MASTER CONTRIBUTION AGREEMENT
MASTER CONTRIBUTION AGREEMENT, dated as of November 16, 2001 (this
"Agreement"), by and between American Business Financial Services, Inc., as
owner and contributor ("Contributor") and ABFS REPO 2001, Inc., as Company
("Company").
Contributor holds 100% ownership interest in Company. Contributor
intends to contribute to the capital of Company, from time to time, certain
Loans (the "Contributed Assets") in accordance with the terms hereof (with
respect to the Contributed Assets contributed on any such date, each a "Closing
Date"). Each of Contributor and Company has duly authorized the execution,
delivery and performance of this Agreement for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
In consideration of the mutual agreements herein contained, Contributor
and Company agree as follows:
1. All capitalized terms not defined herein shall have the meanings
assigned to them in the Master Repurchase Agreement, dated as of November 16,
2001, between Company and Credit Suisse First Boston Mortgage Capital LLC
("Buyer"), as amended by Annex I thereto (as may be further amended, restated or
modified from time to time, the "Repurchase Agreement").
2. On the second Business Day preceding each Closing Date, Company
shall deliver a Transaction Notice in accordance with the provisions of the
Repurchase Agreement. Contributor hereby agrees that the Purchased Securities
identified in each such Transaction Notice shall be Contributed Assets
hereunder. On each Closing Date, Contributor shall execute and deliver to the
Buyer or its agent a Confirmation of Contribution in substantially the form of
Exhibit 1 hereto (or in the form of Annex 3 of the Custody Agreement) with
respect to the related Contributed Assets, whereby Contributor shall contribute
to the capital of, assign, transfer, set over and otherwise convey to Company,
without recourse, all of the right, title and interest in, to and under such
Contributed Assets, including without limitation all amounts distributable in
respect of such Contributed Assets payable after such Closing Date; provided,
however, that notwithstanding the failure of Contributor to execute such
Confirmation of Contribution, if a Transaction is entered into pursuant to the
Repurchase Agreement, the contribution of the related Purchased Securities shall
be conclusively deemed to have occurred on the initial Purchase Date of such
Purchased Securities. In accordance with the terms of the Repurchase Agreement,
Contributor agrees to remit, or cause to be remitted, to Buyer or the Custodian,
as appropriate, immediately upon receipt thereof, any amount in respect of any
Contributed Asset distributed directly to or otherwise received by Contributor
after the related Closing Date.
3. The parties hereto acknowledge that Company intends to sell and
transfer the Contributed Assets to Buyer pursuant to the terms of the Repurchase
Agreement. Accordingly, Company hereby instructs Contributor to deliver the
Contributed Assets directly to Buyer, or its designee, as designee of Company,
in accordance with the terms and provisions of the Repurchase Agreement and the
Custody Agreement.
4. It is intended that the conveyance of the Contributed Assets by
Contributor to Company as provided hereby be, and be construed as, an absolute
contribution of the Contributed Assets to the capital of Company by Contributor.
Furthermore, it is not intended that such conveyance be deemed a pledge of such
Contributed Assets by Contributor to Company to secure a debt or other
obligation of Contributor. However, in the event that, notwithstanding the
intent of the parties, such Contributed Assets are held to be property of
Contributor, or if for any reason this Agreement is held or deemed to create a
security interest in such Contributed Assets, then it is intended that:
(a) this Agreement shall also be deemed a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code
and the Uniform Commercial Code of any other applicable jurisdiction;
(b) the conveyance provided for in this Section shall be
deemed to be a grant by Contributor to Company of a security interest in all of
Contributor's right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired in, to and under the
Contributed Assets, and all payments and other distributions thereon after the
Closing Date, and all proceeds of the foregoing;
(c) the possession by Company (or any subsequent assignee,
including, without limitation, Buyer) or its agent of the Contributed Assets or
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party," or possession by a purchaser or a person designated by such secured
party, for purposes of perfecting the security interest pursuant to the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Sections 9-313, 8-313 or 8-321
thereof); and
(d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of Company (or
any subsequent assignee, including, without limitation, the Custodian) for the
purpose of perfecting such security interest under applicable law.
Contributor shall take such actions as may be necessary to ensure that,
if this Agreement were deemed to create a security interest in such Contributed
Assets and other property described above, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Repurchase Agreement; provided, however, that absent notice from Buyer to the
contrary, Contributor shall be conclusively deemed to have satisfied the
provisions of this paragraph as to any Contributed Asset that is subject to a
Transaction (as such term is defined in the Repurchase Agreement) if with
respect to such Contributed Asset, Contributor has performed all of
Contributor's obligations as set forth in the Repurchase Agreement and the
Custody Agreement as the same may be amended from time to time.
5. Contributor hereby covenants and agrees that:
(a) It will pay from its own funds and assets (and not
Company's) all obligations and indebtedness incurred by it.
(b) It will not conduct its business in the name of Company.
(c) It will not operate or purport to operate as an
integrated, single economic unit with respect to Company or seek or obtain
credit or incur any obligation to any third party based on the assets of Company
or induce any such third party to reasonably rely on the creditworthiness of
Company in connection therewith.
(d) The accounting records of Contributor will disclose the
effect of the transactions contemplated hereby in accordance with statutory
accounting practices and relevant pronouncements.
(e) Immediately prior to its transfers provided for herein,
Contributor had good title to, and was the sole owner of, each Contributed
Asset, free and clear of any pledge, lien, encumbrance or security interest.
6. With respect to each Contributed Asset, Contributor hereby makes all
of the applicable representations and warranties set forth in Appendix A to the
Custody Agreement as of the related Closing Date and the date the Loan File, as
applicable, is delivered to the Custodian in accordance with the Custody
Agreement. Contributor hereby acknowledges that Buyer is relying upon the
representations, warranties and covenants made by it in this Agreement, the
Repurchase Agreement and the Custody Agreement, and agrees that Buyer and its
successors and assigns are entitled to enforce the remedies for a breach of such
representations, warranties and covenants directly against Contributor. In
addition, Contributor agrees to make the representations and warranties set
forth in Appendix A to the Custody Agreement as of the "cut-off date" of the
securitization or whole loan sale of the related Loans by Seller or Buyer, as
applicable; provided, however, that to the extent that Contributor has at the
time of such securitization or whole loan sale actual knowledge of any facts or
circumstances that would render any of such representations and warranties
materially false, Contributor shall have no obligation to make such materially
false representation and warranty.
7. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. Buyer is an intended
third party beneficiary of this Agreement, entitled to enforce the provisions
hereof as if a party hereto.
8. Except as provided herein, any notice required or permitted by this
Agreement shall be in writing and shall be effective and deemed delivered only
when received by the party to which it is sent; provided, however, that a
facsimile transmission shall be deemed to be received when transmitted so long
as the transmitting machine has provided an electronic confirmation (without
error message) of such transmission. Any such notice shall be sent to a party at
the address or facsimile transmission number set forth below:
if to Contributor,
American Business Financial Services, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to Company,
ABFS REPO 2001, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISIONS THEREOF,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Neither this Agreement nor any term hereof may be changed, waived
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may not be amended without the express written consent of Buyer. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, and which taken together shall constitute one and the same
instrument.
11. This Agreement shall remain in full force and effect until the
Termination Date of the Repurchase Agreement.
IN WITNESS WHEREOF, Contributor and Company have caused this Agreement
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
AMERICAN BUSINESS FINANCIAL
SERVICES, INC.
By:
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Name:
Title:
ABFS REPO 2001, INC.
By:
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Name:
Title:
EXHIBIT 1
FORM OF CONFIRMATION OF CONTRIBUTION
On this ____ day of _________ __, ___, American Business
Financial Services, Inc. (the "Contributor") as the Contributor under that
certain Contribution Agreement, dated as of November 16, 2001 (the "Agreement")
does hereby transfer, assign, set over and convey, as a capital contribution, to
ABFS REPO 2001, Inc. (the "Company") as Company under the Agreement, without
recourse, but subject to the terms of the Agreement, all rights, title and
interest of the Contributor in and to the Contributed Assets listed on the
Contributed Asset Schedule attached hereto together with the related files and
all rights and obligations arising under the documents contained therein.
The Contributor confirms to the Company that the covenants set
forth in Section 5 of the Agreement are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Agreement.
AMERICAN BUSINESS FINANCIAL
SERVICES, INC.
By:
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Name:
Title:
