OMNIBUS AMENDMENT TO LOAN, SECURITY AND SERVICING AGREEMENT AND FEE AGREEMENT
Exhibit 10.1
OMNIBUS
AMENDMENT
TO
AND
FEE
AGREEMENT
THIS
AMENDMENT (the “Amendment”) is
entered into effective as of June 5, 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)
Section 1.3(a)
of the Original Loan Agreement is hereby amended by replacing the reference in
such section to clause “seventh of Section 1.4(e)” with
clause “ninth
of Section
1.4(e)”.
(b)
Section 1.4(e)
of the Original Loan Agreement is hereby amended in its entirety to read as
follows:
“On each
Settlement Date occurring on or after the Facility Termination Date and until
the Obligations have been paid in full, the Servicer shall direct the Account
Bank in writing to distribute (i) from amounts in the Collection Account, (ii)
from amounts in the Reserve Account in excess of the Required Reserve Amount,
and (iii) from payments received under the Hedge Agreements, the following
amounts in the following order of priority:
first, to each Hedge
Counterparty, on a pro
rata basis, the aggregate net amount
then due and payable to such Hedge Counterparty under each applicable Hedge
Agreement and any Hedge Breakage Costs incurred by such Hedge Counterparty under
the applicable Hedge Agreement (as confirmed by Agent);
second, to the
Servicer (which term shall include the replacement Servicer in the event that
the Servicer has been replaced in accordance with the terms hereof), in payment
of the sum of (i) any accrued and unpaid Servicing Fee, plus (ii) in the
event that the Servicer has been replaced in accordance with the terms hereof,
the reasonable expenses incurred by the successor Servicer, including but not
limited to expenses incurred in connection with transitioning the servicing of
the Mortgage Loans, provided that such
transition expenses shall not exceed $50,000 in the aggregate;
third, to the
Servicer for reimbursement of Servicer Advances made on the related Mortgage
Loan;
fourth, to the
Back-Up Servicer in payment of any accrued and unpaid Back-Up Servicing Fee and
any expenses incurred by the Back-Up Servicer in connection with its duties
hereunder;
fifth, to the
Custodian in payment of any accrued and unpaid Custodian Fee and to the banks
holding any of the Accounts, the fees and expenses then due and payable by the
Borrower to such banks with respect to the Accounts (as confirmed by the Account
Bank);
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)
ninth below (each, as confirmed by the Agent);
seventh, with respect
to the Settlement Date occurring on June 15, 2009, to the extent not previously
paid in full, to the Agent to pay the Amendment Fee;
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eighth, to the
Reserve Account to the extent necessary to maintain the amount of funds in the
Reserve Account at the Required Reserve Amount;
ninth, all remaining
amounts will be applied to reduce the Loan Balance until the Loan Balance is
zero; and
tenth, to any
Indemnified Party and/or Affected Person, any amounts payable by the Borrower to
such Person hereunder.
After the
amounts described in clauses first through tenth, above, have
been paid in full, all remaining amounts in the Collection Account shall be paid
to the Borrower for its own account or, at the Borrower’s option, shall be held
in the Collection Account.”
(c)
Section 1.13 of
the Original Loan Agreement is hereby deleted in its entirety and replaced with
the following:
“[Reserved].”
(d)
Sections
1.14(a) and (c) of the Original
Loan Agreement are hereby amended in their entirety to read as
follows:
“ Section
1.14 Interest
Rate Hedging Agreements.
“(a)
The Borrower may enter into a Hedge Transaction meeting the following
requirements:
(i)
such Hedge Transaction shall be entered into with a Hedge Counterparty and be
governed by a Hedge Agreement;
(ii)
such Hedge Transaction shall have a schedule of monthly payment periods
coinciding with each Settlement Period, the first of which commences on the
first day of the current Settlement Period and the last of which ends on the
Settlement Period in which the related Loan Balance is repaid in
full;
(iii)
such Hedge Transaction shall have an amortizing notional amount such that the
Hedge Notional Amount in effect during any such monthly payment period shall be
equal to the aggregate outstanding Loan Balance related to the Mortgage Loans
being renewed as of such date scheduled to be outstanding as of the commencement
of each such monthly payment period (assuming that the Hedge Schedule was
calculated in accordance with the modeling assumptions used in the Hedge
Spreadsheet);
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(iv)
such Hedge Transaction shall provide for monthly payments to be made by the
Hedge Counterparty to the Collection Account, for the benefit of the Lender, by
reference to LIBOR as in effect on the first day of each monthly payment period;
and
(v)
such Hedge Transaction shall be approved by the Agent, which approval shall not
be unreasonably withheld or delayed.”
“(c)
On or before each Settlement Date, the Borrower shall deposit into the Reserve
Account an amount, if any, equal to the premium (the “LIBOR Cap Premium”)
to purchase a LIBOR Cap that satisfies the following requirements:
(i)
The Hedge Rate for such LIBOR Cap shall be a rate such that the Hedged Excess
Spread Rate for such LIBOR Cap shall not be less than 0.50%;
(ii)
Such LIBOR Cap shall have a schedule of monthly payment periods coinciding with
each Settlement Period, the first of which commences on the first day of the
current Settlement Period and the last of which ends on the Settlement Period in
which the related Loan Balance is repaid in full according to the related Hedge
Schedule;
The Hedge
Counterparty shall provide the Borrower with the Hedge Rate for the related
Hedge Transaction and the amount of the LIBOR Cap Premium for the related LIBOR
Cap within one Business Day of receipt of the Hedge Request.
No later
than seven (7) Business Days prior to each Settlement Date, the Borrower shall
request the Hedge Counterparty to provide to it the LIBOR Cap Premium for all
outstanding LIBOR Caps based on the respective Hedge Rates and the future
respective notional schedules then in effect. The aggregate amount of
such LIBOR Cap Premiums as of any date of determination is referred to as the
“Aggregate LIBOR Cap
Premiums.” The Borrower shall be required to deposit funds
into the Reserve Account in an amount equal to any excess of (i) the Aggregate
LIBOR Cap Premiums over (ii) the amount then on deposit in the Reserve
Account. If the Borrower fails to deposit such funds prior to the
related Settlement Date, it agrees to furnish written notice to MPIC advising
that its failure to make such deposit constitutes an Event of
Default. Any amounts on deposit in the Reserve Account in excess of
the Required Reserve Amount will be released to the Borrower only upon the
payment in full of the outstanding Loan Balance. At any time after
and during the continuance of an Event of Default, the Lender will have the
right to use the amounts on deposit in the Reserve Account to purchase one or
more LIBOR Caps in its sole discretion.”
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(e) Section 6.4(c) of the
Original Loan Agreement is hereby amended by deleting the last sentence thereof
and replacing such sentence with the following:
“If on
any Settlement Date, the funds in the Collection Account on such date are
insufficient to pay the amounts set forth in clauses first through tenth of Section 1.4(d) or
clauses first
through seventh
of Section
1.4(e), the Agent shall draw the amount of such remaining deficiency from
the Reserve Account and apply it pursuant to Section 1.4(d) or
(e), as
applicable.”
(f) Subsections (a) and
(g) of the
definition of “Event of Default” set forth in Exhibit I of the
Original Loan Agreement are hereby amended in their entirety to read as
follows:
“(a)
The Borrower shall fail to remit or fail to cause to be remitted to the Agent,
Lender, to the Collection Account or to the Reserve Account on any day any
amount required to be remitted to the Agent, Lender, the Collection Account or
the Reserve Account by the Borrower on such day pursuant to any Transaction
Document and any such failure shall remain unremedied for two Business Days or
more after the earlier of: (i) the date on which such failure shall first become
known to Borrower or (ii) the date on which written notice thereof is given to
Borrower by Agent; provided, that, solely with
respect to amounts required to be remitted to the Agent or Lender on the
Settlement Date occurring on July 14, 2009, such grace period shall be extended
for a total period of thirty (30) days; or”
“(g)
a Borrowing Base Deficit occurs and continues for more than two consecutive
Business Days; provided, that, solely with
respect any Borrowing Base Deficit existing as of the Settlement Date occurring
on July 14, 2009, such grace period shall be extended for a total period of
thirty (30) calendar days; or”
(f) The
definition of “Event of Default” set forth in Exhibit I of the
Original Loan Agreement is hereby amended by adding a subsection (r) thereof to
read as follows:
“(r)
The Borrower’s independent manager (as set forth in the LLC Agreement) shall
resign or be removed and the successor independent manager appointed pursuant to
the LLC Agreement is not consented to by the Agent, such consent not to be
unreasonably withheld.”
(g) The
following definitions set forth in Exhibit I of the
Original Loan Agreement are hereby amended in their entirety to read as
follows:
“ ‘Borrowing Base
Deficit’ means, on any date prior to the Stated Maturity Date, the
excess, if any, of (a) the outstanding Loan Balance, over (b) the lesser of (i)
the Borrowing Base, in each case as of such date, and (ii) the Loan
Limit.”
“ ‘Hedge Rate’ means,
with respect to any LIBOR Cap, the strike rate of such LIBOR Cap.”
“ ‘Loan Limit’ means
$50,716,267.”
“ ‘Required Reserve
Amount’ means, at any time, an amount equal to the Aggregate LIBOR Cap
Premiums as of the most recent determination date.”
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(h) Subsection (j) to the
definition of “Seller Event of Default” set forth in Exhibit I of the
Original Loan Agreement is hereby amended in its entirety to read as
follows:
“(j)
Failure by MPIC to maintain availability on its Working Capital Credit
Facilities plus cash and cash equivalents in an aggregate amount of at least
$3,000,000.”
(i) The
following definition is hereby added to Exhibit I of the
Original Loan Agreement in alphabetical order:
“ ‘Amendment Fee’ means
the Amendment Fee payable by the Borrower to the Agent, for the account of
Agent, in the amount of $228,223.20.”
Section 3. Amendment to Fee
Agreement.
(a) 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)
upon the occurrence and during the continuance of an Event of Default, 2.00%,
(ii) otherwise, 1.75%.”
(b) The
fourth paragraph to the Original Fee Agreement is hereby deleted in its
entirety.
Section
4. Conditions to
Effectiveness.
This
Amendment shall become effective as of the date first above written when and
only when Agent shall have received:
(i)
a duly executed counterpart of this Amendment, and
(ii)
such other documents as Agent may request.
Section
5. Amendment
Fee.
Borrower
covenants and agrees to pay the Amendment Fee on or before June 15, 2009 to the
Agent, for the account of Agent. Borrower’s failure to pay the
Amendment Fee on or before June 15, 2009 shall constitute an Event of Default
under the Loan Agreement.
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 borrow and 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;
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(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;
(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; and
(e) As
of the date of this Amendment, the total Borrowing Base equals or exceeds
$54,893,404.
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.
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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]
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IN
WITNESS WHEREOF, the parties hereto have caused this OMNIBUS AMENDMENT TO LOAN,
SECURITY AND SERVICING AGREEMENT AND TO FEE AGREEMENT 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:
Xxxx X. Xxxxxxxx
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Title:
President and Chief Executive
Officer
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BMO
CAPITAL MARKETS CORP., as Agent
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By:
_________________________________
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Name:
Xxxxxxx Xxxxxxx
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Title:
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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