Contract
Exhibit 10.5
FOURTH
AMENDMENT TO CREDIT AGREEMENT
THIS
FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is entered into as of January 23, 2009, by and among CENTEX CORPORATION, a Nevada
corporation (“Borrower”),
each Lender (defined below) party hereto, and BANK OF AMERICA, N.A., as Administrative
Agent.
R E C I T A L S
A. Reference
is hereby made to that certain Credit Agreement dated as of July 1, 2005,
executed by Borrower, the Lenders party thereto, and Administrative Agent (as
amended, the “Credit
Agreement”).
B. Capitalized
terms used herein shall, unless otherwise indicated, have the respective
meanings set forth in the Credit Agreement.
C. Borrower,
Administrative Agent, and Lenders desire to modify certain provisions contained
in the Credit Agreement, subject to the terms and conditions set forth
herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments to the Credit
Agreement.
(a) Recital A.
is hereby amended to delete the reference to “, providing for, among other
things, a revolving credit facility in the aggregate principal amount of up to
$1,500,000,000” in its entirety.
(b) Section
1.1 is hereby amended to add the following definitions in the appropriate
alphabetical order:
Affected Lender
means any Lender that has (a) failed to fund any portion of a Borrowing
or its participations in Letters of Credit within three (3) Business Days of the
date required to be funded by it hereunder, (b) notified Borrower,
Administrative Agent, any L/C Issuer, or any Lender in writing that it does not
intend to comply with any of its funding obligations under this Agreement, (c)
failed, within three (3) Business Days after request by Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its
obligations to fund prospective Borrowings and participations in then
outstanding Letters of Credit, (d) otherwise failed to pay to Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within three (3) Business Days of the date when due, unless the subject of a
good faith dispute, or (e) (i) become insolvent or has a parent company that has
become or is insolvent or (ii) become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed
for it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment or has a
parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed
for it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or
appointment.
Consolidated Net
Interest Expense means, for any period of determination, (a) Consolidated
Interest Expense for such period minus (b) the interest income
of the Restricted Companies, on a consolidated basis.
Daily Floating
LIBOR Rate means, as of any date of determination, the per annum rate of
interest equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as selected by Administrative Agent from time
to time) at approximately 11:00 a.m. London time on the date of determination
for Dollar deposits being delivered in the London interbank market for a term of
one month commencing on that day. If such rate is not available at
such time for any reason, then the rate for that interest period will be
determined by such alternate method as reasonably selected by Administrative
Agent.
Designated
Lenders means Bank of America, N.A. and any other Lenders (other than an
Affected Lender) selected from time to time by Borrower (subject to the approval
of Administrative Agent, not to be unreasonably withheld), and Designated
Lender means any of the Designated Lenders.
Fourth
Amendment means the Fourth Amendment to Credit Agreement dated as of the
Fourth Amendment Effective Date, executed by Borrower, Administrative Agent, and
the other Lenders party thereto.
Fourth Amendment
Effective Date means January 23, 2009.
Liquidity Reserve
Account means a segregated account maintained by Borrower with any
Designated Lender that is not the subject of any Lien (other than bankers’
Liens, rights of setoff and other similar Liens in favor of such Designated
Lender) or other arrangement with any creditor to have their claim satisfied out
of such assets prior to the general creditors of Borrower, into which account
deposits shall be made as, and may be withdrawn only as, provided in Section
9.12(d).
Required
Liquidity Reserve Deposit means an amount, determined as of the last day
of a Coverage Test Failure Quarter (as defined in Section
9.12(d)(ii)) for the fiscal quarter ending on such date, equal to the
result of (a)
Consolidated Net Interest Expense for such fiscal quarter multiplied by (b) eight
(8); provided
that, in
no event shall the Required Liquidity Reserve Deposit exceed the Total
Commitment.
(c) Section 1.1
is hereby amended to delete the chart contained in the definition of “Applicable
Margin” in its entirety and replace such chart with the
following:
|
Level
|
Xxxxx’x
Rating
|
S
& P Rating
|
Fitch
Rating
|
Applicable
Margin for Prime Rate Borrowings
|
Applicable
Margin for Eurodollar Borrowings
|
Applicable
Margin for Facility Fees
|
Applicable
Margin for Utilization Fees
|
|
1
|
Ba2
or higher
|
BB
or higher
|
BB
or higher
|
0.10%
|
2.60%
|
0.35%
|
0.2500%
|
|
2
|
Ba3
|
BB-
|
BB-
|
0.60%
|
3.10%
|
0.40%
|
0.2500%
|
|
3
|
B1
|
B+
|
B+
|
1.05%
|
3.55%
|
0.50%
|
0.2500%
|
|
4
|
B2
|
B
|
B
|
1.55%
|
4.05%
|
0.55%
|
0.2500%
|
|
5
|
B3
or lower or Not Rated
|
B-
or lower or
Not
Rated
|
B-
or lower or
Not
Rated
|
2.05%
|
4.55%
|
0.60%
|
0.2500%
|
(d) Section 1.1
is hereby amended to delete the definition of “Borrowing Base
Debt” in its entirety and replace such definition with the
following:
Borrowing Base
Debt means (a) all Consolidated Debt (and, for purposes of this
definition, the Excess Cash (including, without limitation, all amounts on
deposit in the Liquidity Reserve Accounts) component used in the calculation of
Consolidated Debt shall be reduced by the amount of Total Principal Debt as of
the date of determination that has not been Cash Collateralized in accordance
with Section
2.6(a) (but in no event shall such Excess Cash component be less than
zero)), minus (b) any
Subordinated Debt of the Restricted Companies in an amount not to exceed
$200,000,000, minus (c)
any Non-Recourse Debt of the Restricted Companies.
(e) Section
1.1 is
hereby amended to delete the definition of “Consolidated
Debt” in its entirety and replace such definition with the
following:
Consolidated
Debt means, as of any date of determination, (a) all Debt (other than (x)
with respect to undrawn Performance Letters of Credit and (y) Contingent
Obligations with respect to guaranties of undrawn Performance Letters of Credit
of Persons other than Borrower or a Restricted Subsidiary) of the Restricted
Companies, on a consolidated basis, minus (b) Excess Cash
(including, without limitation, all amounts on deposit in the Liquidity Reserve
Accounts, regardless of any restrictions herein on the Liquidity Reserve
Accounts) not subject to any Liens or other restrictions not inherent in the
particular investment or obligation, minus (c) the face amount of all undrawn
financial letters of credit issued on behalf of the Restricted Companies (but
only to the extent such letters of credit assure obligations that are fully
indemnified pursuant to unconditional indemnity agreements or fully covered by
third party insurance acceptable to Administrative Agent, provided by
indemnitors or insurers, as applicable, acceptable to Administrative Agent, as
to which such indemnitors or insurers, as applicable, do not
Fourth Amendment to Centex Credit
Agreement
3
dispute
liability for payment thereof); provided that, for purposes of Section
8.12, Consolidated Debt means, as of the date of determination, all Debt
of the Restricted Companies, on a consolidated basis.
(f) Section 1.1
is hereby amended to delete the definition of “Cumulative
Consolidated Net Income” in its entirety and replace such definition with
the following:
Cumulative
Consolidated Net Income means the sum of Quarterly
Consolidated Net Income for the fiscal quarter ended March 31, 2009, and
for each succeeding fiscal quarter during the term hereof.
(g) Section
1.1 is
hereby amended to delete the definition of “Lenders”
in its entirety and replace such definition with the following:
Lenders
means, on any date of determination, the financial institutions named on Schedule
2.1 (as the same may be amended from time to time by Administrative Agent
to reflect assignments made in accordance with Section
13.13(b)), and subject to the terms and conditions of this Agreement,
their respective successors and assigns.
(h) Section 1.1
is hereby amended to delete the definition of “Letter of Credit
Sublimit” in its entirety and replace such definition with the
following:
Letter of Credit
Sublimit means an amount equal to the Total Commitment. The
Letter of Credit Sublimit is part of, and not in addition to, the Total
Commitment.
(i) Section 1.1
is hereby amended to delete the definition of “Leverage
Ratio” in its entirety and replace such definition with the
following:
Leverage Ratio
means, as of any date of determination thereof, the ratio of (a) the result of (i) Consolidated
Debt outstanding on such date, minus (ii) Subordinated
Debt outstanding on such date in an amount not to exceed $200,000,000, to (b) the sum of (i) Consolidated
Debt outstanding on such date, plus (ii) Consolidated
Tangible Net Worth as of such date, determined in accordance with
GAAP.
(j) Section 1.1
is hereby amended to delete the definition of “Prime
Rate” in its entirety and replace such definition with the
following:
Prime Rate
means, for any day, a fluctuating rate per annum equal to the highest of (a) the sum of (i) the Federal Funds
Rate plus (ii) one half
of one percent (0.50%), (b) the sum of (i) the Daily Floating
Libor Rate plus (ii)
two and one half percent (2.50%), and (c) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
“prime rate.” The “prime rate” is a rate set by Bank of America based
upon various factors including Bank of America’s costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the prime rate announced by Bank of America, the
Federal Funds Rate, or the Daily Floating Libor Rate shall take effect at the
opening of business on the day specified in the public announcement of such
change.
(k) Section 1.1
is hereby amended to delete the definition of “Total
Commitment” in its entirety and replace such definition with the
following:
Fourth Amendment to Centex Credit
Agreement
4
Total Commitment
means, on any date of determination, the sum of all Commitments for
all Lenders (as the same may have been reduced, increased, or canceled in
accordance with this Agreement) then in effect, which sum shall not exceed
$500,000,000.
(l) Section
1.1 is hereby amended to delete the definitions of “Increasing
Lender,” “Maximum Leverage
Ratio,” and “Subsequent
Lender” in their entirety.
(m) Section
2.2(b) is hereby deleted in its entirety and replaced with the
following:
(b) Intentionally
Deleted.
(n) Section 2.3
is hereby deleted in its entirety and replaced with the
following:
Section
2.3 Termination or Reduction of Commitment.
(a) Voluntary. Without
premium or penalty, and upon giving not less than ten (10) Business Days
prior written and irrevocable notice to Administrative Agent, Borrower may
permanently terminate in whole or in part the Total Commitment; provided that: (i) each
partial termination shall be in the amount of $5,000,000 or a greater integral
multiple of $1,000,000; (ii) the amount of the Total Commitment may not be
reduced below the Total Outstandings; and (iii) each reduction shall be
allocated Pro Rata among Lenders in accordance with their respective Pro Rata
Parts. Promptly after receipt of such notice of termination or
reduction, Administrative Agent shall notify each Lender of the proposed
termination or reduction. Such termination or partial reduction of
the Total Commitment shall be effective on the Business Day specified in
Borrower’s notice (which date must be at least ten (10) Business Days after
Borrower’s delivery of such notice). In the event that the Total
Commitment is reduced to zero and there is no outstanding Principal Debt or L/C
Obligations, this Agreement shall be terminated to the extent specified in Section 13.14,
and all facility fees and other fees then earned and unpaid hereunder and all
other amounts of the Obligation then due and owing shall be immediately due and
payable, without notice or demand by any Credit Party.
(b) Mandatory. On the
Fourth Amendment Effective Date, the Total Commitment shall be reduced by
$850,000,000 such that, immediately after giving effect to such reduction, the
Total Commitment is $500,000,000. Each such reduction shall be
allocated Pro Rata among Lenders in accordance with their respective Pro Rata
Parts.
(o) Section 2.5(k)
is hereby deleted in its entirety and replaced with the
following:
(k) Intentionally
Deleted.
(p) The
following new Section
2.6 is added to the Credit Agreement:
Section 2.6 Affected
Lenders.
Notwithstanding
any provision of this Agreement to the contrary, if any Lender becomes an
Affected Lender, then the following provisions shall apply for so long as such
Lender is an Affected Lender:
Fourth Amendment to Centex Credit
Agreement
5
(a) If
any L/C Obligations exist at the time a Lender is an Affected Lender, Borrower
shall, within one (1) Business Day of delivery of written notice by
Administrative Agent, Cash Collateralize the amount of the Affected Lender’s Pro
Rata Part of the L/C Obligations. If Borrower is required to provide
an amount of cash collateral pursuant to this Section
2.6(a), such cash collateral shall be released from the Lien granted to
Administrative Agent for the benefit of Lenders and promptly returned to
Borrower from time to time to the extent the amount deposited shall exceed the
Affected Lender’s Pro Rata Part of the L/C Obligations or if such Lender ceases
to be an Affected Lender;
(b) no
L/C Issuer shall be required to issue, extend, or increase any Letter of Credit
unless cash collateral has been provided by Borrower in accordance with Section
2.6(a);
(c) if
Borrower is required to Cash Collateralize the amount of an Affected Lender’s
Pro Rata Part of the L/C Obligations pursuant to Section
2.6(a), Borrower may, by written notice to Administrative Agent, at
Borrower’s sole expense and effort, request such Affected Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section
13.13), all of its interests, rights and obligations under this Agreement
and the related Loan Documents to an Eligible Assignee that shall assume such
obligations, provided
that an Affected Lender shall not be required to make any such assignment
or delegation; and
(d) notwithstanding
the provisions of Sections
2.6(a) and (b), if
within one (1) Business Day following Borrower’s receipt of Administrative
Agent’s notice under Section
2.6(a) Borrower has, by written notice to Administrative Agent, advised
Administrative Agent that Borrower intends to effect the assignment by such
Affected Lender pursuant to Section
2.6(c), the date by which Borrower shall be required to comply with the
provisions of Sections
2.6(a) and (b) shall
be extended to the forty-fifth (45th) day
after the date of Administrative Agent’s notice; provided, however, that, such
extension shall not extend the date by which Borrower is obligated to Cash
Collateralize the Letters of Credit pursuant to Section 2.5(i),
3.2(b)(ii), 11.1(a) or 11.1(b).
(q) Section
8.3(a)(iii) is hereby deleted in its entirety and replaced with the
following:
(iii) a
Compliance Certificate with respect to such Financial Statements and, if the
Interest Coverage Test (as defined in Section
9.12(d)(i)) is not satisfied as of such date, (A) a calculation of the
Required Liquidity Reserve Deposit, (B) calculations demonstrating compliance
with the terms of Section
9.12(d)(ii), and (C) a listing of each Liquidity Reserve Account and the
amount on deposit therein.
(r) Section
8.3(b)(ii) is hereby deleted in its entirety and replaced with the
following:
(ii) a
Compliance Certificate with respect to such Financial Statements and, if the
Interest Coverage Test (as defined in Section
9.12(d)(i)) is not satisfied as of such date, (A) a calculation of the
Required Liquidity Reserve Deposit, (B) calculations demonstrating compliance
with the terms of Section
9.12(d)(ii), and (C) a listing of each Liquidity Reserve Account and the
amount on deposit therein.
(s) Section 9.12
is hereby deleted in its entirety and replaced with the
following:
Fourth Amendment to Centex Credit
Agreement
6
9.12 Financial
Covenants.
(a) Leverage
Ratio. Borrower shall not permit the Leverage Ratio (expressed
as a percent), as of the last day of any fiscal quarter of Borrower, to be
greater than sixty-five percent (65%).
(b) Minimum Tangible Net
Worth. Borrower shall not permit Consolidated Tangible Net
Worth, as of the last day of any fiscal quarter of Borrower, commencing with the
fiscal quarter ending March 31, 2009, to be less than (a) (i) if the Total
Commitment exceeds $350,000,000, then $650,000,000 or (ii) if the Total
Commitment has been permanently reduced to $350,000,000 or less, then
$500,000,000, plus (b)
fifty percent (50%) of the amount of Net Proceeds from any Equity Issuance
subsequent to December 31, 2008, plus (c) fifty percent (50%)
of Cumulative Consolidated Net Income (excluding the effect of any decrease in
any Deferred Tax Valuation Allowance), plus (d) the amount of all
reductions or reversals of any Deferred Tax Valuation Allowances since December
31, 2008 through the date of determination.
(c) Borrowing Base. At
any time that Borrower does not have an Investment Grade Rating, Borrower shall
not permit the sum of the aggregate outstanding amount of all Borrowing Base
Debt to exceed the sum of the Borrowing Base; provided however, that it
shall not be an Event of Default or Potential Default under this Section
9.12(c) if, Borrower shall either, (A) within two (2) Business Days of
the date of determination that Borrower is not in compliance with this Section
9.12(c), make a prepayment of the Total Principal Debt in such amount as
is necessary to cause Borrower to be in compliance with the limitations of this
Section
9.12(c), or (B) so long as no Principal Debt is outstanding, within
thirty (30) days of such date of determination, cause Borrower to otherwise be
in compliance with the limitations of this Section
9.12(c).
(d) Interest
Coverage Ratio and Liquidity Reserve.
(i) Borrower
shall not permit the Interest Coverage Ratio, as of the last day of any fiscal
quarter of Borrower, to be less than 2.0 to 1.0 (the
“Interest
Coverage Test”), subject to the provisions of Sections
9.12(d)(ii) and (v)
below.
(ii) If
at the end of any fiscal quarter, Borrower shall fail to satisfy the Interest
Coverage Test (each such fiscal quarter, a “Coverage Test
Failure Quarter”), Borrower shall, not later than (x) for the fiscal
quarter ended December 31, 2008, the Fourth Amendment Effective Date and (y) for
all other fiscal quarters, the date that the Compliance Certificate for such
quarter is required to be delivered to Administrative Agent pursuant to Section
8.3 (each such date a “Liquidity
Compliance Date”), deposit in one or more Liquidity Reserve Accounts with
one or more of the Designated Lenders (as selected by Borrower) an amount such
that the aggregate amount held in all Liquidity Reserve Accounts equals or
exceeds the Required Liquidity Reserve Deposit determined as of the last day of
such Coverage Test Failure Quarter. Amounts deposited in Liquidity
Reserve Accounts shall be maintained in and may not be withdrawn from such
Liquidity Reserve Accounts except as provided in Sections
9.12(d)(iii) or (iv). If
at any time it is determined that any Financial Statements or Compliance
Certificate furnished by Borrower contained an error that resulted in the stated
amount of the Required Liquidity Reserve Deposit for the most recent Coverage
Test Failure Quarter being less than the correct amount thereof, Borrower shall
promptly deliver to Administrative Agent corrected Financial Statements and a
corrected Compliance Certificate and promptly
Fourth Amendment to Centex Credit
Agreement
7
deposit
in the Liquidity Reserve Accounts the amount by which the corrected Required
Liquidity Reserve Deposit exceeds the actual amount in the Liquidity Reserve
Accounts.
(iii) If
as of the last day of a Coverage Test Failure Quarter, the aggregate amount held
in all Liquidity Reserve Accounts exceeds the Required Liquidity Reserve Deposit
determined for such fiscal quarter and Borrower shall have furnished the
Financial Statements and Compliance Certificate required to be furnished under
Section
8.3 with respect to such fiscal quarter evidencing the same and provided
no Potential Default or Event of Default has occurred and is continuing,
Borrower may at any time prior to the Liquidity Compliance Date for the fiscal
quarter next succeeding such Coverage Test Failure Quarter, withdraw from the
Liquidity Reserve Accounts an aggregate amount equal to such excess. If Borrower
shall satisfy the Interest Coverage Test as of the last day of any fiscal
quarter and shall have furnished the Financial Statements and Compliance
Certificate required to be furnished under Section
8.3 with respect to such fiscal quarter evidencing the same and provided
no Potential Default or Event of Default has occurred and is continuing,
Borrower may withdraw any and all funds from the Liquidity Reserve Accounts and
shall not thereafter be required to maintain any Liquidity Reserve Accounts
unless and until thereafter required pursuant to the provisions of Section
9.12(d)(ii) above.
(iv) If
at any time any Designated Lender ceases to be a Lender under this Agreement or
becomes an Affected Lender, all funds held by such Designated Lender in a
Liquidity Reserve Account shall be promptly transferred to another Liquidity
Reserve Account held by another Designated Lender (as designated by Borrower or,
in the absence of such designation, as designated by Administrative
Agent).
(v) Borrower’s
satisfaction of the Interest Coverage Test shall be measured on a quarterly
basis based on the Financial Statements delivered to Administrative Agent
pursuant to Section
8.3. Notwithstanding anything to the contrary contained
herein, a failure to satisfy the Interest Coverage Test alone shall not
constitute a Potential Default or an Event of Default unless the Required
Liquidity Reserve Deposit is not made and maintained as herein
required.
(t) Schedule
2.1 is hereby deleted in its entirety and replaced with Revised
Schedule 2.1 attached hereto.
2. Waiver.
(a) Borrower
has advised Administrative Agent that Borrower may not be in compliance with the
Minimum Tangible Net Worth covenant as set forth in Section
9.12(b) of the Credit Agreement (as in effect prior to this Amendment)
solely for the fiscal quarter ended December 31, 2008 (the “Net Worth
Covenant Violation”). As a result, Borrower has requested that
Lenders waive any Potential Default or Event of Default arising solely as a
result of the Net Worth Covenant Violation.
(b) Each
Lender that executes this Amendment (“Waiving
Lenders”) hereby waives the existence of the Net Worth Covenant
Violation, and any Potential Default or Event of Default created solely
thereby.
The
waiver hereby granted by Waiving Lenders under this Section 2
does not (i) constitute a waiver or modification of any other terms or
provisions set forth in the Credit Agreement or any other Loan Document and
shall not impair any right that any Credit Party may now or hereafter have under
or in
Fourth Amendment to Centex Credit
Agreement
8
connection
with the Credit Agreement or any other Loan Document, (ii) impair any
Credit Party’s rights to insist upon strict compliance with the Credit
Agreement, as amended or otherwise modified hereby, or the other Loan Documents,
and (iii) does not extend to any other Loan Document. The Loan
Documents continue to bind and inure to Borrower and the Credit Parties and
their respective successors and permitted assigns.
3. Amendments
to Credit Agreement and Other Loan Documents.
(a) All
references in the Loan Documents to the Credit Agreement shall henceforth
include references to the Credit Agreement as modified and amended by this
Amendment, and as may, from time to time, be further modified, amended,
restated, extended, renewed, and/or increased.
(b) Any
and all of the terms and provisions of the Loan Documents are hereby amended and
modified wherever necessary, even though not specifically addressed herein, so
as to conform to the amendments and modifications set forth herein.
4. Ratifications. Borrower
(a) ratifies and confirms all provisions of the Loan Documents as amended by
this Amendment, (b) ratifies and confirms that all guaranties and assurances,
granted, conveyed, or assigned to the Credit Parties under the Loan Documents
are not released, reduced, or otherwise adversely affected by this Amendment and
continue to guarantee and assure full payment and performance of the present and
future Obligation, and (c) agrees to perform such acts and duly authorize,
execute, acknowledge, deliver, file, and record such additional documents and
certificates as Administrative Agent may reasonably request in order to create,
preserve and protect those guaranties and assurances.
5. Representations. Borrower
represents and warrants to Lenders that as of the date of this Amendment: (a)
this Amendment has been duly authorized, executed, and delivered by Borrower;
(b) no action of, or filing with, any Governmental Authority is required to
authorize, or is otherwise required in connection with, the execution, delivery,
and performance of this Amendment by Borrower other than the reporting and
filing of this Amendment pursuant to Legal Requirements; (c) the Loan Documents,
as amended by this Amendment, are valid and binding upon Borrower and are
enforceable against Borrower in accordance with their respective terms, except
as limited by Debtor Relief Laws and general principles of equity; (d) the
execution, delivery, and performance by Borrower of this Amendment do not
require the consent of any Person that has not been obtained and do not and will
not constitute a violation of any Legal Requirements or material agreements to
which Borrower or any of its Subsidiaries is a party or by which Borrower or any
of its Subsidiaries is bound; (e) all representations and warranties in the Loan
Documents are true and correct in all material respects on and as of the date of
this Amendment, except to the extent that (i) any of them speak to a different
specific date, or (ii) the facts on which any of them were based have been
changed by transactions contemplated or permitted by the Credit Agreement; and
(f) after giving effect to this Amendment, no Potential Default or Event of
Default exists.
6. Conditions. This
Amendment shall not be effective unless and until:
(a) this
Amendment is executed by Borrower, Administrative Agent, and Required
Lenders;
(b) the
representations and warranties in this Amendment are true and correct in all
material respects on and as of the date of this Amendment, except to the extent
that (i) any of them speak to a different specific date, or (ii) the facts on
which any of them were based have been changed by transactions contemplated or
permitted by the Credit Agreement;
(c) after
giving effect to this Amendment, no Potential Default or Event of Default
exists;
Fourth Amendment to Centex Credit
Agreement
9
(d) Administrative
Agent receives a certificate executed by Responsible Officer of Borrower
certifying (i) the name of each of its officers who are authorized to sign
this Amendment and the other documents executed in connection herewith,
(ii) a true and correct copy of the resolutions of Borrower that authorize
the execution, delivery, and performance of this Amendment and the other
documents executed in connection herewith, and (iii) copies of the articles
or certificate of incorporation, bylaws, and other Constituent Documents of
Borrower, that the same have not been amended since the date specified therein,
and that the same are still in effect;
(e) Borrower
shall have deposited into one or more Liquidity Reserve Accounts an amount at
least equal to the Required Liquidity Reserve Deposit, if any, determined as of
the last day of the fiscal quarter ended December 31, 2008 and shall have
furnished to Administrative Agent a certificate confirming the same and
identifying the amounts on deposit in each Liquidity Reserve Account;
and
(f) Borrower
shall have paid Administrative Agent all fees required to be paid by Borrower
under the Loan Documents and the fee letter dated December 23, 2008, executed by
Borrower, Bank of America, N.A., and Banc of America Securities
LLC.
7. Continued
Effect. Except to the extent amended hereby or by any
documents executed in connection herewith, all terms, provisions, and conditions
of the Credit Agreement and the other Loan Documents, and all documents executed
in connection therewith, shall continue in full force and effect and shall
remain enforceable and binding in accordance with their respective
terms.
8. Miscellaneous. Unless
stated otherwise (a) the singular number includes the plural and vice versa and words of any
gender include each other gender, in each case, as appropriate, (b) headings and
captions may not be construed in interpreting provisions, (c) this Amendment
shall be construed -- and its performance enforced -- under Texas law, (d) if
any part of this Amendment is for any reason found to be unenforceable, all
other portions of it nevertheless remain enforceable, and (e) this Amendment may
be executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document.
9. Parties. This Amendment binds
and inures to each of the parties hereto and their respective successors and
permitted assigns.
10. RELEASE. BORROWER
HEREBY ACKNOWLEDGES THAT THE OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL WITHOUT
ANY RIGHT OF RESCISSION, SETOFF, COUNTERCLAIM, DEFENSE, OFFSET, CROSS-COMPLAINT,
CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE
OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE OBLIGATIONS OR TO
SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM ANY CREDIT
PARTY. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES EACH CREDIT PARTY AND ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASED
PARTIES”), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION,
DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH BORROWER MAY NOW OR HEREAFTER HAVE
AGAINST THE RELEASED PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR
Fourth Amendment to Centex Credit
Agreement
10
REGULATIONS,
OR OTHERWISE, AND ARISING FROM ANY “LOANS”, INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR
AND EXECUTION OF THIS AMENDMENT.
11. Entireties. The
Credit Agreement and the other Loan Documents, as amended by this Amendment,
represent the final agreement between the parties about the subject matter of
the Credit Agreement and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There
are no unwritten oral agreements between the parties.
[Remainder
of Page Intentionally Left Blank; Signature Pages to Follow.]
Fourth Amendment to Centex Credit
Agreement
11
EXECUTED
as of the first date written above.
|
CENTEX
CORPORATION,
|
||||
|
as
Borrower
|
||||
|
By:
|
/s/
Xxxx X. Xxxx
|
|||
|
Name:
|
Xxxx
X. Xxxx
|
|||
|
Title:
|
VP
& Treasurer
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
BANK
OF AMERICA, N.A.,
|
||||
|
as
Administrative Agent, an L/C/ Issuer, and as a Lender
|
||||
|
By:
|
/s/
Xxxx Xxxxxxx
|
|||
|
Name:
|
Xxxx
Xxxxxxx
|
|||
|
Title:
|
Senior
Vice President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
JPMORGAN
CHASE BANK, N.A.,
|
||||
|
as Co-Syndication Agent, as an
L/C issuer, and
as a Lender
|
||||
|
By:
|
/s/
Xxxxx XxXxxxxx
|
|||
|
Name:
|
Xxxxx
XxXxxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
THE
ROYAL BANK OF SCOTLAND PLC,
|
||||
|
as Co-Syndication Agent
and as a
Lender
|
||||
|
By:
|
/s/
Xxxxxxx XxXxxxx
|
|||
|
Name:
|
Xxxxxxx
XxXxxxx
|
|||
|
Title:
|
Senior
Vice President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
CITICORP
NORTH AMERICA, INC.,
|
||||
|
as Co-Documentation Agent
and as a
Lender
|
||||
|
By:
|
/s/
Xxxxx XxXxxxx
|
|||
|
Name:
|
Xxxxx
XxXxxxx
|
|||
|
Title:
|
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
BNP
PARIBAS,
|
||||
|
as Senior Managing Agent, as
an L/C/ Issuer, and as a
Lender
|
||||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
|||
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|||
|
Title:
|
Managing
Director
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
CALYON
NEW YORK BRANCH,
|
||||
|
as Senior Managing Agent
and as a
Lender
|
||||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxx
|
|||
|
Title:
|
Managing
Director
|
|||
|
By:
|
/s/
Xxxxx Xxxxx
|
|||
|
Name:
|
Xxxxx
Xxxxx
|
|||
|
Title:
|
Managing
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
SUNTRUST
BANK,
|
||||
|
as Managing Agent, as an L/C/
Issuer, and as a
Lender
|
||||
|
By:
|
/s/
Xxx Xxxx
|
|||
|
Name:
|
Xxx
Xxxx
|
|||
|
Title:
|
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
THE
BANK OF TOYKO-MITSUBISHI UFJ, LTD.,
|
||||
|
as Senior Managing Agent
and as a
Lender
|
||||
|
By:
|
/s/
Xxxxx Xxxx
|
|||
|
Name:
|
Xxxxx
Xxxx
|
|||
|
Title:
|
VP
& Manager
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
LLOYDS
TSB BANK PLC,
|
||||
|
as Managing Agent
and as a
Lender
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|||
|
Title:
|
Assistant
Vice President
|
|||
|
By:
|
/s/
Xxxxxxxx X. Xxxxx
|
|||
|
Name:
|
Xxxxxxxx
X. Xxxxx
|
|||
|
Title:
|
Vice
President & Manager
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
BARCLAYS
BANK PLC,
|
||||
|
as
Senior Managing Agent and a Lender
|
||||
|
By:
|
/s/
Xxxxxxxx X. Xxxx
|
|||
|
Name:
|
Xxxxxxxx
X. Xxxx
|
|||
|
Title:
|
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
PNC
BANK, NATIONAL ASSOCIATION,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|||
|
Name:
|
Xxxxxxx
X. Xxxx
|
|||
|
Title:
|
Senior
Vice President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
UBS
LOAN FINANCE LLC,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxx X. Xxxx
|
|||
|
Name:
|
Xxxx
X. Xxxx
|
|||
|
Title:
|
Associate
Director
|
|||
|
By:
|
/s/
Xxxx X. Xxxxx
|
|||
|
Name:
|
Xxxx
X. Xxxxx
|
|||
|
Title:
|
Associate
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
CITY NATIONAL BANK, a
national banking
|
||||
|
association, as a
Lender
|
||||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
THE
NORTHERN TRUST COMPANY,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
US
BANK NATIONAL ASSOCIATION,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|||
|
Name:
|
Xxxxxxx
X. Xxxx
|
|||
|
Title:
|
Banking
Officer
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
UNICREDIT, formerly
known as
|
||||
|
Banca
Di Roma – New York Branch,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxx Xxxxxxxx
|
|||
|
Name:
|
Xxxx
Xxxxxxxx
|
|||
|
Title:
|
First
Vice President
|
|||
|
By:
|
/s/
Xxxxxx Xxxx
|
|||
|
Name:
|
Xxxxxx
Xxxx
|
|||
|
Title:
|
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
COMPASS
BANK,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxxxxx Xxx
|
|||
|
Name:
|
Xxxxxxxxx
Xxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
XXXXXXX
XXXXX BANK USA,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxx Xxxxx
|
|||
|
Name:
|
Xxxxx
Xxxxx
|
|||
|
Title:
|
First
Vice President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
NATIXIS,
NEW YORK BRANCH (fka NATEXIS
|
||||
|
BANQUES
POPULAIRES,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxx-Xxxxx Dugény
|
|||
|
Name:
|
Xxxxx-Xxxxx
Dugény
|
|||
|
Title:
|
Managing
Director
|
|||
|
By:
|
/s/
Xxxxxxxx Xxxxxxx
|
|||
|
Name:
|
Xxxxxxxx
Xxxxxxx
|
|||
|
Title:
|
Associate
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
FIRST
HAWAIIAN BANK,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
FIFTH
THIRD BANK,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxx Xxxxxxxxxx
|
|||
|
Name:
|
Xxxx
Xxxxxxxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
SOCIETE
GENERALE,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
|||
|
Name:
|
Xxxxxxx
X. Xxxxxx
|
|||
|
Title:
|
Director
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
|
KEYBANK
NATIONAL ASSOCIATION,
|
||||
|
as
a Lender
|
||||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxx
|
|||
|
Title:
|
Vice
President
|
|||
Signature
Page to Fourth Amendment to Credit Agreement Between
Centex
Corporation,
Bank
of America, N.A., as Administrative Agent,
and
the Lenders Defined Therein
REVISED
SCHEDULE 2.1
COMMITMENTS
AND
APPLICABLE PERCENTAGES
|
Lender
|
Commitment
|
Applicable
Percentage
|
|
|
Bank
of America, N.A.
|
$55,155,875.24
|
11.031175062%
|
|
|
JPMorgan
Chase Bank, N.A.
|
$58,752,997.60
|
11.750599520%
|
|
|
Royal
Bank of Scotland plc
|
$44,364,508.40
|
8.872901679%
|
|
|
Citicorp
North America, Inc.
|
$44,364,508.40
|
8.872901679%
|
|
|
BNP
Paribas
|
$25,779,376.50
|
5.155875300%
|
|
|
Calyon
New York Branch
|
$29,376,498.80
|
5.875299760%
|
|
|
The
Bank of Tokyo-Mitsubishi, Ltd.
|
$29,376,498.80
|
5.875299760%
|
|
|
Barclays
Bank plc
|
$29,376,498.80
|
5.875299760%
|
|
|
Suntrust
Bank
|
$21,582,733.81
|
4.316546762%
|
|
|
Lloyds
TSB Bank, plc
|
$21,582,733.81
|
4.316546762%
|
|
|
Wachovia
Bank, National Association
|
$21,582,733.81
|
4.316546762%
|
|
|
Comerica
Bank
|
$17,985,611.51
|
3.597122302%
|
|
|
PNC
Bank, National Association
|
$11,990,407.68
|
2.398081535%
|
|
|
UBS
Loan Finance LLC
|
$11,990,407.68
|
2.398081535%
|
|
|
Xxxxxxx
Xxxxx Bank USA
|
$11,990,407.68
|
2.398081535%
|
|
|
City
National Bank
|
$7,194,244.61
|
1.438848921%
|
|
|
The
Northern Trust Company
|
$7,194,244.61
|
1.438848921%
|
|
|
US
Bank National Association
|
$7,194,244.61
|
1.438848921%
|
|
|
UniCredit
Banca di Roma
|
$5,995,203.84
|
1.199040767%
|
|
|
Compass
Bank
|
$7,194,244.61
|
1.438848921%
|
|
|
Fifth
Third Bank
|
$5,995,203.84
|
1.199040767%
|
|
|
Natexis
Banques Populaires
|
$8,393,285.37
|
1.678657074%
|
|
|
Societe
Generale
|
$5,995,203.84
|
1.199040767%
|
|
|
First
Hawaiian Bank
|
$3,597,122.31
|
0.719424461%
|
|
|
Keybank
National Association
|
$5,995,203.84
|
1.199040767%
|
|
|
Total
|
$500,000,000
|
100.000000000%
|
|
Revised Schedule 2.1
to Centex Fourth Amendment
36
