EXHIBIT 10(w)
AMENDMENT NO. 1 TO
COLLECTION AND PAYING AGREEMENT
AMENDMENT NO. 1, dated as of August 19, 2005 (this "Amendment") to
the Collection and Paying Agreement, dated as of August 23, 2002 (the
"Agreement"), by and among PULTE MORTGAGE LLC, a Delaware limited liability
company ("Pulte Mortgage"), in its capacity as borrower under the Warehouse
Facility (defined below) (in such capacity the "Warehouse Borrower"), and in its
capacity as Servicer under the CP Facility (defined below) (in such capacity the
"Servicer"), PULTE FUNDING, INC., a Michigan corporation, in its capacity as
"Borrower" ("PFI"), under and as defined in the Second Amended and Restated Loan
Agreement described below (in such capacity, the "CP Facility Borrower"),
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, in its capacity as Administrative
Agent for the lenders under the Warehouse Agreement described below (in such
capacity the "Warehouse Facility Agent"), CALYON NEW YORK BRANCH, in its
capacity as Administrative Agent for the lenders under the Second Amended and
Restated Loan Agreement described below (in such capacity the "CP Facility
Agent"), and LASALLE BANK NATIONAL ASSOCIATION, as collateral agent for the
Warehouse Facility and the CP Facility (each as defined below) (in such capacity
the "Collateral Agent"). Capitalized terms, unless otherwise specified herein,
shall have the meanings assigned thereto in the Loan Agreement.
RECITALS
WHEREAS, the parties to the Agreement desire that the Cash and
Collateral Account be maintained by Pulte Mortgage in the name of Pulte Mortgage
instead of the Collateral Agent;
WHEREAS, the parties to the Agreement desire to amend the Agreement
in order to, among other things, provide for the maintenance of the Cash and
Collateral Account in the name of Pulte Mortgage.
NOW, THEREFORE, the parties agree as follows:
1. Amendment of the Agreement. The Agreement shall be and is hereby
amended, as of the date hereof, as follows:
(a) The third paragraph under "WITNESSETH" is hereby deleted in its
entirety and replaced with the following paragraph:
Pulte Mortgage has formed a special purpose subsidiary, PFI, and
has entered into a Second Amended and Restated Repurchase
Agreement, as amended, modified or restated from time to time
(the "Repurchase Agreement") with PFI, pursuant to which Pulte
Mortgage sells Mortgage Assets to
PFI. In order to finance its purchases of Mortgage Assets from
Pulte Mortgage, PFI has entered into a Second Amended and
Restated Loan Agreement, as amended, modified or restated from
time to time (the "Loan Agreement") with the CP Facility Agent,
Pulte Mortgage, as Servicer, the CP Lenders named in such Loan
Agreement, and certain other parties named therein. The
transactions effected by the Repurchase Agreement, the Loan
Agreement and the related transaction documents are referred to
herein as (the "CP Facility").
(b) The words "the Collateral Agent" in the sixth paragraph of the
Agreement are hereby deleted and replaced with "Pulte Mortgage".
(c) The definition of Cash and Collateral Account in Section 1 is
hereby deleted in its entirety and replaced with the following:
"Cash and Collateral Account" means the deposit account no.
0000000 at the Account Bank, established and maintained by Pulte
Mortgage for the benefit of the CP Facility Agent and the CP
Lenders pursuant to Section 2(a) hereof.
(d) Section 2(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
On or prior to the Effective Date, Pulte Mortgage shall
establish the Cash and Collateral Account with the Account Bank
in the name of "Pulte Mortgage LLC." Pulte Mortgage shall
maintain the Cash and Collateral Account in accordance with the
terms of this Agreement until the termination of this Agreement.
(e) The second sentence of Section 5 of the Agreement is hereby
deleted in its entirety and replaced with the following:
Upon learning that the Account Bank ceases to be an Eligible
Institution, Pulte Mortgage shall establish a new Cash and
Collateral Account (and transfer any balance and investments
then in the Cash and Collateral Account to such new Cash and
Collateral Account) at another Eligible Institution.
(f) All references in the Agreement to "Pulte Mortgage Corporation"
shall be deemed to be references to "Pulte Mortgage LLC".
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2. Further Assurances. Each of parties hereto agree, at the expense
of Pulte Mortgage, to promptly execute and deliver all further instruments and
documents, and to take all further actions that may be necessary or desirable,
or that Pulte Mortgage may reasonably request, to carry out the terms of this
Amendment.
3. Execution in Counterparts, Etc. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same amendment. The delivery of an executed signature page to this Amendment by
telecopy transmission shall constitute due execution and delivery of this
Amendment for all purposes.
4. Agreement in Full Force and Effect. Except as amended by this
Amendment, all of the provisions of the Agreement 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.
5. Effectiveness of this Amendment. This Amendment shall become
effective on the date hereof upon the latest to occur of the execution and
delivery by each of the parties hereto and thereto of this Amendment, other
documents, instruments, agreements and legal opinions as the Purchaser and the
Agent shall reasonably request in connection with the transactions contemplated
by this Amendment.
6. References to the Agreement. From and after the date hereof, (a)
all references in the Agreement to "this Agreement," "hereof," "herein," or
similar terms and (b) all references to the Agreement in each agreement,
instrument and other document executed or delivered in connection with the
Agreement, shall mean and refer to the Agreement, as amended by this Amendment.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF), OTHER THAN SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
PULTE FUNDING, INC.
By:____________________________________
Name: Xxxx X'Xxxxxxxx
Title: VP/Treasurer
PULTE MORTGAGE LLC
By: ___________________________________
Name: Xxxx X'Xxxxxxxx
Title: VP/Treasurer
CALYON NEW YORK BRANCH,
as CP Facility Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
as Warehouse Facility Agent
By: ___________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Collateral Agent
By: ___________________________________
Name:
Title:
