FIRST AMENDMENT TO CREDIT AGREEMENT
AND
CONFIRMATION OF GUARANTY
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND CONFIRMATION OF GUARANTY
(this "Amendment") is made as of October 1, 1997, among AMERICAN BUSINESS
CREDIT, INC., a Pennsylvania corporation ("ABC"), HOMEAMERICAN CREDIT, INC., a
Pennsylvania corporation d/b/a Upland Mortgage ("HAC"), AMERICAN BUSINESS
LEASING, INC., a Pennsylvania corporation ("ABL"), NEW JERSEY MORTGAGE &
INVESTMENT CORP., a New Jersey corporation d/b/a Ocean to Ocean Financial Group,
Inc. ("NJMI") and FEDERAL LEASING CORP., a New Jersey corporation ("Federal
Leasing") (ABC, HAC, and ABL are "Co-Borrowers"); AMERICAN BUSINESS FINANCIAL
SERVICES, INC., a Delaware corporation ("Parent"); the Lenders (herein so
called) described below; and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as
Administrative Agent for Lenders ("Agent").
R E C I T A L S:
A. ABC, HAC, ABL, Parent, Lenders and Agent are parties to a certain
Credit Agreement (as amended and supplemented, herein so called) dated as of
July 31, 1997.
B. Parent has executed an unconditional continuing guaranty agreement,
dated as of July 31, 1997, guarantying full payment of certain guaranteed
obligations defined therein, including without limitation, the obligations (the
"Obligation") of the Co-Borrowers arising under the Credit Agreement and related
Credit Documents (the "Guaranty Agreement").
C. Parent desires to acquire New Jersey Mortgage & Investment Corp., a
residential lender with its principal place of business in Roseland, New Jersey,
and its wholly owned subsidiary, Federal Leasing Corp., an equipment lessor with
its principal place of business in Roseland, New Jersey (the "Acquisition").
D. The Acquisition will require Parent to assume certain indebtedness
of NJMI (the "Additional Indebtedness").
E. Federal Leasing and NJMI desire to assume all rights, duties and
obligations of a Co- Borrower under the Credit Agreement and become a
Co-Borrower for all purposes under the Credit Agreement.
F. Co-Borrowers, Parent and Lenders wish to enter into this Amendment
to permit the incurrence of the Additional Indebtedness, to add NJMI and Federal
Leasing as additional Co-Borrowers under the Credit Agreement, and to make
certain other modifications to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lenders, Agent, Co-Borrowers, and Parent
covenant and agree as follows:
1. Definitions. Terms used herein and defined in the Credit Agreement shall have
the meanings set forth in the Credit Agreement, except as otherwise provided
herein. All references to "Sections" herein are references to Sections of the
Credit Agreement.
2. Consents. Agent and each Lender, subject to the terms and conditions set
forth herein, hereby consent to the Acquisition and agree and acknowledge that
(i) the Acquisition is a Permitted Acquisition under the terms of the Credit
Agreement and (ii) the indebtedness assumed by Parent in connection with the
Acquisition, up to a maximum amount of $20,000,000 of indebtedness currently
owed by NJMI and Federal Leasing, is Debt acceptable to Required Lenders and
constitutes Permitted Debt under the Credit Agreement pursuant to Section 8.1(j)
thereof. The foregoing consent is expressly conditioned upon the following terms
and conditions:
(a) within sixty (60) days following the closing of the Acquisition,
all Debt of NJMI pursuant to a working capital line of credit extended to NJMI
by Xxxxxxxxx & Sons Limited shall be repaid in full and such facility shall be
terminated;
(b) promptly following the closing of the Acquisition, the Debt of NJMI
under the "Warehouse Lines of Credit" (herein so called) extended by CoreStates
Bank, N.A. and Bank of Boston, N.A. shall be refinanced with Borrowings under
the Credit Agreement and the Warehouse Lines of Credit shall be terminated;
(c) the remaining Debt assumed by Parent and not repaid pursuant to
clauses (a) and (b) above shall be either (i) Debt subordinated in right of
payment to the Obligation pursuant to subordination agreements executed by the
holders of such Debt (the "Junior Lenders") in form and substance acceptable to
Agent and its counsel (the "Subordination Agreements"), which subordinated debt
is payable to the Junior Lenders, assuming no Default Condition or Event of
Default exists, in accordance with its scheduled amortization over a five year
period, or (ii) the capital lease described on Exhibit A attached hereto.
3. Credit Agreement Amendments. The Credit Agreement shall be and hereby is
amended as follows:
(a) NJMI and Federal Leasing are each hereby added to the Credit
Agreement as a Co- Borrower and each reference in this Amendment, the Credit
Agreement and other related Credit Documents and all schedules and exhibits
thereto to Co-Borrowers shall be references to ABC, HAC, ABL, NJMI and Federal
Leasing. Each of NJMI and Federal Leasing hereby assumes all of the obligations
and duties of the Co-Borrowers under the Credit Agreement and agrees to be bound
by all of the covenants and agreements set forth therein. Each of NJMI and
Federal Leasing hereby makes and affirms, as to itself, and as of the date
hereof, each representation and warranty of the Co- Borrowers set forth in the
Credit Agreement. For purposes of Section 12.2 of the Credit Agreement, the
addresses and fax numbers for NJMI and Federal Leasing are those set forth
beside their names on the signature pages below.
(b) The definitions of "Borrowing Base" and "Co-Borrowers" are hereby
amended in their entirety to read as follows:
"Co-Borrowers" means ABC, HAC, ABL, NJMI and Federal Leasing.
"Borrowing Base" means, at any time, the sum of:
(a) the total collateral value of each
Eligible-Mortgage Loan and each Eligible-Commercial Loan,
equal to 98% of the lowest of (i) the unpaid principal balance
of the underlying promissory note, (ii) the actual amount
funded by ABC, HAC or NJMI, as the case may be, with respect
to that Eligible-Mortgage Loan or Eligible-Commercial Loan, or
(iii) the Market Value thereof, as determined by
Administrative Agent; plus
(b) the total collateral value of each
Eligible-Seasoned Loan, equal to 90% of the lowest of (i) the
unpaid principal balance of the underlying promissory note,
(ii) the actual amount funded by ABC, HAC, or NJMI, as the
case may be, with respect to that Eligible-Seasoned Loan, or
(iii) the Market Value thereof, as determined by
Administrative Agent; plus
(c) the total collateral value of each Eligible Lease
and Eligible-Seasoned Lease, equal to 85% of the lower of (i)
the actual amount funded by ABL or Federal Leasing with
respect to that Eligible Lease or Eligible-Seasoned Lease, or
(ii) the net present value of the current lease balance
determined in accordance with the discounting methods agreed
upon in writing by ABL or Federal Leasing and Administrative
Agent from time to time.
(c) The definition of "Note Payment Accounts" is hereby amended to
change the Account Number information for ABC, HAC and ABL as follows and to add
the following non-interest bearing restricted checking accounts maintained with
Administrative Agent:
o For ABC, Account No. 0000-000-0000, styled "American Business
Financial Services, Inc. - Note Payment Account."
o For HAC, Account No. 0000-000-0000, styled "American Business
Financial Services, Inc. - Note Payment Account."
o For ABL, Account No. 0000-000-0000, styled "American Business
Financial Services, Inc. - Note Payment Account."
o For NJMI, Account No. 0000-000-0000 styled "New Jersey Mortgage and
Investment - Note Payment Account"
o for Federal Leasing, Account No. 0000-000-0000 styled "Federal
Leasing - Note Payment Account"
(d) The following definitions are hereby added to the Credit Agreement
to read as follows:
"Federal Leasing" means Federal Leasing Corp., a New Jersey
corporation.
"NJMI" means New Jersey Mortgage and Investment Corp., a New Jersey
corporation d/b/a Ocean to Ocean Financial Group, Inc.
(e) Section 9.1 is hereby amended in its entirety to read as follows:
Section 9.1 Tangible Net Worth. During the time periods set forth
below, Tangible Net Worth may never be less than the amounts set forth opposite
such time periods:
________________________________________________________________________________
Time Periods Minimum Tangible Net Worth
________________________________________________________________________________
July 31, 1997 - October 1, 1997 $25,000,000
________________________________________________________________________________
October 1, 1997 - 12/30/97 $15,000,000
________________________________________________________________________________
12/31/97 - 3/30/98 $16,500,000
________________________________________________________________________________
3/31/98 - 6/29/98 $19,000,000
________________________________________________________________________________
6/30/98 - 9/29/98 $21,500,000
________________________________________________________________________________
9/30/98 and thereafter $25,000,000
________________________________________________________________________________
(f) Schedule 6.2 of the Credit Agreement is hereby revised in its
entirety and replaced with the Schedule 6.2 attached hereto.
(g) Paragraph D. 4. of Schedule 4.1 of the Credit Agreement is hereby
amended to add the following provision to the end of such Paragraph:
"; provided, however, that UCC financing statements need not be
filed of record for any such Lease under which the aggregate
original equipment cost is less than $10,000."
(h) Exhibit D-3 of the Credit Agreement is hereby revised in its
entirety and replaced with Exhibit D-3 attached hereto.
(i) Each schedule and exhibit to the Credit Agreement is amended as
necessary to reflect the addition of NJMI and Federal Leasing as Co-Borrowers
under the Credit Agreement and each reference to Co-Borrower therein shall be
deemed to include references to NJMI and Federal Leasing and each reference to
the Credit Agreement shall be deemed to be a reference to the Credit Agreement,
as amended hereby.
4. Confirmation of Guaranty Agreement. Parent agrees, accepts and consents to
the terms and provisions hereof and each other Credit Document in effect as of
the date hereof and confirms the continued validity of the Guaranty Agreement
including, but not limited to the application of the Guaranty Agreement to the
indebtedness of each of NJMI and Federal Leasing.
5. Conditions Precedent. The obligation of Agent and each Lender to be bound by
the provisions hereof shall be subject to the fulfillment of the following
conditions precedent, in a manner satisfactory to Agent:
(a) Agent shall have received the following, duly executed by
each party thereto, other than Agent, each in form and substance
satisfactory to Agent:
(i) This Amendment;
(ii) Warehouse Notes in the following original principal
amounts executed by Co-Borrowers, payable to the order of the following
Lenders, in substantially the form of Exhibit A-1 to the Credit
Agreement:
________________________________________________________________________________
Texas Commerce Bank, National $55,000,000.00
Association
________________________________________________________________________________
The Bank of New York $15,000,000.00
________________________________________________________________________________
CoreStates Bank $10,000,000.00
________________________________________________________________________________
FirstTrust Bank $ 5,000,000.00
________________________________________________________________________________
National City Bank $15,000,000.00
________________________________________________________________________________
(iii) Swing note in the original principal amount of
$30,000,000.00, executed by Co-Borrowers, payable to the order of
Administrative Agent and in substantially the form of Exhibit A-2 to
the Credit Agreement;
(iv) Security Agreements executed by NJMI and Federal
Leasing as debtors and Administrative Agent as secured party, and in
substantially the form of Exhibit C-1 to the Credit Agreement;
(v) Financing Statements executed by NJMI and Federal
Leasing as debtors and Administrative Agent as secured party, for
filing with the following UCC filing offices, and in substantially the
form of Exhibit C-2 to the Credit Agreement:
________________________________________________________________________________
Name Jurisdiction
________________________________________________________________________________
NJMI New Jersey Secretary of State
Essex County
________________________________________________________________________________
Federal Leasing New Jersey Secretary of State
Essex County
________________________________________________________________________________
(vi) UCC search reports for financing statements filed
against NJMI or Federal Leasing as debtor with the relevant UCC filing
offices as of the indicated dates together with appropriate UCC-3
Termination Statements releasing such liens as Administrative Agent
shall require:
________________________________________________________________________________
Name Jurisdiction
________________________________________________________________________________
NJMI New Jersey Secretary of State
Essex County, New Jersey
Orange County, New Jersey
Georgia Secretary of State
Xxxxxx County, Georgia
Illinois Secretary of State
Xxxx County, Illinois
Missouri Secretary of State
Xxxxxx County, Missouri
Xxxxx County, Missouri
Ohio Secretary of State
Xxxxx County, Ohio
Pennsylvania Secretary of State
Allegheny County, Pennsylvania
Xxxxxxxxxx Country, Pennsylvanian
________________________________________________________________________________
Federal Leasing New Jersey Secretary of State
Essex County, New Jersey
California Secretary of State
Placer County, Californian
Colorado Secretary of State
Arapahoe County, Colorado
Florida Secretary of State
Palm Beach County, Florida
Illinois Secretary of State
Du Page County, Illinois
________________________________________________________________________________
(vii) Officers Certificate for NJMI, executed by the
President and Secretary of NJMI as to (a) the due incumbency of its
officers authorized to execute or attest to the Credit Documents, (b)
resolutions duly adopted by its directors approving and authorizing the
execution of the Credit Documents, (c) its bylaws, and (d) its
corporate charter accompanied by Annex A-Resolutions, Annex B-Bylaws,
Annex C-Corporate Charter;
(viii) Officers Certificate of Federal Leasing, executed
by the President and Secretary of Federal Leasing as to (a) the due
incumbency of its officers authorized to execute or attest to the
Credit Documents, (b) resolutions duly adopted by its directors
approving and authorizing the execution of the Credit Documents, (c)
its bylaws, and (d) its corporate charter accompanied by Annex
A-Resolutions, Annex B-Bylaws, Annex C-Corporate Charter;
(ix) Certificates of Qualification, Good Standing and
Authority for each of NJMI and Federal Leasing in the jurisdiction of
its incorporation;
(x) Articles of Incorporation for NJMI, certified as of
a recent date by the New Jersey Secretary of State;
(xi) Articles of Incorporation for Federal Leasing,
certified as of a recent date by the New Jersey Secretary of State;
(xii) Copies of the Subordinated Debt documents of NJMI
and Federal Leasing, certified as true and correct by a Responsible
Officer of Parent, NJMI and Federal Leasing;
(xiii) An Acquisition-Compliance Certificate;
(xiv) Certified copy of the resolutions adopted by the
Boards of Directors of each Co-Borrower and Parent, authorizing the
execution and delivery of this Amendment;
(xv) Subordination Agreements executed by each Junior
Lender; and
(xvi) All other documents Agent may reasonably request
with respect to any matter relevant to this Amendment or the
transactions contemplated hereby.
(b) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents shall be true and correct in all material
respects on and as of the date hereof with the same effect as if made
on and as of the date hereof.
(c) All corporate and legal proceedings and all documents
required to be completed and executed by the provisions of, and all
instruments to be executed in connection with the transactions
contemplated by, this Amendment and any related agreements shall be
satisfactory in form and substance to Agent.
6. Representations and Warranties. Co-Borrowers and Parent, without in any way
limiting the representations and warranties provided in the Credit Agreement,
each hereby represent and warrant to Agent that:
(a) Co-Borrowers and Parent are authorized to enter into this
Amendment;
(b) The execution, delivery and performance of this Amendment
by Co-Borrowers and Parent do not violate, or conflict with, any law,
rule, regulation, order, agreement or contract binding upon such
parties, or to which such parties are subject; and
(c) This Amendment is valid and binding upon each of the
Co-Borrowers and Parent, respectively, in accordance with its terms,
except as limited by Debtor Laws. The execution, delivery and
performance of this Amendment by each Co-Borrower and Parent does not
require the consent of any other Person and does not and will not
constitute a violation of any law, agreement or understanding to which
any of the Co-Borrowers or Parent is a party or by which any of them is
bound.
(d) As of the date of this Amendment, no Default or Potential
Default has occurred and is continuing.
(e) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby,
and the other Credit Documents are true and correct in all
material respects on and as of the date hereof with the same
effect as if made on and as of the date hereof.
7. No Waivers. The entering into of this Amendment will not be deemed to be a
waiver of any requirement or obligation under the Credit Agreement and Agent and
Lenders reserve all of their rights thereunder.
8. Continued Effect. Each Co-Borrower and Parent acknowledges and confirms
that, except to the extent amended hereby or in connection herewith, all
terms, provisions and conditions of the Credit Agreement and the other Credit
Documents, and all documents executed in connection therewith, shall continue
in full force and effect and shall remain enforceable and binding in
accordance with their respective terms and shall inure to the benefit of Agent
and Lenders. The Collateral shall continue to secure the Obligation. Each
party hereto acknowledges and agrees that Agent shall have all the rights of
secured party, beneficiary, Agent, or payee under all security agreements,
pledge agreements, memoranda of deposits, guaranties, financing statements and
other documents relating to the Credit Agreement. From and after the effective
date of this Amendment, all references in the Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as amended
hereby.
9. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall for all purposes be deemed an original and all of which are
identical.
10. Successors and Assigns. This Amendment shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns.
11. Miscellaneous. The substantive laws of the State of Texas shall govern the
validity, construction, enforcement and interpretation of this Amendment, except
to the extent that the federal laws of the United States shall supersede. This
Amendment embodies the entire Agreement between the parties hereto with respect
to the amendment of the Credit Agreement and supersedes all oral agreements,
conditions, and understandings with respect to the subject matter hereof.
12. Expenses. The Co-Borrowers agree to pay all reasonable costs incurred in
connection with the execution and consummation of this Amendment.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
EFFECTIVE as of October 1, 1997.
(address)
American Business Credit, Inc. AMERICAN BUSINESS CREDIT, INC., as
BalaPointe Office Centre a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Tel: 610/000-0000
Fax: 610/000-0000
(address)
HomeAmerican Credit, Inc. HOMEAMERICAN CREDIT, INC., as a
BalaPointe Office Centre Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Tel: 610/000-0000
Fax: 610/000-0000
(address)
American Business Leasing, Inc. AMERICAN BUSINESS LEASING, INC.,
BalaPointe Office Centreas a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
New Jersey Mortgage & Investment Corp. NEW JERSEY MORTGAGE &
BalaPointe Office Centre INVESTMENT CORP., as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
Federal Leasing Corp. FEDERAL LEASING CORP.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer ------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
American Business Financial Services, Inc. AMERICAN BUSINESS FINANCIAL
BalaPointe Office Centre SERVICES, INC., as Parent
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
Texas Commerce Bank National Association TEXAS COMMERCE BANK NATIONAL
X.X. Xxx 000 ASSOCIATION, as Administrative
Xxxxx, Xxxxx 00000-0000 Agent and a Lender
Attn: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000 By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx,
Vice President
(address)
The Bank of New York THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Dominus By: /s/ Xxxxxxxx X. Dominus
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxxx X. Dominus,
Vice President
(address)
CoreStates Bank, N.A. CORESTATES BANK, N.A.
1-8-11-24
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By: /s/ Xxx Xxxxxx
Attn: Xxx Xxxxxx ------------------------------
Tel: (000) 000-0000 Xxx Xxxxxx,
Fax: (000) 000-0000 Senior Vice President
(address)
Firstrust Bank FIRSTRUST BANK
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxx Xxxxxxxxxxxxx,
Assistant Vice President
(address)
National City Bank NATIONAL CITY BANK
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxx X. Xxxxxxxxx,
Vice President
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of February 20, 1998, among AMERICAN BUSINESS CREDIT, INC., a Pennsylvania
corporation ("ABC"), HOMEAMERICAN CREDIT, INC., a Pennsylvania corporation d/b/a
Upland Mortgage ("HAC"), AMERICAN BUSINESS LEASING, INC., a Pennsylvania
corporation ("ABL"), NEW JERSEY MORTGAGE & INVESTMENT CORP., a New Jersey
corporation d/b/a Ocean to Ocean Financial Group, Inc. ("NJMI") and FEDERAL
LEASING CORP., a New Jersey corporation ("Federal Leasing") (ABC, HAC, ABL,
NJMI, and Federal Leasing are, collectively, the "Co-Borrowers"); AMERICAN
BUSINESS FINANCIAL SERVICES, INC., a Delaware corporation ("Parent"); the
Lenders (herein so called) described below; and CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION (formerly Texas Commerce Bank, National Association) as
Administrative Agent for Lenders ("Agent").
R E C I T A L S:
A. ABC, HAC, ABL, Parent, Lenders, and Agent are parties to that
certain Credit Agreement (as amended and supplemented, herein so called) dated
as of July 31, 1997.
B. Co-Borrowers, Parent, and Lenders wish to enter into this amendment
to increase the capacity for Lease Borrowings under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lenders, Agent, Co-Borrowers, and Parent
covenant and agree as follows:
1. Definitions. Terms used herein and defined in the Credit Agreement shall have
the meanings set forth in the Credit Agreement, except as otherwise provided
herein. All references to "Sections," "Schedules," and "Exhibits" are references
to sections, schedules, and exhibits of the Credit Agreement
2. Amendments. The Credit Agreement shall be and hereby is amended as follows:
(A) Defined Terms. Section 1.1 is amended by entirely amending the
following defined terms:
"Administrative Agent" means, at any time, Chase Bank of Texas,
National Association, formerly named Texas Commerce Bank National Association
(or its successor appointed under Section 11.6), acting as administrative,
collateral, managing, and syndication agent for Lenders under the Credit
Documents.
"Lease Sublimit" means, at any time, 40% of the total Commitments.
(B) Notice. The notice provisions for Agent beside its signature to the
Credit Agreement is entirely amended as follows:
Chase Bank of Texas, National Association
X.X. Xxx 000
Xxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
3. Conditions Precedent. The obligation of Agent and each Lender to be bound by
the provisions hereof shall be subject to the fulfillment of the following
conditions precedent, in a manner satisfactory to Agent:
(a) Agent shall have received the following, duly executed by
each party thereto, other than Agent, each in form and substance
satisfactory to Agent:
(i) This Amendment; and
(ii) All other documents Agent may reasonably request
with respect to any matter relevant to this Amendment or the
transactions contemplated hereby.
(b) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents shall be true and correct in all material
respects on and as of the date hereof with the same effect as if made
on and as of the date hereof.
(c) All corporate and legal proceedings and all documents
required to be completed and executed by the provisions of, and all
instruments to be executed in connection with the transactions
contemplated by, this Amendment and any related agreements shall be
satisfactory in form and substance to Agent.
4. Representations and Warranties. Co-Borrowers and Parent, without in any way
limiting the representations and warranties provided in the Credit Agreement,
each hereby represent and warrant to Agent that:
(a) Co-Borrowers and Parent are authorized to enter into this
Amendment;
(b) The execution, delivery, and performance of this Amendment
by Co-Borrowers and Parent do not violate, or conflict with, any law,
rule, regulation, order, agreement, or contract binding upon such
parties, or to which such parties are subject; and
(c) This Amendment is valid and binding upon each of the
Co-Borrowers and Parent, respectively, in accordance with its terms,
except as limited by Debtor Laws. The execution, delivery, and
performance of this Amendment by each Co-Borrower and Parent does not
require the consent of any other Person and does not and will not
constitute a violation of any law, agreement, or understanding to which
any of the Co-Borrowers or Parent is a party or by which any of them is
bound.
(d) As of the date of this Amendment, no Default or Potential
Default has occurred and is continuing, except as was disclosed in
Borrower's compliance report of December 31, 1997.
(e) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents are true and correct in all material respects on
and as of the date hereof with the same effect as if made on and as of
the date hereof.
5. No Waivers. The entering into of this Amendment will not be deemed to be a
waiver of any requirement or obligation under the Credit Agreement and Agent and
Lenders reserve all of their rights thereunder.
6. Continued Effect. Each Co-Borrower and Parent acknowledges and confirms that,
except to the extent amended hereby or in connection herewith, all terms,
provisions, and conditions of the Credit Agreement and the other Credit
Documents, and all documents executed in connection therewith, shall continue in
full force and effect and shall remain enforceable and binding in accordance
with their respective terms and shall inure to the benefit of Agent and Lenders.
The Collateral shall continue to secure the Obligation. Each party hereto
acknowledges and agrees that Agent shall have all the rights of secured party,
beneficiary, Agent, or payee under all security agreements, pledge agreements,
memoranda of deposits, guaranties, financing statements, and other documents
relating to the Credit Agreement. From and after the effective date of this
Amendment, all references in the Credit Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as amended hereby, and
references to Credit Documents shall include this Amendment. To the extent not
amended hereby, all existing references in the Credit Documents to Texas
Commerce Bank, National Association, shall be deemed to be references to Chase
Bank of Texas, National Association.
7. Counterparts. This document may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document. All
counterparts shall be construed together to constitute one and the same
document.
8. Successors and Assigns. This Amendment shall be binding upon, and inure to
the benefit of, the parties hereto, and their respective successors and assigns.
9. MISCELLANEOUS. THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AMENDMENT,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES SHALL SUPERSEDE.
THIS AMENDMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE AMENDMENT OF THE CREDIT AGREEMENT AND SUPERSEDES ALL ORAL
AGREEMENTS, CONDITIONS, AND UNDERSTANDINGS WITH RESPECT TO THE SUBJECT MATTER
HEREOF.
10. Expenses. The Co-Borrowers agree to pay all reasonable costs incurred in
connection with the execution and consummation of this Amendment.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
EFFECTIVE as of February 20, 1998.
(address)
American Business Credit, Inc. AMERICAN BUSINESS CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Tel: 610/000-0000
Fax: 610/000-0000
HomeAmerican Credit, Inc. HOMEAMERICAN CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Tel: 610/000-0000
Fax: 610/000-0000
(address)
American Business Leasing, Inc. AMERICAN BUSINESS LEASING, INC.,
BalaPointe Office Centreas as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
New Jersey Mortgage & Investment Corp. NEW JERSEY MORTGAGE &
BalaPointe Office Centre INVESTMENT CORP.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as a Co-Borrower
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
Federal Leasing Corp. FEDERAL LEASING CORP.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer ------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
American Business Financial Services, Inc. AMERICAN BUSINESS FINANCIAL
BalaPointe Office Centre SERVICES, INC.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as Parent
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
Chase Bank of Texas National Association CHASE BANK OF TEXAS, NATIONAL
X.X. Xxx 000 ASSOCIATION (formerly Texas
Xxxxx, Xxxxx 00000-0000 Commerce Bank, National
Attn: Xxxxxx X. Xxxxxxx Association), as Agent and a
Tel: 817/000-0000 Lender
Fax: 817/000-0000
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx,
Vice President
(address)
The Bank of New York THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Dominus By: /s/ Xxxxxxxx X. Dominus
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxxx X. Dominus,
Vice President
(address)
CoreStates Bank, N.A. CORESTATES BANK, N.A.
1-8-11-24
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By: /s/ Xxx Xxxxxx
Attn: Xxx Xxxxxx ------------------------------
Tel: (000) 000-0000 Xxx Xxxxxx,
Fax: (000) 000-0000 Senior Vice President
(address)
Firstrust Bank FIRSTRUST BANK
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxx Xxxxxxxxxxxxx,
Assistant Vice President
(address)
National City Bank NATIONAL CITY BANK
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxx X. Xxxxxxxxx,
Vice President
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of March 18, 1998, among AMERICAN BUSINESS CREDIT, INC., a Pennsylvania
corporation ("ABC"), HOMEAMERICAN CREDIT, INC., a Pennsylvania corporation d/b/a
Upland Mortgage ("HAC"), AMERICAN BUSINESS LEASING, INC., a Pennsylvania
corporation ("ABL"), NEW JERSEY MORTGAGE & INVESTMENT CORP., a New Jersey
corporation d/b/a Ocean to Ocean Financial Group, Inc. ("NJMI") and FEDERAL
LEASING CORP., a New Jersey corporation ("Federal Leasing") (ABC, HAC, ABL,
NJMI, and Federal Leasing are, collectively, the "Co-Borrowers"); AMERICAN
BUSINESS FINANCIAL SERVICES, INC., a Delaware corporation ("Parent"); the
Lenders (herein so called) described below; and CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent for Lenders ("Agent").
ABC, HAC, ABL, NJMI, Federal Leasing, Parent, Lenders, and Agent are
parties to that certain Credit Agreement (as renewed, extended, amended, or
restated, herein so called) dated as of July 31, 1997, providing for loans to
Co-Borrowers on a revolving basis. Co-Borrower's, Parent, and Lenders have
agreed, upon the following terms and conditions, to amend the Credit Agreement
to increase the Commitment of Firstrust Bank ("Firstrust"), and to add Hibernia
National Bank ("Hibernia") as a Lender thereto.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lenders, Agent, Co-Borrowers, and Parent
covenant and agree as follows:
1. Definitions. Terms used herein and defined in the Credit Agreement shall have
the meanings set forth in the Credit Agreement, except as otherwise provided
herein. All references to "Sections," "Schedules," and "Exhibits" are references
to sections, schedules, and exhibits of the Credit Agreement
2. Amendments. The Credit Agreement shall be and hereby is amended as follows:
(A) Lenders and Commitments. Firstrust's Commitment has been increased,
and Hibernia National Bank has been added as a Lender, under the Credit
Agreement. Accordingly, Schedule 2 to the Credit Agreement is amended in its
entirety in the form of, and all references to that schedule in the Credit
Documents are changed to, Amended Schedule 2 attached to this amendment.
3. Conditions Precedent. The obligation of Agent and each Lender to be bound by
the provisions hereof shall be subject to the fulfillment of the following
conditions precedent, in a manner satisfactory to Agent:
(a) Agent shall have received the following, duly executed by
each party thereto, other than Agent, each in form and substance
satisfactory to Agent:
(i) This Amendment;
(ii) For any officer of any Company signing below on
behalf of such Company but not
included in certificates of incumbency for such Company delivered to
Administrative Agent before this amendment, Administrative Agent receives a
certificate of the secretary or assistant secretary of such Company about the
due incumbency of that officer, and if Administrative Agent reasonably requires,
Administrative Agent receives resolutions of the directors of each Company
authorizing this amendment certified as accurate and complete by the secretary
or assistant secretary of each such Company.
(iii) All other documents Agent may reasonably request
with respect to any matter relevant to this Amendment or the
transactions contemplated hereby.
(b) Firstrust shall have received a Warehouse Note from each
Co-Borrower in the amount of its Commitment as amended hereby;
(c) Hibernia shall have received a Warehouse Note from each
Co-Borrower in the amount of its Commitment;
(d) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents shall be true and correct in all material
respects on and as of the date hereof with the same effect as if made
on and as of the date hereof.
(e) All corporate and legal proceedings and all documents
required to be completed and executed by the provisions of, and all
instruments to be executed in connection with the transactions
contemplated by, this Amendment and any related agreements shall be
satisfactory in form and substance to Agent.
4. Representations and Warranties. Co-Borrowers and Parent, without in any way
limiting the representations and warranties provided in the Credit Agreement,
each hereby represent and warrant to Agent that:
(a) Co-Borrowers and Parent are authorized to enter into this
Amendment;
(b) The execution, delivery, and performance of this Amendment
by Co-Borrowers and Parent do not violate, or conflict with, any law,
rule, regulation, order, agreement, or contract binding upon such
parties, or to which such parties are subject; and
(c) This Amendment is valid and binding upon each of the
Co-Borrowers and Parent, respectively, in accordance with its terms,
except as limited by Debtor Laws. The execution, delivery, and
performance of this Amendment by each Co-Borrower and Parent does not
require the consent of any other Person and does not and will not
constitute a violation of any law, agreement, or understanding to which
any of the Co-Borrowers or Parent is a party or by which any of them is
bound.
(d) As of the date of this Amendment, no Default or Potential
Default has occurred and is continuing, except as was disclosed in
Borrower's compliance report of December 31, 1997.
(e) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents are true and correct in all material respects on
and as of the date hereof with the same effect as if made on and as of
the date hereof.
5. No Waivers. The entering into of this Amendment will not be deemed to be a
waiver of any requirement or obligation under the Credit Agreement and Agent and
Lenders reserve all of their rights thereunder.
6. Continued Effect. Each Co-Borrower and Parent acknowledges and confirms that,
except to the extent amended hereby or in connection herewith, all terms,
provisions, and conditions of the Credit Agreement and the other Credit
Documents, and all documents executed in connection therewith, shall continue in
full force and effect and shall remain enforceable and binding in accordance
with their respective terms and shall inure to the benefit of Agent and Lenders.
The Collateral shall continue to secure the Obligation. Each party hereto
acknowledges and agrees that Agent shall have all the rights of secured party,
beneficiary, Agent, or payee under all security agreements, pledge agreements,
memoranda of deposits, guaranties, financing statements, and other documents
relating to the Credit Agreement. From and after the effective date of this
Amendment, all references in the Credit Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as amended hereby, and
references to Credit Documents shall include this Amendment. To the extent not
amended hereby, all existing references in the Credit Documents to Texas
Commerce Bank, National Association, shall be deemed to be references to Chase
Bank of Texas, National Association.
7. Counterparts. This document may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document. All
counterparts shall be construed together to constitute one and the same
document.
8. Successors and Assigns. This Amendment shall be binding upon, and inure to
the benefit of, the parties hereto, and their respective successors and assigns.
9. MISCELLANEOUS. THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AMENDMENT,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES SHALL SUPERSEDE.
THIS AMENDMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE AMENDMENT OF THE CREDIT AGREEMENT AND SUPERSEDES ALL ORAL
AGREEMENTS, CONDITIONS, AND UNDERSTANDINGS WITH RESPECT TO THE SUBJECT MATTER
HEREOF.
10. Expenses. The Co-Borrowers agree to pay all reasonable costs incurred in
connection with the execution and consummation of this Amendment.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
EFFECTIVE as of the date first stated above.
(address)
American Business Credit, Inc. AMERICAN BUSINESS CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Tel: 610/000-0000 Chairman
Fax: 610/000-0000
HomeAmerican Credit, Inc. HOMEAMERICAN CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Tel: 610/000-0000 Chairman
Fax: 610/000-0000
(address)
American Business Leasing, Inc. AMERICAN BUSINESS LEASING, INC.,
BalaPointe Office Centreas as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx..
Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
New Jersey Mortgage & Investment Corp. NEW JERSEY MORTGAGE &
BalaPointe Office Centre INVESTMENT CORP.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as a Co-Borrower
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
Federal Leasing Corp. FEDERAL LEASING CORP.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer ------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
American Business Financial Services, Inc. AMERICAN BUSINESS FINANCIAL
BalaPointe Office Centre SERVICES, INC.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as Parent
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Chairman
Tel: 610/000-0000
Fax: 610/000-0000
(address)
Chase Bank of Texas National Association CHASE BANK OF TEXAS, NATIONAL
X.X. Xxx 000 ASSOCIATION (formerly Texas
Xxxxx, Xxxxx 00000-0000 Commerce Bank, National
Attn: Xxxxxx X. Xxxxxxx Association), as Agent and a
Tel: 817/000-0000 Lender
Fax: 817/000-0000
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx,
Vice President
(address)
The Bank of New York THE BANK OF NEW YORK
One Xxxx Xxxxxx, 00xx Xxxxx as a Lender
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Dominus By: /s/ Xxxxxxxx X. Dominus
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxxx X. Dominus,
Vice President
(address)
CoreStates Bank, N.A. CORESTATES BANK, N.A.
1-8-11-24 as a Lender
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By: /s/ Xxx Xxxxxx
Attn: Xxx Xxxxxx ------------------------------
Tel: (000) 000-0000 Xxx Xxxxxx,
Fax: (000) 000-0000 Relationship Manager
(address)
Firstrust Bank FIRSTRUST BANK
0000 Xxxxxxx Xxxxxx as a Lender
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxx Xxxxxxxxxxxxx,
Assistant Vice President
(address)
National City Bank of Kentucky NATIONAL CITY BANK OF KENTUCKY,
000 Xxxx Xxxxxx Xxxxxx as a Lender
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxx X. Xxxxxxxxx,
Vice President
(address)
Hibernia National Bank HIBERNIA NATIONAL BANK,
000 Xxxxxxxxxx Xxxxxx as a Lender
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxxx By /s/ Xxxxxxxxx Xxxxxxx
Tel: 504/000-0000 ------------------------------
Fax: 504/000-0000 Xxxxxxxxx Xxxxxxx
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of May 31, 1998, among AMERICAN BUSINESS CREDIT, INC., a Pennsylvania
corporation ("ABC"), HOMEAMERICAN CREDIT, INC., a Pennsylvania corporation d/b/a
Upland Mortgage ("HAC"), AMERICAN BUSINESS LEASING, INC., a Pennsylvania
corporation ("ABL"), NEW JERSEY MORTGAGE & INVESTMENT CORP., a New Jersey
corporation d/b/a Ocean to Ocean Financial Group, Inc. ("NJMI") and FEDERAL
LEASING CORP., a New Jersey corporation ("Federal Leasing") (ABC, HAC, ABL,
NJMI, and Federal Leasing are, collectively, the "Co-Borrowers"); AMERICAN
BUSINESS FINANCIAL SERVICES, INC., a Delaware corporation ("Parent"); the
Required Lenders; and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as
Administrative Agent for Required Lenders ("Agent").
ABC, HAC, ABL, NJMI, Federal Leasing, Parent, Required Lenders, and
Agent are parties to that certain Credit Agreement (as renewed, extended,
amended, or restated, herein so called) dated as of July 31, 1997, providing for
loans to Co-Borrowers on a revolving basis. Co-Borrower's, Parent, and Required
Lenders have agreed, upon the following terms and conditions, to amend the
Credit Agreement to permit Parent to maintain certain debt.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Required Lenders, Agent, Co-Borrowers, and
Parent covenant and agree as follows:
1. Definitions. Terms used herein and defined in the Credit Agreement shall have
the meanings set forth in the Credit Agreement, except as otherwise provided
herein. All references to "Sections," "Schedules," and "Exhibits" are references
to sections, schedules, and exhibits of the Credit Agreement
2. Amendments. Section 8.1(g) of the Credit Agreement is entirely amended as
follows:
(g) Debt in an aggregate principal amount of up to
$100,000,000 under one or more warehouse financing agreements; so long
as, the lenders or their agents under each of those arrangements enter
into intercreditor arrangements reasonably acceptable to Administrative
Agent to the extent those financing arrangements extend to
Business-Purposes Loans, Mortgage Loans, or Leases that would be deemed
supported Wet Borrowings if financed under this agreement.
3. Conditions Precedent. The obligation of Agent and each Lender to be bound by
the provisions hereof shall be subject to the fulfillment of the following
conditions precedent, in a manner satisfactory to Agent:
(a) Agent shall have received the following, duly executed by
each party thereto, other than Agent, each in form and substance
satisfactory to Agent:
(i) This Amendment;
(ii) For any officer of any Company signing below on
behalf of such Company but not included in certificates of incumbency
for such Company delivered to Administrative Agent before this
amendment, Administrative Agent receives a certificate of the secretary
or assistant secretary of such Company about the due incumbency of that
officer, and if Administrative Agent reasonably requires,
Administrative Agent receives resolutions of the directors of each
Company authorizing this amendment certified as accurate and complete
by the secretary or assistant secretary of each such Company.
(iii) All other documents Agent may reasonably
request with respect to any matter relevant to this Amendment or the
transactions contemplated hereby.
(b) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents shall be true and correct in all material
respects on and as of the date hereof with the same effect as if made
on and as of the date hereof.
(c) All corporate and legal proceedings and all documents
required to be completed and executed by the provisions of, and all
instruments to be executed in connection with the transactions
contemplated by, this Amendment and any related agreements shall be
satisfactory in form and substance to Agent.
4. Representations and Warranties. Co-Borrowers and Parent, without in any way
limiting the representations and warranties provided in the Credit Agreement,
each hereby represent and warrant to Agent that:
(a) Co-Borrowers and Parent are authorized to enter into this
Amendment;
(b) The execution, delivery, and performance of this Amendment
by Co-Borrowers and Parent do not violate, or conflict with, any law,
rule, regulation, order, agreement, or contract binding upon such
parties, or to which such parties are subject; and
(c) This Amendment is valid and binding upon each of the
Co-Borrowers and Parent, respectively, in accordance with its terms,
except as limited by Debtor Laws. The execution, delivery, and
performance of this Amendment by each Co-Borrower and Parent does not
require the consent of any other Person and does not and will not
constitute a violation of any law, agreement, or understanding to which
any of the Co-Borrowers or Parent is a party or by which any of them is
bound.
(d) As of the date of this Amendment, no Default or Potential
Default has occurred and is continuing.
(e) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents are true and correct in all material respects on
and as of the date hereof with the same effect as if made on and as of
the date hereof.
5. No Waivers. The entering into of this Amendment will not be deemed to be a
waiver of any requirement or obligation under the Credit Agreement and Agent and
Required Lenders reserve all of their rights thereunder.
6. Continued Effect. Each Co-Borrower and Parent acknowledges and confirms
that, except to the extent amended hereby or in connection herewith, all
terms, provisions, and conditions of the Credit Agreement and the other Credit
Documents, and all documents executed in connection therewith, shall continue
in full force and effect and shall remain enforceable and binding in
accordance with their respective terms and shall inure to the benefit of Agent
and Required Lenders. The Collateral shall continue to secure the Obligation.
Each party hereto acknowledges and agrees that Agent shall have all the rights
of secured party, beneficiary, Agent, or payee under all security agreements,
pledge agreements, memoranda of deposits, guaranties, financing statements,
and other documents relating to the Credit Agreement. From and after the
effective date of this Amendment, all references in the Credit Documents to
the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby, and references to Credit Documents shall include this
Amendment.
7. Counterparts. This document may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document. All
counterparts shall be construed together to constitute one and the same
document.
8. Successors and Assigns. This Amendment shall be binding upon, and inure to
the benefit of, the parties hereto, and their respective successors and assigns.
9. MISCELLANEOUS. THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AMENDMENT,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES SHALL SUPERSEDE.
THIS AMENDMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE AMENDMENT OF THE CREDIT AGREEMENT AND SUPERSEDES ALL ORAL
AGREEMENTS, CONDITIONS, AND UNDERSTANDINGS WITH RESPECT TO THE SUBJECT MATTER
HEREOF.
10. Expenses. The Co-Borrowers agree to pay all reasonable costs incurred in
connection with the execution and consummation of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
EFFECTIVE as of the date first stated above.
(address)
American Business Credit, Inc. AMERICAN BUSINESS CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
HomeAmerican Credit, Inc. HOMEAMERICAN CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
American Business Leasing, Inc. AMERICAN BUSINESS LEASING, INC.,
BalaPointe Office Centreas as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
New Jersey Mortgage & Investment Corp. NEW JERSEY MORTGAGE &
BalaPointe Office Centre INVESTMENT CORP.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as a Co-Borrower
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
Federal Leasing Corp. FEDERAL LEASING CORP.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer ------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
American Business Financial Services, Inc. AMERICAN BUSINESS FINANCIAL
BalaPointe Office Centre SERVICES, INC.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as Parent
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
Chase Bank of Texas National Association CHASE BANK OF TEXAS, NATIONAL
X.X. Xxx 000 ASSOCIATION (formerly Texas
Hurst, Texas 76053-0337 Commerce Bank, National
Attn: Xxxxxx X. Xxxxxx Association), as Agent and a
Tel: 713/000-0000 Lender
Fax: 713/000-0000
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx,
Vice President
(address)
The Bank of New York THE BANK OF NEW YORK
One Xxxx Xxxxxx, 00xx Xxxxx as a Lender
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Dominus By: /s/ Xxxxxxxx X. Dominus
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxxx X. Dominus,
Vice President
(address)
CoreStates Bank, N.A. CORESTATES BANK, N.A.
1-8-11-24 as a Lender
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 By: /s/ Xxx Xxxxxx
Attn: Xxx Xxxxxx ------------------------------
Tel: (000) 000-0000 Xxx Xxxxxx,
Fax: (000) 000-0000 Relationship Manager
(address)
Firstrust Bank FIRSTRUST BANK
0000 Xxxxxxx Xxxxxx as a Lender
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxx Xxxxxxxxxxxxx,
Assistant Vice President
(address)
National City Bank of Kentucky NATIONAL CITY BANK OF KENTUCKY,
000 Xxxx Xxxxxx Xxxxxx as a Lender
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxx X. Xxxxxxxxx,
Vice President
(address)
Hibernia National Bank HIBERNIA NATIONAL BANK,
000 Xxxxxxxxxx Xxxxxx as a Lender
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx By /s/ Xxxxxx Xxxxxxx
Tel: 504/000-0000 ------------------------------
Fax: 504/000-0000 Xxxxxx Xxxxxxx,
National Accounts Representative
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of December 1, 1997, among AMERICAN BUSINESS CREDIT, INC., a Pennsylvania
corporation ("ABC"), HOMEAMERICAN CREDIT, INC., a Pennsylvania corporation d/b/a
Upland Mortgage ("HAC"), AMERICAN BUSINESS LEASING, INC., a Pennsylvania
corporation ("ABL"), NEW JERSEY MORTGAGE & INVESTMENT CORP., a New Jersey
corporation d/b/a Ocean to Ocean Financial Group, Inc. ("NJMI") and FEDERAL
LEASING CORP., a New Jersey corporation ("Federal Leasing") (ABC, HAC, ABL,
NJMI, and Federal Leasing are, collectively, the "Co-Borrowers"); AMERICAN
BUSINESS FINANCIAL SERVICES, INC., a Delaware corporation ("Parent"); certain
Lenders; and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Administrative Agent
for Lenders ("Agent").
ABC, HAC, ABL, NJMI, Federal Leasing, Parent, Lenders, and Agent are
parties to that certain Credit Agreement (as renewed, extended, amended, or
restated, herein so called) dated as of July 31, 1997, providing for loans to
Co-Borrowers on a revolving basis. Co-Borrower's, Parent, and Lenders have
agreed, upon the following terms and conditions, to amend the Credit Agreement
to permit High-LTV Borrowings (as defined in Paragraph 2 below), and to permit
Parent to incur certain additional Debt.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Lenders, Agent, Co-Borrowers, and Parent
covenant and agree as follows:
1. Definitions. Terms used herein and defined in the Credit Agreement shall have
the meanings set forth in the Credit Agreement, except as otherwise provided
herein. All references to "Sections," "Schedules," and "Exhibits" are references
to sections, schedules, and exhibits of the Credit Agreement
2. Amendments. The Credit Agreement is amended as follows:
(A) Section 1.1 is amended by entirely amending or adding the following
definitions in alphabetical order with the other definitions in that section:
"Applicable-Covered Rate" means -- for each Borrowing-Purpose
Category in the table below -- the annual interest rate stated beside
that category:
Borrowing-Purpose Category Applicable-Covered Rate
--------------------------------------------------------------------------------
Wet Borrowings and High-LTV Borrowings 1.6250%
--------------------------------------------------------------------------------
Seasoned Borrowings and Commercial Loan Borrowings 1.7500%
--------------------------------------------------------------------------------
Lease Borrowings 2.0000%
--------------------------------------------------------------------------------
Other Borrowings 1.3875%
================================================================================
"Applicable Margin" means -- for each Borrowing-Purpose
Category and relevant Borrowing-Price Category in the table below --
the interest margin beside those categories:
Borrowing-Purpose Category Borrowing-Price Category Applicable Margin
--------------------------------------------------------------------------------
Wet Borrowings and High-LTV Base Rate 0.2500%
Borrowings
--------------------------------------------------------------------------------
LIBOR 1.6250%
--------------------------------------------------------------------------------
Seasoned Borrowings and Base Rate 0.3750%
Commercial Loan Borrowings
--------------------------------------------------------------------------------
LIBOR 1.7500%
--------------------------------------------------------------------------------
Lease Borrowings Base Rate 0.6250%
--------------------------------------------------------------------------------
LIBOR 2.0000%
--------------------------------------------------------------------------------
Other Borrowings Base Rate 0.0000%
--------------------------------------------------------------------------------
LIBOR 1.3875%
================================================================================
"Borrowing Base" means, at any time, the sum of:
(a) the total collateral value of each
Eligible-Mortgage Loan and each Eligible-Commercial Loan,
equal to 98% of the lowest of (i) the unpaid principal balance
of the underlying promissory note, (ii) the actual amount
funded by ABC or HAC, as the case may be, with respect to that
Eligible-Mortgage Loan or Eligible-Commercial Loan, or (iii)
the Market Value thereof, as determined by Administrative
Agent; plus
(b) the total collateral value of each
Eligible-Seasoned Loan and Eligible- High-LTV Loan, equal to
90% of the lowest of (i) the unpaid principal balance of the
underlying promissory note, (ii) the actual amount funded by
ABC, HAC, or NMJI, as the case may be, with respect to that
Eligible-Seasoned Loan or Eligible-High-LTV Loan respectively,
or (iii) the Market Value thereof, as determined by
Administrative Agent; plus
(c) the total collateral value of each Eligible Lease
and Eligible-Seasoned Lease, equal to 85% of the lower of (i)
the actual amount funded by ABL with respect to that Eligible
Lease or Eligible-Seasoned Lease, or (ii) the net present
value of the current lease balance determined in accordance
with the discounting methods agreed upon in writing by ABL and
Administrative Agent from time to time.
"Borrowing-Purpose Category" means any category of Borrowing
determined with respect to its purpose, e.g., a Dry Borrowing, Wet
Borrowing, Swing Borrowing, Second-Lien Borrowing, Seasoned Borrowing,
High-LTV Borrowing, Commercial Loan Borrowing, or Lease Borrowing.
"Eligible-Mortgage Loan" means, at any time, a Mortgage Loan
(other than a Seasoned Loan or High-LTV Loan) for which the applicable
conditions for eligibility described in Schedule 4.1 are satisfied and
which may under Section 4.1 be included in the Borrowing Base.
"Eligible-High-LTV Loan" means, at any time, a High-LTV Loan
for which the applicable conditions for eligibility described in
Schedule 4.1 are satisfied and which may under Section 4.1 be included
in the Borrowing Base.
"High-LTV Borrowing" means a Borrowing that is subject to the
High-LTV Sublimit and the Mortgage Loan for which meets the eligibility
requirements set forth on Schedule 4.1.
"High-LTV Loan" means a Mortgage Loan which has a
loan-to-value ratio greater than 90%, and less than or equal to 125%.
"High-LTV Sublimit" means, at any time, 5% of the total
Commitments.
(B) Section 2.1 is amended to add the following bullet immediately
after the fourth bullet point:
o The total Principal Debt of High-LTV Borrowings may never
exceed the High LTV Sublimit.
(C) Sections 8.1(h)(v) and (vi) of the Credit Agreement are entirely
amended as follows:
(v) Debt in an outstanding principal amount of $3,000,000
under that certain Rothschild Senior Subordinated Note issued by Parent and due
July 1, 2002.
(vi) Debt in an aggregate principal amount of up to
$125,000,000 (as reduced by any amounts repaid thereunder) under
certain Unsecured Subordinated Investment Notes and certain Unsecured
Adjustable-Rate Subordinated Money Market Notes issued pursuant to an
Indenture with First Trust National Association, as trustee, and
Parent, as issuer, dated as of May 27, 1997 (the Debt described in
clauses (i)-(v) above being hereinafter referred to as the
"existing-Subordinated Debt"); and
(vii) Debt, so long as that Debt (A) is subject to
subordination, payment blockage, and standstill provisions at least as
favorable to Lenders as applicable to the existing-Subordinated Debt
under this agreement or otherwise, and (B) is subject to
representations, covenants, events of default, and other provisions not
significantly more onerous to any Company than the existing-
Subordinated Debt.
(D) Section 12.10(c) is entirely amended as follows:
(c) Executed by Parent, Co-Borrowers, and
Administrative Agent and executed or approved in writing by all
Lenders if action of all Lenders is specifically provided in any
Credit Document or if it purports to (i) except as otherwise stated
in Section 12.10(a), extend the due date or decrease the scheduled
amount of any payment under -- or reduce
the rate or amount of interest, fees, or other amounts payable to
Administrative Agent or any Lender under -- any Credit Document,
(ii) change the definition of "Borrowing Base" (or any component
of it), "Commitment", "Eligible-Mortgage Loan","Eligible-
Commercial Loan", "Eligible Lease", "Eligible-Seasoned Lease",
"Eligible-Seasoned Loan", "Eligible-High-LTV Loan", "Market
Value", "Required Lenders", "Stated- Termination Date", or
"Termination Percentage", (iii) change the Swing Sublimit, the
Wet Sublimit, the Second-Lien Sublimit, the Seasoned Sublimit,
the High-LTV Sublimit, the Commercial Loan Sublimit or the Lease
Sublimit, (iv) amend Schedule 4.1, or (v) partially or fully
release any Guaranty or any Collateral, except releases of
Collateral contemplated in this agreement.
(E) Schedule 4.1 and Exhibits D-1 and D-3 are entirely amended in the
forms of, and all references in the Credit Agreement to Schedule 4.1 and
Exhibits D-1 and D-3 are changed to, the attached Amended Schedule 4.1 and
Amended Exhibits D-1 and D-3, respectively.
3. Conditions Precedent. The obligation of Agent and each Lender to be bound by
the provisions hereof shall be subject to the fulfillment of the following
conditions precedent, in a manner satisfactory to Agent:
(a) Agent shall have received the following, duly executed by
each party thereto, other than Agent, each in form and substance
satisfactory to Agent:
(i) This Amendment;
(ii) For any officer of any Company signing below on
behalf of such Company but not included in certificates of
incumbency for such Company delivered to Administrative Agent
before this amendment, Administrative Agent receives a
certificate of the secretary or assistant secretary of such
Company about the due incumbency of that officer, and if
Administrative Agent reasonably requires, Administrative Agent
receives resolutions of the directors of each Company
authorizing this amendment certified as accurate and complete
by the secretary or assistant secretary of each such Company;
and
(iii) All other documents Agent may reasonably
request with respect to any matter relevant to this Amendment
or the transactions contemplated hereby.
(b) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents shall be true and correct in all material
respects on and as of the date hereof with the same effect as if made
on and as of the date hereof.
(c) All corporate and legal proceedings and all documents
required to be completed and executed by the provisions of, and all
instruments to be executed in connection with the transactions
contemplated by, this Amendment and any related agreements shall be
satisfactory in form and substance to Agent.
4. Representations and Warranties. Co-Borrowers and Parent, without in any way
limiting the representations and warranties provided in the Credit Agreement,
each hereby represent and warrant to Agent that:
(a) Co-Borrowers and Parent are authorized to enter into
this Amendment;
(b) The execution, delivery, and performance of this Amendment
by Co-Borrowers and Parent do not violate, or conflict with, any law,
rule, regulation, order, agreement, or contract binding upon such
parties, or to which such parties are subject; and
(c) This Amendment is valid and binding upon each of the
Co-Borrowers and Parent, respectively, in accordance with its terms,
except as limited by Debtor Laws. The execution, delivery, and
performance of this Amendment by each Co-Borrower and Parent does not
require the consent of any other Person and does not and will not
constitute a violation of any law, agreement, or understanding to which
any of the Co-Borrowers or Parent is a party or by which any of them is
bound.
(d) As of the date of this Amendment, no Default or Potential
Default has occurred and is continuing.
(e) The representations and warranties of the Co-Borrowers and
Parent contained in the Credit Agreement, as amended hereby, and the
other Credit Documents are true and correct in all material respects on
and as of the date hereof with the same effect as if made on and as of
the date hereof.
5. No Waivers. The entering into of this Amendment will not be deemed to be a
waiver of any requirement or obligation under the Credit Agreement and Agent and
Lenders reserve all of their rights thereunder.
6. Continued Effect. Each Co-Borrower and Parent acknowledges and confirms that,
except to the extent amended hereby or in connection herewith, all terms,
provisions, and conditions of the Credit Agreement and the other Credit
Documents, and all documents executed in connection therewith, shall continue in
full force and effect and shall remain enforceable and binding in accordance
with their respective terms and shall inure to the benefit of Agent and Lenders.
The Collateral shall continue to secure the Obligation. Each party hereto
acknowledges and agrees that Agent shall have all the rights of secured party,
beneficiary, Agent, or payee under all security agreements, pledge agreements,
memoranda of deposits, guaranties, financing statements, and other documents
relating to the Credit Agreement. From and after the effective date of this
Amendment, all references in the Credit Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as amended hereby, and
references to Credit Documents shall include this Amendment.
7. Counterparts. This document may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document. All
counterparts shall be construed together to constitute one and the same
document.
8. Successors and Assigns. This Amendment shall be binding upon, and inure to
the benefit of, the parties hereto, and their respective successors and assigns.
9. MISCELLANEOUS. THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AMENDMENT,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES SHALL SUPERSEDE.
THIS AMENDMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE AMENDMENT OF THE CREDIT AGREEMENT AND SUPERSEDES ALL ORAL
AGREEMENTS, CONDITIONS, AND UNDERSTANDINGS WITH RESPECT TO THE SUBJECT MATTER
HEREOF.
10. Expenses. The Co-Borrowers agree to pay all reasonable costs incurred in
connection with the execution and consummation of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to Credit Agreement to be executed by their duly authorized officers as of the
date first above written.
EFFECTIVE as of the date first stated above.
(address)
American Business Credit, Inc. AMERICAN BUSINESS CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
HomeAmerican Credit, Inc. HOMEAMERICAN CREDIT, INC.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
American Business Leasing, Inc. AMERICAN BUSINESS LEASING, INC.,
BalaPointe Office Centreas as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
New Jersey Mortgage & Investment Corp. NEW JERSEY MORTGAGE &
BalaPointe Office Centre INVESTMENT CORP.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as a Co-Borrower
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
Federal Leasing Corp. FEDERAL LEASING CORP.,
BalaPointe Office Centre as a Co-Borrower
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer ------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
American Business Financial Services, Inc. AMERICAN BUSINESS FINANCIAL
BalaPointe Office Centre SERVICES, INC.,
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000 as Parent
Bala Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer -------------------------------
Tel: 610/000-0000 Xxxxxxx X. Xxxxxxxx, Xx.,
Fax: 610/000-0000 Chairman
(address)
Chase Bank of Texas National Association CHASE BANK OF TEXAS, NATIONAL
X.X. Xxx 000 ASSOCIATION (formerly Texas
Hurst, Texas 76053-0337 Commerce Bank, National
Attn: Xxxxxx X. Xxxxxx Association), as Agent and a
Tel: 713/000-0000 Lender
Fax: 713/000-0000
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx,
Vice President
(address)
The Bank of New York THE BANK OF NEW YORK
One Xxxx Xxxxxx, 00xx Xxxxx as a Lender
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Dominus By: /s/ Xxxxxxxx X. Dominus
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxxxx X. Dominus,
Vice President
(address)
CoreStates Bank, N.A. FIRST UNION NATIONAL BANK
1-8-11-24 (successor in interest by merger
0000 Xxxxxxxx Xxxxxx to CoreStates Bank, N.A.)
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 as a Lender
Attn: Xxx Xxxxxx
Tel: (000) 000-0000 By /s/ Xxx Xxxxxx
Fax: (000) 000-0000 -------------------------------
Xxx Xxxxxx,
Commercial Officer
(address)
Firstrust Bank FIRSTRUST BANK
0000 Xxxxxxx Xxxxxx as a Lender
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxx Xxxxxxxxxxxxx,
Assistant Vice President
(address)
National City Bank of Kentucky NATIONAL CITY BANK OF KENTUCKY,
000 Xxxx Xxxxxx Xxxxxx as a Lender
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
Tel: (000) 000-0000 ------------------------------
Fax: (000) 000-0000 Xxxxxx X. Xxxxxx,
Vice President
(address)
Hibernia National Bank HIBERNIA NATIONAL BANK,
000 Xxxxxxxxxx Xxxxxx as a Lender
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx By /s/ Xxxxxx Xxxxxxx
Tel: 504/000-0000 -------------------------------
Fax: 504/000-0000 Xxxxxx Xxxxxxx,
National Accounts Representative
AMENDED SCHEDULE 4.1
ELIGIBILITY CONDITIONS
A. Eligible-Mortgage Loan. A Mortgage Loan:
1. For which the applicable Wet Period has not expired if it supports a
Wet Borrowing.
1. The promissory note evidencing which (a) is the standard form approved
by VA, FHA, FNMA, or FHLMC or a form otherwise acceptable to
Administrative Agent, (b) has a maturity within 30 years of its
origination, (c) is payable or endorsed (without restriction or
limitation) to a Co-Borrower's order (the "applicable Co-Borrower"),
(d) is endorsed without recourse and in blank by the applicable
Co-Borrower, (e) is fully funded, and (f) to the best knowledge of
the Co-Borrowers, is valid and enforceable without offset,
counterclaim, defense, or right of rescission or avoidance of any
kind other than for valid payments made on it and any exceptions to
enforceability under Debtor Laws.
2. For which no default in the payment of principal or interest or any
other default has continued uncured for 60 days, no foreclosure or
other similar proceedings have commenced, and no claim for any credit,
allowance, or adjustment exists.
3. Which is secured by a mortgage, deed of trust, or trust deed that (a)
is the standard form approved by VA, FHA, FNMA, or FHLMC or a form
otherwise acceptable to Administrative Agent and (b) grants a
first-priority Lien (or second-priority Lien in the case of a
Second-Lien Borrowing) on residential-real property described below
that will be perfected upon recording.
4. For which the underlying residential-real property (a) consists of land
and (i) a one- to four-family dwelling, (ii) a condominium unit that
is ready for occupancy, (iii) a manufactured home unit that is
permanently attached to the underlying residential-real property, or
(iv) a residential building, a portion of which may be used for
commercial purposes, but not (v) a mobile home, a co-op, or a
multi-family dwelling for more than four families, (b) is, if
required by Appraisal Requirements, covered by an Appraisal, and (c)
is insured against loss or damage by fire and all other hazards
normally included in standard-extended-coverage insurance (including,
without limitation, flood insurance if the property is in a
federally-designated-flood plain) in accordance with the Collateral
Documents for it and the applicable Co-Borrower is named as a
mortgagee for that insurance.
5. Which may or may not be covered by a valid and effective Take-Out
Commitment held by the applicable Co-Borrower (and if it is covered,
the Mortgage Loan conforms in all materials respects with all of the
requirements of that Take-Out Commitment).
6. The Collateral Documents for which (a) are delivered to Administrative
Agent within 270 days after the date of the related promissory note,
(b) are in compliance with all Governmental Requirements, (c) are
otherwise in compliance with the requirements of the Credit Documents
and otherwise in
form and substance acceptable to Administrative Agent, and (d) are
subject to no Liens other than Lender Liens and other Permitted Liens.
7. Which has not (and no Collateral Document for which has) been (except
in respect of reacquisition in connection with the collapse of a
proposed securitization) (a) sold to an investor or securitized and
repurchased by any Co-Borrower, (b) rejected by an investor or
re-acquired by a Co-Borrower from out of a securitization program, (c)
delivered to an investor or securitization custodian or any Person for
them for more than the Shipping Period, or (d) delivered to the
applicable Co-Borrower for correction for more than the Correction
Period.
8. Which conforms to the applicable Co-Borrower's underwriting standards
in effect at that time.
9. Which has a maximum loan-to-value ratio of 90%.
10. Which has been held by the Administrative Agent as an Eligible-Mortgage
Loan for 270 days or less.
B. Eligible-Commercial Loan. A Commercial Loan:
1. For which the applicable Wet Period has not expired if it supports a
Wet Borrowing.
2. The promissory note evidencing which (a) is the standard form approved
by VA, FHA, FNMA, or FHLMC or a form otherwise acceptable to
Administrative Agent, (b) has a maturity within 15 years of its
origination, (c) is payable or endorsed (without restriction or
limitation) to the applicable Co- Borrower's order, (d) is endorsed
without recourse and in blank by the applicable Co-Borrower, (e) is
fully funded, and (f) to the best knowledge of the Co-Borrowers, is
valid and enforceable without offset, counterclaim, defense, or right
of rescission or avoidance of any kind other than for valid payments
made on it and any exceptions to enforceability under Debtor Laws.
3. For which no default in the payment of principal or interest or any
other default has continued uncured for 60 days, no foreclosure or
other similar proceedings have commenced, and no claim for any credit,
allowance, or adjustment exists.
4. Which is secured by a mortgage, deed of trust, or trust deed that (a)
is the standard form approved by VA, FHA, FNMA, or FHLMC or a form
otherwise acceptable to Administrative Agent and (b) grants a
first-priority Lien (or a second-priority Lien in the case of a
Second-Lien Borrowing) on commercial property described below that will
be perfected upon recording.
5. For which the underlying real property (a) consists of land and a
commercial building or structure, (b) is, if required by Appraisal
Requirements, covered by an Appraisal, and (c) is insured against loss
or damage by fire and all other hazards normally included in
standard-extended-coverage insurance (including, without limitation,
flood insurance if the property is in a federally-designated- flood
plain) in accordance with the Collateral Documents for it and the
applicable Co-Borrower is named as a mortgagee for that insurance.
6. Which may or may not be covered by a valid and effective Take-Out
Commitment held by the applicable Co-Borrower (and if it is covered,
the Commercial Loan conforms on all material respects with all of the
requirements of that Take-Out Commitment).
7. The Collateral Documents for which (a) are delivered to Administrative
Agent within 270 days after the date of the related promissory note,
(b) are in compliance with all Governmental Requirements, (c) are
otherwise in compliance with the requirements of the Credit Documents
and otherwise in form and substance acceptable to Administrative Agent,
and (d) are subject to no Liens other than Lender Liens and other
Permitted Liens.
8. Which has not (and no Collateral Document for which has) been (except
in respect of reacquisition in connection with the collapse of a
proposed securitization) (a) sold to an investor or securitized and
repurchased by any Co-Borrower, (b) rejected by an investor or
re-acquired by a Co-Borrower from and of a securitization program, (c)
delivered to an investor or securitization custodian or any Person for
it for more than the Shipping Period, or (d) delivered to the
applicable Co-Borrower for correction for more than the Correction
Period.
9. Which has a maximum loan-to-value ratio of 90%.
10. Which has been held by Administrative Agent as an Eligible-Commercial
Loan for 270 days or less.
C. Eligible-Seasoned Loan. An otherwise Eligible-Mortgage Loan or
Eligible-Commercial Loan except either (a) the Mortgage Loan or Commercial Loan
has been included in the Borrowing Base for more than 270 days or (b) the
underlying promissory note was originated more than 270 days before being
included in the Borrowing Base.
D. Eligible-High-LTV Loan. An otherwise Eligible-Mortgage Loan except such
Mortgage Loan (a) grants a first-priority Lien or second-priority Lien on
residential-real property described below that will be perfected upon recording,
(b) must be covered by a valid and effective Take-Out Commitment held by the
applicable Co-Borrower and conform in all material respects with all of the
requirements of that Take-Out Commitment, (c) has a maximum loan-to-value ratio
of 125%, and (d) has been held by the Administrative Agent as an
Eligible-High-LTV Loan for 60 days or less.
E. Eligible Lease. A Lease:
1. Which may not support a Wet Borrowing.
2. The lease agreement evidencing which (a) is payable or assigned
(without restriction or limitation) to the applicable Co-Borrower's
order, (b) is assigned without recourse and in blank by the
applicable Co-Borrower, (c) has been duly authorized by a bona fide,
legally competent lessee (or representative of such lessee), (d) has
been underwritten in accordance with the Co-Borrowers' standard
underwriting guidelines for Leases as disclosed to Administrative
Agent from time to time, (e) is executed as a single original, which
original is delivered to Administrative Agent (i.e. no multiple
counterparts of the Lease have been executed), (f) if copies are made
of the Lease, each such copy is clearly stamped as a "Copy," (g) is
accompanied by a listing of the machinery or
equipment covered by the Lease, and (h) to the best knowledge of the
Co-Borrowers, is valid and enforceable without offset, counterclaim,
defense, or right of rescission or avoidance of any kind other than for
valid payments made on it and any exceptions to enforceability under
Debtor Laws.
3. For which no default in payment of lease payments or any other default
has continued uncured for 60 days, no collection or other similar
proceedings have commenced, and no claim for any credit, allowance, or
adjustment exists.
4. Which is secured by a security or pledge agreement (which may be part
of the lease agreement itself) that (a) is in a form acceptable to
Administrative Agent and (b) grants a first-priority Lien (to the
extent the Lease is construed as a financing for which a security
interest is required to reflect the applicable Co-Borrower's interest
in the machinery or equipment) on business machinery and equipment
leased to commercial and industrial customers located in the
continental United States that will be perfected upon recording of a
UCC financing statement (which may be a notice filing for leased
machinery and equipment as permitted under the UCC).
5. For which the underlying business machinery and equipment is insured
against loss or damage in accordance with the Collateral Documents for
it and the applicable Co-Borrower is named as a mortgagee for that
insurance.
6. For which all sums of money previously paid by any lessee as advance
rentals or deposit of security shall have been fully disclosed to
Administrative Agent.
7. The Collateral Documents for which (a) are delivered to Administrative
Agent within 270 days after the date of the related lease agreement,
(b) are in compliance with all Governmental Requirements, (c) are
otherwise in compliance with the requirements of the Credit Documents
and otherwise in form and substance acceptable to Administrative Agent,
and (d) are subject to no Liens other than Lender Liens and other
Permitted Liens.
8. Which has not (and no Collateral Document for which has) been (except
in respect of reacquisition in connection with the collapse of a
proposed securitization) (a) sold to an investor or securitized and
repurchased by any Co-Borrower, (b) rejected by an investor or
re-acquired by a Co-Borrower from out of a securitization program, (c)
delivered to an investor or securitization custodian or any Person for
them for more than the Shipping Period, or (d) delivered to the
applicable Co- Borrower for correction for more than the Correction
Period.
9. Which has been held by Administrative Agent as an Eligible Lease for
270 days or less.
F. Eligible Seasoned-Lease. An otherwise Eligible Lease except either (a) the
Lease has been included in the Borrowing Base for more than 270 days, or (b) the
underlying lease contract was originated more than 270 days before being
included in the Borrowing Base.
