RATIFIED AND CONFIRMED.
5.
COSTS, EXPENSES AND TAXES. THE BORROWER AGREES TO PAY ON DEMAND
ALL COSTS AND EXPENSES OF THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE
PREPARATION, REPRODUCTION, EXECUTION AND DELIVERY OF THIS THIRD AMENDMENT AND
THE OTHER INSTRUMENTS AND DOCUMENTS TO BE DELIVERED HEREUNDER (INCLUDING THE
REASONABLE FEES AND OUT-OF-POCKET EXPENSES OF COUNSEL FOR THE ADMINISTRATIVE
AGENT WITH RESPECT THERETO).
6.
GUARANTORS ACKNOWLEDGMENT. BY SIGNING BELOW, EACH GUARANTOR
(A) ACKNOWLEDGES, CONSENTS AND AGREES TO THE EXECUTION, DELIVERY AND PERFORMANCE
BY THE
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BORROWER OF THIS THIRD AMENDMENT, (B) ACKNOWLEDGES AND AGREES THAT ITS
OBLIGATIONS IN RESPECT OF ITS GUARANTY ARE NOT RELEASED, DIMINISHED, WAIVED,
MODIFIED, IMPAIRED OR AFFECTED IN ANY MANNER BY THIS THIRD AMENDMENT OR ANY OF
THE PROVISIONS CONTEMPLATED HEREIN, (C) RATIFIES AND CONFIRMS ITS OBLIGATIONS
UNDER ITS GUARANTY, AND (D) ACKNOWLEDGES AND AGREES THAT IT HAS NO CLAIMS OR
OFFSETS AGAINST, OR DEFENSES OR COUNTERCLAIMS TO, ITS GUARANTY.
7.
EXECUTION IN COUNTERPARTS. THIS THIRD AMENDMENT MAY BE EXECUTED
IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN SEPARATE
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE DEEMED TO BE
AN ORIGINAL AND ALL OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE BUT ONE AND
THE SAME INSTRUMENT. FOR PURPOSES OF THIS THIRD AMENDMENT, A COUNTERPART HEREOF
(OR SIGNATURE PAGE THERETO) SIGNED AND TRANSMITTED BY ANY PERSON PARTY HERETO TO
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) BY FACSIMILE MACHINE, TELECOPIER OR
ELECTRONIC MAIL IS TO BE TREATED AS AN ORIGINAL. THE SIGNATURE OF SUCH PERSON
THEREON, FOR PURPOSES HEREOF, IS TO BE CONSIDERED AS AN ORIGINAL SIGNATURE, AND
THE COUNTERPART (OR SIGNATURE PAGE THERETO) SO TRANSMITTED IS TO BE CONSIDERED
TO HAVE THE SAME BINDING EFFECT AS AN ORIGINAL SIGNATURE ON AN ORIGINAL
DOCUMENT.
8.
GOVERNING LAW; BINDING EFFECT. THIS THIRD AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY AND CONTINUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, PROVIDED THAT EACH PARTY SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. THIS THIRD AMENDMENT SHALL BE
BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
9.
HEADINGS. SECTION HEADINGS IN THIS THIRD AMENDMENT ARE INCLUDED
HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS
THIRD AMENDMENT FOR ANY OTHER PURPOSE.
10.
ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD
AMENDMENT, AND THE OTHER LOAN DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment by
their duly authorized officers as of the date first above written.
MERITAGE HOMES CORPORATION
By:
/s/ John B. Carroll
John B. Carroll
Vice President - Treasurer
Signature Page to Meritage Third Amendment
GUARANTY