EXHIBIT 10(a)
THIRD OMNIBUS AMENDMENT
THIS THIRD OMNIBUS AMENDMENT (this "Amendment"), dated as of August
18, 2006, 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, as
amended by the First Omnibus Amendment, dated as of December 27, 2005 and the
Second Omnibus Amendment, date as of January 12, 2006 (the "Loan Agreement");
WHEREAS, the Borrower, the Administrative Agent and LaSalle entered
into that certain Second Amended and Restated Collateral Agency Agreement, dated
as of August 19, 2005, as amended by the First Omnibus Amendment, dated as of
December 27, 2005 and the Second Omnibus Amendment, dated as of January 12, 2006
(the "Collateral Agency Agreement");
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, as amended by the First
Omnibus Amendment, dated as of December 27, 2005 (the "Repurchase Agreement");
WHEREAS, certain parties hereto entered into the Transaction Documents
(as defined in the Loan Agreement) (the Loan Agreement, 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 or a
Jumbo Loan (other than a Super Jumbo Loan), ninety-eight percent
(98%), (ii) with respect to an Alt-A Loan, including a Forty Year
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-five percent (95%).
(b) The definition of "Collateral Value" is hereby amended by deleting
clause (c) therein in its entirety and replacing it with the following:
(c) (i) at any time, the portion of total Collateral Value that may be
attributable to Alt-A Loans shall not exceed fifty percent (50%) of
the Maximum Facility Amount; provided that (A) if an Obligor on any
Alt-A Loan shall have a FICO Score of less than 650, or (B) if an
Alt-A Loan shall have a Loan-to-Value Ratio of more than 95% or a
Combined Loan-to-Value Ratio of more than 100%, such Mortgage Loan
shall have a Collateral Value of zero; (ii) at any time, the portion
of total Collateral Value that may be attributable to Forty Year Alt-A
Loans shall not exceed ten percent (10%) of the Maximum Facility
Amount, which represents twenty percent (20%) of the amount set forth
in sub-clause (i) above; and (iii) at any time, the portion of
Collateral Value that may be attributable to Pay Option ARMs shall not
exceed fifteen percent (15%) of the Maximum Facility Amount, which
represents thirty percent (30%) of the amount set forth in sub-clause
(i) above.
(c) The definition of "Drawndown Termination Date" is hereby amended
by deleting the words "August 18, 2006" in clause (a) therein and replacing them
with "August 13, 2007".
(d) The definition of "Eligible Mortgage Loan" is hereby amended by
adding the words "(or, with respect to a Forty Year Conforming Loan, 40 years
and with respect to an Alt-A Loan, 40 years)" after the words "30 years" in
clause (a) therein.
(e) Article I is hereby amended by inserting the following definition
immediately after the definition of "Fitch":
"Forty Year Alt-A Loan" means a Non-Conforming Loan that has a
maximum term to maturity of 40 years and matches all the applicable
requirements for purchase under the requirements of a Take-Out
Commitment specifically issued for the purchase of such Mortgage Loan.
2
(f) Article I is hereby amended by inserting the following definition
immediately after the definition of "PBGC":
"Pay Option ARM" means an Alt-A Loan that (a) a minimum monthly
payment amount, which may or may not fully amortize the original
principal balance, is offered in conjunction with additional payment
options, (b) the interest rate is calculated on a monthly basis, by
adding 30-day LIBOR, or other such index as should be commercially
reasonable, to a margin determined first at closing, and subsequently
adjusted at regular intervals in order to ensure deficit interest is
capitalized in an amount not exceeding 115% of the original principal
balance thereof.
(g) Article I is hereby amended by inserting the following definition
immediately after the definition of "Pulte Mortgage":
"Pulte Revolver" means, as it applies to this Second Restated
Loan Agreement, the Sixth Amended and Restated Revolving Credit
Agreement, dated as of May 16, 2006 by and among Pulte Mortgage LLC,
the lenders party thereto, JPMorgan Chase Bank, N.A., as
administrative agent, J.P. Morgan Securities Inc., as lead arranger
and sole bookrunner and LaSalle Bank National Association, as
collateral agent, with such amendments that have been approved by the
Administrative Agent from time to time and a copy of which was given
to the Administrative Agent.
(h) The definition of "Super Jumbo Loan" is hereby deleted in its
entirety and replaced with the following:
"Super Jumbo Loan" means a Jumbo Loan having an original
principal balance greater than $1,000,000 and no greater than
$2,000,000.
(i) Section 6.23 is hereby added as follows:
6.23 Net Worth.
If the Servicer is the Originator, the Servicer will at all times
maintain a Consolidated Tangible Net Worth of at least Fifty Million
Dollars ($50,000,000), provided that such minimum amount shall be
reset on January 31, 2007 and each January 31 thereafter to be the
greater of (i) $50,000,000 and (ii) eighty-five percent (85%) of the
numerical average of the month-end Consolidated Tangible Net Worth as
reported in the monthly statements provided by the Servicer under
Section 6.1 of the Pulte Revolver as of the last day of each of the
twelve (12) calendar months in the preceding calendar year.
Capitalized terms in this Section not defined in this Second Restated
Loan Agreement have the meanings given such terms in the Pulte
Revolver.
(j) Section 7.10 is hereby deleted in its entirety and replaced with
the following:
3
7.10 Maximum Leverage.
If the Servicer is the Originator, the Servicer will not permit
the Leverage Ratio, at any time, to exceed 15.0 to 1.0. Capitalized
terms in this Section not defined in this Second Restated Loan
Agreement have the meanings given such terms in the Pulte Revolver.
(k) Section 7.11 Indebtedness is hereby amended by adding "(a)" in
front of the words "The Borrower" and by adding the following to the end of such
section:
(b) If the Servicer is the Originator, the Servicer will not permit
the aggregate Indebtedness of the Servicer and its Subsidiaries to
exceed at any time the sum of the following:
(i) one hundred percent (100%) of the value of the Servicer's
unrestricted cash and Cash Equivalent Investments and other
"short term investments";
(ii) ninety-five percent (95%) of the value of the Servicer's
"mortgage loans held for sale"; and
(iii) eighty percent (80%) of the Aggregate Servicing Value.
Terms set forth in quotation marks in this Section shall have the
meanings given such terms in the Servicer's consolidated financial
statements. Capitalized terms in this Section not defined in this
Second Restated Loan Agreement have the meanings given such terms in
the Pulte Revolver.
Section 2. 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 or a
Jumbo Loan (other than a Super Jumbo Loan), ninety-eight percent
(98%), (ii) with respect to an Alt-A Loan, including a Forty Year
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-five percent (95%).
(b) The definition of "Collateral Value" is hereby amended by deleting
clause (c) therein in its entirety and replacing it with the following:
(c) (i) at any time, the portion of total Collateral Value that may be
attributable to Alt-A Loans shall not exceed fifty percent (50%) of
the
4
Maximum Facility Amount; provided that (A) if an Obligor on any Alt-A
Loan shall have a FICO Score of less than 650, or (B) if an Alt-A Loan
shall have a Loan-to-Value Ratio of more than 95% or a Combined
Loan-to-Value Ratio of more than 100%, such Mortgage Loan shall have a
Collateral Value of zero; (ii) at any time, the portion of total
Collateral Value that may be attributable to Forty Year Alt-A Loans
shall not exceed ten percent (10%) of the Maximum Facility Amount,
which represents twenty percent (20%) of the amount set forth in
sub-clause (i) above; and (iii) at any time, the portion of Collateral
Value that may be attributable to Pay Option ARMs shall not exceed
fifteen percent (15%) of the Maximum Facility Amount, which represents
thirty percent (30%) of the amount set forth in sub-clause (i) above.
(c) The definition of "Drawndown Termination Date" is hereby amended
by deleting the words "August 18, 2006" in clause (a) therein and replacing them
with "August 13, 2007".
(d) The definition of "Eligible Mortgage Loan" is hereby amended by
adding the words "(or, with respect to a Forty Year Conforming Loan, 40 years
and with respect to an Alt-A Loan, 40 years)" after the words "30 years" in
clause (a) therein.
(e) Article I is hereby amended by inserting the following definition
immediately after the definition of "Fitch":
"Forty Year Alt-A Loan" means a Non-Conforming Loan that has a
maximum term to maturity of 40 years and matches all the applicable
requirements for purchase under the requirements of a Take-Out
Commitment specifically issued for the purchase of such Mortgage Loan.
(f) Article I is hereby amended by inserting the following definition
immediately after the definition of "Other Mortgage Documents":
"Pay Option ARM" means an Alt-A Loan that (a) a minimum monthly
payment amount, which may or may not fully amortize the original
principal balance, is offered in conjunction with additional payment
options, (b) the interest rate is calculated on a monthly basis, by
adding 30-day LIBOR, or other such index as should be commercially
reasonable, to a margin determined first at closing, and subsequently
adjusted at regular intervals in order to ensure deficit interest is
capitalized in an amount not exceeding 115% of the original principal
balance thereof.
(g) The definition of "Super Jumbo Loan" is hereby deleted in its
entirety and replaced with the following:
"Super Jumbo Loan" means a Jumbo Loan having an original
principal balance greater than $1,000,000 and no greater than
$2,000,000
5
(h) Exhibit D-8 is hereby deleted in its entirety and replaced with
Exhibit D-8, Form of Collateral Agent Daily Report, attached hereto as Annex A.
Section 3. 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 or a
Jumbo Loan (other than a Super Jumbo Loan), ninety-eight percent
(98%), (ii) with respect to an Alt-A Loan, including a Forty Year
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-five percent (95%).
(b) The definition of "Collateral Value" is hereby amended by deleting
clause (c) therein in its entirety and replacing it with the following:
(c) (i) at any time, the portion of total Collateral Value that may be
attributable to Alt-A Loans shall not exceed fifty percent (50%) of
the Maximum Facility Amount; provided that (A) if an Obligor on any
Alt-A Loan shall have a FICO Score of less than 650, or (B) if an
Alt-A Loan shall have a Loan-to-Value Ratio of more than 95% or a
Combined Loan-to-Value Ratio of more than 100%, such Mortgage Loan
shall have a Collateral Value of zero; (ii) at any time, the portion
of total Collateral Value that may be attributable to Forty Year Alt-A
Loans shall not exceed ten percent (10%) of the Maximum Facility
Amount, which represents twenty percent (20%) of the amount set forth
in sub-clause (i) above; and (iii) at any time, the portion of
Collateral Value that may be attributable to Pay Option ARMs shall not
exceed fifteen percent (15%) of the Maximum Facility Amount, which
represents thirty percent (30%) of the amount set forth in sub-clause
(i) above.
(c) The definition of "Drawndown Termination Date" is hereby amended
by deleting the words "August 18, 2006" in clause (a) therein and replacing them
with "August 13, 2007".
(d) The definition of "Eligible Mortgage Loan" is hereby amended by
adding the words "(or, with respect to a Forty Year Conforming Loan, 40 years
and with respect to an Alt-A Loan, 40 years)" after the words "30 years" in
clause (a) therein.
(e) Article I is hereby amended by inserting the following definition
immediately after the definition of "Fitch":
6
"Forty Year Alt-A Loan" means a Non-Conforming Loan that has a
maximum term to maturity of 40 years and matches all the applicable
requirements for purchase under the requirements of a Take-Out
Commitment specifically issued for the purchase of such Mortgage Loan.
(f) Article I is hereby amended by inserting the following definition
immediately after the definition of "PBGC":
"Pay Option ARM" means an Alt-A Loan that (a) a minimum monthly
payment amount, which may or may not fully amortize the original
principal balance, is offered in conjunction with additional payment
options, (b) the interest rate is calculated on a monthly basis, by
adding 30-day LIBOR, or other such index as should be commercially
reasonable, to a margin determined first at closing, and subsequently
adjusted at regular intervals in order to ensure deficit interest is
capitalized in an amount not exceeding 115% of the original principal
balance thereof.
(g) Article I is hereby amended by inserting the following definition
immediately after the definition of "Pulte Mortgage":
"Pulte Revolver" means, as it applies to this Agreement, the
Sixth Amended and Restated Revolving Credit Agreement, dated as of May
16, 2006 by and among Pulte Mortgage LLC, the lenders party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, J.P. Morgan
Securities Inc., as lead arranger and sole bookrunner and LaSalle Bank
National Association, as collateral agent, with such amendments that
have been approved by the Administrative Agent from time to time and a
copy of which was given to the Administrative Agent.
(h) The definition of "Super Jumbo Loan" is hereby deleted in its
entirety and replaced with the following:
"Super Jumbo Loan" means a Jumbo Loan having an original
principal balance greater than $1,000,000 and no greater than
$2,000,000.
(i) Section 5.19 is hereby deleted in its entirety and replaced with
the following:
5.19 Net Worth.
The Seller will at all times maintain a Consolidated Tangible Net
Worth of at least Fifty Million Dollars ($50,000,000), provided that
such minimum amount shall be reset on January 31, 2007 and each
January 31 thereafter to be the greater of (i) $50,000,000 and (ii)
eighty-five percent (85%) of the numerical average of the month-end
Consolidated Tangible Net Worth as reported in the monthly statements
provided by the Servicer under Section 6.1 of the Pulte Revolver as of
the last day of each of the twelve (12) calendar months in the
preceding calendar
7
year. Capitalized terms in this Section not defined in this Agreement
have the meanings given such terms in the Pulte Revolver.
(j) Section 5.22 is hereby deleted in its entirety and replaced with
the following:
5.22 Maximum Leverage.
The Seller will not permit the Leverage Ratio, at any time, to
exceed 15.0 to 1.0. Capitalized terms in this Section not defined in
this Agreement have the meanings given such terms in the Pulte
Revolver.
(k) Section 5.31 is hereby added as follows:
5.31 Indebtedness.
The Seller will not permit the aggregate Indebtedness of the
Servicer and its Subsidiaries to exceed at any time the sum of the
following:
(i) one hundred percent (100%) of the value of the Seller's
unrestricted cash and Cash Equivalent Investments and other "short
term investments";
(ii) ninety-five percent (95%) of the value of the Seller's "mortgage
loans held for sale"; and
(iii) eighty percent (80%) of the Aggregate Servicing Value.
Terms set forth in quotation marks in this Section shall have the
meanings given such terms in the Servicer's consolidated financial
statements. Capitalized terms in this Section not defined in this
Agreement have the meanings given such terms in the Pulte Revolver.
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.
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
8
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.
9
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: JPMorgan Chase Bank, N.A., its
attorney-in-fact
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as the Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-8
ANNEX A
FORM OF COLLATERAL AGENT DAILY REPORT
COLLATERAL AGENT DAILY REPORT
CALYON NEW YORK BRANCH
Facsimile No.: (212) 459-3258
Attention: Structured Finance
FORM OF BORROWING BASE CERTIFICATE
LaSalle Bank, NA certifies the following reflects Pulte Funding, Inc. collateral
position as of the end of the day
[Date] ______________________
MAXIMUM FACILITY AMOUNT $0.00
SEASONAL FACILITY AMOUNT $0.00
PRINCIPAL DEBT (AS MOST RECENTLY REPORTED TO COLLATERAL AGENT) $0.00
NOTE AMOUNT COLLATERAL VALUE
----------- ----------------
BEGINNING BALANCE OF PREVIOUS DAY AGGREGATE $0.00 $0.00
DAILY PLEDGES:
M189 - Pledges (new) $0.00 $0.00
M188 - Unpledges (transfers) $0.00 $0.00
M156 - Removes (cancels and repays) $0.00 $0.00
ENDING BALANCE OF DAILY PLEDGES $0.00 $0.00
D8-1
AGGREGATE BORROWING BASE
Conforming Mortgage Loans (CML1) $0.00 $0.00
Forty Year Conforming Loan $0.00 $0.00
Non Conforming Mortgage Loans (UNC1) $0.00 $0.00
Jumbo Loans (JML1) $0.00 $0.00
Non Conforming Jumbo Loans (NCJM) $0.00 $0.00
Super Jumbo Loans (SJML) $0.00 $0.00
Non Conforming Super Jumbo Loans (NCJM) $0.00 $0.00
Second Lien Loans (UNC2) $0.00 $0.00
ALT-A Loans (ALTA) $0.00 $0.00
Forty Year Alt-A Loans $0.00 $0.00
Pay Option ARMs $0.00 $0.00
Sub Prime Loans (SUBP) $0.00 $0.00
TOTAL AGGREGATE (BEFORE INELIGIBLE LOANS) $0.00 $0.00
INELIGIBLE ITEMS:
Ineligible Wet > 9 Days $0.00 $0.00
Ineligible Trust Release > 15 Days $0.00 $0.00
Ineligible Over Trust Limits $0.00 $0.00
Ineligible Shipped > 45 Days $0.00 $0.00
Ineligible Aged > 180 Cal Days $0.00 $0.00
TOTAL INELIGIBLE ITEMS $0.00 $0.00
D8-2
TOTAL WAREHOUSE BORROWING BASE $0.00 $0.00
ALT-A'S AVG FICO =>690, MINIMUM 650 PASS/FAIL PASS
Certification: To the best of the knowledge and belief (after reasonable
investigation) of the officer of the Company executing this Certificate, the
Company hereby certifies to LaSalle Bank, NA for the benefit of lenders under
the Loan Agreement that: (a) the above information is, and the computations &e
accurate and complete and in accordance with the requirements of the Loan
Agreement, and (b) as of the date hereof, (1) all representations and warranties
of the Company set forth in the Loan Agreement are accurate and complete, (2)
there does not exist an Event of Default under the Loan Agreement, and (3) the
Company has given written notice to LaSalle Bank, NA of any Default which now
exists under the Loan Agreement.
IN WITNESS WHEREOF, the Company has caused this Borrowing Base Certificate to be
executed and delivered by its duly authorized officer this
[Date] _________________
LaSalle Bank National Association
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------------------
[Date]
D8-3