EXHIBIT 10(ad)
OMNIBUS AMENDMENT
THIS OMNIBUS AMENDMENT (this "Amendment"), dated as of December 27,
2005, is entered into by and among PULTE FUNDING, INC., as the borrower (the
"Borrower") and as the buyer (the "Buyer"), PULTE MORTGAGE LLC ("Pulte
Mortgage"), as a seller (the "Seller") and the servicer (the "Servicer"),
ATLANTIC ASSET SECURITIZATION LLC, as an issuer ("Atlantic"), LA FAYETTE ASSET
SECURITIZATION LLC, as an issuer ("La Fayette"), CALYON NEW YORK BRANCH, as a
bank ("Calyon New York"), as a managing agent and as the administrative agent
(the "Administrative Agent"), LLOYDS TSB BANK PLC, as a bank ("Lloyds"),
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as a bank and as a managing agent
("JPMC"), JUPITER SECURITIZATION CORPORATION, as an issuer ("Jupiter"), and
LASALLE BANK NATIONAL ASSOCIATION, as the collateral agent ("LaSalle").
Capitalized terms used and not otherwise defined herein are used as defined in
the related Operative Documents (as defined below).
RECITALS
WHEREAS, the Borrower, Atlantic, La Fayette, Jupiter, Calyon New
York, as a bank, a managing agent and as Administrative Agent, JPMC, as a bank
and as a managing agent, Lloyds, as a bank, and the Servicer entered into that
certain Second Amended and Restated Loan Agreement, dated as of August 19, 2005
(the "Loan Agreement");
WHEREAS, the Borrower, the Administrative Agent and LaSalle entered
into that certain Second Amended and Restated Collateral Agency Agreement (the
"Collateral Agency Agreement"), dated as of August 19, 2005;
WHEREAS, the Seller and the Buyer entered into that certain Master
Repurchase Agreement, dated as of December 22, 2000, as supplemented by the
Second Amended and Restated Addendum to Master Repurchase Agreement, dated as of
August 19, 2005, between the Seller and the Buyer (the "Repurchase Agreement");
WHEREAS, certain parties hereto entered into the Transaction
Documents (as defined in the Loan Agreement) (the Loan Agreement, the Collateral
Agency Agreement, the Repurchase Agreement and the Transaction Documents
collectively, the "Operative Documents"); and
WHEREAS, the parties hereby desire and consent to amend the
Operative Documents as provided in this Amendment.
NOW, THEREFORE, the parties agree as follows:
Section 1. Amendments to the Loan Agreement.
(a) The definition of "Advance Rate" is hereby deleted in its
entirety and replaced with the following:
"Advance Rate" means (i) with respect to a Conforming Loan
(including a Forty Year Conforming Loan) or a Jumbo Loan (other than
a Super Jumbo Loan), ninety-eight percent (98%), (ii) with respect
to an Alt-A Loan, ninety-seven percent (97%), or, if a FICO Score
Trigger Event has occurred and is continuing, as reported to the
Collateral Agent by the Servicer in the most recent Servicer Monthly
Report, then zero, (iii) with respect to a Second Lien Loan or a
Super Jumbo Loan, ninety-five percent (95%) and (iv) with respect to
a Subprime Loan, ninety percent (90%).
(b) The definition of "Alt-A Loan" is hereby amended by adding the
words "or is covered by a Hedge" after the words "such Mortgage Loan," in clause
(3) thereof.
(c) The definition of "Bank Commitment" is hereby deleted in its
entirety and replaced with the following:
"Bank Commitment" means, (a) with respect to Calyon New York, Lloyds
and JPMorgan, in its capacity as a Bank, the amount set forth on
Schedule I hereto, and (b) with respect to a Bank that has entered
into an Assignment and Acceptance, the amount set forth therein as
such Bank's Bank Commitment, in each case as such amount may be
reduced by each Assignment and Acceptance entered into between such
Bank and an Eligible Assignee, and as may be further reduced (or
terminated) pursuant to the next sentence. Any reduction (or
termination) of the Maximum Facility Amount pursuant to the terms of
this Second Restated Agreement shall (unless otherwise agreed by all
the Banks) reduce ratably (or terminate) each Bank's Bank
Commitment; provided, however, that, any reduction of the Maximum
Facility Amount pursuant to the terms of this Second Restated
Agreement up to an amount equal to the Increased Amount shall not be
applied pro rata to the Banks and shall be applied to reduce the
Bank Commitment of only Calyon. At no time shall the aggregate Bank
Commitments of all Banks exceed the Maximum Facility Amount.
(d) The proviso to the definition of "Collateral Value' is hereby
amended by (i) deleting the word "and" at the end of clause (j) therein, (ii)
deleting "." at the end of clause (k) therein and replacing it with "; and" and
(iii) inserting the following clause l at the end thereof:
(l) at any time, the portion of total Collateral Value that may be
attributable to Forty Year Conforming Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount.
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(e) The definition of "Eligible Mortgage Loan" is hereby amended by
adding the words "(or, with respect to Forty Year Conforming Loan, 40 years)"
after the words "30 years" in clause (a) therein and by adding the words "or is
covered by a Hedge" after the words "Take-Out Commitment from an Approved
Investor" in clause (f) therein.
(f) Article I is hereby amended by inserting the following
definition immediately after the definition of "Fitch":
"Forty Year Conforming Loan" means a Conforming Loan with an
original term to maturity of forty (40) years.
(g) Article I is hereby amended by inserting the following
definition immediately after the definition of "Group Bank Commitment
Percentage":
"Hedge" means a Take-Out Commitment in the form of a forward
purchase agreement or similar hedging agreement.
(h) The definition of "Hedge Report" is hereby amended by deleting
the word "trades" therein and replacing it with the words "Take-Out Commitments
(including Hedges)" at the first occurrence thereof and "Take-Out Commitments"
at the second occurrence thereof.
(i) Article I is hereby amended by inserting the following
definitions immediately after the definition of "HUD":
"Increased Amount" means $50,000,000.
"Increased Principal Debt" means an amount up to the Increased
Amount advanced by Calyon New York and/or its related Issuers.
(j) The definition of "Issuer Facility Amount" is hereby deleted in
its entirety and replaced with the following:
"Issuer Facility Amount" means (a) with respect to Atlantic and La
Fayette on an aggregate basis, $350,000,000, and (b) with respect to
Jupiter on an aggregate basis, $250,000,000. Any reduction (or
termination) of the Maximum Facility Amount pursuant to the terms of
this Second Restated Loan Agreement shall reduce ratably (or
terminate) the Issuer Facility Amount of each Issuer; provided,
however, that, any reduction of the Maximum Facility Amount pursuant
to the terms of this Agreement up to an amount equal to the
Increased Amount shall not be applied pro rata to the Issuers and
shall reduce the Issuer Facility Amount of only La Fayette and
Atlantic.
(k) The definition of "Jumbo Loan" is hereby amended by adding the
words "or is covered by a Hedge" after the words "such Mortgage Loan," in clause
(2) thereof.
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(l) The definition of "Maximum Facility Amount" is hereby deleted in
its entirety and replaced with the following:
"Maximum Facility Amount" means $600,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of this Second Restated Loan
Agreement.
(m) The definition of "Take-Out Commitment" is hereby amended by
deleting "." at the end of the proviso in the first sentence therein and
inserting the following proviso:
provided, further, that a Fannie Mae, Freddie Mac or Ginnie Mae
forward purchase agreement or similar hedge agreement (a "Hedge")
will constitute a Take-Out Commitment if it has been assigned to the
Borrower and if a perfected and first priority security interest in
it has been granted to the Administrative Agent.
(n) The definition of "Second Lien Loan" is hereby deleted in its
entirety and replaced with the following definition:
"Second Lien Loan" means a Mortgage Loan secured by particular
property with respect to which at least one other higher-priority
Mortgage Loan exists secured by the same property and which Mortgage
Loan matches all applicable requirements for purchase under the
requirements of a Take-Out Commitment specifically issued for the
purchase of such Mortgage Loan or is covered by a Hedge.
(o) The definition of "Uncovered Mortgage Loan" is hereby amended by
adding the following sentence at the end of the definition:
For the avoidance of doubt, a Mortgage Loan covered by a Hedge is
not an Uncovered Mortgage Loan.
(p) Section 2.7(c)(iii) is hereby amended by inserting the following
subclause (D) immediately after subclause (C) therein:
On each Settlement Date, an amount equal to the unpaid Increased
Principal Debt payable to Calyon New York and/or its related Issuers
shall be paid to the Managing Agent's Account related to Calyon New
York until the Increased Principal Debt owing to Calyon New York
and/or its related Issuers is reduced to zero; provided that, if the
application of such amounts to the reduction of the Increased
Principal Debt owed to Calyon New York and/or its related Issuers
would cause a Default or an Event of Default to occur or there is
otherwise an Default or Event of Default in existence, then, instead
of such application, Collections shall be paid to each Managing
Agent's Account pro rata in proportion to the outstanding Principal
Debt (including the Increased Principal Debt) owing to the Lenders
in each Group.
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(q) Section 2.7(c)(iii) is hereby amended by re-numbering the
existing subclause (D) as subclause (E).
(r) Section 6.17 is hereby deleted in its entirety and replaced with
the following:
6.17. Take-Out Commitments.
The Borrower shall cause the Originator to obtain, and maintain in
full force and effect, Take-Out Commitments (including Hedges)
reflecting total Approved Investor obligations, as of each date of
determination, with an aggregate purchase price equal to the total
of the original principal balances of the Borrower's entire
portfolio of Mortgage Loans. Each of such Take-Out Commitments shall
reflect only those terms and conditions as are permitted hereunder
or are acceptable to the Administrative Agent and the Managing
Agents. Each Mortgage Loan in the Originator's portfolio shall be
covered by a loan specific take-out commitment or a hedge or shall
be reflected in the Originator's books as an investment loan as of
each date of determination. All investment loans in the Originator's
portfolio are Non-Conforming Loans.
(s) Schedule I is hereby deleted in its entirety and replaced with
Schedule I, Bank Commitments and Percentages, attached hereto.
Section 2. Amendments to the Repurchase Agreement.
(a) The definition of "Advance Rate" is hereby deleted in its
entirety and replaced with the following:
"Advance Rate" means (i) with respect to a Conforming Loan
(including a Forty Year Conforming Loan) or a Jumbo Loan (other than
a Super Jumbo Loan), ninety-eight percent (98%), (ii) with respect
to an Alt-A Loan, ninety-seven percent (97%), or, if a FICO Score
Trigger Event has occurred and is continuing, as reported to the
Collateral Agent by the Servicer in the most recent Servicer Monthly
Report, then zero, (iii) with respect to a Second Lien Loan or a
Super Jumbo Loan, ninety-five percent (95%) and (iv) with respect to
a Subprime Loan, ninety percent (90%).
(b) The definition of "Alt-A Loan" is hereby amended by adding the
words "or is covered by a Hedge" after the words "such Mortgage Loan," in clause
(3) thereof.
(c) The proviso to the definition of "Collateral Value' is hereby
amended by (i) deleting the word "and" at the end of clause (j) therein, (ii)
deleting "." at the end of clause (k) therein and replacing it with "; and" and
(iii) inserting the following clause l at the end thereof:
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(l) at any time, the portion of total Collateral Value that may be
attributable to Forty Year Conforming Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount.
(d) The definition of "Eligible Mortgage Loan" is hereby amended by
adding the words "(or, with respect to Forty Year Conforming Loan, 40 years)"
after the words "30 years" in clause (a) therein and by adding the words "or is
covered by a Hedge" after the words "Take-Out Commitment from an Approved
Investor" in clause (f) therein.
(e) Article I is hereby amended by inserting the following
definition immediately after the definition of "Fitch":
"Forty Year Conforming Loan" means a Conforming Loan with an
original term to maturity of forty (40) years.
(f) Article I is hereby amended by inserting the following
definition immediately after the definition of "Group Bank":
"Hedge" means a Take-Out Commitment in the form of a forward
purchase agreement or similar hedging agreement.
(g) The definition of "Hedge Report" is hereby amended by deleting
the word "trades" therein and replacing it with the words "Take-Out Commitments
(including Hedges)" at the first occurrence thereof and "Take-Out Commitments"
at the second occurrence thereof.
(h) The definition of "Jumbo Loan" is hereby amended by adding the
words "or is covered by a Hedge" after the words "such Mortgage Loan," in clause
(2) thereof.
(i) The definition of "Second Lien Loan" is hereby deleted in its
entirety and replaced with the following definition:
"Second Lien Loan" means a Mortgage Loan secured by particular
property with respect to which at least one other higher-priority
Mortgage Loan exists secured by the same property and which Mortgage
Loan matches all applicable requirements for purchase under the
requirements of a Take-Out Commitment specifically issued for the
purchase of such Mortgage Loan or is covered by a Hedge.
(j) The definition of "Take-Out Commitment" is hereby amended by
deleting "." at the end of the proviso in the first sentence therein and
inserting the following proviso:
provided, further, that a Fannie Mae, Freddie Mac or Ginnie Mae
forward purchase agreement or similar hedge agreement (a "Hedge")
will constitute a Take-Out Commitment if it has been assigned to the
Borrower and if a perfected and first priority security interest in
it has been granted to the Administrative Agent.
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(k) The definition of "Uncovered Mortgage Loan" is hereby amended by
adding the following sentence at the end of the definition:
For the avoidance of doubt, a Mortgage Loan covered by a Hedge is
not an Uncovered Mortgage Loan.
Section 3. Amendments to the Collateral Agency Agreement.
(a) The definition of "Advance Rate" is hereby deleted in its
entirety and replaced with the following:
"Advance Rate" means (i) with respect to a Conforming Loan
(including a Forty Year Conforming Loan) or a Jumbo Loan (other than
a Super Jumbo Loan), ninety-eight percent (98%), (ii) with respect
to an Alt-A Loan, ninety-seven percent (97%), or, if a FICO Score
Trigger Event has occurred and is continuing, as reported to the
Collateral Agent by the Servicer in the most recent Servicer Monthly
Report, then zero, (iii) with respect to a Second Lien Loan or a
Super Jumbo Loan, ninety-five percent (95%) and (iv) with respect to
a Subprime Loan, ninety percent (90%).
(b) The definition of "Alt-A Loan" is hereby amended by adding the
words "or is covered by a Hedge" after the words "such Mortgage Loan," in clause
(3) thereof.
(c) The proviso to the definition of "Collateral Value' is hereby
amended by (i) deleting the word "and" at the end of clause (j) therein, (ii)
deleting "." at the end of clause (k) therein and replacing it with "; and" and
(iii) inserting the following clause l at the end thereof:
(l) at any time, the portion of total Collateral Value that may be
attributable to Forty Year Conforming Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount.
(d) The definition of "Eligible Mortgage Loan" is hereby amended by
adding the words "(or, with respect to Forty Year Conforming Loan, 40 years)"
after the words "30 years" in clause (a) therein and by adding the words "or is
covered by a Hedge" after the words "Take-Out Commitment from an Approved
Investor" in clause (f) therein.
(e) Article I is hereby amended by inserting the following
definition immediately after the definition of "Fitch":
"Forty Year Conforming Loan" means a Conforming Loan with an
original term to maturity of forty (40) years.
(f) Article I is hereby amended by inserting the following
definition immediately after the definition of "Governmental Requirement":
"Hedge" means a Take-Out Commitment in the form of a forward
purchase agreement or similar hedging agreement.
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(g) The definition of "Hedge Report" is hereby amended by deleting
the word "trades" therein and replacing it with the words "Take-Out Commitments
(including Hedges)" at the first occurrence thereof and "Take-Out Commitments"
at the second occurrence thereof
(h) The definition of "Jumbo Loan" is hereby amended by adding the
words "or is covered by a Hedge" after the words "such Mortgage Loan," in clause
(2) thereof.
(i) The definition of "Maximum Facility Amount" is hereby deleted in
its entirety and replaced with the following:
"Maximum Facility Amount" means $600,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of the Second Restated Loan
Agreement.
(j) The definition of "Second Lien Loan" is hereby deleted in its
entirety and replaced with the following definition:
"Second Lien Loan" means a Mortgage Loan secured by particular
property with respect to which at least one other higher-priority
Mortgage Loan exists secured by the same property and which Mortgage
Loan matches all applicable requirements for purchase under the
requirements of a Take-Out Commitment specifically issued for the
purchase of such Mortgage Loan or is covered by a Hedge.
(k) The definition of "Take-Out Commitment" is hereby amended by
deleting "." at the end of the proviso in the first sentence therein and
inserting the following proviso:
provided, further, that a Fannie Mae, Freddie Mac or Ginnie Mae
forward purchase agreement or similar hedge agreement (a "Hedge")
will constitute a Take-Out Commitment if it has been assigned to the
Borrower and if a perfected and first priority security interest in
it has been granted to the Administrative Agent.
(l) The definition of "Uncovered Mortgage Loan" is hereby amended by
adding the following sentence at the end of the definition:
For the avoidance of doubt, a Mortgage Loan covered by a Hedge is
not an Uncovered Mortgage Loan.
Section 4. Operative Documents in Full Force and Effect as Amended.
Except as specifically amended hereby, all of the provisions of the
Operative Documents and all of the provisions of all other documentation
required to be delivered with respect thereto shall remain in full force and
effect from and after the date hereof.
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Section 5. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which, when so
executed, shall be deemed to be an original and all of which, when taken
together, shall not constitute a novation of any Operative Document but shall
constitute an amendment thereof. The parties hereto agree to be bound by the
terms and conditions of each Operative Document, as amended by this Amendment,
as though such terms and conditions were set forth herein.
(b) The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except
as provided in each respective Operative Agreement.
(d) This Amendment and the rights and obligations of the parties
under this amendment shall be governed by and construed and interpreted in
accordance with the laws of the state of New York without reference to its
conflict of laws provisions.
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IN WITNESS WHEREOF, the parties have agreed to and caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
PULTE FUNDING, INC.,
as the Borrower and the Buyer
By:____________________________________________
Name:
Title:
PULTE MORTGAGE LLC,
as the Servicer and the Seller
By:____________________________________________
Name:
Title:
CALYON NEW YORK BRANCH,
as a Bank, as a Managing Agent and as the
Administrative Agent
By:____________________________________________
Name:
Title:
By:____________________________________________
Name:
Title:
ATLANTIC ASSET SECURITIZATION LLC,
as an Issuer
By: Calyon New York Branch, as Attorney-In-Fact
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
LA FAYETTE ASSET SECURITIZATION LLC,
as an Issuer
By: Calyon New York Branch, as Attorney-In-Fact
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
LLOYDS TSB BANK PLC,
as a Bank
By:____________________________________________
Name:
Title:
By:____________________________________________
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as a Bank and as a Managing Agent
By:____________________________________________
Name:
Title:
JUPITER SECURITIZATION CORPORATION,
as an Issuer
By:____________________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as the Collateral Agent
By:____________________________________________
Name:
Title:
SCHEDULE I
BANK COMMITMENTS AND PERCENTAGES
Bank Commitment
Bank Bank Commitment Percentage
---- --------------- ---------------
CALYON NEW YORK BRANCH* $ 225,000,000 37.50%
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION** $ 250,000,000 41.67%
LLOYDS TSB BANK PLC* $ 125,000,000 20.83%
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* Part of the Calyon New York Group, related to Atlantic and La Fayette.
** Part of the JPMorgan Group, related to Jupiter.