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Exhibit 10.1
[THE BOND MARKET
ASSOCIATION LOGO]
MASTER REPURCHASE AGREEMENT
September 1996 Version
DATED AS OF
JANUARY 26, 2005
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BETWEEN:
AMERICAN BUSINESS CREDIT, INC.
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AND
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
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1.
APPLICABILITY
From time to time the parties hereto may enter into transactions
in
which one party ("Seller") agrees to transfer to the other
("Buyer")
securities or other assets ("Securities") against the transfer of
funds
by Buyer, with a simultaneous agreement by Buyer to transfer to
Seller
such Securities at a date certain or on demand, against the
transfer of
funds by Seller. Each such transaction shall be referred to herein
as a
"Transaction" and, unless otherwise agreed in writing, shall be
governed
by this Agreement, including any supplemental terms or
conditions
contained in Annex I hereto and in any other annexes identified
herein
or therein as applicable hereunder.
2.
DEFINITIONS
(a)
"Act of Insolvency", with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding
under any bankruptcy, insolvency, reorganization, liquidation,
moratorium, dissolution, delinquency or similar law, or such
party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official for such
party or any substantial part of it property, or the convening
of any meeting of creditors for purposes of commencing any such
case or proceeding or seeking such an appointment or election,
(ii) the commencement of any such case or proceeding against
such party, or another seeking such an appointment or election,
or the filing against a party of an application for a
protective
decree under the provisions of the Securities Investor
Protection Act of 1970, which (A) is consented to or not timely
contested by such party, (B) results in the entry of an order
for relief, such an appointment or election, the issuance of
such a protective decree or the entry of an order having a
similar effect, or (C) is not dismissed within 15 days, (iii)
the making by such party of a general assignment for the
benefit
of creditors, or (iv)
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the admission in writing by such party of such party's
inability
to pay such party's debts as they become due;
(b)
"Additional Purchased Securities", Securities provided by
Seller
to Buyer pursuant to Paragraph 4(a) hereof;
(c)
"Buyer's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of the Buyer's
Margin Percentage to the Repurchase Price for such Transaction
as of such date;
(d)
"Buyer's Margin Percentage", with respect to any Transaction as
of any date, a percentage (which may be equal to the Seller's
Margin Percentage) agreed to by Buyer and Seller or, in the
absence of any such agreement, the percentage obtained by
dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for
such Transaction;
(e)
"Confirmation", the meaning specified in Paragraph 3(b) hereof;
(f)
"Income", with respect to any Security at any time, any
principal thereof and all interest, dividends or other
distributions thereon;
(g)
"Margin Deficit", the meaning specified in Paragraph 4(a)
hereof;
(h)
"Margin Excess", the meaning specified in Paragraph 4(b)
hereof;
(i)
"Margin Notice Deadline", the time agreed to by the parties in
the relevant Confirmation, Annex I hereto or otherwise as the
deadline for giving notice requiring same-day satisfaction of
margin maintenance obligations as provided in Paragraph 4
hereof
(or, in the absence of any such agreement, the deadline for
such
purposes established in accordance with market practice);
(j)
"Market Value", with respect to any Securities as of any date,
the price for such Securities on such date obtained from a
generally recognized source agreed to by the parties or the
most
recent closing bid quotation from such a source, plus accrued
Income to the extent not included therein (other than any
Income
credited or transferred to, or applied to the obligations of,
Seller pursuant to Paragraph 5 hereof) as of such date (unless
contrary to market practice for such Securities);
(k)
"Price Differential", with respect to any Transaction as of any
date, the aggregate amount obtained by daily application of the
Pricing Rate for such Transaction to the Purchase Price for
such
Transaction on a 360 day per year basis for the actual number
of
days during the period commencing on (and including) the
Purchase Date for such Transaction and ending on (but
excluding)
the date of determination (reduced by any amount of such Price
Differential previously paid by Seller to Buyer with respect to
such Transaction);
(l)
"Pricing Rate", the per annum percentage rate for determination
of the Price Differential;
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(m)
"Prime Rate", the prime rate of U.S. commercial banks as
published in The Wall Street Journal (or, if more than one such
rate is published, the average of such rates);
(n)
"Purchase Date", the date on which Purchased Securities are to
be transferred by Seller to Buyer;
(o)
"Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and
(ii) thereafter, except where Buyer and Seller agree otherwise,
such price increased by the amount of any cash transferred by
Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased
by the amount of any cash transferred by Seller to Buyer
pursuant to Paragraph 4(a) hereof or applied to reduce Seller's
obligations under clause (ii) of Paragraph 5 hereof;
(p)
"Purchased Securities", the Securities transferred by Seller to
Buyer in a Transaction hereunder, and any Securities
substituted
therefor in accordance with Paragraph 9 hereof. The term
"Purchased Securities" with respect to any Transaction at any
time also shall include Additional Purchased Securities
delivered pursuant to Paragraph 4(a) hereof and shall exclude
Securities returned pursuant to Paragraph 4(b) hereof;
(q)
"Repurchase Date", the date on which Seller is to repurchase
the
Purchased Securities from Buyer, including any date determined
by application of the provisions of Paragraph 3(c) or 11
hereof;
(r)
"Repurchase Price", the price at which Purchased Securities are
to be transferred from Buyer to Seller upon termination of a
Transaction, which will be determined in each case (including
Transactions terminable upon demand) as the sum of the Purchase
Price and the
Price Differential as of the date of such
determination;
(s)
"Seller's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of the Seller's
Margin Percentage to the Repurchase Price for such Transaction
as of such date;
(t)
"Seller's Margin Percentage", with respect to any Transaction
as
of any date, a percentage (which may be equal to the Buyer's
Margin Percentage) agreed to by Buyer and Seller or, in the
absence of any such agreement, the percentage obtained by
dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for
such Transaction.
3.
INITIATION; CONFIRMATION; TERMINATION
(a)
An agreement to enter into a Transaction may be made orally or
in writing at the initiation of either Buyer or Seller. On the
Purchase Date for the Transaction, the Purchased Securities
shall be transferred to Buyer or its agent against the transfer
of the Purchase Price to an account of Seller.
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(b)
Upon agreeing to enter into a Transaction hereunder, Buyer or
Seller (or both), as shall be agreed, shall promptly deliver to
the other party a written confirmation of each Transaction (a
"Confirmation"). The Confirmation shall describe the Purchased
Securities (including CUSIP number, if any), identify Buyer and
Seller and set forth (i) the Purchase Date, (ii) the Purchase
Price, (iii) the Repurchase Date, unless the Transaction is to
be terminable on demand, (iv) the Pricing Rate or Repurchase
Price applicable to the Transaction, and (v) any additional
terms or
conditions of the Transaction not inconsistent with
this Agreement. The Confirmation, together with this Agreement,
shall constitute conclusive evidence of the terms agreed
between
Buyer and Seller with respect to the Transaction to which the
Confirmation relates, unless with respect to the Confirmation
specific objection is made promptly after receipt thereof. In
the event of any conflict between the terms of such
Confirmation
and this Agreement, this Agreement shall prevail.
(c)
In the case of Transactions terminable upon demand, such demand
shall be made by Buyer or Seller, no later than such time as is
customary in accordance with market practice, by telephone or
otherwise on or prior to the business day on which such
termination will be effective. On the date specified in such
demand, or on the date fixed for termination in the case of
Transactions having a fixed term, termination of the
Transaction
will be effected by transfer to Seller or its agent of the
Purchased Securities and any Income in respect thereof received
by Buyer (and not previously credited or transferred to, or
applied to the obligations of, Seller pursuant to Paragraph 5
hereof) against the transfer of the Repurchase Price to an
account of Buyer.
4. MARGIN
MAINTENANCE
(a)
If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular
party hereto is acting as Buyer is less than the aggregate
Buyer's Margin Amount for all such Transactions (a "Margin
Deficit"), then Buyer may by notice to Seller require Seller in
such Transactions, at Seller's option, to transfer to Buyer
cash
or additional Securities reasonably acceptable to Buyer
("Additional Purchased Securities"), so that the cash and
aggregate Market Value of the Purchased Securities, including
any such Additional Purchased Securities, will thereupon equal
or exceed such aggregate Buyer's Margin Amount (decreased by
the
amount of any Margin Deficit as of such date arising from any
Transactions in which such Buyer is acting as Seller).
(b)
It at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular
party hereto is acting as Seller exceeds the aggregate Seller's
Margin Amount for all such Transactions at such time (a "Margin
Excess"), then Seller may by notice to Buyer require Buyer in
such Transactions, at Buyer's option, to transfer cash or
Purchased
Securities to Seller, so that the aggregate Market
Value of the Purchased Securities, after deduction of any such
cash or any Purchased Securities so transferred, will thereupon
not exceed such aggregate Seller's Margin Amount (increased by
the amount of any
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Margin Excess as of such date arising from any Transactions in
which such Seller is acting as Buyer).
(c)
If any notice is given by Buyer or Seller under subparagraph
(a)
or (b) of this Paragraph at or before the Margin Notice
Deadline
on any business day, the party receiving such notice shall
transfer cash or Additional Purchased Securities as provided in
such subparagraph no later than the close of business in the
relevant market on such day. If any such notice is given after
the Margin Notice Deadline, the party receiving such notice
shall transfer such cash or Securities no later than the close
of business in the relevant market on the next business day
following such notice.
(d)
Any cash transferred pursuant to this Paragraph shall be
attributed to such Transactions as shall be agreed upon by
Buyer
and Seller.
(e)
Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer or
Seller (or both) under subparagraphs (a) and (b) of this
Paragraph may be exercised only where a Margin Deficit or
Margin
Excess, as the case may be, exceeds a specified dollar amount
or
a specified percentage of the Repurchase Prices for such
Transactions (which amount or percentage shall be agreed to by
Buyer and Seller prior to entering into any such Transactions).
(f)
Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer and
Seller under subparagraphs (a) and (b) of this Paragraph to
require the elimination of a Margin Deficit or a Margin Excess,
as the case may be, may be exercised whenever such a Margin
Deficit or Margin Excess exists with respect to any single
Transaction hereunder (calculated without regard to any other
Transaction outstanding under this Agreement).
5. INCOME
PAYMENTS
Seller shall be entitled to receive an amount equal to all income
paid
or distributed on or in respect of the Securities that is not
otherwise
received by Seller, to the full extent it would be so entitled if
the
Securities had not been sold to Buyer. Buyer shall, as the parties
may
agree with respect to any Transaction (or, in the absence of any
such
agreement, as Buyer shall reasonably determine in its discretion),
on
the date such Income is paid or distributed either (i) transfer to
or
credit to the account of Seller such Income with respect to any
Purchased Securities subject to such Transaction or (ii) with
respect to
Income paid in cash, apply the Income payment or payments to reduce
the
amount, if any, to be transferred to Buyer by Seller upon
termination of
such Transaction. Buyer shall not be obligated to take any
action
pursuant to the preceding sentence (A) to the extent that such
action
would result in the creation of a Margin Deficit, unless prior
thereto
or simultaneously therewith Seller transfers to Buyer cash or
Additional
Purchased Securities sufficient to eliminate such Margin Deficit,
or (B)
if an Event of Default with respect to Seller has occurred and is
then
continuing at the time such Income is paid or distributed.
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6. SECURITY
INTEREST
Although the parties intend that all Transactions hereunder be
sales and
purchases and not loans, in the event any such Transactions are
deemed
to be loans, Seller shall be deemed to have pledged to Buyer as
security
for the performance by Seller of its obligations under each
such
Transaction, and shall be deemed to have granted to Buyer a
security
interest in, all of the Purchased Securities with respect to
all
Transactions hereunder and all Income thereon and other
proceeds
thereof.
7. PAYMENT
AND TRANSFER
Unless otherwise mutually agreed, all transfers of funds hereunder
shall
be in immediately available funds. All Securities transferred by
one
party hereto to the other party (i) shall be in suitable form
for
transfer or shall be accompanied by duly executed instruments
of
transfer or assignment in blank and such other documentation as
the
party receiving possession may reasonably request, (ii) shall
be
transferred on the book entry system of a Federal Reserve Bank, or
(iii)
shall be transferred by any other method mutually acceptable to
Seller
and
Buyer.
8.
SEGREGATION OF PURCHASED SECURITIES
To the extent required by applicable law, all Purchased Securities
in
the possession of Seller shall be segregated from other securities
in
its possession and shall be identified as subject to this
Agreement.
Segregation may be accomplished by appropriate identification on
the
books and records of the holder, including a financial or
securities
intermediary or a clearing corporation. All of Seller's interest in
the
Purchased Securities shall pass to Buyer on the Purchase Date
and,
unless otherwise agreed by Buyer and Seller, nothing in this
Agreement
shall preclude Buyer from engaging in repurchase transactions with
the
Purchased
Securities or otherwise selling, transferring, pledging or
hypothecating the Purchased Securities, but no such transaction
shall
relieve Buyer of its obligations to transfer Purchased Securities
to
Seller pursuant to Paragraph 3, 4 or 11 hereof, or of Buyer's
obligation
to credit or pay Income to, or apply Income to the obligations
of,
Seller pursuant to Paragraph 5 hereof.
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REQUIRED DISCLOSURE FOR TRANSACTIONS IN WHICH THE SELLER
RETAINS CUSTODY OF THE PURCHASED SECURITIES
Seller is not permitted to substitute other securities for those
subject
to this Agreement and therefore must keep Buyer's securities
segregated
at all times, unless in this Agreement Buyer grants Seller the
right to
substitute other securities. If Buyer grants the right to
substitute,
this means that Buyer's securities will likely be commingled
with
Seller's own securities during the trading day. Buyer is advised
that,
during any trading day that Buyer's securities are commingled
with
Seller's securities, they [will]* [may]** be subject to liens
granted by
Seller to [its clearing bank]* [third parties]** and may be used
by
Seller for deliveries on other securities transactions. Whenever
the
securities are commingled, Seller's ability to resegregate
substitute
securities for Buyer will be subject to Seller's ability to satisfy
[the
clearing]* [any]** lien or to obtain substitute securities.
* Language to be used under 17 C.F.R. 403.4(e) if Seller is a
government
securities broker or dealer other than a financial institution.
** Language to be used under 17 C.F.R. 403.5(d) if Seller is a
financial
institution.
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9.
SUBSTITUTION
(a)
Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such
substitution shall be made by transfer to Buyer of such other
Securities and transfer to Seller of such Purchased Securities.
After substitution, the substituted Securities shall be deemed
to be Purchased Securities.
(b)
In Transactions in which Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be
deemed, for purposes of subparagraph (a) of this Paragraph, to
have agreed to and accepted in this Agreement substitution by
Seller of other Securities for Purchased Securities; provided,
however, that such other Securities shall have a Market Value
at
least equal to the Market Value of the Purchased Securities for
which they are substituted.
10.
REPRESENTATIONS
Each of Buyer and Seller represents and warrants to the other that
(1)
it is duly authorized to execute and deliver this Agreement, to
enter
into Transactions contemplated hereunder and to perform its
obligations
hereunder and has taken all necessary action to authorize such
execution, delivery and performance, (ii) it will engage in
such
Transactions as principal (or, if agreed in writing, in the form of
an
annex
hereto or otherwise, in advance of any Transaction by the other
party hereto, as agent for a disclosed principal), (iii) the
person
signing this Agreement on its behalf is duly authorized to do so on
its
behalf (or
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on behalf of any such disclosed principal), (iv) it has obtained
all
authorizations of any governmental body required in connection with
this
Agreement and the Transactions hereunder and such authorizations
are in
full force and effect and (v) the execution, delivery and
performance of
this Agreement and the Transactions hereunder will not violate any
law,
ordinance, charter, bylaw or rule applicable to it or any agreement
by
which it is bound or by which any of its assets are affected. On
the
Purchase Date for any Transaction Buyer and Seller shall each be
deemed
to repeat all the foregoing representations made by it.
11. EVENTS OF
DEFAULT
In the event that (i) Seller fails to transfer or Buyer falls
to
purchase Purchased Securities upon the applicable Purchase Date,
(ii)
Seller fails to repurchase or Buyer fails to transfer Purchased
Securities upon the applicable Repurchase Date, (iii) Seller or
Buyer
fails to comply with Paragraph 4 hereof, (iv) Buyer fails, after
one
business day's notice, to comply with Paragraph 5 hereof, (v) an
Act of
Insolvency occurs with respect to Seller or Buyer, (vi) any
representation made by Seller or Buyer shall have been incorrect
or
untrue in any material respect when made or repeated or deemed to
have
been made or repeated, or (vii) Seller or Buyer shall admit to the
other
its
inability to, or its intention not to, perform any of its
obligations hereunder (each an "Event of Default"):
(a)
The nondefaulting party may, at its option (which option shall
be deemed to have been exercised immediately upon the
occurrence
of an Act of Insolvency), declare an Event of Default to have
occurred hereunder and, upon the exercise or deemed exercise of
such option, the Repurchase Date for each Transaction hereunder
shall, if it has not already occurred, be deemed immediately to
occur (except that, in the event that the Purchase Date for any
Transaction has not yet occurred as of the date of such
exercise
or deemed exercise, such Transaction shall be deemed
immediately
canceled). The nondefaulting party shill (except upon the
occurrence of an Act of Insolvency) give notice to the
defaulting party of the exercise of such option as promptly as
practicable.
(b)
In all Transactions in which the defaulting party is acting as
Seller, if the nondefaulting party exercises or is deemed to
have exercised the option referred to in subparagraph (a) of
this Paragraph, (i) the defaulting party's obligations in such
Transactions to repurchase all Purchased Securities, at the
Repurchase Price therefor on the Repurchase Date determined in
accordance with subparagraph (a) of this Paragraph, shall
thereupon
