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
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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
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:
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) any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03(f) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness or (2) any negative pledge incurred or provided in favor of any holder of any Public Indebtedness permitted under Section 7.03(e); or (b) requires the grant of a Lien to secure an
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obligation of such Person if a Lien is granted to secure another obligation of such Person, provided that this clause (b) shall not prohibit the requirement of granting a pari passu Lien in favor of any holder of any Public Indebtedness permitted under Section 7.03(e) if the Obligations hereunder are required to be secured; provided, further, however, the foregoing shall not apply to (w) restrictions imposed by Law, this Agreement or any other Loan Documents or the Senior Notes, (x) customary restrictions and conditions contained in agreements relating to a sale of a Subsidiary or all or substantially all of its assets pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is sold and such sale is permitted hereunder, (y) customary provisions in leases, partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer or encumbrance of leasehold interests or ownership interests in such partnership, limited liability company, joint venture or similar Person and (z) with respect to clause (iii) customary provisions in leases restricting the assignment thereof.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment by their duly authorized officers as of the date first above written.
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MERITAGE HOMES CORPORATION |
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By: |
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/s/ Larry W. Seay |
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Name: |
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Larry W. Seay |
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Title: |
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Executive Vice President and |
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Chief Financial Officer |
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GUARANTY BANK, as Administrative Agent |
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By: |
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/s/ Robert A. Miller, Jr. |
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Name: |
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Robert A. Miller, Jr. |
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Title: |
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Senior Vice President |
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GUARANTY BANK, as a Lender |
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By: |
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/s/ Robert A. Miller, Jr. |
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Name: |
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Robert A. Miller, Jr. |
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Title: |
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Senior Vice President |
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JPMORGAN CHASE BANK, N.A., as a Lender |
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By: |
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/s/ Kent A. Kaiser |
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Name: |
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Kent A. Kaiser |
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Title: |
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Senior Vice President |
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BANK OF AMERICA, N.A., |
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By: |
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/s/ Mark W. Lariviere |
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Name: |
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Mark W. Lariviere |
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Title: |
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Senior Vice President |
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WACHOVIA BANK, NATIONAL ASSOCIATION, |
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By: |
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/s/ William Scargle |
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Name: |
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William Scargle |
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Title: |
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Vice President |
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U. S. BANK NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ Adrian Montero |
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Name: |
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Name: Adrian Montero |
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Title: |
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Title: Vice President |
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
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By: |
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/s/ Rick Williams |
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Name: |
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Rick Williams |
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Title: |
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Banker |
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CITICORP NORTH AMERICA, INC., as a Lender |
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By: |
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/s/ Malau Kakad |
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Name: |
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Malau Kakad |
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Title: |
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Vice President |
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DEUTSCHE BANK TRUST COMPANY AMERICAS, |
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By: |
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/s/ Scottye Lindsey |
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Name: |
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Scottye Lindsey |
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Title: |
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Director |
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By: |
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/s/ Diane F. Rolfe |
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Name: |
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Diane F. Rolfe |
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Title: |
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Director |
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UBS LOAN FINANCE LLC, as a Lender |
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By: |
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/s/ Richard L. Tavrow |
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Name: |
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Richard L. Tavrow |
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Title: |
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Director Banking Products |
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Services, US |
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By: |
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/s/ Irja R. Otsa |
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Name: |
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Irja R. Otsa |
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Title: |
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Associate Director Banking Products |
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Services, US |
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PNC BANK, NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ Douglas G. Paul |
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Name: |
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Douglas G. Paul |
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Title: |
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Senior Vice President |
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SUNTRUST BANK, as a Lender |
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By: |
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/s/ W. John Wendler |
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Name: |
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W. John Wendler |
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Title: |
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Senior Vice President |
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COMERICA BANK, as a Lender |
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By: |
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/s/ Casey L. Ostrander |
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Name: |
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Casey L. Ostrander |
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Title: |
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Vice President |
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COMPASS BANK, as a Lender |
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By: |
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/s/ Steven J. Heslep |
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Name: |
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Steven J. Heslep |
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Title: |
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Senior Vice President |
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AMSOUTH BANK, as a Lender |
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By: |
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/s/ Ronny Hudspeth |
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Name: |
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Ronny Hudspeth |
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Title: |
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Senior Vice President |
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BANK OF OKLAHOMA, N.A., as a Lender |
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By: |
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/s/ Patricia A. Richards |
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Name: |
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Patricia A. Richards |
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Title: |
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Vice President |
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LASALLE BANK, N.A., as a Lender |
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By: |
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/s/ Nathaniel Dever |
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Name: |
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Nathaniel Dever |
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Title: |
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Vice President |
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KEYBANK NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ Daniel L. Silbert |
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Name: |
Daniel L. Silbert |
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Title: |
Vice President |
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NORTHERN TRUST COMPANY, as a Lender |
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By: |
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/s/ Morgan A. Lyons |
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Name: |
Morgan A. Lyons |
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Title: |
Vice President |
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CALIFORNIA BANK & TRUST COMPANY, as a Lender |
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By: |
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/s/ Stephanie Lantz |
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Name: |
Stephanie Lantz |
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Title: |
Vice President |
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BNP PARIBAS, as a Managing Agent and the New Lender |
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By: |
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/s/ Duane Helkowski |
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Name: |
Duane Helkowski |
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Title: |
Managing Director |
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By: |
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/s/ Angela B. Arnold |
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Name: |
Angela B. Arnold |
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Title: |
Director |
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ACKNOWLEDGED AND AGREED TO: |
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MERITAGE HOMES OF ARIZONA, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE PASEO CROSSING, LLC |
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By: |
Meritage Homes of Arizona, Inc., its Sole Member |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES CONSTRUCTION, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE PASEO CONSTRUCTION, LLC |
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By: |
Meritage Homes Construction, Inc., its Sole Member |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
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MERITAGE HOMES OF TEXAS GP, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OF TEXAS LP HOLDING, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OF TEXAS, LP |
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By: |
Meritage Homes of Texas GP, Inc., its General Partner |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
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MERITAGE HOLDINGS, L.L.C. |
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By: |
Meritage Homes of Texas, L.P., its Sole Member |
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By: |
Meritage Homes of Texas GP, Inc., its General Partner |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OPERATING COMPANY, L.P. |
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By: |
Meritage Holdings, L.L.C., its General Partner |
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By: |
Meritage Homes of Texas, L.P., its Sole Member |
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By: |
Meritage Homes of Texas GP, Inc., its General Partner |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
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MERITAGE HOMES OF TEXAS JOINT VENTURE HOLDING COMPANY, LLC |
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By: |
Meritage Homes of Texas, L.P., its Sole Member |
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By: |
Meritage Homes of Texas GP, Inc., its General Partner |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OF CALIFORNIA, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OF NEVADA, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
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MTH-CAVALIER, LLC |
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By: |
Meritage Homes Construction, Inc., its Sole Member |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MTH GOLF, LLC |
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By: |
Meritage Homes Construction, Inc., its Sole Member |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OF COLORADO, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
MERITAGE HOMES OF FLORIDA, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
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CALIFORNIA URBAN BUILDERS, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
CALIFORNIA URBAN HOMES, LLC |
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By: |
Meritage Homes of California, Inc., its Sole Member and Manager |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
GREATER HOMES, INC. |
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By: |
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/s/ Larry W. Seay |
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Name: |
Larry W. Seay |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
35
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender |
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Commitment |
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Pro Rata Share |
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Guaranty Bank |
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$ |
100,000,000 |
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11.764710000 |
% |
||
JPMorgan Chase Bank, N.A., a national banking association |
|
$ |
80,000,000 |
|
9.411760000 |
% |
||
Wachovia Bank, National Association |
|
$ |
70,000,000 |
|
8.235290000 |
% |
||
Bank of America, N.A. |
|
$ |
60,000,000 |
|
7.058820000 |
% |
||
U. S. Bank National Association |
|
$ |
50,000,000 |
|
5.882350000 |
% |
||
Wells Fargo Bank, National Association |
|
$ |
50,000,000 |
|
5.882350000 |
% |
||
Citicorp North America, Inc. |
|
$ |
50,000,000 |
|
5.882350000 |
% |
||
Deutsche Bank Trust Company Americas |
|
$ |
50,000,000 |
|
5.882350000 |
% |
||
UBS Loan Finance, LLC |
|
$ |
50,000,000 |
|
5.882350000 |
% |
||
BNP Paribas |
|
$ |
50,000,000 |
|
5.882350000 |
% |
||
PNC Bank, National Association |
|
$ |
35,000,000 |
|
4.117650000 |
% |
||
SunTrust Bank |
|
$ |
35,000,000 |
|
4.117650000 |
% |
||
Comerica Bank |
|
$ |
25,000,000 |
|
2.941180000 |
% |
||
Compass Bank |
|
$ |
25,000,000 |
|
2.941180000 |
% |
||
AmSouth Bank |
|
$ |
25,000,000 |
|
2.941180000 |
% |
||
Bank of Oklahoma, N.A. |
|
$ |
25,000,000 |
|
2.941180000 |
% |
||
LaSalle Bank, N.A. |
|
$ |
25,000,000 |
|
2.941180000 |
% |
||
KeyBank, National Association |
|
$ |
20,000,000 |
|
2.352940000 |
% |
||
Northern Trust Company |
|
$ |
15,000,000 |
|
1.764710000 |
% |
||
California Bank & Trust Company |
|
$ |
10,000,000 |
|
1.176470000 |
% |
||
Total |
|
$ |
850,000,000.00 |
|
100.000000000 |
% |
36