AMENDMENT NO. 1 TO MASTER CREDIT AND SECURITY AGREEMENTS
Exhibit
10.1
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1, dated as of December 1, 2006 (this “Amendment”), between
FRANKLIN CREDIT MANAGEMENT CORPORATION (“Franklin”) and TRIBECA LENDING
CORPORATION (“Tribeca”, and together with Franklin, the “Company”) and SKY BANK
(the “Bank”), to the Master Credit and Security Agreement, dated as of October
13, 2004, as amended by the Amendment to the Master Credit and Security
Agreement, dated as of October 5, 2006 (as so amended, the “Franklin Credit
Agreement”), among Franklin, certain of its Subsidiaries and the Bank and the
Master Credit and Security Agreement, February 28, 2006 (the “Tribeca Credit
Agreement”; together with the Franklin Credit Agreement, the “Credit
Agreements”, and each, a “Credit Agreement”), among Tribeca, certain of its
Subsidiaries and the Bank; all capitalized terms used but not defined herein
having the meaning ascribed to such terms in the applicable Credit
Agreement.
WHEREAS,
the Bank originally granted loan facilities to the Company and certain Company
Subsidiaries pursuant to the Credit Agreements to finance the origination,
funding or purchase of Mortgage Loans; and
WHEREAS,
the Company has previously agreed to pay the Bank certain Success Fees as
defined in (i) Section 2.10 of the Franklin Credit Agreement, as modified by
that certain Agreement, dated as of December 30, 2004 (the “Success Fee
Agreement”), to the Franklin Credit Agreement, between the Bank and the Company,
(ii) in Section 2.10 of the Tribeca Lending Agreement, and (iii) in Section
2.10
of that certain Master Credit and Security Agreement, dated as of March 24,
2006
(the “BOS Credit Agreement”), among Tribeca, certain of its Subsidiaries and BOS
(USA) Inc.;
NOW
THEREFORE, in consideration of the agreements contained herein, the receipt
and
sufficiency of which is hereby acknowledged as of the date hereof, the Company
and the Bank agree as follows:
1.
Elimination
of Success Fees.
In
order to terminate the obligation of the Company, its subsidiaries and
affiliates to pay Success Fees to the Bank as of and after the date hereof,
including any and all Success Fee liability currently existing and due to Bank
and that would have subsequently become due after December 1, 2006, under
Section 2.10 of the Credit Agreements and the BOS Credit Agreement and any
and
all other existing agreements between the Bank and the Company and its
subsidiaries or affiliates, including, but not limited to, the Success Fee
Agreement, the following amendments are hereby made to the Credit Agreements,
as
provided below:
(a)
Section
2.10 of each of the Credit Agreements is hereby deleted in its
entirety.
(b)
Section
2.5(a)(First)(i)(B)
and (C) of the Franklin Credit Agreement are hereby deleted and replaced with
the following:
“(B) any
accrued and unpaid interest due on all Company Subsidiary Loans related to
such
Mortgage Pool;
“(C) as
consideration for the termination of the obligation of the Company and its
affiliates to pay Success Fees to the Bank under all agreements between the
Company or its affiliates and the Bank in existence on the date hereof, an
amount which, when added to all other amounts paid to the Bank from time to
time
under this Section 2.5(a)(i)(C) on or after December 1, 2006, shall equal
$4,500,000.00 in the aggregate; and
“(D) the
required Principal Payment for such Mortgage Pool;”
(c)
In
the
introduction to Section 2.5(a)(First)(ii)
of
the Franklin Credit Agreement, the words “through (C)” are hereby replaced with
the words “through (D)”.
(d)
In
Section 2.5(a)(First)(ii)(B)
of the Franklin Credit Agreement, the words “and Success Fees” are hereby
deleted.
(e)
In
Section 2.5(a)(Second)(i)
of
the Franklin Credit Agreement, the words “and Success Fees” are
hereby deleted.
(f)
In
Section 2.5(b) of the Franklin Credit Agreement, the words “(but subject to the
Success Fee)” are hereby deleted.
(g)
Section
2.5(a)(i)(B) and (C) of the Tribeca Credit Agreement are hereby deleted and
replaced with the following:
“(B) any
accrued and unpaid interest due on the Related Loan for such Mortgage Pool;
and
“(C) any
required Principal Payment due on the Related Loan for such Mortgage
Pool;”
(h)
In
Section 2.5(a)(v) of the Tribeca Credit Agreement, the words “and Success Fees”
are hereby deleted.
(i)
In
Section 2.5(c) of the Tribeca Credit Agreement, the words “(but subject to the
Success Fee)” are hereby deleted.
(j)
All
other
references to Success Fees in the Credit Agreements, if any, shall be
ignored.
2.
Applicability.
This
Amendment shall apply to obligations of the Company and the Company Subsidiaries
arising as of and after the date hereof under all Company Subsidiary Loans
now
existing or hereafter arising under the Credit Agreements and any Success Fees
otherwise
due to the Bank or any successor thereto by operation of the BOS Credit
Agreement. The Bank agrees that after the date hereof, all payments of Success
Fees under the BOS Credit Agreement that otherwise would be payable to the
Bank
shall instead be payable to Tribeca, and shall take all actions necessary to
cause such amounts to be paid over to Tribeca.
3.
Supersession.
This
Amendment supersedes the Success Fee Agreement and all other agreements or
understandings, written or unwritten, relating to success fees in connection
with all financing arrangements between the Bank and the Company and its
subsidiaries and affiliates, which therefore shall be terminated as of the
date
hereof and shall have no further force and effect.
4.
Effectiveness.
This
Amendment shall be effective as of the date first set forth above.
5.
Miscellaneous.
Other
than as modified above, all of the terms, provisions and covenants of the Credit
Agreements remain in full force and effect and are hereby ratified and
affirmed.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their duly authorized officers as of the date first
set forth above.
SKY
BANK
By:
/s/
Xxxxx X.
Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title:
Senior Vice President, Specialty Lending Group
FRANKLIN
CREDIT MANAGEMENT CORPORATION,
|
on
behalf of itself and the Company Subsidiaries that have
|
|
become
parties to the Franklin Credit
Agreement
|
By:
/s/
Xxxx X. Xxxxxxxx
12/12/06
Name:
Xxxx X. Xxxxxxxx
Title:
CFO
TRIBECA
LENDING CORPORATION,
|
on
behalf of itself and the Company Subsidiaries that have
|
|
become
parties to the Tribeca Credit
Agreement
|
By:
/s/
Xxxx X. Xxxxxxxx
12/12/06
Name:
Xxxx X. Xxxxxxxx
Title:
CFO
