SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT

EX-10.(A) 2 k24099exv10wxay.htm SECOND AMENDMENT TO THIRD AMENDED & RESTATED CREDIT AGREEMENT exv10wxay

Exhibit 10(a)

SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT

This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”), dated as of February 15, 2008, 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 amended by First Amendment to Third Amended and Restated Credit Agreement dated November 21, 2007 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 date hereof, the Aggregate Commitment is hereby reduced to $1,600,000,000 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) The following definition in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:

“Debt to Capitalization Ratio” means, as of any date, the ratio (stated as a percentage) of (a) Indebtedness of the Credit Parties (other than to the REITs, provided such REIT has complied with Section 6.1(h)) less (i) 50% of Qualified Subordinated Debt and (ii) all Unrestricted Cash held by the Credit Parties in excess of $25,000,000 but not to exceed $300,000,000 to (b) Capitalization.

(b) The following defined terms are added to Section 1.1 of the Credit Agreement:

“Deferred Tax Valuation Allowance” means any valuation allowance applied to deferred tax assets as determined in accordance with GAAP and shown on the financial statements of the Borrower.

“Unrestricted Cash” means cash and Cash Equivalents of the Credit Parties that are free and clear of all Liens (other than Liens securing the Credit Party Obligations) and not subject to any restrictions on the use thereof to pay Indebtedness and other obligations of the Credit Parties.

3. Permitted Debt to Capitalization Ratio. Notwithstanding anything to the contrary contained in Section 5.2(a) of the Credit Agreement, if the first fiscal quarter of the Borrower in which the Permitted Debt to Capitalization Ratio would, pursuant to the provisions of Section 5.2(a)(i), decrease is either the first or second fiscal quarter of 2008 (such quarter, whether the first or second quarter of 2008, but not both, being the “Affected Quarter”), such decrease shall not occur with respect to the Affected Quarter, and the Permitted Debt to Capitalization Ratio shall remain unchanged until the first fiscal quarter (if any) after the Affected Quarter in which the Permitted Debt to Capitalization Ratio would decrease pursuant to the provisions of Section 5.2(a)(i).

4. 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 ended December 31, 2007), Tangible Net Worth shall be greater than or equal to the following (the “Minimum Tangible Net Worth”): 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 and excluding the effect of any decrease in any Deferred Tax Valuation Allowance) earned for each completed fiscal quarter subsequent to December 31, 2007 to the date of determination, minus (iii) the cumulative net amount of any Deferred Tax Valuation Allowance as of the date of determination; provided, however, that in no event shall the Minimum Tangible Net Worth be less than $2,900,000,000.

5. 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.

(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.

6. 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.

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

8. 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.

9. 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.

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