Exhibit 10.1.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of September 8, 2003, is entered into among MERITAGE CORPORATION, a
Maryland corporation (the "Borrower"), the lenders listed on the signature pages
hereof as Lenders (the "Lenders"), GUARANTY BANK, as Administrative Agent and
Swing Line Lender, FLEET NATIONAL BANK, as Syndication Agent, and BANK ONE, NA,
as Documentation Agent.
BACKGROUND
A. The Borrower, the Lenders, the Syndication Agent, the
Documentation Agent, the Administrative Agent and the Swing Line Lender are
parties to that certain Credit Agreement, dated as of December 12, 2002 (the
"Credit Agreement"). The terms defined in the Credit Agreement and not otherwise
defined herein shall be used herein as defined in the Credit Agreement.
B. The Borrower has requested an amendment to the Credit
Agreement to account for a change in GAAP.
C. The Lenders, the Syndication Agent, the Documentation Agent,
the Administrative Agent and the Swing Line Lender hereby agree to amend the
Credit Agreement, subject to the terms and conditions set forth herein.
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 Syndication Agent, the Documentation Agent, the Swing Line Lender
and the Administrative Agent covenant and agree as follows:
1. AMENDMENT. Section 1.03 of the Credit Agreement is hereby
amended by adding a new clause (d) thereto to read as follows:
(d) In order to adhere to the intent of this Section
1.03, the financial ratios, calculations and covenants (including the
computation of the components thereof) shall be calculated without
giving effect to FASB Interpretation No. 46 enacted by the Financial
Accounting Standards Board after the Closing Date, and all references
to GAAP herein shall refer to GAAP as so calculated.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, the Borrower represents and warrants that, as
of the date hereof:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as made on and as of such date;
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(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) (i) the Borrower has full power and authority to execute and
deliver this First Amendment, (ii) this First Amendment has been duly executed
and delivered by the Borrower, and (iii) this First Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable Debtor Relief Laws
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except as rights to indemnity may be
limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this First
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law or
Organization Documents of the Borrower, or any indenture, agreement or other
instrument to which the Borrower or any of their properties are subject; and
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person (including
the Board of Directors of the Borrower or any Guarantor) is required for (i) the
execution, delivery or performance by the Borrower of this First Amendment or
(ii) the acknowledgement by each Guarantor of this First Amendment.
3. CONDITIONS TO EFFECTIVENESS. This First Amendment shall be
effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Borrower and acknowledged by each
Guarantor; and
(c) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent shall
require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit Agreement, as affected and
amended hereby.
(b) The Credit Agreement, as 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,
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execution and delivery of this First 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 First Amendment, (b) acknowledges and agrees that its
obligations in respect of its Guaranty (i) are not released, diminished, waived,
modified, impaired or affected in any manner by this First 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 First 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 First 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 First 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 First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FIRST 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, this First Amendment is executed as of the date
first set forth above.
MERITAGE CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
VP-CFO
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GUARANTY BANK, as Administrative Agent
By: /s/ Xxx X. Xxxxx
----------------------------------------
Name: Xxx X. Xxxxx
Title: Senior Vice President
GUARANTY BANK, as a Lender and Swing Line
Lender
By: /s/ Xxx X. Xxxxx
----------------------------------------
Name: Xxx X. Xxxxx
Title: Senior Vice President
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FLEET NATIONAL BANK, as a Lender and
Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
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BANK ONE, NA, as a Lender and Documentation
Agent
By: ___________________________
Name: ____________________
Title: ____________________
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XXXXX FARGO BANK ARIZONA
NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: SVP
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U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
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CALIFORNIA BANK AND TRUST, as a Lender
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: VP
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COMPASS BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: SVP
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ACKNOWLEDGED AND AGREED TO:
MONTEREY HOMES ARIZONA, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MONTEREY HOMES CONSTRUCTION, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MERITAGE HOMES OF ARIZONA, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MERITAGE PASEO CROSSING, LLC
By: Meritage Homes of Arizona, Inc., its
Sole Member
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
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MERITAGE HOMES CONSTRUCTION, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MERITAGE PASEO CONSTRUCTION, LLC
By: Meritage Homes Construction, Inc., its
Sole Member
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
XXXXXXX-MTH COMMUNITIES, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
XXXXXXX-MTH BUILDERS, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
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MTH-TEXAS GP, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MTH-TEXAS LP, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
LEGACY/MONTEREY HOMES L.P.
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MERITAGE HOLDINGS, L.L.C.
By: Legacy/Monterey Homes, L.P., its Sole
Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
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LEGACY OPERATING COMPANY, L.P.
By: Meritage Holdings, L.L.C., its General
Partner
By: Legacy/Monterey Homes, L.P., its Sole
Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
XXXXX XXXX VENTURE, LLC
By: Legacy Monterey Homes L.P., its Sole
Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MTH-TEXAS XX XX, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
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MTH-TEXAS XX XX, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MTH HOMES-TEXAS, L.P.
By: MTH-Texas XX XX, Inc., its General
Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MERITAGE HOMES OF NORTHERN
CALIFORNIA, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MTH-HOMES NEVADA, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
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MTH-CAVALIER, LLC
By: Monterey Homes Construction, Inc., its
Sole Member
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
MISSION ROYALE GOLF COURSE, LLC
By: Xxxxxxx-MTH Builders, Inc., its Sole
Member
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
LEGACY-XXXXXXXX MATERIALS, L.P.
By: Meritage Holdings, L.L.C., its General
Partner
By: Legacy/Monterey Homes L.P., its Sole
Member
By: MTH-Texas GP, Inc., its General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
Vice President and Secretary
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