Exhibit 4.2
Fourth Supplemental Indenture
— 6 ¼% Senior Notes due 2015
FOURTH SUPPLEMENTAL INDENTURE, dated
as of March 6, 2009 (the “ Fourth Supplemental
Indenture ”) between Meritage Homes Corporation, a
corporation organized under the laws of the State of Maryland (the
“ Issuer ”), the Guarantors named therein, WW
Project Seller, LLC (the “ Additional Guarantor
”) and HSBC Bank USA, National Association, as trustee (the
“ Successor Trustee ”), under the
Indenture (as defined below). Capitalized terms used and not
defined herein shall have the same meanings given in the Indenture
unless otherwise indicated.
WHEREAS, the Issuer, the Guarantors
thereto and Wells Fargo Bank, National Association (the “
Prior Trustee ”) are parties to that certain Indenture
dated as of March 10, 2005 (the “ Indenture
”) pursuant to which the Company issued its 6 ¼%
Senior Notes 2015 (the “ Notes ”) and the
Guarantors guaranteed the obligations of the Issuer under the
Indenture and the Notes;
WHEREAS, the Successor Trustee was
appointed the trustee under the Indenture to replace the Prior
Trustee pursuant to that certain Instrument of Resignation,
Appointment and Acceptance, dated and effective as of May 27,
2008, by and among the Issuer, the Prior Trustee and the Successor
Trustee;
WHEREAS, the Issuer, the Guarantors
thereto, California Urban Builders, Inc., California Urban
Homes, LLC and the Prior Trustee are parties to the First
Supplemental Indenture, dated as of April 18, 2005 pursuant to
which California Urban Builders, Inc. and California Urban
Homes, LLC were added as Guarantors;
WHEREAS, the Issuer, the Guarantors
thereto, Greater Homes, Inc., Greater Interiors, LLC and the
Prior Trustee are parties to the Second Supplemental Indenture,
dated as of September 22, 2005, pursuant to which Greater
Homes, Inc. and Greater Interiors, LLC were added as
Guarantors;
WHEREAS, the Issuer, the Guarantors
thereto, Meritage Homes of Texas, LLC, Meritage Homes Operating
Company, LLC and the Prior Trustee are parties to the Third
Supplemental Indenture, dated as of July 10, 2007, pursuant to
which Meritage Homes of Texas, LLC and Meritage Homes Operating
Company, LLC were added as Guarantors;
WHEREAS, pursuant to
Section 4.13 of the Indenture, if the Issuer acquires or
creates any additional subsidiary which is a Restricted Subsidiary,
each such subsidiary shall execute and deliver a supplemental
indenture pursuant to which such subsidiary shall unconditionally
guaranty the Issuer’s obligations under the Notes;
WHEREAS, the Additional Guarantor is
a Restricted Subsidiary of the Issuer;
WHEREAS, the Issuer and the
Successor Trustee desire to have the Additional Guarantor enter
into this Fourth Supplemental Indenture and agree to guaranty the
obligations of the Issuer under the Indenture and the Notes and the
Additional Guarantor desires to enter into this Fourth Supplemental
Indenture and to guaranty the obligations of the Issuer under the
Indenture and the Notes as of such date;
WHEREAS, Section 8.01 of the
Indenture provides that the Issuer, the Guarantors and the trustee
may, without the written consent of the Holders of the outstanding
Notes, amend the Indenture as provided herein;
WHEREAS, by entering into this
Fourth Supplemental Indenture, the Successor Issuer and the Trustee
have consented to amend the Indenture in accordance with the terms
and conditions herein;
WHEREAS, each Guarantor hereby
acknowledges and consents to amend the Indenture in accordance with
the terms and conditions herein; and
WHEREAS, all acts and things
prescribed by the charter documents of the Additional Guarantor (as
now in effect) necessary to make this Fourth Supplemental Indenture
a valid instrument legally binding on the Additional Guarantor for
the purposes herein expressed, in accordance with its terms, have
been duly done and performed.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Issuer, the Additional
Guarantor and the Successor Trustee hereby agree for the benefit of
each other and the equal and ratable benefit of the Holders of the
Notes as follows:
1.
Additional Guarantor as Guarantor . As of the date
hereof and pursuant to this Fourth Supplemental Indenture, the
Additional Guarantor shall become a Guarantor under the definition
of Guarantor in the Indenture in accordance with the terms and
conditions of the Indenture and shall assume all rights and
obligations of a Guarantor thereunder.
2.
Compliance with and Fulfillment of Condition of
Section 4.13 . The execution and delivery of this
Fourth Supplemental Indenture by the Additional Guarantor (along
with such documentation relating thereto as the Successor Trustee
shall require) fulfills the obligations of the Issuer under
Section 4.13 of the Indenture.
3.
Construction . For all purposes of this Fourth
Supplemental Indenture, except as otherwise herein expressly
provided or unless the context otherwise requires: (i) the
defined terms and expressions used herein shall have the same
meanings as correspon
