Exhibit 10.4
EXECUTION VERSION
AMENDMENT NO. 6
TO SALE AND SERVICING AGREEMENT
Amendment No. 6 to the Sale and Servicing Agreement, dated as
of November 5, 2004 (this "Amendment"), among ABFS Balapointe, Inc, as depositor
(the "Depositor"), HomeAmerican Credit, Inc., d/b/a Upland Mortgage ("Upland"),
American Business Mortgage Services, Inc. ("ABMS" together with Upland, the
"Originators"), and American Business Credit, Inc. (the "Servicer"), 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"), JPMorgan Chase Bank, as collateral
agent (the "Collateral Agent") and JPMorgan Chase Bank, as note purchaser (the
"Note Purchaser").
RECITALS
The Depositor, the Originators, the Servicer, the Trust, the
Sponsor, the Indenture Trustee and the Collateral Agent are parties to that
certain Sale and Servicing Agreement, dated as of September 22, 2003 as amended
by Amendment No. 1 to the Sale and Servicing Agreement, dated as of May 12,
2004, Amendment No. 2 to the Sale and Servicing Agreement, dated as of June 24,
2004, Amendment No. 3 to the Sale and Servicing Agreement, dated as of June 30,
2004, Amendment No. 4 to the Sale and Servicing Agreement, dated as of September
16, 2004 and Amendment No. 5 to the Sale and Servicing Agreement, dated as of
September 30, 2004 (the "Existing Sale Agreement"; as amended by this Amendment,
the "Sale Agreement"). Capitalized terms used but not otherwise defined herein
shall have the meanings given to them in Appendix I to the Sale Agreement.
The Depositor, the Originators, the Servicer, the Trust, the
Sponsor, the Indenture Trustee and the Collateral Agent have agreed, subject to
the terms and conditions of this Amendment, that the Existing Sale Agreement be
amended to reflect certain agreed upon revisions to the terms of the Existing
Sale Agreement.
Accordingly, the Depositor, the Originators, the Servicer, the
Trust, the Sponsor, the Indenture Trustee and the Collateral Agent hereby agree,
in consideration of the mutual promises and mutual obligations set forth herein,
that the Existing Sale Agreement is hereby amended, as follows:
SECTION 1. Definitions. Appendix I of the Existing Sale
Agreement is hereby amended by deleting the definitions of "Aged Loan"
"Commitment Term", "Maximum Note Balance", "Mortgage Loan Base" and "Portfolio
Composition Criteria" in their entirety and replacing them with the following
language:
"Aged Loan": A Mortgage Loan secured by a first lien that is
pledged under the Indenture more than 30 days from the Transfer Date.
"Commitment Term": That period of time commencing on the date
hereof and continuing until the earlier of (i) December 3, 2004, and (ii) the
date upon which the Obligations are declared to be, or become, due and payable
in full in accordance with Article X or Section 5.02 of the Indenture.
"Maximum Note Balance": That period of time (i) commencing on
November 5, 2004 until and including November 11, 2004, $90,000,000; (ii)
commencing on November 12, 2004 until and including November 18, 2004,
$80,000,000; (iii) commencing on November 19, 2004 until and including November
25, 2004, $70,000,000; and (iv) commencing on November 26, 2004 until and
including December 3, 2004, $60,000,000.
"Mortgage Loan Base": Shall mean:
(a) with respect to fixed-rate Eligible Mortgage Loans, other
than Second Lien Mortgage Loans, 90% of the least of: (1) the net cash amount
paid for the Eligible Mortgage Loan, (2) the Principal Balance of the Mortgage
Loan or (3) the Market Value for such Mortgage Loan.
(b) with respect to adjustable-rate Eligible Mortgage Loans,
other than Second Lien Mortgage Loans, 88% of the least of: (1) the net cash
amount paid for the Eligible Mortgage Loan, (2) the Principal Balance of the
Mortgage Loan, or (3) the Market Value of such Mortgage Loan.
(c) with respect to Second Lien Mortgage Loans, 75% of the
least of: (1) the net cash amount paid for the Second Lien Mortgage Loan, (2)
the Principal Balance of the Mortgage Loan, or (3) the Market Value of such
Mortgage Loan.
"Portfolio Composition Criteria": As of any date of
determination with respect to any subcategory of Mortgage Loans, the maximum
percentage (as measured by the Principal Balance as of such date) of the
category set forth opposite such subcategory in the table set forth below that,
as of such determination, have been pledged to the Indenture Trustee on behalf
of the Note Purchaser under the Indenture and not released pursuant to the
provisions thereof, that may be represented by such product category, as set
forth below:
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PRODUCT MAXIMUM PERCENTAGE, CATEGORY
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Mortgage Loans with an LTV in excess of 80% 50% of the Outstanding Note Principal Balance
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Mortgage Loans with a credit grade of C 15% of the Outstanding Note Principal Balance
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Mortgage Loans with a CLTV in excess of 90% 10% of the Outstanding Note Principal Balance
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Mortgage Loans Delinquent in payment more than 5% of the Outstanding Note Principal Balance
30 days and less than 60 days
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Mortgage Loans that are Manufactured Housing 3% of the Outstanding Note Principal Balance
Loans with a Principal Balance up to $150,000
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Jumbo Mortgage Loans 30% of the Outstanding Note Principal Balance
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Super Jumbo Mortgage Loans other than on the last 5% of the Outstanding Note Principal Balance
three (3) Business Days and first five (5) Business
Days of each month
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PRODUCT MAXIMUM PERCENTAGE, CATEGORY
-------------------------------------------------------------- -------------------------------------------------------
Super Jumbo Mortgage Loans for the last three (3) 10% of the Outstanding Note Principal Balance
Business Days and first five (5) Business Days of
each month
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Jumbo Mortgage Loans and Super Jumbo Mortgage 30% of the Outstanding Note Principal Balance
-------------------------------------------------------------- -------------------------------------------------------
Second Lien Mortgage Loans 10% of the Outstanding Note Principal Balance
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Wet-Ink Mortgage Loans $60,000,000 of the Outstanding Note Principal Balance
-------------------------------------------------------------- -------------------------------------------------------
Aged Loans 0% of the Outstanding Note Principal Balance
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Mortgage Loans secured by non Owner-Occupied Mortgage 8% of the Outstanding Note Principal Balance
Property
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In addition to the foregoing: (a) the maximum weighted average
LTV for all adjustable rate Mortgage Loans shall be 85%; (b) the maximum
weighted average LTV for all fixed rate Mortgage Loans shall be 83%; and (c) the
minimum weighted FICO score of all Mortgage Loans shall be 610.
SECTION 2. Conditions Precedent. This Amendment shall become
effective on November 5, 2004 (the "Amendment Effective Date"), subject to the
satisfaction of the following conditions precedent:
2.1 Delivered Documents. On the Amendment Effective Date, the
Collateral Agent shall have received the following documents, each of which
shall be satisfactory to the Collateral Agent in form and substance:
(a) this Amendment, executed and delivered by duly authorized
officers of the parties hereto;
(b) that certain warehouse facility in favor of any Originator
or any Affiliate thereof with Fortress Investment Group LLC in an
amount of at least $100,000,000 and for a term of at least one year,
executed and delivered by duly authorized officers of the parties
thereto, and
(c) such other documents as the Collateral Agent or counsel to
the Collateral Agent may reasonably request.
2.2 Payment of Fees. On the Amendment Effective Date, (i)
attorneys' fees shall have been paid to Buyer's counsel either by payment or by
authorized debit in connection with this Amendment in an amount equal to $2,500
and (ii) fees shall have been paid to Buyer either by payment or by authorized
debit in connection with this Amendment in an amount equal to $50,000.
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SECTION 3. Representations and Warranties. Each of the
Depositor, Originators, the Trust, the Servicer, the Sponsor and the Indenture
Trustee hereby represents and warrants to the Collateral Agent that it is in
compliance with all the terms and provisions set forth in the Existing Sale
Agreement on its part to be observed or performed, and that no Event of Default
has occurred or is continuing, and hereby confirms and reaffirms each of their
respective representations and warranties contained in Article III of the
Existing Sale Agreement.
SECTION 4. Limited Effect. Except as expressly amended and
modified by this Amendment, the Existing Sale Agreement shall continue to be,
and shall remain, in full force and effect in accordance with its terms.
SECTION 5. Counterparts. This Amendment may be executed by
each of the parties hereto on any number of separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Servicer, the Trust, the Indenture
Trustee, the Collateral Agent, the Originators, the Subservicers and the
Depositor have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
ABFS BALAPOINTE, INC., as Depositor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
AMERICAN BUSINESS FINANCIAL
SERVICES, INC., as the Sponsor
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, CEO & President
HOMEAMERICAN CREDIT, INC. D/B/A
UPLAND MORTGAGE, as an Originator
and a Subservicer
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
ABFS MORTGAGE LOAN WAREHOUSE
TRUST 2003-1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
AMERICAN BUSINESS CREDIT, INC., as
an Originator and the Servicer
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
AMERICAN BUSINESS MORTGAGE
SERVICES, INC., as an Originator
and a Subservicer
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
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JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
Acknowledged and Agreed:
-----------------------
JPMORGAN CHASE BANK, as Note
Purchaser, 100% Noteholder and
Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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