EXHIBIT 10.12
FIRST AMENDMENT OF CREDIT AGREEMENT
THIS FIRST AMENDMENT OF CREDIT AGREEMENT (this "AMENDMENT") is entered
into to be effective as of May 9, 2002, between CENTEX CORPORATION, a Nevada
corporation ("BORROWER"), each of the Lenders (as defined in the Credit
Agreement defined below) which is a signatory to this Amendment, and BANK OF
AMERICA, N.A., a national banking association ("BANK OF AMERICA"), for itself
and as Administrative Agent for the Lenders (in such capacity, together with its
successors and assigns, "ADMINISTRATIVE AGENT").
RECITALS
A. Borrower, Administrative Agent, and Lenders are parties to that
certain Credit Agreement dated as of August 9, 2000 (as renewed, extended,
modified, and amended from time to time, the "CREDIT AGREEMENT").
B. Borrower, Administrative Agent, and the Lenders which are
signatories to this Amendment 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. TERMS AND REFERENCES. Unless otherwise stated in this document (a)
terms defined in the Credit Agreement have the same meanings when used in this
Amendment and (b) references to "SECTIONS," "SCHEDULES," and "EXHIBITS" are to
the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENTS. The Credit Agreement is hereby amended as follows:
(a) SECTION 1.1 is hereby amended to add the following definition of
"EXCESS CASH":
EXCESS CASH means, for the Restricted Companies as of any date
of determination thereof, (a) cash, plus (b) time deposits with, and
certificates of deposit, bank notes and bankers' acceptances issued by,
any Lender or any domestic bank, savings bank or savings and loan
association having capital, surplus and undivided profits aggregating
at least $1,000,000,000, plus (c) investments in direct obligations of
the United States of America or any agency, government-sponsored
enterprise or instrumentality thereof, or obligations fully guaranteed
by the United States of America or any agency, government-sponsored
enterprise or instrumentality thereof, provided that such obligations
mature within one (1) year of the date of acquisition thereof, plus (d)
investments in commercial paper rated (at the time of purchase) in one
of the two highest short-term rating categories by two (2) or more
national credit rating agencies and maturing not more than two hundred
and seventy (270) days from the date of creation thereof, plus (e)
repurchase agreements involving any of the obligations described in
CLAUSES (B), (C) and (D) above so long as the other party to the
repurchase agreement has short-term unsecured debt obligations or
short-term deposits rated (at the time of purchase) in the highest
grade by two (2) or more national credit rating
FIRST AMENDMENT OF CREDIT AGREEMENT
agencies, plus (f) investments in direct obligations of any
money-market fund or other similar investment company that is rated
"AAAm" or "AAAm-G" by S & P and "Aaa" by Moody's or whose investments
consist, directly or indirectly, of short-term money market
securities, which may include obligations described in the foregoing
clauses of this definition, minus (g) $15,000,000; provided that in no
event shall Excess Cash be less than zero.
(b) SECTION 1.1 is hereby amended to delete the definitions of
"COMMITMENT," "CONSOLIDATED DEBT," "LENDERS," "LEVERAGE RATIO," "NOTES," "PRO
RATA," "PRO RATA PART," in their entirety and replace such definitions with the
following:
COMMITMENT means, for any Lender at any date of determination,
the amount stated beside each Lender's name as set forth on SCHEDULE
2.1 or on the most-recently amended SCHEDULE 2.1, if any, prepared by
Administrative Agent pursuant to SECTION 2.3 or SECTION 13.13 (which
amount is subject to increase, reduction, or cancellation in accordance
with this Agreement).
CONSOLIDATED DEBT means, as of any date of determination, (a)
all Debt of the Restricted Companies, on a consolidated basis, minus
(b) Excess Cash not subject to any Liens or other restrictions not
inherent in the particular investment or obligation; 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.
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 the admission of a
Subsequent Lender in accordance with SECTION 2.3(B) and assignments
made in accordance with SECTION 13.13(B)), and subject to the terms and
conditions of this Agreement, their respective successors and assigns.
LEVERAGE RATIO means, as of any date of determination thereof,
the ratio of (a) Consolidated Debt outstanding on such date minus
Subordinated Debt 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 determined in accordance with GAAP.
NOTES means the Revolving Notes and the Swing Line Note, and
NOTE means any one of the Notes.
PRO RATA or PRO RATA PART, for each Lender, means (a) for
purposes of any commitment to fund Borrowings (or to purchase
participations pursuant to SECTION 2.2) in respect of this Agreement,
respectively, the percentage stated opposite such Lender's name as set
forth on SCHEDULE 2.1 or on the most recently amended SCHEDULE 2.1, if
any, prepared by Administrative Agent pursuant to SECTION 2.3 or
SECTION 13.13, (b) for purposes of sharing any amount or fee payable to
any Lender, the proportion (whether held directly or through a
participation therein pursuant to SECTION 2.2 and determined after
giving effect thereto) which the portion of the Principal Debt owed to
such Lender bears to the Principal Debt owed to all Lenders at the time
in question, and (c) for all other purposes, the proportion which the
portion of the Principal Debt owed to such Lender bears to the
FIRST AMENDMENT OF CREDIT AGREEMENT 2
Principal Debt owed to all Lenders at the time in question, or if no
Principal Debt is outstanding, then the proportion that the aggregate
of such Lender's Commitment bears to the Total Commitment then in
effect.
(c) SECTION 1.1 is hereby amended to delete the definitions of "TRANCHE
B COMMITMENT," "TRANCHE B LENDERS," "TRANCHE B NOTE," "TRANCHE B PRINCIPAL
DEBT," and "TRANCHE B TERMINATION DATE" in their entirety.
(d) SECTIONS 2.1(c), (d), and (e) are hereby deleted in their entirety
and replaced with the following:
(c) the Total Principal Debt may not exceed the Total Commitment; and
(d) no Lender's Principal Debt (other than any Swing Line Principal
Debt) plus such Lender's Pro Rata Part of the Swing Line Principal Debt may
exceed such Lender's Commitment.
(e) SECTION 2.3(b)(I) is hereby amended to delete the amount
"$185,000,000" and replace such amount with "$150,000,000."
(f) SECTION 2.3(c) is hereby deleted in its entirety.
(g) SECTION 2.4 is hereby amended to delete the first sentence thereof
in its entirety and replace such sentence with the following:
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 Unused Commitment; provided that: (a) each partial termination
shall be in the amount of $5,000,000 or a greater integral multiple of
$1,000,000; (b) the amount of the Total Commitment may not be reduced
below the Total Principal Debt; and (c) each reduction shall be
allocated Pro Rata among Lenders in accordance with their respective
Pro Rata Parts.
(h) SECTION 2.6 is hereby deleted in its entirety.
(i) SECTION 3.1(a) is hereby deleted in its entirety and replaced with
the following:
(a) NOTES. The Principal Debt (other than the Swing Line
Principal Debt) owed to each Lender shall be evidenced by the Revolving
Notes, one payable to each Lender in the maximum stated principal
amount of its Commitment. The Swing Line Principal Debt shall be
evidenced by the Swing Line Note.
(j) SECTION 3.2(b)(I) is hereby amended to delete the last sentence
thereof.
FIRST AMENDMENT OF CREDIT AGREEMENT 3
(k) SECTION 3.12(b) is hereby amended to delete the phrase "(other than
mandatory payments due in connection with the Tranche B Termination Date or
payments to the Tranche B Lenders in connection with the admission of a
Subsequent Lender or an Increasing Lender)" in its entirety.
(l) SECTION 9.11(a) is hereby deleted in its entirety and replaced with
the following:
(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 fifty-five percent (55%).
(m) EXHIBIT A-3 is hereby deleted in its entirety.
(n) SCHEDULE 2.1 is hereby deleted in its entirety and replaced with
SCHEDULE 2.1 attached hereto.
(o) SCHEDULE 2.1(B) is hereby deleted in its entirety.
3. AMENDMENT OF 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. CONDITIONS PRECEDENT. Notwithstanding any contrary provision herein,
the amendments described in PARAGRAPH 2 above are not effective unless and
until:
(a) the representations and warranties in this Amendment are true and
correct;
(b) as of the date of this Amendment, both before and after giving
effect to this Amendment, no Potential Default or Event of Default exists; and
(c) Administrative Agent shall have received counterparts of this
Amendment executed by Borrower and Required Lenders on the signature page or
pages of this Amendment.
5. RATIFICATIONS. Borrower (a) ratifies and confirms all provisions of
the Loan Documents as amended by this Amendment, (b) ratifies and confirms that
all guaranties, assurances, and liens granted, conveyed, or assigned to any
Credit Party under the Loan Documents are not released, reduced, or otherwise
adversely affected by this Amendment and continue to guarantee, assure, and
secure 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 request in order to create, perfect, preserve, and
protect those guaranties, assurances, and liens.
FIRST AMENDMENT OF CREDIT AGREEMENT 4
6. REPRESENTATIONS. Borrower represents and warrants to the Credit
Parties 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 by
Borrower of this Amendment; (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
other Person and do not and will not constitute a violation of any Legal
Requirements, order of any Governmental Authority, or material agreements to
which Borrower is a party or by which Borrower 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) both before and after giving effect to this
Amendment, no Potential Default or Event of Default exists.
7. 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.
8. 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]
FIRST AMENDMENT OF CREDIT AGREEMENT 5
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
EXECUTED as of the first date written above.
CENTEX CORPORATION,
as Borrower
By: /s/ Vicki A. Roberts
---------------------------
Vicki A. Roberts
Vice President
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
BANK OF AMERICA, N.A., as Administrative
Agent and as a Lender
By: /s/ Mark Lariviere
------------------------------------
Mark Lariviere
Managing Director
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Joe M. Mearns
--------------------------------
Name: Joe M. Mearns
--------------------------
Title: V.P. & Manager
--------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
BANK ONE, NA
By: /s/ Mark Kramer
--------------------------
Name: Mark Kramer
-------------------
Title: Director
-------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank)
By: /s/ Allen K. King
--------------------------------------
Name: Allen K. King
--------------------------------
Title: Vice President
JPMorgan Chase Bank
--------------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
CITIBANK, N.A.
By: /s/ Michael Chlopak
------------------------------
Name: Michael Chlopak
------------------------
Title: V. P.
------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
COMERICA BANK
By: /s/ Casey L. Ostrander
--------------------------------
Name: Casey L. Ostrander
---------------------------
Title: Assistant Vice President
-------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Attila Koc
-----------------------------------
Name: Attila Koc
------------------------------
Title: Senior Vice President
-----------------------------
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
THE FROST NATIONAL BANK
By: /s/ Stephen S. Martin
-------------------------------
Name: Stephen S. Martin
-------------------------
Title: Assistant Vice President
-------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ Maria Amaral-LeBlanc
-------------------------------
Name: Maria Amaral-LeBlanc
-----------------------
Title: Vice President
-----------------------
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By: /s/ Maria Amaral-LeBlanc
-------------------------------
Name: Maria Amaral-LeBlanc
-----------------------
Title: Vice President
-----------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Douglas G. Paul
----------------------------------
Name: Douglas G. Paul
----------------------------
Title: Senior Vice President
----------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
UBS AG, STAMFORD BRANCH
By: /s/ Patricia O'Kickl
-----------------------------
Name: Patricia O'Kickl
-----------------------
Title: Director, Banking
Products Services
-----------------------
By: /s/ Thomas R. Salzano
-----------------------------
Name: Thomas R. Salzano
-----------------------
Title: Director, Banking
Products Services, US
-----------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SIGNATURE PAGE TO THAT CERTAIN FIRST AMENDMENT OF CREDIT AGREEMENT
AMONG CENTEX CORPORATION, AS BORROWER,
EACH LENDER THAT IS A PARTY THERETO,
AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT AND AS A LENDER
CREDIT SUISSE FIRST BOSTON
By: /s/ Bill O'Daly /s/ Kristin Lepri
----------------------------------------
Name: Bill O'Daly Kristin Lepri
---------------------------------
Title: Director Associate
---------------------------------
SIGNATURE PAGE TO CENTEX FIRST AMENDMENT
SCHEDULE 2.1
LENDERS AND COMMITMENTS; ADDRESSES FOR NOTICE
<Table>
<Caption>
NAME AND ADDRESS OF LENDERS COMMITMENT PRO RATA PART
--------------------------- ---------- -------------
BANK OF AMERICA, N.A. $115,000,000.00 19.16667%
Attn: Mark Lariviere, Managing Director
IL1-231-12-18
231 South LaSalle Street, 12th Floor
Chicago, IL 60697
(312) 828-2513
THE BANK OF TOKYO - MITSUBISHI, $ 20,000,000.00 3.33333%
LTD. HOUSTON AGENCY
Attn: John M. Mearns,
Vice President & Manager
2001 Ross Avenue
Suite 3150, LB 118
Dallas, TX 75201
(214) 954-1200 x 104
BANK ONE, NA $ 50,000,000.00 8.33333%
Attn: Mark Kramer, Managing Director
One Bank One Plaza
Suite 0315
Chicago, IL 60670
(312) 336-2212
JP MORGAN CHASE BANK (formerly known as The Chase Manhattan Bank) $ 75,000,000.00 12.50000%
Attn: Allen King, Vice President
2200 Ross Avenue, 3rd Floor
Dallas, TX 75201
(214) 965-2705
CITIBANK N.A. $ 75,000,000.00 12.50000%
Attn: Michael Chlopak
Salomon Smith Barney
390 Greenwich Street, 1st Floor
New York, NY 10013
(212) 723-5899
</Table>
SCHEDULE 2.1
<Table>
<Caption>
NAME AND ADDRESS OF LENDERS COMMITMENT PRO RATA PART
--------------------------- ---------- -------------
COMERICA BANK $ 35,000,000.00 5.83333%
Attn: Casey L. Ostrander,
Account Representative
500 Woodward Avenue
MC 3256
Detroit, MI 48226
(313) 222-5286
CREDIT LYONNAIS NEW YORK BRANCH $ 50,000,000.00 8.33333%
Attn: Robert Smith
2200 Ross Avenue
Suite 4400 West
Dallas, TX 75201
(214) 220-2311
CREDIT SUISSE FIRST BOSTON $ 35,000,000.00 5.83333%
Attn: James Moran
11 Madison Avenue, 10th Floor
New York, NY 10010
(212) 325-9176
THE FROST NATIONAL BANK $ 10,000,000.00 1.66667%
Attn: Stephen S. Martin,
Assistant Vice President
2727 N. Harwood, 10th Floor
Dallas, TX 75201
(214) 515-4915
NATIONAL WESTMINSTER BANK PLC $ 50,000,000.00 8.33333%
Attn: Maria Amaral-LeBlanc,
Vice President
65 East 55th Street
New York, NY 10022
(212) 401-1326
PNC BANK, NATIONAL ASSOCIATION $ 35,000,000.00 5.83333%
Attn: Douglas G. Paul, Senior Vice President
Two Tower Center, 18th Floor
East Brunswick, New Jersey 08816
(732) 220-3566
SUNTRUST BANK $ 35,000,000.00 5.83333%
Attn: Don Gaudette, Director
MC 1931
303 Peachtree Street, NE
Atlanta, GA 30308
(404) 658-4925
UBS AG, STAMFORD BRANCH $ 15,000,000.00 2.50000%
Attn: Paula Mueller, Director
299 Park Avenue
New York, New York 10171
(212) 821-3475
--------------- ---------
Totals $600,000,000.00 100.00000%
=============== =========
</Table>
SCHEDULE 2.1