Exhibit 10.11
Clearwing Capital, LLC
c/o Chrysalis Management Group, LLC
The Belgravia Building
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October 26, 2004
ABFS Consolidated Holdings, Inc.
The ▇▇▇▇▇▇▇▇▇ Building
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Re: CONSENTS AND AMENDMENT TO FEE LETTER
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To Whom It May Concern:
Reference is made to (a) that certain Loan and Security
Agreement, dated as of October 14, 2003 (the "Loan Agreement"), between ABFS
Warehouse Trust 2003-2 (the "Borrower") and Chrysalis Warehouse Funding, LLC
(the "Lender"), a wholly-owned affiliate of Clearwing Capital, LLC
("Clearwing"), (b) that certain Trust Agreement, dated as of October 14, 2003
(the "Trust Agreement"), among ABFS Consolidated Holdings, Inc. ("Holdings") and
certain subsidiaries of Holdings (such subsidiaries, the "Loan Depositors") and
Wilmington Trust Company, as trustee for ABFS Warehouse Trust 2003-1, a Delaware
statutory trust ("Trust 2003-1"), (c) that certain Pledge and Security
Agreement, dated as of October 14, 2003 (the "Pledge Agreement"), between Trust
2003-1 and Clearwing, and (d) that certain Fee Letter, dated as of October 14,
2003, by and among Borrower and certain of its affiliates (Borrower and such
affiliates, the "Qbligors") and Clearwing (the "2003 Fee Letter"). Except as
provided in Paragraph 4 herein or as otherwise indicated capitalized terms used
herein and not otherwise defined shall have the meaning ascribed to them in the
Pledge Agreement.
American Business Financial Services, Inc., a Delaware
corporation (the "Company") and Holdings have advised us that the Company is in
the process of entering into a commitment letter for financing (the "Patriot
Financing") with The Patriot Group, LLC ("Patriot"). A true and correct copy of
such commitment letter is attached hereto as Exhibit "A" (the "Patriot
Commitment Letter").
Pursuant to the Patriot Commitment Letter, (a) the Patriot
Financing is to be secured by, among other things, a pledge by Holdings of the
interest-only strips listed on Exhibit B attached hereto (the "Exhibit B IOS"),
and (b) Holdings and each of the Loan Depositors will transfer their interests
in the residual "common" equity certificates Nos. ▇-▇, ▇-▇, ▇-▇, ▇▇▇ ▇-▇ of
Trust 2003-1 (the "R Certificates" to a special purpose statutory business trust
organized under the laws of Delaware (the "R Certificate Holder").
Pursuant to the Pledge Agreement, Trust 2003-1 granted to
Clearwing a security interest in, among other things, all of its right, title
and interest in and to the Exhibit B IOS. Under the terms of the Trust
Agreement, Trust 2003-1 issued to Clearwing the "preferred" equity certificate
No. P-1 of Trust 2003-1 (the "P Certificate").
The Company has (a) advised Clearwing that it desires to
execute the Patriot Commitment Letter, (b) requested that Clearwing consent to
the release of its liens on the Exhibit B IOS, and (c) requested that Clearwing
consent to the transfer of the R Certificates to the R Certificate Holder.
Subject to the terms and conditions contained herein,
Clearwing is willing to (a) release its liens on the Exhibit B IOS, and (b)
consent to the transfer of the R Certificates to the R Certificate Holder.
1. Consent to Distribution of and Release of Liens on Exhibit
B IOS. Effective as of the date that all of the conditions set forth in
Paragraph 3 below shall have been satisfied, Clearwing hereby (a) consents to
the distribution by Trust 2003-1 to Holdings of the Exhibit B IOS, and (b)
agrees to release its liens on the Exhibit B IOS.
2. Consent to Transfer of R Certificates. Effective as of the
date that all of the conditions set forth in Paragraph 3 below shall have been
satisfied and so long as (a) the structure and the organizational and governing
documents of the R Certificate Holder are satisfactory to Clearwing, (b) the
Trust Agreement is amended such that no holder of an R Certificate shall have
any rights with respect to Trust 2003-1 from and after a default or an event of
default under (i) the documents that evidence the Patriot Financing, (ii) the
Loan Agreement, the Trust Agreement, the Pledge Agreement, or any other Loan
Documents (as defined in the Loan Agreement), or (iii) any other documents
regarding any other facility in which Trust 2003-1 has any obligation to
Clearwing, and (c) Patriot consents to the amendment of the Trust Agreement as
described in subsection (b) of this Paragraph 2, Clearwing hereby consents to
the transfer of the R Certificates to the R Certificate Holder.
3. Conditions to Consents. The effectiveness of the consents
provided herein are subject to the fulfillment, to the satisfaction of
Clearwing, of the following conditions:
(a) Clearwing shall have received this letter agreement duly
executed by the Obligors, and the same shall be in full force and effect;
(b) All documents and legal matters in connection with the
Patriot Financing shall have been delivered, executed, or recorded and shall be
in form and substance satisfactory to Clearwing, including the organizational
and governing documents of the R Certificate Holder.
(c) All of the conditions set forth in the documents
evidencing the Patriot Financing shall have been satisfied and the Patriot
Financing shall be consummated in accordance with its terms;
(d) The Obligors shall have received all licenses, approvals,
or consents necessary to consummate the Patriot Financing (including, without
limitation, the consent of U.S. Bank, as trustee, to the pledge of the Exhibit B
IOS and the R Certificates in favor of Patriot);
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(e) The representations and warranties in this letter
agreement, the Pledge Agreement, the Trust Agreement, and the Fee Letter shall
be true and correct in all material respects as of the date hereof, as though
made on such date (except to the extent that such representations and warranties
relate solely to an earlier date);
(f) No Event of Default under the Pledge Agreement and no
Event of Default under and as defined in the Loan Agreement shall have occurred
and be continuing on the date hereof, nor shall result from the consummation of
the transactions contemplated herein;
(g) No injunction, writ, restraining order, or other order of
any nature prohibiting, directly or indirectly, the consummation of the
transactions contemplated herein shall have been issued and remain in force by
any governmental authority against any of the Obligors, Patriot, Clearwing, any
of their affiliates, or any other Person;
(h) The Obligors shall have paid Clearwing, for the benefit of
Clearwing, the Lender, and their affiliates, a work fee in an amount equal to
$500,000, which amount (i) shall be in addition to all other work fees and all
expense deposits paid by any of the Obligors to Clearwing or the Lender, (ii)
shall be applied to the payment of costs and expenses incurred at any time by
Clearwing and its affiliates in connection with the Patriot Financing or any
other financing in favor of any of the Obligors, and (iii) shall be paid as
follows: (x) $200,000 of such work fee shall be paid on November 1, 2004, and
(y) the remaining $300,000 of such work fee shall be paid on the date of the
initial funding of the residual repurchase commitment under the Patriot
Facility.
(i) Clearwing shall have received the fees set forth in the
2003 Fee Letter, as amended by Paragraph 4 herein;
(j) Clearwing shall have received an opinion from counsel for
the Obligors in form and substance satisfactory to Clearwing; and
(k) Clearwing shall have received the consent, if necessary or
appropriate, from the Pledgee Lender (as defined in the Loan Agreement).
(l) The Lender shall have (i) consummated an amendment to the
Loan Agreement, which increases the advance rate on Eligible Mortgage Loans to
an advance rate satisfactory to the Lender and the Borrower, and (ii) received
the consent of the Pledgee Lender (as defined in the Loan Agreement) to such
amendment.
4. Amendments to 2003 Fee Letter. Capitalized terms used
solely in this Paragraph 4 and not otherwise defined in this letter agreement
shall have the meaning ascribed to them in the 2003 Fee Letter. As consideration
for Clearwing's consents as provided herein and effective upon the date of
execution of the documents evidencing the Patriot Facility (the "Patriot Closing
Date"), the Obligors, jointly and severally, agree to the following amendments
to the 2003 Fee Letter and the Loan Agreement:
(a) The expiration date of the Commitment Transaction Fee set
forth in Section 4(b) of the 2003 Fee Letter shall be extended from January 11,
2005 to and including September 30, 2006;
(b) Subject to the amendment set forth in Section 4(c) below,
the definition of "Maximum Credit" as set forth in the Loan Agreement shall be
amended and restated to read as follows:
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"Maximum Credit" means $250,000,000, provided
however, that the amount of the Maximum Credit may, in the
sole discretion of the Lender at any time after the first
anniversary of the Closing Date up November 30, 2005, be
increased to at least $400,000,000, provided further, however,
that the Company shall have the right to terminate the option
of the Lender to so increase the amount of the Maximum Credit
so long as (i) the Company and the Lender agree in writing to
terminate such option, and (ii) the Increase Option
Termination Fee (as defined in the Fee Letter) is paid to
Clearwing pursuant to the terms of the Fee Letter.
(c) Section 5 of the 2003 Fee Letter shall be amended and
restated to read as follows:
"5. Increase Commitment Fees. If the Maximum Credit
is increased to at least $400,000,000 at the sole discretion
of Clearwing (the date of such increase, the "Increase Date"),
the Obligors shall pay to Clearwing the following fees:
a. Increase Commitment Exercise Fee. A commitment
exercise fee (the "Increase Commitment Exercise Fee") of
$10,000,000, which shall be fully earned on the Increase Date,
nonrefundable when paid, and due and payable in equal monthly
installments on the first day of each month commencing with
the first day of the first full month following the Increase
Date and continuing until all Obligations have been paid in
full, with any remaining balance due and payable on the
Termination Date, provided, however, that if the Increase Date
is on or after June 30, 2005, the Increase Commitment Exercise
Fee shall be reduced by an amount equal to (i) $250,000, times
(ii) the total number of full months that exist during the
period from June 30, 2005 through and including the Increase
Date.
b. Increase Credit Support Fee. An increase credit
support fee of $1,350,000, which fee shall be fully earned and
due and payable on the Termination Date, and nonrefundable
when paid.
c. Increase Loan Commitment Fee. An increase loan
commitment fee of $10,500,000, which fee shall be fully earned
and due and payable on the Increase Date, and nonrefundable
when paid, and shall be payable in advance in 24 equal monthly
installments of $437,500 each, payable on the first day of
each calendar month from and after the Increase Date through
the date on which all of the Obligations are paid in full in
accordance with the terms of the Loan Agreement, and the
commitments of the Lender under the Loan Agreement are
terminated, provided, however, that (a) the increase loan
commitment fee that is due in advance for the period from the
Increase Date through the last day of the calendar month in
which the Increase Date falls shall be due and payable on the
Increase Date and shall be an amount equal to (i) $437,500,
times (ii) the result of the total number of days that will
elapse from (and including) the Increase Date through the last
day of the calendar month in which the Increase Date falls
divided by the total number of days in such month, and (b) on
the Termination Date, the Obligors shall pay an amount
necessary to pay in full the remaining balance of the increase
loan commitment fee, provided further, however, that if the
Increase Date is on or after June 30, 2005, the Increase Loan
Commitment Fee shall be reduced by an amount equal to (i)
$437,500, times (ii) the total number of full months that
exist during the period from June 30, 2005 through and
including the Increase Date.
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d. Increase Option Termination Fee. The Increase
Option Termination Fee (as referenced in the definition of
Maximum Credit Amount in the Loan Agreement) shall be an
amount equal to (i) $7,500,000 plus (ii) an amount equal to
$500,000 times each month during the term of the Loan
Agreement that the Maximum Credit was not increased to at
least $400,000,000."
(d) The unpaid balance of the Loan Commitment Fee set forth in
Paragraph 2 of the 2003 Fee Letter shall be accelerated such that (i) $2,000,000
of such unpaid balance shall be due and payable on the Patriot Closing Date, and
(ii) the balance remaining after payment of such $2,000,000 shall be paid in
equal monthly of $1,000,000 on the first day of each month commencing with the
first day of the first full month following the Patriot Closing Date until the
Loan Commitment Fee is paid in full.
(e) The following new Paragraph 10 shall be added to the Fee
Letter:
10. Evergreen Expense Deposit. From and after October
26, 2004 through and including the date that all Obligations
have been paid in full in accordance with the terms of the
Loan Agreement, the Obligors shall maintain at all times a
$100,000 expense deposit with Clearwing, for the benefit of
Clearwing, the Lender, and their affiliates.
5. Limited Consents. This consents shall be limited precisely
as provided for herein, and shall not be deemed to be a waiver of, amendment of,
consent to or modification of any other term, provision or Event of Default
under Loan Agreement, the Pledge Agreement or of any term or provision of any
other Loan Document or other instrument referred to therein or herein or of any
transaction or further or future action on the part of the Borrower or Trust
2003-1 which would require the consent of the Lender or Clearwing under the Loan
Agreement or the Pledge Agreement.
6. Reservation of Rights. You are hereby advised that the
Lender and Clearwing expressly reserve all of their respective rights and
remedies against the Borrower and Trust 2003-1 under the Loan Agreement, the
Pledge Agreement and the other Loan Documents and at law and in equity with
respect to all existing or future Events of Default. Neither the Lender nor
Clearwing shall be deemed to have waived any term or condition of the Loan
Agreement, the Pledge Agreement or any other Loan Document or to have agreed to
a forbearance with respect to any right or remedy which the Lender or Clearwing
may now have or in the future may have under the Loan Agreement, the Pledge
Agreement or any other Loan Document, at law, in equity or otherwise on account
of any Default or Events of Default, Neither the Lender nor Clearwing shall by
virtue of any action or omission be deemed to have altered or prejudiced any
rights or remedies under or in connection with the Loan Agreement, the Pledge
Agreement or under or in connection with any Default under the Loan Documents
except as specifically set forth herein. All of the terms and conditions of the
Loan Agreement and the other Loan Documents are and shall remain in full force
and effect.
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7. Miscellaneous
(a) This letter agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of this letter agreement by facsimile or electronic mail shall be equally
effective as delivery of a manually executed counterpart.
(b) Section and paragraph headings herein are
included for convenience of reference only and shall not constitute a part of
this letter agreement for any other purpose.
(c) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
Very truly yours,
CLEARWING CAPITAL, LLC
By: Chrysalis Capital Partners, LLC,
Its Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Sole Member
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Accepted and Agreed to this
26th day of October 2004:
ABFS WAREHOUSE TRUST 2003-2
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
ABFS WAREHOUSE TRUST 2003-1
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
ABFS CONSOLIDATED HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
AMERICAN BUSINESS CREDIT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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AMERICAN BUSINESS MORTGAGE SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
HOMEAMERICAN CREDIT, INC.,
D/B/A UPLAND MORTGAGE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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