Exhibit 10.104
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3/31/03 AMENDMENT TO SENIOR SECURED
CREDIT AGREEMENT
dated as of March 31, 2003
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 third 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, and as previously
amended by the 12/02 Amendment and the 3/03 Amendment,
all among such parties
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TABLE OF CONTENTS
1. DEFINITIONS...............................................................2
7. COLLATERAL................................................................3
8. CONDITIONS PRECEDENT......................................................3
9. REPRESENTATIONS...........................................................3
10. AFFIRMATIVE COVENANTS.....................................................3
11. NEGATIVE COVENANTS........................................................4
12. DEFAULTS AND REMEDIES.....................................................5
16. MISCELLANEOUS.............................................................6
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INDEX OF DEFINED TERMS
3/02 Credit Agreement..........................................................1
3/31/03 Amendment..............................................................1
3/31/03 Amendment Effective Date...............................................2
ABC............................................................................1
ABFRS2002......................................................................1
ABMS...........................................................................1
Acceleration Date..............................................................3
Agent..........................................................................1
Agreement......................................................................1
Amended Credit Agreement.......................................................1
Chase..........................................................................1
Companies......................................................................1
Company........................................................................1
Current Credit Agreement.......................................................1
HAC............................................................................1
Lease..........................................................................2
Maturity Date..................................................................3
Parent.........................................................................1
Serviced Leases................................................................2
Servicing Agreement............................................................2
Total Delinquency Rate.........................................................2
TRC............................................................................1
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3/31/03 AMENDMENT TO
SENIOR SECURED CREDIT AGREEMENT
Preamble
This 3/31/03 Amendment to the Senior Secured Credit Agreement dated as
of March 31, 2003 (the "3/31/03 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 by the 12/02
Amendment and the 3/03 Amendment, 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 ABFSR2002, and 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 and amended by the 12/02 Amendment and the 3/03 Amendment
(as so supplemented and amended, the "Amended Credit Agreement") to extend the
maturity of the facility to December 22, 2003 and to revise and expand its
covenants and its defaults and remedies provisions.
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All capitalized terms defined in the Amended Credit Agreement and used
but not defined differently in this Amendment have the same meanings here as
there.
The Sections of this 3/31/03 Amendment are numbered to correspond with
the numbers of the Sections of the 3/02 Credit Agreement 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:
"3/31/03 Amendment" means the 3/31/03 Amendment to Senior
Secured Credit Agreement dated as of March 31, 2003.
"3/31/03 Amendment Effective Date" is defined in the 3/31/03
Amendment (to mean March 31, 2003.)
"Lease" means an equipment lease agreement between a lessor
and a lessee for a commercial purpose only, whether or not a true
lease.
"Serviced Leases" means all Leases serviced or required to be
serviced by a Company under any Servicing Agreement, irrespective of
whether the actual servicing is done by another Person (a subservicer)
retained by the Company for that purpose.
"Total Delinquency Rate" means (x) the total delinquencies
(Mortgage Loans and Leases with at least one payment past due for
thirty (30) days or more, excluding REO) in the Companies' total
(managed and owned) portfolio of Serviced Loans and Serviced Leases,
expressed as a percentage of (y) the aggregate amount of such total
portfolio.
B. The definition of "Servicing Agreement set forth in Section 1.2 is hereby
amended in its entirety to henceforth read as follows:
"Servicing Agreement" means, with respect to any Person, the
arrangement--whether or not in writing--pursuant to which that Person
acts as servicer of Mortgage Loans or Leases, whether owned by that
Person or by others.
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C. The definition of "Maturity Date" set forth in Section 1.2 (as amended) is
hereby reamended in its entirety to henceforth read as follows:
"Maturity Date" means December 22, 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.
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, the 12/02 Amendment and the
3/03 Amendment, and the security interest in the Collateral granted in the
Security Agreement-Class R Certificate, as amended, 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.
8. CONDITIONS PRECEDENT
Section 8 of the 3/02 Credit Agreement is hereby amended by adding the
following new Section 8.6:
8.6 Each Advance on or after the 3/31/03 Amendment Effective
Date. The obligations of the Lenders to fund their respective Funding
Shares of each Advance requested on or after the 3/31/03 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 3/31/03 Amendment duly executed by all
parties; and
(b) such other documents, if any, as shall be
specified by the Agent.
9. REPRESENTATIONS
The Companies and the Parent hereby republish all of their
representations and warranties made in the 3/02 Credit Agreement.
10. AFFIRMATIVE COVENANTS
Section 10.2(b) of the 3/02 Credit Agreement is hereby amended to read
as follows:
(b)As soon as available and in any event within sixty (60) days
after the close of each of the first three (3) fiscal quarters in each of
its fiscal years, statements of income, statements of cash flow, and
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statements of changes in its stockholders' equity and cash flows of the
Parent and its Subsidiaries on a consolidating and consolidated basis for
the period from the beginning of such fiscal year to the end of such
fiscal quarter, and the related balance sheet as at the end of such fiscal
quarter, all in reasonable detail, with all notes and certified by its
chief financial officer that, to the best of his or her knowledge, such
financial statements were prepared in accordance with GAAP and present
fairly the financial condition and the results of operations and cash
flows for the period covered, subject, however, to year-end audit
adjustments and the omission of footnotes.
New Sections 10.4(l) and 10.4(m) reading, respectively, as follows are
hereby added to the end of Section 10.4:
(l) Monthly, a repurchase activity report detailing activity
related to Repurchased Defaulted Mortgage Loans, in a form acceptable to
the Agent.
(m) Monthly, a residual interest summary report listing, by
securitization trust, the cash flows from the Companies' residual
interests in Mortgage Loan pools that have been securitized, in a form
acceptable to the Agent.
11. NEGATIVE COVENANTS
Sections 11.4, 11.5, 11.7, 11.8, and 11.10 of the 3/02 Credit Agreement
are hereby amended to read as follows:
11.4. The Parent's Debt to Adjusted Net Worth Ratio. The
Parent will not permit the ratio of Debt (excluding nonrecourse Debt
whether under repurchase agreements or otherwise) to the sum of (x)
GAAP Net Worth plus (y) that portion of Subordinated Debt not due
before the Maturity Date, of the Parent and its Subsidiaries, on a
consolidated basis, to exceed 4.00:1.00 as at the end of any of the
Company's fiscal quarters or fiscal years.
11.5. The Parent's Minimum Liquidity. The Parent will at all
times maintain at least Thirty-five Million Dollars ($35,000,000) in
(x) unrestricted cash and Cash Equivalents that is owned and held free
and clear of Liens other than bankers' liens or setoff rights against
cash on deposit with the Agent or another depositary institution and
the Agent's or another warehouse lender's Lien and (y) Eligible
Single-family Collateral owned by the Parent or one of the Companies
and that is either unpledged or, if Pledged to the Agent or pledged to
another warehouse lender (or that has been delivered to a warehousing
repurchase agreement counterparty) against which no borrowing is
outstanding (or that has not been purchased by such repurchase
agreement counterparty).
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 Three Hundred Million Dollars ($300,000,000).
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11.8. The Parent's Minimum Subordinated Debt and Limit on
Current Subordinated Debt. The Parent will maintain Subordinated Debt
of at least Five Hundred Million Dollars ($500,000,000) 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.
11.10. 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 Sixty-five
Million Dollars ($65,000,000).
Section 11.12, as added by the 12/02 Amendment (the numbering of the
new Section added to Section 11 by the 12/02 Amendment is hereby corrected to be
11.12 instead of 11.11 as stated in the 12/02 Amendment) is hereby amended to
read as follows:
11 .12. Repurchased Mortgage Loans Limitation. The Companies
will not own on any day 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 and
one-half percent (1.5%) of the sum of the aggregate outstanding
principal balances of the Companies' managed and owned portfolio of
Serviced Loans and Serviced Leases.
New Sections 11.13 and 11.14 reading, respectively, as follows are
hereby added to the end of Section 11:
11.13. Total Delinquency Rate Limitation. The Companies will
not permit the Total Delinquency Rate as of the end of any calendar
quarter to exceed nine and three-fourths percent (9.75%).
11.14. Minimum Cash Flows from Securitization Trusts. The
Parent and the Companies will not permit the actual aggregate cash
flows received in any calendar quarter from all of the Parent's and the
Companies' residual interests in Mortgage Loan pools that have been
securitized (described in the Parent's SEC Form 10-K as the excess or
residual cash flows and cash flows from overcollateralization received
by the Companies as holders of interest-only strips) to be less than
the sum of (x) the average of the cash flows from all such residual
interests for the immediately preceding four (4) quarters plus (y) $1.
12. DEFAULTS AND REMEDIES
Section 12 of the 3/02 Credit Agreement is hereby amended by adding the
following new Section 1.1(p) to the end of such Section:
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(p) Any occurrence or event (a "trigger event") occurs under
the relevant Pooling and Servicing Agreement after which the cash flow to
the Parent or any Company (whichever is the owner of such residual
interest) from any residual interest in Mortgage Loan pools that have been
securitized is interrupted, and such trigger event remains uncured for
ninety (90) days.
16. MISCELLANEOUS
The parties hereby ratify and confirm the Current Credit Agreement
(being the 3/02 Credit Agreement, as supplemented by the 10/02 Supplement, as
amended by the 12/02 Amendment and the 3/03 Amendment and 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 3/02 CREDIT AGREEMENT, AS SUPPLEMENTED BY THE 10/02 SUPPLEMENT, AS
AMENDED BY THE 12/02 AMENDMENT AND THE 3/03 AMENDMENT AND 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 March 31, 2003.
By the Companies: AMERICAN BUSINESS CREDIT, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
HOMEAMERICAN CREDIT, INC., doing business as
UPLAND MORTGAGE
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
AMERICAN BUSINESS MORTGAGE SERVICES, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
TIGER RELOCATION COMPANY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
ABFS RESIDUAL 2002, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
By the Parent/Guarantor: AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
By the Agent and a Lender: JPMORGAN CHASE BANK, as the Agent and as a Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Unnumbered counterpart signature page to 3/31/03 Amendment to Senior Secured
Credit Agreement among American Business Credit Inc. and certain affiliates and
JPMorgan Chase Bank, as Agent and as a Lender.
