Exhibit
10.1
OMNIBUS AMENDMENT
TO
LOAN, SECURITY AND SERVICING
AGREEMENT
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;
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