<PAGE>
Exhibit 10.1
EXECUTION VERSION
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AMENDED AND RESTATED 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 and
Amended and Restated as of December 21, 2004
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<PAGE>
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND
INTERPRETATION............................................1
2. THE
TRANSACTION..........................................................11
3.
[RESERVED]...............................................................11
4. FEES; PAYMENT AND
TRANSFER...............................................11
5. MARGIN
MAINTENANCE.......................................................12
6. INCOME
PAYMENTS..........................................................12
7. SECURITY
INTEREST........................................................13
8. TAXES; TAX
TREATMENT.....................................................14
9. CONDITIONS
PRECEDENT.....................................................15
9A. CONDITIONS
SUBSEQUENT....................................................19
10. RELEASE OF PURCHASED
ASSETS..............................................18
11.
RELIANCE.................................................................19
12. REPRESENTATIONS AND
WARRANTIES...........................................19
13.
COVENANTS................................................................22
14.
[RESERVED]...............................................................27
15. CHANGE OF
LAW............................................................27
16.
[RESERVED]...............................................................27
17. REPURCHASE
TRANSACTIONS..................................................27
18. EVENTS OF
DEFAULT........................................................28
19.
REMEDIES.................................................................30
20. DELAY NOT WAIVER; REMEDIES ARE
CUMULATIVE................................33
21. USE OF EMPLOYEE PLAN
ASSETS..............................................33
22.
INDEMNITY................................................................33
23. WAIVER OF REDEMPTION AND
DEFICIENCY RIGHTS...............................34
24.
REIMBURSEMENT............................................................34
25. FURTHER
ASSURANCES.......................................................35
26. ENTIRE AGREEMENT; PRODUCT OF
NEGOTIATION.................................35
27.
TERMINATION..............................................................35
28. ASSIGNMENT;
PARTICIPATIONS...............................................35
29. AMENDMENTS,
ETC..........................................................36
30.
SEVERABILITY.............................................................36
31. BINDING EFFECT; GOVERNING
LAW............................................36
32. CONSENT TO
JURISDICTION..................................................37
33. NOTICES AND OTHER
COMMUNICATIONS.........................................37
34.
CONFIDENTIALITY..........................................................38
35. ACKNOWLEDGMENTS WITH RESPECT TO
THE TRANSACTION..........................39
36. AMENDMENT AND
RESTATEMENT................................................39
i
<PAGE>
TABLE OF CONTENTS
(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
ii
<PAGE>
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
Dated as of November 15, 2004 and amended
and restated as of December 21, 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.
(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 Amended and Restated
Trust
Agreement, dated as of November 15, 2004,
among Holdings and the Originators, as
depositors, Wilmington Trust Company, as
owner trustee, and ABFS, as indemnitor
(as amended, restated, supplemented or
otherwise modified from time to time).
"2004-2 TRUST AGREEMENT" means that certain Amended and Restated
Trust
Agreement, dated as of November 15, 2004,
among Trust 2004-1, as depositor,
Wilmington Trust Company, as owner trustee,
and ABFS, as indemnitor (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 2003-2 SHARES" means the Seller's one hundred percent
(100%)
ownership interest in the issued and
outstanding capital stock of ABFS 2003-2,
Inc.
"ABFS ENTITY" means each of the Seller, Trust 2004-1, ABFS, ABC
and
Holdings.
"ADDITIONAL COLLATERAL" means (i) the Holdings Shares, (ii) the
ABFS
2003-2 Shares, and (iii) the Servicer
Reimbursement and Fee Collateral.
<PAGE>
"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 one hundred thirty-three and
one-third
percent (133- 1/3%) provided, that over the
first ten (10) months following the
Closing Date, commencing in January 2005,
the Buyer's Margin Percentage shall
permanently increase to two hundred percent
(200%) in equal increments of six
and two-thirds percent (6-2/3%) on the 25th
day of each such month.
"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.
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"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 December 21, 2004.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall have the meaning assigned thereto in Section
7
hereof.
"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, a
copy of which is 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.
"EMC" means EMC Mortgage Corporation.
"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 Interim 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.
"EVENT OF DEFAULT" shall have the meaning assigned thereto in
Section 18
hereof.
"FEES" shall mean all fees (including without limitation the
Quarterly
Maintenance Fee, the Monitoring Fee and the
commitment fee referred to in the
definition of Initial Securities
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<PAGE>
Purchase Price) 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 Section
2(c).
"HOLDINGS" means ABFS Consolidated Holdings, Inc., a Delaware
corporation.
"HOLDINGS SHARES" means ABFS's one hundred percent (100%)
ownership
interest in the issued and outstanding
capital stock of Holdings.
"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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<PAGE>
"INITIAL SECURITIES PURCHASE PRICE" shall mean $20,554,661, which
is the
aggregate of (i) the Securities Purchase
Price of $20,414,661 currently
outstanding under, and as defined in, the
Interim Master Repurchase Agreement,
and (ii) $140,000 which is a non-refundable
commitment fee fully earned at the
Closing Date upon the execution and
delivery of this Agreement.
"INSOLVENCY EVENT" means any of the Events of Default described
in
Sections 18(e) or 18(f) hereof.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate
protection
agreement or other interest hedging
arrangement.
"INTERIM CLOSING DATE" means November 15, 2004.
"INTERIM MASTER REPURCHASE AGREEMENT" has the meaning assigned
thereto
in Section 36.
"INTERIM TRANSACTION" has the meaning assigned thereto in Section
2(a).
"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 and the
other 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.
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<PAGE>
"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 and the other Collateral
taken as a whole.
"MINIMUM MONTHLY PAYDOWNS" means, the amount of Permanent
Margin
Payments required to be made each month
pursuant to Sections 5(b), 6(b) and 6(c)
hereunder, in the following amounts: for
each of the months of January,
February, March, April, May and June of
2005, $2,000,000, and for each month
thereafter to the Termination Date,
$1,500,000.
"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 consolidated total assets over
such Person's consolidated total
liabilities, determined in accordance with
GAAP.
"NON-EXCLUDED TAXES" shall have the meaning assigned to such term
in
Section 8(a) hereof.
"OBLIGATIONS" means (a) all of the Seller's obligations to pay the
Price
Differential (and other amounts due and
owing), the Minimum Monthly Paydowns and
the Repurchase Price on or prior to the
Termination Date, and other obligations
and liabilities of the Seller or any
Affiliate thereof 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 or applicable Affiliate'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 any Affiliate thereof
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 or applicable Affiliate's
indemnity obligations to the Buyer pursuant
to the Program Documents.
"OTHER TAXES" shall have the meaning set forth in Section 8(b).
"OWNER TRUSTEE" means, with respect to the Seller, Wilmington
Trust
Company.
"PERMANENT MARGIN PAYMENTS" shall have the meaning set forth in
Section
5.
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<PAGE>
"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.
"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 (i) that certain Pledge and Security
Agreement
dated as of November 15, 2004 between ABFS
and the Buyer pursuant to which ABFS
pledged the Holdings Shares to the Buyer;
and (ii) that certain Pledge and
Security Agreement dated as of November 15,
2004 between the Seller and the
Buyer pursuant to which the Seller pledged
the ABFS 2003-2 Shares to the Buyer
(the "ABFS 2003-2 Share Pledge").
"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 Servicing Advances Control
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,
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
securitizations to which such Purchased
Assets relate (which rights of ABC
and/or its Affiliates have been sold to the
Seller), 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
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<PAGE>
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 the Buyer to so control the
exercise of such rights.
"QUARTERLY MAINTENANCE FEE" shall have the meaning assigned thereto
on
Schedule II hereto.
"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.
"RELATED PARTIES" means any of ABFS, Trust 2004-1, the Seller,
ABC,
Holdings, American Business Mortgage
Services, Inc. fka New Jersey Mortgage and
Investment Corp. a New Jersey corporation,
HomeAmerican Credit, Inc. dba Upland
Mortgage, a Pennsylvania corporation, or
any of their Subsidiaries or
Affiliates.
"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, Quarterly Maintenance 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 the Seller to the Buyer (if any)
prior to such date; provided, that if
the Holdback Amount, net of the Repurchase
Option Premium, is released to the
Seller pursuant to Section 2(c), then the
Securities Purchase Price shall be
increased by the Holdback Amount on the
date of such release.
"SECURITY AGREEMENT" means the Security Agreement, dated as of
the
Interim Closing Date, executed by ABC in
favor of the Buyer, regarding servicer
advances, fees and
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<PAGE>
reimbursement rights under ABFS's
outstanding securitizations and warehouse
facilities (as amended on the date
hereof).
"SERVICER REIMBURSEMENT AND FEE COLLATERAL" means a perfected
first
priority security interest in and lien on
all rights to reimbursement for
servicer advances, unearned fees of all
types and prepay, late, forbearance,
satisfaction, not sufficient funds and
other similar earned fees due to ABC (or
any Affiliate thereof including, without
limitation, the Related Parties) as
servicers under any ABFS securitization or
warehouse facility, the "par" amount
of which as of November 30, 2004 was not
less than $37,000,000 (which shall
constitute a super-priority claim to ABC's
or any such Affiliate's right to
receive collections of such amounts from
each securitization trust), all pledged
by ABC or any other applicable Affiliate
thereof.
"SERVICING ADVANCES CONTROL AGREEMENT" means the Blocked Account
Control
Agreement, dated as of December 16, 2004,
by and among the Buyer, ABC and
JPMorgan, in form and substance
satisfactory to the Buyer.
"SIDE LETTER" means that certain Side Letter, dated as of the
Interim
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.
"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.
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<PAGE>
"TRUSTS" means, collectively, (i) Trust 2004-1 and (ii) Trust
2004-2.
"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.
(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;
provided, that when a defined term
used herein refers to the Interim Master
Repurchase Agreement, such term is used
herein with the meaning specified in the
Interim Master Repurchase Agreement. A
reference to legislation or to a provision
of legislation includes a
modification or re-enactment of it, a
legislative provision substituted for it
and a regulation or statutory instrument
issued under it. A reference to writing
includes a facsimile transmission and any
means of reproducing words in a
tangible and permanently visible form. A
reference to conduct includes, without
limitation, an omission, statement or
undertaking, whether or not in writing. An
Event of Default subsists until it has been
waived in writing by 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
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<PAGE>
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 in
its 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.
(a)
On the Interim Closing Date, the Buyer entered into a
transaction (the "Interim Transaction"),
pursuant to the terms set forth in the
Interim Master Repurchase Agreement, in
which the Seller transferred to the
Buyer the Purchased Assets, against the
Buyer's payment to the Seller of an
Initial Securities Purchase Price of
$23,000,000, with a simultaneous agreement,
as set forth therein, 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 Interim Transaction
was evidenced by a Transaction Notice,
executed by the Seller and acknowledged
and agreed to by the Buyer.
(b)
The Seller has requested the Buyer to modify the residual
repurchase facility underlying the Interim
Transaction through an amendment and
restatement of the Interim Master
Repurchase Agreement in order to, among other
things, increase the amount thereof and
extend the term, which the Buyer hereby
agrees to, subject to the terms and
conditions herein.
(c)
On the Closing Date, the Buyer hereby enters into a transaction
(the "Transaction"), pursuant to the terms
set forth herein, in which the
Initial Securities Purchase Price shall
have the meaning set forth herein and
the Buyer agrees to increase the Securities
Purchase Price by $ 9,445,339.48
(the "Holdback Amount"). The Buyer will
promptly release the Holdback Amount to
the Seller, net of the Repurchase Option
Premium (in the amount of $360,000),
if, and only if, no later than December 31,
2004: (i) the Buyer has received a
legal opinion (which may also be subject to
customary commercial opinion
assumptions, conditions and qualifications)
from Blank Rome LLP, as counsel to
ABFS and the Seller, as follows:
"We are of the opinion that:
A. The
registration statement of American Business Financial
Services, Inc. ("ABFS") regarding its retail secured
subordinated
indebtedness (the "Securities"), SEC File No. 333-116742 (the
"Registration Statement"), has been declared effective under
the
Securities Act of 1933. To our knowledge, upon inquiry of the staff
of
the U.S. Securities and Exchange Commission (the "SEC"), no stop
order
suspending the effectiveness of the Registration Statement has
been
instituted and no proceedings for that purpose have been instituted
or
are pending. The opinion in this paragraph is based solely upon
a
telephone conversation occurring on _________between _________, a
member
of our Firm, and a member of the staff of the Division of
Corporate
Finance of the United States Securities and Exchange
Commission.
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<PAGE>
B. The
Securities, when issued pursuant to the terms of the
Indenture and as contemplated by the Registration Statement, will
have
been duly authorized, validly issued and will be legal, valid
and
binding obligations of ABFS, enforceable in accordance with their
terms,
except as enforcement may be limited by bankruptcy, insolvency or
other
similar laws or court decisions affecting creditors' rights
generally
currently in effect or which may hereafter occur which would
render
unenforceable certain rights and remedies or by general principles
of
equity.
C. The
issuance of the Securities pursuant to the Indenture and as
contemplated by the Registration Statement will not violate the
registration provisions contained in the Securities Act of 1933,
as
amended, to which ABFS is subject, any order, judgment or
administrative
decree applicable to ABFS and known to us, the articles of
incorporation
or by-laws of ABFS, or the terms of any material contracts or
agreements
to
which ABFS is a party. For this purpose, the terms "material
contracts or agreements" includes only those agreements or
contracts
filed with the Securities and Exchange Commission.
D. No
consents, approvals, authorizations and orders (if any) are
required by any Federal or Pennsylvania regulatory or governmental
body
or under NASDAQ stock market rules for ABFS to issue and sell
the
securities pursuant to the Indenture and as contemplated by the
Registration Statement except for those which have been obtained
(other
than approvals or authorizations required under any state
securities or
Blue Sky Laws, if any, as to which we express no opinion);"
(ii) no Event of Default shall have
occurred; and (iii) no Termination Event
shall have occurred. If the conditions
precedent to the Buyer's conditional
obligation to release the Holdback Amount
are not satisfied by 6 p.m. Eastern
Standard Time on December 31, 2004, such
obligation shall terminate. The
Transaction shall be evidenced by the
Transaction Notice, executed by the Seller
and acknowledged and agreed to by the
Buyer.
(d)
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]
4. FEES;
PAYMENT AND TRANSFER.
(a)
In connection with the Interim Transaction, interest and fees
have been paid under the Interim Master
Repurchase Agreement to the date hereof.
Seller acknowledges that all such interest
and fees were fully-earned and are
not refundable.
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<PAGE>
(b)
From and after the date hereof, 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).
(c)
The Seller agrees to pay the accrued Price Differential to the
Buyer no less frequently than on the 25th
day of each month.
(d)
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 with respect to such amount.
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
and the other Collateral may be applied
by the Buyer at its option to make
Permanent Margin Payments.
(b)
In addition, the Seller agrees to make payments to the Buyer to
reduce the Securities Purchase Price during
the term of this Agreement in the
amounts referred to as the Minimum Monthly
Paydowns. Such payments shall be
made, from and after January 1, 2005, in
accordance with the provisions of
Section 6 hereof.
(c)
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.
6. INCOME
PAYMENTS.
(a)
All Income payments made on the Purchased Assets during the
month of December, 2004 (i.e., those
received on December 15, 2004 and scheduled
to be received on December 27, 2004) shall
be held by the Buyer to pay (i) the
accrued and unpaid Price
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<PAGE>
Differential under, and as defined in, the
Interim Master Repurchase Agreement
through and including the date hereof and
the accrued and unpaid Price
Differential hereunder and (ii) the
Monitoring Fee for November 2004 (pursuant
to the Interim Master Repurchase Agreement)
and December 2004, with the balance
of such Income payments then received to be
remitted to the Seller, on December
20, 2004 and on December 27, 2004; provided
that to the extent such Income
payments for December 2004 exceed
$2,100,000, such excess amount of Income
payments shall be retained by the Buyer and
applied as a Permanent Margin
Payment, accordingly reducing the
Securities Purchase Price.
(b)
From and after January 1, 2005, all Income payments made on the
Purchased Assets shall be held by the 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 the
extent of remaining funds available, 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, together with any other
amounts paid to or applied by the Buyer in
accordance with Section 6(c) as necessary
to achieve the Minimum Monthly
Paydowns, shall 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.
(c)
As provided in Section 5(b), beginning with the month of
January
2005, the Securities Purchase Price is
required to be reduced by payments from
the Seller of no less than the Minimum
Monthly Paydown for the applicable month.
Any excess reduction in the Securities
Purchase Price from prior months (above
the Minimum Monthly Paydown for such month)
shall not be credited to future
Minimum Monthly Paydowns. If the aggregate
amount of monthly Income payments
applied pursuant to Section 6(b)(third) are
insufficient to reduce the
Securities Purchase Price by the applicable
Minimum Monthly Paydown, the Buyer
may apply all proceeds received by the
Buyer with respect to the Additional
Collateral to the Minimum Monthly
Paydown.
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 Additional
Collateral owned by the Seller, 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
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<PAGE>
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 Seller, ABFS, ABC and
Holdings further acknowledge and agree, for
themselves and on behalf of any
other Affiliates, that rights relating to
the Purchased Assets shall only be
exercised by or on behalf of the Buyer,
pursuant to instructions provided by the
Buyer. 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)
(i) 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.
(ii) 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.
(c)
The Buyer may engage, at the Seller's expense, an independent
residual valuation expert to analyze and
value the Purchased Assets and the
2003-2 IO during the term of this
Agreement.
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
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<PAGE>
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 Non-Excluded 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
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.
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<PAGE>
(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, and, with respect to
the
pledge by ABFS to the Buyer of the Holdings Shares, an
acknowledgement
by ABFS of this amendment and restatement, in form and
substance
satisfactory to the Buyer;
(ii)
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;
(iii) 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;
(iv) An
incumbency certificate of the Seller's corporate
secretary certifying the names, true signatures and titles of
the
Seller's representatives duly authorized to request the
Transaction
hereunder and to execute the Program Documents and the other
documents
to be delivered thereunder;
(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 Commercia
