THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
CONFORMED COPY
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT
AGREEMENT
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”), dated as of
November 21, 2008, among PULTE HOMES, INC., a Michigan corporation (the “Borrower”), the Lenders
that are identified on the signature pages hereto, JPMORGAN CHASE BANK, N.A., as Administrative
Agent (the “Administrative Agent”) and BANK OF AMERICA, N.A., As Syndication Agent (“Syndication
Agent”).
RECITALS
WHEREAS, the Borrower, the Lenders identified on the signature pages hereto, certain other
Lenders and Administrative Agent are parties to that certain Third Amended and Restated Credit
Agreement dated as of June 20, 2007 (as amended by First Amendment to Third Amended and Restated
Credit Agreement dated November 21, 2007 and Second Amendment to Third Amended and Restated Credit
Agreement dated February 15, 2008 and as it may be further amended, renewed and restated from time
to time, the “Credit Agreement”) (all capitalized terms not defined herein shall have the meanings
given such terms in the Credit Agreement);
WHEREAS, the Borrower and the Lenders desire to amend the Credit Agreement for the purposes
hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the parties hereto hereby agree as
follows:
1. Aggregate Commitment. Effective as of the Third Amendment Effective Date (as
hereinafter defined), the Aggregate Commitment is hereby reduced to $1,200,000,000 and Schedule
1.1(a) of the Credit Agreement is amended and restated in its entirety and replaced by
Schedule 1.1(a) attached hereto.
2. Definitions. (a) Effective as of the Third Amendment Effective Date, the
following definitions in Section 1.1 of the Credit Agreement are hereby amended and restated in
their entirety as follows:
“Adjusted LIBOR Market Index Rate” means, with respect to an Index Rate
Swingline Loan, the sum of (i) the product of (a) the LIBOR Market Index Rate applicable to
such Index Rate Swingline Loan and (b) the Statutory Reserve Rate plus (ii) the Applicable
Percentage for Eurodollar Loans.
“Alternate Base Rate” means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day and, (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month
Interest Period on such day (or if such day is not a Business Day, the immediately preceding
Business Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate for
any day shall be based on the rate appearing on the Reuters BBA Libor Rates
Page 3750 (or on any successor or substitute page of such page) at approximately 11:00
a.m. London time on such day. Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate, respectively.
“Applicable
Percentage”
means, for
Eurodollar Loans,
ABR Loans, Index
Rate Swingline
Loans, Facility LC
Fees and Commitment
Fees, the
appropriate
applicable
percentages
corresponding to
the Debt to
Capitalization
Ratio, the Senior
Debt Rating and (if
applicable) the
Interest Coverage
Ratio of the
Borrower as
described
below:
| Level I | Level II | Level III | Level IV | Level V | ||||||||||||||||
Senior Debt Rating
|
Greater than or equal to BBB/ Xxx0 | XXX-/Xxx0 | XXx/ Xx0 | XX/Xx0 | Less than BB/Ba2 or no Senior Debt Rating | |||||||||||||||
Debt to
Capitalization
Ratio
|
Less than or equal to 30% | Greater than 30% but less than or equal to 40% | Greater than 40% but less than or equal to 45% | Greater than 45% but less than or equal to 50% | Greater than 50% | |||||||||||||||
Applicable
Percentage for
Eurodollar Loans,
Index Rate
Swingline Loans and
Facility LC Fee
Rate
|
1.50 | % | 1.75 | % | 2.00 | % | 2.25 | % | 2.75 | % | ||||||||||
Applicable
Percentage for ABR
Loans
|
0.50 | % | 0.75 | % | 1.00 | % | 1.25 | % | 1.75 | % | ||||||||||
Applicable
Percentage for
Commitment Fees
|
0.25 | % | 0.275 | % | 0.30 | % | 0.35 | % | 0.40 | % | ||||||||||
Notwithstanding the foregoing, but subject to the next succeeding paragraph, (1) if the
Senior Debt Rating is not at the same level as the Debt to Capitalization Ratio, but no more
than one level apart, then the pricing shall correspond to the level which causes pricing to
be lower; (2) if the Senior Debt Rating is more than one level different from the level
applicable to the Debt to Capitalization Ratio, then the pricing shall be one level lower
(i.e., lower pricing) than the higher of such two levels; and (3) if at any time either the
Xxxxx’x or the S&P rating of the Borrower’s senior unsecured debt is at Level II or better,
then pricing shall correspond to the level of such rating or, if both have issued ratings,
to the higher of the Xxxxx’x or S&P rating (i.e., lower pricing).
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Notwithstanding the foregoing, at any time at which the Interest Coverage Ratio is less than
2.0 to 1.0, the “Applicable Percentage for Eurodollar Loans, ABR Loans, Index Rate Swingline
Loans and LC Fees” set forth above shall be increased as follows:
| Less than 2.0 to | Less than 1.5 to | |||||||||||
| 1.0 but greater | 1.0 but greater | |||||||||||
| than or equal to | than or equal to | |||||||||||
| Interest Coverage Ratio | 1.5 to 1.0 | 1.0 to 1.0 | Less than 1.0 to 1.0 | |||||||||
Increase
in Applicable Percentage for
Eurodollar Loans, ABR
Loans, Index Rate
Swingline Loans and
Facility LC Fee Rate |
0.125 | % | 0.25 | % | 0.375 | % | ||||||
The Applicable Percentage shall be determined and adjusted, as necessary, on the date of any
change in the Senior Debt Rating of the Borrower or upon receipt of the officer’s
certificate required by Section 5.1(c) calculating the then Debt to Capitalization
Ratio and Interest Coverage Ratio.
“Coverage Test Failure Quarter” has the meaning set forth in Section
5.2(c)(ii).
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to a Loan
or the Loans comprising such Borrowing which bear(s) interest at a rate determined by
reference to the Adjusted LIBO Rate, except that an ABR Loan or Borrowing shall not be a
Eurodollar Loan or Borrowing even if the interest with respect thereto is determined by
reference to the Adjusted LIBO Rate.
“Interest Coverage Test” has the meaning set forth in Section
5.2(c)(i).
“Maximum Commitment Limit” means One Billion Seven Hundred Fifty Million
Dollars ($1,750,000,000).
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject, with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to
such reserve requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
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(b) Effective as of the Third Amendment Effective Date, clause (a) of the
definition of “Borrowing Base” is hereby amended and restated in its entirety as follows:
(a) 100% of the Credit Parties’ Unrestricted Cash (inclusive of funds in
Liquidity Reserve Accounts) in excess of $25,000,000, minus the amount by which the
sum of (i) the outstanding balance of all Loans and of all LC Disbursements that
have not been reimbursed by or on behalf of the Borrower exceeds (ii) the amount of
cash collateral deposited by Borrower pursuant to Section 2.21 and then held
by Administrative Agent, provided, however, that the amount determined under this
clause (a) shall not be less than zero (0);
(c) Effective as of the Third Amendment Effective Date, the defined terms “Assessment
Rate,” “Base CD Rate,” “Debt to Capitalization Covenant,” “Permitted Debt to Capitalization
Ratio” and “Three-Month Secondary CD Rate” are hereby deleted from the Credit Agreement.
(d) Effective as of the Third Amendment Effective Date, the following defined terms are
added to Section 1.1 of the Credit Agreement:
“Affected Lender” means any Lender that has (a) failed to fund any
portion of its Loans or participations in Facility LCs or Swingline Loans within
three (3) Business Days of the date required to be funded by it hereunder, (b)
notified the Borrower, Administrative Agent, an Issuing Bank, the Swingline Lender
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 the Administrative Agent, to confirm that it will comply with the terms
of this Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Facility LCs and Swingline Loans, (d) otherwise
failed to pay to the 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.
“Compliance Date” means, with respect to any fiscal quarter, the date
on which annual or quarterly financial statements for the period ending on the last
day of such fiscal quarter are required to be furnished with respect thereto as set
forth in Section 5.1(a) or (b), without regard to whether such
financial statements are actually furnished on such date.
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“Liquidity Reserve Account” means a segregated account maintained by
the Borrower with a Liquidity Reserve Bank, free and clear of any and all Liens
(other than Permitted Liens described in clauses (a) and (j) of the
definition of “Permitted Liens”), into which account deposits shall be made as, and
may be withdrawn only as, provided in Section 5.2(c).
“Liquidity Reserve Bank” means, so long as it is a Lender under this
Agreement, each of JPMorgan Chase Bank, N.A., and Bank of America, N.A. and (and
their respective successors) and any other Lender selected from time to time by the
Borrower (subject to the approval of the Administrative Agent, not to be
unreasonably withheld).
“Required Liquidity Reserve Deposit” means an amount, determined as of
the last day of a Coverage Test Failure Quarter for the period of four fiscal
quarters ending on such date, equal to two (2) times the amount by which (a)
interest incurred by the Credit Parties, whether such interest was expensed,
capitalized, paid, accrued or scheduled to be paid or accrued, exceeds (b) interest
income of the Credit Parties (such amount being the same amount provided for in
clause (b) of the definition of “Interest Coverage Ratio”).
“Third Amendment Effective Date” has the meaning provided in Paragraph
11 of the Third Amendment to the Agreement.
3. Interest on Swingline Loans. Effective as of the Third Amendment Effective Date,
Section 2.4(d) is hereby amended and restated in its entirety as follows:
(d) Interest on Swingline Loans. Subject to the provisions of Section
2.13, each Swingline Loan shall bear interest at a per annum rate equal to (i) the
Alternate Base Rate, plus the Applicable Percentage for ABR Loans or (ii) the Adjusted LIBOR
Market Index Rate, as applicable.
4. Cash Collateralization. Effective as of the Third Amendment Effective Date,
Section 2.6(j) is hereby amended and restated in its entirety as follows:
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposure representing greater than 66-2/3% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this subsection, or if required
pursuant to Section 2.9(d), 2.20(a) or 2.21, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders (the “Facility LC Collateral Account”), an amount
in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon (or, (i) in the case of a deposit required pursuant to Section 2.9(d) or
2.20(a), the amount
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required to be deposited thereunder or (ii) in the case of Section 2.21, the
amount of the Affected Lender’s LC Exposure); provided that the obligation to
deposit such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in Section
7.1(f). Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this Credit Agreement. The
Administrative Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over the Facility LC Collateral Account. Other than any interest
earned on the investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such
deposits shall not bear interest; provided, however, that as long as there exists no Event
of Default, Administrative Agent will not unreasonably withhold its approval of the
Borrower’s request to invest such deposits in a manner customary for similar accounts.
Interest or profits, if any, on such investments shall accumulate in such Facility LC
Collateral Account. Moneys in such Facility LC Collateral Account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
Reimbursement Obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 66-2/3% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Credit Agreement. If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured or waived.
If the Borrower is required to provide an amount of cash collateral pursuant to Section
2.9(d), such amount shall be returned to the Borrower from time to time to the extent
that such amount deposited shall exceed the amount by which (i) the aggregate Revolving
Credit Exposure exceeds (ii) the Aggregate Commitment. If the Borrower is required to
provide an amount of cash collateral pursuant to Section 2.20(a), such amount shall
be returned to the Borrower from time to time to the extent the amount deposited shall
exceed the LC Exposure. If the Borrower is required to provide an amount of cash collateral
pursuant to Section 2.21, such amount shall be returned to the Borrower from time to
time to the extent the amount deposited shall exceed the Affected Lender’s LC Exposure or if
such Lender ceases to be an Affected Lender.
5. Reduction of Commitments. Effective as of the Third Amendment Effective Date, the
following new paragraph (d) is hereby added at the end of Section 2.9 of the Credit
Agreement:
(d) In the event that the Tangible Net Worth of the Borrower determined as of the last
day of any fiscal quarter is less than $2,250,000,000, then, effective as of the fifth
(5th) day following the Compliance Date for such fiscal quarter, the Aggregate
Commitment shall be permanently reduced to $1,000,000,000 (subject to increase
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thereafter pursuant to the provisions of Section 2.5). Such reduction of the
Aggregate Commitment shall reduce the Commitments of the Lenders ratably. If the aggregate
Revolving Credit Exposure exceeds the Aggregate Commitment as so reduced, the Borrower
shall, on or before such Compliance Date, (i) repay outstanding Loans to the extent
necessary to reduce the aggregate Revolving Credit Exposure to the amount of the Aggregate
Commitment and (ii) if the aggregate Revolving Credit Exposure upon such repayment would
exceed the Aggregate Commitment, pay to the Administrative Agent an amount equal to the
amount by which the aggregate Revolving Credit Exposure (following the repayment under
clause (i) above) exceeds the Aggregate Commitment, which payment under this
clause (ii) shall be held in a Facility LC Collateral Account in accordance with and
subject to the terms of Section 2.6(j).
6. Interest on ABR Loans. Effective as of the Third Amendment Effective Date,
Section 2.13(a) is hereby amended and restated in its entirety as follows:
(a) The Revolving Loans comprising each ABR Borrowing and ABR Swingline Loans shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable
Percentage for ABR Loans.
7. Officer’s Certificate. Effective as of the Third Amendment Effective Date,
Section 5.1(c)(ii) of the Credit Agreement is hereby amended and restated in its entirety
as follows:
(ii) calculating the Interest Coverage Ratio of the Borrower and its Subsidiaries for the
twelve month period ending on the date of such financial statements (and, if the Interest Coverage
Test is not satisfied as of such date, such certificate shall (A) include a calculation of the
Required Liquidity Reserve Deposit, (B) demonstrate compliance with the terms of Section
5.2(c)(i) and (C) identify each Liquidity Reserve Account and the amount on deposit therein as
of the date of such certificate),
8. Financial Covenants. Effective as of the Third Amendment Effective Date,
Section 5.2 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
(a) Debt to Capitalization Ratio. As of the last day of each fiscal quarter of
the Borrower (beginning with the fiscal quarter ended December 31, 2008), the Debt to
Capitalization Ratio shall be less than or equal to 55%.
(b) Tangible Net Worth. As of the last day of each fiscal quarter of the
Borrower (beginning with the fiscal quarter ended December 31, 2008), Tangible Net Worth
shall be greater than or equal to the following: the sum of (i) $2,000,000,000, plus (ii)
50% of the cumulative Net Income of the Borrower and its Subsidiaries (without deduction for
losses and excluding the effect of any decrease in any Deferred Tax Valuation Allowance)
earned for each completed fiscal quarter subsequent to September 30, 2008 to the date of
determination, plus (iii) the amount of any reduction or reversal in Deferred Tax Valuation
Allowance for each completed fiscal quarter subsequent to September 30, 2008.
(c) Interest Coverage Ratio.
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(i) As of the last day of each fiscal quarter of the Borrower (commencing with the
fiscal quarter ended September 30, 2008), the Interest Coverage Ratio, determined as of the
last day of each such fiscal quarter, for the four-quarter period ending on such date, shall
be greater than or equal to 2.0 to 1.0 (the “Interest Coverage Test”) , subject to the
provisions of Section 5.2(c)(v) below.
(ii) If at the end of any fiscal quarter, the Borrower shall fail to satisfy
the Interest Coverage Test (each such fiscal quarter, a “Coverage Test Failure
Quarter”), the Borrower shall, not later than the Compliance Date for such quarter
(or, in the case of the fiscal quarter ended September 30, 2008, not later than the
Third Amendment Effective Date), deposit in one or more Liquidity Reserve Accounts
with one or more of the Liquidity Reserve Banks (as selected by the Borrower) an
amount equal to the Required Liquidity Reserve Deposit determined as of the last day
of such Coverage Test Failure Quarter, less the aggregate amount (if any)
held in all Liquidity Reserve Accounts immediately prior to such deposit. 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
5.2(c)(iii) or (iv). If any financial statements or compliance
certificate required to be furnished under Section 5.1 is not delivered or
the deposit required to be made in the Liquidity Reserve Accounts is not deposited
on or before the applicable Compliance Date, the aggregate amount required to be
deposited and maintained in the Liquidity Reserve Accounts shall be increased by two
percent (2%) over the amount that would otherwise have been required to be
maintained. If at any time it is determined that any financial statements or
compliance certificate furnished by the 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, the
Borrower shall promptly deliver to Administrative Agent corrected financial
statements and a corrected compliance certificate and promptly 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 5.1 with respect to such fiscal quarter evidencing the same and
provided no Default or Event of Default has occurred and is continuing, the Borrower
may at any time prior to the 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 the Borrower shall satisfy the Interest
Coverage Test as of the last day of any fiscal quarter for the four-quarter period
ending on such day and shall have furnished the financial statements and compliance
certificate required to be furnished under Section 5.1 with respect to such
fiscal quarter evidencing the same and provided no Default or
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Event of Default has occurred and is continuing, the 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 5.2(c)(ii) above.
(iv) If at any time any Liquidity Reserve Bank ceases to be a Lender under this
Agreement, all funds held by such Liquidity Reserve Bank in a Liquidity Reserve
Account shall be promptly transferred to another Liquidity Reserve Account held by
another Liquidity Reserve Bank (as designated by the Borrower or, in the absence of
such designation, as designated by the Administrative Agent).
(v) The 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 5.1. A failure to satisfy the Interest Coverage
Test alone shall not constitute a Default or an Event of Default unless the Required
Liquidity Reserve Deposit is not made and maintained as herein required.
The covenants set forth in Section 5.2 of the Credit Agreement as they existed immediately prior to
the Third Amendment Effective Date shall apply as of September 30, 2008.
9. Affected Lender. The following new Section 2.21 is added to the Credit
Agreement:
Section 2.21 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:
(a) subject to the provisions of Section 2.21(c), if any Swingline Loan
is outstanding or LC Exposure exists at the time a Lender is an Affected Lender, the
Borrower shall within one (1) Business Day following notice by the Administrative
Agent (i) prepay such Swingline Loan or deposit with the Swingline Lender cash
collateral in the amount of the Affected Lender’s Pro Rata Share of such Swingline
Loan and (ii) cash collateralize such Affected Lender’s LC Exposure in accordance
with Section 2.6(j) for so long as such LC Exposure is outstanding;
(b) subject to the provisions of Section 2.21(c), the Swingline Lender
shall not be required to fund any Swingline Loan and no Issuing Bank shall be
required to issue, amend or increase any Facility LC unless cash collateral has been
provided by the Borrower in accordance with Section 2.21(a); and
(c) notwithstanding the provisions of Sections 2.21(a) and (b),
if within one (1) Business Day following Administrative Agent’s notice under
Section 2.21(a) Borrower shall by notice to Administrative Agent advise
Administrative Agent that Borrower intends to effect the assignment by such Affected
Lender of all of its right, title and interest under this Agreement to a
9
Person that is not an Affected Lender (subject to and in accordance with the
provisions of Section 9.4), the date by which Borrower shall be required to
comply with the provisions of Sections 2.21(a) and (b) shall be
extended to the 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 repay Swingline Loans or cash collateralize Facility LCs pursuant to
any other provisions of this Agreement. An Affected Lender shall not be obligated to
assign its interest under this Agreement except to the extent that the provisions of
Section 2.19(b) require an assignment.
10. Assignments. The period at the end of Section 9.4(b)(i)(B) of the Credit Agreement
is hereby deleted and replaced by “; and” and the following new clause (C) is inserted thereafter:
(C) each Issuing Bank, provided that no consent of an Issuing Bank
shall be required for an assignment of any Revolving Commitment to an assignee that
is a Lender or an Affiliate of a Lender immediately prior to giving effect to such
assignment.
11. Conditions Precedent. This Amendment shall be effective as of the date (“Third
Amendment Effective Date”) upon which the following conditions are satisfied:
(a) The Administrative Agent shall have received from the Borrower and the Required Lenders a
counterpart of this Amendment signed on behalf of each such party.
(b) The Administrative Agent shall have received from the Guarantors the Consent and Agreement
substantially in the form attached hereto as Exhibit A.
(c) The Borrower shall have deposited into one or more Liquidity Reserve Accounts an amount at
least equal to the Required Liquidity Reserve Deposit determined as of the last day of the fiscal
quarter ended September 30, 2008 and shall have furnished to Administrative Agent a certificate
confirming the same and identifying the amounts on deposit in each Liquidity Reserve Account.
(d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization or
formation, existence and good standing of the Borrower, the authorization of this Amendment and any
other legal matters relating to the Borrower, the Agreement or this Amendment, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Third Amendment Effective Date, including reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the Third Amendment
Effective Date, and such notice shall be conclusive and binding.
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12. Representations and Warranties. The Borrower hereby represents and warrants that
as of the date hereof:
(a) The representations and warranties of the Borrower and the other Credit Parties in the
Credit Agreement and the other Credit Documents are true and correct in all material respects.
(b) There exists no Default or Event of Default.
13. Release of Lenders. The Borrower hereby releases and forever discharges the
Lenders, Administrative Agent, Issuing Banks and each of their past, present and future parent
corporations, subsidiaries, affiliates and divisions, and their past, present and future
shareholders, directors, officers, employees, attorneys, agents, investigators, and insurers, and
the heirs, administrators, executors, legal representatives, trustees, successors and assigns of
each of the foregoing, of and from any and all claims of any kind or character whatsoever, whether
now known or hereafter discovered, absolute or contingent, direct or indirect, arising out of any
act, event or occurrence of any sort whatsoever occurring on or prior to the date of this
Amendment; provided, however, that the Borrower does not hereby release the obligations of the
Lenders, Administrative Agent or any Issuing Bank under any of the Credit Documents (including this
Amendment) arising on or after the date of this Amendment. The Borrower shall forever refrain and
forebear from commencing or prosecuting any lawsuit or other proceeding against the Lenders,
Administrative Agent and Issuing Banks based upon, arising out of or connected with any of the
claims released by this Amendment.
14. Ratification. The Credit Agreement, as amended hereby, is hereby ratified and
remains in full force and effect.
15. Counterparts. This Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one agreement and any of the parties hereto may execute
this Amendment by signing any such counterpart.
16. Choice of Law. This Amendment and the other Credit Documents shall be construed
in accordance with the internal laws (but without regard to the conflict of laws provisions other
than Section 5-1401 of the New York General Obligations Law ) of the State of New York, but giving
effect to federal laws applicable to national banks.
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IN WITNESS WHEREOF, the Borrower and the undersigned Lenders have caused this Amendment to be
duly executed as of the date first above written.
| Borrower: PULTE HOMES, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Vice President and Treasurer | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| Lenders: JPMORGAN CHASE BANK, N.A., As Lender and Administrative Agent |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Executive Director | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| CITICORP NORTH AMERICA, INC. |
||||
| By: | /s/ Xxxxx XxXxxxx | |||
| Director | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Senior Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| BARCLAYS BANK PLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Director | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| BNP PARIBAS |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Vice-President | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Vice-President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| CALYON NEW YORK BRANCH |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Managing Director | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Managing Director | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| COMERICA BANK |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Vice President | ||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| THE ROYAL BANK OF SCOTLAND PLC |
||||
| By: | /s/ Xxxxxxx XxXxxxx | |||
| Senior Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| SUNTRUST BANK |
||||
| By: | /s/ W. Xxxx Xxxxxxx | |||
| Senior Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| UBS LOAN FINANCE LLC |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Associate Director | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Associate Director | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Director | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| XXXXXXX XXXXX BANK USA |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| First Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
||||
| By: | /s/ Xxxxxx Xxxxxxxxxxxx | |||
| Authorized Signatory | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| GUARANTY BANK |
||||
| By: | /s/ Xxx Xxxxxxx | |||
| Senior Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| LLOYDS TSB BANK PLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Vice President & Manager | ||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Assistant Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| MIZUHO CORPORATE BANK, LTD. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Authorized Signatory | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| PNC BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| NATIXIS (f/k/a NATEXIS BANQUES POPULAIRES) |
||||
| By: | /s/ Xxxxx-Xxxxx Dugeny | |||
| Managing Director | ||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Associate | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
JPMorgan Chase Bank, N.A. is the purchaser of the loan referenced above from the Federal Deposit
Insurance Corporation acting as receiver for Washington Mutual Bank, formerly known as Washington
Mutual Bank, F.A. and is the successor owner of the loan.
| JPMorgan Chase Bank, N.A. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| First Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| FIFTH THIRD BANK, a Michigan Banking Corporation |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Assistant Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| REGIONS BANK |
||||
| By: | /s/ Xxxxxx XxXxxxxxx | |||
| Assistant Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| CITY NATIONAL BANK |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| COMPASS BANK, an Alabama banking corporation |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| TD BANK, NA |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| BANK OF HAWAII, a Hawaii corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| CALIFORNIA BANK & TRUST, a California Banking
Corporation |
||||
| By: | /s/ Xxxxxxxxx Xxxxx | |||
| Vice President | ||||
SIGNATURE PAGE TO THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.
| MALAYAN BANKING BERHAD, NEW YORK BRANCH |
||||
| By: | /s/ Fauzi Zulkifli | |||
| General Manager | ||||
SCHEDULE 1.1(a)
| Lender | Commitment | |||
JPMorgan Chase Bank, N.A. |
$ | 64,516,129.00 | ||
Bank of America, N.A. |
112,903,225.81 | |||
Barclays Bank PLC |
64,516,129.04 | |||
BNP Paribas |
64,516,129.04 | |||
Calyon New York Branch |
64,516,129.04 | |||
Citicorp North America, Inc. |
64,516,129.04 | |||
Comerica Bank |
64,516,129.04 | |||
Deutsche Bank Trust Company Americas |
64,516,129.04 | |||
The Royal Bank of Scotland PLC |
64,516,129.04 | |||
SunTrust Bank |
64,516,129.04 | |||
UBS Loan Finance LLC |
64,516,129.04 | |||
Wachovia Bank, National Association |
64,516,129.04 | |||
Xxxxxxx Xxxxx Bank USA |
48,387,096.77 | |||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
35,483,870.97 | |||
Guaranty Bank |
32,258,064.52 | |||
Lloyds TSB Bank PLC |
32,258,064.52 | |||
Mizuho Corporate Bank, Ltd. |
32,258,064.52 | |||
PNC Bank, National Association |
32,258,064.52 | |||
Natixis |
25,806,451.61 | |||
JPMorgan Chase Bank, N.A. * |
25,806,451.61 | |||
Fifth Third Bank, a Michigan Banking Corporation |
22,580,645.16 | |||
Regions Bank |
22,580,645.16 | |||
City National Bank |
16,129,032.26 | |||
Compass Bank |
16,129,032.26 | |||
TD Bank, NA |
12,903,225.81 | |||
Bank of Hawaii, a Hawaii corporation |
9,677,419.36 | |||
California Bank & Trust, a California Banking Corporation |
9,677,419.36 | |||
Malayan Banking Berhad, New York Branch |
3,225,806.45 | |||
TOTAL |
$ | 1,200,000,000 | ||
| * | JPMorgan Chase Bank, N.A. is the purchaser from the Federal Deposit Insurance Corporation as receiver for Washington Mutual Bank, formerly known as Washington Mutual Bank, F.A., of the Commitment formerly owned by Washington Mutual Bank |
Exhibit A
CONSENT AND AGREEMENT OF GUARANTORS
CONSENT AND AGREEMENT OF GUARANTORS
THIS CONSENT AND AGREEMENT OF GUARANTORS (“Consent”) is executed and delivered as of November
___, 2008, by the undersigned (the “Guarantors”), in favor of the “Lenders” under that certain Third
Amended and Restated Credit Agreement dated as of June 20, 2007, among Pulte Homes, Inc., the
Lenders from time to time parties thereto and JPMorgan Chase Bank, N.A., in its capacity as
Administrative Agent. Such Third Amended and Restated Credit Agreement, as it has been and may be
amended, modified or supplemented from time to time, is hereinafter referred to as the “Credit
Agreement.” Unless otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Guarantors have executed and delivered a Guaranty dated June 20, 2007 in favor of
the Lenders under the Credit Agreement (the “Guaranty”); and
WHEREAS, the Borrower, the Administrative Agent and the Required Lenders have entered into
that certain Third Amendment to Third Amended and Restated Credit Agreement of even date herewith
amending the Credit Agreement (the “Amendment”); and
WHEREAS, it is a condition to the Amendment that the Guarantors shall have executed this
Consent;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantors hereby consent to the Amendment and agree that the Guaranty
continues in full force and effect with respect to the undersigned Guarantors.
The Guarantors hereby release and forever discharge the Lenders, Administrative Agent, Issuing
Banks and each of their past, present and future parent corporations, subsidiaries, affiliates and
divisions, and their past, present and future shareholders, directors, officers, employees,
attorneys, agents, investigators, and insurers, and the heirs, administrators, executors, legal
representatives, trustees, successors and assigns of each of the foregoing, of and from any and all
claims of any kind or character whatsoever, whether now known or hereafter discovered, absolute or
contingent, direct or indirect, arising out of any act, event or occurrence of any sort whatsoever
occurring on or prior to the date of the Amendment; provided, however, that the Guarantors do not
hereby release the obligations of the Lenders, Administrative Agent or any Issuing Bank under any
of the Credit Documents (including the Amendment) arising on or after the date of the Amendment.
The Guarantors shall forever refrain and forebear from commencing or prosecuting any lawsuit or
other proceeding against the Lenders, Administrative Agent and Issuing Banks based upon, arising
out of or connected with any of the claims released by this Consent.
IN WITNESS WHEREOF, this Consent has been duly executed by the Guarantors as of the day and
year first set forth above.
[Guarantors]
