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12/02 AMENDMENT TO SENIOR SECURED
CREDIT AGREEMENT
dated as of December 19, 2002
by and among
AMERICAN BUSINESS CREDIT, INC.
and certain affiliates
and
JPMORGAN CHASE BANK,
as Agent and as a Lender,
and
the other Lender(s) parties hereto
amending (for the first time)
the 3/02 Senior Secured Credit Agreement
dated as of March 15, 2002, as supplemented by
the 10/02 Letter of Credit Supplement to
Senior Secured Credit Agreement,
among such parties
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INDEX OF DEFINED TERMS
12/02 Amendment................................................................1
12/02 Amendment Effective Date.................................................3
3/02 Credit Agreement..........................................................1
ABC............................................................................1
ABFRS2002......................................................................1
ABMS...........................................................................1
Acceleration Date..............................................................3
Agent..........................................................................1
Agreement......................................................................1
Chase..........................................................................1
Commitments Cancellation Date..................................................4
Companies......................................................................1
Company........................................................................1
Current Credit Agreement.......................................................1
HAC............................................................................1
Maturity Date..................................................................3
Parent.........................................................................1
Residual Interest Certificates.................................................3
Termination Date...............................................................4
TRC............................................................................1
Table of Contents
Page
TABLE OF CONTENTS
LETTER OF CREDIT SUPPLEMENT....................................................2
1. DEFINITIONS................................................................3
7. COLLATERAL.................................................................4
8. CONDITIONS PRECEDENT.......................................................4
9. REPRESENTATIONS............................................................6
11. NEGATIVE COVENANTS........................................................6
16. MISCELLANEOUS.............................................................6
i
12/02 AMENDMENT TO
SENIOR SECURED CREDIT AGREEMENT
Preamble
This 12/02 Amendment to the Senior Secured Credit Agreement dated as of
December 18, 2002 (the "12/02 Amendment") amending the 3/02 Amended and Restated
Senior Secured Credit Agreement dated March 15, 2002 (the "3/02 Credit
Agreement", as supplemented by the 10/02 Supplement, as amended hereby and as it
may be further supplemented, further amended or restated from time to time, the
"Current Credit Agreement" or, within itself, this "Agreement"), among:
AMERICAN BUSINESS CREDIT, INC. ("ABC"), a Pennsylvania corporation,
HOMEAMERICAN CREDIT, INC. ("HAC"), a Pennsylvania corporation doing
business under the assumed or fictitious name Upland Mortgage, and
AMERICAN BUSINESS MORTGAGE SERVICES ("ABMS"), a New Jersey corporation
formerly named New Jersey Mortgage & Investment Corp., Inc., TIGER
RELOCATION COMPANY ("TRC"), a Pennsylvania corporation formerly named
ABC Holdings Corporation, and ABFS Residual 2002, Inc. ("ABFSR2002"),
each with its principal office at BalaPointe Office Centre, 111
Presidential Boulevard, Suite 215, Bala Cynwyd, Pennsylvania 19004
(ABC, HAC, ABMS, TRC, and ABFSR2002 are herein collectively the
"Companies" and are sometimes individually referred to as a "Company");
AMERICAN BUSINESS FINANCIAL SERVICES, INC. (the "Parent"), a Delaware
corporation and owner of all of the capital stock of ABC, which owns
all of the capital stock of each of the other Companies;
JPMORGAN CHASE BANK ("Chase"), a New York banking corporation, acting
herein as a Lender and as agent and representative of the Lenders and
Eligible Assignees (in that capacity, Chase is called the "Agent"); and
such other Lender(s) as may from time to time be party to the Current
Credit Agreement;
recites and provides as follows:
Recitals
The parties wish to amend the 3/02 Credit Agreement, as supplemented by
the 10/02 Supplement (as so supplemented, the "Supplemented Credit Agreement")
to extend the maturity of the facility to March 6, 2003 and the Termination Date
to March 5, 2003, to provide for an additional Class R Certificate to be Pledged
to the Agent as Collateral, to add the negative covenant that the Companies will
limit their Repurchased Defaulted Mortgage Loans owned to one percent (1%) of
the Companies' aggregate portfolio of Serviced Loans and to modify the
provisions of the 10/02 Supplement to allow issuance of a Letter of Credit that
has an expiry date later than the Termination Date.
All capitalized terms defined in the Supplemented Credit Agreement and
used but not defined differently in this Amendment have the same meanings here
as there.
The Sections of this 12/02 Amendment are numbered to correspond with
the numbers of the Sections of the 3/02 Credit Agreement (and, in one instance,
of the LC Supplement) and are consequently nonsequential.
Agreements
In consideration of the premises, the mutual agreements stated below
and other good and valuable consideration paid by each party to each other party
to this Agreement, the receipt and sufficiency of which each party hereby
acknowledges, the parties hereby agree as follows.
LC SUPPLEMENT
Section 3.3 of the LC Supplement is hereby amended in its entirely to
henceforth read as follows:
3.3 Expiration Date; If LC Exposure Continues After
Termination. Each Letter of Credit shall expire at or before the close
of business on the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof,
one year after such renewal or extension). Notwithstanding any
expiration or termination of the right of the Companies to borrow under
the Current Credit Agreement, or of the Current Credit Agreement
itself, for so long as the Lenders or any of them have any LC Exposure,
all provisions of the Current Credit Agreement, including this LC
Supplement, except only those permitting the Companies to borrow or to
obtain new Letters of Credit (or any modifications, extensions,
reissuances or replacements of existing Letters of Credit), shall
remain in full force and effect to the same effect as if such
expiration or termination had not occurred, including, but not limited
to, the obligations of the Companies to maintain Collateral for the LC
Exposure, to timely pay all of their liabilities under the Current
Credit Agreement as and when due, to pay letter of credit fees (even
though no Facilities Fee is accruing or due), reimburse expenses and
indemnify the Agent and the Lenders as provided in the Current Credit
Agreement, to deliver cash collateral as and when provided in the LC
Supplement and to otherwise keep, observe and perform all of their
covenants and obligations, including all reporting obligations and all
negative covenants under the Current Credit Agreement, each letter of
credit application or other agreement submitted by any Company to, or
entered into by any Company with, Chase relating to any Letter of
Credit or any other Facilities Papers, and if any Event of Default
shall occur, the Agent and the Lenders shall have all of the rights,
remedies, powers, options and privileges provided for in or
contemplated by the Current Credit Agreement, all such applications and
other agreements and all Security Instruments or other Facilities
Papers and under applicable Law.
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1. DEFINITIONS
1.2 Definitions of General Application. This Section is hereby amended
as follows:
A. The following definitions are hereby added to Section 1.2, in
alphabetical order:
"12/02 Amendment" means the 12/02 Amendment to Senior Secured
Credit Agreement dated as of December 19, 2002.
"12/02 Amendment Effective Date" is defined in the 12/02
Amendment (to mean December 19, 2002.)
B. The definitions of "Maturity Date", "Residual Interest Certificates"
and "Termination Date" set forth in Section 1.2 are each hereby amended in its
entirety to henceforth read as follows:
"Maturity Date" means March 6, 2003, or the earlier date (the
"Acceleration Date"), if any, to which maturity of the Senior Credit
Notes is accelerated pursuant to this Agreement, by order of any
Governmental Authority or by operation of law.
"Residual Interest Certificates" means and includes (i) the 1997-2
Class R Certificate dated September 29, 1997, Certificate No. R-1,
issued in respect of the Pooling and Servicing Agreement dated as of
September 1, 1997 by and among American Business Credit, Inc., as
servicer, Prudential Securities Secured Financing Corporation, a
Delaware corporation, as depositor, and Chase (which was then named The
Chase Manhattan Bank), as trustee, issued by such trustee to ABFS
1997-2, Inc., representing a one hundred percent (100%) Percentage
Interest (as defined in such Pooling and Servicing Agreement) of the
related interest in ABFS Mortgage Loan Trust 1997-2 existing under the
laws of the State of New York and created pursuant to said Pooling and
Servicing Agreement, and (ii) the 1998-3 Class R Certificate dated
September 29, 1998, Certificate No. R-1, issued in respect of the
Pooling and Servicing Agreement dated as of September 1, 1998 by and
among American Business Credit, Inc., as servicer, Prudential
Securities Secured Financing Corporation, a Delaware corporation, as
depositor, and Chase (which was then named The Chase Manhattan Bank),
as trustee, issued by such trustee to ABFS 1998-3, Inc., representing a
one hundred percent (100%) Percentage Interest (as defined in such
Pooling and Servicing Agreement) of the related interest in ABFS
Mortgage Loan Trust 1998-3 existing under the laws of the State of New
York and created pursuant to said Pooling and Servicing Agreement, a
copy of such certificates being attached as Exhibit I to this
Agreement, and (iii) the 1998-1 Class R Certificate dated March 12,
1998, Certificate No. R-1, issued in respect of the Pooling and
Servicing Agreement dated as of February 1, 1998 by and among American
Business Credit, Inc., as servicer, Prudential Securities Secured
Financing Corporation, a Delaware corporation, as depositor, and Chase
(which was then named The Chase Manhattan Bank), as trustee, issued by
such trustee to ABFS 1998-1, Inc., representing a one hundred percent
(100%) Percentage Interest (as defined in such Pooling and Servicing
Agreement) of the related interest in ABFS Mortgage Loan Trust 1998-1
existing under the laws of the State of New York and created pursuant
to said Pooling and Servicing Agreement, a copy of such certificate
being attached as Exhibit 12/02-I to the 12/02 Amendment (to this
Agreement), and such three (3) Class R Certificates all having been,
and remaining, Pledged to the Agent, the parties intending that all
such certificates secure the Obligations.
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"Termination Date" means the earlier of (i) the Business Day
immediately preceding the Maturity Date, or (ii) the date (if any) when
the Lenders' Commitment to fund Advances under this Agreement is
terminated pursuant to this Agreement or by operation of law (the
"Commitments Cancellation Date").
7. COLLATERAL
7.1 Grant of Security Interest. The provisions of Section 7 of the 3/02
Credit Agreement are not amended hereby. Cumulative of such existing provisions,
as security for the payment of the Loan and for the payment and performance of
all of the Obligations, each Companies hereby GRANTS to the Agent, as agent and
representative of the Lenders, a first priority security interest in all of such
Company's present and future estate, right, title and interest in and to the
Collateral, in addition to and cumulative of the security interest in the
Collateral granted in the 3/02 Credit Agreement, and the parties hereby declare
and confirm that all such security interests were and are granted to and held by
the Agent as agent and representative of the Lenders, including Chase.
The parties hereby also agree to (further) amend the Security Agreement
-- Class R Certificate to add Certificate No. 1998 R-1 (the "1998-1
Certificate") representing 100% of Class R of the ABFS Mortgage Loan Trust
1998-1 Mortgage Pass-Through Certificates, Series 1998-1, as Collateral (in
addition to the 1998-2 Certificate and the 1997-3 Certificate which are
currently Pledged to the Agent), and the Companies hereby agree to cause
ownership of the 1998-1 Certificate to be absolutely transferred and conveyed to
ABFSR2002, and ABFSR2002 agrees to Pledge to the Agent the 1998-1 Certificate,
and agrees to deliver the original thereof and a blank bond power therefor duly
executed by ABFSR2002 to the Agent.
8. CONDITIONS PRECEDENT
Section 8 of the 3/02 Credit Agreement is hereby amended by adding the
following new Sections 8.3 and 8.4:
8.3 Each Advance on or after the 12/02 Amendment Effective
Date. The obligations of the Lenders to fund their respective Funding
Shares of each Advance requested on or after the 12/02 Amendment
Effective Date are also subject to the condition precedent that the
Agent shall have received the following, all of which must be
satisfactory in form and content to the Agent in its sole discretion:
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(a) The 12/02 Amendment duly executed by all parties;
and
(b) such other documents, if any, as shall be
specified by the Agent.
8.4 Working Capital Advances on or after the 12/02
Amendment Effective Date. The obligations of the Lenders to fund their
respective Funding Shares of each Working Capital Advance requested on
or after the 12/02 Amendment Effective Date which, when added together
with other Working Capital Advances outstanding, would exceed the
Collateral Value of the Working Capital Collateral other than the
1998-1 Class R Certificate, are also subject to the condition precedent
that the Agent shall have received the following, all of which must be
satisfactory in form and content to the Agent in its sole discretion:
(a) the 12/02 Amendment to the 3/02 Security
Agreement - Residual Interest Certificates, duly executed by ABFSR2002;
(b) a UCC financing statement amendment to amend the
definition of "Residual Interest Certificates" in it filed financing
statement (to include the 1998-1 Class R Certificate), duly authorized
to be filed by ABFSR2002;
(c) the original 1998-1 Certificate, either endorsed
to reflect a complete chain of title from the original owner to
ABFSR2002 or reissued to reflect ABFSR2002 as owner, together with a
bond power for such certificate duly executed by ABFSR2002, completed
in all respects except that the places for the name of the
attorney-in-fact appointed thereby and the name of the transferee shall
be left blank, sufficient for transferring ownership of the 1998-1
Certificate;
(d) current opinions of the Company's inhouse counsel
and of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP (or other special counsel to the Company
reasonably acceptable to the Agent), acting as special counsel for the
Companies and the Parent, in substantially the same forms and substance
as such inhouse counsel's and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP's March 19, 2002
opinion, except also referencing the 12/02 Amendment and with such
special counsel also opining that (i) the 1998-1 Certificate has been
validly transferred to ABFSR2002 and all consents required for such
transfer to be recognized as fully effective by the issuer of the
1998-1 Certificate have been obtained, (ii) the amendment to the filed
financing statement of ABFSR2002 will create a perfected and continuing
security interest in the 1998-1 Certificate to the extent that
perfection is obtained by the filing of a financing statement, (iii)
such filed financing statement amendment and possession of the 1998-1
Certificate by the Agent will result in the Agent's having a duly
perfected Lien in such Collateral, (iv) no further action will be
required to continue such perfection except the filing, if and when
required, of a continuation statement within five (5) years of the
filing of such financing statement, or of an amendment to the filed
financing statement if there is a material change in the name, identity
or structure of the debtor, and (v) no state or local tax or fee will
be required to be paid by the Agent or the Lenders except the nominal
statutory filing fees for such financing statement amendment to perfect
such security interest in the 1998-1 Certificate; and
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(d) such other documents, if any, as shall be
specified by the Agent.
9. REPRESENTATIONS
The Companies hereby republish all of their representations and
warranties made in the 3/02 Credit Agreement.
11. NEGATIVE COVENANTS
A new Section 11.12 reading as follows is hereby added to the end of
Section 11:
11.11 Repurchased Mortgage Loans Limitation. The Company will not on
any day own Repurchased Defaulted Mortgage Loans (including both those
Pledged to the Agent and those not Pledged to the Agent) having
aggregate outstanding principal balances of more than one percent (1%)
of the sum of the aggregate outstanding principal balances of the
Companies' aggregate portfolio of Serviced Loans.
16. MISCELLANEOUS
The parties hereby ratify and confirm the Current Credit Agreement
(being the 3/02 Credit Agreement, as amended hereby). The Parent hereby ratifies
the Guaranty and confirms that (i) the Guaranty is and remains in full force and
effect and (ii) the Parent, as primary obligor and not as a surety,
unconditionally guarantees to the Lenders and the Agent the full, prompt and
punctual payment of the Loan when due (whether at its stated maturity, by
acceleration or otherwise) in accordance with the terms and provisions of the
Current Credit Agreement, the Notes and the other Credit Papers, and that such
guaranty obligation is not and shall not be impaired, diminished or otherwise
affected in any way adverse to the Agent or the Lenders by this Amendment or any
act or transaction contemplated hereby, and the Parent hereby irrevocably
consents to this Amendment.
16.10 Notice Pursuant to Tex. Bus. & Comm. Code ss.26.02. This Section
is hereby amended to read as follows:
THE 3/02 CREDIT AGREEMENT, AS SUPPLEMENTED BY THE 10/02 SUPPLEMENT AND
AS AMENDED HEREBY, AND THE OTHER FACILITIES PAPERS TOGETHER CONSTITUTE
A WRITTEN LOAN AGREEMENT WHICH
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REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
(The remainder of this page is blank; unnumbered counterpart
signature pages follow.)
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EXECUTED as of December 19, 2002.
By the Companies: AMERICAN BUSINESS CREDIT, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
HOMEAMERICAN CREDIT, INC. doing business as
UPLAND MORTGAGE
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
AMERICAN BUSINESS MORTGAGE SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
TIGER RELOCATION COMPANY
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ABFS RESIDUAL 2002, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By the Parent/Guarantor AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By the Agent and a Lender: JPMORGAN CHASE BANK,
as the Agent and as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attached:
Exhibit 12/02-I - Copy of 1998-1 Class R Certificate
Unnumbered counterpart signature page to 12/02 Amendment to Senior Secured
Credit Agreement among American Business Credit, Inc. and certain affiliates
and JPMorgan Chase Bank, as Agent and as a Lender