Exhibit 10.9
THIRD OMNIBUS AMENDMENT
THIS THIRD OMNIBUS AMENDMENT (this "Amendment"), dated as of
September 30, 2003, 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"), CREDIT LYONNAIS NEW YORK BRANCH ("CL New
York"), as a bank, as a managing agent and as the administrative agent (the
"Administrative Agent"), LLOYDS TSB BANK PLC, as a bank ("Lloyds"), BANK ONE, NA
(MAIN OFFICE CHICAGO), as a bank, as a seasonal bank and as a managing agent
("Bank One"), JUPITER SECURITIZATION CORPORATION, as an issuer and a seasonal
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, CL 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 "Loan Agreement");
WHEREAS, the Borrower, the Administrative Agent and LaSalle
entered into that certain Amended and Restated Collateral Agency Agreement,
dated as of August 23, 2002 (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 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 Collateral Agency Agreement,
the Loan 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; 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 Repurchase Agreement.
(a) The definition of "Alt-A Loan" is hereby amended by
deleting the last sentence in its entirety and substituting the following in
lieu thereof:
"Certain Alt-A Loans are No Income OR No Asset Loans
and No Income AND No Asset Loans."
(b) The definition of "Collateral Value" is hereby
amended by deleting subsection (A)(3) in its entirety and substituting the
following in lieu thereof:
"(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"
(c) The definition of "Collateral Value" is hereby
further amended by deleting subsections (c) and (d) in their entirety and
substituting the following in lieu thereof:
"(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 or, during the Seasonal Period, ten percent (10%) of the
Combined 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 or, during the Seasonal Period, fifteen
percent (15%) of the Combined Facility Amount;"
(d) The definition of "Collateral Value" is hereby
further amended by deleting subsection (e) in its entirety and substituting the
following in lieu thereof:
"(e) 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 or, during as Seasonal Period, five percent (5%) of the Combined Facility
Amount as determined in accordance with said Section 3.5 of the Collateral
Agency Agreement;"
(e) The definition of "Eligible Mortgage Loan" is hereby
amended by deleting subparagraph (b) in its entirety and substituting the
following in lieu thereof:
"(b) that is a Conforming Loan, a Jumbo Loan, an
Alt-A Loan (including a No Income OR No Asset Loan, but only to the extent such
Mortgage Loan is not
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more than thirty (30) days past due, and a No Income AND No Asset Loan, but only
to the extent such Mortgage Loan is not more than thirty (30) days past due) or
a Second Lien Loan;"
(f) The definition of "No Asset No Income Loan" is hereby
deleted in its entirety and the following is substituted in lieu thereof:
"No Income AND No Asset Loan" means an Alt-A Loan
that is underwritten on a "no income and no asset" basis, meaning that
the Seller verifies neither the Obligor's assets nor the Obligor's
income.
"No Income OR No Asset Loan" means an Alt-A Loan that
is underwritten on a "no income or no asset" basis, meaning that the
Seller verifies either the Obligor's assets or the Obligor's income,
but not both.
Section 2. Amendments to the Loan Agreement.
(a) The definition of "Alt-A Loan" is hereby amended by
deleting the last sentence in its entirety and substituting the following in
lieu thereof:
"Certain Alt-A Loans are No Income OR No Asset Loans
and No Income AND No Asset Loans."
(b) The definition of "Collateral Value" is hereby
amended by deleting subsection (A)(3) in its entirety and substituting the
following in lieu thereof:
"(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"
(c) The definition of "Collateral Value" is hereby
further amended by deleting subsections (c) and (d) in their entirety and
substituting the following in lieu thereof:
"(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 or, during the Seasonal Period, ten percent (10%) of the
Combined 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 not exceed fifteen percent (15%)
of the Maximum Facility Amount or, during the Seasonal Period, fifteen percent
(15%) of the Combined Facility Amount;"
(d) The definition of "Collateral Value" is
hereby further amended by deleting subsection (e) in its entirety and
substituting the following in lieu thereof:
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"(e) 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 3.4 shall not exceed five
percent (5%) of the Maximum Facility Amount or, during as Seasonal Period, five
percent (5%) of the Combined Facility Amount as determined in accordance with
said Section 3.4;"
(e) The definition of "Eligible Mortgage Loan" is hereby
amended by deleting subparagraph (b) in its entirety and substituting the
following in lieu thereof:
"(b) that is a Conforming Loan, a Jumbo Loan, an
Alt-A Loan (including a No Income OR No Asset Loan, but only to the extent such
Mortgage Loan is not more than thirty (30) days past due, and a No Income AND No
Asset Loan, but only to the extent such Mortgage Loan is not more than thirty
(30) days past due) or a Second Lien Loan;"
(f) The definition of "Maximum Facility Amount" is hereby
deleted in its entirety and replaced with the following:
"Maximum Facility Amount" means $550,000,000, as such
amount may be reduced pursuant to Section 2.1(c) of this Restated Loan
Agreement.
(g) The definition of "No Asset No Income Loan" is hereby
deleted in its entirety and the following is substituted in lieu thereof:
"No Income AND No Asset Loan" means an Alt-A Loan
that is underwritten on a "no income and no asset" basis, meaning that
the Originator verifies neither the Obligor's assets nor the Obligor's
income.
"No Income OR No Asset Loan" means an Alt-A Loan that
is underwritten on a "no income or no asset" basis, meaning that the
Originator verifies either the Obligor's assets or the Obligor's
income, but not both.
(h) Section 8.1(y) is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"an "Event of Default" shall occur under the
Repurchase Agreement, or the Repurchase Agreement shall cease to be in full
force and effect; or"
(i) Section 8.1(cc) is hereby amended by adding the
following at the end thereof ", and the Excess Spread is not made positive
within for five (5) Business days;".
(j) Section 8.1(dd) is hereby amended by deleting the
words "and such deficiency is not funded within one Business Day" and inserting
in lieu thereof the following: "and such deficiency is not funded within five
(5) Business days;".
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(k) Section 8.2(b) is hereby deleted in its entirety and
the following is inserted in lieu thereof: "Intentionally Omitted."
(l) Section 8.2(c) is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"(c) Upon the occurrence and continuation of an
Event of Default under any provision of Section 8.1 other than those set forth
in Section 8.2(a), the Administrative Agent may, but need not, do any one or
both of the following: (i) declare the entire unpaid balance of the Obligations
immediately due and payable, whereupon it shall be due and payable; and (ii)
declare the Drawdown Termination Date and the Seasonal Facility Termination Date
to have occurred and terminate the Maximum Facility Amount and the Seasonal
Facility Amount."
(m) Section 13.15 is hereby amended by (i) renaming the
existing clause "(e)" to clause "(f)"; (ii) renaming the existing clause "(f)"
to clause "(g)"; (iii) inserting the following new clause "(e) as may be
required or appropriate in connection with disclosures to any and all persons,
without limitation of any kind, of information relating to the tax treatment and
tax structure of the transaction and all materials of any kind (including
opinions and other tax analyses) that are provided to the Borrower or the
Originator relating to such tax treatment and tax structure,"; and (iv) deleting
the last clause of Section 13.15 and inserting the following in lieu thereof
"provided that any proposed recipient under clause (f) or (g) shall, as a
condition to the receipt of any such information, agree to maintain the
confidentiality thereof."
(n) Schedule I is hereby deleted in its entirety and
replaced with the Schedule I attached hereto.
(o) Exhibit A attached to Exhibit F, attached to the Loan
Agreement, is hereby deleted in its entirety.
Section 3. Amendments to the Collateral Agency Agreement.
(a) The definition of "Alt-A Loan" is hereby amended by
deleting the last sentence in its entirety and substituting the following in
lieu thereof:
"Certain Alt-A Loans are No Income OR No Asset Loans
and No Income AND No Asset Loans."
(b) The definition of "Collateral Value" is hereby
amended by deleting subsection (A)(3) in its entirety and substituting the
following in lieu thereof:
"(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"
(c) The definition of "Collateral Value" is hereby
further amended by deleting subsections (c) and (d) in their entirety and
substituting the following in lieu thereof:
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"(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 or, during the Seasonal Period, ten percent (10%) of the
Combined 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 or, during the Seasonal Period, fifteen
percent (15%) of the Combined Facility Amount;"
(d) The definition of "Collateral Value" is hereby
further amended by deleting subsection (e) in its entirety and substituting the
following in lieu thereof:
"(e) 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 this Agreement
shall not exceed five percent (5%) of the Maximum Facility Amount or, during as
Seasonal Period, five percent (5%) of the Combined Facility Amount as determined
in accordance with said Section 3.5 of this Agreement;"
(e) The definition of "Eligible Mortgage Loan" is hereby
amended by deleting subparagraph (b) in its entirety and substituting the
following in lieu thereof:
"(b) that is a Conforming Loan, a Jumbo Loan, an
Alt-A Loan (including a No Income OR No Asset Loan, but only to the extent such
Mortgage Loan is not more than thirty (30) days past due, and a No Income AND No
Asset Loan, but only to the extent such Mortgage Loan is not more than thirty
(30) days past due) or a Second Lien Loan;"
(f) The definition of "Maximum Facility Amount" is hereby
deleted in its entirety and replaced with the following:
"Maximum Facility Amount" means $550,000,000, as such
amount may be reduced pursuant to Section 2.1(c) of the Restated Loan
Agreement.
(g) The definition of "No Asset No Income Loans" is
hereby deleted in its entirety and the following is substituted in lieu thereof:
"No Income AND No Asset Loan" means an Alt-A Loan
that is underwritten on a "no income and no asset" basis, meaning that
the Originator verifies neither the Obligor's assets nor the Obligor's
income.
"No Income OR No Asset Loan" means an Alt-A Loan that
is underwritten on a "no income or no asset" basis, meaning that the
Originator verifies either the Obligor's assets or the Obligor's
income, but not both.
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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 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: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President/ Chief Financial
Officer
PULTE MORTGAGE LLC,
as the Servicer and the Seller
By: /s/ Xxxx X'Xxxxxxxx
----------------------------
Name: Xxxx X'Xxxxxxxx
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank, as a Managing Agent and as the
Administrative Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
ATLANTIC ASSET SECURITIZATION CORP.,
as an Issuer
By: Credit Lyonnais New York Branch, as
Attorney-In-Fact
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
LLOYDS TSB BANK PLC,
as a Bank
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President, Structured
Finance
By: /s/ Ian Dommick
---------------------------------------------
Name: Ian Dommick
Title: Vice President, Structured Finance
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BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Bank, a Seasonal Bank and as a Managing
Agent
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Director
JUPITER SECURITIZATION CORPORATION,
as an Issuer and as a Seasonal Issuer
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Authorized Signer
LASALLE BANK NATIONAL ASSOCIATION,
as the Collateral Agent
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
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SCHEDULE I
BANK COMMITMENTS AND PERCENTAGES
Bank Commitment
Bank Bank Commitment Percentage
---- --------------- ---------------
CREDIT LYONNAIS NEW YORK BRANCH* $225,000,000 40.91%
BANK ONE, NA (MAIN OFFICE CHICAGO)** $250,000,000 45.45%
LLOYDS TSB BANK PLC* $ 75,000,000 13.64%
SEASONAL BANK COMMITMENTS AND SEASONAL PERCENTAGES
Seasonal Bank Commitment
Seasonal Bank Seasonal Bank Commitment Percentage
------------- ------------------------ ----------
BANK ONE, NA (MAIN OFFICE CHICAGO)** $50,000,000 100%
* Part of the CL New York Group, related to Atlantic.
** Part of the Bank One Group, related to Jupiter.
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