Exhibit 10.3
THIRD OMNIBUS AMENDMENT
THIS THIRD OMNIBUS AMENDMENT (this "Amendment"), dated as of April 18,
2003, is entered into, by and among CH FUNDING, LLC, as the Borrower (the
"Borrower"), ATLANTIC ASSET SECURITIZATION CORP., as the Issuer ("Atlantic"),
CREDIT LYONNAIS NEW YORK BRANCH, as a Bank and as the Administrative Agent (the
"Administrative Agent") and CH MORTGAGE COMPANY I, LTD., as the Servicer (the
"Servicer"). Capitalized terms used and not otherwise defined herein are used as
defined in the related Operative Documents (as defined below).
RECITALS
WHEREAS, CH Funding, LLC, as Debtor, Credit Lyonnais New York Branch, as
Administrative Agent, U.S. Bank and the Servicer entered into that certain
Security Agreement dated as of July 9, 2002 (as the same may be amended,
restated, supplemented or modified from time to time, the "Security Agreement");
and
WHEREAS, the Borrower, Atlantic, the Administrative Agent, and the
Servicer, have entered into that certain Loan Agreement dated as of July 9,
2002, as amended by the Omnibus Amendment, dated as of August 26, 2002, by and
among the parties hereto, and as further amended by the Second Omnibus
Amendment, dated as of November 25, 2002, by and among the parties hereto (as
the same may be amended, restated, supplemented or modified from time to time,
the "Loan Agreement" and together with the Security Agreement, the "Operative
Documents");
WHEREAS, the parties to the Operative Documents hereto desire to amend
further the Operative Documents;
NOW, THEREFORE, the parties agree as follows:
Section 1. Amendment to Security Agreement.
a. Section 5 of the Security Agreement is hereby amended by
inserting at the beginning of the paragraph the
following: "Subject to Section 2.7 of the Loan Agreement".
b. Section 8(E) of the Security Agreement is hereby amended
by inserting after the word "commercially" and before the word "manner" the
following: "reasonable".
Section 2. Amendment to Loan Agreement
a. Section 2.15(b) of the Loan Agreement is hereby amended by
inserting after the words "a period of one month" and before the words ", which
Advance" the following: "(provided that if such Interest Period begins on a
date for which there is no corresponding date in the month in which such
Interest Period is scheduled to end, the last day of such Interest Period shall
be the last Business Day of the month in which such Interest Period is
scheduled to end)."
b. Section 2.15(b) of the Loan Agreement is hereby further
amended by inserting after clause (v) the following:
" or,
"(vi) the Eurodollar Rate determined pursuant hereto does not
accurately reflect the cost of funds to the Issuer or the Banks (as
conclusively determined by the Agent) during such Interest Period, or
"(vii) adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for the relevant Interest Period,"
c. Section 3.4(A) of the Loan Agreement is hereby further
amended by deleting clauses (i) and (ii) and by inserting in lieu thereof the
following:
"(i) at no time shall Mortgage Notes having an aggregate
Collateral Value in excess of $5,000,000 (the Collateral Value assigned to each
such Mortgage Notes shall be determined utilizing as the
principal amount of such Mortgage Note the lesser of the uncorrected face value
of such Mortgage Note and the correct face value of such Mortgage Note known to
the Borrower or the Servicer) be so delivered for replacement with the corrected
Mortgage Notes hereunder;
"(ii) until such time as a corrected Mortgage Note shall have
been delivered to the Collateral Agent, the Collateral Value attributed to each
Mortgage Note delivered to the Servicer to be corrected in accordance with this
Section 3.4 shall be the lesser of the uncorrected face value of such Mortgage
Note and the corrected face value of such Mortgage Note known to the Borrower
and communicated by the Borrower to the Collateral Agent; and
"(iii) notwithstanding the preceding clause (ii), unless the
corrected Mortgage Note is endorsed in blank (without recourse) and re-delivered
to the Collateral Agent within 14 calendar days of the delivery by the
Collateral Agent of the Mortgage Note to be corrected, the Collateral Value
attributed to both the Mortgage Note to be delivered and the corrected Mortgage
Note shall be zero beginning on the 15th calendar day; provided, however, that
the Collateral Value attributable to the corrected Mortgage Note will be
reinstated promptly upon the subsequent delivery thereof to the Collateral
Agent."
Section 3. 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 4. 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 Section 5-1401 of the New York General
Obligations Law, which shall apply hereto).
[Signatures appear on following page.]
IN WITNESS WHEREOF, the parties have agreed to and caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ISSUER
AGREED: ATLANTIC ASSET SECURITIZATION CORP.
By: Credit Lyonnais New York Branch,
as Attorney-in-Fact
By: /s/ Anthony Brown
Name: Anthony Brown
Title: Vice President
ADMINISTRATIVE AGENT
AGREED: CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Anthony Brown
Name: Anthony Brown
Title: Vice President
BANK
AGREED: CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Anthony Brown
Name:
Title: Vice President
SERVICER
AGREED: CH MORTGAGE COMPANY I, LTD.
By: CH Mortgage Company GP, Inc., its
general partner
By: /s/ Randal C. Present
Name:
Title: President
BORROWER
AGREED: CH FUNDING, LLC
By: /s/ Randal C.Present
Name:
Title: President