exv10wa



 





EXHIBIT
10(a)

CONFORMED COPY




FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT

AGREEMENT




          This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”), dated as of
November 21, 2007, among PULTE HOMES, INC., a Michigan corporation (the “Borrower”), the Lenders
that are identified on the signature pages hereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent (the “Administrative 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 it may be 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. Definitions. The following defined terms are added to Section 1.1 of the Credit
Agreement.




     “Borrowing Base” means, from time to time, the sum of the following amounts
(without duplication), all as reflected from time to time in accordance with GAAP
consistently applied in the consolidated balance sheet of the Borrower:




     (a) 100% of the Credit Parties’ unrestricted cash in excess of $25,000,000;




     (b) 90% of the Net Housing Unit Proceeds due to any Credit Party at closing as
a result of the consummation of the sale of any Housing Unit, which Net Housing Unit
Proceeds have been paid to the closing agent handling such sale but which have not
yet been received by such Credit Party; provided, however, that if, and to the
extent that, such Net Housing Unit Proceeds which are reported as outstanding on the
last day of any fiscal quarter of the Borrower are not received by such Credit Party
on or before the tenth (10th) day following the end of any such fiscal quarter, such
Net Housing Unit Proceeds shall not be included in the Borrowing Base;




     (c) 90% of the Net Book Value of all Housing Units Under Contract;




     (d) 85% of the Net Book Value of all Housing Units (including, without
limitation, model Housing Units) that are not Housing Units Under Contract;



 









 






     (e) 75% of the Net Book Value of all Finished Lots;




     (f) 50% of the Net Book Value of all Land Under Development; and




     (g) 30% of the Net Book Value of all Land Held for Future
Development/Disposition;




provided, that notwithstanding anything to the contrary provided herein, any asset
which is encumbered by a Lien (other than a Lien described in clauses (a),
(b), (c) or (g) of the definition of “Permitted Liens”)
shall not be included in the calculation of the Borrowing Base pursuant to
clauses (a) through (g) above.




     “Borrowing Base Debt” means all Indebtedness of the Credit Parties, including
without limitation the Credit Party Obligations but excluding (a) any Qualified Subordinated
Debt and (b) any Non-Recourse Land Financing secured solely by Real Estate that is owned by
any Credit Party and that, if the same did not secure such Indebtedness, would be included
in the determination of the Borrowing Base.




     “Finished Lot” means lots of Land Held for Future Development/Disposition as to
which (a) a final subdivision map or the equivalent (such as site condominium documents) has
been recorded or filed; (b) all major off-site construction and infrastructure necessary to
permit construction of Housing Units has been completed to local governmental requirements;
(c) utilities have been installed to local government requirements; and (d) building permits
may be pulled and construction commenced without the satisfaction of any further material
conditions.




     “Housing Unit” means a residential housing unit owned by a Credit Party that is
(or, upon completion of construction thereof, will be) available for sale.




     “Housing Unit Under Contract” means a Housing Unit owned by a Credit Party as
to which such Credit Party has a bona fide contract of sale, in a form customarily employed
by such Credit Party and reasonably satisfactory to the Administrative Agent, entered into
with a Person who is not an Affiliate of a Credit Party, under which contract (a) no
defaults then exist; (b) the purchaser has made the customary earnest money deposit; and (c)
there are no contingencies (other than customary contingencies in the ordinary course of the
Credit Party’s business).




     “Improvements” means on and off-site development work, including but not
limited to filling to grade, main water distribution and sewer collection systems and
drainage system installation, paving, and other improvements necessary for the use of
residential dwelling units and as otherwise required pursuant to development agreements
which may have been entered into with Governmental Authorities.




     “Investment Grade Rating” means a senior unsecured public debt rating of BBB-
or higher or Baa3 or higher.




     “Land Held for Future Development/Disposition” means Real Estate owned by the
Credit Parties held for future development or disposition and (a) with respect to which



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all requisite zoning requirements and land use requirements have been satisfied, and
all requisite approvals have been obtained (on a final and unconditional basis) from all
applicable governmental authorities (other than approvals which are simply ministerial and
non-discretionary in nature), in order to develop the Real Estate as a residential housing
project and construct Housing Units thereon; and (b) as to Real Estate located in California
and other jurisdictions that have comparable requirements and procedures, which satisfies
the requirements of clause (a) immediately above, and which is subject to a
currently effective vesting tentative map (unless a county or city where the land is located
does not grant vesting tentative maps) which has received all necessary approvals (on a
final and unconditional basis, other than future conditions imposed on the development in
order to obtain such approvals) by all applicable Governmental Authorities.




     “Land Under Development” means Land Held for Future Development/Disposition
upon which construction of Improvements has commenced but not been completed and for which:
(a) to the extent required, a performance bond, surety or other security has been issued to
and in favor of and unconditionally accepted by each local agency and all relevant
Governmental Authorities, including any municipal utility district in which the Real Estate
is situated with regard to all work to be performed pursuant to each and all of said
subdivision improvement agreements or other agreements; (b) all necessary plans have been
approved by all relevant Governmental Authorities for the installation of any and all
Improvements then being installed upon such Real Estate; (c) all necessary permits have been
issued for the installation of said Improvements; and (d) utility services necessary for
construction of Improvements and residential dwelling units and the operation thereon for
the purpose intended will be available to such Real Estate upon completion of the
Improvements and the applicable Credit Party has obtained a “will serve” letter from each
and every utility company to deliver necessary utility services to such Real Estate.




     “Net Book Value” means, with respect to an asset owned by a Credit Party, the
gross investment of such Credit Party in the asset, less all reserves (including loss
reserves and reserves for depreciation) attributable to that asset, all determined in
accordance with GAAP consistently applied.




     “Net Housing Unit Proceeds” means, in connection with the sale of any Housing
Unit by a Credit Party, the gross sales price, as adjusted by all bona fide prorations and
adjustments to the sales price required to be made pursuant to the terms of the sales
contract, less the aggregate amount of bona fide closing costs due to any Person, provided
that, if such closing costs are due to an Affiliate of a Credit Party, such costs comply
with Section 6.9.




     “Real Estate” means land, rights in land and interests therein and equipment,
structures, improvements, furnishings, fixtures and buildings located on or used in
connection with land, rights in land or interests therein, but shall not include Mortgages
or interests therein.



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     2. Reporting. The following new Section 5.1(i) is hereby added to the Credit
Agreement:




     (i) Borrowing Base Certificate. Within sixty (60) days following the last day
of each fiscal quarter, a report (in a form satisfactory to the Administrative Agent)
calculating the Borrowing Base, and (if applicable) evidencing compliance with the Borrowing
Base covenant set forth in Section 6.15, as of the last day of such quarter
certified by an Authorized Officer of the Borrower; provided, that the Borrower may (and at
the request of the Administrative Agent shall) deliver such report within thirty (30) days
of the end of any calendar month.




     3. Tangible Net Worth. Section 5.2(b) of the Credit Agreement is hereby
amended and restated in its entirety as follows:



     (b) Tangible Net Worth. As of the last day of each fiscal quarter of the
Borrower (beginning with the fiscal quarter ending September 30, 2007), Tangible Net Worth
shall be greater than or equal to the sum of (i) $4,000,000,000, plus (ii) 50% of
the cumulative Net Income of the Borrower and its Subsidiaries (without deduction for
losses) earned for each completed fiscal quarter subsequent to September 30, 2007 to the
date of determination.




     4. Borrowing Base Limitation. The following new Section 6.15 is hereby added
to the Credit Agreement:



     6.15 Borrowing Base Limitation. At any time at which the Borrower does not
have an Investment Grade Rating from at least two of the Rating Agencies, Borrower shall not
permit the aggregate outstanding amount of the sum of all Borrowing Base Debt to exceed the
Borrowing Base at such time.




     5. Events of Default. Section 7.1(c) is hereby amended by changing “6.14” to
“6.15”.




     6. Conditions Precedent. This Amendment shall be effective as of the date (“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 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.



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     (d) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the 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 Amendment Effective
Date, and such notice shall be conclusive and binding.




     7. 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.




     8. Ratification. The Credit Agreement, as amended hereby, is hereby ratified and
remains in full force and effect.




     9. 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.




     10. 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/ Bruce E. Robinson
 	 
	 	 	Vice President and Treasurer 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	Lenders:



JPMORGAN CHASE BANK, N.A.,

As Lender and Administrative Agent

 	 
	 	By:  	/s/ Kimberly L. Turner
 	 
	 	 	Executive Director 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	CITICORP NORTH AMERICA, INC.

 	 
	 	By:  	/s/ Tucker R. Borden
 	 
	 	 	Vice President 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Mark W. Lariviere
 	 
	 	 	Senior Vice President 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	By:  	/s/ Nicholas Bell
 	 
	 	 	Director 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	BNP PARIBAS

 	 
	 	By:  	/s/ Duane Helkowksi
 	 
	 	 	Managing Director 	 
	 	 	 	 
	 	By:  	/s/ Melissa Balley
 	 
	 	 	Vice President 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	CALYON NEW YORK BRANCH

 	 
	 	By:  	/s/ Samuel L. Hill
 	 
	 	 	Managing Director and Regional Head	 
	 	 	 
	 	By:  	 /s/ Robert L. Nelson
 	 
	 	 	Managing Director 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Charles L. Weddell
 	 
	 	 	Vice President 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY 

AMERICAS

 	 
	 	By:  	/s/ Omayra Laucella
 	 
	 	 	Vice President 	 
	 	 	 	 
	 	By:  	                          /s/ Erin Morrissey
 	 
	 	 	Vice President 	 
	 	 	 	 



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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	/s/ William McGinty
 	 
	 	 	Senior Vice President 	 
	 	 	 	 



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INTENTIONALLY OMITTED




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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	UBS LOAN FINANCE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Otsa
	 	 
	 

	 	Its:
	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mary E. Evans	 	 
	 

	 	Its:
	 	Associate Director	 	 






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INTENTIONALLY OMITTED





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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	COUNTRYWIDE BANK, F.S.B.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul J. Pirok	 	 
	 

	 	Its:
	 	Executive Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	MERRILL LYNCH BANK USA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Louis Alder	 	 
	 

	 	 	 	Director	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
CHICAGO BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Victor Pierzchalski	 	 
	 

	 	 	 	Vice President & Manager	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 
	 	 	GUARANTY BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Dan Killian
	 

	 	 	 	Senior Vice President






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	LLOYDS TSB BANK PLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mario Del Duca	 	 
	 

	 	 	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Windsor R. Davies	 	 
	 

	 	 	 	Managing Director	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Yasuo Imaizumi	 	 
	 

	 	 	 	Senior Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Luis Donoso	 	 
	 

	 	 	 	Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	NATIXIS (f/k/a NATEXIS BANQUES POPULAIRES)
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Natalie Trojan	 	 
	 

	 	 	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Timothee Delpont	 	 
	 

	 	 	 	Associate	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	WASHINGTON MUTUAL BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John L. Thomas	 	 
	 

	 	 	 	Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, a Michigan Banking

Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian Jelinski
	 	 
	 

	 	 	 	Assistant Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	REGIONS BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel McClurkin	 	 
	 

	 	 	 	Assistant Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND RESTATED

CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	CITY NATIONAL BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Xavier Barrera	 	 
	 

	 	Its:
	 	Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	COMPASS BANK, an Alabama banking corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven J. Heslep	 	 
	 

	 	 	 	Senior Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND RESTATED

CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	COMMERCE BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Seth Mackler	 	 
	 

	 	 	 	Vice President	 	 






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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	BANK OF HAWAII, a Hawaii corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian H. Uemori	 	 
	 

	 	 	 	Vice President	 	 






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INTENTIONALLY OMITTED




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SIGNATURE PAGE TO FIRST AMENDMENT TO THIRD AMENDED AND

RESTATED CREDIT AGREEMENT WITH PULTE HOMES, INC.




	 	 	 	 	 	 	 
	 	 	MALAYAN BANKING BERHAD, NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Fauzi Zulkifli	 	 
	 

	 	 	 	General Manager	 	 







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Exhibit A


CONSENT AND AGREEMENT OF GUARANTORS




     THIS CONSENT AND AGREEMENT OF GUARANTORS (“Consent”) is executed and delivered as of November
___, 2007, 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.



W I T N E S S E T H:




     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 First 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.



 









 





     IN WITNESS WHEREOF, this Consent has been duly executed by the Guarantors as of the day and
year first set forth above.



[Guarantors]