MASTER REPURCHASE AGREEMENT
Dated as of November 16, 2001
BETWEEN:
Credit Suisse First Boston Mortgage Capital LLC, as buyer ("Buyer", which term
shall include any "Principal" as defined and provided for in Annex I), or as
agent pursuant hereto ("Agent"), and
ABFS REPO 2001, Inc., as seller ("Seller").
1. APPLICABILITY
Buyer shall, from time to time, upon the terms and conditions set forth
herein, agree to enter into transactions in which Seller transfers to Buyer
Eligible Assets against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Purchased Assets at a date
certain, against the transfer of funds by Seller. Each such transaction shall be
referred to herein as a "Transaction", and, unless otherwise agreed in writing,
shall be governed by this Agreement.
2. DEFINITIONS AND INTERPRETATION
a. Defined Terms.
"ABC" means American Business Credit, Inc. and its permitted successors
and assigns.
"ABFS" means American Business Financial Services, Inc. and its
permitted successors and assigns.
"ABMS" means American Business Mortgage Services, Inc. (formerly New
Jersey Mortgage and Investment Corp.) and its permitted successors and assigns.
"Additional Purchased Assets" shall have the meaning assigned thereto
in Section 6(a) hereof.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting equity, by contract or otherwise.
"Agent" means Credit Suisse First Boston Mortgage Capital LLC or any
successor.
"Agreement" means this Master Repurchase Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Available Commitment Amount" means the excess, if any, of (i) the
Maximum Aggregate Committed Purchase Price, over (ii) the aggregate outstanding
Purchase Price with respect to all Transactions hereunder.
"Borrower" means the obligor or obligors on a Note, including any
Person that has acquired the related collateral and assumed the obligations of
the original obligor or obligors under the Note.
"Breakage Costs" shall have the meaning assigned thereto in Section
3(c) herein.
"Business Day" means any day other than (i) a Saturday or Sunday or
(ii) a day upon which the New York Stock Exchange, the Federal Reserve Bank of
New York or the Custodian is obligated by law or executive order to be closed.
"Business Purpose Loan" means any Loan, the proceeds of which were
obtained by the related Borrower in order to acquire an interest in or carry on
a business or commercial enterprise.
"Buyer's MV Margin Amount" means, with respect to any Transaction as of
any date of determination, the amount obtained by application of Buyer's MV
Margin Percentage to the Repurchase Price for such Transaction as of such date.
"Buyer's MV Margin Percentage" shall have the meaning assigned thereto
in the Side Letter.
"Buyer's Par Margin Amount" means, with respect to any Transaction as
of any date of determination, the amount obtained by application of the weighted
average of the applicable Buyer's Par Margin Percentage (measure by outstanding
principal balance) to the Repurchase Price for such Transaction as of such date.
"Buyer's Par Margin Percentage" shall have the meaning assigned thereto
in the Side Letter.
"Change in Control" shall mean after the initial Purchase Date
hereunder the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
outstanding shares of voting stock of the related Guarantor at any time if after
giving effect to such acquisition such Person or Persons owns fifty percent
(50%) or more of such outstanding voting stock.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by Buyer (or any Affiliate of
Buyer) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral" shall have the meaning assigned thereto in Section 8
hereof.
"Breakage Costs" shall have the meaning assigned thereto in Section
3(c) herein.
"Collection Account" shall have the meaning assigned thereto in the
Custody Agreement.
"Collection Period" means the collection period reflected in the
monthly loan data delivered to the Buyer, which period shall generally be the
previous calendar month from the date on which such monthly loan data is
delivered to the Buyer.
"Committed Transactions" shall have the meaning assigned thereto in
Section 4 hereof.
"Computer Tape" means a computer tape or other electronic medium
generated by or on behalf of Seller and delivered to Buyer and Custodian which
provides information relating to the Purchased Assets, including the information
set forth in the Loan Schedule, in a format acceptable to Buyer.
"Confirmation" shall have the meaning assigned thereto in Section 4(d)
hereof.
"Consolidated Stockholders' Equity" means Total Shareholders Equity
minus goodwill, patents, trade names, trademarks, copyrights, franchises,
organizational expense, and other assets in each case as are shown as intangible
assets on the balance sheet of ABFS and its subsidiaries on a consolidated basis
as determined at a particular date in accordance with GAAP.
"Custody Agreement" means the Custodial Agreement, dated as of November
16, 2001 among Seller, Buyer, ABC and Custodian.
"Custodian" means JPMorgan Chase Bank, or its successors and permitted
assigns.
"Default" means any event, that, with the giving of notice or the
passage of time or both, would constitute an Event of Default; provided that a
mere failure to have complied with a covenant prior to the time on which time
period for compliance shall have expired shall not constitute a "Default".
"Default Rate" means, as of any date of determination, the lesser of
(i) the Pricing Rate plus 4% or (ii) the maximum rate permitted by applicable
law.
"Effective Date" shall mean the date set forth on the top of the first
page of this Agreement.
"Eligible Asset" shall have the meaning assigned thereto in the Side
Letter.
"Eligible Loan" shall have the meaning assigned thereto in the Side
Letter.
"Event of Default" shall have the meaning assigned thereto in Section
18 hereof.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions over Seller.
"Guarantee" means, as to any Person, any obligation of such Person
directly or indirectly guaranteeing any Indebtedness of any other Person or in
any manner providing for the payment of any Indebtedness of any other Person.
"Guarantors" means ABFS, ABC, ABMS and Upland.
"Guaranty" means the Guaranty of the Guarantors, jointly and severally,
in favor of the Buyer, dated as of November 16, 2001.
"Income" means, with respect to any Purchased Asset at any time, any
principal thereof and all interest, dividends and other collections and
distributions thereon.
"Indebtedness" shall mean, for any Person: (a) all obligations for
borrowed money; (b) obligations of such Person to pay the deferred purchase or
acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business (c) indebtedness of others secured by a lien on the
Property of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (d) obligations (contingent or otherwise) of
such Person in respect of letters of credit or similar instruments issued for
account of such Person; (e) capital lease obligations of such Person; (f)
obligations of such Person under repurchase agreements or like arrangements
(excluding obligations under this Agreement); (g) indebtedness of others
guaranteed on a recourse basis by such Person; (h) all obligations of such
Person incurred in connection with the acquisition or carrying of fixed assets
by such Person; (i) indebtedness of general partnerships of which such Person is
a general partner; and (j) any other contingent liabilities of such Person.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, including all rules and regulations promulgated thereunder.
"LIBOR" shall mean, for any date of determination, the rate appearing
at page 3750 of the Telerate Screen as one-month LIBOR on such date, and if such
rate shall not be so quoted, the arithmetic average as determined by the Agent
of the rates at which deposits in immediately available U.S. dollars having a
maturity of approximately 30 days are offered to four (4) reference banks to be
selected by the Agent in the London interbank market, at approximately 11:00
a.m. (London time) two London business days prior to such date.
"Loan" means (i) a first lien or second lien, fixed rate, closed-end
home equity loan, or (ii) such other type of loan, lease or other receivable as
shall be agreed upon by the parties as evidenced by Appendix A to the Custodial
Agreement, as amended or supplemented by mutual agreement of the parties.
"Loan Documents" shall have the meaning assigned thereto in the Custody
Agreement.
"Loan File" shall have the meaning of assigned thereto in the Custody
Agreement.
"Loan Schedule" means the list of Loans delivered by an Originator or
Seller to Buyer and Custodian together with each Transaction Notice and attached
by the Custodian to the related Trust Receipt and setting forth as to each Loan
the related Borrower name, the address of the related Mortgaged Property and the
outstanding principal balance of the Loan as of the initial Purchase Date,
together with any other information specified by Buyer from time to time in good
faith.
"Margin Call" shall have the meaning assigned thereto in Section 6(a).
"Margin Deficit" shall have the meaning assigned thereto in Section
6(a) hereof.
"Market Value" means (i) with respect to any Purchased Asset that is an
Eligible Asset, as of any date of determination, the market price as determined
by Buyer in its sole discretion exercised in a commercially reasonable manner,
without credit for any interest accrued and unpaid thereto, and (ii) with
respect to a Purchased Asset that is not an Eligible Asset, zero.
"Master Contribution Agreement" means the Master Contribution
Agreement, dated as of November 16, 2001, among ABFS and Seller.
"Master Netting Agreement" means the Master Collateral Security and
Master Netting Agreement dated as of November 16, 2001 among Buyer and certain
of its Affiliates and the Guarantors and certain Affiliates.
"Material Adverse Change" means, with respect to a Person, any material
adverse change in the business, condition (financial or otherwise), operations,
performance or properties of such Person.
"Material Adverse Effect" means (a) a Material Adverse Change with
respect to a Guarantor or a Guarantor and its Affiliates that are party to any
Program Document taken as a whole; (b) a material impairment of the ability of
the Seller, a Guarantor or any Affiliate that is a party to any Program Document
to perform any material obligation or material covenant under any Program
Document or to avoid any Event of Default; (c) a material adverse effect upon
the legality, validity, binding effect or enforceability of any Program
Document; or (d) a material adverse effect upon the value or marketability of a
material portion of the Purchased Assets.
"Maximum Aggregate Committed Purchase Price" means $100,000,000.
"Maximum Aggregate Purchase Price" means $200,000,000.
"Mortgage" means a mortgage, deed of trust, or other instrument that
creates a lien on the related Mortgaged Property and secures a Note.
"Mortgaged Property" means, with respect to a Loan, the related
Borrower's fee interest in real property and all other collateral securing
repayment of the debt evidenced by the related Note.
"Net Income" means the net income of ABFS determined in accordance with
GAAP.
"Note" means, with respect to any Loan, the related promissory note
together with all riders thereto and amendments thereof or other evidence of
indebtedness of the related Borrower.
"Notice Date" shall have the meaning assigned thereto in Section 4
hereof.
"Obligations" means (a) all of Seller's and Guarantor's obligation to
pay the Repurchase Price on the Repurchase Date, and other obligations and
liabilities of Seller, Guarantors and Servicer, to Buyer, its Affiliates or
Custodian arising under, or in connection with, the Program Documents or
otherwise, whether now existing or hereafter arising; (b) any and all sums paid
by Buyer or on behalf of Buyer pursuant to the Program Documents in order to
preserve any Purchased Asset or its interest therein (provided that the Buyer
agrees to take reasonable steps not to duplicate efforts taken by the Seller or
a Guarantor); (c) in the event of any proceeding for the collection or
enforcement of any of Seller's, Guarantors' or Servicer's indebtedness,
obligations or liabilities referred to in clause (a), the reasonable expenses of
retaking, holding, collecting, preparing for sale, selling or otherwise
disposing of or realizing on any Purchased Asset, or of any exercise by Buyer or
such Affiliate of its rights under the related agreements, including without
limitation, reasonable attorneys' fees and disbursements and court costs; and
(d) all of Seller's, Guarantors' and Servicer's obligations to Buyer, Custodian
or any other Person pursuant to the Program Documents.
"Originator" means either ABC, Upland or ABMS, as applicable.
"Person" shall mean any legal person, including any individual,
corporation, partnership, association, joint-stock company, trust, limited
liability company, unincorporated organization, governmental entity or other
entity of similar nature.
"Price Differential" means, with respect to each Transaction as of any
date, the aggregate amount obtained by daily application of the Pricing Rate for
such Transaction to the Purchase Price on a 360-day-per-year basis for the
actual number of days during the period commencing on (and including) the
Purchase Date and ending on (but excluding) the date of determination (reduced
by any amount of such Price Differential in respect of such period previously
paid by Seller to Buyer) with respect to such Transaction.
"Pricing Margin" shall have the meaning assigned thereto in the Side
Letter.
"Pricing Rate" means the per annum percentage rate for determination of
the Price Differential as set forth in Section 3(b) hereof or as otherwise set
forth in the Side Letter.
"Prime Rate" means the daily prime loan rate as reported in The Wall
Street Journal or if more than one rate is published, the highest of such rates.
"Principal" shall have the meaning given to it in Annex I.
"Program Documents" means this Agreement, the Custody Agreement, any
Servicing Agreement, the Master Netting Agreement, the Guaranty, the Master
Contribution Agreement, the Side Letter and any other agreement entered into by
Seller and/or a Guarantor, on the one hand, and Buyer or one of its Affiliates
(or Custodian on its behalf) on the other, in connection herewith or therewith.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Date" means the date on which Purchased Assets are to be
transferred by Seller to Buyer.
"Purchase Price" shall mean the price paid by the Buyer for a Purchased
Asset, the amount of which is set forth in the Side Letter.
"Purchased Assets" means, with respect to a Transaction, the related
Loans, together with the related Records, Servicing Rights, and other
Collateral, and all instruments, chattel paper, and general intangibles
comprising or relating to all of the foregoing, including all rights of the
Seller under the Master Contribution Agreement. The term "Purchased Assets" with
respect to any Transaction at any time also shall include Additional Purchased
Assets delivered pursuant to Section 6(a) hereof.
"Records" means all instruments, agreements and other books, records,
and reports and data generated by other media for the storage of information
maintained by Seller or any other person or entity with respect to a Purchased
Asset. Records shall include the Notes, any Mortgages, the Loan Files and any
other instruments necessary to document or service a Loan that is a Purchased
Asset, including, without limitation, the complete payment and modification
history of each Loan that is a Purchased Asset.
"Repurchase Date" shall have the meaning assigned thereto in Section
3(b) and shall also include the date determined by application of Section 19.
"Repurchase Price" means the price at which Purchased Assets are to be
transferred from Buyer to Seller upon termination of a Transaction, which will
be determined in each case (including Transactions terminable upon demand) as
the sum of the Purchase Price paid and the Price Differential as of the date of
such determination.
"Seller Parties" means Seller, ABFS, ABC, ABMS and Upland.
"Servicer" means (i) ABC, or (ii) any other servicer approved by Buyer
in its sole discretion.
"Servicing Agreement" means any agreement (other than the Custody
Agreement) giving rise or relating to Servicing Rights with respect to a
Purchased Asset, including any assignment or other agreement relating to such
agreement.
"Servicing Rights" means contractual, possessory or other rights of
Seller or any other Person arising under a Servicing Agreement, the Custody
Agreement or otherwise, to administer or service a Purchased Asset or to possess
related Records.
"Side Letter" means the Pricing Side Letter, dated as of November 16,
2001, among Seller, ABFS, ABC, ABMS, Upland and Buyer.
"Subordinated Debt" means ABFS issued subordinated investment notes and
adjustable rate subordinated money market notes.
"Subservicers" shall mean Upland and ABMS.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Substitute Assets" has the meaning assigned thereto in Section 16(a).
"Termination Date" has the meaning assigned thereto in Section 27.
"Total Shareholder's Equity" means with respect to any Person, the
excess of total assets of such Person over total liabilities of such Person, as
determined in accordance with GAAP.
"Transaction" has the meaning assigned thereto in Section 1.
"Transaction Notice" means a written request of Seller to enter into a
Transaction, in the form attached to the Custody Agreement which is delivered to
Buyer and Custodian.
"Trust Receipt" means a Trust Receipt and Certification as defined in
the Custody Agreement.
"Underwriting Guidelines" means an Originator's underwriting guidelines
in effect as of the date of this Agreement, as the same may be amended from time
to time in accordance with terms of this Agreement.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York or the Uniform Commercial
Code as in effect in the applicable jurisdiction.
"Upfront Fee" shall have the meaning assigned thereto in the Side
Letter.
"Upland" means HomeAmerican Credit, Inc. (d/b/a Upland Mortgage) and
its permitted successors and assigns.
b. Interpretation.
Headings are for convenience only and do not affect
interpretation. The following rules of this subsection (b) apply unless the
context requires otherwise. The singular includes the plural and conversely. A
gender includes all genders. Where a word or phrase is defined, its other
grammatical forms have a corresponding meaning. A reference to a subsection,
Section, Annex or Exhibit is, unless otherwise specified, a reference to a
Section of, or annex or exhibit to, this Agreement. A reference to a party to
this Agreement or another agreement or document includes the party's successors
and permitted substitutes or assigns. A reference to an agreement or document is
to the agreement or document as amended, modified, novated, supplemented or
replaced, except to the extent prohibited by any Program Document. A reference
to legislation or to a provision of legislation includes a modification or
re-enactment of it, a legislative provision substituted for it and a regulation
or statutory instrument issued under it. A reference to writing includes a
facsimile transmission and any means of reproducing words in a tangible and
permanently visible form. A reference to conduct includes, without limitation,
an omission, statement or undertaking, whether or not in writing. An Event of
Default subsists until it has been waived in writing by Buyer or cured by
Seller. The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement.
The term "including" is not limiting and means "including without limitation."
In the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including"; the words "to" and "until"
each mean "to but excluding", and the word "through" means "to and including."
This Agreement may use several different limitations, tests or measurements to
regulate the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in accordance with their
terms. Unless the context otherwise clearly requires, all accounting terms not
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied. References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of Seller or ABFS, as applicable. Except where
otherwise provided in this Agreement any determination, statement or certificate
by Buyer or an authorized officer of Buyer provided for in this Agreement is
conclusive and binds the parties in the absence of manifest error. A reference
to an agreement includes a security interest, guarantee, agreement or legally
enforceable arrangement whether or not in writing. A reference to a document
includes an agreement (as so defined) in writing or a certificate, notice,
instrument or document, or any information recorded in computer disk form. Where
Seller or a Guarantor is required to provide any document to Buyer under the
terms of this Agreement, the relevant document shall be provided in writing or
printed form unless Buyer requests otherwise. At the request of Buyer, the
document shall be provided in computer disk form or both printed and computer
disk form. This Agreement is the result of negotiations among and has been
reviewed by counsel to Buyer, Guarantors and Seller, and is the product of all
parties. In the interpretation of this Agreement, no rule of construction shall
apply to disadvantage one party on the ground that such party proposed or was
involved in the preparation of any particular provision of this Agreement or
this Agreement itself. Except where otherwise expressly stated Buyer may give or
withhold, or give conditionally, approvals and consents, may be satisfied or
unsatisfied, and may form opinions, make determinations and exercise discretion
at its absolute discretion. Any requirement of good faith, discretion or
judgment by Buyer shall not be construed to require Buyer to request or await
receipt of information or documentation not immediately available from or with
respect to Seller, a Guarantor, a servicer of the Purchased Assets, any other
Person or the Purchased Assets themselves.
3. THE TRANSACTIONS
a. Seller shall repurchase Purchased Assets from Buyer on each related
Repurchase Date. Such obligation to repurchase subsists without regard to any
prior or intervening liquidation or foreclosure with respect to each Purchased
Asset. Seller is obligated to obtain the Purchased Assets from Buyer or its
designee (including the Custodian) at Seller's expense on (or after) the related
Repurchase Date.
b. Provided that the applicable conditions in Sections 9(a) and (b)
have been satisfied, each Purchased Asset that is repurchased by Seller on the
20th day of each month (or, if such 20th day is not a Business Day, the
immediately following Business Day) following the related initial Purchase Date
(the day of the month so determined for each month, or any other date designated
by Seller to Buyer for such a repurchase on at least one Business Day's prior
notice to Buyer, a "Repurchase Date", which term shall also include the date
determined by application of Section 19) shall automatically become subject to a
new Transaction unless Buyer is notified by Seller at least three (3) Business
Days prior to any Repurchase Date, provided that if the Repurchase Date so
determined is later than the Termination Date, the Repurchase Date for such
Transaction shall automatically reset to the Termination Date, and the
provisions of this sentence as it might relate to a new Transaction shall expire
on such date. For each new Transaction, unless otherwise agreed, (y) the accrued
and unpaid Price Differential shall be settled in cash on each related
Repurchase Date, and (z) the Pricing Rate shall be as set forth in the Side
Letter.
c. If Seller repurchases Purchased Assets on any day which is not a
Repurchase Date for such Purchased Assets, Seller shall indemnify Buyer and hold
Buyer harmless from any losses, costs and/or expenses which Buyer may sustain or
incur arising from the reemployment of funds obtained by Buyer hereunder or from
fees payable to terminate the deposits from which such funds were obtained
("Breakage Costs"), in each case for the remainder of the applicable 30 day
period. Buyer shall deliver to Seller a statement setting forth the amount and
basis of determination of any Breakage Costs in such detail as determined in
good faith by Buyer to be adequate, it being agreed that such statement and the
method of its calculation shall be adequate and shall be conclusive and binding
upon Seller, absent manifest error. This Section shall survive termination of
this Agreement and the repurchase of all Purchased Assets subject to
Transactions hereunder.
4. ENTERING INTO TRANSACTIONS (COMMITTED/NON-COMMITTED); TRANSACTION
NOTICE; CONFIRMATIONS
a. Unless otherwise agreed, Seller shall give Buyer and Custodian at
least three (3) Business Days prior notice of any proposed Purchase Date (the
date on which such notice is so given, the "Notice Date"). On the Notice Date,
Seller or an Originator shall (i) request that Buyer enter into a Transaction by
furnishing to Buyer and Custodian a Transaction Notice and Loan Schedule, (ii)
deliver to Buyer a Computer Tape and (iii) deliver to Custodian the Loan File
for each Loan subject to such Transaction.
b. Subject to fulfillment of the conditions precedent set forth in
Sections 9(a) and (b) hereof, and provided that no Default shall have occurred
and be continuing hereunder, Buyer agrees from time to time, on the terms and
conditions of this Agreement, to enter into Transactions (a "Committed
Transaction") in a principal amount at such time up to the Available Commitment
Amount; provided, however, that Buyer shall not be obligated to enter into any
Committed Transaction if, after giving effect to such Committed Transaction, a
Margin Deficit would occur.
c. In addition to the foregoing, subject to fulfillment of the
conditions precedent set forth in Sections 9(a) and (b) hereof, and provided
that no Default shall have occurred and be continuing hereunder, Buyer may from
time to time in its sole discretion, on the terms and conditions set forth in
this Agreement, enter into Transactions in an aggregate principal amount at any
one time outstanding up to but not exceeding the Maximum Aggregate Purchase
Price.
d. Unless otherwise agreed, upon receipt of the Transaction Notice,
Buyer shall either make an offer to Seller to enter into a Committed Transaction
or Buyer may, in its sole discretion, make an offer to Seller to enter into a
Transaction (other than a Committed Transaction), and each such offer shall
specify the specific terms for such Transaction, including the Purchase Price,
the Pricing Rate, the Market Value and the Repurchase Date in respect of such
Transaction. In the event that the parties enter into a Transaction, Buyer will
confirm the terms of each Transaction by delivering a written confirmation to
Seller (a "Confirmation"). Seller shall review the Confirmation and, if in
agreement therewith, shall return (i) a copy of such fully signed Confirmation
by facsimile transmission to the Buyer prior to the payment of the Purchase
Price by Buyer on the Purchase Date and (ii) the original executed copy of such
Confirmation to the Buyer within two (2) Business Days of the settlement of such
Transaction. The terms of any Transaction Notice, if any, signed by Seller shall
be deemed incorporated by reference into the Confirmation and if the terms of
the Transaction Notice conflicts with the Confirmation, the terms of the
Confirmation shall prevail.
e. Each Confirmation and Transaction Notice, together with this
Agreement, shall constitute conclusive evidence of the terms agreed between
Buyer and Seller with respect to the Transaction to which the Confirmation
relates, and Seller's acceptance of the related proceeds shall constitute
Seller's agreement to the terms of such Confirmation. It is the intention of the
parties that each Confirmation and Transaction Notice shall not be separate from
this Agreement but shall be made a part of this Agreement. In the event of any
conflict between this Agreement and a Confirmation, the terms of the
Confirmation shall control with respect to the related Transaction absent
manifest error.
5. PAYMENT AND TRANSFER
Unless otherwise agreed, all transfers of funds hereunder shall be in
immediately available funds and all Purchased Assets transferred shall be
transferred to the Custodian pursuant to the Custody Agreement. Any Repurchase
Price or Price Differential received by Buyer after 2:00 p.m. New York City time
shall be applied on the next succeeding Business Day.
6. MARGIN MAINTENANCE
a. If at any time either (i) the aggregate Market Value of all
Purchased Assets subject to all Transactions is less than the aggregate Buyer's
MV Margin Amount for all such Transactions or (ii) the aggregate unpaid
principal amount for all Purchased Assets is less than Buyer's Par Margin Amount
for all Transactions (each a "Margin Deficit"), then Buyer may by notice to
Seller require Seller in such Transactions to transfer to Buyer, either cash or
additional Eligible Assets acceptable to Buyer in its sole discretion
("Additional Purchased Assets"), so that either (a) with respect to any Margin
Deficit pursuant to clause (i) above, the cash and aggregate Market Value of the
Purchased Assets, including any such Additional Purchased Assets, will thereupon
equal or exceed such aggregate Buyer's MV Margin Amount, or (b) with respect to
any Margin Deficit pursuant to clause (ii) above, the cash and aggregate unpaid
principal balance of the Purchased Assets, including any such Additional
Purchased Assets, will thereupon equal or exceed such Buyer's Par Margin Amount
(either such requirement, a "Margin Call").
b. Notice required pursuant to Section 6(a) may be given by any means
provided in Section 35 hereof. Any notice given before 11:00 a.m. New York, New
York time on a Business Day shall be met, and the related Margin Call satisfied,
no later than 5:00 p.m. New York, New York time on such Business Day; notice
given after 11:00 a.m. New York, New York time on a Business Day shall be met,
and the related Margin Call satisfied, no later than 5:00 p.m. New York, New
York time on the following Business Day. The failure of Buyer, on any one or
more occasions, to exercise its rights hereunder, shall not change or alter the
terms and conditions to which this Agreement is subject or limit the right of
Buyer to do so at a later date. Seller, each Guarantor and Buyer each agree that
a failure or delay by Buyer to exercise its rights hereunder shall not limit or
waive Buyer's rights under this Agreement or otherwise existing by law or in any
way create additional rights for Seller or any Guarantor.
7. INCOME PAYMENTS
Where a particular term of a Transaction extends over the date on which
Income is paid in respect of any Purchased Assets subject to that Transaction,
such Income shall be the property of Buyer. Provided no Default has occurred,
unless otherwise agreed between the parties, Buyer shall, as Buyer shall
reasonably determine in its sole discretion, on the Repurchase Date following
the date such Income is received by Buyer (or a servicer on its behalf) either
(i) transfer (or permit the servicer to transfer) to Seller such Income with
respect to any Purchased Assets subject to such Transaction or (ii) if a Margin
Deficit then exists, apply the Income payment to reduce the amount, if any, to
be transferred to Buyer by Seller upon termination of such Transaction. Buyer
shall not be obligated to take any action pursuant to the preceding sentences to
the extent that such action would result in the creation of a Margin Deficit,
unless prior thereto or simultaneously therewith Seller transfers to Buyer cash
or Additional Purchased Assets sufficient to eliminate such Margin Deficit. Any
income received by or on behalf of Seller, Servicer or a Guarantor while the
related Transaction is outstanding shall be deemed held by Seller, Servicer or
such Guarantor solely in trust for Buyer pending the repurchase on the related
Repurchase Date.
The Seller shall cause the Servicer to deposit into the Collection
Account all collections with respect to the Purchased Assets in the event that
such collection in any Collection Period exceeds $750,000. Notwithstanding
anything in this Section 7 to the contrary, on each date which is (i) a
Repurchase Date on which the Buyer and the Seller enter into a new Transaction
pursuant to the terms of Section 3(b), or (ii) a date on which a Margin Deficit
is due, or (iii) following the date on which the Buyer has declared an Event of
Default, in accordance with the terms of the Repurchase Agreement, the Buyer
shall apply all funds in the Collection Account to the amounts owed to the Buyer
and shall instruct the Custodian on any scheduled Repurchase Date to remit any
such amounts to the Buyer, to the extent of the funds in the Collection Account.
Unless an Event of Default shall occur and be continuing, the Buyer shall
instruct the Custodian to remit any excess funds in the Collection Account to
the Seller or its designee by wire transfer, in compliance with the instructions
of the Seller.
8. SECURITY INTEREST
Seller and Buyer intend that the Transactions hereunder be sales to
Buyer of the Purchased Assets and not loans from Buyer to Seller secured by the
Purchased Assets. However, in order to preserve Buyer's rights under this
Agreement in the event that a court or other forum recharacterizes the
Transactions hereunder as other than sales, and as security for Seller's
performance of all of its Obligations, Seller hereby grants Buyer a fully
perfected first priority security interest in the Purchased Assets, the Records,
and all related Servicing Rights, Property, insurance, Income, accounts
(including any interest of Seller in escrow accounts) and any other contract
rights, payments, rights to payment (including payments of interest or finance
charges) general intangibles and other assets relating to the Purchased Assets
(including, without limitation, any other accounts) or any interest in the
Purchased Assets, the servicing of the Purchased Assets, and any proceeds and
distributions with respect to any of the foregoing and any other property,
rights, titles or interests as are specified on a Transaction Notice
(collectively, the "Collateral").
9. CONDITIONS PRECEDENT
a. As conditions precedent to the initial Transaction, Buyer shall have
received on or before the day of such initial Transaction the following, in form
and substance satisfactory to Buyer and duly executed by each party thereto:
(i) The Program Documents duly executed and delivered by the
parties thereto and being in full force and effect, free of any modification,
breach or waiver;
(ii) Evidence that all other actions necessary or, in the
opinion of Buyer, desirable to perfect and protect Buyer's interest in the
Purchased Assets and other Collateral have been taken, including, without
limitation, duly executed and filed Uniform Commercial Code financing statements
on Form UCC-1;
(iii) A certified copy of Seller's and each Guarantor's
consents or corporate resolutions, as applicable, approving the Program
Documents and Transactions thereunder (either specifically or by general
resolution), and all documents evidencing other necessary corporate action or
governmental approvals as may be required in connection with the Program
Documents;
(iv) An incumbency certificate of the secretaries of Seller
and each Guarantor certifying the names, true signatures and titles of Seller's
and each Guarantor's representatives duly authorized to request Transactions
hereunder and to execute the Program Documents and the other documents to be
delivered thereunder;
(v) An opinion of Seller's and each Guarantor's counsel as to
such matters as Buyer may reasonably request and in form and substance
acceptable to Buyer;
(vi) A copy of the Underwriting Guidelines certified by an
officer of the Originators;
(vii) The Guaranty;
(viii) No Material Adverse Change has occurred with respect to
ABFS since its June 30, 2001 financial statements;
(ix) Any other documents reasonably requested by Buyer upon
reasonable advance written notice.
b. The obligation of Buyer to enter into each Transaction pursuant to
this Agreement is subject to the following conditions precedent:
(i) Buyer or its designee shall have received on or before the
day of a Transaction with respect to such Purchased Assets (unless otherwise
specified in this Agreement) the following, in form and substance satisfactory
to Buyer and (if applicable) duly executed:
(A) A Transaction Notice, Loan Schedule and Computer
Tape delivered pursuant to Section 4(a);
(B) The related Trust Receipt; and
(C) Such certificates, customary opinions of counsel
or other documents as Buyer may reasonably request.
(ii) No Default or Event of Default shall have occurred and be
continuing.
(iii) Buyer shall not have determined that a change in any
requirement of law or in the interpretation or administration of any requirement
of law applicable to Buyer has made it unlawful, and no Governmental Authority
shall have asserted that it is unlawful, for Buyer to enter into Transactions
with a Pricing Rate based on LIBOR.
(iv) All representations and warranties in the Program
Documents shall be true and correct on the date of such Transaction.
(v) The then aggregate outstanding Purchase Price for all
Purchased Assets, when added to the Purchase Price for the requested
Transaction, shall not exceed the Maximum Aggregate Purchase Price.
(vi) No event or events shall have been reasonably determined
by Buyer to have occurred resulting in the effective absence of a "repo market"
for a period of at least three (3) consecutive Business Days respecting loans or
mortgage-backed or asset-backed securities such that Buyer is or was unable to
finance or fund purchases under this Agreement through the "repo market" or
Buyer's customers.
(vii) Satisfaction of any conditions precedent to the initial
Transaction as set forth in clause (a) of this Section 9 that were not satisfied
prior to such initial Purchase Date. In no event shall Buyer be required to
enter into more than one Transaction in any calendar week (unless delay in
consummating prior Transaction was caused by Buyer).
(viii) The Purchase Price for the requested Transaction shall
not be less than $5,000,000.
(ix) Buyer shall have determined that all actions necessary
or, in the opinion of Buyer, desirable to maintain Buyer's perfected interest in
the Purchased Assets and other Collateral have been taken, including, without
limitation, duly executed and filed Uniform Commercial Code financing statements
on Form UCC-1.
(x) Any other documents reasonably requested by Buyer upon
reasonable advance written notice.
10. RELEASE OF PURCHASED ASSETS
Upon timely payment in full of the Repurchase Price and all other
Obligations owing with respect to a Purchased Asset, if no Default or Event of
Default has occurred and is continuing, Buyer shall, and shall direct Custodian
to, release such Purchased Asset unless such release would give rise to or
perpetuate a Margin Deficit. Except as set forth in Sections 6(a) and 16, Seller
shall give at least three (3) Business Days' prior written notice to Buyer if
such repurchase shall occur on other than a Repurchase Date. If such a Margin
Deficit is applicable, Buyer shall notify Seller of the amount thereof and
Seller may thereupon satisfy the Margin Call in the manner specified in Section
6.
11. RELIANCE
With respect to any Transaction, Buyer may conclusively rely upon, and
shall incur no liability to Seller or any Guarantor in acting upon, any request
or other communication that Buyer reasonably believes to have been given or made
by a person authorized to enter into a Transaction on Seller's or the related
Guarantor's behalf. In each such case, Seller and the Guarantors hereby waive
the right to dispute Buyer's record of the terms of the Confirmation, request or
other communication.
12. REPRESENTATIONS AND WARRANTIES
Each of Seller and each Guarantor hereby represents and warrants, and
shall on and as of the Purchase Date for any Transaction and on and as of each
date thereafter through and including the related Repurchase Date be deemed to
represent and warrant, that:
a. Due Organization and Qualification. Each of Seller and each
Guarantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction under whose laws it is organized. Each of Seller and
each Guarantor is duly qualified to do business, is in good standing and has
obtained all necessary licenses, permits, charters, registrations and approvals
necessary for the conduct of its business as currently conducted and the
performance of its obligations under the Program Documents.
b. Power and Authority. Each of Seller and each Guarantor has all
necessary power and authority to conduct its business as currently conducted, to
execute, deliver and perform its obligations under the Program Documents and to
consummate the Transactions.
c. Due Authorization. The execution, delivery and performance of the
Program Documents by each of Seller and each Guarantor have been duly authorized
by all necessary action and do not require any additional approvals or consents
or other action by or any notice to or filing with any Person other than any
that have heretofore been obtained, given or made.
d. Noncontravention. None of the execution and delivery of the Program
Documents by Seller or the related Guarantor or the consummation of the
Transactions and transactions thereunder:
(i) conflicts with, breaches or violates any
provision of the agreements of Seller or the related Guarantor or any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
currently in effect having applicability to Seller or the related Guarantor or
its properties and which would materially impact Seller's business, any
Guarantor's business or any Transaction;
(ii) constitutes a material default by Seller or the
related Guarantor under any loan or repurchase agreement, mortgage, indenture or
other agreement or instrument to which Seller or the related Guarantor is a
party or by which it or any of its properties is or may be bound or affected; or
(iii) results in or requires the creation of any lien
upon or in respect of any of the assets of Seller or The related Guarantor
except the lien relating to the Program Documents.
e. Legal Proceedings. Except as identified on Exhibit B attached
hereto, there is no action, proceeding or investigation by or before any court,
governmental or administrative agency or arbitrator affecting any of the
Purchased Assets, Seller, any Guarantor, Servicer or any of their Affiliates,
pending or threatened, which, if decided adversely, would have a Material
Adverse Effect.
f. Valid and Binding Obligations. Each of the Program Documents to
which Seller, any Guarantor or Servicer is a party, when executed and delivered
by Seller, such Guarantor or Servicer, as applicable, will constitute the legal,
valid and binding obligations of Seller, such Guarantor or Servicer, as
applicable, enforceable against Seller, such Guarantor or Servicer, as
applicable, in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equitable principles.
g. Financial Statements. The financial statements of ABFS, copies of
which have been furnished to Buyer, (i) are, as of the dates and for the periods
referred to therein, complete and correct in all material respects, (ii) present
fairly the financial condition and results of operations of ABFS as of the dates
and for the periods indicated and (iii) have been prepared in accordance with
GAAP consistently applied, except as noted therein (subject as to interim
statements to normal year-end adjustments). Since June 30, 2001 there has been
no Material Adverse Change with respect to ABFS. Except as disclosed in such
financial statements, no Guarantor is subject to any contingent liabilities or
commitments that, individually or in the aggregate, have a material possibility
of causing a Material Adverse Change with respect to such Guarantor.
h. Accuracy of Information. None of the documents or information
prepared by or on behalf of Seller, any Guarantor or Servicer and provided by
Seller, any Guarantor or Servicer to Buyer relating to Seller's, any Guarantor's
or Servicer's financial condition contain any statement of a material fact with
respect to Seller, any Guarantor or Servicer or the Transactions that was untrue
or misleading in any material respect when made. Since the furnishing of such
documents or information, there has been no change, nor any development or event
involving a prospective change known to Seller, any Guarantor or Servicer, that
would render any of such documents or information untrue or misleading in any
material respect.
i. No Consents. No consent, license, approval or authorization from, or
registration, filing or declaration with, any regulatory body, administrative
agency, or other governmental instrumentality, nor any consent, approval, waiver
or notification of any creditor, lessor or other nongovernmental person, is
required in connection with the execution, delivery and performance by Seller or
any Guarantor of this Agreement or the consummation by Seller or any Guarantor
of any other Program Document, other than any that have heretofore been
obtained, given or made.
j. Compliance With Law. Etc. No practice, procedure or policy employed
or proposed to be employed by Seller or any Guarantor in the conduct of its
businesses violates any law, regulation, judgment, agreement, order or decree
applicable to it which, if enforced, would result in either a Material Adverse
Change with respect to Seller or any Guarantor or a Material Adverse Effect.
k. Solvency: Fraudulent Conveyance. Each of Seller and each Guarantor
is solvent and will not be rendered insolvent by the Transaction and, after
giving effect to such Transaction, neither Seller nor any Guarantor will be left
with an unreasonably small amount of capital with which to engage in its
business. Neither Seller nor any Guarantor intends to incur, nor believes that
it has incurred, debts beyond its ability to pay such debts as they mature.
Neither Seller nor any Guarantor is contemplating the commencement of
insolvency, bankruptcy, liquidation or consolidation proceedings or the
appointment of a receiver, liquidator, conservator, trustee or similar official
in respect of Seller or any Guarantor or any of their assets. The amount of
consideration being received by Seller upon the sale of the Purchased Assets to
Buyer constitutes reasonably equivalent value and fair consideration for such
Purchased Assets. Seller is not transferring any Purchased Assets with any
intent to hinder, delay or defraud any of its creditors. The amount of
consideration being received by the Originators upon the sale and/or
contribution of the Purchased Assets to Seller constitutes reasonably equivalent
value and fair consideration for such Purchased Assets. No Originator is
transferring any Purchased Assets with any intent to hinder, delay or defraud
any of its creditors.
l. Investment Company Act Compliance. Seller is not required to be
registered as an "investment company" as defined under the Investment Company
Act nor as an entity under the control of an "investment company" as defined
under the Investment Company Act.
m. Taxes. Each of Seller and each Guarantor has filed all federal and
state tax returns or extensions which are required to be filed and paid all
taxes, including any assessments received by it, to the extent that such taxes
have become due (other than for taxes that are being contested in good faith or
for which it has established adequate reserves). Any taxes, fees and other
governmental charges payable by Seller or any Guarantor in connection with a
Transaction and the execution and delivery of the Program Documents have been
paid.
n. Additional Representations. With respect to each Loan, Seller and
each Guarantor, jointly and severally, hereby make all of the applicable
representations and warranties set forth in Appendix A to the Custody Agreement
as of the date the Loan File is delivered to the Custodian. Further, as of each
Purchase Date, the Seller and each Guarantor shall be deemed to have represented
and warranted in like manner that neither such Guarantor nor Seller has any
knowledge that any such representation or warranty may have ceased to be true in
a material respect as of such date, except as otherwise stated in a Transaction
Notice, any such exception to identify the applicable representation or warranty
and specify in reasonable detail the related knowledge of the Seller or the
Guarantor. In addition, each Originator 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 such Originator
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, such Originator shall have no obligation to make
such materially false representation and warranty.
o. No Broker. Neither Seller nor any Guarantor has dealt with any
broker, investment banker, agent, or other person, except for Buyer, who may be
entitled to any commission or compensation in connection with the sale of
Purchased Assets pursuant to this Agreement; provided, that if Seller or any
Guarantor has dealt with any broker, investment banker, agent, or other person,
except for Buyer, who may be entitled to any commission or compensation in
connection with the sale of Purchased Assets pursuant to this Agreement, such
commission or compensation shall have been paid in full by Seller or such
Guarantor, as applicable.
p. Corporate Separateness.
(i) The capital of Seller and each Guarantor is adequate for
the respective business and undertakings of Seller and each Guarantor.
(ii) Other than as provided in this Agreement and the other
Program Documents, Seller is not engaged in any business transactions with any
Guarantor or any of its Affiliates other than transactions in the ordinary
course of its business on an "arms-length" basis.
(iii) The funds and assets of the Seller are not, and will not
be, commingled with the funds of any other Person.
(iv) At least one director of the Seller shall be independent
of any relationship with any Guarantor.
The representations and warranties set forth in this Agreement shall survive
transfer of the Purchased Assets to Buyer and shall continue for so long as the
Purchased Assets are subject to this Agreement.
13. COVENANTS OF SELLER AND GUARANTORS
Each of Seller and each Guarantor, as applicable, hereby covenants with
Buyer as follows:
a. Defense of Title. Each of Seller and each Guarantor
warrants and will defend the right, title and interest of Buyer in and to all
Collateral against all adverse claims and demands.
b. No Amendment or Compromise. Without Buyer's prior written
consent, neither Seller, any Guarantor nor those acting on Seller's or any
Guarantor's behalf shall amend or modify, or waive any term or condition of, or
settle or compromise any claim in respect of, any item of the Purchased Assets,
any related rights or any of the Program Documents, provided that Servicer may
amend or modify a Loan if such amendment or modification does not affect the
amount or timing of any payment of principal or interest, extend its scheduled
maturity date, modify its interest rate, or constitute a cancellation or
discharge of its outstanding principal balance and does not materially and
adversely affect the security afforded by the real property, furnishings,
fixtures, or equipment securing the Loan; provided, further, that the Servicer
may amend or modify a Loan pursuant to an amendment or modification that affects
the timing of any payment of principal or interest so long as such amendment or
modification is typically done by the Servicer in connection with servicing
Loans subject to a securitization that are similar to the Purchased Asset and
which amendment or modification does not affect the eligibility of such Loans to
be included in such securitizations.
c. No Assignment. Except as permitted herein, neither Seller,
any Guarantor nor any servicer shall sell, assign, transfer or otherwise dispose
of, or grant any option with respect to, or pledge, hypothecate or grant a
security interest in or lien on or otherwise encumber (except pursuant to the
Program Documents), any of the Purchased Assets or any interest therein,
provided that this Section shall not prevent any transfer of Purchased Assets in
accordance with the Program Documents.
d. Servicing of Loans. Seller and each Guarantor shall cause
Servicer and each Subservicer to service, or cause to be serviced, all Loans
that are part of the Purchased Assets in accordance with prudent servicing
practices, pending any delivery of such servicing to Buyer pursuant to the
Servicing Agreement, employing at least the same procedures and exercising the
same care that Servicer customarily employs in servicing Loans for its own
account. Seller shall notify servicers of Buyer's interest hereunder and Seller
shall notify Buyer of the name and address of all servicers of Loans. Buyer
shall have the right to approve each Subservicer and the form of all Servicing
Agreements or servicing side letter agreements, it being understood and agreed
that any Guarantor shall be an acceptable Subservicer. Seller shall cause the
servicer to hold or cause to be held all escrow funds collected with respect to
such Loans in trust accounts and shall apply the same for the purposes for which
such funds were collected. Upon Buyer's request, Seller shall provide reasonably
promptly to Buyer a letter addressed to and agreed to by each servicer of Loans,
in form and substance reasonably satisfactory to Buyer, advising such servicer
of such matters as Buyer may reasonably request. If Seller should discover that,
for any reason whatsoever, Seller or any entity responsible to Seller by
contract for managing or servicing any such Loan has failed to perform fully
Seller's obligations under the Program Documents or any of the obligations of
such entities with respect to the Purchased Assets, Seller shall promptly notify
Buyer.
e. Preservation of Collateral; Collateral Value. Each of
Seller and each Guarantor shall do all things necessary to preserve the
Collateral so that it remains subject to a first priority perfected security
interest hereunder. Without limiting the foregoing, Seller and each Guarantor
will comply with all rules, regulations and other laws of any Governmental
Authority and cause the Collateral to comply with all applicable rules,
regulations and other laws. Neither Seller nor any Guarantor will allow any
default for which Seller or any Guarantor is responsible to occur under any
Collateral and Seller and each Guarantor shall fully perform or cause to be
performed when due all of its obligations under any Collateral.
f. Maintenance of Papers, Records and Files. Seller and each
Guarantor shall acquire, and Seller, the Guarantors or the Servicer of the
Purchased Assets shall build, maintain and have available, a complete file in
accordance with lending industry custom and practice for each Purchased Asset.
Seller, the Guarantors or the Servicer of the Purchased Assets will maintain all
such Records not in the possession of Custodian in good and complete condition
in accordance with industry practices and preserve them against loss.
(i) Seller and each Guarantor shall collect and
maintain or cause to be collected and maintained all Records relating to the
Purchased Assets in accordance with industry custom and practice, including
those maintained pursuant to the preceding subsection, and all such Records
shall be in Custodian's possession unless Buyer otherwise approves. Neither
Seller nor any Guarantor will allow any such papers, records or files that are
an original or an only copy to leave Custodian's possession, except for
individual items removed in connection with servicing a specific Loan, in which
event Seller or such Guarantor will obtain or cause to be obtained a receipt
from a financially responsible person for any such paper, record or file.
(ii) For so long as Buyer has an interest in or lien
on any Purchased Asset, Seller and each Guarantor will hold or cause to be held
all related Records in trust for Buyer. Seller or each Guarantor shall notify,
or cause to be notified, every other party holding any such Records of the
interests and liens granted hereby.
(iii) Upon reasonable advance written notice from
Custodian or Buyer, Seller and each Guarantor shall (x) make any and all such
Records available to Custodian or Buyer to examine any such Records, either by
its own officers or employees, or by agents or contractors, or both, and make
copies of all or any portion thereof, (y) permit Buyer or its authorized agents
to discuss the affairs, finances and accounts of Seller or such Guarantor with
its respective chief operating officer and chief financial officer and to
discuss the affairs, finances and accounts of Seller or such Guarantor with its
independent certified public accountants.
g. Financial Statements; Accountants' Reports: Other
Information. Seller and each Guarantor shall keep or cause to be kept in
reasonable detail books and records of account of its assets and business and
shall clearly reflect therein the transfer of Purchased Assets to Buyer. Seller
and ABFS shall furnish or cause to be furnished to Buyer the following:
(i) Financial Statements. (x) As soon as available
and in any event within 90 days after the end of each fiscal year, the
consolidated, audited balance sheets of ABFS as of the end of each fiscal year
of ABFS, and the audited financial statements of income and changes in equity of
ABFS, and the audited statement of cash flows of ABFS, for such fiscal year, and
(y) as soon as available and in any event within 45 days after the end of each
quarter, the consolidated, unaudited balance sheets of ABFS as of the end of
each quarter, and the unaudited financial statements of income and changes in
equity of ABFS, and the unaudited statement of cash flows of ABFS, for the
portion of the fiscal year then ended, all of which have been prepared in
accordance with GAAP and certified by ABFS's chief financial officer.
(ii) Loan Data. Monthly reports in form and scope
satisfactory to Buyer, setting forth data regarding the performance of the
Purchased Assets for the immediately preceding month, and such other information
as Buyer may reasonably request, including, without limitation, any other
information regarding the Purchased Assets requested by Buyer, the performance
of any loans serviced by or on behalf of the Originators and any other financial
information regarding the Guarantors reasonably requested by Buyer.
(iii) Monthly Servicing Diskettes. On or before the
second Business Day prior to each Repurchase Date, or any other time at Buyer's
request, a computer tape or a diskette (or any other electronic transmission
acceptable to Buyer) in a format acceptable to Buyer containing such information
with respect to the Purchased Assets as Buyer may reasonably request upon
reasonable prior notice.
(iv) Monthly Certification. Seller shall execute and
deliver a monthly certification substantially in the form of Exhibit A-1
attached hereto and ABFS shall execute and deliver a monthly certification
substantially in the form of Exhibit A-2 attached hereto.
h. Notice of Material Events. Each of Seller and each
Guarantor shall promptly inform Buyer in writing of any of the following:
(i) any Default, Event of Default or default or
breach by Seller or any Guarantor of any other material obligation under any
Program Document, or the occurrence or existence of any event or circumstance
that Seller or such Guarantor reasonably expects will with the passage of time
become a Default, Event of Default or such a default or breach by Seller or any
Guarantor;
(ii) any material change in the insurance coverage
required of Seller or any Guarantor or any other Person pursuant to any Program
Document, with copy of evidence of same attached;
(iii) any material dispute, litigation,
investigation, proceeding or suspension between Seller or any Guarantor, on the
one hand, and any Governmental Authority or any other Person;
(iv) any material change in accounting policies or
financial reporting practices of Seller or any Guarantor;
(v) the occurrence of any material employment dispute
and a description of the strategy for resolving it; and
(vi) any event, circumstance or condition that has
resulted, or has a possibility of resulting, in either a Material Adverse Change
with respect to Seller or any Guarantor or a Material Adverse Effect.
i. Maintenance of Licenses. Each of Seller and each Guarantor
shall maintain, all licenses, permits or other approvals necessary for each of
Seller and each Guarantor to conduct its business and to perform its obligations
under the Program Documents, and each of Seller and each Guarantor shall conduct
its business strictly in accordance with applicable law. Nothing hereunder shall
prohibit any Guarantor from terminating a license that is non-material to its
business or the performance of its obligations under the Program Documents.
j. No Withholdings for Taxes. Any payments made by Seller to
Buyer shall be free and clear of, and without deduction or withholding for, any
taxes; provided, however, that if Seller shall be required by law to deduct or
withhold any taxes from any sums payable to Buyer, then Seller shall (A) make
such deductions or withholdings and pay such amounts to the relevant authority
in accordance with applicable law, (B) pay to Buyer the sum that would have been
payable had such deduction or withholding not been made, and (C) at the time
Price Differential is paid, pay to Buyer all additional amounts as specified by
Buyer to preserve the after-tax yield Buyer would have received if such tax had
not been imposed. This provision does not apply to income taxes payable by Buyer
on its taxable income.
k. Change in Nature of Business. Neither Seller nor any
Guarantor shall make any material change in the nature of its business as
carried on at the date hereof.
l. Limitation on Distributions. If an Event of Default has
been declared and is continuing, neither Seller nor any Guarantor shall pay any
dividends or distributions with respect to any capital stock or other equity
interests in Seller or any Guarantor, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of Seller or any Guarantor.
m. Upfront Fee. On the Effective Date of this Agreement, the
Seller shall pay to Buyer the Upfront Fee in immediately available funds.
n. Merger of Guarantor. No Guarantor shall at any time,
directly or indirectly, (i) liquidate or dissolve or enter into any
consolidation or merger or be subject to a Change in Control without Buyer's
prior consent, such consent not to be unreasonably withheld; (ii) form or enter
into any partnership, joint venture, syndicate or other combination which would
have a Material Adverse Effect; or (iii) make any Material Adverse Change with
respect to such Guarantor or such Guarantor's Subsidiaries.
o. Insurance. Seller will, and shall cause the Servicer to,
obtain and maintain insurance with responsible companies in such amounts and
against such risks as are customarily carried by business entities engaged in
similar businesses similarly situated, and will furnish Buyer on request full
information as to all such insurance, and provide within fifteen (15) days after
receipt of such request the certificates or other documents evidencing the
renewal of each such policy.
p. Affiliate Transaction. Neither Seller nor any Guarantor
will at any time, directly or indirectly, sell, lease or otherwise transfer any
property or assets to, or otherwise acquire any property or assets from, or
otherwise engage in any transactions with, any of their Affiliates unless the
terms thereof are no less favorable to Seller or such Guarantor, as applicable,
than those that could be obtained at the time of such transaction in an arm's
length transaction with a Person who is not such an Affiliate.
q. Change of Fiscal Year. Neither Seller nor any Guarantor
will at any time, directly or indirectly, except upon thirty (30) days' prior
written notice to Buyer, change the date on which Seller's or such Guarantor's
fiscal year begins from Seller's or such Guarantor's current fiscal year
beginning date.
r. Delivery of Servicing Rights. The parties hereto
acknowledge that each Purchased Asset is sold along with the Servicing Rights
thereto. With respect to each Loan, ABC shall deliver the servicing to the
designee of Buyer, within 75 days of the related Purchase Date, unless otherwise
stated in writing by Buyer; provided that on each Repurchase Date that is
subject to a new Transaction, such delivery requirement is deemed restated for
such new Transaction (and the immediately preceding delivery requirement is
deemed to be rescinded) in the absence of directions to the contrary from Buyer,
and a new 75-day period is deemed to commence as of such Repurchase Date. ABC's
transfer of the Servicing Rights under this Section shall be in accordance with
customary standards in the industry.
s. Underwriting Guidelines. Seller shall give written notice
to Buyer of any material modifications to be made to the Underwriting
Guidelines. In the event that the Buyer does not approve of any such
modification to the Underwriting Guidelines in its sole discretion, Buyer shall
be under no obligation to purchase any Mortgage Loan under a Transaction
hereunder if such Mortgage Loan does not conform to the provisions of the
Underwriting Guidelines consented to by the Buyer. The Buyer shall take
reasonable efforts to notify the Seller of Buyer's approval of any such
modification within four (4) Business Days of the Buyer receiving written notice
of such modification and any failure of the Buyer to expressly approve of any
such modification within such four (4) Business Day period, shall be deemed to
be a rejection of such modification by the Buyer.
14. REPURCHASE DATE PAYMENTS/COLLECTIONS
On each Repurchase Date, Seller shall remit or shall cause to be
remitted to Buyer the Repurchase Price; provided, however, that with respect to
each Repurchase Date that is also a Purchase Date, the Repurchase Price and
Purchase Price for such Transactions may be applied against each other and
netted.
15. REPURCHASE OF PURCHASED ASSETS; CHANGE OF LAW
a. Upon discovery by Seller or any Guarantor of a breach of any of the
representations and warranties set forth in Appendix A to the Custody Agreement,
Seller or such Guarantor shall give prompt written notice thereof to Buyer. Upon
any such discovery by Buyer, Buyer will promptly notify Seller in writing. It is
understood and agreed that the representations and warranties set forth in
Appendix A to the Custody Agreement shall survive delivery of the respective
Loan Files to the Custodian and shall inure to the benefit of Buyer. The fact
that Buyer has conducted or has failed to conduct any partial or complete due
diligence investigation in connection with its purchase of any Loan shall not
affect Buyer's right to demand repurchase as provided under this Agreement.
Unless any Seller Party has given the required notice, a Seller Party shall
within two (2) Business Days of the earlier of such Person's discovery or such
Person receiving notice, with respect to any Loan, of (i) any breach of a
representation or warranty contained in Appendix A to the Custody Agreement or
(ii) any failure to deliver any of the items required to be delivered as part of
the Loan File within the time period required for delivery pursuant to the
Custody Agreement, promptly cure such breach or delivery failure in all material
respects. If within two (2) Business Days after the earlier of such Seller
Party's discovery of such breach or delivery failure or such Seller Party's
receiving notice thereof such breach or delivery failure has not been remedied
by the related Originator, the related Originator shall promptly upon receipt of
written instructions from Buyer, at Buyer's option, either (i) purchase such
Loan at a purchase price equal to the Repurchase Price with respect to such Loan
by wire transfer to the account designated by Buyer, or (ii) transfer comparable
Substitute Assets to Buyer, as provided in Section 16 hereof.
b. If Buyer determines that the introduction of, any change in, or the
interpretation or administration of any requirement of law has made it unlawful
or commercially impracticable to engage in any Transactions with a Pricing Rate
based on LIBOR, then Seller (i) shall, upon its receipt of notice of such fact
and demand from Buyer (with a copy of such notice to Custodian), repurchase the
Purchased Assets subject to the Transaction on the next succeeding Business Day
and, at Seller's election, concurrently enter into a new Transaction with Buyer
with a Pricing Rate based on the Prime Rate plus the margin set forth in the
Side Letter as part of the Pricing Rate and (ii) may elect, by giving notice to
Buyer and Custodian, that all new Transactions shall have Pricing Rates based on
the Prime Rate minus one percent (1.00%).
c. If Buyer determines in its sole discretion that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on Buyer's capital or on the capital of any Affiliate of Buyer as a
consequence of such Change in Law on this Agreement, then from time to xxxx
Xxxxxx will compensate Buyer or Buyer's Affiliate, as applicable, for such
reduced rate of return suffered as a consequence of such Change in Law on terms
similar to those imposed by Buyer on its other similarly affected customers.
Buyer shall provide Seller with prompt notice as to any Change in Law.
Notwithstanding any other provisions in this Agreement, in the event of any such
Change in Law Seller will have the right to terminate all Transactions then
outstanding without any prepayment penalty as of a date selected by Seller,
which date shall be prior to the then applicable Repurchase Date and which date
shall thereafter for all purposes hereof be deemed to be the Repurchase Date.
16. SUBSTITUTION
a. Seller may, subject to agreement with and acceptance by Buyer,
substitute other assets which are substantially the same as the Purchased Assets
(the "Substitute Assets") for any Purchased Assets. Such substitution shall be
made by transfer to Buyer of such other Substitute Assets and transfer to Seller
of such Purchased Assets. After substitution, the Substitute Assets shall be
deemed to be Purchased Assets.
b. In the case of any Transaction for which the Repurchase Date is
other than the Business Day immediately following the Purchase Date and with
respect to which Seller does not have any existing right to substitute
Substitute Assets for the Purchased Assets, Seller shall have the right, subject
to the proviso to this sentence, upon notice to Buyer, which notice shall be
given at or prior to 10 a.m. (New York City time) on the second preceding
Business Day, to substitute Substitute Assets for any Purchased Assets;
provided, however, that Buyer may elect, by the close of business on the
Business Day following which such notice is received, or by the close of the
next Business Day if notice is given after 10 a.m. (New York City time) on such
day, not to accept such substitution. In the event such substitution is accepted
by Buyer, such substitution shall be made by Seller's transfer to Buyer of such
Substitute Assets and Buyer's transfer to Seller of such Purchased Assets, and
after such substitution, the Substitute Assets shall be deemed to be Purchased
Assets. In the event Buyer elects not to accept such substitution, Buyer shall
offer Seller the right to terminate the Transaction.
c. In the event Seller exercises its right to substitute or terminate
under subsection (b), Seller shall be obligated to pay to Buyer, by the close of
the Business Day of such substitution, as the case may be, an amount equal to
(A) Buyer's actual cost in bona fide third party transactions (including all
fees, expenses and commissions) of (i) entering into replacement transactions;
and/or (ii) terminating transactions or substituting securities in like
transactions with third parties in connection with or as a result of such
substitution or termination, and (B) to the extent Buyer determines not to enter
into replacement transactions, the loss incurred by Buyer directly arising or
resulting from such substitution or termination. The foregoing amounts shall be
solely determined and calculated by Buyer in good faith, and such determination
shall be binding upon the parties, absent manifest error.
17. REPURCHASE TRANSACTIONS
Buyer may, in its sole election, engage in repurchase transactions with
the Purchased Assets or otherwise pledge, hypothecate, assign, transfer or
otherwise convey the Purchased Assets with a counterparty of Buyer's choice, in
all cases subject to Buyer's obligations hereunder, including without
limitation, to reconvey the Purchased Assets (and not substitutes therefor) on
the Repurchase Date. In the event Buyer engages in a repurchase transaction with
any of the Purchased Assets or otherwise pledges or hypothecates any of the
Purchased Assets, Buyer shall have the right to assign to Buyer's counterparty
any of the applicable representations or warranties in Appendix A to the Custody
Agreement and the remedies for breach thereof, as they relate to the Purchased
Assets that are subject to such repurchase transaction.
18. EVENTS OF DEFAULT
With respect to any Transactions covered by or related to this
Agreement, the occurrence of any of the following events shall constitute an
"Event of Default":
a. Seller fails to transfer the Purchased Assets to Buyer on the
applicable Purchase Date (provided Buyer has tendered the related Purchase
Price);
b. Seller either fails to repurchase the Purchased Assets on the
applicable Repurchase Date or fails to perform its obligations under Section 6;
c. either Seller, a Guarantor or Servicer shall fail to perform,
observe or comply with any other material term, covenant or agreement contained
in the Program Documents (other than Appendix A to the Custody Agreement) and
such failure is not cured within the time period expressly provided or, if no
such cure period is provided, within one (1) Business Days of the earlier of (i)
such party's receipt of written notice from Buyer or Custodian of such breach or
(ii) the date on which such party obtains notice or knowledge of the facts
giving rise to such breach;
d. any representation or warranty made by Seller or a Guarantor (or any
of Seller's or such Guarantor's officers) in the Program Documents or in any
other document delivered in connection therewith (other than the representations
or warranties in Appendix A to the Custody Agreement) shall have been incorrect
or untrue in any material respect when made or repeated or deemed to have been
made or repeated;
e. Seller, any Guarantor, or any of Seller's or any Guarantor's
Subsidiaries shall fail to pay any of Seller's, such Guarantor's or Seller's or
such Guarantor's Subsidiaries' Indebtedness in excess of $1,000,000 (in the
aggregate), or any interest or premium thereon when due (whether by scheduled
maturity, requirement prepayment, acceleration, demand or otherwise), or shall
fail to make any payment when due under Seller's, such Guarantor's or Seller's
or such Guarantor's Subsidiaries' Guarantee of another person's Indebtedness for
borrowed money in excess of $1,000,000 (in the aggregate), and such failure
shall result in any related counterparty declaring any such Indebtedness or
Guarantee to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
f. a custodian, receiver, conservator, liquidator, trustee,
sequestrator or similar official for Seller, a Guarantor or any of Seller's or a
Guarantor's Subsidiaries, or of any of Seller's, a Guarantor's or their
respective Property (as a debtor or creditor protection procedure), is appointed
or takes possession of such property; or Seller, a Guarantor or any of Seller's
or a Guarantor's Subsidiaries generally fails to pay Seller's, such Guarantor's
or Seller's or such Guarantor's Subsidiaries' debts as they become due; or
Seller, a Guarantor or any of Seller's or a Guarantor's Subsidiaries is
adjudicated bankrupt or insolvent; or an order for relief is entered under the
Federal Bankruptcy Code, or any successor or similar applicable statute, or any
administrative insolvency scheme, against Seller, a Guarantor or any of Seller's
or a Guarantor's Subsidiaries; or any of Seller's, Guarantor's or Seller's or
Guarantor's Subsidiaries' Property is sequestered by court or administrative
order; or a petition is filed against Seller, a Guarantor or any of Seller's or
a Guarantor's Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, moratorium, delinquency or
liquidation law of any jurisdiction, whether now or subsequently in effect;
provided that, if any event described in this subsection (f) is not voluntarily
caused or consented to by Seller, Guarantor or an applicable Subsidiary, a
45-day cure period shall be applicable to stay or discharge such event;
g. Seller, a Guarantor or any of Seller's or a Guarantor's Subsidiaries
files a voluntary petition in bankruptcy seeks relief under any provision of any
bankruptcy, reorganization, moratorium, delinquency, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction whether
now or subsequently in effect; or consents to the filing of any petition against
it under any such law; or consents to the appointment of or taking possession by
a custodian, receiver, conservator, trustee, liquidator, sequestrator or similar
official for Seller, any Guarantor or any of Seller's or any Guarantor's
Subsidiaries, or of all or any part of Seller's, any Guarantor's or Seller's or
any Guarantor's Subsidiaries' Property; or makes an assignment for the benefit
of Seller, any Guarantor or Seller's or any Guarantor's Subsidiaries' creditors;
h. any final, nonappealable judgment or order for the payment of money
in excess of $500,000 is rendered against any Guarantor or any of Seller's or
any Guarantor's Subsidiaries and remains undischarged or unsatisfied after the
passage of 45 days following the date on which it is entered or any final,
nonappealable judgment or order for the payment of money in excess of $500,000
is rendered against Seller;
i. any Governmental Authority or any person, agency or entity acting or
purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the Property of Seller, any Guarantor or any of Seller's or
any Guarantor's material operating Subsidiaries, or shall have taken any action
to displace the management of Seller, any Guarantor or any of Seller's or any
Guarantor's material operating Subsidiaries or to curtail its authority in the
conduct of the business of Seller, any Guarantor or any of Seller's or any
Guarantor's material operating Subsidiaries, or takes any action in the nature
of enforcement to remove, limit or restrict the approval of Seller, any
Guarantor or any of Seller's or any Guarantor's material operating Subsidiaries
as an issuer, buyer or a seller/servicer of Loans or securities backed thereby,
and such action provided for in this subsection (i) shall not have been
discontinued or stayed within 30 days;
j. Seller, any Guarantor or any of Seller's or any Guarantor's
Subsidiaries shall default under, or fail to perform as requested under, or
shall otherwise breach the material terms of any instrument, agreement or
contract relating to Indebtedness, and such default, failure or breach shall
result in any counterparty declaring such Indebtedness to be due and payable
prior to the maturity thereof;
k. in the reasonable good faith judgment of Buyer any Material Adverse
Change shall have occurred with respect to Seller, Seller, ABFS, ABC, ABMS or
Upland or any of Seller's, ABFS's, ABC's, ABMS's or Upland's Subsidiaries taken
as a whole; or in the reasonable good faith judgment of Buyer any Material
Adverse Change shall have occurred with respect to ABFS that has caused a
Material Adverse Change with respect to ABFS;
l. Seller, any Guarantor or Servicer shall admit in writing its
inability to, or intention not to, perform any of Seller's, such Guarantor's or
Servicer's respective material Obligations;
m. Seller or any Guarantor dissolves, merges or consolidates with
another entity, or sells, transfers, or otherwise disposes of a material portion
of Seller's or such Guarantor's (as applicable) business or assets unless
Buyer's written consent is given;
n. this Agreement shall for any reason cease to create a valid, first
priority security interest or ownership interest upon transfer in any material
portion of the Purchased Assets or Collateral purported to be covered hereby;
o. either Seller's or any Guarantor's audited annual financial
statements or the notes thereto or other opinions or conclusions stated therein
shall be qualified or limited by reference to the status of Seller or such
Guarantor as a "going concern" or a reference of similar import;
p. a Change in Control of any Guarantor or Seller shall have occurred
which has not been approved by Buyer;
q. As of the end of any fiscal quarter, ABFS on a consolidated basis
fails to maintain at all times a minimum Consolidated Stockholders' Equity in
excess of the sum of (1) $47,500,000, plus (2) the aggregate amount equal to 50%
of the aggregate net cash proceeds received by ABFS or any of its subsidiaries
from the issuance of capital stock after June 30, 2001, plus (3) for each fiscal
quarter ending after June 30, 2001, the aggregate amount equal to 60% of
positive consolidated Net Income for such fiscal quarters; provided that if ABFS
should incur a net loss for any fiscal quarter, the Consolidated Stockholders'
Equity requirement hereunder will not be reduced from the amount required at the
previous fiscal quarter end; and
r. The ratio of ABFS's Total Liabilities to Consolidated Stockholders'
Equity is greater than 16:1 as of the end of any fiscal quarter. ABFS shall fail
to maintain at the end of any fiscal quarter at least $200,000,000 in
Subordinated Debt with maturities of at least one year or greater and at least
$350,000,000 of total Subordinated Debt.
19. REMEDIES
Upon the occurrence of an Event of Default, Buyer, at its option (which
option shall be deemed to have been exercised immediately upon the occurrence of
an Event of Default pursuant to Section 18(f) or (g) hereof), shall have any or
all of the following rights and remedies, which may be exercised by Buyer:
a. The Repurchase Date for each Transaction hereunder shall be deemed
immediately to occur.
b. Seller's obligations hereunder to repurchase all Purchased Assets at
the Repurchase Price therefor on the Repurchase Date in such Transactions shall
thereupon become immediately due and payable; all Income paid after such
exercise or deemed exercise shall be retained by Buyer and applied to the
aggregate Repurchase Prices and any other amounts owing by Seller hereunder;
Seller and each Guarantor shall immediately deliver to Buyer or its designee any
and all original papers, records and files relating to the Purchased Assets
subject to such Transaction then in Seller's and any Guarantor's possession
and/or control; and all right, title and interest in and entitlement to such
Purchased Assets and Servicing Rights thereon shall be deemed transferred to
Buyer.
Buyer may (A) sell, on or following the Business Day following the date
on which the Repurchase Price became due and payable pursuant to Section 19(b)
without notice or demand of any kind, at a public or private sale and at such
price or prices as Buyer may reasonably deem satisfactory any or all Purchased
Assets or (B) in its sole discretion elect, in lieu of selling all or a portion
of such Purchased Assets, to give Seller credit for such Purchased Assets in an
amount equal to the Market Value of the Purchased Assets against the aggregate
unpaid Repurchase Price and any other amounts owing by Seller hereunder. The
Seller shall remain liable to the Buyer for any amounts that remain owing to
Buyer following a sale or credit under the preceding sentence. The proceeds of
any disposition of Purchased Assets shall be applied first to the reasonable
costs and expenses incurred by Buyer in connection with or as a result of an
Event of Default; second to direct damages, including, but not limited to,
Breakage Costs; third to the aggregate Repurchase Prices; and fourth to all
other Obligations.
The parties recognize that it may not be possible to purchase or sell
all of the Purchased Assets on a particular Business Day, or in a transaction
with the same purchaser, or in the same manner because the market for such
Purchased Assets may not be liquid. In view of the nature of the Purchased
Assets, the parties agree that liquidation of a Transaction or the underlying
Purchased Assets does not require a public purchase or sale and that a good
faith private purchase or sale shall be deemed to have been made in a
commercially reasonable manner. Accordingly, Buyer may elect the time and manner
of liquidating any Purchased Asset and nothing contained herein shall obligate
Buyer to liquidate any Purchased Asset on the occurrence of an Event of Default
or to liquidate all Purchased Assets in the same manner or on the same Business
Day or constitute a waiver of any right or remedy of Buyer. Notwithstanding the
foregoing, the parties' to this Agreement agree that the Transactions have been
entered into in consideration of and in reliance upon the fact that all
Transactions hereunder constitute a single business and contractual obligation
and that each Transaction has been entered into in consideration of the other
Transactions.
In addition to its rights hereunder, Buyer shall have the right to
proceed against any of Seller's assets which may be in the possession of Buyer
or any of Buyer's Affiliates, including the right to liquidate such assets and
to set-off the proceeds against monies owed by Seller to Buyer pursuant to this
Agreement. Buyer may set off cash, the proceeds of the liquidation of the
Purchased Assets and Additional Purchased Assets, any other Collateral or its
proceeds and all other sums or obligations owed by Buyer to Seller hereunder
against all of Seller's Obligations to Buyer, whether under this Agreement,
under a Transaction, or under any other agreement between the parties, or
otherwise, whether or not such Obligations are then due, without prejudice to
Buyer's right to recover any deficiency.
Buyer may, at its option, terminate this Agreement subject to the terms
set forth in such section.
Buyer may direct all Persons servicing the Purchased Assets to take
such action with respect to the Purchased Assets as Buyer determines
appropriate.
Seller shall be liable to Buyer for the amount of all expenses (plus
interest thereon at a rate equal to the Default Rate), and direct damages,
including, but not limited to, Breakage Costs and all costs and expenses
incurred within 30 days of the Event of Default in connection with hedging or
covering transactions related to the Purchased Assets.
Each of Seller and each Guarantor shall cause all sums received by it
with respect to the Purchased Assets to be deposited with Custodian (or such
other Person as Buyer may direct) after receipt thereof.
Buyer shall without regard to the adequacy of the security for the
Obligations, be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession of and protect, collect,
manage, liquidate, and sell the Purchased Assets and any other Collateral or any
portion thereof, collect the payments due with respect to the Purchased Assets
and any other Collateral or any portion thereof, and do anything that Buyer is
authorized hereunder to do. Seller shall pay all costs and expenses incurred by
Buyer in connection with the appointment and activities of such receiver.
Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives, to the extent
permitted by law, any right Seller might otherwise have to require Buyer to
enforce its rights by judicial process. Seller also waives, to the extent
permitted by law, any defense Seller might otherwise have to the Obligations,
arising from use of nonjudicial process, enforcement and sale of all or any
portion of the Purchased Assets and any other Collateral or from any other
election of remedies. Seller recognizes that nonjudicial remedies are consistent
with the usages of the trade, are responsive to commercial necessity and are the
result of a bargain at arm's length.
In addition to all the rights and remedies specifically provided
herein, Buyer shall have all other rights and remedies provided by applicable
federal, state, foreign, and local laws, whether existing at law, in equity or
by statute.
Upon the occurrence of an Event of Default, Buyer shall have, except as
otherwise expressly provided in this Agreement, the right to exercise any of its
rights and/or remedies without presentment, demand, protest or further notice of
any kind other than as expressly set forth herein, all of which are hereby
expressly waived by Seller.
Seller hereby authorizes Buyer, at Seller's expense, to file such
financing statement or statements relating to the Purchased Assets and the
Collateral without Seller's signature thereon as Buyer at its option may deem
appropriate, and appoints Buyer as Seller's attorney-in-fact to execute any such
financing statement or statements in Seller's name and to perform all other acts
which Buyer deems appropriate to perfect and continue the lien and security
interest granted hereby and to protect, preserve and realize upon the Purchased
Assets and the Collateral, including, but not limited to, the right to endorse
notes, complete blanks in documents and execute assignments on behalf of Seller
as its attorney-in-fact. This power of attorney is coupled with an interest and
is irrevocable without Buyer's consent.
20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE
No failure on the part of Buyer to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Buyer of any right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All rights and remedies of Buyer
provided for herein are cumulative and in addition to any and all other rights
and remedies provided by law, the Program Documents and the other instruments
and agreements contemplated hereby and thereby, and are not conditional or
contingent on any attempt by Buyer to exercise any of its rights under any other
related document. Buyer may exercise at any time one or more remedies, as it so
desires, and may thereafter at any time and from time to time exercise any other
remedy or remedies.
21. USE OF EMPLOYEE PLAN ASSETS
No assets of an employee benefit plan subject to any provision of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") shall be
used by either party hereto in a Transaction.
22. INDEMNITY
a. The Seller agrees to pay on demand (i) all reasonable out-of-pocket
costs and expenses of the Buyer in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement
(including, without limitation, (A) all due diligence (including quarterly
diligence), collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of external
counsel for the Buyer with respect thereto, with respect to advising the Buyer
as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under this Agreement, with respect to
negotiations with the Seller or with other creditors of the Seller or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of the Buyer in connection with the
enforcement of this Agreement, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Buyer and the allocated cost of internal counsel with respect
thereto) whether or not the transactions contemplated hereby are consummated.
b. Seller agrees to indemnify and hold harmless Buyer and each of its
respective Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against (and will reimburse
each Indemnified Party as the same is incurred) any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel and allocated costs of internal counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or other proceeding
(whether or not such Indemnified Party is a party thereto) relating to,
resulting from or arising out of any of the Program Documents and all other
documents related thereto, any breach of a representation or warranty of Seller
or any Guarantor or Seller's or any Guarantor's officer in this Agreement or any
other Program Document, and all actions taken pursuant thereto) (i) the
Transactions, the actual or proposed use of the proceeds of the Transactions,
this Agreement or any of the transactions contemplated thereby, including,
without limitation, any acquisition or proposed acquisition or (ii) the actual
or alleged presence of hazardous materials on any Property or any environmental
action relating in any way to any Property, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct or is the result of a claim made
by Seller or any Guarantor against the Indemnified Party, and Seller or such
Guarantor is ultimately the successful party in any resulting litigation or
arbitration. Seller also agrees not to assert any claim against Buyer or any of
its Affiliates, or any of their respective officers, directors, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Transactions, this
Agreement or any of the transactions contemplated thereby. THE FOREGOING
INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT
LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT)
OF THE INDEMNIFIED PARTIES.
c. Without limitation on the provisions of Section 4, if any payment of
the Repurchase Price of any Transaction is made by Seller other than on the then
scheduled Repurchase Date thereto as a result of an acceleration of the
Repurchase Date pursuant to Section 19 or for any other reason, the Seller
shall, upon demand by the Buyer, pay to the Buyer an amount sufficient to
compensate the Buyer for any losses, costs or expenses that it may reasonably
incur as of a result of such payment.
d. If Seller fails to pay when due any costs, expenses or other amounts
payable by it under this Agreement, including, without limitation, reasonable
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of Seller by Buyer, in its sole discretion.
e. Without prejudice to the survival of any other agreement of Seller
hereunder, the agreements and obligations of Seller contained in this Section
shall survive the payment in full of the Repurchase Price and all other amounts
payable hereunder and delivery of the Purchased Assets by Buyer against full
payment therefor.
23. WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS
Seller hereby expressly waives, to the fullest extent permitted by law,
every statute of limitation on a deficiency judgment, any reduction in the
proceeds of any Purchased Assets as a result of restrictions upon Buyer or
Custodian contained in the Program Documents or any other instrument delivered
in connection therewith, and any right that it may have to direct the order in
which any of the Purchased Assets shall be disposed of in the event of any
disposition pursuant hereto.
24. REIMBURSEMENT
All sums reasonably expended by Buyer in connection with the exercise
of any right or remedy provided for herein shall be and remain Seller's
obligation. Seller agrees to pay, with interest at the Default Rate to the
extent that an Event of Default has occurred and is continuing, the reasonable
out-of-pocket expenses and reasonable attorneys' fees incurred by Buyer and/or
Custodian in connection with the enforcement or administration of the Program
Documents, the taking of any action, including legal action, required or
permitted to be taken by Buyer (without duplication to Buyer) and/or Custodian
pursuant thereto, any "due diligence" or loan agent reviews conducted by Buyer
or on its behalf or any refinancing or restructuring in the nature of a
"workout". If Buyer determines that, due to the introduction of, any change in,
or the compliance by Buyer with (i) any eurocurrency reserve requirement or (ii)
the interpretation of any law, regulation or any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be an increase in the cost to Buyer in engaging in the present
or any future Transactions, then within five (5) Business Days receipt of
written notice from the Buyer with a reasonably detailed explanation from the
Buyer regarding such increase, Seller agrees to pay to Buyer, from time to time,
upon demand by Buyer (with a copy to Custodian) the actual cost of additional
amounts as specified by Buyer to compensate Buyer for such increased costs.
Notwithstanding any other provisions in this Agreement, in the event of any such
change in the eurocurrency reserve requirement or the interpretation of any law,
regulation or any guideline or request from any central bank or other
Governmental Authority, Seller will have the right to terminate all Transactions
then outstanding as of a date selected by Seller, which date shall be prior to
the applicable Repurchase Date and which date shall thereafter for all purposes
hereof, be deemed to be the Repurchase Date. In addition, Buyer shall promptly
notify Seller if any events in clause (i) or (ii) of this Section 24 occur.
25. FURTHER ASSURANCES
Seller and each Guarantor agree to do such further acts and things and
to execute and deliver to Buyer such additional assignments, acknowledgments,
agreements, powers and instruments as are reasonably required by Buyer to carry
into effect the intent and purposes of this Agreement, to perfect the interests
of Buyer in the Purchased Assets or to better assure and confirm unto Buyer its
rights, powers and remedies hereunder.
26. ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION
This Agreement supersedes and integrates all previous negotiations,
contracts, agreements and understandings between the parties relating to a sale
and repurchase of Purchased Assets and Additional Purchased Assets thereto, and
it, together with the other Program Documents, and the other documents delivered
pursuant hereto or thereto, contains the entire final agreement of the parties.
No prior negotiation, agreement, understanding or prior contract shall have any
validity hereafter.
27. TERMINATION
This Agreement shall remain in effect until the earlier of (i) November
14, 2002, or (ii) at Buyer's option upon the occurrence and continuation of an
Event of Default pursuant to Section 19 (such date, the "Termination Date").
However, no such termination shall affect Seller's outstanding obligations to
Buyer at the time of such termination. Seller's obligations to indemnify Buyer
pursuant to this Agreement shall survive the termination hereof.
Upon the written request of the Seller, no more than ninety (90) days
prior to the then currently scheduled Termination Date, the Buyer may in its
sole discretion (and subject to any conditions set forth by the Buyer) extend
the Termination Date for a period of 364 days, by giving written notice of such
extension to the Seller no later than forty-five (45) days following receipt of
such request from the Seller. Failure by the Seller to receive a response from
Buyer on or prior to the forty-fifth (45th) day prior to the Termination Date,
shall be deemed that the Buyer has not accepted the request to extend the
facility.
28. ASSIGNMENT
The Program Documents are not assignable by Seller. Buyer may from time
to time assign all or a portion of its rights and obligations under this
Agreement and the Program Documents; provided, however that Buyer shall
maintain, for review by Seller upon written request, a register of assignees and
a copy of an executed assignment and acceptance by Buyer and assignee
("Assignment and Acceptance"), specifying the percentage or portion of such
rights and obligations assigned. Upon such assignment, (a) such assignee shall
be a party hereto and to each Program Document to the extent of the percentage
or portion set forth in the Assignment and Acceptance, and shall succeed to the
applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to
the extent that such rights and obligations have been so assigned by it to
either (i) an Affiliate of Buyer which assumes the obligations of Buyer (other
than an Affiliate in the mortgage banking or servicing business) or (ii) to
another Person approved by Seller (such approval not to be unreasonably
withheld) which assumes the obligations of Buyer, be released from its
obligations hereunder and under the Program Documents. Unless otherwise stated
in the Assignment and Acceptance, Seller shall continue to take directions
solely from Buyer unless otherwise notified by Buyer in writing. Buyer may
distribute to any prospective assignee any document or other information
delivered to Buyer by Seller.
29. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement nor any
consent to any failure to comply herewith or therewith shall in any event be
effective unless the same shall be in writing and signed by Seller and Buyer,
and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
30. SEVERABILITY
If any provision of any Program Document is declared invalid by any
court of competent jurisdiction, such invalidity shall not affect any other
provision of the Program Documents, and each Program Document shall be enforced
to the fullest extent permitted by law.
31. BINDING EFFECT; GOVERNING LAW
This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Seller may not
assign or transfer any of its rights or obligations under this Agreement,
Confirmation or any other Program Document without the prior written consent of
Buyer. Seller acknowledges that the obligations of Buyer hereunder or otherwise
are not the subject of any guaranty by, or recourse to, any direct or indirect
parent or other Affiliate of the Buyer. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
32. CONSENT TO JURISDICTION
SELLER HEREBY WAIVES TRIAL BY JURY. SELLER HEREBY IRREVOCABLY CONSENTS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ARISING
OUT OF OR RELATING TO THE PROGRAM DOCUMENTS IN ANY ACTION OR PROCEEDING. SELLER
HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION SELLER MAY HAVE TO, NON-EXCLUSIVE
PERSONAL JURISDICTION AND VENUE IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT
TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS.
33. SINGLE AGREEMENT
Seller, each Guarantor and Buyer acknowledge that, and have entered
hereinto and will enter into each Transaction hereunder in consideration of and
in reliance upon the fact that, all Transactions hereunder constitute a single
business and contractual relationship and have been made in consideration of
each other. Accordingly, Seller, each Guarantor and Buyer each agree (i) to
perform all of its obligations in respect of each Transaction hereunder, and
that a default in the performance of any such obligations shall constitute a
default by it in respect of all Transactions hereunder, and (ii) that payments,
deliveries and other transfers made by any of them in respect of any Transaction
shall be deemed to have been made in consideration of payments, deliveries and
other transfer in respect of any other Transaction hereunder, and the
obligations to make any such payments, deliveries and other transfers may be
applied against each other and netted.
34. INTENT
Seller and Buyer recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the United
States Code, as amended ("USC") (except insofar as the Loans subject to such
Transaction or the term of such Transaction would render such definition
inapplicable), and a "securities contract" as that term is defined in Section
741 of Title 11 of the USC (except insofar as the Loans subject to such
Transaction or the term of such Transaction would render such definition
inapplicable).
It is understood that Buyer's right to liquidate the Purchased Assets
delivered to it in connection with the Transactions hereunder or to exercise any
other remedies pursuant to Section 19 hereof is a contractual right to liquidate
such Transaction as described in Sections 555 and 559 of Title 11 of the USC.
35. NOTICES AND OTHER COMMUNICATIONS
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 Seller,
ABFS REPO 2001, Inc.
American Business Financial Services, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to ABFS,
American Business Financial Services, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to ABC,
American Business Credit, Inc.
American Business Financial Services, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to ABMS,
American Business Mortgage Services, Inc.
American Business Financial Services, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to Upland,
HomeAmerican Credit, Inc.
d/b/a Upland Mortgage
American Business Financial Services, Inc.
Xxxxxxxxxx Xxxxxx Xxxxxx
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Bala Cynwyd, Pennsylvania 19004
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to Buyer or Agent,
Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx
Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
with a copy of all legal notices to:
Xxxxxxxxx Xxxxxxx
Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
as such address or number may be changed by like notice.
36. CONFIDENTIALITY
This Agreement and its terms, provisions, supplements and amendments,
and transactions and notices hereunder, are proprietary to Buyer and Agent and
shall be held by Seller (and Seller shall cause Servicer and each Guarantor to
hold it) in strict confidence and shall not be disclosed to any third party
without the consent of Buyer except for (i) disclosure to Seller's direct and
indirect parent companies, attorneys, agents or accountants, provided that such
attorneys or accountants likewise agree to be bound by this covenant of
confidentiality or (ii) upon prior written notice to Buyer, disclosure required
by law, rule, regulation or order of a court or other regulatory body or (iii)
with prior written notice to Buyer, any required Securities and Exchange
Commission or state securities' law disclosures or filings, which shall not
include the Side Letter unless otherwise agreed by Buyer in writing.
[Signature Page Follows]
IN WITNESS WHEREOF, Seller, Guarantors and Buyer have caused
their names to be signed to this Master Repurchase Agreement by their respective
officers thereunto duly authorized as of the date first above written.
ABFS REPO 2001, INC., as Seller
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, as Buyer and Agent,
as applicable
By:
Name:
Title:
Acknowledged and Agreed:
AMERICAN BUSINESS CREDIT, INC., as Guarantor
By:
Name:
Title:
AMERICAN BUSINESS MORTGAGE SERVICES, INC., as Guarantor
By:
Name:
Title:
AMERICAN BUSINESS FINANCIAL SERVICES, INC., as Guarantor
By:
Name:
Title:
HOMEAMERICAN CREDIT, INC., d/b/a/ UPLAND MORTGAGE, as Guarantor
By:
Name:
Title:
ANNEX I
BUYER ACTING AS AGENT
This Annex I forms a part of the Master Repurchase Agreement dated as
of November 16, 2001 (the "Agreement") between Credit Suisse First Boston
Mortgage Capital LLC and ABFS REPO 2001, Inc.. This Annex I sets forth the terms
and conditions governing all transactions in which a party selling assets or
buying assets, as the case may be ("Agent"), in a Transaction is acting as agent
for one or more third parties (each, a "Principal"). Capitalized terms used but
not defined in this Annex I shall have the meanings ascribed to them in the
Agreement.
1. Additional Representations. Agent hereby makes the following
representations, which shall continue during the term of any Transaction:
Principal has duly authorized Agent to execute and deliver the Agreement on its
behalf, has the power to so authorize Agent and to enter into the Transactions
contemplated by the Agreement and to perform the obligations of Seller or Buyer,
as the case may be, under such Transactions, and has taken all necessary action
to authorize such execution and delivery by Agent and such performance by it.
2. Identification of Principals. Agent agrees (a) to provide the other
party, prior to the date on which the parties agree to enter into any
Transaction under the Agreement, with a written list of Principals for which it
intends to act as Agent (which list may be amended in writing from time to time
with the consent of the other party) and (b) to provide the other party, before
the close of business on the next business day after orally agreeing to enter
into a Transaction, with notice of the specific Principal or Principals for whom
it is acting in connection with such Transaction. If (i) Agent fails to identify
such Principal or Principals prior to the close of business on such next
business day or (ii) the other party shall determine in its sole discretion that
any Principal or Principals identified by Agent are not acceptable to it, the
other party may reject and rescind any Transaction with such Principal or
Principals, return to Agent any Purchased Assets or portion of the Purchase
Price, as the case may be, previously transferred to the other party and refuse
any further performance under such Transaction, and Agent shall immediately
return to the other party any portion of the Purchase Price or Purchased Assets,
as the case may be, previously transferred to Agent in connection with such
Transaction; provided, however, that (A) the other party shall promptly (and in
any event within one business day) notify Agent of its determination to reject
and rescind such Transaction and (B) to the extent that any performance was
rendered by any party under any Transaction rejected by the other party, such
party shall remain entitled to any Price Differential or other amounts that
would have been payable to it with respect to such performance if such
Transaction had not been rejected. The other party acknowledges that Agent shall
not have any obligation to provide it with confidential information regarding
the financial status of its Principals; Agent agrees, however, that it will
assist the other party in obtaining from Agent's Principals such information
regarding the financial status of such Principals as the other party may
reasonably request.
3. Limitation of Agent's Liability. The parties expressly acknowledge
that if the representations of Agent under the Agreement, including this Annex
I, are true and correct in all material respects during the term of any
Transaction and Agent otherwise complies with the provisions of this Annex I,
then (a) Agent's obligations under the Agreement shall not include a guarantee
of performance by its Principal or Principals and (b) the other party's remedies
shall not include a right of setoff in respect of rights or obligations, if any,
of Agent arising in other transactions in which Agent is acting as principal.
4. Multiple Principals.
(a) In the event that Agent proposes to act for more than one Principal
hereunder, Agent and the other party shall elect whether (i) to treat
Transactions under the Agreement as transactions entered into on behalf of
separate Principals or (ii) to aggregate such Transactions as if they were
transactions by a single Principal. Failure to make such an election in writing
shall be deemed an election to treat Transactions under the Agreement as
transactions on behalf of separate Principals.
(b) In the event that Agent and the other party elect (or are deemed to
elect) to treat Transactions under the Agreement as transactions on behalf of
separate Principals, the parties agree that (i) Agent will provide the other
party, together with the notice described in Section 2(b) of this Annex I,
notice specifying the portion of each Transaction allocable to the account of
each of the Principals for which it is acting (to the extent that any such
Transaction is allocable to the account of more than one Principal); (ii) the
portion of any individual Transaction allocable to each Principal shall be
deemed a separate Transaction under the Agreement; (iii) the margin maintenance
obligations of Seller under Section 6(a) of the Agreement shall be determined on
a Transaction-by-Transaction basis (unless the parties agree to determine such
obligations on a Principal-by-Principal basis); and (iv) Buyer's and Seller's
remedies under the Agreement upon the occurrence of an Event of Default shall be
determined as if Agent had entered into a separate Agreement with the other
party on behalf of each of its Principals.
(c) In the event that Agent and the other party elect to treat
Transactions under the Agreement as if they were transactions by a single
Principal, the parties agree that (i) Agent's notice under Section 2(b) of this
Annex I need only identify the names of its Principals but not the portion of
each Transaction allocable to each Principal's account; (ii) the margin
maintenance obligations of Seller under Section 6(a) of the Agreement shall,
subject to any greater requirement imposed by applicable law, be determined on
an aggregate basis for all Transactions entered into by Agent on behalf of any
Principal; and (iii) Buyer's and Seller's remedies upon the occurrence of an
Event of Default shall be determined as if all Principals were a single Seller
or Buyer, as the case may be.
(d) Notwithstanding any other provision of the Agreement (including,
without limitation, this Annex I), the parties agree that any Transactions by
Agent on behalf of an employee benefit plan under ERISA shall be treated as
Transactions on behalf of separate Principals in accordance with Section 4(b) of
this Annex I (and all margin maintenance obligations of the parties shall be
determined on a Transaction-by-Transaction basis).
5. Interpretation of Terms. All references to "Seller" or "Buyer", as the
case may be, in the Agreement shall, subject to the provisions of this Annex I
(including, among other provisions, the limitations on Agent's liability in
Section 3 of this Annex I), be construed to reflect that (i) each Principal
shall have, in connection with any Transaction or Transactions entered into by
Agent on its behalf, the rights, responsibilities, privileges and obligations of
a "Seller" or "Buyer", as the case may be, directly entering into such
Transaction or Transactions with the other party under the Agreement, and (ii)
Agent's Principal or Principals have designated Agent as their sole agent for
performance of Seller's obligations to Buyer or Buyer's obligations to Seller,
as the case may be, and for receipt of performance by Buyer of its obligations
to Seller or Seller of its obligations to Buyer, as the case may be, in
connection with any Transaction or Transactions under the Agreement (including,
among other things, as Agent for each Principal in connection with transfers of
Securities, cash or other property and as agent for giving and receiving all
notices under the Agreement). Both Agent and its Principal or Principals shall
be deemed "parties" to the Agreement and all references to a "party" or "either
party" in the Agreement shall be deemed revised accordingly.
EXHIBIT A-1
MONTHLY CERTIFICATION
I, _________________ , _________________ of ABFS REPO 2001, Inc. (the
"Company"), do hereby certify that the Company is in compliance with all
provisions and terms of the Master Repurchase Agreement, dated as of November
16, 2001, by and between Credit Suisse First Boston Mortgage Capital LLC and the
Company.
IN WITNESS WHEREOF, I have signed this certificate and affixed the seal
of the Company
Date: ________, 200_
-------------------------------------
Name:
Title:
[SEAL]
I, _________________ , _________________ of the Company, do hereby
certify that ____________________is the duly elected or appointed, qualified and
acting of the Company, and the signature set forth above is the genuine
signature of such officer on the date hereof.
-------------------------------------
Name:
Title:
EXHIBIT A-2
MONTHLY CERTIFICATION
I, ________________, ___________________ the ______________ of American
Business Financial Services, Inc. (the "Company"), do hereby certify that:
(i) the Company is in compliance with all provisions and terms
of the Master Repurchase Agreement, dated as of November 16, 2001 (the
"Repurchase Agreement"), by and between Credit Suisse First Boston Mortgage
Capital LLC (the "Buyer") and ABFS REPO 2001, Inc. (the "Seller");
(ii) all material modifications to the Underwriting Guidelines
have been delivered to the Buyer;
(iii) [TO BE DELIVERED ONLY ON QUARTERLY BASIS: the
Consolidated Stockholders' Equity of the Company is not less than the amount set
forth in Section 18(q) of the Repurchase Agreement;]
(iv) [TO BE DELIVERED ONLY ON QUARTERLY BASIS: The ratio of
Company's Total Liabilities to Consolidated Stockholders' Equity does not exceed
the amount set forth in Section 18(r) of the Repurchase Agreement; and]
(v) [TO BE DELIVERED ONLY ON QUARTERLY BASIS: The Subordinated
Debt of the Company's is not less than the amount set forth in Section 18(r) of
the Repurchase Agreement.]
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Repurchase Agreement.
IN WITNESS WHEREOF, I have signed this certificate and affixed
the seal of the Company
Date: ________, 200_
--------------------------------
Name:
Title:
[SEAL]
I, _____________, ________________ of the Company, do hereby certify
that is the duly elected or appointed, qualified and acting of the Company, and
the signature set forth above is the genuine signature of such officer in the
date hereof.
--------------------------------
Name:
Title:
EXHIBIT B
LEGAL ACTIONS, PROCEEDINGS AND INVESTIGATIONS
