Exhibit 10.1
EXECUTION COPY
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MASTER REPURCHASE AGREEMENT
By and Among:
THE PATRIOT GROUP, LLC,
as Buyer,
ABFS WAREHOUSE TRUST 2004-2,
as Seller,
and
the other ABFS ENTITIES parties hereto
Dated as of November 15, 2004
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Table of Contents
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Page
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1. DEFINITIONS AND INTERPRETATION...........................................1
2. THE TRANSACTION.........................................................10
3. [RESERVED]..............................................................11
4. FEES; PAYMENT AND TRANSFER..............................................11
5. MARGIN MAINTENANCE......................................................11
6. INCOME PAYMENTS.........................................................12
7. SECURITY INTEREST.......................................................12
8. TAXES; TAX TREATMENT....................................................13
9. CONDITIONS PRECEDENT....................................................14
10. RELEASE OF PURCHASED ASSETS.............................................18
11. RELIANCE................................................................18
12. REPRESENTATIONS AND WARRANTIES..........................................18
13. COVENANTS...............................................................21
14. [RESERVED]..............................................................26
15. CHANGE OF LAW...........................................................26
16. [RESERVED]..............................................................27
17. REPURCHASE TRANSACTIONS.................................................27
18. EVENTS OF DEFAULT.......................................................27
19. REMEDIES................................................................30
20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE...............................32
21. USE OF EMPLOYEE PLAN ASSETS.............................................32
22. INDEMNITY...............................................................32
23. WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS..............................33
24. REIMBURSEMENT...........................................................33
25. FURTHER ASSURANCES......................................................34
26. ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION................................34
27. TERMINATION.............................................................34
28. ASSIGNMENT; PARTICIPATIONS..............................................35
29. AMENDMENTS, ETC.........................................................35
30. SEVERABILITY............................................................36
31. BINDING EFFECT; GOVERNING LAW...........................................36
32. CONSENT TO JURISDICTION.................................................36
33. NOTICES AND OTHER COMMUNICATIONS........................................36
34. CONFIDENTIALITY.........................................................37
35. ACKNOWLEDGEMENTS WITH RESPECT TO THE TRANSACTION........................38
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Table of Contents
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(continued)
EXHIBIT A MONTHLY CERTIFICATION
EXHIBIT B REPRESENTATIONS AND WARRANTIES RE: PURCHASED ASSETS
AND THE 2003-2 IO
EXHIBIT C FORM OF CUSTODIAL AGREEMENT
EXHIBIT D FORM OF TRANSACTION NOTICE
SCHEDULE I PURCHASED ASSETS
SCHEDULE II INTEREST RATES AND FEES
SCHEDULE III GOVERNING AGREEMENTS
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MASTER REPURCHASE AGREEMENT
Dated as of November 15, 2004
BY AND AMONG:
THE PATRIOT GROUP, LLC, a Delaware limited liability company, as buyer (the
"Buyer");
ABFS WAREHOUSE TRUST 2004-2, a Delaware statutory trust, as seller (the
"Seller"); and
AMERICAN BUSINESS FINANCIAL SERVICES, INC., a Delaware corporation, AMERICAN
BUSINESS CREDIT, INC., a Pennsylvania corporation, and ABFS CONSOLIDATED
HOLDINGS, INC., a Delaware corporation.
1. DEFINITIONS AND INTERPRETATION.
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(a) DEFINED TERMS.
"2003-2 IO" means, collectively, Certificate Nos. X-1, P-1 and R-1,
issued by ABFS Mortgage Loan Trust 2003-2.
"2003-2 Officer's Certificate" means that certain Officer's
Certificate, dated as of the Closing Date, regarding the 2003-2 IO and ABFS
2003-2, Inc.
"2004-1 Trust Agreement" means that certain Trust Agreement, dated as
of November 3, 2004, among ABFS, as depositor, Wilmington Trust Company, as
owner trustee, and ABFS, as indemnitor, whereby Trust 2004-1 was created (as
amended, restated, supplemented or otherwise modified from time to time).
"2004-2 Trust Agreement" means that certain Trust Agreement, dated as
of November 3, 2004, among ABFS, as depositor, Wilmington Trust Company, as
owner trustee, and ABFS, as indemnitor, whereby the Seller was created (as
amended, restated, supplemented or otherwise modified from time to time).
"ABC" means American Business Credit, Inc., a Pennsylvania corporation.
"ABFS" means American Business Financial Services, Inc., a Delaware
corporation.
"ABFS Entity" means each of the Seller, Trust 2004-1, ABFS, ABC and
Holdings.
"Additional Exit Fee" shall have the meaning assigned thereto on
Schedule II hereto.
"Additional Warehouse Lines" shall mean warehouse facilities of ABFS or
its Affiliates that provide an aggregate minimum $100,000,000 in warehouse
funding, with an aggregate minimum $30,000,000 sub-limit for wet-ink mortgage
loans.
"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" when used with respect to
any specified Person 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 and the terms "controlling" and "controlled"
have meanings correlative to the meaning of "control."
"Agreement" means this Master Repurchase Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 28(a).
"Book-Entry Securities" shall have the meaning assigned to such term in
Section 7(a) hereof.
"Business Day" means any day other than (i) a Saturday or Sunday or
(ii) a day upon which the New York Stock Exchange or the Federal Reserve Bank of
New York is obligated by law or executive order to be closed.
"Buyer's Margin Amount" means, as of any date of determination, the
amount equal to the product of the Buyer's Margin Percentage and the Repurchase
Price.
"Buyer's Margin Percentage" means two hundred percent (200%) provided,
that on the 25th day of each month for the first ten (10) months following the
Closing Date, commencing in December 2004, the Buyer's Margin Percentage shall
permanently increase by five percentage points (5%) on each such date.
"Capital Lease Obligations" means, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Master Repurchase Agreement, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP.
"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 the Buyer (or any
Affiliate of the 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.
"Chrysalis" means Chrysalis Warehouse Funding, LLC, a Delaware limited
liability company.
"Chrysalis Loan Agreement" means that certain Master Loan and Security
Agreement, dated as of October 14, 2003, between ABFS Warehouse Trust 2003-2 and
Chrysalis (as amended, modified, supplemented or restated from time to time).
"Closing Date" means November 15, 2004.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Collateral" shall have the meaning assigned thereto in Section 7
hereof.
"Commitment Letter" means that certain letter agreement executed by and
between the Buyer and ABFS, dated as of October 26, 2004 (as amended).
"Committed Facility" shall have the meaning assigned to such term in
the Commitment Letter.
"Custodial Agreement" means the Custodial Agreement, dated as of
November 15, 2004, by and between Buyer and JPMorgan, as custodian, which is
incorporated herein for all purposes, substantially in the form attached hereto
as Exhibit C.
"Custodian" means JPMorgan.
"Default" means any event, occurrence, condition or circumstance that,
with the giving of notice or passage of time, or both, would constitute an Event
of Default.
"Default Rate" shall have the meaning set forth on Schedule II hereto.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States (expressed in dollars).
"Eligible Asset" means securities approved by the Buyer in its sole
discretion. The securities set forth on Schedule I hereto have been approved by
the Buyer as Eligible Assets.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" means any entity, trade or business (whether or not
incorporated) that is a member of a group of which the Seller is a member and
that is treated as a single employer under Section 414(b), (c), (m) or (o) of
the Code or, solely for purposes of Section 412 of the Code, that is treated as
a single employer under Section 414 of the Code.
"Escrow Agreement" means the Escrow and Release of Lien Agreement,
dated as of the Closing Date, by and among ABFS Warehouse Trust 2003-1, ABFS,
Holdings, ABFS Residual Holding II, Inc., the Seller, the Buyer, Clearwing
Capital, LLC and JPMorgan.
"Exit Fee" shall have the meaning assigned thereto on Schedule II
hereto.
"Event of Default" shall have the meaning assigned thereto in Section
18 hereof.
"Facility Amount" shall mean, as of the Closing Date, the Initial
Securities Purchase Price. The Facility Amount shall thereafter be reduced by
any and all Permanent Margin Payments, which payments shall be applied to
permanently reduce the then current Securities Purchase Price.
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"Fees" shall mean all fees (including without limitation the Exit Fee,
the Additional Exit Fee and the Monitoring Fee) and other amounts owing from the
Seller to the Buyer as more fully set forth on Schedule II hereto.
"Foreign Buyer" shall have the meaning assigned to such term in Section
8(d) hereof.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"Governing Agreement" means with respect to any Purchased Asset or the
2003-2 IO, the pooling and servicing agreement, sale and servicing agreement,
indenture or similar agreements governing such asset.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"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.
"Holdback Amount" has the meaning assigned thereto in the definition of
Initial Securities Purchase Price.
"Holdings" means ABFS Consolidated Holdings, Inc., a Delaware
corporation.
"Income" means, with respect to any Purchased Asset at any time, any
principal thereof and all interest, dividends or other distributions thereon.
"Indebtedness" means, with respect to any Person, (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (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, so long as such trade
accounts payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (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 or accepted by banks and other financial institutions
for the account of such Person; (e) Capital Lease Obligations of such Person;
(f) obligations of such Person under repurchase agreements, sale/buy-back
agreements or like arrangements; (g) Indebtedness of others guaranteed by such
Person; (h) all obligations of such Person incurred in connection with the
acquisition or carrying of fixed assets by such Person; and (i) Indebtedness of
general partnerships of which such Person is a general partner.
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"Initial Securities Purchase Price" shall mean $23,000,000, $1,300,000
of which shall be retained by Buyer (the "Holdback Amount") pending receipt by
the Buyer from the applicable securitization trustees of the aggregate amounts
to be distributed on November 15, 2004 and November 25, 2004 with respect to the
Purchased Assets (the "November Distributions"); provided that, upon receiving
such distributions, Buyer shall promptly (A) apply the Holdback Amount, to the
extent the November Distributions are less than $2,700,000, as a Permanent
Margin Payment to reduce the Securities Purchase Price, and (B) pay to Seller
the remaining portion of the Holdback Amount.
"Insolvency Event" means any of the Events of Default described in
Sections 18(f) or 18(g) hereof.
"Interest Rate Protection Agreement" means any interest rate protection
agreement or other interest hedging arrangement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, including all rules and regulations promulgated thereunder.
"IRS" shall have the meaning assigned to such term in Section 8(d)
hereof.
"JPMorgan" means JPMorgan Chase Bank, N.A. (f/k/a JPMorgan Chase Bank).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement executed by or on behalf of the debtor named therein
under the Uniform Commercial Code or comparable law of any jurisdiction.
"Margin Call" shall have the meaning assigned to such term in Section
5(a) hereof.
"Margin Deficit" shall have the meaning assigned thereto in Section
5(a) hereof.
"Market Value" means (i) with respect to any Purchased Asset which is
an Eligible Asset as of any date of determination, the market price as
determined by the Buyer in its sole discretion (marked to market daily at the
Buyer's sole discretion) and (ii) with regard to any Purchased Asset which is
not an Eligible Asset, zero.
"Material Adverse Change" means any event, development or circumstance
(including but not limited to any pending litigation) that has had or could
reasonably be expected to have a material adverse effect on the business,
assets, property, condition (financial or otherwise), or prospects of ABFS and
its Affiliates taken as a whole or the value of the Purchased Assets, the 2003-2
IO or the Collateral taken as a whole or (b) the validity or enforceability of
any of the Program Documents or the rights or remedies of the Buyer thereunder.
"Material Adverse Effect" means (a) a Material Adverse Change, (b) a
material impairment of the ability of the Seller or any Affiliate thereof that
is a party to any Program Document to perform under any Program Document and to
avoid any Event of Default; (c) a material adverse effect upon the legality,
validity, binding effect or enforceability of any Program Document against the
Seller or any Affiliate that is a party to any Program Document; or (d) a
material adverse effect upon the marketability of a material portion of the
Purchased Assets, the other Collateral and the 2003-2 IO taken as a whole.
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"Monitoring Fee" shall have the meaning assigned thereto on Schedule II
hereto.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Seller or any ERISA Affiliate has any liability
or obligation, or has within any of the preceding five plan years had any
liability or obligation whether contingent or otherwise.
"Net Worth" means, with respect to any Person, the excess of such
Person's total assets over such Person's total liabilities, determined in
accordance with GAAP.
"Non-Excluded Taxes" shall have the meaning assigned to such term in
Section 8(a) hereof.
"November Distributions" shall have the meaning assigned thereto in the
definition of Initial Securities Purchase Price.
"Obligations" means (a) all of the Seller's obligations to pay the
Price Differential (and other amounts due and owing) and the Repurchase Price on
or prior to the Termination Date, and other obligations and liabilities of the
Seller to the Buyer or its Affiliates (including all Fees) arising under, or in
connection with, the Program Documents, whether now existing or hereafter
arising; (b) any and all sums paid by the Buyer or on behalf of the Buyer
pursuant to the Program Documents in order to preserve any Purchased Asset or
its interest therein; (c) in the event of any proceeding for the collection or
enforcement of any of the Seller'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 the 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 the Seller's
indemnity obligations to the Buyer pursuant to the Program Documents.
"Other Taxes" shall have the meaning set forth in Section 8(b).
"Owner" means each owner of a Trust Certificate.
"Owner Trustee" means, with respect to the Seller, Wilmington Trust
Company.
"Permanent Margin Payments" shall have the meaning set forth in Section
5.
"Person" means 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.
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"Plan" means any pension plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code which is
maintained for employees of the Seller or any ERISA Affiliate or as to which the
Seller or any ERISA Affiliate has or may have an obligation or liability,
whether direct or indirect.
"Pledge Agreements" means, collectively, (i) the Pledge Agreement,
dated as of the Closing Date, executed by ABFS in favor of the Buyer, pledging
to Buyer the stock of Holdings and (ii) the Pledge Agreement, dated as of the
Closing Date, executed by the Seller in favor of the Buyer, pledging to Buyer
the stock of ABFS 2003-2, Inc.
"Price Differential" means, as of any date of determination, the
aggregate amount obtained by daily application of the Pricing Rate (or during
the continuation of an Event of Default, by daily application of the Default
Rate) to the Securities Purchase Price plus any other outstanding Obligations on
a 360-day-per-year basis for the actual number of days elapsed during the period
commencing on (and including) the Closing Date and ending on (but excluding)
such date of determination (reduced by any amount of such Price Differential in
respect of such period previously paid by the Seller to the Buyer).
"Pricing Rate" shall have the meaning set forth on Schedule II hereto.
"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.
"Program Documents" means this Agreement, the Custodial Agreement, the
Pledge Agreements, the Security Agreement, the Trust Agreements, the Escrow
Agreement, the Trustee Direction Letters, the 2003-2 Officer's Certificate, the
Side Letter and any other agreement entered into by the Seller and/or any of its
Affiliates, on the one hand, and the Buyer and/or any of its Affiliates 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.
"Purchased Assets" means the securities set forth on Schedule I hereto
(including all distributions on such securities on or after November 1, 2004),
together with the related Records and other Collateral. The term "Purchased
Assets" also shall include (i) any and all rights of the Seller, ABC and/or
applicable affiliates thereof to effect a cleanup call with respect to the
securitization(s) to which such Purchased Assets relate, and (ii) any and all
rights to purchase delinquent loans in the underlying securitizations
(including, without limitation, for the purpose of managing delinquency and loss
percentages used to calculate whether a "Trigger Event" or a similar event has
occurred under the related pooling and servicing agreement or the related sale
and servicing agreement pursuant to which the Purchased Assets were issued);
provided, that the Buyer shall only control the exercise of the rights set forth
in clause (ii) to purchase delinquent loans from the related trust upon an Event
of Default hereunder and upon written notice to the Seller of the decision by
Buyer to so control the exercise of such rights.
"Records" means all instruments, agreements and other books, records,
and reports and data generated by other media for the storage of information
maintained by the Seller or any other person or entity on behalf of the Seller
with respect to a Purchased Asset. Records shall include the certificates with
respect to any Purchased Asset and any other instruments necessary to document
or service a Purchased Asset.
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"Relevant System" means (a) The Depository Trust Corporation in New
York, New York, or (b) such other clearing organization or book-entry system as
is designated in writing by the Buyer.
"Repurchase Option Premium" has the meaning set forth on Schedule II
hereto.
"Repurchase Price" means, as of any date of determination, the sum of
(A) the Securities Purchase Price, (B) any accrued and unpaid Price
Differential, and (C) any accrued and unpaid fees (including without limitation
any due and unpaid Repurchase Option Premium, Exit Fee, Additional Exit Fee or
Monitoring Fee), expenses, breakage costs and/or indemnity amounts. The
Purchased Assets shall be transferred from the Buyer to the Seller on the
Termination Date in exchange for the Repurchase Price and the payment of any
other outstanding Obligations, as more fully described herein.
"Responsible Officer" means, with respect to the Seller, any President,
Executive Vice President, Senior Vice President, Assistant Vice President,
Treasury, Secretary or Assistant Secretary of the Seller.
"SEC" means the United States Securities and Exchange Commission.
"Securities Purchase Price" means, as of any date of determination, the
Initial Securities Purchase Price less the sum of all Permanent Margin Payments
made by Seller to Buyer (if any) as of such date.
"Security Agreement" means the Security Agreement, dated as of the
Closing Date, executed by ABC in favor of the Buyer, regarding servicer
advances, fees and reimbursement rights under ABFS's outstanding securitizations
and warehouse facilities.
"Side Letter" means that certain Side Letter, dated as of the Closing
Date, between the Buyer and ABFS.
"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.
"Termination Date" has the meaning assigned thereto in Section 27.
"Total Assets" as to the Seller, means the consolidated total assets of
the Seller, as determined in accordance with GAAP.
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"Total Liabilities" as to the Seller, means the consolidated total
liabilities of the Seller, as determined in accordance with GAAP.
"Transaction" has the meaning assigned thereto in Section 2(a).
"Transaction Notice" means a written request of the Seller to enter
into the Transaction, in the form attached as Exhibit D hereto, which is
delivered to the Buyer.
"Trust 2004-1" means ABFS Warehouse Trust 2004-1.
"Trust 2004-2" means ABFS Warehouse Trust 2004-2.
"Trust Agreements" means, collectively, (i) the 2004-1 Trust Agreement
and (ii) the 2004-2 Trust Agreement.
"Trustee Direction Letters" means the payment direction letters,
satisfactory to the Buyer in its sole discretion, from ABFS to the trustees with
respect to the securitizations underlying each of the Purchased Assets, signed
and acknowledged by each recipient thereof, directing all payments on the
Purchased Assets from November 2004 until the Termination Date to the Buyer.
"Trusts" means, collectively, (i) Trust 2004-1 and (ii) Trust 2004-2.
"Trust Certificates" shall mean the P Certificate and the R
Certificates (as defined in the 2004-1 Trust 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.
"Wet Warehouse Loan Agreement" means that certain Loan and Security
Agreement, to be entered into between the Buyer, as lender thereunder, and the
Seller, as borrower thereunder, to become effective (if at all) no later than
November 22, 2004.
(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
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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 the Buyer. 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 the Seller.
Except where otherwise provided in this Agreement any determination, statement
or certificate by the Buyer or an authorized officer of the 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 the Seller is required to provide any document to the
Buyer under the terms of this Agreement, the relevant document shall be provided
in writing or printed form to the Buyer unless the Buyer requests otherwise. At
the request of the Buyer, the document shall be provided in electronic form or
both printed and electronic form. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Buyer and the Seller, and is the
product of both 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 the
Buyer may give or withhold, or give conditionally, approvals and consents, may
be satisfied or unsatisfied, and may form opinions and make determinations at
their absolute discretion. Any requirement of good faith or judgment by the
Buyer shall not be construed to require the Buyer to request or await receipt of
information or documentation not immediately available from or with respect to
the Seller, a servicer of the Purchased Assets, any other Person or the
Purchased Assets themselves.
2. THE TRANSACTION.
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(a) The Buyer, upon the terms and conditions set forth herein, hereby
enters into a transaction (the "Transaction"), pursuant the terms set forth
herein, in which the Seller transfers to the Buyer the Purchased Assets, against
the Buyer's payment of the Initial Securities Purchase Price (less the Holdback
Amount, the Repurchase Option Premium and $250,000 for incremental Work Fees,
all of which will be netted out of such payment) to the Seller, with a
simultaneous agreement, as set forth in this Agreement, by the Buyer to transfer
to the Seller such Purchased Assets on the Termination Date, against the
Seller's complete payment of the Repurchase Price and any other Obligations to
the Buyer. The Transaction shall be evidenced by the Transaction Notice,
executed by the Seller and acknowledged and agreed to by the Buyer.
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(b) The Seller shall repurchase Purchased Assets from the Buyer on the
Termination Date by paying to the Buyer the Repurchase Price and any other
Obligations by such date. Such obligation to repurchase subsists without regard
to any prior or intervening liquidation or foreclosure with respect to each
Purchased Asset (but liquidation or foreclosure proceeds received by the Buyer
shall be applied to reduce the Repurchase Price except as otherwise provided
herein). The Seller is obligated to obtain the Purchased Assets from the Buyer
or its designee at the Seller's expense on (or after) the Termination Date.
3. [RESERVED]
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4. FEES; PAYMENT AND TRANSFER.
--------------------------
(a) The Seller agrees to pay the Buyer all Fees owing by the Seller (or
any affiliate thereof) to the Buyer as and when such Fees become due (as more
fully set forth on Schedule II hereto).
(b) The Seller agrees to pay the accrued Price Differential to the
Buyer no less frequently than on the 25th day of each month.
(c) Unless otherwise agreed, all transfers of funds hereunder shall be
in immediately available funds. Any Price Differential received by the Buyer
after 5:00 p.m. New York City time shall be applied on the next succeeding
Business Day, in which case the Seller agrees to pay the Buyer an additional
amount equal to one day's Price Differential.
5. MARGIN MAINTENANCE.
------------------
(a) If on any date the Market Value of the Purchased Assets is less
than Buyer's Margin Amount (a "Margin Deficit"), then the Buyer may make a
margin call on the Seller (a "Margin Call"), specifying, as applicable, the
amount of the Margin Deficit and how payment of the Margin Deficit will be
applied to reduce the components of the Repurchase Price. If a Margin Call is
made, the Seller shall be obligated, within the time period set forth below, to
pay to the Buyer such amount of the outstanding Securities Purchase Price and
Price Differential thereon (and, if applicable, the then outstanding amounts
referred to in clause (C) of the definition of Repurchase Price) all as
specified by the Buyer and as is needed to eliminate the Margin Deficit (and the
portion of any such payment applied by the Buyer to the Securities Purchase
Price shall permanently reduce the Securities Purchase Price) (each such
payment, a "Permanent Margin Payment"). The Seller shall have two (2) Business
Days (not extending beyond the Termination Date) to satisfy any such Margin
Call. Any Income on the Purchased Assets may be applied by Buyer at its option
to make Permanent Margin Payments.
(b) Notice required pursuant to Section 5(a) may be given by any means.
The failure of the 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 the Buyer to do so at a later date.
The Seller and the Buyer agree that a failure or delay by the Buyer to exercise
its rights hereunder shall not limit or waive the Buyer's rights under this
Agreement or otherwise existing by law or in any way create additional rights
for the Seller.
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6. INCOME PAYMENTS.
---------------
All Income payments made on the Purchased Assets on or after November
1, 2004 shall be held by Buyer and applied first, to pay the accrued and unpaid
Fees due to Buyer; second, to pay the accrued and unpaid Price Differential; and
third, to pay any remaining Obligations (which, for the purposes of this Section
6, shall include the Securities Purchase Price; all such payments pursuant to
clause third above to be considered Permanent Margin Payments which shall
permanently reduce the Securities Purchase Price by the amount so paid) until
all Obligations are indefeasibly satisfied in full.
7. SECURITY INTEREST.
-----------------
(a) The Seller and the Buyer intend that the Transaction hereunder be a
sale to the Buyer of the Purchased Assets and not a loan from the Buyer to the
Seller secured by the Purchased Assets. However, in order to preserve the
Buyer's rights under this Agreement in the event that a court or other forum
recharacterizes the Transaction hereunder as other than a sale, and as security
for the Seller's performance of all of its Obligations, the Seller hereby grants
the Buyer a fully perfected first priority security interest in the Purchased
Assets, the Records, and all related Property, insurance, Income, custodial
accounts, escrow accounts (including any interest of the Seller in escrow
accounts) and any other contract rights, payments, rights to payment (including
payments of interest or finance charges) general intangibles, all "securities
accounts" (as defined in Section 8-501(a) of the Uniform Commercial Code) to
which the related securities are or may be credited, all "investment property",
"accounts" and "chattel paper" as defined in the Uniform Commercial Code as in
effect from time to time relating to or constituting any and all of the
foregoing, and all other assets relating to the Purchased Assets (including,
without limitation, any other accounts) or any interest in the Purchased Assets
and any proceeds and distributions with respect to any of the foregoing
(collectively, the "Collateral"). The parties acknowledge and agree that the
perfection of such security interest is intended to be accomplished through
possession of the related Purchased Assets by the Buyer or by any other Person
on the Buyer's behalf. The Buyer or their designee shall, as applicable, hold
any book-entry securities constituting Collateral (the "Book-Entry Securities")
through the facilities of a Relevant System, as "securities intermediary" (as
defined in Section 8-102(a)(14) of the Uniform Commercial Code) and credit them
to a "securities account" (as defined in Section 8-501(a) of the Uniform
Commercial Code) exclusively in the name of the Buyer.
(b) The Buyer, as "entitlement holder" (as defined in Section 8-102(a)
of the Uniform Commercial Code) with respect to any Book-Entry Securities, shall
be entitled to receive all cash dividends and distributions paid in respect
thereof. Unless an Event of Default shall have occurred and be continuing, the
Seller shall be entitled to exercise all voting and corporate rights with
respect to the Book-Entry Securities, and the Buyer shall exercise such rights
on the Seller's behalf during the time in which the Buyer is the registered
holder of such Book-Entry Securities, provided, however, that no vote shall be
cast or corporate right exercised or other action taken which, in the Buyer's
judgment, would impair the Book-Entry Securities or which would be inconsistent
with or result in any violation of any provision of this Agreement.
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Upon the final termination of the Transaction and the payment of any
amounts due hereunder to the Buyer, the Buyer shall register or cause to be
registered in the name of the Seller or its designee the Book Entry Securities.
8. TAXES; TAX TREATMENT.
--------------------
(a) All payments made by the Seller under this Master Repurchase
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of any present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities (including penalties, interest and
additions to tax) with respect thereto imposed by any Governmental Authority,
excluding income taxes, branch profits taxes, franchise taxes or any other tax
imposed on the net income by the United States, a state or a foreign
jurisdiction under the laws of which the Buyer is organized and/or is operating,
or any political subdivision thereof (collectively, "Non-Excluded Taxes"), all
of which shall be paid by the Seller for its own account not later than the date
when due. If the Seller is required by law or regulation to deduct or withhold
any Non-Excluded Taxes from or in respect of any amount payable hereunder, it
shall: (a) make such a deduction or withholding; (b) pay the amount so deducted
or withheld to the appropriate Governmental Authority not later than the date
when due; (c) deliver to the Buyer promptly, original tax receipts and other
evidence satisfactory to the Buyer of the payment when due of the full amount of
such Non-Excluded Taxes; (d) pay to the Buyer for the ratable benefit of the
Buyer such additional amount as may be necessary so that the Buyer receives,
free and clear of all Non-Excluded Taxes, a net amount equal to the amount it
would have received under this Agreement if no such deduction or withholding had
been made.
(b) In addition, the Seller agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (including, without limitation, mortgage recording taxes, transfer taxes
and similar fees) imposed by the United States or any taxing authority thereof
or therein that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Master
Repurchase Agreement (such taxes, collectively, the "Other Taxes").
(c) The Seller agrees to indemnify the Buyer for the full amount of
Non-Excluded Taxes (including additional amounts with respect thereto) and Other
Taxes, and the full amount of Non-Excluded Taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 8, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, provided that the Buyer shall have provided the Seller with evidence,
reasonably satisfactory to the Seller, of payment of Taxes or Other Taxes, as
the case may be.
(d) Any Buyer that is not incorporated under the laws of the United
States, any State thereof, or the District of Columbia (a "Foreign Buyer") shall
provide the Seller with properly completed United States Internal Revenue
Service ("IRS") Form W-8BEN or W-8SCI or any successor from prescribed by the
IRS, certifying that such Foreign Buyer is entitled to benefits under an income
tax treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States on or prior to the date upon which each such
Foreign Buyer becomes the Buyer. Each Foreign Buyer will resubmit the
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appropriate form on the earliest of (A) the third anniversary of the prior
submission or (B) on or before the expiration of thirty (30) days after there is
a "change in circumstances" with respect to such Foreign Buyer as defined in
Treas. Reg. Section 1.1441(e)(4)(ii)(D). For any period with respect to which a
Foreign Buyer has failed to provide the Seller with the appropriate form or
other relevant document pursuant to this Section 8(d) (unless such failure is
due to a change in treaty, law, or regulation occurring subsequent to the date
on which a form originally was required to be provided), such Foreign Buyer
shall not be entitled to any "gross up" of Non-Excluded Taxes or indemnification
under Section 8(c) with respect to Non-Excluded Taxes imposed by the United
States; provided, however, that should a Foreign Buyer, which is otherwise
exempt from a withholding tax, become subject to Non-Excluded Taxes because of
its failure to deliver a form required hereunder, the Seller shall take such
steps as such Foreign Buyer shall reasonably request to assist such Foreign
Buyer to recover such Non-Excluded Taxes.
(e) Without prejudice to the survival or any other agreement of the
Seller hereunder, the agreements and obligations of the Seller contained in this
Section 8 shall survive the termination of this Master Repurchase Agreement.
Nothing contained in this Section 8 shall require any Buyer to make available
any of its tax returns or other information that it deems to be confidential or
proprietary.
(f) Each party to this Master Repurchase Agreement acknowledges that it
is its intent for purposes of U.S. federal, state and local income and franchise
taxes to treat the Transaction as indebtedness of the Seller that is secured by
the Purchased Assets and that the Purchased Assets are owned by the Seller in
the absence of an Event of Default by the Seller. All parties to this Master
Repurchase Agreement agree to such treatment and agree to take no action
inconsistent with this treatment unless required by law.
9. CONDITIONS PRECEDENT.
--------------------
(a) As conditions precedent to the Transaction, the Buyer shall have
received, or the following shall have been accomplished, on or before the
Closing Date, in form and substance satisfactory to the Buyer and duly executed
by the Seller and any third party thereto:
(i) Each of 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) The P Certificate with respect to Trust 2004-1;
(iii) Evidence that all other actions necessary or, in the opinion
of the Buyer, desirable to perfect and protect the 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;
(iv) A certified copy of the Seller's corporate resolutions
approving the Program Documents and the Transaction, and all documents
evidencing other necessary corporate action or governmental approvals
as may be required in connection with the Program Documents;
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(v) Opinions of the Seller's counsel as to such matters as the
Buyer may reasonably request and in form and substance acceptable to
the Buyer, including but not limited to (A) the perfection of the
Buyer's security interest and Uniform Commercial Code filings, (B) the
enforceability of the Program Documents, (C) the true sale or
contribution of the Purchased Assets from (1) ABFS and its Subsidiaries
to Trust 2004-1 and (2) Trust 2004-1 to the Seller, (D) the
nonconsolidation of (1) ABFS or its Subsidiaries with Trust 2004-1 and
(2) Trust 2004-1 and the Seller, (E) the status under the Code of this
Agreement as a "securities contract", (F) the Investment Company Act
and (G) from Xxxxxxxx, Xxxxxx and Fingersh regarding the Trusts;
(vi) A description of the intended use by Seller of the proceeds
represented by the Initial Securities Purchase Price, in form and
substance satisfactory to the Buyer in its sole discretion;
(vii) Copies of certified resolutions of the Board of Directors of
ABFS and the other ABFS Entities party hereto (including any applicable
committees thereof) authorizing and approving this Agreement and the
Transaction, in form and substance satisfactory to the Buyer;
(viii) the Buyer and all participants herein or lenders thereto
shall have received all Fees (including, without limitation, the
Repurchase Option Premium) required to be paid, and reimbursement for
all expenses for which invoices have been presented;
(ix) The Buyer shall have received and determined as satisfactory,
prior to the Closing Date, (i) ABFS's annual report and final audited,
consolidated financial statements for the fiscal year ended June 30,
2004 substantially in the form filed or to be filed with the SEC on
Form 10-K, together with the opinion thereon of BDO Xxxxxxx, LLP; and
(ii) all correspondence between ABFS and the SEC regarding ABFS's
registration statement on Form S-2 filed on October 15, 2004 regarding
its retail secured subordinated indebtedness;
(x) the Buyer or their designee shall have received with respect to
the related Purchased Assets or the 2003-2 IO (if applicable) (unless
otherwise specified in this Agreement) the following, in form and
substance satisfactory to the Buyer and (if applicable) duly executed:
(1) The definitive certificate representing ownership of the
securities included in the Purchased Assets in the name of
the Buyer;
(2) Each Governing Agreement with respect to such Purchased
Asset and 2003-2 IO, a list is set forth on Schedule III
hereto and Buyer shall have delivered all certificates
required of Buyer under all such Governing Agreements;
(3) Copies of any bond insurer consents with respect to the
transfer of the Purchased Assets to the Seller and from the
Seller to the Buyer, all in form and substance satisfactory
to the Buyer in its sole discretion;
- 15 -
(4) Copies of the Trustee Direction Letters; and
(5) Such certificates, opinions of counsel or other
documents executed in connection with the Transaction
by or on behalf of any ABFS Entity or any other
documents that the Buyer may reasonably request in
connection therewith;
(xi) No Default or Event of Default shall have occurred and be
continuing;
(xii) All representations and warranties in the Program
Documents hereof shall be true and correct on the Closing Date;
(xiii) No event or events shall have been reasonably determined
by the Buyer to have occurred resulting in the effective absence of a
"repo market" for a period of at least two (2) consecutive days
respecting loans or mortgage-backed or asset-backed securities such
that the Buyer is or was unable after good faith efforts to finance or
fund purchases under this Agreement through the "repo market" or the
Buyer's customers;
(xiv) ABFS shall have obtained a "key man" life insurance policy
on the life of Xxxxxxx X. Xxxxxxxx, to be collaterally assigned to the
Buyer, in an amount at least equal to $2,000,000;
(xv) Buyer shall receive prior written notice from the insurer
of any termination of ABFS's errors and omissions insurance and
fidelity bond;
(xvi) ABFS shall have received one or more definitive warehouse
commitments (or similar financing arrangements) for one or more
Additional Warehouse Lines, which Additional Warehouse Lines shall be
required to close (and at least one which shall have funded) not later
than the Closing Date, and ABFS shall have delivered to the Buyer an
Officer's Certificate certifying the same;
(xvii) There shall not have occurred and be continuing one or
more events that, in the reasonable judgment of the Buyer,
constitute(s) or should reasonably be expected to constitute, a
Material Adverse Effect;
(xviii) The Seller shall have registered the applicable Purchased
Assets in the name of the Buyer. In connection with any account to
which the Purchased Assets are credited or otherwise held, the Seller
shall execute and deliver such other and further documents or
instruments necessary, in the reasonable opinion of the Buyer, to
effect and perfect a legally valid delivery of the relevant interest
granted therein to Buyer hereunder. Any account to which the Purchased
Assets are credited or otherwise shall be designated as the Buyer may
direct;
(xix) Chrysalis and Clearwing Capital, LLC shall have released
all of their respective interests in the Purchased Assets and the
servicer advances and reimbursement rights granted to ABFS Warehouse
Trust 2003-1 on October 14, 2003, such release to be in form and
substance satisfactory to the Buyer; and
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(xx) Information and/or documents satisfactory to the Buyer in
its sole discretion shall have been provided by Seller to Buyer
regarding and/or evidencing any outstanding Liens with respect to the
2003-2 IO (including but not limited to the 2003-2 Officer's
Certificate).
(b) The following shall be ongoing conditions required to be satisfied
by the Seller throughout the term of this Agreement (including as of
the Closing Date):
(i) No Default or Event of Default shall have occurred and be
continuing;
(ii) All representations and warranties in the Program Documents
hereof shall be true and correct;
(iii) No event or events shall have been reasonably determined by
the Buyer to have occurred resulting in the effective absence of a
"repo market" for a period of at least two (2) consecutive days
respecting loans or mortgage-backed or asset-backed securities such
that the Buyer is or was unable to finance or fund purchases under this
Agreement through the "repo market" or the Buyer's customers;
(iv) There shall not have occurred and be continuing one or more
events that, in the reasonable judgment of the Buyer, constitute(s) or
should reasonably be expected to constitute, a Material Adverse Effect;
and
(v) The Buyer shall have received (A) the financial statements
required pursuant to Section 13(c) hereof; (B) current financial
statements from the servicers of ABFS's securitizations and warehouse
facilities, prepared in accordance with GAAP, along with
certifications, which must evidence that each such servicer has a
positive net worth (and cover related matters); (C) all data regarding
ABFS's or any of its Subsidiaries' outstanding securitizations as Buyer
in its sole discretion may request (including all servicer or trustee
reports regarding same); (D) any other documents or information
requested by Buyer regarding the documents referred to in clauses (B)
and (C); and (E) any correspondence between ABFS and the SEC which the
Buyer in its sole discretion may request.
(c) The following shall be conditions subsequent required to be
satisfied by the Seller on or before Monday, November 22, 2004:
(i) An independent director satisfactory to Buyer shall have been
appointed with respect to Holdings and amendments to the organizational
documents of Holdings satisfactory to Buyer shall have been adopted;
and
(ii) Payment direction letters shall have been delivered by Seller
to all account debtors and other applicable parties (including but not
limited to JPMorgan) with respect to servicing advances and
reimbursements securing the Transaction, all in form and substance
satisfactory to the Buyer, and such direction letters shall have been
acknowledged and agreed to in writing by the recipients thereof.
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10. RELEASE OF PURCHASED ASSETS.
---------------------------
Upon timely payment in full of the Repurchase Price and all other
Obligations owing with respect to the Purchased Assets by the Termination Date,
if no Event of Default has occurred and is continuing, the Buyer shall transfer
the Purchased Assets to the Seller or its nominee free and clear of any security
interest of the Buyer.
11. RELIANCE.
--------
With respect to the Transaction, the Buyer may conclusively rely upon,
and shall incur no liability to the Seller in acting upon, any request or other
communication that the Buyer reasonably believes to have been given or made by a
person authorized to enter into the Transaction on the Seller's behalf, provided
that such person is listed on the certificate delivered pursuant to subsection
9(a)(iv) hereof. In each such case, the Seller hereby waives the right to
dispute the Buyer's record of the terms of such request or other communication.
12. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Seller hereby represents and warrants that:
(a) Due Organization and Qualification. The Seller is duly organized,
validly existing and in good standing under the laws of the jurisdiction under
whose laws it is organized. The Seller 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, except where failure to so qualify, be in good standing or to so
obtain would not be reasonably likely to have a Material Adverse Effect. Neither
Seller nor Trust 2004-1 is an entity that may be a debtor under Title 11 of the
United States Code, as amended.
(b) Power and Authority. The Seller 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
Transaction.
(c) Due Authorization. The execution, delivery and performance of the
Program Documents by the Seller has 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 the Seller or any other ABFS Entity or the consummation of the
Transaction:
(i) conflicts with, breaches or violates any provision of the
organizational documents or material agreements of the Seller or such
other ABFS Entity or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to the Seller or its properties;
(ii) constitutes a material default by the Seller or such other
ABFS Entity under any loan or repurchase agreement, mortgage, indenture
or other agreement or instrument to which the Seller is a party or by
which it or any of its properties is or may be bound or affected; or
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(iii) results in or requires the creation of any Lien upon or in
respect of any of the assets of the Seller or such other ABFS Entity
except the Lien relating to the Program Documents.
(e) Legal Proceedings. There is no action, proceeding or investigation
by or before any court, governmental or administrative agency or arbitrator
affecting any of the Purchased Assets, the 2003-2 IO, the Seller or any of its
Affiliates, pending or threatened, which is reasonably likely to be adversely
determined and which, if decided adversely, would have a Material Adverse
Effect.
(f) Valid and Binding Obligations. Each of the Program Documents to
which the Seller is a party, when executed and delivered by the Seller, will
constitute the legal, valid and binding obligations of the Seller enforceable
against the Seller 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 the Seller, ABFS,
Holdings and ABC, copies of which have been furnished to the 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 the Seller 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 the date of the most recent financial statements, there has been no
Material Adverse Change in such financial condition or results of operations.
Except as disclosed in such financial statements, the Seller is not 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 the Seller, provided, to the extent that the September 30, 2004
financial statements reflect a loss of between $25,000,000 and $30,000,000, the
existence and amount of such loss alone shall not constitute a Material Adverse
Change.
(h) Accuracy of Information. None of the documents or information
prepared by or on behalf of the Seller or any of its Affiliates and provided by
the Seller or any of its Affiliates to the Buyer relating to the Seller's or any
such Affiliate's financial condition contain any statement of a material fact
with respect to the Seller or any such Affiliate or the Transaction 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 the Seller or any such Affiliate
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
(including bond insurers in the securitizations relating to the Purchased
Assets), is required in connection with the execution, delivery and performance
by the Seller of this Agreement or the consummation by the Seller of any other
Program Document, other than any that have heretofore been obtained, waived,
given or made.
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(j) Compliance With Law, Etc. No practice, procedure or policy employed
or proposed to be employed by the Seller in the conduct of its businesses
violates any law, regulation, judgment, agreement, order or decree applicable to
it which, if enforced, would result in a Material Adverse Effect.
(k) Solvency; Fraudulent Conveyance. The Seller is solvent and will not
be rendered insolvent by the Transaction and, after giving effect to the
Transaction, the Seller will not be left with an unreasonably small amount of
capital with which to engage in its business. The Seller does not intend to
incur, or believe that it has incurred, debts beyond its ability to pay such
debts as they mature. The Seller is not 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 the Seller or any of its assets. The amount of consideration being
received by the Seller upon the sale of the Purchased Assets to the Buyer
constitutes reasonably equivalent value and fair consideration for such
Purchased Assets. The Seller is not transferring any Purchased Assets with any
intent to hinder, delay or defraud any of its creditors.
(l) Investment Company Act Compliance. None of the Seller, Trust
2004-1, ABFS Warehouse Trust 2003-1, ABFS, ABC or Holdings is required to be
registered as an "investment company" as defined under the Investment Company
Act or as an entity under the control of an "investment company" as defined
under the Investment Company Act.
(m) Taxes. Each ABFS Entity or applicable Affiliate thereof has filed
all federal and state tax returns 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 with respect to the Purchased Assets (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 any ABFS
Entity or applicable Affiliate thereof in connection with the Transaction and
the execution and delivery of the Program Documents have been paid.
(n) Additional Representations. With respect to each Purchased Asset
and the 2003-2 IO, the Seller hereby makes all of the representations and
warranties set forth in Exhibit B continuously while such Purchased Asset or the
2003-2 IO is subject to the Transaction; and the Seller understands that if the
substance of any such representation or warranty ceases to be true because of
events occurring while such Purchased Asset is subject to the Transaction, the
Market Value thereof could be adversely affected.
(o) No Broker. The Seller has not dealt with any broker, investment
banker, agent, or other person, except for the 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 the Seller has dealt with any
broker, investment banker, agent, or other person, except for the 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 the Seller.
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(p) Net Worth. The Net Worth of ABFS as of the fiscal quarter ending
September 30, 2004 was at least $10,000,000.
(q) True Sales. Any and all interest of any ABFS Entity or any
Affiliate thereof (other than the Seller) in, to and under the Purchased Assets
had, immediately prior to the Transaction, been sold, transferred, conveyed and
assigned to the Seller pursuant to a legal true sale or contribution and no ABFS
Entity nor any other Person (other than the Seller) retained, immediately prior
to the Transaction, any interest in such Purchased Assets and this is covered by
an opinion of counsel to that effect in form and substance reasonably acceptable
to the Buyer.
(r) Characterization of the Transaction. The Transaction is a "forward
contract" as that term is defined in Section 101 of Title 11 of the USC, and a
"securities contract" as that term is defined in Section 741 of Title 11 of the
USC. The Buyer's right to liquidate the Purchased Assets delivered to it in
connection with the Transaction hereunder or to exercise any other remedies
pursuant to Section 19 hereof is a contractual right to liquidate the
Transaction as described in Sections 555 of Title 11 of the USC.
The representations and warranties set forth in this Agreement shall
survive transfer of the Purchased Assets to the Buyer and shall continue for so
long as the Purchased Assets are subject to this Agreement.
13. COVENANTS.
---------
On and as of the date of this Agreement and continuously until this
Agreement is no longer in force with respect to the Transaction, each ABFS
Entity hereby covenants with the Buyer as follows:
(a) Preservation of Existence; Compliance with Law. Such ABFS Entity
shall:
(i) Preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises necessary for the
operation of its business;
(ii) Comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders, whether now in effect
or hereafter enacted or promulgated by any applicable Governmental
Authority (including, without limitation, all environmental laws), if
failure to comply with such requirements would be reasonably likely
(either individually or in the aggregate) to have a Material Adverse
Effect; and
(iii) Maintain all licenses, permits or other approvals necessary
for the Seller to conduct its business and to perform its obligations
under the Program Documents, and conduct its business strictly in
accordance with applicable law, except where failure to do so would not
be reasonably likely to have a Material Adverse Effect.
(b) Notice of Proceedings or Adverse Change. Such ABFS Entity shall
give notice to the Buyer promptly after a Responsible Officer thereof has any
knowledge of:
(i) the occurrence of any Default or Event of Default or default
or breach by such ABFS Entity of any obligation under any Program
Document, or the occurrence or existence of any event or circumstance
that such ABFS Entity reasonably expects will with the passage of time
become a Default, Event of Default or such a default or breach by it;
- 21 -
(ii) any change in the insurance coverage required of such ABFS
Entity pursuant to any Program Document, with copy of evidence of same
attached;
(iii) (a) any default or event of default under any Indebtedness of
it, (b) within ten (10) calendar days after service of process with
respect to the same, any litigation, investigation, regulatory action
or proceeding that is pending or threatened by or against such ABFS
Entity in any federal or state court or before any Governmental
Authority which, if not cured or if adversely determined, would
reasonably be expected to have a Material Adverse Effect or constitute
a Default or Event of Default, or (c) any Material Adverse Effect with
respect to the Seller or ABFS;
(iv) within ten (10) calendar days after service of process with
respect to the same, any litigation or proceeding that is pending or
threatened against such ABFS Entity (a) in which the amount involved
exceeds $50,000 and is not covered by insurance, in which injunctive or
similar relief is sought, or which, would reasonably be expected to
have a Material Adverse Effect and (b) any litigation or proceeding
that is pending or threatened in connection with any Collateral, which,
if adversely determined, would reasonably be expected to have a
Material Adverse Effect;
(v) and, as soon as reasonably possible, notice of any of the
following events:
(1) any material change in accounting policies or financial
reporting practices of the it;
(2) promptly upon receipt of notice or knowledge of any Lien
or security interest (other than security interests
created hereby) on, or claim asserted against, any of the
Collateral.
(vi) the occurrence of any material employment dispute and a
description of the strategy for resolving it; and
(vii) any event, circumstance or condition that has resulted, or
has the possibility of resulting, in a Material Adverse Effect.
(c) Financial Reporting. Such ABFS Entity shall maintain a system of
accounting established and administered in accordance with GAAP, and shall
clearly reflect therein the transfer of Purchased Assets to the Buyer. ABFS
shall furnish to the Buyer:
(i) Within ninety (90) days after the close of each fiscal year,
the consolidated, audited balance sheets of ABFS as of the end of each
fiscal year, 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, all in reasonable detail and accompanied by an
opinion of an accounting firm as to said financial statements;
- 22 -
(ii) Within forty-five (45) days after the close of each of ABFS's
first three fiscal quarters in each fiscal year unaudited balance
sheets and income statements, for the period from the beginning of such
fiscal year to the end of such fiscal year, subject, however, to normal
year-end adjustments and the inclusion of footnotes, and certified by
an executive officer of ABFS;
(iii) Within thirty (30) days after the end of each calendar month,
the unaudited balance sheets of ABFS as at the end of such period and
the related unaudited consolidated statements of income and retained
earnings and of cash flows for ABFS for such period and the portion of
the fiscal year through the end of such period, subject, however, to
year end adjustments and the inclusion of footnotes, and certified by
an executive officer of ABFS;
(iv) Simultaneously with the furnishing of each of the financial
statements to be delivered pursuant to subsection (ii) above, or
monthly upon the Buyer's request, a certificate in the form of Exhibit
A hereto and certified by an executive officer of ABFS and the Seller;
(v) Copies of any 10-Ks, 10-Qs, registration statements and other
"corporate finance" SEC filings (other than 8-Ks) by ABFS, within five
(5) Business Days of their filing with the SEC; provided, that, the
Seller or any Affiliate will provide the Buyer with a copy of the
annual 10-K filed with the SEC by ABFS no later than 90 days after the
end of the year; and
(vi) Promptly, from time to time, such other information regarding
the business affairs, operations and financial condition of ABFS and
the Seller as the Buyer may reasonably request.
(d) Further Assurances. Such ABFS Entity shall execute and deliver to
the Buyer all further documents, financing statements, agreements and
instruments, and take all further action that may be required under applicable
law, or that the Buyer may reasonably request, in order to effectuate the
transactions contemplated by this Agreement or, without limiting any of the
foregoing, to grant, preserve, protect and perfect the validity and
first-priority of the security interests created or intended to be created
hereby. Such ABFS Entity shall do all things necessary to preserve the
Collateral so that such ABFS Entity remains subject to a first priority
perfected security interest hereunder. Without limiting the foregoing, such ABFS
Entity 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. Such ABFS Entity will not allow any default
for which the Seller is responsible to occur under any Collateral document or
any Program Document and such ABFS Entity shall fully perform or cause to be
performed when due all of its obligations under any Collateral document or the
Program Documents.
(e) True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of ABFS or any of its
Subsidiaries or any of their officers furnished to the Buyer hereunder and
during the Buyer's diligence of ABFS (when taken as a whole) are and will be
true and complete and do not and will not omit to disclose any material facts
necessary to make the statements herein or therein, in light of the
circumstances in which they are made, not misleading. All required financial
statements, information and reports delivered by such ABFS Entity to the Buyer
pursuant to any Program Document shall, except as otherwise specifically
permitted herein, be prepared in accordance with GAAP.
- 23 -
(f) Books and Records. Such ABFS Entity shall, to the extent
practicable, maintain and implement administrative and operating procedures
(including without limitation, an ability to recreate records evidencing the
Collateral in the event of the destruction of the originals thereof), and keep
and maintain or obtain, as and when required, all documents, books, records and
other information reasonably necessary or advisable for the collection of all
the Collateral.
Upon reasonable advance notice from the Buyer, such ABFS Entity shall
(x) make any and all such Records available to the Buyer to examine any such
Records, either by their own officers or employees, or by agents or contractors,
or both, and make copies of all or any portion thereof, (y) permit the Buyer or
its authorized agents to discuss the affairs, finances and accounts of ABFS and
the Seller with their chief operating officers and chief financial officers and
to discuss the affairs, finances and accounts of ABFS and the Seller with their
independent certified public accountants.
(g) Illegal Activities. Such ABFS Entity has not engaged, is not
engaging, and shall not in the future engage in any conduct or activity that
could subject its assets to forfeiture or seizure, including without limitation,
conduct or activities in violation of the Racketeer Influenced and Corrupt
Organizations Act, the Bank Secrecy Act, anti-money laundering laws and
regulations (including the USA PATRIOT Act of 2001 and the regulations issued
thereto), or narcotic drug laws.
(h) Material Change in Business. Such ABFS Entity shall not make any
material change in the nature of its business as carried on at the date hereof.
(i) Assignment. Except as permitted herein, such ABFS Entity shall not
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 13(i) shall
not prevent any transfer of Purchased Assets in accordance with the Program
Documents.
(j) Transaction with Affiliates. Such ABFS Entity shall not enter into
any transaction, including without limitation any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (except
for (i) the acquisition of equity or stock or warrants of an Affiliate and (ii)
the payment of dividends, in either case, in the ordinary course of business,
and (iii) the purchase or sale of loans in the ordinary course of business which
is a true sale and does not constitute a fraudulent conveyance) unless such
transaction is (a) not otherwise expressly prohibited under this Agreement, (b)
in the ordinary course of its business and (c) upon fair and reasonable terms no
less favorable to the Seller than such ABFS Entity would obtain in a comparable
arm's length transaction with a Person which is not an Affiliate, or make a
payment that is not otherwise permitted by this Section 13(j) to any Affiliate.
- 24 -
(k) ERISA Matters. Such ABFS Entity shall not establish, maintain or
contribute to, any Plans or Multiemployer Plans.
(l) Consolidations, Mergers and Sales of Assets. Such ABFS Entity shall
not (i) consolidate or merge with or into any other Person or (ii) sell, lease
or otherwise transfer all or substantially all of its assets to any other
Person; provided that such ABFS Entity may merge or consolidate with (a) any
wholly owned subsidiary of it, or (b) any other Person if such ABFS Entity is
the surviving corporation or shareholders of the ABFS Entity immediately prior
to the merger continue to own a majority of the voting shares of the surviving
corporation; and provided further that if after giving effect thereto, no Event
of Default would exist hereunder.
(m) Reports. The Seller shall promptly deliver to the Buyer (unless
received from the Buyer) (a) any report received by or required to be delivered
by such ABFS Entity pursuant to the Governing Agreements at the same time as
required thereunder; (b) any notice of transfer of servicing under the Governing
Agreement and (c) any other such document or information as may be reasonably
requested by the Buyer from time to time.
(n) Taxes.
(i) Such ABFS Entity shall timely pay and discharge or cause to be
paid and discharged, when due, all taxes, assessments and governmental
charges or levies imposed upon such ABFS Entity or upon its income and
profits or upon any of its property, real, personal or mixed (including
without limitation, the Collateral) or upon any part thereof; as well
as any other lawful claims which, if unpaid, might become a Lien upon
such properties or any part thereof, except for any such taxes as are
appropriately contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves are
provided.
(ii) Such ABFS Entity shall file on a timely basis all tax and
information returns, reports and any other information statements or
schedules required to be filed by or in respect of such ABFS Entity in
any applicable jurisdiction.
(o) Subordinated Indebtedness. ABFS shall maintain an effective
registration statement with the SEC for retail subordinated indebtedness with
availability of at least $30,000,000 at all times. In addition, ABFS shall not
be unable for any reason to sell or issue subordinated debentures or senior
collateralized subordinated notes under any existing Sub-debt Indentures
(defined in the Chrysalis Loan Agreement as all indentures entered into prior to
the closing date of that credit facility between ABFS and U.S. Bank National
Association) or any other similar future indentures (A) on or after December 5,
2004 for more than three (3) consecutive weeks or (B) on more than two (2)
occasions during the term of this Agreement irrespective of the length of time
of such two occasions;
(p) NASDAQ Listing Status. ABFS shall at all times satisfy all
requirements for maintaining ABFS's Nasdaq listing status subject to the cure
period or appeal process provided in Section 18(t) hereof;
- 25 -
(q) Key Employees. ABFS shall retain Xxxxxxx X. Xxxxxxxx, Xxxxxxx Xxxxx
and Xxxxxx Xxxxxx in their current positions at ABFS at all times or shall
replace such employees with successors acceptable to the Buyer in its reasonable
discretion;
(r) Insurance. ABFS shall maintain at all time levels of general
liability, errors and omissions and fidelity bond coverage no lower than the
levels of coverage maintained by ABFS as of the Closing Date.
(s) Lines of Business. The Seller will not engage in any line or lines
of business activity other than the businesses specifically permitted by the
trust agreement constituting the Seller in effect as of the Closing Date.
(t) Maintenance of Separateness. The Seller acknowledges that the Buyer
is relying upon and will continue to rely on the separate legal identity and the
separate assets of the Seller as distinguished from any other Person. The Seller
agrees that its business shall be operated and its affairs shall be conducted in
such a manner that its assets and liabilities can be readily determined and
shall not be substantively consolidated with those of any other Person in the
event of the bankruptcy or insolvency of the Seller or such other Person.
Without limiting the foregoing, the Seller shall conduct its business in its own
name, maintain its books and records separate from those of any other Person,
maintain its bank accounts separate from those of any other Person, maintain
separate financial statements, showing its assets and liabilities separate and
apart from those of any other Person, pay its own liabilities and expenses only
out of its own funds, enter into a transaction with an Affiliate only if such
transaction is intrinsically fair, commercially reasonable and on the same terms
as would be available in an arm's length transaction with a Person or entity
that is not an Affiliate, allocate fairly and reasonably any overhead expenses
that are shared with an Affiliate, hold itself out as a separate entity,
maintain adequate capital in light of its contemplated business operations and
observe all other appropriate entity and other organizational formalities.
14. [RESERVED]
----------
15. CHANGE OF LAW.
-------------
If the 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 the Buyer's capital or on the capital of any Affiliate of the Buyer
as a consequence of such Change in Law on this Agreement, then from time to time
the Seller will compensate the Buyer or the Buyer's Affiliate, as applicable,
for such reduced rate of return suffered as a consequence of such Change in Law.
The Buyer shall provide the 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 the Seller will have the right to terminate the Transaction (and
in connection therewith pay the Exit Fee, Additional Exit Fee (if any), the
Repurchase Price and any other Obligations) as of a date selected by the Seller,
which date shall be deemed to be the Termination Date.
- 26 -
16. [RESERVED]
17. REPURCHASE TRANSACTIONS.
-----------------------
The 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 the Buyer's choice,
in all cases subject to the Buyer's obligation to reconvey the Purchased Assets
(and not substitutes therefor) on or before, as applicable, the Termination
Date.
18. EVENTS OF DEFAULT.
-----------------
With respect to the Transaction covered by or related to this
Agreement, the occurrence of any of the following events shall constitute an
"Event of Default":
(a) Failure to transfer Purchased Assets. The Seller fails to transfer
the Purchased Assets to the Buyer on the Closing Date (provided the Buyer has
tendered the related Securities Purchase Price and satisfied all other
conditions precedent pursuant to Section 9 hereof);
(b) Failure to make required payments and/or repurchase Purchased
Assets. The Seller fails to (i) pay the accrued Price Differential pursuant to
Sections 4 and 5 hereof or otherwise no less frequently than the 25th day of
each month and on the Termination Date, (ii) repurchase the Purchased Assets on
the Termination Date, (iii) pay any Fees when due or (iv) perform its
obligations under Sections 5, 6, 22 or 24 hereof;
(c) Immediate Covenant Default. The Seller fails to perform, comply
with or observe any term, covenant or agreement applicable to the Seller
contained in any of Sections 13(a)(i), (i) or (l);
(d) Additional Covenant Defaults. The Seller otherwise fails to comply
with any of the requirements of Section 13(a) (except (a)(i)) and such default
continues unremedied for a period of five (5) Business Days; or the Seller fails
to perform, observe or comply with any other covenant or agreement contained in
the Program Documents and such failure is not cured within ten (10) Business
Days;
(e) Representation and Warranty Breach. Any representation or warranty
made by ABFS or the Seller (or any of their officers) in the Program Documents
or in any other document prepared by the Seller pursuant thereto shall have been
incorrect or untrue in any material respect when made or repeated or deemed to
have been made or repeated;
(f) Appointment of Custodian or Similar Official or Occurrence of Other
Insolvency Events. A custodian, receiver, conservator, liquidator, trustee,
sequestrator or similar official for any ABFS Entity, including the Seller, or
of any ABFS Entity's Property, is appointed or takes possession of such
Property; or any ABFS Entity generally fails to pay such ABFS Entity's debts as
they become due, as applicable, or any ABFS Entity 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 any ABFS Entity; or any of ABFS's or any ABFS Entity's Property
is sequestered by court or administrative order; or a petition is filed against
any ABFS Entity 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 ABFS or an applicable Subsidiary a 30-day cure period shall be applicable to
stay or discharge such event;
- 27 -
(g) Filing of Bankruptcy or Similar Proceedings; Investment Company
Act. Any (i) ABFS Entity 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 any ABFS Entity, or of
all or any part of any ABFS Entity's Property; or makes an assignment for the
benefit of any ABFS Entity's creditors; or (ii) of the Seller, Trust 2004-1,
ABFS Warehouse Trust 2003-1, ABFS, ABC or Holdings shall be required to be
registered as an "investment company" as defined under the Investment Company
Act or as an entity under the control of an "investment company" as defined
under the Investment Company Act;
(h) Judgments. A final judgment or judgments for the payment of money
in excess of $50,000 in the aggregate (which is not insured) shall be rendered
against any ABFS Entity by one or more courts, administrative tribunals or other
bodies having jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay of
execution thereof shall not be procured, within 30 days from the date of entry
thereof, and no ABFS Entity shall, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed or bonded,
appeal therefrom and cause the execution thereof to be stayed during such
appeal;
(i) Condemnation or Other Governmental Action. 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 any ABFS Entity, or shall have taken any action to displace the
management of any ABFS Entity or to curtail its authority in the conduct of the
business of such ABFS Entity, or takes any action in the nature of enforcement
to remove, limit or restrict the approval of any ABFS Entity, as an issuer,
buyer or a seller/servicer of the Purchased Assets, the 2003-2 IO or similar
securities, and such action provided for in this subsection (i) shall not have
been discontinued or stayed within 30 days;
(j) Cross-Default. Any ABFS Entity shall be in breach of or default
under (i) any Indebtedness or Interest Rate Protection Agreement between any
ABFS Entity, on the one hand, and Buyer or any of the Buyer's Affiliates, on the
other hand, (ii) any Indebtedness of any ABFS Entity which default (1) involves
the failure to pay a matured obligation in an amount in excess of $50,000, or
(2) permits the acceleration of the maturity of obligations by any other party
to or beneficiary with respect to such Indebtedness, (iii) any agreement
allowing EMC Mortgage Corporation to make any claim or exercise any remedies
with respect to the 2003-2 IO or ABFS 2003-2, Inc., or (iv) any Program
Document;
- 28 -
(k) Material Adverse Change. Any Material Adverse Change shall have
occurred with respect to ABFS, in each case as determined by the Buyer in its
sole good faith discretion; or any other condition shall exist which, in the
Buyer's sole good faith discretion, constitutes a material impairment of the
Seller's ability to perform its obligations under this Agreement;
(l) Inability to Perform, or Repudiation of, Obligations. ABFS or the
Seller shall admit its inability to, or intention not to, perform any of its
Obligations;
(m) Liens. The Seller or any grantor of Collateral shall grant, or
suffer to exist, any Lien on any Collateral (except the Lien in favor of the
Buyer), or this Agreement shall for any reason cease to create a valid, first
priority security interest in any portion of the Purchased Assets or Collateral
purported to be covered hereby;
(n) Enforceability. For any reason, this Agreement at any time shall
not be in full force and effect in all material respects or shall not be
enforceable in all material respects in accordance with its terms, or any Lien
granted pursuant thereto shall fail to be perfected and of first priority, or
any Person (other than the Buyer) shall contest the validity, enforceability,
perfection or priority of any Lien granted pursuant thereto, or any party
thereto (other than the Buyer) shall seek to disaffirm, terminate, limit or
reduce its obligations hereunder;
(o) Going Concern. ABFS'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 ABFS as a "going concern" or a
reference of similar import;
(p) Change in Control. The aggregate ownership interests in the Seller
owned by Trust 2004-1, whether directly or indirectly, shall be less than 100%
of the total equity interests of the Seller;
(q) Change in Business. The Seller shall state its intention to
materially alter or discontinue its business, operations or any line of business
as currently conducted;
(r) Change in Management. At any time, any of the following persons are
no longer officers of ABFS holding the positions they occupy on the Closing
Date: Xxxxxxx X. Xxxxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxxx, unless replacements
acceptable to the Buyer in its reasonable discretion have been made with respect
to each such officer;
(s) Loss of Servicing Rights. More than (A) two (2) servicing
agreements for which any ABFS Entity or Affiliate thereof acts as a servicer in
a securitization, or (B) one (1) servicing agreement for which any ABFS Entity
or Affiliate thereof acts as a servicer for a warehouse facility of ABFS or any
of its Subsidiaries, is or are terminated for cause or an event of default;
(t) NASDAQ Listing Status. The covenant contained in Section 13(p)
shall have been breached; provided, ABFS shall have a cure period for such
breach equal to such cure period or appeal process as is provided in NASDAQ's
listing standards and/or regulations to re-establish ABFS's listing status,
evidence of which shall be provided to the Buyer by ABFS or the Seller.
- 29 -
19. REMEDIES.
--------
Upon the occurrence, and during the continuance, of an Event of
Default, the 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 the Buyer; provided that an Event of Default
shall be deemed to be continuing unless expressly waived by the Buyer in
writing:
(a) The Termination Date for the Transaction shall be deemed
immediately to occur.
(b) The Seller's obligations hereunder to repurchase all Purchased
Assets at the Repurchase Price therefor on the Termination Date shall thereupon
become immediately due and payable; all Income paid after such exercise or
deemed exercise shall be retained by the Buyer and applied to the aggregate
Repurchase Price and any other Obligations hereunder; the Seller shall
immediately deliver to the Buyer or its designee all Income then held by the
Seller or an Affiliate thereof and deliver any and all original papers, records
and files relating to the Purchased Assets subject to the Transaction then in
the Seller's possession and/or control; and all right, title and interest in and
entitlement to such Purchased Assets shall be deemed transferred to the Buyer.
The 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 the Buyer may reasonably deem satisfactory in its sole
discretion any or all Purchased Assets or (B) on or following such Business Day,
in its sole discretion elect, in lieu of selling all or a portion of such
Purchased Assets, to give the 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 the Seller hereunder. The
Seller shall remain liable to the Buyer for any amounts that remain owing to the
Buyer following a sale and/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 the Buyer in connection with or as a result of an
Event of Default; second to breakage costs of cover and/or related hedging
transactions; third to the aggregate Repurchase Price; 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 the 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, the Buyer may elect the time and
manner of liquidating any Purchased Asset and nothing contained herein shall
obligate the 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 the
Buyer.
- 30 -
(c) The Seller hereby acknowledges, admits and agrees that the Seller's
obligations under this Agreement are recourse obligations of the Seller to which
the Seller pledges its full faith and credit. In addition to their rights
hereunder, the Buyer shall have the right to proceed against any of the Seller's
assets which may be in the possession of the Buyer, any of the Buyer's
Affiliates or its designee, including the right to liquidate such assets and to
set-off the proceeds against monies owed by the Seller to the Buyer pursuant to
this Agreement. The Buyer may set off cash, the proceeds of the liquidation of
the Purchased Assets, any other Collateral or its proceeds and all other sums or
obligations owed by the Buyer to the Seller hereunder against all of the
Seller's Obligations to the Buyer, whether under this Agreement or under any
other agreement between the parties, or otherwise, whether or not such
Obligations are then due, without prejudice to the Buyer's right to recover any
deficiency.
The Buyer may direct all Persons servicing the Purchased Assets to take
such action with respect to the Purchased Assets as the Buyer determines
appropriate.
The Seller shall be liable to the Buyer for the amount of all expenses
(plus interest thereon at a rate equal to the Default Rate), and reasonable
foreseeable consequential damages, including, without limitation, 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.
The Seller shall cause all sums received by it with respect to the
Purchased Assets to be deposited with the Buyer (or such other Person as the
Buyer may direct) after receipt thereof.
The 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 the Buyer
is authorized hereunder to do. The Seller shall pay all costs and expenses
incurred by the Buyer in connection with the appointment and activities of such
receiver.
The Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and the Seller hereby expressly waives, to the
extent permitted by law, any right the Seller might otherwise have to require
the Buyer to enforce its rights by judicial process. The Seller also waives, to
the extent permitted by law, any defense (other than a defense of payment or
performance) the 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. The 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.
The Buyer shall have all the rights and remedies provided herein,
provided by applicable federal, state, foreign, and local laws in equity. The
Seller acknowledges and agrees that (A) the Custodian is a third party
beneficiary of this Agreement and (B) under such circumstances and conditions as
may be agreed from time to time by Buyer and Custodian upon notice to Seller,
Custodian may exercise on behalf of Buyer any of the rights and remedies of
Buyer under this Agreement. Any such notice (i) shall be given by Buyer and (ii)
may be concurrent with such exercise; provided, however, that such notice shall
be deemed to have been given immediately prior to an Insolvency Event.
- 31 -
Upon the occurrence, and during the continuance, of an Event of
Default, the 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 the
Seller.
The Seller hereby authorizes the Buyer, at the Seller's expense, to
file such financing statement or statements relating to the Purchased Assets and
the Collateral without the Seller's signature thereon as the Buyer at its option
may deem appropriate, and appoints the Buyer as the Seller's attorney-in-fact to
execute any such financing statement or statements in the Seller's name and to
perform all other acts which the 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. This power of attorney is
coupled with an interest and is irrevocable without the Buyer's consent.
20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE.
-----------------------------------------
No failure on the part of the 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 the 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 the
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 the Buyer to exercise any of its
rights under any other related document. The Buyer may exercise at any time
after the occurrence, and during the continuance, of an Event of Default, 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.
---------------------------
The Buyer represents and warrants to the Seller and the Seller
represents and warrants to the Buyer that (a) it is not and will not be an
employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan
described in Section 4975(e)(1) of the Code and (b) it is not using and will not
use "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 to engage in
the Agreement or the Transaction hereunder.
22. INDEMNITY.
---------
(a) The Seller agrees to pay as and when billed by the Buyer (i) the
reasonable fees and expenses of counsel for the Buyer in connection with the
preparation, execution, delivery, modification and amendment of this Agreement,
with respect to 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) whether or not the
transactions contemplated hereby are consummated.
- 32 -
(b) The Seller agrees to indemnify and hold harmless the Buyer and each
of its respective Affiliates and their officers, directors, employees, agents
and advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by 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 the
Seller's non-performance under any of the Program Documents and all other
documents related thereto, any breach of a representation or warranty of the
Seller or the Seller's officer in this Agreement or any other Program Document,
and all actions taken pursuant thereto) the Transaction, the actual or proposed
use of the proceeds of the Transaction, this Agreement or any of the
transactions contemplated thereby, including, without limitation, any
acquisition or proposed acquisition, 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. The Seller also agrees not to assert any
claim against the 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, or the actual or proposed use of the
proceeds of the Transaction. 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 prejudice to the survival of any other agreement of the
Seller hereunder, the agreements and obligations of the Seller contained in this
Section 22 shall survive the payment in full of the Repurchase Price and all
other Obligations and delivery of the Purchased Assets by the Buyer against full
payment therefor.
23. WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS.
------------------------------------------
The 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 the Buyer
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 the Buyer in connection with the
exercise of any right or remedy provided for herein shall be and remain the
Seller's obligation. The Seller agrees to pay, with interest at the Default Rate
to the extent that a Default has occurred, the reasonable out-of-pocket expenses
and reasonable attorneys' fees incurred by the Buyer in connection with the
- 33 -
enforcement of the Program Documents, the taking of any action, including legal
action, required or permitted to be taken by the Buyer pursuant thereto, or any
refinancing or restructuring in the nature of a "workout". If the Buyer
determines that, due to the introduction of, any change in, or the compliance by
the 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 the Buyer in engaging in the
Transaction, then the Seller agrees to pay to the Buyer, from time to time, upon
demand by the Buyer the actual cost of additional amounts as specified by the
Buyer to compensate the Buyer for such increased costs. In addition, the Buyer
shall promptly notify the Seller if any events in clause (i) or (ii) of this
Section 24 occur.
In addition to any rights and remedies of the Buyer hereunder and by
law, the Buyer shall have the right, without prior notice to the Seller, any
such notice being expressly waived by the Seller to the extent permitted by
applicable law, upon any amount becoming due and payable by the Seller hereunder
(whether at the stated maturity, by acceleration or otherwise) to set off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Buyer or any Affiliate thereof to or for the credit or the account
of the Seller or any Affiliate thereof. The Buyer agrees promptly to notify the
Seller after any such set off and application made by the Buyer; provided that
the failure to give such notice shall not affect the validity of such set off
and application.
25. FURTHER ASSURANCES.
------------------
The Seller agrees to do such further acts and things and to execute and
deliver to the Buyer such additional assignments, acknowledgments, agreements,
powers and instruments as are reasonably required by the Buyer to carry into
effect the intent and purposes of this Agreement, to perfect the interests of
the Buyer in the Purchased Assets or to better assure and confirm unto the 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 the Purchased Assets thereto (other than as set forth in the
Commitment Letter), 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 with respect to the Transaction. No prior negotiation,
agreement, understanding or prior contract shall have any validity hereafter.
27. TERMINATION.
-----------
This Agreement shall terminate upon the occurrence of the earliest of
(i) Friday, December 2, 2005, (ii) at the Buyer's option, upon the occurrence of
an Event of Default, (iii) the date determined by the Seller in accordance with
Section 15, (iv) if definitive documentation with respect to the Committed
Facility satisfactory to Patriot and its counsel is executed and delivered by
all parties thereto, the date of such occurrence, not to occur (if at all) later
than the close of business on Monday, November 22, 2004 and (v) the date all
Obligations due and to become due under this Agreement have irrevocably been
paid to Buyer (such date, the "Termination Date"). No termination shall affect
the Seller's outstanding Obligations to the Buyer or the Buyer's rights and
remedies in respect thereof at the time of such termination. The Seller's
obligations to indemnify the Buyer pursuant to this Agreement shall survive the
termination hereof.
- 34 -
28. ASSIGNMENT; PARTICIPATIONS.
--------------------------
(a) Subject to that certain side letter between the Buyer and ABFS
dated as of the date hereof regarding assignments and participations, the Buyer
may from time to time assign all or a portion of its rights and obligations
under this Agreement and the Program Documents; provided, that the Buyer shall
maintain, for review by the Seller upon written request, a register of assignees
and a copy of an executed assignment and acceptance by the Buyer and its
assignee (an "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 the Buyer hereunder, and (b)
the Buyer shall, to the extent that such rights and obligations have been so
assigned by it to either (i) an Affiliate of the Buyer which assumes the
obligations of the Buyer or (ii) to another Person which assumes the obligations
of the Buyer, be released from its obligations hereunder and under the Program
Documents. Unless otherwise stated in the Assignment and Acceptance, the Seller
shall continue to take directions solely from the Buyer. The Buyer may
distribute to any prospective assignee any document or other information
delivered to the Buyer by the Seller.
(b) The Buyer may sell participations to one or more Persons in or to
all or a portion of their rights and obligations under this Agreement; provided,
however, that (i) the Buyer's obligations under this Agreement shall remain
unchanged, (ii) the Buyer shall remain solely responsible to the other parties
hereto for the performance of such obligations; and (iii) the Seller shall
continue to deal solely and directly with the Buyer in connection with the
Buyer's rights and obligations under this Agreement.
(c) The Buyer may, in connection with any participation or proposed
participation pursuant to this Section 28, disclose to the assignee or
participant or proposed participant, as the case may be, any information
relating to the Seller or any of its Subsidiaries or to any aspect of the
Transaction that has been furnished to the Buyer by or on behalf of the Seller
or any of its Subsidiaries; provided that such participant agrees to hold such
information subject to the confidentiality provisions of this Agreement.
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 the Seller and the
Buyer, and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
- 35 -
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 the Seller may
not assign or transfer any of its rights or obligations under this Agreement or
any other Program Document without the prior written consent 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 (EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
32. CONSENT TO JURISDICTION.
-----------------------
THE SELLER HEREBY WAIVES TRIAL BY JURY. THE 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. THE SELLER HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION THE 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. 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 any ABFS Entity:
c/o American Business Financial Services, Inc.
The Xxxxxxxxx Building
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
- 36 -
with a copy to:
Xxxxxxxx X. Xxxxx, XX, Esq.
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
if to the Buyer:
The Patriot Group, LLC
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Xxxx LLP
Two World Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Tel: 000-000-0000
Fax: 000-000-0000
The financial statements, monthly certifications and other reports and
information required to be delivered by the Seller to the Buyer pursuant to
Section 13 of this Agreement shall also be delivered by the Seller to the Buyer
at the address listed above, as such address or facsimile transmission number
may be changed by like notice.
34. CONFIDENTIALITY.
---------------
The Buyer and the Seller hereby acknowledge and agree that (a) all
written or computer-readable information provided by one party to any other
regarding the terms set forth in this Agreement or the Transaction contemplated
hereby and (b) all information and materials provided by one party to the other
in connection with this Agreement and the Transaction contemplated hereby which
are non-public, confidential or proprietary in nature, and all analyses,
compilations, studies or other documents prepared by such party containing such
material (the "Confidential Terms") shall be kept confidential and shall not be
divulged to any party without the prior written consent of either Buyer or
Seller (as applicable) except to the extent that (i) it is necessary to do so in
working with legal counsel, auditors, taxing authorities or other governmental
agencies or regulatory bodies or in order to comply with any applicable federal
- 37 -
or state laws, (ii) any of the Confidential Terms are in the public domain other
than due to a breach of this covenant, (iii) in the event of an Event of
Default, the Buyer determines such information to be necessary or desirable to
disclose in connection with the marketing and sales of the Purchased Assets or
otherwise to enforce or exercise the Buyer's rights hereunder or (iv) disclosure
is made to the holders of the debt or repurchase obligations of the Seller
(provided that any such disclosure shall not identify any Pricing Rate
information or any other financial terms under this Agreement). Notwithstanding
the foregoing, the Buyer may (i) disclose the Confidential Terms to (A) any of
its agents, assignees, participants, and to any counterparties in any
transactions permitted by Section 17 or (B) its advisors (including Pentalpha)
and (ii) generally make use of such Confidential Terms in connection with
administering this Agreement and exercising any of its rights under the Program
Documents. The provisions set forth in this Section 34 shall survive the
termination of this Agreement.
35. ACKNOWLEDGEMENTS WITH RESPECT TO THE TRANSACTION.
------------------------------------------------
Each ABFS Entity acknowledges by executing this Agreement and entering
into the Transaction that (i) Buyer's assessments of Market Value will be made
in Buyer's sole discretion and that Buyer has taken the cash flow
characteristics of the Purchased Assets into account, which reflect, among other
things, past repurchases of delinquent and defaulted loans from the
securitization trusts to which such Purchased Assets relate, and failure of ABFS
or its Affiliates to continue such repurchases could negatively affect Market
Value determinations; (ii) as current distributions on the Purchased Assets are
received, future distributions, and therefore the discounted value of such
distributions, will decline, which will have the general effect of reducing the
Securities Purchase Price over time; (iii) because distributions on the
Purchased Assets may be applied to make required Permanent Margin Payments to
Buyer prior to any release of funds to Seller, Seller may experience significant
volatility in the cash flows Seller receives from the Purchased Assets, and
Seller may receive no such cash flows over extended periods of time; (iv) any
waivers of closing conditions contained in this Agreement that are also closing
conditions of the Committed Facility shall not constitute a waiver of such
conditions for purposes of the Committed Facility and the Commitment Letter; and
(v) the management and board of directors of ABFS and the other ABFS Entities
fully understand the implications of the Transaction as they relate to the
ongoing financial and liquidity needs of ABFS.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely in its capacity as Owner Trustee, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Owner Trustee or the Seller, as the case may be, is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company, but is made and intended for the purpose of binding only the Seller or
the Owner Trustee, as the case may be, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Seller or the Owner Trustee, as
the case may be, or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Seller or the
Owner Trustee, as the case may be, under this Agreement or any other related
documents.
[Signature Page Follows]
- 38 -
IN WITNESS WHEREOF, the Seller, the Buyer and the other ABFS
Entities parties hereto 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 WAREHOUSE TRUST 2004-2, as Seller
By: Wilmington Trust Company, not in its
individual capacity but solely as trustee
of ABFS WAREHOUSE TRUST 2004-2
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Assistant Vice President
-----------------------------------
THE PATRIOT GROUP, LLC, as Buyer
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
AMERICAN BUSINESS FINANCIAL
SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
[Master Repurchase Agreement]
ABFS CONSOLIDATED HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
AMERICAN BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
[Master Repurchase Agreement]
