EXECUTION COPY
FIRST AMENDMENT TO DEBTOR-IN-POSSESSION
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "AMENDMENT"), dated as of March 10, 2005,
among American Business Financial Services, Inc., as a debtor and a
debtor-in-possession, a Delaware corporation ("ABFS" or the "Company"), the
affiliates of ABFS listed on Schedule A thereto, each as a debtor and a
debtor-in-possession (together with ABFS, individually a "BORROWER" and
collectively, the "BORROWERS"), the Lenders party thereto (each individually a
"LENDER" and collectively, the "LENDERS"), Greenwich Capital Financial Products,
Inc., a Delaware corporation, as administrative agent for the Secured Parties
(as defined therein) (in such capacity, the "AGENT"), The CIT Group/Business
Credit, Inc., as syndication agent for the Lenders (in such capacity, the
"SYNDICATION AGENT"), Greenwich Capital Financial Products, Inc. and The CIT
Group/Business Credit, Inc., as co-lead arrangers for the Lenders (in such
capacity, the "CO-LEAD ARRANGERS"), and the other Secured Parties, amends
certain provisions of the Debtor-in-Possession Loan and Security Agreement,
dated as of February 22, 2005 (as amended hereby and as the same may be further
amended, supplemented or otherwise modified from time to time, the "LOAN
AGREEMENT"), among the Borrowers, the Lenders, the Agent, the Syndication Agent,
the Co-Lead Arrangers and the Secured Parties.
RECITALS
Pursuant to the Loan Agreement, the Lenders have agreed to make Advances
to the Borrowers.
In connection with the hearing to approve the Final Order, the Borrowers
and the parties hereto have agreed to certain amendments to the Loan Agreement
as more specifically set forth below.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINED TERMS. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Loan Agreement.
2. AMENDMENTS TO THE LOAN AGREEMENT. Upon the occurrence of the First
Amendment Effective Date (as defined in SECTION 4 of this Amendment), the Loan
Agreement is hereby amended as follows:
(a) By inserting the following definitions in appropriate
alphabetical order in SECTION 1.01 of the Loan Agreement:
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""APPROVED MORTGAGE LOAN" means a Mortgage Loan that has been
reunderwritten by the Agent and confirmed by the Agent to qualify as an Eligible
Mortgage Loan."
""CARVE-OUT ALLOCATION" means (a) any amounts applied to prepay the
Tranche C Advances pursuant to CLAUSE (VI) of SECTION 2.06(D) PLUS (b) any
amounts applied to prepay the Tranche C Advances pursuant to CLAUSE (IX) of
SECTION 2.06(E)."
""PRE-FUNDING REUNDERWRITING TRIGGER" shall be deemed to occur if (a)
any random sampling reunderwriting by the Agent of Mortgage Loans originated or
purchased by any Borrower in an aggregate sample size greater than or equal to
$25,000,000 indicates that less than 90% (based upon the aggregate unpaid
principal amount of such Mortgage Loans) of such Mortgage Loans are Approved
Mortgage Loans or (b) any random sampling of drive-by-appraisal of a minimum of
100 Mortgage Loans indicates that more than 10% (based upon the aggregate unpaid
principal amount of such Mortgage Loans) of such Mortgage Loans have a negative
percentage variance in value to the original appraisal in excess of 20%."
"WEEKLY FEE PAYMENT DATE" means the last Business Day of each week
beginning March 4, 2005.
(b) By amending and restating the following definitions set
forth in SECTION 1.01 of the Loan Agreement:
""APPLICABLE COLLATERAL PERCENTAGE" means, with respect to an Eligible
Mortgage Loan, the following percentages of the unpaid principal balance
thereof, in each case reduced by any applicable Delinquency Adjustment:
(a) if the loan has a FICO Score of 640 or greater, 97%, unless such
Eligible Mortgage Loan is an Approved Mortgage Loan, in which case, 98.5%;
(b) if the loan has a FICO Score greater than 599 but less than 640,
95%, unless such Eligible Mortgage Loan is an Approved Mortgage Loan, in which
case, 98.5%;
(c) if the loan has a FICO Score greater than 549 but less than 600,
93%, unless such Eligible Mortgage Loan is an Approved Mortgage Loan, in which
case, 98.5%;
(d) if the loan has a FICO Score greater than 519 but less than 550,
89%, unless such Eligible Mortgage Loan is an Approved Mortgage Loan, in which
case, 98.5%; and
(e) if the loan has a FICO Score less than 520 or no FICO Score, 0%.
For example, the Applicable Collateral Percentage for a Mortgage Loan
(which is not an Approved Mortgage Loan) (1) with a FICO Score of 550, and (2)
that is 60 days delinquent (delinquent with respect to a Monthly Payment on the
date of the
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second scheduled related Monthly Payment becoming due) and therefore subject to
a Delinquency Adjustment, shall be 73% (and such Mortgage Loan shall cease to be
an Eligible Mortgage Loan if it remains delinquent for another two months)."
""APPLICABLE MARGIN" means (a) with respect to Tranche A Advances, 3.75%
per annum until such time as the Borrowers have originated and funded Mortgage
Loans in an aggregate amount of at least $350,000,000 and 3.00% per annum
thereafter, (b) with respect to Tranche B Advances, 5.75% per annum, (c) with
respect to Tranche C Advances, 8.25% per annum, (d) with respect to Tranche D
Advances, 8.25% per annum and (e) with respect to Tranche E Advances, 7.00% per
annum."
""CARVE-OUT" means (a) amounts payable pursuant to 28 U.S.C. ss.
1930(a)(6), and (b) allowed fees and expenses of attorneys, accountants and
other professionals retained by formal application in the Chapter 11 Cases
(other than ordinary course professionals) pursuant to Sections 327 and 1103 of
the Bankruptcy Code, but the amount entitled to priority under this clause (b)
("PRIORITY PROFESSIONAL EXPENSES") shall not exceed $2,500,000 outstanding and
unpaid in the aggregate at any time (inclusive of any holdbacks required by the
Bankruptcy Court and any amounts unbilled for services performed prior to a
Priority Triggering Event and allocated as set forth in the last sentence of
this definition) (the "PROFESSIONAL EXPENSE CAP") regardless of whether the fees
or expenses are allowed and unpaid at the time of a Priority Triggering Event or
are incurred before or after such event; provided, however, that (A) after the
Agent has provided (by hand or facsimile) written notice to the Administrative
Borrower of the occurrence of an Event of Default hereunder or a default (and
expiration of any applicable cure period) by the Borrowers in any of their
obligations under the Orders (a "PRIORITY TRIGGERING EVENT"), any payments
actually made to such professionals after the occurrence and during the
continuance of such Event of Default or default, under Sections 330 and 331 of
the Bankruptcy Code or otherwise, shall reduce the Professional Expense Cap on a
dollar-for-dollar basis and (B) for the avoidance of doubt, any payment actually
made to such professionals prior to the notice described in subclause (A) above
may be retained by such professionals and will not reduce the Professional
Expense Cap; and PROVIDED, FURTHER, THAT no portion of the Carve-Out shall be
used to challenge this Loan Agreement and the other Loan Documents (including
the Liens securing this Loan Agreement); although the foregoing proviso shall
not prevent any portion of the Carve-Out from being used to investigate the
Greenwich Pre-Petition Loan Agreement (including the Liens securing the
Greenwich Pre-Petition Loan Agreement) as may be permitted by the Bankruptcy
Code. The Professional Expense Cap shall not be reduced by the amount of any
unapplied retainers provided to professionals of the Borrowers. If a Priority
Triggering Event occurs on or after June 1, 2005 at any time the Carve-Out
Allocation is less than $1,000,000, the Professional Expense Cap shall be
allocated (x) to pay Priority Professional Expenses incurred and unpaid prior to
such Priority Triggering Event in an amount not to exceed the sum of (i)
$1,000,000 PLUS (ii) an additional amount not to exceed the Carve-Out Allocation
and (y) to pay Priority Professional Expenses incurred after such Priority
Triggering Event in an amount not to exceed (I) $1,500,000 MINUS (II) the
portion of the Carve-Out Allocation used under clause (x)."
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""TRANCHE A SUBLIMIT" means (a) prior to June 1, 2005, $250,000,000 and
(b) on and after June 1, 2005, the Maximum Credit less the sum of (i) the
outstanding Obligations (as defined in the Greenwich Pre-Petition Loan
Agreement), (ii) the outstanding Tranche B Advances, (iii) the outstanding
Tranche C Advances, (iv) the outstanding Tranche D Advances and (v) the
outstanding Tranche E Advances."
""TRANCHE C BORROWING BASE" means (a) the Tranche C Applicable
Collateral Percentage MULTIPLIED BY the Lending Value of the IOS, as determined
by the Agent, LESS (b) $1,500,000 LESS (c) the Clearing Account Reserve LESS (d)
the Carve-Out Allocation."
""WET-INK APPLICABLE COLLATERAL PERCENTAGE" means, with respect to a
Wet-Ink Mortgage Loan, the following percentages of the unpaid principal balance
thereof:
(a) if the loan has a FICO Score of 640 or greater, 93%;
(b) if the loan has a FICO Score greater than 599 but less than 640,
91%;
(c) if the loan has a FICO Score greater than 549 but less than 600,
89%;
(d) if the loan has a FICO Score greater than 519 but less than 550,
85%; and
(e) if the loan has a FICO Score less than 520 or no FICO Score,
0%."
(c) By amending clause (i) of the definition of Allocated
Amount set forth in SECTION 1.01 of the Loan Agreement by (i) inserting
"(D)(VII)," after "(D)(VI)," therein and (ii) replacing "(D)(VII)(A)" with
"(D)(VIII)(A)."
(d) By replacing "97%" in CLAUSE (A)(I) of the definition of
Collateral Value set forth in SECTION 1.01 of the Loan Agreement with "98.5%."
(e) By amending SECTION 2.06(D) of the Loan Agreement by (i)
replacing "(vi)" at the beginning of clause (vi) thereof with "(vii)" and (ii)
replacing "(vii)" at the beginning of CLAUSE (VII) thereof with "(viii)."
(f) By inserting the following new CLAUSE (VI) after CLAUSE
(V) of SECTION 2.06(D):
"(vi) until the Carve-Out Allocation equals $1,000,000, to prepay
outstanding Tranche C Advances;"
(g) By amending SECTION 2.06(E) of the Loan Agreement by (i)
replacing "$1,000,000" with "$1,200,000" in clause (i) thereof, (ii) deleting
the "and"
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at the end of CLAUSE (VIII) thereof and (iii) replacing the "(ix)" at the
beginning of CLAUSE (IX) thereof with "(x)."
(h) By inserting the following new CLAUSE (IX) after CLAUSE
(VIII) of SECTION 2.06(E):
"(ix) until the Carve-Out Allocation equals $1,000,000, to prepay
outstanding Tranche C Advances; and."
(i) By amending SECTION 3.07(A) of the Loan Agreement by
deleting "(x) if the Obligations (other than Clearwing Deferred Payoff
Obligations, Patriot Deferred Payoff Obligations and Clearwing Indemnification
Liabilities) are paid in full by September 30, 2005 and no Event of Default has
occurred prior to such date, $15,000,000 and (y) in all other cases,
$17,500,000," and replacing it with the following: "15,750,000."
(j) By amending and restating SECTION 3.07(A)(II)(1) as
follows:
"(1) on each Weekly Fee Payment Date, an amount equal to (x) $500,000
divided by (y) the number of Weekly Fee Payment Dates in the applicable month;
PROVIDED, THAT (I) with respect to the Weekly Facility Fee Payments due in May
2005, the Borrowers shall be permitted to defer such payments to the extent
that, after giving effect to any or all of such payments, the Borrowers'
Qualified Cash plus Availability would reasonably be expected to be less than
$6,000,000 within the next 30 days; and (II) with respect to any Weekly Facility
Fee Payment due after June 1, 2005, the Borrowers shall be permitted to defer
such payment if, after giving effect to such payment, the Borrowers' Qualified
Cash plus Availability would reasonably be expected to be less than $5,000,000
within the next 30 days (any payments deferred pursuant to clause (I) or clause
(II) shall not at any time exceed in the aggregate $1,500,000 and shall be paid
by the earlier of (X) the date after May 31, 2005 on which making such payment
would not reasonably be expected to cause the Borrowers' Qualified Cash plus
Availability to be less than $5,000,000 within the next 30 days and (Y) the
Termination Date); PROVIDED, FURTHER, THAT any payment deferred hereunder shall
be treated as though paid for the purpose of the calculation set forth in
SECTION 7.35; and."
(k) By amending and restating the second sentence of SECTION
3.07(B) of the Loan Agreement as follows:
"If such average amount determined for any period as a percentage of the
Maximum Credit (the "UTILIZATION PERCENTAGE") is less than 100%, the Borrowers
shall pay to the Agent for the account of the Lenders on such Monthly Fee
Payment Date or Termination Date, a non-utilization fee equal to the product of
(i) 0.25% per annum, TIMES (ii) the Maximum Credit (the "NON-USAGE FEE")."
(l) By inserting the following immediately after "PROVIDED,
HOWEVER, THAT" in SECTION 4.01(K) of the Loan Agreement:
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"notwithstanding the reference to "Obligations" in the clause preceding
this proviso, the Collateralized Sub-debt Shared Collateral shall not at any
time secure Obligations constituting Tranche A Advances advanced to fund
Eligible Mortgage Loans in an aggregate principal amount greater than (i) the
lesser of (x) $10,000,000 and (y) 100% of the aggregate outstanding principal
amount of Collateralized Tranche A Advances and (ii) 10% of the aggregate
outstanding principal amount of Collateralized Tranche A Advances at such time.
"COLLATERALIZED TRANCHE A ADVANCES" means, as of the date of any Event of
Default, the greater of (A) Tranche A Advances outstanding upon the occurrence
of such Event of Default and (B) the maximum amount of Tranche A Advances
outstanding at any time 30 days prior to the occurrence of such Event of
Default. It is understood that."
(m) By inserting the following immediately after SECTION
7.38 of the Loan Agreement:
"7.39 BUDGETED MORTGAGE LOAN ORIGINATIONS. For each two-calendar month
period beginning with the two-calendar month period ending April 30, 2005, the
Borrowers shall not permit the actual aggregate principal amount of Mortgage
Loans originated during such period to be less than 80% of the aggregate
principal amount of Mortgage Loans to be originated during such period as set
forth in the Budget."
(n) By inserting the following immediately after SECTION
7.39 of the Loan Agreement:
"7.40. APPROVED MARKETING EXPENDITURES. The approved marketing
expenditures for the period March through December 2005 is $7,625,000 ("APPROVED
MARKETING EXPENDITURES"). The Borrowers shall not (a) exceed the Approved
Marketing Expenditures or (b) reallocate the difference between the marketing
expenses in the Budget and the Approved Marketing Expenditures to other areas of
the Budget without approval of the Chief Restructuring Officer and notice to the
Committee."
(o) By changing the reference to "SECTION 7.38" to "SECTION
7.40" in clause (g)(i) of SECTION 8 of the Loan Agreement
(p) By amending SECTION 11.04(C) of the Loan Agreement by
(i) deleting the last two sentences thereof and (ii) inserting the following at
the end of the first sentence thereof immediately prior to ".":
", and, so long as no Event of Default has occurred, the Borrowers shall
not be required to reimburse the costs and expenses of such firm to the extent
that such costs and expenses exceed $200,000 in the aggregate."
(q) By amending and restating the last sentence of SECTION
11.04(D) of the Loan Agreement as follows:
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"The costs and expenses of such engagement shall be reimbursed by the
Borrowers; PROVIDED, that, the costs and expenses of such engagement from and
after March 1, 2005 shall not exceed $40,000 per month."
(r) By inserting "(a) GENERAL." at the beginning of SECTION
11.19 of the Loan Agreement.
(s) By inserting the following new SECTIONS 11.19(B),
11.19(C) and 11.19(D) after SECTION 11.19(A) of the Loan Agreement:
"(b) PRE-FUNDING REUNDERWRITING. The Agent shall have the right at
any time to reunderwrite Mortgage Loans pre-funding on a select basis, not
expected to exceed 5% of production unless the Agent has reasonable concern
regarding loan quality. Upon the occurrence of a Pre-Funding Reunderwriting
Trigger and subject to the availability of qualified underwriters, the Agent
shall reunderwrite each Mortgage Loan on a pre-funding basis. Once the Borrowers
have evidenced to the satisfaction of the Agent that a Pre-Funding
Reunderwriting Trigger would no longer exist, the Agent shall remove the
requirement that all Mortgage Loans be reunderwritten on a pre-funding basis.
(c) POST-FUNDING REUNDERWRITING. During the 90-day period following
the Closing Date or such longer period as the Borrowers and the Committee shall
agree (the "INITIAL PERIOD"), the Agent shall reunderwrite each Mortgage Loan
post-funding consistent with the Agent's customary loan reunderwriting
practices. After the Initial Period, post-funding reunderwriting will be
performed periodically on a random sample basis consistent with the Agent's
customary loan reunderwriting practices. All post funding reunderwriting will be
performed in a timely fashion subject to availability of qualified underwriters.
Reunderwriting results will be shared with the Administrative Borrower and the
Committee as available.
(d) REUNDERWRITING. In reunderwriting any Mortgage Loan, the Agent
shall review and underwrite such Mortgage Loan in the manner in which the Agent
would underwrite Mortgage Loans for its own account and, in any event, in a
commercially reasonable manner."
(t) By amending and restating SECTION 11.26 as follows:
"11.26. MORTGAGE LOAN PURCHASE COMMITMENT. Subject to the terms and
conditions set forth in SCHEDULE 11.26 hereto, Greenwich shall be obligated to
purchase Approved Mortgage Loans from the Borrowers."
(u) By inserting new SECTION 11.27 as follows:
"11.27. REPLACEMENT DIP / EXIT FACILITY. In connection with the
Borrowers' confirmation of a Plan of Reorganization and arrangement for
financing upon emerging from the Chapter 11 Cases or refinancing of the
Facility, the Borrowers agree to approach the Agent to arrange such financing,
and Agent shall have the first right of
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making an offer to act as the lead arranger for such financing, and shall be
provided with a reasonable period of time to prepare any such offer. Nothing
herein requires the Borrowers to accept the Agent's offer once received, and the
Borrowers may seek offers from other Persons."
3. REPLACEMENT OF SCHEDULE 11.26 TO THE LOAN AGREEMENT. SCHEDULE
11.26 to the Loan Agreement is amended and restated in its entirety as set forth
on SCHEDULE 11.26 to this Amendment.
4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective on the date (the "FIRST AMENDMENT
EFFECTIVE DATE") when the following conditions precedent have been satisfied:
(a) CERTAIN DOCUMENTS. The Agent shall have received, on or
before the First Amendment Effective Date, in form and substance satisfactory to
the Agent, this Amendment, executed by each Borrower, the Lenders, the other
Secured Parties and Trust 2004-1.
(b) FINAL ORDER. The Agent shall have received satisfactory
evidence of the entry of the Final Order which shall be in full force and
effect, shall not be the subject of any pending appeal, and shall not have been
vacated, stayed, reversed, modified or amended in any respect without the prior
written consent of the Agent and the Required Lenders.
(c) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrowers or Trust 2004-1 in or
pursuant to the Loan Agreement, as amended hereby, and the other Loan Documents
to which any of the Borrowers or Trust 2004-1 is a party or by which the
Borrowers or Trust 2004-1 are bound, shall be true and correct in all material
respects on and as of the First Amendment Effective Date (other than
representations and warranties in any such Loan Document which expressly speak
as of a specific date, which shall have been true and correct in all material
respects as of such specific date).
(d) NO EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing on the First Amendment Effective Date.
(e) PAST EXPENSES PAID. The Borrowers shall have paid, in
accordance with Section 11.04 of the Loan Agreement, all outstanding costs and
expenses of the Agent and the Lenders, including the reasonable fees and
out-of-pocket expenses of counsel for the Agent and the Lenders incurred prior
to or otherwise in connection with this Amendment.
5. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof,
and as of the First Amendment Effective Date, after giving effect to this
Amendment, each Borrower hereby represents and warrants to the Agent and the
Lenders as follows:
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(a) Each of the representations and warranties contained in
the Loan Agreement or any other Loan Documents are true and correct in all
material respects on and as of such date as if made on and as of such date,
except to the extent that such representations and warranties specifically
relate to a specific date, in which case such representations and warranties
shall be true and correct in all material respects as of such specific date;
PROVIDED, HOWEVER, THAT references therein to the "Loan Agreement" shall be
deemed to include this Amendment; and
(b) No Default or Event of Default has occurred and is
continuing.
6. CONTINUING EFFECT; NO OTHER AMENDMENTS OR WAIVERS. Except as
expressly amended hereby, all of the terms and provisions of the Loan Agreement
and the other Loan Documents are, and shall remain, in full force and effect.
The amendments contained herein shall not constitute an amendment or a waiver of
any other provision of the Loan Agreement or the other Loan Documents or for any
purpose except as expressly set forth herein.
7. LOAN DOCUMENTS. This Amendment is deemed to be a "Loan Document"
for the purposes of the Loan Agreement.
8. COSTS AND EXPENSES. The Borrowers agree to pay on demand all
reasonable out-of-pocket costs and expenses of the Agent and the Lenders in
connection with the preparation, execution and delivery of this Amendment and
other instruments and documents to be delivered pursuant hereto, including the
reasonable fees, disbursements and expenses of counsel.
9. GOVERNING LAW; COUNTERPARTS; MISCELLANEOUS.
(a) This Amendment shall be governed by New York law without
reference to choice of law doctrine (but with reference to Section 5-1401 of the
New York General Obligations Law, which by its terms applies to this Amendment),
except as governed by the Bankruptcy Code.
(b) This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Amendment by signing
any such counterpart. Delivery of an executed counterpart of this Amendment by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Amendment.
(c) Section captions used in this Amendment are for
convenience only and shall not affect the construction of this Amendment.
(d) From and after the First Amendment Effective Date, all
references in the Loan Agreement to the "Agreement" or the "Loan Agreement"
shall be
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deemed to be references to such Agreement as modified hereby and this Amendment
and the Loan Agreement shall be read together and construed as a single
instrument.
[signature pages follow]
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IN WITNESS WHEREOF, the undersigned parties have executed this First
Amendment to the Debtor-in-Possession Loan and Security Agreement as of the day
and year first above written.
BORROWERS
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President and CFO
AMERICAN BUSINESS CREDIT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President and CFO
HOMEAMERICAN CREDIT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President and CFO
AMERICAN BUSINESS MORTGAGE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President and CFO
TIGER RELOCATION COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President and CFO
SIGNATURE PAGE TO FIRST AMENDMENT
ABFS CONSOLIDATED HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President and CFO
AGENT
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Vice President
LENDERS
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------------
Title: Vice President
SIGNATURE PAGE TO FIRST AMENDMENT
CLEARWING (for itself and for the
CLEARWING INDEMNIFIED PARTIES)
CLEARWING CAPITAL, LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: Managing Member
PATRIOT
THE PATRIOT GROUP, LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------
Title: Senior Vice President
SIGNATURE PAGE TO FIRST AMENDMENT
For purposes of the Loan Documents to which Trust 2004-1 is party, by
its signature below, Trust 2004-1 hereby consents and agrees to the entering
into of this Amendment and acknowledges and affirms that the Non-Debtor Pledge
Agreement remains in full force and effect in accordance with its terms on the
date hereof and after giving effect to this Amendment.
It is expressly understood and agreed that (a) this Amendment is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely in its capacity as trustee, in the exercise of the powers
and authority conferred and vested in it, (b) each of the undertakings and
agreements herein made on the part of Trust 2004-1, 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 Trust 2004-1,
(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
Trust 2004-1 or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Trust 2004-1 under
this Amendment or any other related documents.
ABFS WAREHOUSE TRUST 2004-1,
by Wilmington Trust Company, not in its
individual capacity, but solely as trustee of
ABFS Warehouse Trust 2004-1
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: Senior Financial Services Officer
SIGNATURE PAGE TO FIRST AMENDMENT
