of lots periodically, as determined by the terms of the respective agreement. In nearly all of the option contracts, the Company has the right not to exercise our option to purchase the lots and forfeit the related deposit without further consequences. Accordingly, the Company does not consider the lot purchase price to be a firm contractual obligation. The pre-established number of lot purchases is typically structured to approximate the expected rate of home construction starts.

Note 3 - Notes payable:

Notes payable consist of 12 construction loans payable aggregating to $53,224,630 with the following terms as of June 30, 2014:

Each construction loan is payable to a bank under a guidance line, collateralized by real property. Monthly payments of interest only at variable rates, subject to a floor, as defined in the agreement. Principal and interest on the individual loans are due at the closing of the sale of the related houses. The agreement has a 12 month maturity and is subject to renewal annually.

Interest rates on the notes payable range from 5.0% to 5.5% at June 30, 2014. Accrued interest related to these loans totaled $168,350 as of June 30, 2014. Future maturities of notes payable are $53,224,630 for the next 12 months.

The construction loans are secured by the Company’s inventory and are personally guaranteed by the Company’s majority owner.

Certain of the Company’s notes payable have covenants requiring audited financial statements by 120 days after year end.

Note 4 – Fair value disclosures:

The Company accounts for the non-recurring fair value measurements of our non-financial assets and liabilities in accordance with Codification Section 820-10, Fair Value Measurement and Disclosure. This guidance defines fair value, establishes a framework for measuring fair value and addresses required disclosures about fair value measurements. This standard establishes a three-level hierarchy for fair value measurements based upon the significant inputs used to determine fair value. Observable inputs are those which are obtained from market participants external to the company while unobservable inputs are generally developed internally, utilizing management’s estimates, assumptions and specific knowledge of the assets/liabilities and related markets. The three levels are defined as follows:

 

•

Level 1 — Valuation is based on quoted prices in active markets for identical assets and liabilities.

 

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

•

Level 2 — Valuation is determined from quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar instruments in markets that are not active, or by model-based techniques in which all significant inputs are observable in the market.

 

•

Level 3 — Valuation is derived from model-based techniques in which at least one significant input is unobservable and based on the company’s own estimates about the assumptions that market participants would use to value the asset or liability.

If the only observable inputs are from inactive markets or for transactions which the Company evaluates as “distressed”, the use of Level 1 inputs should be modified by the Company to properly address these factors, or the reliance of such inputs may be limited, with a greater weight attributed to Level 3 inputs. Due to the short-term nature of the Company’s non-related notes payable and other financial assets and liabilities, the Company considers the carrying amounts of its short-term financial instruments to approximate fair value.

Note 5 - Commitments and contingencies:

The Company has a contractual obligation to pay one-half of its annual profits to a related party that has an option to purchase a one-half interest in the Company at an exercise price of $10,000. The option expires on April 2, 2019.

The Company is subject to certain contingent liabilities resulting from litigation, claims, and other commitments which arise in the ordinary course of business. Management and legal counsel believe that the probable resolution of such contingencies will not materially affect the financial position, results of operations, or cash flows of the Company.

Note 6 - Transactions with related parties:

The Company incurs marketing and realty expenses from a related party. Total expense for the first six months of 2014 was $2,963,181. As of June 30, 2014, the Company owed this related party $76,240.

The above entity has been identified as a variable interest entity (VIE). Management has not identified the Company as the primary beneficiary of the VIE and does not believe it is subject to consolidation for financial reporting purposes.

 

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

The Company pays consulting fees to a related party that has an option to purchase 50% of the company. Total fees of $4,720,945 were paid during the first six months of 2014, which were included in general and administrative expenses.

The Company purchases building lots from a related party. The total cost of lots the Company purchased from this related party was $1,868,444 during the six months ended June 30, 2014.

The Company has an unsecured note with a member for $7,500,000 and an unsecured note with a related party for $7,500,000. These unsecured notes bear interest at 6% per annum, due quarterly, with all principal and accrued unpaid interest due December 31, 2015.

The Company also has an unsecured note with a related party for $2,475,000, bearing interest at 6% per annum, due quarterly, with all principal and accrued unpaid interest due December 31, 2014. As the notes to the related parties bear an interest rate that is in line with the market, the carrying amounts of such notes approximate fair value.

The Company has an unsecured line of credit with total availability of $15,000,000 with a member, an unsecured line of credit with a total availability of $15,000,000 with a related party, and an unsecured line of credit with a total availability of $5,000,000 with a related party. All of the lines of credit bear interest at 5% per annum, due quarterly, with all principal and accrued unpaid interest due December 31, 2014. At June 30, 2014, amounts outstanding under these lines of credit totaled $9,861,622.

Note 7 - Concentrations of credit risk:

The Company routinely maintains cash and cash equivalent balances in excess of the federally insured limit of $250,000 at several financial institutions. The Company does not believe it is exposed to credit risk on cash balances.

Note 8 - Major suppliers:

During the six month period ended June 30, 2014, the Company incurred costs totaling approximately $9,133,000, or 15% of total purchases, from one vendor and $7,101,000, or 12%, of total purchases from another vendor.

As of June 30, 2014, accounts payable to two major vendors totaled approximately $1,749,291, or 54% of total accounts payable.

 

Page 12

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BK RESIDENTIAL CONSTRUCTION, LLC

Notes to Financial Statements - continued

June 30, 2014

 

 

 

Note 9 - Operating leases:

The Company leases offices and a design center under various operating leases. The leases expire at various dates. The leases for the office in Douglasville, Georgia and the design center in Greenville, South Carolina have escalation clauses, which call for increases in the monthly payments throughout the term of the leases. The future minimum lease payments under the leases are as follows:

 

12 Months ending June 30,
2015		$	114,841
2016			56,850
		$	171,691

Note 10 - Subsequent Events:

In a transaction dated July 31, 2014, substantially all assets of the Company were acquired by Meritage Homes Corporation for approximately $130,700,000.

 

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