Exhibit 4.1


 


EXECUTION VERSION


 


INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE


 


THIS
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, (“Instrument”) dated and
effective as of  May 27, 2008 (the “Effective
Date”), is by and among MERITAGE HOMES CORPORATION (the “Issuer”), WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association with trust powers
duly organized and existing under the laws of the United States and having its
corporate trust office at 707 Wilshire Blvd, 17th Floor, Los
Angeles, CA 90017 (the “Prior Trustee”) and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States and having its corporate trust office at 10 East 40th
Street, New York, New York 10016 (the “Successor Trustee”).  Capitalized terms not otherwise defined
herein shall have the same meaning as defined in the Indentures (as defined
below).


 


RECITALS


 


WHEREAS,
pursuant to an Indenture dated as of April 21, 2004 (the “2004 Indenture”)
and March 10, 2005 (the 2005 Indenture” and, together with the 2004
Indenture, the “Indentures”), among the Issuer, the Guarantors named therein
and the Prior Trustee (the “Indentures”);


 


WHEREAS,
under the 2004 Indenture, there is presently issued and outstanding
$130,000,000 7% Senior Notes due 2014 and under the 2005 Indenture there is
presently issued and outstanding $350,000,000 6.25% Senior Notes due 2015;


 


WHEREAS,
under the Indentures the Issuer appointed the Prior Trustee as Trustee, an
office or agency where Notes may be presented for payment (the “Paying Agent”)
and an office or agency where the Notes may be presented for registration of
transfer or exchange (the “Registrar);


 


WHEREAS,
Section 7.08 of each of the Indentures provides that the Trustee may
resign at any time by giving written notice of such resignation to the Issuer
and Guarantors and the Issuer shall promptly appoint a successor Trustee;


 


WHEREAS,
the Prior Trustee desires to resign as Trustee, Paying Agent and Registrar and
the Issuer desires to appoint HSBC Bank USA, National Association as the
successor trustee to Wells Fargo Bank, National Association in its capacities
under the Indentures; and


 

















 


WHEREAS,
HSBC Bank USA, National Association is willing to accept such appointment as the
successor to Wells Fargo Bank, National Association in its capacities under the
Indentures.


 


NOW,
THEREFORE, the Issuer, Wells Fargo Bank, National Association and HSBC Bank
USA, National Association, for and in consideration of the covenants herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby consent and agree as follows:


 


ARTICLE I


 


SECTION 1.01.          Acceptance
of Resignation of Prior Trustee. 
Pursuant to Section 7.08 of each of the Indentures, the Prior
Trustee hereby resigns as Trustee, Paying Agent and Registrar under the
Indentures.  The Issuer accepts the
resignation of the Prior Trustee as Trustee, Paying Agent and Registrar.


 


SECTION 1.02.          Appointment
of Successor Trustee.  Pursuant to Section 7.08
of each of the Indentures, the Company hereby appoints the Successor Trustee
as  Trustee, Registrar and Paying Agent
under the Indentures and confirms to the Successor Trustee all the rights,
powers, trusts and duties of the Trustee, Registrar and Paying Agent under the
Indentures with respect to all property and money held or to be held under the
Indentures, with like effect as if the Sucessor Trustee was originally named as
Trustee, Registrar and Paying Agent under the Indentures.  The Company shall execute and deliver such
further instruments reasonably acceptable to the Company and shall do such
other things as the Successor Trustee may reasonably require so as to more
fully and certainly vest and confirm in the Successor Trustee all the rights,
powers, trusts and duties hereby assigned, transferred, delivered and confirmed
to the Successor Trustee.


 


ARTICLE II


 


SECTION 2.01.
Issuer Representation and Warranties. 
The Issuer represents and warrants to the Successor Trustee that:


 


a.                                       It is in good
standing and validly existing under the laws of the State of Maryland.


 


b.                                      The execution
and delivery of this Instrument has been duly authorized by the Issuer.


 


c.                                       No covenant or
condition contained in the Indentures have been waived by the Issuer or, by the
Holders of the percentage in aggregate principal amount of the Notes
required  by the Indenture to affect such
waiver.


 


d.                                      No Event of
Default has occurred and is continuing under the Indentures.


 


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e.                                       Except for that
certain First Supplemental Indenture, dated as of May 14, 2004, that
certain Second Supplemental Indenture, dated as of December 20, 2004, that
certain Third Supplemental Indenture, dated as of April 18, 2005, that
certain Fourth Supplemental Indenture, dated as of September 22, 2005, and
that certain Fifth Supplemental Indenture, dated as of July 10, 2007 with
respect to the 2004 Indenture and that certain First Supplemental Indenture,
dated as of April 18, 2005, that certain Second Supplemental Indenture,
dated as of September 22, 2005 and that certain Third Supplemental
Indenture, dated as of July 10, 2007 with respect to the 2005 Indenture,
the Indentures have not been amended or modified and are in full force and
effect, and the Notes are validly issued securities of the Company.


 


f.                                         There is no
action, suit or proceedings pending or, to the best of the Issuer’s knowledge,
threatened against the Issuer before any court or any governmental authority
arising out of any action or omission by the Company under the Indentures.


 


g.                                      This Instrument
has been duly authorized, executed and delivered on behalf of the Issuer and
constitutes its legal, valid and binding obligation.


 


h.                                      All conditions
precedent applicable to the Company relating to the appointment of the
Successor Trustee as Trustee, Registrar and Paying Agent under the Indentures
have been complied with by the Company.


 


ARTICLE III


 


Section 3.01  Prior
Trustee’s Resignation. Pursuant to Section 7.08 of the Indentures, the
Prior Trustee hereby notifies the Company that it is hereby resigning as
Trustee, Registrar and Paying Agent effective immediately upon full execution
of this Instrument by all the parties hereto.


 


SECTION 3.02.
Prior Trustee’s Representations and Warranties. 
The Prior Trustee hereby represents and warrants to the Successor
Trustee that:


 


a.                                       No covenant or
condition in the Indentures have been waived by the Prior Trustee or, to the
best of the knowledge of the Responsible Officers who are signing this
Instrument, by the Holders of the percentage in aggregate principal amount of
either of the Notes due 2014 or the Notes due 2015 required by the 2004
Indenture and the 2005 Indenture, respectively to effect any such waiver.


 


b.                                      There is no
action, suit or proceedings pending or, to the best of the knowledge of the
Responsible Officers signing this Instrument, threatened against the Prior
Trustee before any court or governmental authority arising out of any action or
omission by the Prior Trustee as Trustee, Paying Agent and Registrar under the
Indentures.


 


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c.                                       Prior Trustee
will deliver to Successor Trustee, as of or immediately after the Effective
Date hereof, all documents in its possession relating to the trusts created
under the Indentures, including all of the documents listed in Exhibit A
hereto, and such other documents reasonably obtainable as mutually agreed upon.


 


d.                                      The execution
and delivery of this Instrument has been duly authorized by the Prior Trustee,
and this Instrument constitutes the Prior Trustee’s legal, valid, binding and
enforceable obligation.


 


e.                                       $130,000,000
aggregate principal amount of 7% Senior Notes due 2014 and $350,000,000
aggregate principal amount of 6.25% Senior Notes due 2015 are outstanding on
the date hereof.


 


f.                                         Interest on the
7% Senior Notes due 2014 has been paid through April 30, 2008 and interest
on the 6.25% Senior Notes due 2015 has been paid through March 14, 2008.


 


g.                                      The Prior
Trustee agrees to pay or indemnify the Successor Trustee and save the Successor
Trustee harmless from and against any and all costs, claims, liabilities,
losses or damages whatsoever (including the reasonable fees, expenses and
disbursements of the Successor Trustee’s counsel and other advisors), that the
Successor Trustee suffers or incurs without negligence or willful misconduct on
its part arising out of actions or 
omissions of the Prior Trustee. 
The Successor Trustee will furnish to the Prior Trustee, promptly after
receipt, all papers with respect to any action the outcome of which would make
operative the indemnity provided for in this Section.  The Successor Trustee shall notify the Prior
Trustee promptly in writing (and, in any event, within no later than 10 days)
of any claim for which it may seek indemnity. 
The Prior Trustee shall have the option to defend the claim and the
Successor Trustee shall cooperate fully in the defense.  If the Prior Trustee shall assume the
defense, then the Prior Trustee shall not pay for separate counsel of the
Successor Trustee.  The Prior Trustee
shall not be obligated to pay for any settlement made without its consent.


 


SECTION 3.03.  Successor Trustee Representation and
Warranty.  The Successor Trustee
represents and warrants to the Prior Trustee and the Issuer that it is eligible
and has been duly authorized to serve as Trustee under the Indentures.


 


SECTION 3.04.
Acceptance of Successor Trustee. 
Pursuant to Section 7.08 of the Indentures, the Successor Trustee
hereby accepts its appointment as Trustee under the Indentures and shall hereby
be vested with all the rights, powers, trusts 


 


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and
duties of the Trustee under the Indentures and with respect to all property and
money held or to be held under the Indentures, with like effect as if the
Successor Trustee was originally named as Trustee under the Indentures.  The Successor Trustee also hereby accepts its
appointment as Registrar and Paying Agent. 
The Successor Trustee will perform said rights, powers and duties upon
the terms and conditions set forth in the Indentures.  Promptly after the execution and delivery of
this Instrument, the Successor Trustee shall cause a notice to be sent to each
Holder of the Notes on behalf of the Issuer containing the information required
by Section 7.08 (4) of the Indentures, a copy of which is attached as
Exhibit C.


 


SECTION 3.05.  Board Resolution.  The Issuer hereby certifies that Exhibit B
annexed hereto is a true and correct copy of the Board Resolution that was duly
adopted by the Board of Directors of the Company authorizing the appointment of
the Successor Trustee.


 


SECTION 3.06.  Assignment etc. by Prior Trustee.  As of the Effective Date, the Prior Trustee
hereby confirms, assigns, transfers, delivers and conveys to the Successor
Trustee, as Trustee under the Indentures, upon the trusts expressed in the
Indentures, all rights, powers, trusts, privileges, duties and obligations
which the Prior Trustee now holds under and by virtue of the Indentures, and
effective as  of such date does hereby
pay over to the Successor Trustee, and the Successor Trustee hereby
acknowledges receipt of, any and all property and moneys held by the Prior
Trustee and by virtue of the Indentures.


 


SECTION 3.07.
Choice of Laws.  This Instrument shall be
governed by the same laws that govern the Indentures.


 


SECTION 3.08.  Counterparts. 
This Instrument may be executed in any number of counterparts, each of
which, when so executed and delivered, shall be an original, but all counterparts
shall constitute but one Instrument.


 


SECTION 3.09.  Survival of Issuer’s Obligations to Prior
Trustee.  Notwithstanding the resignation
of the Prior Trustee as Trustee under the Indentures, the Issuer shall remain
obligated under the Indentures to compensate, reimburse and indemnify the Prior
Trustee in connection with its trusteeship as provided in the Indentures, and
nothing contained in this Instrument shall in any way abrogate the obligations
of the Issuer to the Prior Trustee under the Indentures or any lien created in
favor of the Prior Trustee thereunder. 
The Issuer also acknowledges and reaffirms its obligations to the
Successor Trustee set forth in Section 7.07 of each of the Indentures.


 


SECTION 3.10.
Notices.  All notices, whether faxed or
mailed, will be deemed received when sent pursuant to the following
instructions:


 


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TO
THE SUCCESSOR TRUSTEE:


 


HSBC
Bank USA, National Association


Corporate
Trust & Loan Agency


10
East 40th Street


New York, NY 10016


Attn:  Anthony A. Bocchino, Vice
President


 


TO
THE PRIOR TRUSTEE:


 


Wells
Fargo Bank, National Association


Corporate
Trust Department


MAC:  E2818-176


707
Wilshire Blvd, 17th Floor


Los
Angeles, CA 90017


Attn:  Maddy Hall, Assistant Vice President


 


TO
THE ISSUER:


 


Meritage
Homes Corporation


17851
N. 85th Street, Suite 300


Scottsdale,
AZ 85255


Attn:  John B. Carroll, Treasurer


 


SECTION 3.11  Effectiveness.  This Instrument and the resignation,
appointment and acceptance effected hereby shall be effective as of the close
of business on the Effective Date, upon the execution and delivery hereof by
each of the parties hereto; provided, however, that the resignation of the
Prior Trustee and the appointment of the Successor Trustee as Registrar and Paying
Agent under the Indentures shall be effective upon the latest of:  (a) 10 business days after the date
first above written; and (b) receipt by the Depository Trust Company (“DTC”)
of both the Prior Trustee’s transfer agency change notice and the Successor
Trustee’s transfer agency change notice.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Instrument as of the
date set forth above.


 


	
  Meritage
  Homes Corporation, as Issuer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Larry W. Seay

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its

  	
  SVP/CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HSBC
  Bank USA, National Association, as Successor Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Anthony A. Bocchino, Jr.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its

  	
  Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Wells
  Fargo Bank, National Association, as Prior Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  Maddy Hall

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its

  	
  Assistant Vice President

  	
   

  	
   

  
						



 


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EXHIBIT A


 


Documents
to be delivered by Prior Trustee to Successor Trustee as to the Indenture:


 


1.               Copy of the most recent SEC
reports delivered by the Company pursuant to the Indentures.


 


2.               Copy of each of the
Indentures.


 


3.               File of all closing
documents relating to the Indentures and supplemental indentures executed and
all correspondence relating to the Notes due 2014 and the Notes due 2015 since
the Issue Date of such notes.


 


4.               Copy of most recent
Compliance Certificate delivered pursuant to the Indentures.


 


5.               Certified List of
Noteholders as of the Effective Date, certificate detail and all “stop
transfers” and the reason for such “stop transfers” (or, alternatively, if
there are a substantial number of registered Noteholders, the computer tape
reflecting the identity of such Noteholders).


 


6.               Copies of any official
notices sent by the Trustee to all Noteholders of the Notes pursuant to the
terms of the Indentures during the past twelve months.


 


7.               Debt Service records for the
Notes.


 


8.               All uninssued Note Inventory
or DTC FAST held global certificates.


 


9.               Original Global Notes
registered in the name of Cede & Co.


 


10.         Representation Letter with
DTC.


 


11.         Such other documents as the
Successor Trustee may reasonably require in order to transfer the appointment.


 


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EXHIBIT B


 


(INSERT BOARD RESOLUTION, IF


 REQUIRED UNDER THE INDENTURES)


 


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EXHIBIT C


 


Notice to the Holders


of the


Meritage Homes Corporation


7.00% Senior Notes due 2014


(the “Notes”)


CUSIP No. 59001AAH5*


 


We hereby notify you of the resignation of Wells Fargo Bank, National
Association, as Trustee, Registrar and Paying Agent under the Indenture dated
as of April 21, 2004 (the “Indenture”) pursuant to which your Notes were
issued and are outstanding.


 


The Company has appointed HSBC Bank USA, National Association, whose
corporate trust office is located at 10 East 40th Street, 14th
Floor, New York, New York, 10016, as successor Trustee, Registrar and Paying
Agent under the Indenture, which has been accepted and is effective.


 


 


	
   

  	
   

  	
  HSBC
  Bank USA, National Association

  
	
   

  	
   

  	
  as
  successor Trustee

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
  ,
  2008

  	
   

  
				



 






*No
representation is made as to the correctness of the CUSIP number either as
provided on the Notes or contained herein.


 


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Notice to the Holders


of the


Meritage Homes Corporation


6.25% Senior Notes due 2015


(the “Notes”)


CUSIP No. 59001AAK8*


 


We hereby notify you of the resignation of Wells Fargo Bank, National
Association, as Trustee, Registrar and Paying Agent under the Indenture dated
as of March 10, 2005 (the “Indenture”) pursuant to which your Notes were
issued and are outstanding.


 


The Company has appointed HSBC Bank USA, National Association, whose
corporate trust office is located at 10 East 40th Street, 14th
Floor, New York, New York, 10016, as successor Trustee, Registrar and Paying
Agent under the Indenture, which has been accepted and is effective.


 


 


	
   

  	
   

  	
  HSBC
  Bank USA, National Association

  
	
   

  	
   

  	
  as
  successor Trustee

  
	
  Dated:

  	
  ,
  2008

  	
   

  



 






*No
representation is made as to the correctness of the CUSIP number either as
provided on the Notes or contained herein.


 


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