AMENDED BY THE AMENDMENTS REFERRED TO
ABOVE, SHALL REMAIN IN FULL FORCE AND EFFECT AND IS HEREBY 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 FOURTH 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.
GUARANTOR'S ACKNOWLEDGMENT.
BY SIGNING BELOW, EACH GUARANTOR
(A) ACKNOWLEDGES, CONSENTS AND AGREES TO THE EXECUTION, DELIVERY AND PERFORMANCE
BY THE BORROWER OF THIS FOURTH 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 FOURTH 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 FOURTH 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 FOURTH 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 FOURTH AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE 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, AND
SHALL BE BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
9.
HEADINGS.
SECTION HEADINGS IN THIS FOURTH AMENDMENT ARE INCLUDED
HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS
FOURTH AMENDMENT FOR ANY OTHER PURPOSE.
10.
ENTIRE AGREEMENT.
THE CREDIT AGREEMENT, AS AMENDED BY THIS FOURTH
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE
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CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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IN WITNESS WHEREOF, this Fourth Amendment is executed as of the date first set
forth above.
MERITAGE HOMES CORPORATION
By:
/s/ Larry W. Seay
Name:
Larry W. Seay
Title:
CFO-VP
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GUARANTY BANK, as Administrative Agent
By:
/s/ Sam A. Mead
Name:
Sam A. Mead