EXHIBIT 10.2
FOURTH OMNIBUS AMENDMENT
THIS FOURTH OMNIBUS AMENDMENT (this "Amendment"), dated as of
September 20, 2004, 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"), formerly known as Pulte Mortgage Corporation, as a seller
(the "Seller") and the servicer (the "Servicer"), ATLANTIC ASSET SECURITIZATION
CORP., as an issuer ("Atlantic"), CALYON NEW YORK BRANCH, successor in interest
to Credit Lyonnais 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"), DANSKE BANK A/S, Cayman Islands Branch, as a
bank ("Danske"), BANK ONE, NA (MAIN OFFICE CHICAGO) and its successors, as a
bank and as a managing agent ("Bank One"), 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, Jupiter, the Administrative Agent,
Calyon New York, as a bank and as a managing agent, Bank One, Lloyds, and the
Servicer entered into that certain Amended and Restated Loan Agreement, dated as
of August 23, 2002 (the "Restated Loan Agreement");
WHEREAS, the Borrower, the Administrative Agent and LaSalle entered
into that certain Amended and Restated Collateral Agency Agreement (the
"Collateral Agency Agreement") and that certain Amended and Restated Security
Agreement (the "Security Agreement"), each dated as of August 23, 2002;
WHEREAS, the Seller and the Buyer entered into that certain Master
Repurchase Agreement, dated as of December 22, 2000, as supplemented by the
Amended and Restated Addendum to Master Repurchase Agreement, dated as of August
23, 2002, 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 Restated Loan Agreement, the
Collateral Agency Agreement, the Security Agreement, the Repurchase Agreement
and the Transaction Documents collectively, the "Operative Documents");
WHEREAS, certain of the Operative Documents were amended by that
certain Omnibus Amendment among the parties thereto dated December 31, 2002;
WHEREAS, certain of the Operative Documents were amended by that
certain Second Omnibus Amendment among the parties thereto dated August 25,
2003;
WHEREAS, certain of the Operative Documents were amended by that
certain Third Omnibus Amendment among the parties thereto dated September 30,
2003; 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" is hereby amended and restated in
its entirety, as follows:
"Advance" means with respect to any Lender any amount
disbursed by such Lender to the Borrower pursuant to Section 2.1 (or
any conversion or continuation thereof).
(b) The definition of "Advance Rate" is hereby amended by adding the
words ", an Interest Only Loan" after the words "Second Lien Loan" in clause
(iii) thereof.
(c) The definition of "Bank" is hereby amended and restated in its
entirety, as follows:
"Bank" means each of Calyon New York, Bank One, Danske and
Lloyds and each respective Eligible Assignee (as defined in the
Restated Loan Agreement) that shall become a party to the Restated
Loan Agreement pursuant to an Assignment and Acceptance.
(d) The definition of "Bank Commitment" is hereby amended and
restated in its entirety, as follows:
"Bank Commitment" means (a) with respect to Calyon New York,
Danske, Lloyds and Bank One, 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 Restated Loan Agreement shall (unless otherwise agreed
by all the Banks) reduce ratably (or terminate) each Bank's Bank
Commitment. At no time shall the aggregate Bank Commitments of all
Banks exceed the Maximum Facility Amount.
(e) The definition of "Collateral Value" is hereby amended in its
entirety, and the following is substituted therefor:
"Collateral Value" means
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(A) with respect to each Eligible Mortgage Loan and at all
times, an amount equal to the product of the Advance Rate for such
Eligible Mortgage Loan multiplied by the least of:
(1) the lesser of the original principal amount of such
Eligible Mortgage Loan or the acquisition price paid by Pulte
Mortgage LLC on the closing and funding of such Eligible Mortgage
Loan;
(2) for each Eligible Mortgage Loan, a ratable amount
determined by multiplying (a) the weighted average purchase price
(expressed as a percentage of par) that Approved Investors are
obligated to pay, pursuant to Take-Out Commitments, for all Eligible
Mortgage Loans, as shown on the most recent Hedge Report, times (b)
the outstanding principal amount of such Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing,
or upon request of either of the Managing Agents at any other time,
the Market Value of such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of
collected funds therein which is not subject to any Lien in favor of
any Person other than the Lien in favor of the Administrative Agent
for the benefit of the holders of the Obligations;
provided, however, that
(a) at any time, the portion of total Collateral Value
that may be attributable to Jumbo Loans shall not exceed thirty-five
percent (35%) of the Maximum Facility Amount;
(b) at any time, the portion of total Collateral Value
that may be attributable to Super Jumbo Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount;
(c) at any time, the portion of total Collateral Value
that may be attributable collectively to No Income Or No Asset Loans
and No Income And No Asset Loans shall not exceed ten percent (10%)
of the Maximum Facility Amount, it being understood that this
limitation is a sub-limit of the limitation set forth in clause (d)
below;
(d) at any time, the portion of total Collateral Value
that may be attributable to Alt-A Loans shall not exceed fifteen
percent (15%) of the Maximum Facility Amount;
(e) at any time, the portion of total Collateral Value
that may be attributable collectively to Interest Only Loans shall
not exceed, when aggregated with the portion of total Collateral
Value
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attributable to Alt-A Loans, twenty five percent (25%) of the
Maximum Facility Amount;
(f) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans for which the Mortgage
Notes have been withdrawn for correction pursuant to Section 3.5 of
the Collateral Agency Agreement shall not exceed five percent (5%)
of the Maximum Facility Amount, as determined in accordance with
said Section 3.5 of the Collateral Agency Agreement;
(g) at any time, the portion of the total Collateral
Value that may be attributable to any single Approved Investor
listed on Schedule II pursuant to one or more Take-Out Commitments
shall not exceed the concentration limit for such Approved Investor
as set forth on Schedule II (as the same may be updated from time to
time);
(h) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans that have been Eligible
Mortgage Loans (A) for more than 120 days shall not exceed ten
percent (10%) of the Maximum Facility Amount or (B) for more than
180 days, or in the case of Interest Only Loans, for more than 60
days, shall be zero;
(i) a Mortgage Loan that ceases to be an Eligible
Mortgage Loan shall have a Collateral Value of zero;
(j) at any time, (A) except the first five and last five
Business Days of any month, the portion of total Collateral Value
that may be attributable to Special Mortgage Loans with respect to
which the related Principal Mortgage Documents have not been
delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the
related Mortgage Loan shall not exceed thirty percent (30%) of the
Maximum Facility Amount, and (B) during the first five and last five
(5) Business Days of any month, the portion of total Collateral
Value that may be attributable to Special Mortgage Loans with
respect to which the related Principal Mortgage Documents have not
been delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the
related Mortgage Loan shall not exceed fifty percent (50%) of the
Maximum Facility Amount; and
(k) at any time, the portion of total Collateral Value
that may be attributable to Second Lien Loans shall not exceed five
percent (5%) of the Maximum Facility Amount, it being understood
that this limitation is a sub-limit of the limitation set forth in
clause (e) above.
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(f) The definition of "Combined Facility Amount" is hereby deleted
in its entirety, and all appearances of such term shall be revised to refer to
"Maximum Facility Amount."
(g) The following definition of "Danske" is hereby added after the
definition of "CP Allocation":
"Danske" means Danske Bank A/S, Cayman Islands Branch.
(h) The definition of "Eligible Mortgage Loan" is hereby amended by
inserting the words "an Interest Only Loan," after the words "a Jumbo Loan," in
paragraph (b) thereof, and by inserting the words "or in the case of an Interest
Only Loan, within 10 days after its Mortgage Origination Date" before the
semicolon in paragraph (m).
(i) The following definition of "Interest Only Loan" is hereby added
after the definition of "Indemnified Party":
"Interest Only Loan" means a Non-Conforming Loan with respect
to which the Obligor's monthly payment consists only of interest
payments and not any amount designed to amortize the outstanding
principal amount of such Mortgage Loan.
(j) The definition of "Issuer" is hereby amended and restated in its
entirety, as follows:
"Issuer" means either of Atlantic and Jupiter.
(k) The definition of "Lenders" is hereby amended and restated in
its entirety, as follows:
"Lenders" means, collectively, the Issuers and the Banks.
(l) The definition of "Mortgage Assets" is hereby amended and
restated in its entirety, as follows:
"Mortgage Assets" means, collectively, all of the Mortgage
Loans, including funds advanced for Mortgage Loans that ultimately
fail to close, and all Take-Out Commitments.
(m) The definition of "Non-Conforming Loan" is hereby amended by
inserting the words "an Interest Only Loan," after the words "a Jumbo Loan,"
therein.
(n) The definition of "Required Reserve Account Amount" is hereby
amended and restated in its entirety, as follows:
"Required Reserve Account Amount" means, on any date, 0.50% of
the Maximum Facility Amount on such date.
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(o) The following definitions, and any and all references thereto,
are hereby deleted in their entirety: "Annual Seasonal Extension Date,"
"Seasonal Advance," "Seasonal Availability," "Seasonal Bank," "Seasonal Bank
Commitment," "Seasonal Bank Commitment Percentage," "Seasonal Borrowing,"
"Seasonal Drawdown Termination Date," "Seasonal Facility," "Seasonal Facility
Amount," "Seasonal Facility Termination Date," "Seasonal Issuer," "Seasonal
Period" and "Seasonal Lenders.
(p) The following phrase is hereby deleted from the first sentence
of Section 2.2: "or substantially in the form set forth in Exhibit E-3 (in the
case of the Seasonal Lenders) hereto, in the Seasonal Facility Amount".
(q) The third sentence of Section 2.3(a)(i) is hereby deleted in its
entirety.
(r) The following phrase is hereby deleted in its entirety from
Section 2.3(a)(ii): "or Seasonal Bank's Bank Commitment Percentage".
(s) Section 2.3(c)(iii) is hereby amended and restated in its
entirety, as follows:
Within nine (9) Business Days after the earlier of the date
that each Assignment is delivered or, if different, the date of
origination of the related Special Mortgage Loan (and inclusion of
the related Special Mortgage Loan within the computation of
Collateral Value as reported on the Collateral Agent Daily Report),
to Collateral Agent, the Borrower shall deliver to the Collateral
Agent the Principal Mortgage Documents pertaining to any Special
Mortgage Loan identified on Schedule II of such Assignment; and
(t) The first sentence of Section 2.3(d) is hereby amended by
deleting the phrase "by the ninth Business Day".
(u) Section 2.5(b) is hereby amended and restated in its entirety,
as follows:
Mandatory Prepayments. The Borrower shall immediately make a
mandatory prepayment on the Principal Debt owed to the Lenders if at
any time, and to the extent that, (i) the Principal Debt owed to the
Lenders exceeds the Maximum Facility Amount, or (ii) the Principal
Debt exceeds the total Collateral Value of all Eligible Mortgage
Collateral. The Borrower shall be liable for any Consequential Loss
resulting from any such prepayment.
(v) Section 2.7(c)(iii)(E) is hereby deleted in its entirety and
replaced with the word "Reserved."
(w) The following phrase is hereby deleted from the end of Section
2.15(a): "provided, however, that no Interest Period with respect to the
Seasonal Facility shall extend beyond the end of each Seasonal Period."
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(x) Section 2.20 is hereby deleted in its entirety.
(y) Section 4.2(a)(i) is hereby amended to replace the reference to
"4:00 pm" with "5:00 pm."
(z) The following two sentences are inserted after the first
sentence in Section 6.20:
The Borrower shall direct, via the closing instruction letter,
each addressee title insurance company, agent or attorney to
remit into the Collection Account any funds held in escrow for a
Mortgage Loan that ultimately fails to close by the second
Business Day after the originally scheduled closing date for
such Mortgage Loan. In the absence of such remittance, the
Borrower shall either (i) substitute for the subject Mortgage
Loan a substantially similar Mortgage Loan or (ii) remit into
the Collection Account, from its own funds, funds sufficient to
repay funds advanced for the subject Mortgage Loan.
(aa) Section 7.10 is hereby deleted in its entirety and replaced
with the following:
If the Servicer is the Originator, the Servicer shall never
permit its Adjusted Liabilities to exceed 12 times its Adjusted Net
Worth.
(bb) Section 8.1(bb) is hereby deleted in its entirety and replaced
with the following:
the Originator's Net Worth shall be less than $30,000,000; or
(cc) In Section 13.1, any reference to the Seasonal Issuer and the
Seasonal Bank, including the specification of the names and addresses thereof,
is hereby deleted in its entirety.
(dd) Schedule I is hereby replaced in its entirety with Schedule I
attached hereto.
(ee) Exhibit C (Form of Borrowing Request) is hereby replaced in its
entirety with Exhibit C attached hereto.
(ff) Exhibit E-3 (Form of Promissory Note) is hereby deleted in its
entirety.
(gg) In Exhibit A to Exhibit F (Form of Servicer Monthly Report)
each appearance of "9 Day Max" is hereby replaced with "nine (9) business days
from the earlier of assignment or origination."
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(hh) All appearances of the following phrases are hereby deleted in
their entirety, including appearances in parenthetical form: "and Seasonal
Advances," "and Seasonal Facility Amount," "and the Seasonal Facility Amount,"
"and the Seasonal Facility Termination Date," "including a Seasonal Borrowing,"
"or Seasonal Bank," "or Seasonal Bank's," "or Seasonal Bank's Seasonal Bank
Commitment," "or Seasonal Issuer," "other than the Seasonal Facility," and
"other than the Seasonal Lenders."
(ii) All appearances of "Credit Lyonnais New York Branch" and "CL
New York" are hereby replaced with "Calyon New York Branch" and "Calyon New
York," respectively.
(jj) All references to "Pulte Mortgage Company" or "PMC" shall be
understood to refer to Pulte Mortgage LLC.
Section 2. Amendments to the Repurchase Agreement.
(a) The definition of "Advance" is hereby amended and restated in
its entirety, as follows:
"Advance" means with respect to any Lender any amount
disbursed by such Lender to the Borrower pursuant to Section 2.1 of
the Restated Loan Agreement (or any conversion or continuation
thereof).
(b) The definition of "Advance Rate" is hereby amended by adding the
words ", an Interest Only Loan" after the words "Second Lien Loan" in clause
(iii) thereof.
(c) The definition of "Bank" is hereby amended and restated in its
entirety, as follows:
"Bank" means each of Calyon New York, Bank One, Danske and
Lloyds and each respective Eligible Assignee (as defined in the
Restated Loan Agreement) that shall become a party to the Restated
Loan Agreement pursuant to an Assignment and Acceptance.
(d) The definition of "Collateral Value" is hereby amended and
restated in its entirety, as follows:
"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at all
times, an amount equal to the product of the Advance Rate for such
Eligible Mortgage Loan multiplied by the least of:
(1) the lesser of the original principal amount of such
Eligible Mortgage Loan or the acquisition price paid by Pulte
Mortgage LLC on the closing and funding of such Eligible Mortgage
Loan;
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(2) for each Eligible Mortgage Loan, a ratable amount
determined by multiplying (a) the weighted average purchase price
(expressed as a percentage of par) that Approved Investors are
obligated to pay, pursuant to Take-Out Commitments, for all Eligible
Mortgage Loans, as shown on the most recent Hedge Report, times (b)
the outstanding principal amount of such Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing,
or upon request of either of the Managing Agents at any other time,
the Market Value of such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of
collected funds therein which is not subject to any Lien in favor of
any Person other than the Lien in favor of the Administrative Agent
for the benefit of the holders of the Obligations;
provided, however, that
(a) at any time, the portion of total Collateral Value
that may be attributable to Jumbo Loans shall not exceed thirty-five
percent (35%) of the Maximum Facility Amount;
(b) at any time, the portion of total Collateral Value
that may be attributable to Super Jumbo Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount;
(c) at any time, the portion of total Collateral Value
that may be attributable collectively to No Income Or No Asset Loans
and No Income And No Asset Loans shall not exceed ten percent (10%)
of the Maximum Facility Amount, it being understood that this
limitation is a sub-limit of the limitation set forth in clause (d)
below;
(d) at any time, the portion of total Collateral Value
that may be attributable to Alt-A Loans shall not exceed fifteen
percent (15%) of the Maximum Facility Amount;
(e) at any time, the portion of total Collateral Value
that may be attributable collectively to Interest Only Loans shall
not exceed, when aggregated with the portion of total Collateral
Value attributable to Alt-A Loans, twenty five percent (25%) of the
Maximum Facility Amount;
(f) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans for which the Mortgage
Notes have been withdrawn for correction pursuant to Section 3.5 of
the Collateral Agency Agreement shall not exceed five percent (5%)
of the Maximum Facility Amount, as determined in accordance with
said Section 3.5 of the Collateral Agency Agreement;
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(g) at any time, the portion of the total Collateral
Value that may be attributable to any single Approved Investor
listed on Schedule II pursuant to one or more Take-Out Commitments
shall not exceed the concentration limit for such Approved Investor
as set forth on Schedule II (as the same may be updated from time to
time);
(h) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans that have been Eligible
Mortgage Loans (A) for more than 120 days shall not exceed ten
percent (10%) of the Maximum Facility Amount or (B) for more than
180 days, or in the case of Interest Only Loans, for more than 60
days, shall be zero;
(i) a Mortgage Loan that ceases to be an Eligible
Mortgage Loan shall have a Collateral Value of zero;
(j) at any time, (A) except the first five and last five
Business Days of any month, the portion of total Collateral Value
that may be attributable to Special Mortgage Loans with respect to
which the related Principal Mortgage Documents have not been
delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the
related Mortgage Loan shall not exceed thirty percent (30%) of the
Maximum Facility Amount, and (B) during the first five and last five
(5) Business Days of any month, the portion of total Collateral
Value that may be attributable to Special Mortgage Loans with
respect to which the related Principal Mortgage Documents have not
been delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the
related Mortgage Loan shall not exceed fifty percent (50%) of the
Maximum Facility Amount; and
(k) at any time, the portion of total Collateral Value
that may be attributable to Second Lien Loans shall not exceed five
percent (5%) of the Maximum Facility Amount, it being understood
that this limitation is a sub-limit of the limitation set forth in
clause (e) above.
(e) The definition of "Combined Facility Amount" is hereby deleted
in its entirety, and all appearances of such term shall be revised to refer to
"Maximum Facility Amount."
(f) The following definition of "Danske" is hereby added after the
definition of "Conforming Loan":
"Danske" means Danske Bank A/S, Cayman Islands Branch.
(g) The definition of "Eligible Mortgage Loan" is hereby amended by
inserting the words "an Interest Only Loan," after the words "a Jumbo Loan," in
paragraph (b)
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thereof, and by inserting the words "or in the case of an Interest Only Loan,
within 10 days after its Mortgage Origination Date" before the semicolon in
paragraph (m).
(h) The following definition of "Interest Only Loan" is hereby added
after the definition of Indemnified Party:
"Interest Only Loan" means a Non-Conforming Loan with respect
to which the Obligor's monthly payment consists only of interest
payments and not any amount designed to amortize the outstanding
principal amount of such Mortgage Loan.
(i) The definition of "Issuer" is hereby amended and restated in its
entirety, as follows:
"Issuer" means either of Atlantic or Jupiter.
(j) The definition of "Lenders" is hereby amended and restated in
its entirety, as follows:
"Lenders" means, collectively, the Issuers and the Banks.
(k) The definition of "Mortgage Assets" is hereby amended and
restated in its entirety, as follows:
"Mortgage Assets" means, collectively, all of the Mortgage
Loans, including funds advanced for Mortgage Loans that ultimately
fail to close, and all Take-Out Commitments.
(l) The definition of "Non-Conforming Loan" is hereby amended by
inserting the words "an Interest Only Loan," after the words "a Jumbo Loan,"
therein.
(m) The following definitions, and any and all references thereto,
are hereby deleted in their entireties: "Seasonal Bank," "Seasonal Facility,"
"Seasonal Facility Amount," "Seasonal Issuer," "Seasonal Period" and "Seasonal
Lenders."
(n) Section 5.19 is hereby deleted in its entirety and replaced with
the following:
The Seller's Net Worth shall never be less than $30,000,000.
(o) Section 5.22 is hereby deleted in its entirety and replaced with
the following:
The Seller shall not permit its Adjusted Liabilities to exceed
12 times its Adjusted Net Worth.
(p) Section 5.23 is hereby amended by replacing each occurrence of
the phrase "within nine (9) Business Days after the date of transfer hereunder
of any Special
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Mortgage Loan from the Seller" with the phrase "within nine (9) Business Days
after the earlier of the date of transfer hereunder of any Special Mortgage Loan
from the Seller or, if different, the date of origination of such Special
Mortgage Loan".
(q) All appearances of "Credit Lyonnais New York Branch" and "CL New
York" are hereby replaced with "Calyon New York Branch" and "Calyon New York,"
respectively.
(r) All references to "Pulte Mortgage Company" or "PMC" shall be
understand to refer to Pulte Mortgage LLC.
Section 3. Amendments to the Collateral Agency Agreement.
(a) The definition of "Advance" is hereby amended and restated in
its entirety, as follows:
"Advance" means with respect to any Lender any amount
disbursed by such Lender to the Borrower pursuant to Section 2.1 of
the Restated Loan Agreement (or any conversion or continuation
thereof).
(b) The definition of "Advance Rate" is hereby amended by adding the
words ", an Interest Only Loan" after the words "Second Lien Loan" in clause
(iii) thereof.
(c) The definition of "Banks" is hereby amended and restated in its
entirety, as follows:
"Banks" means Calyon New York, Danske, Bank One and Lloyds and
each respective Eligible Assignee that shall become a party to the
Restated Loan Agreement pursuant to an Assignment and Acceptance.
(d) The definition of "Collateral Value" is hereby amended and
restated in its entirety, as follows:
"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at all
times, an amount equal to the product of the Advance Rate for such
Eligible Mortgage Loan multiplied by the least of:
(1) the lesser of the original principal amount of such
Eligible Mortgage Loan or the acquisition price paid by Pulte
Mortgage LLC on the closing and funding of such Eligible Mortgage
Loan;
(2) for each Eligible Mortgage Loan, a ratable amount
determined by multiplying (a) the weighted average purchase price
(expressed as a percentage of par) that Approved Investors are
obligated to pay, pursuant to Take-Out Commitments, for all Eligible
Mortgage Loans,
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as shown on the most recent Hedge Report, times (b) the outstanding
principal amount of such Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing,
or upon request of either of the Managing Agents at any other time,
the Market Value of such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of
collected funds therein which is not subject to any Lien in favor of
any Person other than the Lien in favor of the Administrative Agent
for the benefit of the holders of the Obligations;
provided, however, that
(a) at any time, the portion of total Collateral Value
that may be attributable to Jumbo Loans shall not exceed thirty-five
percent (35%) of the Maximum Facility Amount;
(b) at any time, the portion of total Collateral Value
that may be attributable to Super Jumbo Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount;
(c) at any time, the portion of total Collateral Value
that may be attributable collectively to No Income Or No Asset Loans
and No Income And No Asset Loans shall not exceed ten percent (10%)
of the Maximum Facility Amount, it being understood that this
limitation is a sub-limit of the limitation set forth in clause (d)
below;
(d) at any time, the portion of total Collateral Value
that may be attributable to Alt-A Loans shall not exceed fifteen
percent (15%) of the Maximum Facility Amount;
(e) at any time, the portion of total Collateral Value
that may be attributable collectively to Interest Only Loans shall
not exceed, when aggregated with the portion of total Collateral
Value attributable to Alt-A Loans, twenty five percent (25%) of the
Maximum Facility Amount;
(f) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans for which the Mortgage
Notes have been withdrawn for correction pursuant to Section 3.5 of
the Collateral Agency Agreement shall not exceed five percent (5%)
of the Maximum Facility Amount, as determined in accordance with
said Section 3.5 of the Collateral Agency Agreement;
(g) at any time, the portion of the total Collateral
Value that may be attributable to any single Approved Investor
listed on Schedule II pursuant to one or more Take-Out Commitments
shall not
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exceed the concentration limit for such Approved Investor as set
forth on Schedule II (as the same may be updated from time to time);
(h) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans that have been Eligible
Mortgage Loans (A) for more than 120 days shall not exceed ten
percent (10%) of the Maximum Facility Amount or (B) for more than
180 days, or in the case of Interest Only Loans, for more than 60
days, shall be zero;
(i) a Mortgage Loan that ceases to be an Eligible
Mortgage Loan shall have a Collateral Value of zero;
(j) at any time, (A) except the first five and last five
Business Days of any month, the portion of total Collateral Value
that may be attributable to Special Mortgage Loans with respect to
which the related Principal Mortgage Documents have not been
delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the
related Mortgage Loan shall not exceed thirty percent (30%) of the
Maximum Facility Amount, and (B) during the first five and last five
(5) Business Days of any month, the portion of total Collateral
Value that may be attributable to Special Mortgage Loans with
respect to which the related Principal Mortgage Documents have not
been delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the
related Mortgage Loan shall not exceed fifty percent (50%) of the
Maximum Facility Amount; and
(k) at any time, the portion of total Collateral Value
that may be attributable to Second Lien Loans shall not exceed five
percent (5%) of the Maximum Facility Amount, it being understood
that this limitation is a sub-limit of the limitation set forth in
clause (e) above.
(e) The definition of "Combined Facility Amount" is hereby deleted
in its entirety, and all appearances of such term shall be revised to refer to
"Maximum Facility Amount."
(f) The following definition of "Danske" is hereby added to Exhibit
D-1 after the definition of "Conforming Loan":
"Danske" means Danske Bank A/S, Cayman Islands Branch.
14
(g) The definition of "Eligible Mortgage Loan" is hereby amended by
inserting the words "an Interest Only Loan," after the words "a Jumbo Loan," in
paragraph (b) thereof, and by inserting the words "or in the case of an Interest
Only Loan, within 10 days after its Mortgage Origination Date" before the
semicolon in paragraph (m).
(h) The following definition of "Interest Only Loan" is hereby added
after the definition of Indemnified Party:
"Interest Only Loan" means a Non-Conforming Loan with respect
to which the Obligor's monthly payment consists only of interest
payments and not any amount designed to amortize the outstanding
principal amount of such Mortgage Loan.
(i) The definition of "Issuers" is hereby amended and restated in
its entirety, as follows:
"Issuers" means Atlantic and Jupiter.
(j) The definition of "Lenders" is hereby amended and restated in
its entirety, as follows:
"Lenders" means, collectively, the Issuers and the Banks.
(k) The definition of "Non-Conforming Loan" is hereby amended by
inserting the words "an Interest Only Loan," after the words "a Jumbo Loan,"
therein.
(l) The following definitions, and any and all references thereto,
are hereby deleted in their entireties: "Seasonal Bank," "Seasonal Facility,"
"Seasonal Facility Amount," "Seasonal Issuer," "Seasonal Lenders" and "Seasonal
Period."
(m) Section 3.6(b) is hereby amended by replacing the phrase "Within
nine (9) Business Days after the date that each Assignment is delivered" with
the phrase "Within nine (9) Business Days after the earlier of the date that
each Assignment is delivered or, if different, the date of origination of the
related Special Mortgage Loan)".
(n) Section 3.7(a)(ii) is hereby amended and restated in its
entirety, as follows:
The information supplied by the Borrower to the Collateral
Agent, whether written or in any other form acceptable to the
Collateral Agent, with respect to a determination as to whether
amounts received in the Collection Account represent the purchase
price paid for a specific Mortgage Loan or funds deposited to the
Collection Account as a result of a Mortgage Loan's failure to
close, and, consequently, whether the Collateral Value of such
Mortgage Loan or failed Mortgage Loan should be removed from such
calculation;
(o) The first paragraph of Exhibit D-4 (Form of Assignment) is
hereby amended by replacing the phrase "within 9 Business Days" with the phrase
"within 9
15
Business Days of the earlier of the date hereof or, if different, the date of
origination of the related Mortgage Loan".
(p) All appearances of the following phrases are hereby deleted in
their entireties: "or the Seasonal Facility Amount" and "or new Seasonal
Facility Amount."
(q) All appearances of "Credit Lyonnais New York Branch" and "CL New
York" are hereby replaced with "Calyon New York Branch" and "Calyon New York,"
respectively.
(r) All references to "Pulte Mortgage Company" or "PMC" shall be
understand to refer to Pulte Mortgage LLC.
Section 4. Amendment to the Security Agreement.
(a) The following phrase is added to the end of paragraph (a) of the
definition of "Collateral": ", and any and all funds advanced with respect to a
Mortgage Loan, which Mortgage Loan ultimately fails to close".
(b) All appearances of "Credit Lyonnais New York Branch" and "CL New
York" are hereby replaced with "Calyon New York Branch" and "Calyon New York,"
respectively.
Section 5. 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 6. 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.
16
(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.
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.
17
PULTE FUNDING, INC.,
as the Borrower and the Buyer
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name:
Title: Senior Vice President
PULTE MORTGAGE LLC,
as the Servicer and the Seller
By: /s/ Xxxx X'Xxxxxxxx
----------------------------------------
Name:
Title: Vice President
CALYON NEW YORK BRANCH,
successor in interest to Credit Lyonnais
New York Branch, as a Bank, as a
Managing Agent and as the Administrative
Agent
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name:
Title: Managing Director
{Signatures continue on next page.}
18
ATLANTIC ASSET SECURITIZATION CORP.,
as an Issuer
By: Calyon New York Branch, successor in
interest to Credit Lyonnais New York
Branch, as Attorney-In-Fact
By: /s/ Xxxxx X. Xxxx
------------------------------
Name:
Title: Managing Director
LLOYDS TSB BANK PLC,
as a Bank
By: /s/ Xxx Xxxxxxx /s/ Xxxxxxxx Xxxxx
----------------------------------------
Name:
Title: Vice President Asst. Vice President
DANSKE BANK A/S, Cayman Islands Branch,
as a Bank
By: /s/ Xxxxx Xxxx /s/ Xxx Xxxx Xxxxxxx
------------------------------------------
Name:
Title: Vice President Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Bank and as a Managing Agent
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------------
Name:
Title: Managing Director
{Signatures continue on next page.}
19
JUPITER SECURITIZATION CORPORATION,
as an Issuer
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Name:
Title: Managing Director
LASALLE BANK NATIONAL ASSOCIATION,
as the Collateral Agent
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name:
Title: Vice President
20
SCHEDULE I
BANK COMMITMENTS AND PERCENTAGES
Bank Commitment
Bank Bank Commitment Percentage
---- --------------- ----------
CALYON NEW YORK BRANCH* $ 125,000,000 22.73%
BANK ONE, NA (MAIN OFFICE CHICAGO)** $ 250,000,000 45.45%
LLOYDS TSB BANK PLC* $ 75,000,000 13.64%
DANSKE BANK A/S, Cayman Islands Branch* $ 100,000,000 18.18%
* Part of the Calyon New York Group, related to Atlantic.
** Part of the Bank One Group, related to Jupiter.
I-1
EXHIBIT C
FORM OF BORROWING REQUEST
TO: CALYON NEW YORK BRANCH,
as Administrative Agent and a Managing Agent
under the Restated Loan Agreement
referred to below
BANK ONE TRUST COMPANY, N.A.
(MAIN OFFICE CHICAGO), as a Managing
Agent under the Restated Loan Agreement
referred to below
LASALLE BANK NATIONAL ASSOCIATION,
as the Collateral Agent under the Restated Loan
Agreement referred to below
1. Pulte Funding Inc. hereby requests a Borrowing (the "Requested
Borrowing") in the amount and on the Borrowing Date herein specified on Schedule
I attached hereto, pursuant to the Amended and Restated Loan Agreement dated as
of August 23, 2002, among PULTE FUNDING, INC., as the Borrower (hereinafter,
together with its successors and assigns, the "Borrower"), ATLANTIC ASSET
SECURITIZATION CORP., as an Issuer (hereinafter, together with its successors
and assigns, "Atlantic"), JUPITER SECURITIZATION CORPORATION, as an Issuer
(hereinafter, together with its successors and assigns, "Jupiter") CALYON NEW
YORK BRANCH, successor in interest to Credit Lyonnais New York Branch
(hereinafter, together with its successors and assigns, "Calyon New York"), as a
Bank, the Administrative Agent and a Managing Agent, BANK ONE, NA (MAIN OFFICE
CHICAGO) (hereinafter, together with its successors and assigns, "Bank One"), as
a Bank and as a Managing Agent, LLOYDS TSB BANK PLC, as a Bank (hereinafter,
together with its successors and assigns, "Lloyds"), DANSKE BANK A/S, Cayman
Islands Branch, as a Bank (hereinafter, together with its successors and
assigns, "Danske"), and PULTE MORTGAGE LLC, formerly known as Pulte Mortgage
Corporation, as the Servicer (hereinafter, together with its successors and
assigns, "PM") (such agreement, as from time to time supplemented, amended,
restated or extended, the "Restated Loan Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings given thereto in the Restated
Loan Agreement.
2. The undersigned officer of the Borrower hereby represents and warrants
for the benefit of the Lenders and the Agent that:
(1) The Borrower is entitled to receive the Requested Borrowing under
the terms and conditions of the Restated Loan Agreement (and
pursuant to the Assignment, if any, executed in connection herewith,
the Borrower grants to the Administrative Agent a security interest
in the Collateral described in such Assignment);
C-1
(2) (i) if the Borrowing requested hereunder is not a Special Borrowing,
all Principal Mortgage Documents required under Section 3.2(b) of
the Restated Loan Agreement and which relate to the Mortgage Loans
identified on Schedule I to the Assignment, if any, executed in
connection herewith have been delivered to the Collateral Agent, and
(ii) if the Borrowing requested hereunder is a Special Borrowing,
either (A) all such documents which relate to Schedule II to the
Assignment shall be delivered to the Collateral Agent within nine
(9) Business Days after the earlier of the date the related
Assignment is delivered or, if different, the date of origination of
the related Special Mortgage Loan, as required under Section 2.3(c)
of the Restated Loan Agreement, or (B) the Principal Debt that has
been borrowed against such Mortgage Loans shall be repaid in full as
and to the extent required under Section 2.3(d) of the Restated Loan
Agreement;
(3) all Mortgage Loans, Principal Mortgage Documents and Other Mortgage
Documents in which the Administrative Agent is granted a security
interest pursuant to the Assignment, if any, in connection herewith,
comply in all material respects with the applicable requirements set
forth in the Restated Loan Agreement and the Restated Security
Agreement;
(4) at all times relevant to this Agreement, total Collateral Value
attributable to the types or categories of Collateral referred to in
the definition of Collateral Value has not, and does not now, exceed
the limitations established in such definition;
(5) no Default or Event of Default has occurred or is continuing; and
(6) no change or event which constitutes a Material Adverse Effect as to
the Borrower has occurred.
3. The representations and warranties of the Borrower contained in the
Restated Loan Agreement and those contained in each other Transaction Document
to which the Borrower is a party are true and correct in all material respects
on and as of the date hereof.
4. All of the conditions applicable to the Requested Borrowing pursuant to
Section 4.2 of the Restated Loan Agreement are and will be satisfied immediately
before and after giving effect to the Requested Borrowing.
C-2
PULTE FUNDING, INC.,
as the Borrower
Date:___________________ By:_______________________________
Name:__________________________
Title:_________________________
C-3
SCHEDULE I TO BORROWING REQUEST
Borrowing Date _________________________
Maturity Date _________________________
Days in Interest Period _________________________
Max Facility Amount _________________________
Existing Funded CP _________________________
Expiring CP _________________________
New Request Total _________________________
Expiring CP Rolled_________________________
New CP_________________________
Atlantic_________________________
Jupiter_________________________
Proceeds
Atlantic Rolled CP_________________________
Atlantic New CP_________________________
Total Atlantic_________________________
Jupiter Rolled CP_________________________
Jupiter New CP_________________________
Total Jupiter_________________________
Principal Debt
Availability
SCHEDULE II TO FORM OF BORROWING REQUEST
SERVICER PERIODIC REPORT
[DATE]
PULTE FUNDING, INC.
Fax No: (000) 000-0000
Attention: Xxxx Xxxxxxxx
LASALLE BANK NATIONAL ASSOCIATION
Fax No: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
Re: PULTE FUNDING, INC.
We refer to the Amended and Restated Loan Agreement, dated as of
August 23, 2002, among PULTE FUNDING, INC., as the Borrower (hereinafter,
together with its successors and assigns, the "Borrower"), ATLANTIC ASSET
SECURITIZATION CORP., as an Issuer (hereinafter, together with its successors
and assigns, "Atlantic"), JUPITER SECURITIZATION CORPORATION, as an Issuer
(hereinafter, together with its successors and assigns, "Jupiter"), CALYON NEW
YORK BRANCH, successor in interest to Credit Lyonnais New York Branch
(hereinafter, together with its successors and assigns, "Calyon New York"), as a
Bank, the Administrative Agent and a Managing Agent, BANK ONE, NA (MAIN OFFICE
CHICAGO) (hereinafter, together with its successors and assigns, "Bank One"), as
a Bank and as a Managing Agent, LLOYDS TSB BANK PLC, as a Bank (hereinafter,
together with its successors and assigns, "Lloyds"), DANSKE BANK A/S, Cayman
Islands Branch, as a Bank (hereinafter, together with its successors and
assigns, "Danske") and PULTE MORTGAGE LLC, formerly known as Pulte Mortgage
Corporation, as the Servicer (hereinafter, together with its successors and
assigns, "PM") (such agreement, as from time to time supplemented, amended,
restated or extended, the "Restated Loan Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings given thereto in the Restated
Loan Agreement.
Pursuant to Section 3.10 of the Restated Loan Agreement, the
Servicer hereby confirms that as of the date hereof the Collateral Value of all
Eligible Mortgage Collateral is $_______, the total of the Principal Debt
(including Advances requested but not then funded) is $________________, and the
Principal Debt does not exceed the Collateral Value.
II-1
Very truly yours,
Pulte Mortgage LLC, as Servicer
By:_____________________________________
Name:________________________________
Title:_______________________________
II-2
