Exhibit 10.148
SIXTH WAIVER LETTER
As of September 30, 2004
ABFS Balapointe, Inc. American Business Financial Services, Inc.
American Business Credit, Inc. HomeAmerican Credit, Inc., d/b/a Upland Mortgage
American Business Mortgage Services, Inc. JPMorgan Chase Bank, as Indenture Trustee
ABFS Mortgage Loan Warehouse Trust 2003-1
c/o Wilmington Trust Company
Re: ABFS Mortgage Loan Warehouse Trust 2003-1
Reference is made to (i) that certain Sale and Servicing Agreement,
dated as of September 22, 2003, as it may have subsequently been amended and
supplemented from time to time (the "Sale and Servicing Agreement"), among ABFS
Balapointe, Inc, as depositor (the "Depositor"), HomeAmerican Credit, Inc.,
d/b/a Upland Mortgage ("Upland"), American Business Mortgage Services, Inc.
("ABMS"), and American Business Credit, Inc. ("ABC"), ABFS Mortgage Loan
Warehouse Trust 2003-1, as trust (the "Trust"), American Business Financial
Services, Inc., as sponsor (the "Sponsor"), JPMorgan Chase Bank, as indenture
trustee (the "Indenture Trustee") and JPMorgan Chase Bank, as collateral agent
(the "Collateral Agent"); (ii) that certain Indenture, dated as of September 22,
2003 (the "Indenture"), between the Trust and the Indenture Trustee; (iii) that
certain Waiver Letter, dated as of October 8, 2003 (the "First Waiver Letter"),
by JPMorgan Chase Bank, as note purchaser (the "Note Purchaser"); (iv) that
certain Second Waiver Letter, dated as of October 31, 2003 (the "Second Waiver
Letter"), by the Note Purchaser; (v) that certain Third Waiver Letter, dated as
of December 31, 2003 (the "Third Waiver Letter"); (vi) that certain Fourth
Waiver Letter, dated as of March 31, 2004 (the "Fourth Waiver Letter") and (vii)
that certain Fifth Waiver Letter, dated as of June 30, 2004 ("Fifth Waiver
Letter"). Capitalized terms used herein but not defined herein shall have the
meanings given in Appendix I to the Sale and Servicing Agreement and the
Indenture ("Appendix I").
The undersigned, as Note Purchaser and 100% Noteholder under the Sale
and Servicing Agreement and the Indenture, as applicable, hereby confirms its
waiver;
(i) as of June 30, 2004, the failure by the Sponsor and its
Subsidiaries and Affiliates, as applicable, to comply on June 30, 2004 (the
"First Waiver Period") with:
(I) the terms of clause (ii) of the definition of Amortization Event in Appendix
I to the Sale and Servicing Agreement and Indenture regarding the maintenance of
a GAAP Net Worth of $34,000,000; and (II) the terms of clause (iii) of the
definition of Amortization Event in Appendix I to the Sale and Servicing
Agreement and Indenture regarding the maintenance of an Adjusted Tangible Net
Worth of $300,000,000.
(ii) as of July 31, 2004, the failure by the Sponsor and its Subsidiaries and
Affiliates, as applicable, to comply on July 31, 2004 (the "Second Waiver
Period") and on August 31, 2004 ("Third Waiver Period") with the terms of clause
(iii) of the definition of Amortization Event in Appendix I to the Sale and
Servicing Agreement and Indenture regarding the maintenance of an Adjusted
Tangible Net Worth of $300,000,000.
(iii) the failure by the Sponsor and its Subsidiaries and Affiliates, as
applicable, to comply on September 28, 2004 with the terms of Section 5.05(a),
5.05(c) and 5.05(d) of the Sale and Servicing Agreement and (by virtue of
Section 9.01(a)(ii) of the Sale and Servicing Agreement) with the related terms
of clause (i) of the definition of Amortization Event in Appendix I to the Sale
and Servicing Agreement and Indenture regarding the delivery of the financial
statements and reports stipulated therein for the month of July 2004 (such month
being the month immediately following the Sponsor's fiscal year end) and for the
fiscal year ended June 30, 2004 in the event Sponsor is not able to deliver such
financial statements and reports within the 15 day cure period provided for in
Section 9.01(a)(ii), and in connection therewith Sponsor represents and warrants
that it will deliver such financial statements and reports promptly following
its filing with the U.S. Securities and Exchange Commission of its Annual Report
on Form 10-K for the fiscal year ended June 30, 2004.
(iv) as of September 30, 2004, the failure by the Sponsor and its Subsidiaries
and Affiliates, as applicable, to comply on September 30, 2004 (the "Fourth
Waiver Period") with: (I) the terms of clause (ii) of the definition of
Amortization Event in Appendix I to the Sale and Servicing Agreement and
Indenture regarding the maintenance of a GAAP Net Worth of $36,000,000; and (II)
the terms of clause (iii) of the definition of Amortization Event in Appendix I
to the Sale and Servicing Agreement and Indenture regarding the maintenance of
an Adjusted Tangible Net Worth of $300,000,000; and (III) the terms of clause
(vi) of the definition of Amortization Event in Appendix I to the Sale and
Servicing Agreement and Indenture which requires that the aggregate cash flow
from all securitization trusts not fail to be greater than the average of the
actual cash flow from the immediately preceding four fiscal quarters; and (IV)
the terms of clause (iv) of the definition of Amortization Event in Appendix I
to the Sale and Servicing Agreement and Indenture regarding the maintenance of a
ratio of Debt to Adjusted Tangible Net Worth of not less than 4:1.
This waiver letter (the "Sixth Waiver Letter"), contains the entire
agreement relating to the subject matter hereof between the parties and
supersedes any prior oral or written agreement between the parties and shall not
be deemed to constitute a waiver as to any other transaction or occurrence.
Except as expressly provided herein, all provisions, terms and
conditions, covenants and representations and warranties of the Sale and
Servicing Agreement, the Indenture and the Credit Agreement remain in full force
and effect.
IN WITNESS WHEREOF, the Note Purchaser has signed this Sixth Waiver
Letter as of the date set forth above.
JPMORGAN CHASE BANK, as Note
Purchaser, 100% Noteholder and Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
