12/01 AMENDMENT TO
SENIOR SECURED CREDIT AGREEMENT
Preamble
This 12/01 Amendment to Senior Secured Credit Agreement dated as of
December 21, 2001 (the "12/01 Amendment") amending (for the second time) the
12/00 Senior Secured Credit Agreement dated December 22, 2000 (the "12/00 Credit
Agreement", as amended hereby and as it may be 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., each with
its principal office at BalaPointe Office Centre, 111 Presidential
Boulevard, Suite 215, Bala Cynwyd, Pennsylvania 19004 (ABC, HAC and
ABMS 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 ("JPMorgan 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, JPMorgan 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 12/00 Credit Agreement to extend the
maturity of the facility to December 20, 2002 and the Termination Date to
December 19, 2002 and to amend its Section 11 (titled "Negative Covenants") in
several respects.
All capitalized terms used in the Current Credit Agreement and used but
not defined differently in this Amendment have the same meanings here as there.
The Sections of this 12/01 Amendment are numbered to correspond with
the numbers of the Sections of the 12/00 Credit Agreement amended hereby 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.
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:
"12/01 Amendment" means the 12/01 Amendment to Senior Secured Credit
Agreement dated December 21, 2001.
"12/01 Amendment Effective Date" is defined in the 12/01 Amendment (to
mean December 21, 2001.)
B. The definitions of "Maturity Date" and "Termination Date" set forth in
Section 1.2 are each hereby amended in its entirety to henceforth read
as follows:
"Maturity Date" means December 20, 2002, 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.
"Termination Date" means the earlier of (i) December 19, 2002, 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").
6. COLLATERAL
6.1 Grant of Security Interest. The provisions of Section 7 of the
12/00 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 12/00 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 agree to (further) amend the Security Agreement --
Class R Certificate to substitute Certificate No. R-1 (the "2001-1 Certificate")
representing 100% of Class R of the ABFS Mortgage Loan Trust 2001-1 Mortgage
Pass-Through Certificates, Series 2001-1, for the 1998-2 Certificates and the
1999-2 Certificates which are currently Pledged to the Agent, and the Companies
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hereby agree to Pledge to the Agent, or to cause ABFS 2001-1, Inc. (to which the
2001-1 Certificate was issued) to Pledge to the Agent, the 2001-1 Certificate,
and agree to deliver (or cause ABFS 2001-1, Inc. to deliver) the original
thereof and a duly executed blank bond power therefor to the Agent. Upon the
Agent's being satisfied that the Agent holds a first and prior perfected
security interest in and to the 2001-1 Certificate, the Agent will release its
security interest in the 1998-2 Certificates and the 1999-2 Certificates (and
will execute and deliver to the Companies such written confirmation of such
release as the Companies shall reasonably request.)
11. NEGATIVE COVENANTS
The following Sections of Section 11 are hereby amended as follows:
A. Section 11.6 is hereby amended by (1) revising its clause (g) to
henceforth read as follows:
(g) funded Debt in an aggregate principal amount of up to Five
Hundred Million Dollars ($500,000,000) under one or more warehouse
financing agreements as to each of which:
(i) the Companies have given the Agent advance
written notice and a reasonable opportunity to discuss with
the Company (taking into account any relevant confidentiality
provisions) such warehouse financing agreement, focusing
principally on the nature of the collateral and the provisions
of such agreement and its related financing statements for
perfecting security interests in such collateral (with the
intent of avoiding potential overlapping of such other
creditors' and the Agent's Liens; and
(ii) that permits wet warehousing, the Companies have
used their best efforts to cause the lender thereunder to
either (x) enter into a written intercreditor arrangement
reasonably acceptable to and approved by the Agent if the
Agent shall notify the Companies such an arrangement will be
required (provided that all intercreditor arrangements made on
or before the 12/01 Amendment Effective Date shall remain in
full force and effect, whether or not the subject warehouse
financing agreements permit wet warehousing), or (y) appoint
Chase as the documents custodian for such warehouse financing
facility;
and (2) adding a new clause (i) following the existing clause (h) and
relettering the present clauses (i) through (n) to be (j) through (o),
respectively:
(i) revolving credit Debt to First Trust Bank of up to One
Million Dollars ($1,000,000);
B. Section 11.7 is hereby amended to henceforth read as follows:
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11.7 The Parent's Minimum Adjusted Tangible Net Worth. As of
the end of any fiscal quarter, permit the Adjusted Tangible Net Worth
of the Parent (on a consolidated basis with its Subsidiaries) to be
less than Two Hundred Fifty Million Dollars ($250,000,000).
C. Section 11.8 is hereby amended to henceforth read as follows:
11.8 The Parent's Minimum Subordinated Debt and Limit on
Current Subordinated Debt. The Parent will maintain Subordinated Debt
of at least Three Hundred Seventy-five Million Dollars ($375,000,000)
at all times, but the Parent will not on any day permit Subordinated
Debt principal that will become due (whether as scheduled installment
payments, calls, mandatory prepayments, as a result of acceleration or
by any other means or for any other reason) within one (1) year of that
day to exceed sixty-five percent (65%) of the aggregate principal
amount of all of the Parent's Subordinated Debt on that day.
D. A new Section 11.11 reading as follows is hereby added to the end of
Section 11:
11.11 The Parent's Minimum GAAP Net Worth. As of the end of
any fiscal quarter, permit the GAAP Net Worth of the Parent (on a
consolidated basis with its Subsidiaries) to be less than Fifty-five
Million Dollars ($55,000,000).
8. CONDITIONS PRECEDENT
Section 8 of the 12/00 Credit Agreement is hereby amended by adding the
following new Section 8.3:
8.3 Each Advance on or After the 12/01 Amendment Effective Date. The
obligations of the Lenders to fund their respective Funding Shares of
each Advance requested on or after the 12/01 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:
(a) The 12/01 Amendment duly executed by all parties;
(b) A certificate of each Company's corporate
secretary as to the incumbency of the officers of the Company executing
the 12/01 Amendment and the authenticity of their signature (specimens
of such signatures shall be included in such certificate or set forth
on an exhibit attached to it) or confirming a previously-furnished
certificate -- (the Agent and the Lenders shall be entitled to rely on
such new or confirmed certificate until such Company has furnished a
new certificate to the Agent), and (iii) as to whether the relevant
Company's certificate of incorporation or by-laws have been amended
since the 6/01 Amendment Effective Date, and if so, (iv) that attached
to such certificate is a true and complete copy of all such amendments;
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(c) such other documents, if any, as shall be
specified by the Agent; and
(d) The Companies shall have paid the installments of
the Facilities Fee and Administrative Fee then due and payable in
accordance with Sections 6.6 and 6.7 and the Custodian's fee then due
and payable in accordance with the Custody Agreement.
9. REPRESENTATIONS
The Companies hereby republish all of their representations and
warranties made in the 12/00 Credit Agreement.
16. MISCELLANEOUS
The parties hereby ratify and confirm the Current Credit Agreement
(being the 12/00 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. Codess.26.02. This Section
is hereby amended to read as follows:
THE 12/00 CREDIT AGREEMENT, AS AMENDED HEREBY, AND THE OTHER FACILITIES
PAPERS TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH 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 21, 2001.
By the Companies: AMERICAN BUSINESS CREDIT, INC.
By:
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Name:
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Title:
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HOMEAMERICAN CREDIT, INC. doing business as
UPLAND MORTGAGE
By:
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Name:
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Title:
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AMERICAN BUSINESS MORTGAGE SERVICES, INC.
By:
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Name:
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Title:
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By the Parent/Guarantor AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By:
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Name:
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Title:
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Unnumbered counterpart signature page to 12/01 Amendment to Senior Secured
Credit Agreement among American Business Credit, Inc. and certain affiliates and
JPMorgan Chase Bank, as Agent and as a Lender
By the Agent and a Lender: JPMORGAN CHASE BANK,
as the Agent and as a Lender
By:
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Name:
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Title:
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12/01 AMENDMENT TO SENIOR SECURED
CREDIT AGREEMENT
dated as of December 21, 2001
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 second time)
the 12/00 Senior Secured Credit Agreement
dated as of December 22, 2000
among such parties
--------------------------------------------------------------------------------
Unnumbered counterpart signature page to 12/01 Amendment to Senior Secured
Credit Agreement among American Business Credit, Inc. and certain affiliates and
JPMorgan Chase Bank, as Agent and as a Lender
[GRAPHIC OMITTED]JPMorgan
Unnumbered counterpart signature page to 12/01 Amendment to Senior Secured
Credit Agreement among American Business Credit, Inc. and certain affiliates and
JPMorgan Chase Bank, as Agent and as a Lender
INDEX OF DEFINED TERMS
"Commitments Cancellation Date"...............................................2
"Termination Date"............................................................2
12/00 Credit Agreement........................................................1
12/01 Amendment...............................................................1
12/01 Amendment Effective Date................................................2
ABC...........................................................................1
ABMS..........................................................................1
Acceleration Date.............................................................2
Agent.........................................................................1
Agreement.....................................................................1
Companies.....................................................................1
Company.......................................................................1
Current Credit Agreement......................................................1
HAC...........................................................................1
JPMorgan Chase................................................................1
Maturity Date.................................................................2
Parent........................................................................1
Unnumbered counterpart signature page to 12/01 Amendment to Senior Secured
Credit Agreement among American Business Credit, Inc. and certain affiliates and
JPMorgan Chase Bank, as Agent and as a Lender