SECOND OMNIBUS AMENDMENT
EXHIBIT 10.1
SECOND OMNIBUS AMENDMENT
THIS SECOND OMNIBUS AMENDMENT (this “Amendment”), dated as of June 29, 2007, by and
among CH FUNDING, LLC, a Delaware limited liability company (the “Borrower”), as the
Borrower, ATLANTIC ASSET SECURITIZATION LLC, a Delaware limited liability company
(“Atlantic”), as an Issuer, LA FAYETTE ASSET SECURITIZATION LLC, a Delaware limited
liability company (“La Fayette”), as an Issuer, FALCON ASSET SECURITIZATION COMPANY LLC, a
Delaware limited liability company (“Falcon”), as an Issuer, XXXXXX CAPITAL LLC, a Delaware
limited liability company (“Xxxxxx”), as an Issuer, LIBERTY STREET FUNDING LLC, a Delaware
limited liability company (“Liberty”), as an Issuer, CHARTA, LLC, a Delaware limited
liability company (“CHARTA”), as an Issuer, XX XXXX TRUST, a Delaware statutory trust
(“YC”), as an Issuer, CALYON NEW YORK BRANCH (“Calyon New York”), as a Bank, as the
Administrative Agent and as a Managing Agent, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as a
Bank and as a Managing Agent, BANK OF AMERICA, N.A. (“Bank of America”), as a Bank and as a
Managing Agent, CITIBANK, N.A. (“Citibank”), as a Bank, CITICORP NORTH AMERICA, INC.
(“Citicorp”), as a Managing Agent, THE BANK OF NOVA SCOTIA (“Scotia Capital”), as a
Bank and as a Managing Agent, SOCIETE GENERALE (“SG”), as a Bank and as a Managing Agent,
LLOYDS TSB BANK PLC (“Lloyds”), as a Bank, and DHI MORTGAGE COMPANY, LTD., a Texas limited
partnership (“DHI Mortgage”), as the Servicer (the “Servicer”) and as the Seller
(the “Seller”) and U.S. BANK NATIONAL ASSOCIATION, as the Collateral Agent (“U.S.
Bank”). Capitalized terms used and not otherwise defined herein are used as defined in the
related Operative Documents (as defined below).
RECITALS
WHEREAS, the Servicer (then named CH Mortgage Company I, Ltd.), as the Seller, and the
Borrower, as the Purchaser, entered into that certain Master Repurchase Agreement and Addendum to
the Master Repurchase Agreement incorporated therein, dated as of July 9, 2002, as amended by the
Second Amended and Restated Addendum to Master Repurchase Agreement, dated as of June 30, 2006 (as
the same may be amended, restated, supplemented or modified from time to time, the “Repurchase
Agreement”);
WHEREAS, the Borrower, the Administrative Agent and U.S. Bank entered into that certain
Amended and Restated Collateral Agency Agreement, dated as of June 30, 2006, as amended (the
“Collateral Agency Agreement”);
WHEREAS, the Borrower, Atlantic, La Fayette, Falcon, Barton, Liberty, CHARTA, YC, JPMorgan,
Bank of America, Citibank, Citicorp, Scotia Capital, SG, Lloyds, Calyon New York and the Servicer,
have entered into that certain Second Amended and Restated Loan Agreement, dated as of June 30,
2006 (as the same may be amended, restated, supplemented or modified from time to time, the
“Loan Agreement” and, collectively with the Repurchase Agreement, the Collateral Agency
Agreement and the Security Agreement, the “Operative Documents);
WHEREAS, the Borrower, Atlantic, La Fayette, Falcon, Barton, Liberty, CHARTA, YC, JPMorgan,
Bank of America, Citibank, Citicorp, Scotia Capital, SG, Lloyds, Calyon New York, U.S. Bank and the
Servicer, have entered into that certain First Omnibus Amendment, dated as of December 13, 2006,
amending the Operative Documents; and
WHEREAS, the parties hereto desire to further amend the Operative Documents as hereinafter set
forth.
NOW, THEREFORE, the parties agree as follows:
Section 1. Amendment to Repurchase Agreement.
a. The definition of “Annual Extension Date” in the Repurchase Agreement is hereby deleted in
its entirety and replaced with the following definition:
“Annual Extension Date” shall mean (i) June 27, 2008 or (ii) if consented to by the
Lenders, the Managing Agents and the Administrative Agent pursuant to Section 2.1(b) of the Loan
Agreement, the date that is specified by the Lenders, the Managing Agents and the Administrative
Agent in the applicable consent, which date shall not be more than 364 days following the then
effective Annual Extension Date; provided, however, that any extension of the Annual Extension Date
shall not extend the Drawdown Termination Date.
b. The definition of “Issuer Facility Amount” in the Repurchase Agreement is hereby deleted in
its entirety and replaced with the following definition:
“Issuer Facility Amount” means (a) with respect to Atlantic and La
Fayette, on an aggregate basis, $225,000,000, (b) with respect to Falcon,
$75,000,000, (c) with respect to Xxxxxx, $75,000,000, (d) with respect to
YC, $75,000,000, (e) with respect to CHARTA, $75,000,000 and (f) with
respect to Liberty, $75,000,000. Any reduction (or termination) of the
Maximum Facility Amount pursuant to the terms of this Agreement shall reduce
ratably (or terminate) the Issuer Facility Amount of each Issuer.
c. The definition of “Maximum Facility Amount” in the Repurchase Agreement is hereby deleted
in its entirety and replaced with the following definition:
“Maximum Facility Amount” means $600,000,000, as such amount may be reduced
pursuant to Section 2.1(c) of the Loan Agreement.
Section 2. Amendment to Collateral Agency Agreement.
a. The definition of “Annual Extension Date” in the Collateral Agency Agreement is hereby
deleted in its entirety and replaced with the following definition:
“Annual Extension Date” shall mean (i) June 27, 2008 and (ii) thereafter, if consented
to by the Lenders, the Managing Agents and the Administrative Agent pursuant to Section 2.1(b) of
the Loan Agreement, the date that is specified by the Lenders, the Managing Agents and the
Administrative Agent in the applicable consent, which date shall not be more than 364 days
following the then effective Annual Extension Date; provided, however, that any extension of the
Annual Extension Date shall not extend the Drawdown Termination Date.
b. Exhibit D-1 to the Collateral Agency Agreement is hereby amended by deleting the definition
of “Issuer Facility Amount” and replacing it with the following definition:
“Issuer Facility Amount” means (a) with respect to Atlantic and La Fayette,
on an aggregate basis, $225,000,000, (b) with respect to Falcon, $75,000,000, (c)
with respect to Xxxxxx, $75,000,000, (d) with respect to YC, $75,000,000, (e) with
respect to CHARTA, $75,000,000 and (f) with respect to Liberty, $75,000,000. Any
reduction (or termination) of the Maximum Facility Amount pursuant to the terms of
this Agreement shall reduce ratably (or terminate) the Issuer Facility Amount of
each Issuer.
c. Exhibit D-1 to the Collateral Agency Agreement is hereby amended by deleting the definition
of “Maximum Facility Amount” therein and replacing it with the following definition:
“Maximum Facility Amount” means $600,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of the Loan Agreement.
Section 3. Amendment to Loan Agreement.
a. The definition of “Annual Extension Date” in the Loan Agreement is hereby deleted in its
entirety and replaced with the following definition:
“Annual Extension Date” means (i) June 27, 2008, or (ii) if consented to by the
Lenders, the Managing Agents and the Administrative Agent pursuant to Section 2.1(b), the date that
is specified by the Lenders, the Managing Agents and the Administrative Agent in the applicable
consent, which date shall not be more than 364 days following the then effective Annual Extension
Date; provided, however, that any extension of the Annual Extension Date shall not extend the
Drawdown Termination Date.
b. The definition of “Issuer Facility Amount” in the Loan Agreement is hereby deleted in its
entirety and replaced with the following definition:
“Issuer Facility Amount” means (a) with respect to Atlantic and La
Fayette, on an aggregate basis, $225,000,000, (b) with respect to Falcon,
$75,000,000, (c) with respect to Xxxxxx, $75,000,000, (d) with respect to
YC, $75,000,000, (e) with respect to CHARTA, $75,000,000 and (f) with
respect to Liberty, $75,000,000. Any reduction (or termination) of the
Maximum Facility Amount pursuant to the terms of this Agreement shall reduce
ratably (or terminate) the Issuer Facility Amount of each Issuer.
c. The definition of “Maximum Facility Amount” in the Loan Agreement is hereby deleted in its
entirety and replaced with the following definition:
“Maximum Facility Amount” means $600,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of this Agreement.”
d. Schedule I to the Loan Agreement is hereby deleted in its entirety and replaced with
Schedule I, Bank Commitments and Percentages, attached as Annex A hereto.
e. The Borrower, Atlantic, La Fayette, Falcon, Barton, Liberty, CHARTA, YC, JPMorgan, Bank of
America, Citibank, Citicorp, Scotia Capital, SG, Lloyds, Calyon New York and the Servicer hereby
waive, with respect to the extension of the Annual Extension Date hereinabove provided, the terms
of Section 2.1(b) of the Loan Agreement insofar as they relate to (a) the methods and timing for
notices of request and consent to an extension of the Annual Extension Date and (b) the respective
effects thereof.
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 in accordance with, the laws 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).
{Signatures appear on the following pages.}
IN WITNESS WHEREOF, the parties have agreed to this Amendment and caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date first above
written.
ADMINISTRATIVE AGENT,
|
CALYON NEW YORK BRANCH | |
AS A BANK, AND AS A |
||
MANAGING |
||
AGENT:
|
By: /s/ Kostantina Kourmpetis | |
| Name: Kostantina Kourmpetis | ||
| Title: Managing Director | ||
| By: /s/ Xxx Xxxxxx | ||
| Name: Xxx Xxxxxx | ||
| Title: Managing Director | ||
AS ISSUERS:
|
ATLANTIC ASSET SECURITIZATION LLC | |
| By: Calyon New York Branch, as Attorney-in-Fact |
||
| By: /s/ Kostantina Kourmpetis | ||
| Name: Kostantina Kourmpetis | ||
| Title: Managing Director | ||
| By: /s/ Xxx Xxxxxx | ||
| Name: Xxx Xxxxxx | ||
| Title: Managing Director | ||
| LA FAYETTTE ASSET SECURITIZATION LLC | ||
| By: Calyon New York Branch, as Attorney-in-Fact |
||
| By: /s/ Kostantina Kourmpetis | ||
| Name: Kostantina Kourmpetis | ||
| Title: Managing Director | ||
| By: /s/ Xxx Xxxxxx | ||
| Name: Xxx Xxxxxx | ||
| Title: Managing Director |
(Signature Page One to Second Omnibus Amendment)
AS A BANK:
|
LLOYDS TSB BANK PLC | |
| By: /s/ Xxxxxxxx Xxxxx | ||
| Name: Xxxxxxxx Xxxxx | ||
| Title: Associate Director W154 | ||
| By: /s/ Xxxxxxx Xxxx | ||
| Name: Xxxxxxx Xxxx | ||
| Title: Associate Director C031 |
(Signature Page Two to Second Omnibus Amendment)
AS A BANK AND AS A
|
JPMORGAN CHASE BANK, N.A. | |
MANAGING AGENT: |
||
| By: /s/ Xxxx X. Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | ||
| Title: Executive Director | ||
AS AN ISSUER:
|
FALCON ASSET SECURITIZATION COMPANY LLC | |
| By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||
| By: /s/ Xxxx X. Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | ||
| Title: Executive Director |
(Signature Page Three to Second Omnibus Amendment)
AS A BANK AND AS A
|
BANK OF AMERICA, N.A. | |
MANAGING AGENT: |
||
| By: /s/ Xxxxxx Xxxxx | ||
| Name: Xxxxxx Xxxxx | ||
| Title: Vice President | ||
AS AN ISSUER:
|
XX XXXX TRUST | |
| by Bank of America, N.A., | ||
| as Administrative Trustee | ||
| By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Vice President |
(Signature Page Four to Second Omnibus Amendment)
AS A BANK:
|
CITIBANK, N.A. | |
| By: /s/ Xxxxxx Xxxxxx | ||
| Name: Xxxxxx Xxxxxx | ||
| Title: Vice President | ||
AS A MANAGING AGENT:
|
CITICORP NORTH AMERICA, INC. | |
| By: /s/ Xxxxxx Xxxxxx | ||
| Name: Xxxxxx Xxxxxx | ||
| Title: Vice President | ||
AS AN ISSUER:
|
CHARTA, LLC | |
| By: CITICORP NORTH AMERICA, INC., | ||
| Attorney-in-Fact | ||
| By: /s/ Xxxxxx Xxxxxx | ||
| Name: Xxxxxx Xxxxxx | ||
| Title: Vice President |
(Signature Page Five to Second Omnibus Amendment)
AS A BANK AND AS A
|
THE BANK OF NOVA SCOTIA | |
MANAGING AGENT: |
||
| By: /s/ Xxxxxxx Xxxx | ||
| Name: Xxxxxxx Xxxx | ||
| Title: Director | ||
AS AN ISSUER:
|
LIBERTY STREET FUNDING LLC | |
| By: /s/ Xxxx X. Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | ||
| Title: Vice President |
(Signature Page Six to Second Omnibus Amendment)
AS A BANK AND AS A
|
SOCIETE GENERALE | |
MANAGING AGENT: |
||
| By: /s/ Xxxxx X. Xxxxx | ||
| Name: Xxxxx X. Xxxxx | ||
| Title: Managing Director | ||
AS AN ISSUER:
|
XXXXXX CAPITAL, LLC | |
| By: /s/ Xxxxx X. Xxxxx | ||
| Name: Xxxxx X. Xxxxx | ||
| Title: Vice President |
(Signature Page Seven to Second Omnibus Amendment)
BORROWER:
|
CH FUNDING, LLC | |
| By: /s/ Xxxx X. Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | ||
| Title: VP | ||
SERVICER:
|
DHI MORTGAGE COMPANY, LTD. | |
| By: DHI MORTGAGE COMPANY GP, INC., its general partner |
||
| By: /s/ Xxxx X. Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | ||
| Title: EVP/CFO | ||
COLLATERAL AGENT:
|
U.S. BANK NATIONAL ASSOCIATION | |
| By: /s/ Xxxxxxxx X. Xxxxx | ||
| Name: Xxxxxxxx X. Xxxxx Title: Xxxxxxxx X. Xxxxx — Vice President |
(Signature Page Eight to Second Omnibus Amendment)
ANNEX A
SCHEDULE I
BANK COMMITMENTS AND PERCENTAGES
| Bank Commitment | Group Bank | |||||||||||
| Bank | Bank Commitment | Percentage | Percentage | |||||||||
CALYON NEW YORK BRANCH
|
||||||||||||
BANK OF AMERICA, NA
|
||||||||||||
JPMORGAN CHASE BANK
|
||||||||||||
CITICORP NORTH AMERICA, INC
|
||||||||||||
THE BANK OF NOVA SCOTIA
|
||||||||||||
SOCIETE GENERALE
|
||||||||||||
LLOYDS TSB BANK PLC |
||||||||||||
Total |
$ | 600,000,000 | 100 | % | 100 | % | ||||||
