Credit Suisse First Boston Mortgage Capital LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As of August 20, 2003
ABFS REPO 2001, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Section 1. Definitions.
This is an amendment to the "Side Letter" referred to in that
certain Master Repurchase Agreement (the "Master Repurchase Agreement"), dated
as of November 16, 2001, between ABFS REPO 2001, Inc., as seller, and Credit
Suisse First Boston Mortgage Capital LLC, as buyer, as amended by Amendment
Number One to the Master Repurchase Agreement, dated as of November 13, 2002,
and Waiver and Amendment Number Two to Master Repurchase Agreement, dated as of
the date hereof. From and after the date hereof, the definition of "Purchase
Price" referenced in Section 2 of the Master Repurchase Agreement shall have the
meaning set forth below:
"Purchase Price" shall mean the price at which Purchase Assets
are transferred by Seller to Buyer in a Transaction, which shall (unless
otherwise agreed) be equal to the lesser of (A) 97% of the Market Value of the
related Purchased Assets with respect to Purchased Assets initially subject to a
Transaction prior to August 20, 2003, and 90% of the Market Value of the related
Purchased Assets with respect to Purchased Assets initially subject to a
Transaction on or after August 20, 2003 and (B) the outstanding principal
balance of the related Purchased Assets.
Section 2. Counterparts.
This side letter may be executed simultaneously in any number
of counterparts. Each counterpart shall be deemed to be an original, and all
such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Seller, Guarantors and the
Buyer have caused their names to be signed hereto by their respective officers
thereunto duly authorized on the date first above written.
ABFS REPO 2001, INC., as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
as Buyer and Agent, as applicable
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Acknowledged and Agreed:
------------------------
AMERICAN BUSINESS CREDIT, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
AMERICAN BUSINESS MORTGAGE SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and Assistant Secretary
AMERICAN BUSINESS FINANCIAL SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
HOMEAMERICAN CREDIT, INC., d/b/a/ UPLAND MORTGAGE, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
WAIVER AND AMENDMENT NUMBER TWO TO
MASTER REPURCHASE AGREEMENT
This Waiver and Amendment Number Two (the "Amendment"), dated as of
August 20, 2003, is to that certain Master Repurchase Agreement, dated as of
November 16, 2001, as amended by Amendment Number One, dated as of November 13,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Agreement"), between Credit Suisse First Boston Mortgage Capital LLC, as buyer
("Buyer"), and ABFS REPO 2001, Inc., as seller ("Seller").
WHEREAS, Buyer and Seller have entered into the Agreement;
WHEREAS, Seller has requested a waiver by Buyer with respect to certain
potential Events of Default under the Agreement and the purchase by Buyer of
additional Loans under the terms of the Agreement as hereby amended;
WHEREAS, Buyer is willing to grant a waiver with respect to such
potential Events of Default and to purchase additional Loans from Seller,
subject to agreement by Seller to amend the Agreement in certain respects;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
2. Waiver of Events of Default; Agreement to Purchase.
(a) Buyer waives its rights to enforce its remedies pursuant
to Paragraph 19 of the Agreement in the event of the occurrence of an
Event of Default under Paragraph 18 q. or r., based upon Seller's
financial statements as of June 30, 2003, which are to be provided
pursuant to Paragraph 13 g.(i)(y), as follows:
(i) The failure, if any, of ABFS to maintain a
minimum Consolidated Stockholders' Equity, as described in
Paragraph 18 q., is hereby waived, provided that ABFS's actual
net total loss for 2003, as of June 30, 2003, did not exceed
$30,000,000.
(ii) The failure, if any, of ABFS to maintain the
Total Liabilities to Consolidated Stockholders' Equity ratio,
as set forth in Paragraph 18 r., as of the fiscal quarter
ended June 30, 2003, is hereby waived.
(b) Buyer hereby agrees to purchase, on the date hereof,
subject to the terms of the Agreement as hereby amended, Loans having a
Purchase Price not to exceed $20,000,000.
3. Amendments to the Agreement. Effective on the date hereof, following
the execution and delivery hereof, the Agreement is hereby amended as follows:
(a) The definition of "Market Value" is hereby amending by
inserting, after the final comma in clause (i) thereof, the following:
"but which shall, with respect to any Loan that remains subject to a
Transaction on or after September 20, 2003, in no event exceed an
amount equal to 85% of the unpaid principal balance thereof,".
(b) The definition of "Maximum Aggregate Committed Purchase
Price" is amended by deleting "$100,000,000" and inserting in its place
"$50,000,000".
(c) The definition of "Maximum Aggregate Purchase Price" is
amended by deleting "$200,000,000" and inserting in its place
"$50,000,000".
(d) Paragraph 3(b) is amended by adding at the end thereof the
following: "Notwithstanding the foregoing provisions of this Paragraph
3(b), from and after August 21, 2003, Buyer shall have no obligation to
enter into any Transaction except with respect to Purchased Assets that
are subject to a Transaction as of such date".
(e) The first sentence of Paragraph 27 is deleted and the
following inserted in its place: "This Agreement shall remain in effect
until the earliest of (i) September 30, 2003, (ii) the closing of (A) a
private placement sale of mortgage loans (which might or might not
include some or all of the Purchased Assets) and (B) a new financing
facility for mortgage loans, in each instance between a third party and
Seller, one or more Guarantors and/or one or more Affiliates of any
Guarantor, and (iii) at Buyer's option, upon the occurrence and
continuation of Event of Default pursuant to Paragraph 18 (such date,
the "Termination Date")". The second paragraph of Paragraph 27 is
hereby deleted.
4. Representations and Warranties. Each of the parties hereto hereby
confirms that each of the representations and warranties set forth in the
Agreement made by such party are true and correct as of the date first written
above with the same effect as though each had been made by such party as of such
date, except to the extent that any of such representations and warranties
expressly relate to earlier dates.
5. Effectiveness of Amendment.
(a) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
(b) On and after the execution and delivery hereof, (i) this
Amendment shall become a part of the Agreement and (ii) each reference
in the Agreement to "this Agreement", or "hereof', "hereunder" or words
of like import, and each reference in any other document to the
Agreement shall mean and be a reference to such Agreement, as amended
or modified hereby.
(c) Except as expressly amended or modified hereby, the
Agreement shall remain in full force and effect and is hereby ratified
and confirmed by the parties hereto. It is understood that Buyer
reserves all rights under the Agreement, and that there are no express
or implied waivers of the terms thereof, except as specifically set
forth herein.
2
6. Execution in Counterparts, Effectiveness. This Amendment may be
executed by the parties hereto in separate counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAW, AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF
THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
IN WITNESS WHEREOF, Seller, Guarantors and Buyer have caused their
names to be signed to this Amendment by their respective officers thereunto duly
authorized as of the date first above written.
ABFS REPO 2001, INC., as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, as Buyer and Agent, as applicable
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Acknowledged and Agreed:
------------------------
AMERICAN BUSINESS CREDIT, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
3