AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit 10.20
AMENDMENT NO. 2 TO
Amendment No. 2 to CREDIT AGREEMENT, dated as of October 1st, 2013 (this “Amendment No. 2”) to the CREDIT AGREEMENT, dated as of June 20,2011 (as amended by the Amendment No. 1 and Omnibus Amendment, dated as of October 2011 and as further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among SHARYLAND PROJECTS, L.L.C. (the “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto (the “Lenders”), Société Générale, as administrative agent and collateral agent for the Lenders (in such capacity, the “Administrative Agent” or the “Collateral Agent”), the Fixed Rate Note Holders, Royal Bank of Scotland plc, as the issuing bank, and the other Persons from time to time parties thereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the rules of interpretation set forth therein shall apply to this Amendment No. 2.
RECITALS
WHEREAS, the Borrower and the Lenders are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Required Financing Parties and the Administrative Agent amend the Credit Agreement, as more fully described herein;
WHEREAS, the Required Financing Parties, the Administrative Agent and the Borrower are willing to agree to such amendment, but only upon the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the mutual agreement herein contained and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment to Section 7.13 Swap Agreements. Section 7.13 of the Credit Agreement is hereby amended in its entirety as follows:
“The Borrower shall not enter into any Swap Agreement other than (i) as contemplated by Section 6.21 or (ii) to hedge interest rate risk exposure of the Borrower after giving effect to the Swap Agreement contemplated by Section 6.21 and not for speculative purposes.”
2. Conditions to this Amendment No. 2 Effective Date. This Amendment No. 2 shall become effective as of the date first set forth above (the “Amendment No. 2 Effective Date”) which shall be a date after the Required Financing Parties, the Administrative Agent and the Borrower shall have executed and delivered counterparts of this Amendment No. 2.
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3. Representations and Warranties. In order to induce the Administrative Agent and the Required Financing Parties to enter into this Amendment No. 2, the Borrower hereby represents and warrants that (i) each of the representations and warranties made by the Borrower in the Financing Documents is true and correct in all material respects on and as of the date hereof, before and after giving effect to the effectiveness of this Amendment No. 2, as if made on and as of the date hereof, except to the extent such representations and warranties speak as of a particular date and were true and correct in all material respects as of such earlier date, and (ii) no Default or Event of Default has occurred and is continuing on the date hereof or after giving effect to the amendment contemplated herein.
4. Continuing Effect of Financing Documents. Except as expressly set forth herein, this Amendment No. 2 shall not constitute an amendment or waiver of any provision of the Credit Agreement and shall not be construed as an amendment, waiver or consent to any further or future action on the part of the Borrower that would require an amendment, waiver or consent of the Administrative Agent or the Required Financing Parties. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect. This Amendment No. 2 shall be deemed a Financing Document for purposes of the Credit Agreement.
5. Fecs. In accordance with Section 10.5 of the Credit Agreement, the Borrower shall have paid the fees, charges and disbursements of the Administrative Agent’s special counsel in connection with this Amendment No. 2.
6. Counterparts. This Amendment No. 2 may be executed by one or more of the parties hereto on any number of separate counterparts (including by facsimile), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Amendment No. 2 by facsimile or electronic transmission shall be effective as the delivery of a manually executed counterpart of this Amendment No. 2.
7. Severability. Any provision of this Amendment No. 2 which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8. Integration. This Amendment No. 2 and the other Financing Documents represent the agreement of the Borrower, the Administrative Agent and the Required Financing Parties with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Borrower, the Administrative Agent or any Required Financing Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Financing Documents.
9. GOVERNING LAW. THIS AMENDMENT NO. 2 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
| BORROWER | ||
| SHARYLAND PROJECTS, L.L.C. | ||
| By: | /s/ Xxxx Xxxxx | |
| Xxxx Xxxxx Senior Vice President | ||
[Signature Page of Amendment No. 2 to Credit Agreement]
| Administrative Agent | ||||
| Société Généralé | ||||
| By: | /s/ XXXXXX X. XXXXX | |||
| Name: | XXXXXX X. XXXXX | |||
| Title: | DIRECTOR | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| Societe Generale | ||||
| By: | /s/ XXXXXX X. XXXXX | |||
| Name: | XXXXXX X. XXXXX | |||
| Title: | DIRECTOR | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| Associated Bank N.A. | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| CoBank, HCB | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||||||
| DNB Bank, ASA | DNB Bank, ASA | |||||||
| By: | /s/ Xxxxxxx Xxxxxx |
/s/ Kjell Xxxx Xxxx | ||||||
| Name: | Xxxxxxx Xxxxxx | Kjell Xxxx Xxxx | ||||||
| Title: | Senior Vice President | Senior Vice President | ||||||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| Mizuho Bank, Ltd. | ||||
| By: | /s/ XXXXX XXXXXXXX | |||
| Name: | XXXXX XXXXXXXX | |||
| Title: | SENIOR VICE PRESIDENT | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| Royal Bank of Canada | ||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| The Bank of Nova Scotia | ||||
| By: | /s/ XXXXX XXXXXX | |||
| Name: | XXXXX XXXXXX | |||
| Title: | MANAGING DIRECTOR | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| SIEMENS FINANCIAL SERVICES, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| SUMITOMO MITSUI BANKING CORPORATION | ||||
| By: | /s/ XXXXX X. XXXXXXXXX | |||
| Name: | XXXXX X. XXXXXXXXX | |||
| Title: | MANAGING DIRECTOR | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| Xxxxx Fargo Bank, N.A. | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx | |||
| Title: | Assistant Vice President | |||
[Signature Page of Amendment No. 2 to Credit Agreement]
| REQUIRED FINANCING PARTY | ||||
| /s/ Xxxxxxx Du Mars | ||||
| By: | NATIXIS | |||
| Name: | Xxxxxxx Du Mars | |||
| Title: | Executive Director | |||
| /s/ Xxxxxxx Xxxxx | ||||
| Xxxxxxx Xxxxx | ||||
| Director | ||||
[Signature Page of Amendment No. 2 to Credit Agreement]
