Exhibit 10.2
CENTEX CORPORATION
Issuer
and
U.S. BANK NATIONAL
ASSOCIATION
Trustee
INDENTURE SUPPLEMENT NO.
21
Dated as of September 1,
2009
to
INDENTURE
Dated as of October 1,
1998
SENIOR DEBT SECURITIES
INDENTURE SUPPLEMENT NO. 21 (“
Indenture Supplement ”), dated as of September 1,
2009, among CENTEX CORPORATION, a Nevada corporation (together with
its successors and assigns as provided in the Indenture referred to
below, the “ Company ”), the Guarantors (as
defined below) set forth on the signature page hereto, U.S. BANK
NATIONAL ASSOCIATION, as successor to The Bank of New York Mellon
Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., a
national banking association (formerly, The Chase Manhattan Bank,
successor to Chase Bank of Texas, National Association) (together
with its successors in trust thereunder as provided in the
Indenture referred to below, the “ Trustee ”),
and Pulte Homes, Inc., a Michigan corporation (“ Pulte
”).
PRELIMINARY STATEMENT
The Company and Trustee have entered
into an Indenture dated as of October 1, 1998, as amended and
supplemented from time to time (the “ Indenture
”), pursuant to which the Trustee acts as trustee for the
holders of the Company’s Senior Debt Securities (the “
Holders ”).
Section 11.01 of the Indenture
provides, among other things, that without the consent of the
Holders of any of the outstanding Senior Debt Securities, the
Company may, when authorized by resolutions of its Board of
Directors, and the Trustee may from time to time and at any time
enter into an indenture supplement to add additional provisions
relating to matters arising under the Indenture, provided that such
provisions do not adversely affect the interests of the
Holders.
The Company and the Trustee desire
to add certain Guarantors as parties to the Indenture to guaranty
the Guaranteed Obligations (as defined below).
Each Guarantor has duly authorized
the issuance of a guaranty of the Senior Debt Securities,
substantially in the form set forth in Section 3.07
below.
The Company acknowledges and agrees
that Pulte has assumed all of the Company’s obligations under
the Indenture and the Senior Debt Securities pursuant to that
certain Assignment and Assumption Agreement dated as of
August 18, 2009 (the “ Assignment and Assumption
Agreement ”).
ARTICLE ONE
Definitions
Except to the extent such terms are
otherwise defined in this Indenture Supplement or the context
clearly requires otherwise, all terms used in this Indenture
Supplement which are defined in the Indenture, either directly or
by reference therein, shall have the meanings assigned to them
therein.
As used in this Indenture
Supplement, the following terms shall have the following
meanings.
“Guarantors” mean those
Subsidiaries of the Company and of Pulte set forth on the signature
pages hereto (and, as applicable, any successor who replaces such
Guarantor pursuant to the applicable provisions of the Indenture
Supplement and, thereafter, such successor).
“Guaranteed Parties”
means all persons who are now or who hereafter become Holders and
the Trustee.
“Guaranty” means the
guaranty of each of the Guarantors set forth in Article Three
hereof and any additional guaranty of the Senior Debt Securities
executed pursuant to the terms of the Indenture.
“Subsidiary” means any
person of which at the time of determination the Company or of
Pulte, directly and/or indirectly through on or more Subsidiaries,
owns more than 50% of the voting power.
ARTICLE TWO
Assignment and Assumption
Section 2.01 Pulte hereby
acknowledges and agrees that, pursuant to the Assignment and
Assumption Agreement, it has assumed all of the obligations of the
Company under the Indenture and the Senior Debt Securities and, in
connection therewith, has agreed to discharge, and indemnify and
hold harmless the Company from, all of such obligations.
ARTICLE THREE
Guaranty
Section 3.01 Guaranty .
Subject to the provisions of this Article Three, each Guarantor
hereby irrevocably and unconditionally guarantees, jointly and
severally, on a senior basis to each Holder and the Trustee, on
behalf of the Holders, (i) the due and punctual payment of the
principal of and interest on each Senior Debt Security, when and as
the same shall become due and payable, whether at Stated Maturity,
by declaration of acceleration, or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if
any on the Senior Debt Securities, to the extent lawful, and the
due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the
terms of such Senior Debt Security and the Indenture and
(ii) in the case of any extension of time of payment or
renewal of any Senior Debt Securities or any of such other
obligations, that the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or
renewal, at Stated Maturity, by declaration of acceleration or
otherwise (the obligations in clauses (i) and (ii) hereof
being the “ Guaranteed Obligations ”). Without
limiting the generality of the foregoing, each Guarantor’s
liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Company to the
Holders or the Trustee under the Senior Debt Securities and the
Indenture but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Company. The Guarantors hereby
agree that their obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any such Senior
Debt Security or the Indenture, any failure to enforce
the
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provisions of any such Senior Debt Security or
the Indenture, any waiver, modification or indulgence granted to
the Company with respect thereto, by any Guaranteed Party or any
other circumstances which may otherwise constitute a legal or
equitable discharge or defense of the Company or a surety or
guarantor. The Guarantors hereby waive diligence, presentment,
filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the
Company, the benefit of discussion, protest, or notice with respect
to any such Senior Debt Security or the Indebtedness evidenced
thereby and all demands whatsoever (except as specified above), and
covenant that this Guaranty will not be discharged as to any such
Senior Debt Security except by payment in full of the Guaranteed
Obligations. Each Guarantor further agrees that, as between such
Guarantor and the Guaranteed Parties, (i) the maturity of the
Guaranteed Obligations may be accelerated as provided in Article 7
of the Indenture for the purposes of the Guaranty, notwithstanding
any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and
(ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 7 of the Indenture,
such Guaranteed Obligations (whether or not due and payable) shall
immediately become due and payable by each Guarantor for the
purposes of this Guaranty. In addition, without limiting the
foregoing provisions, upon the effectiveness of an acceleration
under Article 7 of the Indenture, the Trustee shall promptly make a
demand for this payment on the Senior Debt Securities under each
Guaranty provided for in this Article Three and not
discharged.
Each Guarantor hereby irrevocably
waives any claim or other rights that it may now or hereafter
acquire against the Company that may arise from the existence,
payment, performance or enforcement of such Guarantor’s
obligations under the Indenture, or any other document or
instrument including, without limitation, any right subrogation,
reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Guaranteed
Parties against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statue or common law,
including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or
in any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Guaranteed Obligations
shall not have been paid in full, such amount shall be deemed to
have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Guaranteed Parties, and shall be
promptly paid to the Trustee. Each Guarantor acknowledges that it
has received, and will continue to receive, direct and indirect
benefits from the issuance of the Senior Debt Securities and that
the waiver set forth in this paragraph is knowingly made in
contemplation of such benefits.
Section 3.02 Obligations of the
Guarantors Unconditional. Nothing contained in this Article
Three, elsewhere in the Indenture or in any Senior Debt Security or
in the Guaranty is intended to or shall impair, as between the
Guarantors and the Holders, the obligations of the Guarantors,
which obligations are independent of the obligations of the Company
under the Senior Debt Securities and the Indenture and are absolute
and unconditional, to pay the Holders the Guaranteed Obligations as
and when the same shall become due and payable in accordance with
the provisions of this Guaranty and the Indenture, nor shall
anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon
and Event of Default under the Indenture. Each payment to be made
by an
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Guarantor hereunder in respect of the Guaranteed
Obligations shall be payable in the currency or currencies in which
such Guaranteed Obligations are denominated.
Section 3.03 Execution of
Guaranty . To evidence its
