Exhibit 10.150
FIRST AMENDMENT TO SECURITY AGREEMENT
This First Amendment to Security Agreement ("Amendment") is dated
October 13, 2004, among ABFS CONSOLIDATED HOLDINGS, INC., a Delaware
corporation, AMERICAN BUSINESS MORTGAGE SERVICES, INC., a New Jersey
corporation, HOMEAMERICAN CREDIT, INC., a Pennsylvania corporation, and AMERICAN
BUSINESS CREDIT, INC., a Pennsylvania corporation (each a "Grantor" and
collectively, the "Grantors") and acknowledged and accepted by U.S. BANK,
NATIONAL ASSOCIATION, a national banking association, as trustee for the
Securityholders ("Secured Party").
BACKGROUND
A. On December 31, 2003, American Business Financial Services, Inc.
("Company") entered into a certain Indenture (as it may hereafter be amended,
supplemented or replaced from time to time, "Indenture") pursuant to which the
Company issued Senior Collateralized Notes to the Securityholders. Secured Party
is acting as trustee for the benefit of the Securityholders in accordance with
the terms of the Indenture. Capitalized terms used but not defined herein shall
have the meanings given to such terms as set forth in the Indenture or the UCC
(as defined below), as applicable.
B. To secure repayment of the Note Obligations and all other
undertakings of the Company to the Secured Party and the Securityholders under
the Indenture, each Grantor granted to Secured Party, for the benefit of the
Securityholders, security interests in certain property of such Grantor
described in that certain Security Agreement dated December 31, 2003 (the
"Original Security Agreement").
C. The Original Security Agreement contains ambiguities as certain
capitalized terms used therein were not specifically defined therein.
D. The Secured Party and the Grantors desire to eliminate any
ambiguities contained in the Original Security Agreement pursuant to this
Amendment.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Amendment to Security Agreement. Section 1.1 of the Original
Security Agreement is hereby deleted in its entirety and replaced with the
following:
1.1 Description. As security for the payment of the Note
Obligations and undertakings of every kind or nature whatsoever of the Company
to the Securityholders and Secured Party, whether now existing or hereafter
incurred, matured or unmatured, direct or indirect, primary or secondary,
related or unrelated or due or to become due, arising under the Indenture, and
any extensions, modifications, substitutions, increases and renewals thereof,
and substitutions therefore; the payment of all amounts advanced by Secured
Party to preserve, protect, defend, and enforce its rights hereunder and in the
following property in accordance with the terms of this Agreement, each Grantor
hereby assigns and grants to Secured Party (for the benefit of the
Securityholders), a continuing lien on and security interest in, upon and to all
of such Grantor's now owned and hereafter acquired, created or arising General
Intangibles (including Payment Intangibles) arising out of, related to or owing
to each Grantor as a result of such Grantor's ownership interest in ABFS
Warehouse Trust 2003-1, established pursuant to the terms of that certain
Amended and Restated Trust Agreement among Grantors and Wilmington Trust Company
dated October 14, 2003 and the proceeds, whether cash or non-cash, of the
foregoing (collectively, the "Collateral").
For purposes hereof, the term "General Intangibles" means any and all
cash (including Payment Intangibles) due, if, and when, received, under a
specified contract or ownership interest in a trust or other business entity,
and the term "Payment Intangibles" means payment intangibles as defined in the
Uniform Commercial Code as in effect from time to time in the State of Delaware.
2. Lien Documents: Secured Party is hereby authorized to, and hereby
authorizes Company to, file financing statements and amendments to financing
statements without any Grantor's signature in accordance with the Uniform
Commercial Code as in effect in the State of Delaware from time to time (the
"UCC") limiting the Collateral described therein to "cash due to each Grantor
from the distributions of ABFS Warehouse Trust 2003-1, a Delaware statutory
trust, under the Amended and Restated Trust Agreement, dated October 14, 2003,
governing ABFS Warehouse Trust 2003-1 (the "Trust Agreement") attributable to
the IOS (as defined in the Trust Agreement), which each Grantor receives from
time to time". Each Grantor agrees to comply with the requirements of all state
and federal laws and requests of Secured Party in order for Secured Party to
have and maintain a valid and perfected first security interest in the
Collateral.
3. Governing Law: This Amendment, and all related agreements and
documents shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to its otherwise applicable principles of
conflicts of laws.
4. Waiver: No omission or delay by Secured Party in exercising any
right or power under this Amendment or any other document will impair such right
or power or be construed to be a waiver of any Default or an acquiescence
therein, and any single or partial exercise of any such right or power will not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver of Secured Party's rights hereunder will be valid unless in
writing and signed by Secured Party, and then only to the extent specified. Each
Grantor releases Secured Party, its agents, administrators and executors, its
officers, employees and agents, of and from any claims for loss or damage
resulting from acts or conduct of any or all of them arising through the date
hereof, unless caused solely by willful misconduct or gross negligence.
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5. Modification: No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf of
the party against whom enforcement is sought.
6. References to Security Agreement. The Original Security Agreement
and this Amendment are to be read as one and the same document, and except as
amended hereby, all of the terms and conditions of the Original Security
Agreement remain in full force and effect. All references in the Original
Security Agreement and this Amendment to "Security Agreement" shall refer to the
Original Security Agreement, as amended hereby.
7. Counterpart Originals: The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
8. Successors and Assigns: All provisions herein shall inure to, become
binding upon the successors, representatives, trustees, administrators,
executors, heirs and assigns of the parties hereto.
[SIGNATURES TO FOLLOW ON SEPARATE PAGE]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment the day and year first above written.
GRANTORS:
ABFS CONSOLIDATED HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
------------------------------------
AMERICAN BUSINESS MORTGAGE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
------------------------------------
HOMEAMERICAN CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
------------------------------------
AMERICAN BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
------------------------------------
ACKNOWLEDGED AND ACCEPTED:
U.S. BANK, NATIONAL ASSOCIATION
AS TRUSTEE FOR THE SECURITYHOLDERS
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
(Signature Page to Amendment to Security Agreement)
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