Exhibit 4.1
Second Supplemental Indenture
— 7.731% Senior Subordinated Notes due 2017
SECOND SUPPLEMENTAL INDENTURE, dated
as of March 6, 2009 (the “ Second Supplemental
Indenture ”) between Meritage Homes Corporation, a
corporation organized under the laws of the State of Maryland (the
“ Issuer ”), the Guarantors named herein, 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 February 23, 2007 (the “ Indenture
”) pursuant to which the Company issued its 7.731% Senior
Subordinated Notes due 2017 (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, Meritage Homes of Texas, LLC, Meritage Homes Operating
Company, LLC and the Prior Trustee are parties to the First
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 Guarantors enter
into this Second 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 Second 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
Second Supplemental Indenture, the Issuer and the Successor 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