Exhibit 10.4
AMENDMENT NO. 1
TO
SALE AND EXCHANGE AGREEMENT
AMENDMENT NO. 1, dated as of the 15th day of July (the "Amendment") to a
certain SALE AND EXCHANGE AGREEMENT, dated as of the 4th day of June, 1998
(the "Agreement"), by and among ARBOR NATIONAL COMMERCIAL MORTGAGE, LLC
("ANCM"), a New York limited liability company organized on January 25, 1995
and operating under a Restated and Amended Operating Agreement (the
"Operating Agreement") dated as of January 1, 1996; the individuals and
entities as set forth in APPENDIX A to the Agreement (the "Members"), who
hold membership interests in ANCM; ARBOR MANAGEMENT LLC, a New York limited
liability company and the Manager of ANCM ("Management"); ARBOR SECURED
FUNDING, INC., a New York corporation which is a subsidiary of ANCM
("ASF"); and ARBOR NATIONAL HOLDINGS, INC., a New York Corporation, formed on
June 12, 1998 ("ANHI"). All terms used in this Amendment, unless defined,
shall have the meanings set forth in the Agreement.
WITNESSETH:
WHEREAS, the parties hereto previously executed and delivered the
Agreement;
WHEREAS, the Agreement currently provides for allocation of the Total
Consideration on the basis of the Members' respective capital accounts as of
the date the Exchange Transaction;
WHEREAS, the Members wish to avoid distortions in the allocation of the
Total Consideration which would result from the proposed distribution of cash
by ANCM representing previously taxed earnings of ANCM prior to completion of
the Exchange Transaction (the "Tax Distribution:);
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The second sentence of Section 2, Consideration, of the
Agreement hereby amended to read in its entirety as follows:
ANCM and all Members agree that the Total Consideration shall be
allocated the Members in the same proportion which such Member's
capital account in ANCM as of April 1, 1998, bears to the aggregate
capital accounts of all Members in ANCM as of April 1, 1998.
2. All other terms and conditions of the Exchange Agreement
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ARBOR NATIONAL HOLDINGS, INC. ARBOR NATIONAL COMMERCIAL
MORTGAGE, LLC
By: Arbor Management, LLC
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, President
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, President
ARBOR SECURED FUNDING, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, President
CLASS A MEMBERS:
/s/▇▇▇▇ ▇▇▇▇▇▇▇
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Trust pursuant to the TRUST AGREEMENT dated as of the 22nd day of MARCH,
1994, made by ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, as Grantors and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
as Trustee.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇▇ GRANTOR RETAINED ANNUITY TRUST
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
ARBOR MANAGEMENT, LLC
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, President
CLASS B MEMBERS:
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