Exhibit 3
---------
EXECUTION VERSION
-----------------
AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT
This Amendment No. 1 to Subscription Agreement (this "Amendment") is
made and entered into as of June 30, 2005 between New Affirmative LLC, a
Delaware limited liability company (the "Purchaser"), DSC AFFM, LLC, a
Delaware limited liability company ("DSC"), X.X. Xxxxxxx I LP, a Delaware
limited partnership ("JCF"), and Affirmative Investment LLC, a Delaware
limited liability company ("AIL" and collectively with DSC, the "Investors").
WHEREAS, DSC and JCF have caused the Purchaser to be formed as a
limited liability company under the Delaware Limited Liability Company Act as
in effect on the date of this Agreement (currently Chapter 18 of Title 6,
Sections 18-101 through 18-1109 of the Delaware Code).
WHEREAS, on June 13, 2005, the Purchaser, DSC and JCF entered into
the Subscription Agreement (the "Subscription Agreement"), pursuant to which
each of DSC and JCF agreed to make certain investments in the Purchaser.
WHEREAS, (a) JCF wishes to assign its rights and obligations under
the Subscription Agreement to, and be replaced as a party to the Subscription
Agreement by, AIL and (b) AIL desires to accept and assume all of JCF's rights
and obligations under the Subscription Agreement.
WHEREAS, following the execution and delivery hereof, AIL shall be
treated as "JCF" for all purpose under the Subscription Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties herein contained, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Purchaser, JCF and the Investors, intending to be legally
bound, hereby agree as follows:
1. Assignment. Pursuant to and in accordance with Section 6(b) of the
Subscription Agreement, JCF hereby assigns all of its rights and obligations
under the Subscription Agreement to AIL, and AIL hereby accepts and assumes
all of JCF's rights and obligations under the Subscription Agreement.
2. Substitution for JCF. Each of the parties hereto acknowledges and
agrees that (i) AIL shall replace JCF for the purposes of the Subscription
Agreement and (ii) all references to "JCF" in the Subscription Agreement
shall, from and after the date hereof, be deemed to be references to AIL.
3. No Further Amendment. Except as otherwise provided herein, the
Agreement shall remain unchanged and in full force and effect.
4. Effect of Amendment. From and after the date of this Amendment,
any reference in the Agreement to "hereof", "herein", "hereunder", "hereby"
and "this Agreement" shall be deemed a reference to the Agreement as amended
by this Amendment.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, DSC, JCF, AIL and the Purchaser have executed
this Amendment as of the date first above written.
NEW AFFIRMATIVE LLC
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Person
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Authorized Person
DSC AFFM, LLC
By: DSC AFFM Manager LLC,
its Managing Member
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Person
X.X. XXXXXXX I LP
By: JCF Associates I LLC,
its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Principal
AFFIRMATIVE INVESTMENT LLC
By: /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Authorized Person
