EXHIBIT 10(ac)
SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment") is made as of December ___, 2005 (the "Effective
Date") by and among PULTE MORTGAGE LLC, a Delaware limited liability company
(the "Borrower"), JPMORGAN CHASE BANK, N.A. and the several other banks and
financial institutions identified on the signature pages hereof (the "Lenders"),
and JPMORGAN CHASE BANK, N.A., not individually, but as "Agent".
RECITALS
A. The Borrower, the Agent and the Lenders are parties to a Fifth Amended
and Restated Revolving Credit Agreement dated as of June 30, 2004, as amended by
an Amendment for Permanent Increase to Aggregate Commitment dated as of July 30,
2004 (as it may be further amended from time to time, the "Credit Agreement").
All terms used herein and not otherwise defined shall have the same meanings
given to them in the Credit Agreement.
B. The Borrower and the Lenders wish to amend the Credit Agreement to
eliminate the requirement that Approved Investor Commitments be obtained for
certain Eligible Mortgage Loans under certain circumstances, all as set forth
herein.
AGREEMENTS
1. Definitions.
(a) As of the Effective Date the following definitions are added to
Article 1 of the Credit Agreement in the appropriate alphabetical location:
"Non-Agency Mortgage Loan" means any Mortgage Loan which is a
Non-Conforming Mortgage Loan, a Jumbo Conforming Mortgage Loan or a Super
Jumbo Conforming Mortgage Loan.
"Qualifying Rate Hedge" means, as of any date, with respect to any
group of Non-Agency Mortgage Loans having a similar rate type and duration
(e.g., 15 year, 30 year or ARMs), that the impact of changes in interest
rates on such group of Non-Agency Mortgage Loans is mitigated by interest
rate hedging products of a type consistent with both the effective
duration of such group of Non-Agency Mortgage Loans and the Borrower's
overall Hedging Program.
(b) As of the Effective Date the definition of "Eligible Jumbo
Conforming Loan" in Article 1 of the Credit Agreement is amended by deleting
existing clause (ii) thereof and replacing it with the following:
"(ii) is either (x) included in a group of Eligible Jumbo Conforming
Mortgage Loans covered by a Qualifying Rate Hedge or (y) subject to an
Approved Investor Commitment issued by an Approved Investor".
(c) As of the Effective Date the definition of "Eligible
Non-Conforming Mortgage Loan" in Article 1 of the Credit Agreement is amended by
deleting existing clause (ii) thereof and replacing it with the following:
"(ii) is either (x) included in a group of Eligible Non-Conforming
Mortgage Loans covered by a Qualifying Rate Hedge or (y) subject to an
Approved Investor Commitment issued by an Approved Investor".
(d) As of the Effective Date the definition of "Eligible Super Jumbo
Conforming Mortgage Loan" in Article 1 of the Credit Agreement is amended by
deleting existing clause (ii) thereof and replacing it with the following:
"(ii) is either (x) included in a group of Eligible Super Jumbo
Conforming Mortgage Loans covered by a Qualifying Rate Hedge or (y)
subject to an Approved Investor Commitment issued by an Approved
Investor".
2. Reporting. As of the Effective Date subsection (v) of Section 6.1 of
the Credit Agreement is amended by deleting existing clause (v) and replacing it
with the following:
"(v) As soon as available but in any event within fifteen (15) days after
the end of each month, a secondary marketing report for such month reasonably
satisfactory to the Agent (each such report, a "Positions Report"), which shall
include a schedule setting forth (A) the components of the Borrower's Hedging
Program as of the end of such month, (B) the Approved Investor Commitments as of
the end of such month, (C) the amount of Non-Agency Mortgage Loans in each group
having a similar rate type and duration as of the end of such month and (D) the
Qualifying Rate Hedges applicable to the various groups of Non-Agency Mortgage
Loans as of the end of such month. The Positions Report shall be presented on a
consistent basis and shall be included with the monthly statements delivered
pursuant to Subsection 6.1(ii) above. If the Borrower at any time determines
that the Qualifying Rate Hedges with respect to any group of Non-Agency Mortgage
Loans, taken together with the Approved Investor Commitments applicable to such
group of Non-Agency Mortgage Loans, does not fully cover such group of
Non-Agency Mortgage Loans, then the Borrower shall immediately notify the Agent
of such fact.
3. Requirement for Approved Investor Commitments. As of the
Effective Date Section 6.21 of the Credit Agreement is hereby deleted and
replaced by the following:
6.21 Approved Investor Commitments. The Borrower shall maintain
Approved Investor Commitments which cover all Pledged Mortgages (other than
Pledged Mortgages which are then included in a group of Pledged Mortgages
covered by a Qualifying Rate Hedge or which are Eligible Investment Loans).
4. Miscellaneous.
(i) The Borrower represents and warrants to the Lenders that
(i) after giving effect to this Amendment, no Default or Unmatured Default
exists, (ii) the Credit Agreement is in full force and effect, and (iii)
the Borrower has no defenses or offsets to, or claims or counterclaims,
relating to, its obligations under the Credit Agreement.
(ii) All of the obligations of the parties to the Credit
Agreement, as amended hereby, are hereby ratified and confirmed. All
references in the Loan Documents to the "Credit Agreement" henceforth
shall be deemed to refer to the Credit Agreement as amended by this
Amendment.
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(iii) Nothing contained in this Amendment shall be construed
to disturb, discharge, cancel, impair or extinguish the indebtedness
evidenced by the existing Notes and secured by the Loan Documents or
waive, release, impair, or affect the liens arising under the Loan
Documents or the validity or priority thereof.
(iv) In the event of a conflict or inconsistency between the
provisions of the Loan Documents and the provisions of this Amendment, the
provisions of this Amendment shall govern. The provisions of this
Amendment, the Credit Agreement, the Security Agreement and the other Loan
Documents are in full force and effect except as amended herein and the
Loan Documents as so amended are ratified and confirmed hereby by the
Borrower.
(v) The Borrower agrees to reimburse the Agent for all
reasonable out-of-pocket expenses (including legal fees and expenses)
incurred in connection with the preparation, negotiation and consummation
of this Amendment.
(vi) This Amendment may be executed in counterparts which,
taken together, shall constitute a single document.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
PULTE MORTGAGE LLC
By: _____________________________________
Name: ___________________________________
Title: __________________________________
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JPMORGAN CHASE BANK, N.A., individually and
as Agent
By: __________________________________
Name:
Title:
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BANK OF AMERICA, N.A.
By: ___________________________________
Name: _________________________________
Title: ________________________________
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COMERICA BANK
By: __________________________________
Name: ________________________________
Title: _______________________________
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CALYON NEW YORK BRANCH
By: __________________________________
Name: ________________________________
Title: _______________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
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WELLS FARGO BANK, N.A.
By: __________________________________
Name: ________________________________
Title: _______________________________
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WASHINGTON MUTUAL BANK, FA
By: __________________________________
Name: ________________________________
Title: _______________________________
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NATIONAL CITY BANK OF KENTUCKY
By: _________________________________
Name: _______________________________
Title: ______________________________
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LASALLE BANK NATIONAL ASSOCIATION
By: _________________________________
Name: _______________________________
Title: ______________________________
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BNP PARIBAS
By: _________________________________
Name: _______________________________
Title: ______________________________
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: _________________________________
Name: _______________________________
Its: ________________________________
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SUNTRUST BANK
By: _________________________________
Name: _______________________________
Its: ________________________________
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