Exhibit 10.34 Third Amended & Restated Amendment and Waiver AA




 



THIRD AMENDED & RESTATED

AMENDMENT AND WAIVER AGREEMENT



                   
THIS THIRD AMENDED & RESTATED AMENDMENT AND WAIVER AGREEMENT, dated as of November 15,
2001 (this "Agreement"), is among ALLEGIANCE FUNDING I, LLC (the
"Depositor"), MANUFACTURERS AND TRADERS TRUST COMPANY (the "Trustee"),
and POINT WEST CAPITAL CORPORATION (the "Servicer") and is consented to by the
Certificateholders named on the signature pages hereto.



RECITALS



                   
WHEREAS (i) the Depositor, the Trustee and the Servicer are parties to that certain Trust
Agreement, dated as of August 1, 1998 (as amended from time to time, and including all
supplements thereto, the "Trust Agreement"), and (ii) the Depositor, the Trustee
and the Servicer are parties to that certain Third Amended and Restated Supplement to
Trust Agreement for Revolving Series 1998-1, dated as of April 14, 2000 (the "Series
1998-1 Revolving Supplement"), pursuant to which the Depositor issued the Allegiance
Capital Trust I Revolving Certificates, Series 1998-1 (the "98-1 Revolving
Certificates");


                   
WHEREAS the Loan to Peavy & Brooks International, Inc. (the "PBI Loan") held
by theDepositor and the Loan to Southern Acquisitions, Inc. (the "Southern
Loan") held by the Depositor havebecome Defaulted Loans and have caused the Depositor
to be in violation of certain provisions of theTrust Agreement;


                   
WHEREAS the parties previously agreed to amend a provision of the Series 1998-1 Revolving
Supplement and to amend and waive certain provisions of the Trust Agreement on the terms
and conditions set forth in the Amendment and Waiver Agreement dated as of December 15,
2000 (the "Initial Waiver"), as modified by the Amended & Restated Amendment
and Waiver Agreement, dated as of April15, 2001 (the "First Amended Waiver"), as
modified by the Second Amended & Restated Amendmentand Waiver Agreement, dated as of
July 16, 2001 (the "Second Amended Waiver"; the Initial Waiver,together with the
First Amended Waiver and the Second Amended Waiver, is sometimes hereinafter referred to
as the "Existing Waiver");


                   
WHEREAS the Scheduled Maturity of the 98-1 Revolving Certificates, as amended under the
Existing Waiver, is September 17, 2001;


                   
WHEREAS, pursuant to Section 9.02 of the Trust Agreement, the Depositor, the Servicer and
the Trustee may amend, modify or waive the provisions thereof with the prior written
consent of the Holders of each Outstanding Certificate and may amend, modify or waive the
provisions of the Series 1998-1


                   
Revolving Supplement with the prior written consent of the Holders of the 98-1 Revolving
Certificates; and WHEREAS the parties have agreed to further amend a provision of the
Series 1998-1 Revolving Supplement and to amend and waive certain provisions of the Trust
Agreement on the terms and conditions set forth in this Agreement;


                   
NOW, THEREFORE, the parties hereto agree as follows:


                   
1.      Definitions.  Each capitalized term used and not
otherwise defined herein, including those used in the Recitals, has the meaning set forth
in the Trust Agreement.


 


                   
2.      Amendments to Series 1998-1 Revolving Supplement.
  The definition of "Scheduled Maturity" in the Series 1998-1 Revolving
Supplement is hereby amended by deleting the date "December 15, 2000" therein
and substituting in its place the date "December 15, 2001". Notwithstanding the
foregoing, the increase in interest rate that became effective on February 15, 2001 under
Section 5 of the 1998-1 Revolving Supplement (as amended by the Initial Waiver) shall
remain in effect.


                   
3.      Amendments to Trust Agreement.     
Solely with respect to the PBI Loan and the Southern Loan, each of the Depositor, the
Servicer, the Trustee and the Certificateholders agree to amend the following provisions
of the Trust Agreement on the following terms:


                           
(a)      Clause (b) of the definition of "Adjustment
Amount". The words "within sixty (60) days from the date the Loan became a
Defaulted Loan" in clause (b) of the definition of"Adjustment Amount" are
hereby deleted and replaced with the words "on or before February 15, 2002"; and


                           
(b)     Clause (c) of the definition of "Adjustment Amount".
     The words "within one hundred twenty (120) days from the
date of receipt of such letter of intent" in clause (c) of the definition of
"Adjustment Amount" are hereby deleted and replaced with the words "on or
before April 15, 2002".


                           
(c)      Section 1.03(b).     Section
1.03(b) is hereby amended to provide that Recoveries in respect of the PBI Loan or the
Southern Loan shall be applied first to reimburse the Reserve Account for any Recovery
Expenses allocable to such PBI Loan or Southern Loan and previously withdrawn from the
Reserve Account.


                           
(d)     Section 5.03(d).     Section 5.03(d) is
hereby amended to allow disbursement of funds from the Reserve Account on each
Distribution Date to reimburse the Servicer or the Special Servicer, as applicable, for
Recovery Expenses allocable to the PBI Loan and/or Southern Loan if (i) the
Certificateholder Agent has provided to the Depositor, the Servicer and the Special
Servicer written consent to such disbursement and (ii) the remaining balance in the
Reserve Account after such disbursement would equal or exceed the Reserve Account Floor
Amount. The Depositor, the Servicer or the Special Servicer, as applicable, shall provide
a written request for such disbursement to the Certificateholder Agent by the 3rd day of
the calendar month in which such disbursement is to be made (or the next Business Day if
such day is not a Business Day) and the Certificateholder Agent shall provide written
consent or refusal to consent no later than the 10th day of such calendar month (or the
next Business Day if such day is not a Business Day) and, assuming such request is timely
delivered, the Certificateholder Agent's approval shall not be unreasonably withheld. The
Certificateholder Agent's written consent shall be deemed to be direction to the Trustee
to make such disbursement pursuant to Schedule 9 of the Servicing Report.


                           
(e)      Section 6.01.     Section 6.01 is
hereby amended to delete the period at the end of subparagraph (j) thereof and replace it
with a semi-colon and to add the following new clause at the end thereof:


                           
(k)      the failure of the Special Servicer to provide to the
Certificateholders and the Certificateholder Agent weekly reports as to the status of the
                              
PBI Loan and the Southern Loan, including a comparison of actual results to the projected
timeline for completion of the workout of each
                              
such Defaulted Loans indicated on Exhibit A attached to that certain Third Amended &
Restated Amendment and Waiver Agreement, dated as
                              
of November 15, 2001, among the Depositor, the Trustee and the Servicer (as consented to
by the


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Certificateholders), so long as such Loans are included in the Trust Estate and have not
been re-classified as performing Loans or Liquidated Loans. 


                   
4.              Waivers.
     The Trustee and the Certificateholders hereby waive through but
not beyond February 15, 2002, any Default by the Depositor under Section 6.01(f) of the
Trust Agreement, provided that a Depositor Event of Default under Section 6.01(f) shall be
deemed to exist on and after February 16, 2002 if the 98-1 Revolving Certificates that are
Rated Certificates have not been paid in full on or before February 15, 2002.


                   
5.              Expenses.
     The Trust shall reimburse from funds on deposit in the Reserve
Account all reasonable fees, costs and expenses incurred by the Certificateholder Agent
and the Holders of the Rated Certificates in connection with their review of this
Agreement, including, without limitation, the reasonable fees of their special counsel
(namely, Day, Berry & Howard LLP). In each applicable monthly Servicer Report, the
Servicer shall from time to time instruct the Trustee to effect any such reimbursements.


                   
6.              Governing
Law. This Agreement shall be governed by and construed in accordance with the internal
laws of the State of New Yor k. 


                   
7.              General.
     This Agreement and all the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one instrument. Delivery of an executed counterpart
of a signature page to this Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Agreement.


                   
8.              Ratification;
Consent.  Except as expressly modified and superseded by this Agreement, each of
the Trust Agreement and the Series 1998-1 Revolving Supplement is ratified and confirmed
in all respects and shall continue in full force and effect. By their execution and
delivery of the consent hereto, each of the Certificateholders authorizes and directs the
Trustee to execute and deliver that certain Third Amendment to Servicing Agreement, dated
as of November 15, 2001 (the "Servicing Amendment"), among the Depositor, the
Trustee, the Servicer, Allegiance Capital, LLC, as the Special Servicer, and Foresight
Analysts, Inc., as the Servicing Advisor, a final copy of which is attached hereto as
Exhibit B.


 


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	ALLEGIANCE FUNDING 1 llc, , as
    the Depositer

	
	By:
             /s/ Michael W. McDermitt
	

    
	Name:    Michael W. McDermitt
	Title:        Vic
    President & Secretary





 



	MANUFACTURERE AND TRADERS TRUST
    COMPANY, as the Trustee

	
	By:
              /s/ Russell T. Whitley
	

    
	Name:     Russell T. Whitley
	Title:
            Assitant Vice President





 



	POINT WEST CAPITAL CORPORATION,
      as the Servicer

	
	By:
             /s/ John Ward Rotter
	

    
	Name:    John Ward Rotter
	Title:       
    Chief Financial Officer





Consented and Agreed:



Each of the Certificateholders aurhorizes and directs the Trustee to execute the
foregoing Third Amended & Restated Amendment and Waiver Agreement and the Servicing
Amendment referenced therein.



	TICE & CO., as registered
    owner of the 
	UNITED OF OMAHA LIFE INSURANCE

	Class A-R Certificates	COMPANY

		
	By:
             /s/ Brian D.  Hunt
	By:        /s/
    Edwin H. Garrison Jr.
	

    	

    
	Its::   
         Partner-Tice & Co	Its:        
    First Vice President





 



	TICE & CO., as registered
    owner of the 
	NATIONWIDE LIFE INSURANCE

	Class B-R Certificates	COMPANY
		
	By:
             /s/ Brian D.  Hunt
	By:        /s/
    Mark W. Poeppelman
	

    	

    
	Its::   
         Partner-Tice & Co	Its:
             Associate Vice President





 



	TICE & CO., as registered
    owner of the 
	LIBERTY LIFE INSURANCE COMPANY

	Class C-R Certificates	(Certificates held in the nominee name HARE &
    CO.)
		
	By:
             /s/ Brian D.  Hunt
	By:
             /s/ Adam Emerson
	

    	

    
	Its::   
         Partner-Tice & Co	Its:        
    Authorized Officer





 



	ALLEGIANCE FUNDING 1, LLC, as
	TICE & CO.,  registered
    owner of the Class C

	registered owner of the Class D-R Certificates	Certificates
		
	By:
             /s/ Michael W. McDermitt
	By:
             /s/ Brian D.  Hunt

	

    	

    
	Its::        
    Vice President & Secretary      	Its::   
         Partner-Tice & Co





 



	PACIFIC LIFE INSURANCE COMPANY
	TICE & CO.,   
    registered owner of the Class D

		Certificates
		
	By:
             /s/ Cathy Schwartz
	By:
             /s/ Brian D.  Hunt

	

    	

    
	Its::   
          Asst. Vice President	Its::   
         Partner-Tice & Co
		
	By:
             /s/ Diane W. Dales
	
	

    	
	Its::   
          Asst. Secretary	





		TICE & CO.,   
    registered owner of the Class E

		Certificates
		
		By:
             /s/ Brian D.  Hunt

		

    
		Its::   
         Partner-Tice & Co





 


 


EXHIBIT A


to


THIRD AMENDED & RESTATED


AMENDMENT AND WAIVER AGREEMENT


 


Nichols Family Services, LLC


Timeline for Disposition


	April - May -
    June, 2001

    




  - Complete business renewal activities;

  - Get bookkeeping established;

  - Account for pre-need assets & liabilities;

  - Establish budget and fr ee cash flow expectations;

  - Decide whether to hi re a broker for sale process;

  - Collect info for sales prospectus;

  - Prepare sales prospectus;

  - Begin identifying possible buyers

  - Business begins generating free cash flow

  



	June – July,
    2001

    




  - Marketing Process 

  - Business continues generating free cash flow

  



	August, 2001

    





  - Complete marketing process

  - Select buyer

  - Negotiate and Enter into LOI

  - Business continues generating free cash flow





	September -
    October, 2001

    




  - Complete sale process

  - Possible foreclosure and/or negotiation with Specialized Commercial
  Lending (junior mortgage

  holder) and/or the Nichols (former owners/ unsecured creditors), also
  Brown-Service (landlord in

  main funeral home)

  - September 30 October 30: close sale 

  




 


 


 



Southern Family Funeral Care, LLC

Timeline for Disposition


	April – May
    – June – July, 2001

    




  - Get bookkeeping established;

  - Accounting for pre-need assets & liabilities;

  - Establish budget and free cash flow expectations;

  - Decide whether to hire broker;

  - Collect info for sales prospectus;

  - Prepare sales prospectus;

  - Begin identifying possible buyers

  



	July –
    August – September – October, 2001

    




  - Marketing process

  - Business generating free cash flow

  



	October –
    November – December, 2001

    




  - Complete marketing process;

  - Select buyer, negotiate and enter into LOI

  



	December –
    January – February, 2002

    




  - Complete sale process;

  - Possible foreclosure and/or negotiation with junior creditors (Kents
  in respect of Kent FHs/ Morrows in respect of

    Pineview Memory Gardens).

  - January 30: close sale

  




 



 


EXHIBIT B

to

THIRD AMENDED & RESTATED

AMENDMENT AND WAIVER AGREEMENT



Please see attached.


 


 


 


 



THIRD AMENDMENT TO SERVICING AGREEMENT



                   
THIS THIRD AMENDMENT TO SERVICING AGREEMENT, dated as of November 15, 2001 (this
"Agreement"), is among ALLEGIANCE FUNDING I, LLC (the "Depositor"),
MANUFACTURERS AND TRADERS TRUST COMPANY (the "Trustee"), POINT WEST CAPITAL
CORPORATION (the "Servicer"), ALLEGIANCE CAPITAL, LLC ("Special
Servicer"), and FORESIGHT ANALYSTS, INC. (the "Servicing Advisor").



RECITALS



                   
WHEREAS the Servicer, the Special Servicer, the Servicing Advisor, the Depositor and the
Trustee are parties to that certain Servicing Agreement, dated as of August 1, 1998 (as
amended by the Consent and Amendment, dated as of June 4, 1999, and the Fourth Amendment
to Trust Agreement & Second Amendment to Servicing Agreement, dated as of August 1,
2001, the "Servicing Agreement"), whereby the Servicer, the Special Servicer and
the Servicing Advisor each perform certain duties with respect to servicing the Loans on
behalf of the Depositor and the Certificateholders;


                   
WHEREAS the parties have agreed to amend the Servicing Agreement on the terms and
conditions contained herein; and


                   
WHEREAS, pursuant to Section 7.02 of the Servicing Agreement, the Depositor, the Servicer,
the Special Servicer, the Servicing Advisor and the Trustee may amend, modify or waive the
provisions of the Servicing Agreement with the prior written consent of the Holders of 51%
of each affected Class of

Rated Certificates; 


                   
NOW, THEREFORE, the parties hereto agree as follows:


                   
1.          Definitions.
     Each capitalized term used and not otherwise defined herein,
including those used in the Recitals, has the meaning set forth in  the Servicing
Agreement. 


                   
2.          Amendments to Servicing Agreement.


                               
(a)          Section 3.02(b). Section
3.02(b) of the Servicing Agreement is hereby amended to add a new sub-clause (viii)
thereto at the end
                    
thereof as follows:


                                            
(viii) The Special Servicer shall, promptly upon becoming aware of any material fact or
material development concerning (w) any
                                 
Defaulted Loan, (x) any Delinquent Loan, (y) any Loan that the Special Servicer at such
time reasonably believes could reasonably be
                                 
expected to become a Delinquent Loan or a Defaulted Loan or (z) any underperforming Loan,
provide written notice to the Certificateholder
                                
Agent specifying such material fact or material development.


                               
(b) Section 3.16. Each of the Depositor, the Servicer, the Special Servicer, the Servicing
Advisor, the Trustee and the Certificateholders
                    
hereby agree that, notwithstanding anything to the contrary contained in the Servicing
Agreement, including, without limitation, Section 3.16 thereof and
                    
Exhibit F thereto, effective on and after March 15, 2001, each of the Servicer and the
Special Servicer shall use its best efforts to obtain and/or keep in
                    
place the insurance required under Section 3.16 of the Servicing Agreement and Exhibit F
thereto; provided that, so long as the Servicer and the
                    
Special Servicer use such best efforts, no Servicer Default, Servicer Event of Default,
Special Servicer Default or Special Servicer Event of Default



 


 



                   
shall be deemed to occur by virtue of the Servicer and/or the Special Servicer, as
applicable, being unable to comply with the requirements contained in
                    
Section 3.16 of the Servicing Agreement and Exhibit F thereto; provided further that the
foregoing shall in no way diminish or relieve the Servicer, the
                    
Special Servicer and the Servicing Advisor, as applicable, from any of their other
respective duties and obligations as set forth in the Servicing
                    
Agreement.


                   
3.          Expenses.
     The Trust shall reimburse from funds on deposit in the Reserve
Account all reasonable fees, costs and expenses incurred by the Certificateholder Agent
and the Holders of the Rated Certificates in connection with their review of this
Agreement, including without limitation the reasonable fees of their special counsel
(namely, Day, Berry & Howard LLP). In each applicable monthly Servicer Report the
Servicer shall from time to time instruct the Trustee to effect any such reimbursements.


                   
4. Governing Law.     This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.


                   
5. General.     This Agreement and all the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall be as
effective as delivery of a manually executed counterpart of this Agreement.


                   
6. Ratification.     Except as expressly modified and
superseded by this Agreement, the Servicing Agreement is ratified and confirmed in all
respects and shall continue in full force and effect.


                   
7. Effectiveness.     This Agreement shall become effective
upon (a) the execution and delivery of a counterpart hereof by each of the parties hereto
and (b) the execution and delivery by the Certificateholders of their consent to that
certain Third Amended & Restated Amendment and Waiver Agreement, dated as of November
15, 2001, among the Depositor, the Trustee and the Servicer.



 


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