EXHIBIT 10.1
EXECUTION VERSION
AMENDMENT NO. 4
TO SALE AND SERVICING AGREEMENT
Amendment No. 4 to the Sale and Servicing Agreement, dated as
of September 16, 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 and Amendment No. 3 to the Sale and Servicing Agreement, dated as of June
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 definition of "Commitment Term" in
its entirety and replacing it with the following language:
"Commitment Term": That period of time commencing on the date
hereof and continuing until the earlier of (i) September 30, 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.
SECTION 2. Conditions Precedent. This Amendment shall become
effective on September 16, 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; and
(b) such other documents as the Collateral Agent or counsel to
the Collateral Agent may reasonably request.
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 & Chief Executive Officer
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/ Xxxx Xxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
AMERICAN BUSINESS CREDIT, INC., as an
Originator and the Servicer
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice 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
-2-
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant 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
