EXHIBIT 10.43
Amendment to the First and Restated Interim Warehouse and
Security Agreement dated June 9, 1997 among Prudential Securities
Credit Corporation and Home American Credit, Inc., New Jersey
Mortgage and American Business Credit, Inc. and ABFS as Guarantor.
CREDIT INCREASE CONFIRMATION
AND NOTE AMENDMENT NO. 8
TO THE
FIRST AMENDED AND RESTATED
INTERIM WAREHOUSE AND SECURITY AGREEMENT
AND SECURED NOTE
Dated as of August 31, 1999
Reference is made to (x) the First Amended and Restated
Interim Warehouse and Security Agreement, dated as of June 9, 1997 (the "Interim
Warehouse Agreement") among Prudential Securities Credit Corporation (the
"Lender") and HomeAmerican Credit, Inc. d/b/a Upland Mortgage ("Upland"), New
Jersey Mortgage and Investment Corp. ("New Jersey Mortgage"), and American
Business Credit, Inc. ("ABC", and together with Upland and New Jersey Mortgage,
the "Borrowers"), as amended by Credit Increase Confirmation and Note Amendment
No. 1, dated as of September 30, 1997, Credit Increase Confirmation and Note
Amendment No. 2, dated as of December 22, 1997, Credit Increase Confirmation and
Note Amendment No. 3, dated as of March 30, 1998, Credit Increase Confirmation
and Note Amendment No. 4, dated May 29, 1998, Credit Increase Confirmation and
Note Amendment No. 5, dated June 30, 1998, Credit Increase Confirmation and Note
Amendment No. 6, dated July 31, 1998, and Credit Increase Confirmation and Note
Amendment No. 7, dated August 27, 1998, (y) the Secured Note, dated as of
December 22, 1997 (the "Note"), from the Borrowers to the Lender, and (z) the
Guaranty, dated as of June 9, 1997 (the "Guaranty"), from the Borrowers'
ultimate parent, American Business Financial Services, Inc. ("ABFS" or the
"Guarantor"), to the Lender.
WHEREAS, the Lender and the Borrowers desire to amend the
Interim Warehouse Agreement;
NOW THEREFORE, the Lender, the Borrowers and the Guarantor
hereby amend the Interim Warehouse Agreement, the Secured Note and the Guaranty
as follows:
Section 1. Amendment of the Interim Warehouse Agreement and Note.
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(a) The first WHEREAS clause of the Interim Warehouse
Agreement is hereby deleted in its entirety and replaced with the following:
WHEREAS, the Lender intends to lend and the Borrowers intend
to borrow up to $150,000,000 (one hundred fifty million
dollars) to fund the purchase of origination by the Borrowers
of fixed and floating-rate, first and second lien, business
and consumer purpose residential mortgage loans; and
(b) Section 1(A)(1) of the Interim Warehouse Agreement is
hereby deleted in its entirety and replaced with the following:
The Lender agrees to lend to the Borrowers up to $150,000,000
(such borrowing, the "Loan") to be made in one or more
advances (each, an "Advance"); provided, however, that, in no
event shall the outstanding debt owed to the Lender by the
Borrowers or any of their Affiliates (including, without
limitation, American Business Leasing, Inc. and Federal
Leasing Corp.) under any loan agreement (including, without
limitation, this Agreement) exceed $150,000,000; provided,
further, that, at any time when funds are on deposit in a
Pre-Funding Account (as defined herein), the amount of the
Loan shall not exceed the amount on deposit in such
Pre-Funding Account. The Borrower agrees that the Loan shall
be used to warehouse fixed and adjustable rate, first or
second lien, business and consumer purpose residential
mortgage loans that are to be included in a Securitization
(the "Mortgage Loans"), as such Mortgage Loans are identified
to the Lender in writing and in electronic form from time to
time. Such Mortgage Loans may be (a) included at the time of
closing of the Securitization or (b) purchased by the
Securitization trust subsequent to closing with funds on
deposit in an account (a "Pre-Funding Account") relating to
the Securitization and designated for such purpose. All
Mortgage Loans financed hereunder shall be closed loans; i.e.,
this facility shall not be used for "wet" or "table" fundings.
The Lender may refuse to lend against any Mortgage Loan(s)
which the Lender reasonably believes will not be eligible for
inclusion in a securitized pool, similar to the pool included
in the 1999-2 Securization, either (x) due to the
characteristics of such Mortgage Loan or (y) due to the
expected aggregate characteristics of the Mortgage Loans.
(c) Section 1(A)(3) of the Interim Warehouse Agreement is
hereby deleted in its entirety and replaced with the following:
The Loan shall accrue interest daily on its outstanding
principal amount, with interest calculated for the actual
number of days elapsed, based on a 360-day year. The interest
rate shall be (except as otherwise provided in Section 1(E)(2)
or Section 10(D) hereof) LIBOR plus 1.00%, and shall be reset
on each business day. Interest which accrues during each
calendar month shall be payable on the 3rd (third) business
day of the following month, with any outstanding interest due
and payable in its entirety on the date of termination of this
warehouse facility (including the Maturity Date).
(d) The definition of "Maturity Date" in Section 1(B)(2) is
hereby deleted in its entirety and replaced with the following:
Maturity Date means the earlier of (i) August 31, 2000 and
(ii) the date on which an Event of Default occurs. The
Maturity Date may be extended by the Lender, in the Lender's
sole and unreviewable discretion, on any date by the execution
and delivery of a Credit Increase Confirmation and Note
Amendment in the form of Exhibit C hereto.
(e) The definition of "Collateral Deficiency Situation" in
Section 1 is hereby deleted in its entirety and replaced with the following:
A Collateral Deficiency Situation shall be deemed to be
existing as of any day on which (x) the outstanding principal
amount of the Loan as of such day exceeds (y) the lesser of
(i) 99% of the outstanding principal balance of the Pledged
Mortgage Loans and (ii) the product of (1) the Market Value of
the Pledged Mortgage Loans (disregarding the Market Value of
any Mortgage Loans proposed to be pledged to the Lender on
such day) and .95.
(f) Section 1(B) of the Interim Warehouse Agreement is hereby
deleted in its entirety and replaced with the following:
The amount of each Advance shall not be less than $1,000,000
or greater than the lesser of:
1. 99% of the aggregate outstanding principal balance
of the Mortgage Loans calculated as of the related Cut-Off
Date (or, if the Borrower is using the proceeds of the Advance
to purchase or originate the related Mortgage Loans at their
aggregate outstanding principal balance as of the settlement
date for the purchase, then their aggregate outstanding
principal balance as of such settlement date) proposed to be
pledged to the Lender in connection with such Advance, minus,
in the event that a Collateral Deficiency Situation exists as
of the date of such Advance, the Restoration Amount as of the
date of such Advance; and
2. the product of (x) the Market Value of the
Mortgage Loans proposed to be pledged to the Lender in
connection with such Advance and (y) .95, minus, in the event
that a Collateral Deficiency Situation exists as of the date
of such Advance the Restoration Amount as of the date of such
Advance. The Lender may amend the Advance rate in the Lender's
sole and unreviewable discretion, on any date by the execution
and delivery of a Credit Increase Confirmation and Note
Amendment in the form of Exhibit C hereto.
Section 2. Amendment of the Note.
The maximum amount of the Loan referenced in the Note shall be
$150,000,000.
Section 3. Confirmation of the Interim Warehouse Agreement, Note and
Guaranty.
As amended by Sections 1 and 2 hereof, all provisions of the
Interim Warehouse Agreement, the Note and the Guaranty, are reconfirmed as of
the date hereof. Each of the Borrowers and ABFS, in addition, hereby reconfirms
and remakes as of the date hereof each and every one of its representations,
warranties and covenants as set forth in the Interim Warehouse Agreement, the
Note or the Guaranty, as applicable.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
AMERICAN BUSINESS CREDIT, INC., as
Borrower
By: ______________________________
Name:
Title:
HOMEAMERICAN CREDIT, INC. D/B/A
UPLAND MORTGAGE, as Borrower
By: ______________________________
Name:
Title:
NEW JERSEY MORTGAGE AND
INVESTMENT CORP., as Borrower
By: ______________________________
Name:
Title:
AMERICAN BUSINESS FINANCIAL
SERVICES, INC., as Guarantor
By: ______________________________
Name:
Title:
PRUDENTIAL SECURITIES CREDIT
CORPORATION, as Lender
By: ______________________________
Name:
Title:
