Exhibit 10.1
FIRST AMENDMENT AND COMMITMENT INCREASE AGREEMENT
Dated as of June 30, 2006
among
MERITAGE HOMES CORPORATION,
as the Borrower,
GUARANTY BANK
as Administrative Agent and Swing Line Lender,
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION and BANK OF AMERICA, N.A.,
as Co-Documentation Agents,
U. S. BANK NATIONAL ASSOCIATION,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
CITICORP NORTH AMERICA, INC.,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
UBS SECURITIES LLC, and PNB PARBIAS
as Managing Agents,
PNC BANK, NATIONAL ASSOCIATION and SUNTRUST BANK,
as Co-Agents,
and
The Other Lenders Party Hereto
GUARANTY BANK,
as Joint Lead Arranger and
Joint Book Manager
and
J. P. MORGAN SECURITIES, INC.,
as Joint Lead Arranger and Joint Book Manager
1
FIRST AMENDMENT AND COMMITMENT INCREASE AGREEMENT
This First Amendment and Commitment Increase Agreement (this "First Amendment")
dated as of June 30, 2006, is entered into among Meritage Homes Corporation, a
Maryland corporation (the "Borrower"), the lenders listed on the signature
pages hereof as Lenders (the "Lenders"), BNP Paribas, in its capacity as a
Lender (the "New Lender"), and Guaranty Bank, in its capacity as Administrative
Agent and Swing Line Lender (the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement (as defined below).
BACKGROUND
A.
THE BORROWER, LENDERS AND THE ADMINISTRATIVE AGENT ARE PARTIES TO
THAT CERTAIN FIRST AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF MAY 16,
2006 (AS AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED, THE "CREDIT AGREEMENT").
B.
THE BORROWER HAS REQUESTED AN AMENDMENT TO SECTION 7.09 OF THE
CREDIT AGREEMENT.
C.
PURSUANT TO SECTION 2.15 OF THE CREDIT AGREEMENT, THE BORROWER HAS
REQUESTED AN INCREASE IN THE AGGREGATE COMMITMENTS FROM $800,000,000 TO
$850,000,000.
THE NEW LENDER HAS AGREED TO EXTEND A COMMITMENT IN THE AMOUNT OF
$50,000,000. SUCH INCREASE IN THE AGGREGATE COMMITMENTS IS TO BECOME EFFECTIVE
ON JUNE 30, 2006 (THE "INCREASE CLOSING DATE"), SUBJECT TO SATISFACTION OF THE
CONDITIONS TO EFFECTIVENESS SET FORTH IN SECTION 7(A) OF THIS FIRST AMENDMENT.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements
hereafter set forth, and for other good and valuable consideration, the receipt
and adequacy of which are all hereby acknowledged, the Borrower, the Lenders,
the New Lender, the Swing Line Lender and the Administrative Agent covenant and
agree as follows:
1.
AMENDMENT. SECTION 7.09 OF THE CREDIT AGREEMENT IS HEREBY AMENDED
TO READ AS FOLLOWS:
7.09
Burdensome Agreements. Enter into any Contractual Obligation that
(a) limits the ability (i) of any Restricted Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to
the Borrower or any Guarantor, (ii) of any Restricted Subsidiary to Guarantee
the Indebtedness of the Borrower or (iii) of the Borrower or any Restricted
Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person to secure its obligations under the Loan Documents to which it is a
party; provided, however, that this clause (iii) shall not prohibit (1)