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EXHIBIT 4.19
FIRST AMENDMENT AND WAIVER
THIS FIRST AMENDMENT AND WAIVER (this "Amendment") dated as of February
16, 2001, is to that certain Credit Agreement dated as of August 31, 2000 (as
amended, modified, supplemented or restated from time to time, the "Credit
Agreement") among PULTE CORPORATION, a Michigan corporation (the "Borrower"),
each of the Material Subsidiaries of the Borrower (the "Guarantors"; together
with the Borrower, individually a "Credit Party" and collectively the "Credit
Parties"), the Lenders from time to time party thereto (the "Lenders"), BANK OF
AMERICA, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent"), BANK ONE, NA, as Syndication Agent for the Lenders and COMERICA BANK,
as Co-Agent for the Lenders. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Borrower may from time to time issue bonds pursuant to
bond indentures that contain negative pledge provisions;
WHEREAS, the Borrower has requested that the Lenders waive any possible
default which may occur or may have occurred solely in respect of the existence
of the Borrower's current bond indentures;
WHEREAS, the Borrower and the Lenders have agreed to clarify Section
8.12 of the Credit Agreement to more clearly provide that Borrower's current and
future bond indentures and equivalent instruments do not and will not violate
the prohibition on negative pledges set forth in Section 8.12 of the Credit
Agreement;
WHEREAS, the waiver and the amendment requested requires the consent of
the Required Lenders; and
WHEREAS, the Required Lenders have agreed to the waiver and the
amendment on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
REAFFIRMATION/WAIVER
1.1 Reaffirmation of Existing Debt. The Credit Parties acknowledge and
confirm that (a) the Borrower's obligation to repay the outstanding principal
amount of the Loans is unconditional and, as of the date hereof, not subject to
any offsets, defenses or counterclaims, (b) the Administrative Agent and the
Lenders have performed fully all of their respective obligations under the
Credit Agreement and the other Credit Documents, and (c) by entering into this
Amendment, the Lenders party hereto do not waive (except for the waiver of the
possible default specified below) or release any term or condition of the Credit
Agreement or any of the other
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Credit Documents or any of their rights or remedies under such Credit Documents
or applicable law or any of the obligations of any Credit Party thereunder.
1.2 Waiver of Possible Default. Subject to the other terms and
conditions of this Amendment and so long as (a) no Default or Event of Default
shall have occurred under the Credit Agreement or under any other Credit
Document and (b) no other Person shall have commenced any suit or other legal
proceeding against any Credit Party or any of its assets to enforce any
obligations for Funded Debt of such Credit Party to such Person, the Lenders
agree to waive any possible Default or Event of Default which may have occurred
solely in respect of the existence of the Borrower's current bond indenture.
Except for the specific waiver set forth above, nothing contained herein shall
be deemed to constitute a waiver of any rights or remedies the Administrative
Agent or any Lender may have under the Credit Agreement or any other Credit
Document or under applicable law. The specific waiver set forth herein is a
one-time waiver and shall be effective only in this specific instance, and shall
not obligate the Lenders to waive any other Default or Event of Default, now
existing or hereafter arising.
SECTION 2
AMENDMENT
2.1 Amendment to Section 8.12. Section 8.12 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
8.12 NO OTHER NEGATIVE PLEDGES.
No Credit Party will enter into, assume, become subject to or
permit to exist any agreement prohibiting or otherwise restricting the
creation or assumption of any Lien upon its properties or assets,
whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other
obligation, except as set forth in (a) the Credit Documents and (b) any
bond indenture or equivalent instrument (or any amendment or supplement
thereto) to which such Credit Party is now or hereafter a party.
SECTION 3
MISCELLANEOUS
3.1 Ratification. The term "Credit Agreement" as used in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended by this
Amendment. Except as herein specifically agreed, the Credit Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
3.2 Representations. Each of the Credit Parties and the Lenders party
hereto represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
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(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or Governmental
Authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
3.3 No Conflicts. Neither the execution and delivery of this Amendment,
nor the consummation of the transactions contemplated herein, nor performance of
and compliance with the terms and provisions hereof by each Credit Party will
(a) violate, contravene or conflict with any provision of its articles or
certificate of incorporation, bylaws or other organizational or governing
document, (b) violate, contravene or conflict with any law, rule, regulation,
order, writ, judgment, injunction, decree or permit applicable to it, (c)
violate, contravene or conflict with contractual provisions of, or cause an
event of default under, any material indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party or by
which it may be bound or (d) result in or require the creation of any Lien upon
or with respect to its properties.
3.4 No Default. The Credit Parties represent and warrant to the Lenders
that (a) the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement are true and correct as of the date hereof and
(b) no event has occurred and is continuing which constitutes a Default or an
Event of Default (other than the possible default described above).
3.5 General Release. In consideration of the Required Lenders entering
into this Amendment, the Credit Parties hereby release the Administrative Agent,
the Lenders and their respective officers, employees, representatives, agents,
counsel and directors from any and all actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in
equity, now known or unknown, suspected or unsuspected to the extent that any of
the foregoing arises from any action or failure to act under any Credit Document
on or prior to the date hereof.
3.6 Credit Document. This Amendment shall constitute a Credit Document
under the terms of the Credit Agreement.
3.7 Condition Precedent. This Amendment shall be effective upon receipt
by the Administrative Agent of a counterpart signature (via facsimile or
otherwise) to this Amendment from each of the Credit Parties and the Required
Lenders.
3.8 Counterparts; Telecopy. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of an executed counterpart by telecopy shall be effective as an
original and shall constitute a representation that an original will be
delivered.
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3.9 Expenses of Administrative Agent. The Credit Parties agree to pay
all reasonable costs and expenses of the Administrative Agent in connection with
the preparation, execution and delivery of this Amendment, including without
limitation the reasonable fees and expenses of Xxxxx & Xxx Xxxxx PLLC, special
counsel to the Administrative Agent.
3.10 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date and year
first above written.
BORROWER:
PULTE CORPORATION,
a Michigan corporation
By:
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Name:
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Title:
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GUARANTORS:
ABACOA HOMES, INC.,
a Florida corporation
DIVOSTA AND COMPANY, INC.,
a Florida corporation
DIVOSTA BUILDING CORPORATION,
a Florida corporation
DIVOSTA HOMES, INC.,
a Florida corporation
FLORIDA BUILDING PRODUCTS, INC.,
a Florida corporation
FLORIDA CLUB HOMES, INC.,
a Florida corporation
HAMMOCK RESERVE DEVELOPMENT
COMPANY, a Florida corporation
HOMESITE SOLUTIONS CORPORATION,
a Michigan corporation
ISLAND WALK DEVELOPMENT COMPANY,
a Florida corporation
PB VENTURE L.L.C.,
a Michigan limited liability company
XX XX, INC.,
a Nevada corporation
PULTE DEVELOPMENT CORPORATION,
a Michigan corporation
PULTE DIVERSIFIED COMPANIES, INC.,
a Michigan corporation
PULTE FINANCIAL COMPANIES, INC.,
a Michigan corporation
PULTE HOME CORPORATION,
a Michigan corporation
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PULTE HOME CORPORATION OF NEW ENGLAND,
a Michigan corporation
PULTE HOME CORPORATION OF THE
DELAWARE VALLEY, a Michigan corporation
PULTE HOMES OF GREATER KANSAS CITY,
INC., a Michigan corporation
PULTE HOMES OF MICHIGAN
CORPORATION, a Michigan corporation
PULTE HOMES OF MINNESOTA
CORPORATION, a Minnesota corporation
PULTE HOMES OF OHIO CORPORATION,
an Ohio corporation
PULTE HOMES OF SOUTH CAROLINA, INC.,
a Michigan corporation
PULTE HOMES OF TEXAS, L.P.,
a Texas limited partnership
By: PN I, INC., a Nevada
corporation, its general
partner
PULTE LAND DEVELOPMENT
CORPORATION, a Michigan corporation
PULTE LIFESTYLE COMMUNITIES, INC.,
a Michigan corporation
PULTE - IN CORPORATION,
a Michigan corporation
RADNOR HOMES, INC.,
a Michigan corporation
RIVERWALK OF THE PALM BEACHES
DEVELOPMENT COMPANY, INC.,
a Florida corporation
RN ACQUISITION 2 CORP.,
a Nevada corporation
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XXXX/XXXXXXXXXXX HOMES, INC.,
a Michigan corporation
VILLAGE WALK DEVELOPMENT COMPANY, INC.,
a Florida corporation
WIL CORPORATION, a Michigan corporation
By:
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Name:
Title:
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LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender and
in its capacity as the Administrative Agent
By:
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Name:
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Title:
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BANK ONE, NA,
individually in its capacity as a Lender and
in its capacity as the Syndication Agent
By:
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Name:
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Title:
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COMERICA BANK,
individually in its capacity as a Lender and
in its capacity as the Co-Agent
By:
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Name:
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Title:
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SUNTRUST BANK
By:
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Name:
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Title:
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MICHIGAN NATIONAL BANK
By:
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Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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THE NORTHERN TRUST COMPANY
By:
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Name:
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Title:
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