THIRD AMENDMENT TO CREDIT AGREEMENT Dated as of April 20, 2004 among MERITAGE CORPORATION, as the Borrower GUARANTY BANK, as Administrative Agent and Swing Line Lender, BANK ONE, NA, as Syndication Agent FLEET NATIONAL BANK, as Documentation Agent and...
Exhibit 10.1
THIRD AMENDMENT
TO
Dated as of April 20, 2004
among
MERITAGE CORPORATION,
as the Borrower
GUARANTY BANK,
as Administrative Agent and Swing Line Lender,
BANK ONE, NA,
as Syndication Agent
FLEET NATIONAL BANK,
as Documentation Agent
and
The Other Lenders Party Thereto
GUARANTY BANK,
as Joint Lead Arranger and Joint Book Manager
and
BANC ONE CAPITAL MARKETS, INC.,
as Joint Lead Arranger and Joint Bank Manager
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Third Amendment”), dated as of April 20, 2004, 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, BANK ONE, NA, as Syndication Agent, and FLEET NATIONAL BANK, as Documentation Agent.
BACKGROUND
A. The Borrower, certain of 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, as amended by that certain First Amendment to Credit Agreement, dated as of September 8, 2003, and that certain Second Amendment to Credit Agreement, dated as of December 3, 2003 (said Credit Agreement, as amended, 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 increase the Letter of Credit Sublimit under the Credit Agreement.
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. The definition of “Letter of Credit Sublimit” set forth in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
“Letter of Credit Sublimit” means an amount equal to $150,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
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;
(b) no event has occurred and is continuing which constitutes a Default or an Event of Default;
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(c) (i) the Borrower has full power and authority to execute and deliver this Third Amendment, (ii) this Third Amendment has been duly executed and delivered by the Borrower, and (iii) this Third 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 Third 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 its properties are subject; and
(e) no authorization, approval, consent, or other action by, notice to, or filing with, any governmental authority or other Person not previously obtained is required for (i) the execution, delivery or performance by the Borrower of this Third Amendment or (ii) the acknowledgement by each Guarantor of this Third Amendment.
3. CONDITIONS TO EFFECTIVENESS. This Third Amendment shall be effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of this Third Amendment executed by Lenders comprising the Required Lenders;
(b) the Administrative Agent shall have received counterparts of this Third Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the Administrative Agent shall have received a certified resolution of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Third Amendment; and
(d) 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 Third 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 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. GUARANTOR’S ACKNOWLEDGMENT. By signing below, each Guarantor (a) acknowledges, consents and agrees to the execution, delivery and performance by the 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 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 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.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK |
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IN WITNESS WHEREOF, this Third Amendment is executed as of the date first set forth above.
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MERITAGE CORPORATION |
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Name: |
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Title: |
Vice President and Secretary |
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GUARANTY BANK, as Administrative Agent |
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Senior Vice President |
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Senior Vice President |
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FLEET
NATIONAL BANK, as a Lender and |
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Name: |
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Title: |
Director |
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BANK
ONE, NA, as a Lender and Syndication |
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Name: |
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Title: |
First Vice President |
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FARGO BANK ARIZONA |
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Name: |
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Title: |
Vice President |
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U.S.
BANK NATIONAL ASSOCIATION, as a |
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Name: |
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Title: |
Assistant Vice President |
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CALIFORNIA BANK AND TRUST, as a Lender |
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Title: |
Vice President |
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COMPASS BANK, as a Lender |
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S.V.P. |
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COMERICA BANK, as a Lender |
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Title: |
Vice President |
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PNC
BANK, NATIONAL ASSOCIATION, as a |
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Title: |
Senior Vice President |
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SOUTHTRUST BANK, as a Lender |
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Title: |
VP |
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ACKNOWLEDGED AND AGREED TO: |
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MONTEREY HOMES ARIZONA, INC. |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MONTEREY HOMES CONSTRUCTION, INC. |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MERITAGE HOMES OF ARIZONA, INC. |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MERITAGE PASEO CROSSING, LLC |
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Meritage Homes of Arizona, Inc., its Sole |
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Member |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MERITAGE HOMES CONSTRUCTION, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MERITAGE PASEO CONSTRUCTION, LLC |
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Meritage Homes Construction, Inc., its Sole |
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Member |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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▇▇▇▇▇▇▇-MTH COMMUNITIES, INC. |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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▇▇▇▇▇▇▇-MTH BUILDERS, INC. |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH-TEXAS GP, INC. |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH-TEXAS LP, INC. |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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LEGACY/MONTEREY HOMES L.P. |
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MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MERITAGE HOLDINGS, L.L.C. |
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Legacy/Monterey Homes L.P., its Sole |
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MTH-Texas GP, Inc., its General Partner |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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LEGACY OPERATING COMPANY, L.P. |
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Meritage Holdings, L.L.C., its General |
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Partner |
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Legacy/Monterey Homes L.P., its Sole |
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Member |
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MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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▇▇▇▇▇ ▇▇▇▇ VENTURE, LLC |
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By: |
Legacy/Monterey Homes L.P., its Sole |
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Member |
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By: |
MTH-Texas GP, Inc., its General Partner |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH-TEXAS ▇▇ ▇▇, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH-TEXAS ▇▇ ▇▇, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH HOMES-TEXAS, L.P. |
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By: |
MTH-Texas ▇▇ ▇▇, Inc., its General Partner |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MERITAGE HOMES OF CALIFORNIA, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH-HOMES NEVADA, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH-CAVALIER, LLC |
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By: |
Monterey Homes Construction, Inc., its |
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Sole Member |
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By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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MTH GOLF, LLC |
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By: |
▇▇▇▇▇▇▇-MTH Builders, Inc., its Sole |
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Member |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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LEGACY-▇▇▇▇▇▇▇▇ MATERIALS, L.P. |
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Meritage Holdings, L.L.C., its General |
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Partner |
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Legacy/Monterey Homes L.P., its Sole |
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Member |
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MTH-Texas GP, Inc., its General Partner |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ |
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▇▇▇▇▇ ▇. ▇▇▇▇ |
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Vice President and Secretary |
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