OMNIBUS AMENDMENT NO. 2 TO LOAN, SECURITY AND SERVICING AGREEMENT AND FEE AGREEMENT
Exhibit
10.1
OMNIBUS
AMENDMENT NO. 2
TO
AND
FEE
AGREEMENT
THIS
AMENDMENT (the “Amendment”) is
entered into effective as of September 30, 2009, by and among, Ministry Partners
Funding, LLC (the “Borrower”), Fairway
Finance Company, LLC (the “Lender”), Evangelical
Christian Credit Union (the “Servicer”), BMO
Capital Markets Corp. (the “Agent”), U.S. Bank
National Association, and Lyon Financial Services, Inc. (d/b/a U.S. Bank
Portfolio Services).
WITNESSETH
WHEREAS,
the parties hereto previously entered into that certain Loan, Security and
Servicing Agreement, dated as of October 30, 2007, as heretofore amended (the
“Original Loan
Agreement”, the Original Loan Agreement, as amended by this Amendment are
herein collectively called the “Loan
Agreement”);
WHEREAS,
in connection with the Original Loan Agreement, the Borrower, the Servicer and
the Agent entered into that certain Fee Agreement, dated as of October 30, 2007,
as heretofore amended (the “Original Fee
Agreement”, the Original Fee Agreement, as amended by this Amendment are
herein collectively called the “Fee
Agreement”);
WHEREAS,
the Facility Termination Date occurred on October 31, 2008 and as a result
thereof, the Lenders’ obligations to make Loans under the Loan Agreement have
terminated and the outstanding Loans are amortizing in accordance with the terms
of the Loan Agreement;
WHEREAS,
the parties hereto have agreed to amend the Original Loan Agreement and the
Original Fee Agreement on the terms and subject to the conditions set forth
herein;
NOW,
THEREFORE, in consideration of the premises and mutual agreement contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section
1. Defined
Terms.
For
purposes of this Amendment, unless the context clearly requires otherwise, all
capitalized terms which are used but not otherwise defined herein shall have the
respective meanings assigned to such terms in the Loan Agreement.
Section
2. Amendment to
Loan Agreement.
(a) Clause
‘sixth’ of
Section 1.4(e)
of the Original Loan Agreement is hereby amended in its entirety to read as
follows:
“sixth, to the Agent,
in payment of the sum of (i) the accrued and unpaid Interest on the outstanding
Loans, plus
(ii) the accrued and unpaid Non-Usage Fee, plus (iii) any losses
or expenses incurred by the Agent or the Lender as a result of any payment or
prepayment of all or any portion of the Loan (including, without limitations, as
a result of clause
(e) seventh below, plus (iv) all
reasonable costs, fees and expenses that Agent pays or incurs in connection with
the negotiation, preparation, administration, enforcement, perfection, amendment
and termination of this Agreement or any of the other Transaction Documents
(including, without limitation, the reasonable fees and expenses of counsel to
Agent actually incurred in connection therewith) (each, as confirmed by the
Agent);”
(b) Subsections (i), (ii) and
(iii) to the definition of “Concentration Limits” set forth in Exhibit I of the
Original Loan Agreement are hereby amended in their entirety to read as
follows:
“(i)
The aggregate Outstanding Principal Balance of all Eligible Mortgage Loans
located in any single state (other than California, Texas and Florida) shall not
exceed 9% of the Eligible Pool Balance;
(ii)
The aggregate Outstanding Principal Balance of all Eligible Mortgage Loans
located in (a) Texas shall not exceed 19% of the Eligible Pool Balance, and (b)
Florida shall not exceed 12% of the Eligible Pool Balance;
(iii)
The aggregate Outstanding Principal Balance of all Eligible Mortgage Loans
located in California shall not exceed 15% of the Eligible Pool
Balance;”
(c) The
definition of “Concentration Limits” set forth in Exhibit I of the
Original Loan Agreement is hereby amended by deleting the “and” following
subsection (x) and deleting the “.” following subsection (xi) and replacing it
with “;” and adding the following provisions as subsections (xii) and
(xiii):
“
(xii) The aggregate Outstanding Principal Balance of all Eligible Mortgage
Loans that have a Mortgagor Debt Service ratio in excess of 30% shall not exceed
14% of the Eligible Pool Balance;
(xiii) The aggregate Outstanding
Principal Balance of all Eligible Mortgage Loans that have an LTV in excess of
45% shall not exceed 69% of the Eligible Pool Balance;”
(d) The
definition of “Eligible Mortgage Loan” set forth in Exhibit I of the
Original Loan Agreement is hereby amended by deleting clause (xxxv) in its
entirety and replacing it with the following:
“[Reserved];”
(e) The
definition of “Loan Limit” set forth in Exhibit I of the
Original Loan Agreement is hereby amended in its entirety to read as
follows:
“ ‘Loan Limit’ means the
amount set forth in the table below opposite the corresponding date of
determination:
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Date
of Determination
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Loan
Limit
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on
and after September 30, 2009 and prior to October 14, 2009
|
$31,891,991
|
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on
and after October 14, 2009 and prior to November 14, 2009
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$30,000,000
|
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on
and after November 14, 2009 and prior to December 14, 2009
|
$20,000,000
|
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on
and after December 14, 2009 and prior to January 14, 2010
|
$10,000,000
|
|
on
and after January 14, 2010 and prior to February 14, 2010
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$5,000,000
|
|
on
and after February 14, 2010 and prior to March 14, 2010
|
$2,500,000
|
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on
and after March 14, 2010
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$0.00
|
Section
3. Amendment to
Fee Agreement.
The
second paragraph to the Original Fee Agreement is hereby amended and restated in
its entirety to read as follows:
“For
purposes of the Loan Agreement, the term “Spread” means, (i)
prior to the occurrence and continuance of an Event of Default, and (A) prior
to January 1, 2010, 1.75%, or (B) on or after January 1, 2010, 3.00%,
or (ii) following the occurrence and during the continuance of an Event of
Default, 2.00%.”
Section
4. Conditions to
Effectiveness.
This
Amendment shall become effective as of the date first above written when and
only when:
(i)
the Agent shall have received a duly executed counterpart of this
Amendment,
(ii)
Borrower shall have paid all expenses of the Agent, including Agent’s outside
legal counsel, incurred and billed as of the date of this Amendment, in
connection with the transactions evidenced by this Amendment,
(iii)
Borrower shall have paid an amendment fee in the amount of $1,000.00 to each of
U.S. Bank National Association and Lyon Financial Services (d/b/a U.S. Bank
Portfolio Services), and
(ii)
the Agent shall have received such other documents as the Agent may
request.
Section
5. Waiver. The
Agent hereby irrevocably waives any breach or violation of the Loan Agreement
resulting solely from the Borrowing Base Deficit in existence on or before the
date hereof, which, for the avoidance of doubt, does not include any Borrowing
Base Deficit occurring on or after the date hereof.
Section
6. Representations and
Warranties.
In order
to induce the parties to enter into this Amendment, Borrower represents and
warrants that:
(a) The
representations and warranties contained in Article II of the Original Loan
Agreement are true and correct at and as of the time of the effectiveness
hereof;
(b) Borrower
is duly authorized to execute and deliver this Amendment and is and will
continue to be duly authorized to perform its obligations under the Loan
Agreement. Borrower has duly taken all action necessary to authorize
the execution and delivery of this Amendment and to authorize the performance of
the obligations of Borrower hereunder;
(c) The
execution and delivery by Borrower of this Amendment, the performance by
Borrower of its obligations hereunder and the consummation of the transactions
contemplated hereby do not and will not conflict with any provision of law,
statute, rule or regulation or of the certificate of formation and operating
agreement of Borrower, or of any material agreement, judgment, license, order or
permit applicable to or binding upon Borrower, or result in the creation of any
lien, charge or encumbrance upon any assets or properties of
Borrower. Except for those which have been duly obtained, no consent,
approval, authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by Borrower of
this Amendment or to consummate the transactions contemplated hereby;
and
(d) When
duly executed and delivered this Amendment will be a legal and binding
instrument and agreement of Borrower, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency and similar laws applying to
creditors’ rights generally and by principles of equity applying to creditors’
rights generally.
Section
7. Ratification
of Agreement.
Each of
the Original Loan Agreement and the Original Fee Agreement as hereby
amended are hereby ratified and confirmed in all
respects. Any reference to the Loan Agreement or Fee Agreement in any
Transaction Document shall be deemed to refer to this Amendment
also. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Agent or Lender under the Loan Agreement, the Fee
Agreement or any other Transaction Document nor constitute a waiver of any
provision of the Loan Agreement, the Fee Agreement or any other Transaction
Document.
Section
8. Facility
Termination Date.
The
Borrower, Servicer, Lender and Agent hereby confirm and agree that the Facility
Termination Date has heretofore occurred.
Section
9. Survival of
Agreements.
All
representations, warranties, covenants and agreements of Borrower herein shall
survive the execution and delivery of this Amendment and the performance hereof,
and shall further survive until all of the Obligations are paid in
full. All statements and agreements contained in any certificate or
instrument delivered by Borrower hereunder or under the Loan Agreement to the
Agent or the Lender shall be deemed to constitute representations and warranties
by, or agreements and covenants of, Borrower under this Amendment and under the
Loan Agreement.
Section
10. Binding
Effect.
The
provisions of this Amendment shall be binding upon and shall be enforceable by
the parties hereto and their respective successors and assigns.
Section
11. Governing
Law.
This
Amendment shall be construed in accordance with the substantive laws of the
State of New York (without regard to conflict of law principles, other than
Section 5-1401 of the New York General Obligations Law) and the
obligations, rights and remedies of the parties hereto shall be determined in
accordance with such laws.
Section
12. Severability
of Provisions.
If any
one or more of the provisions or terms of this Amendment shall be for any reason
whatsoever held invalid, then such provisions or terms shall be deemed severable
from the remaining provisions or terms of this Amendment and shall in no way
affect the validity or enforceability of the other provisions or terms of this
Amendment.
Section
13. Transaction
Document.
This
Amendment is a Transaction Document, and all provisions in the Loan Agreement
pertaining to Transaction Documents apply hereto and thereto.
Section
14. Counterparts.
This
Amendment may be separately executed in counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to constitute one and the same Amendment. This Amendment may
be duly executed by facsimile or other electronic transmission.
THIS
AMENDMENT AND THE OTHER TRANSACTION DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The
Remainder of This Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their duly authorized representatives on the date first written
above.
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MINISTRY
PARTNERS FUNDING, LLC,
as Borrower
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By:_________________________________
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Name:
Xxxxx X. Xxxxxx
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Title:
President
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EVANGELICAL
CHRISTIAN CREDIT UNION,
as Servicer
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By:_________________________________
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Executive Vice President/ Credit
Manager
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BMO
CAPITAL MARKETS CORP., as Agent
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By:_________________________________
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Name:
Xxxxxxx Xxxxxx
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Title:
Managing Director
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FAIRWAY FINANCE COMPANY,
LLC, as
Lender
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By:_________________________________
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Name:
Xxxxxx X. Xxxxxxx
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Title:
Vice
President
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U.S.
BANK NATIONAL ASSOCIATION, as Account Bank and Custodian
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By:_________________________________
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Name:
Xxxxx Xxxxxx
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Title:
Vice
President
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LYON
FINANCIAL SERVICES, INC.
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(d/b/a
U.S. Bank Portfolio Services),
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as
Back-Up Servicer
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By:_________________________________
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Name:
Xxxxxx Xxxxxxx
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Title:
Senior Vice President
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