Exhibit 10.4
EXECUTION
AMENDMENT NO. 1 TO MASTER REPURCHASE AGREEMENT
AMENDMENT NO. 1 (this "AMENDMENT") to the Amended and Restated Master
Repurchase Agreement referenced below is entered into as of January 14, 2005,
among ABFS Warehouse Trust 2004-2, as Seller (the "Seller"), American Business
Financial Services, Inc. (the "Parent"), ABFS Consolidated Holdings, Inc.
("Holdings"), American Business Credit, Inc. ("ABC"; the Seller, the Parent,
Holdings and ABC, collectively, the "ABFS ENTITIES"), and The Patriot Group, LLC
(the "Buyer").
R E C I T A L S:
WHEREAS, the Seller, the other ABFS Entities and the Buyer are parties
to the Amended and Restated Master Repurchase Agreement dated as of November 15,
2004 and amended and restated as of December 21, 2004 (the "REPURCHASE
AGREEMENT") and
WHEREAS, the Seller has requested that the Securities Purchase Price be
increased, and the Buyer has agreed to such an increase, on the terms and
subject to the conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. AMENDMENTS TO REPURCHASE AGREEMENT.
(a) SECTION 1 (a) OF THE REPURCHASE AGREEMENT. The following
defined term is hereby added to Section 1(a) of the Repurchase Agreement
following the definition of the term "Additional Collateral":
"ADDITIONAL SECURITIES PURCHASE PRICE": shall mean $750,000 to
be paid by the Buyer to the Seller on January 14, 2005.
(b) SECTION 1(a) OF THE REPURCHASE AGREEMENT. The defined
term "SECURITIES PURCHASE PRICE" is hereby amended by inserting the phrase "plus
the Additional Securities Purchase Price" immediately after the phrase "Initial
Securities Purchase Price" contained therein.
(c) SECTION 2 OF THE REPURCHASE AGREEMENT. Section 2(d) of
the Agreement is hereby amended by renumbering such subsection as Section 2(e),
and the following new subsection is added as Section 2(d):
(d) As of January 14, 2005, the Seller has requested, and
the Buyer has agreed to pay to the Seller, the Additional Securities Purchase
Price.
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2. CONDITION PRECEDENT. As a condition precedent to the
effectiveness of this Amendment, the Buyer shall have received, on or before the
date hereof, an acknowledgement to its letter of even date herewith addressed to
ABFS, duly executed by the Parent and the other parties noted in such letter,
describing the current state of the relationship between the ABFS Entities and
the Buyer concerning the Repurchase Agreement and the Obligations, and
confirming certain understandings between the parties thereto.
3. DEFINED TERMS. All capitalized terms used herein, unless
otherwise defined herein, have the same meanings provided herein or in the
Repurchase Agreement.
4. MODIFICATION OF REPURCHASE AGREEMENT. This Amendment is limited
precisely as written and shall not be deemed to (a) be a consent to a waiver or
modification of any other term or condition of the Repurchase Agreement, the
other Program Documents or any of the documents referred to therein or executed
in connection therewith or (b) prejudice any right or rights the Buyer may now
have or may have in the future under or in connection with the Repurchase
Agreement, the other Program Documents or any documents referred to therein or
executed in connection therewith.
5. CONSTRUCTION. This Amendment is a document executed pursuant to
the Repurchase Agreement and shall (unless otherwise expressly indicated
therein) be construed, administered or applied in accordance with the terms and
provisions thereof. Whenever the Repurchase Agreement is referred to in the
Repurchase Agreement or any of the instruments, agreements or other documents or
papers executed and delivered in connection therewith, it shall be deemed to
mean the Repurchase Agreement, as modified by this Amendment.
6. COUNTERPARTS. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement. The
parties may execute facsimile copies of this Amendment and the facsimile
signature of any such party shall be deemed an original and fully binding on
said party.
7. GOVERNING LAW. This Amendment shall be governed and construed in
accordance with the applicable terms and provisions of Section 31 (Governing
Law) of the Repurchase Agreement, which terms and provisions are incorporated
herein by reference.
8. AMENDMENT NOT A NOVATION. Except as hereby amended, no other
term, condition or provision of the Repurchase Agreement shall be deemed
modified or amended, and this Amendment shall not be considered a novation.
9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the Seller, the Buyer and the other ABFS Entities
parties hereto have caused their names to be signed to this Amendment by their
respective officers thereunto duly authorized as of the date first above written
to signing their acknowledgment of and agreement with the terms hereof.
ABFS WAREHOUSE TRUST 2004-2, as Seller
By: Wilmington Trust Company, not in its
individual capacity but solely as trustee of
ABFS WAREHOUSE TRUST 2004-2
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Assistant Vice President
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THE PATRIOT GROUP, LLC, as Buyer
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Senior Vice President
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AMERICAN BUSINESS FINANCIAL SERVICE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Chairman, Chief Executive Officer,
President
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ABFS CONSOLIDATED HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Executive Vice President
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AMERICAN BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Executive Vice President
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