FIRST AMENDMENT TO LOAN SERVICING AGREEMENT
Franklin Credit Management Corporation 10-12G
Exhibit 10.6
Execution Copy
FIRST AMENDMENT TO
LOAN SERVICING AGREEMENT
FIRST AMENDMENT, dated as of
February 27, 2009 (this “Amendment”), to the Loan Servicing Agreement,
dated as of May 28, 2008 (the “Loan Servicing Agreement”), by and among, on
the one hand, Bosco Credit LLC (“Bosco”), as owner, and Franklin Credit
Management Corporation, as servicer (the “Servicer”).
WHEREAS, the Bosco and the Servicer
desire to amend the Loan Servicing Agreement in accordance with the terms
hereof.
NOW THEREFORE, in consideration of the
premises and other good and valuable consideration, the parties hereto hereby
agree as follows:
1. Definitions. Any
capitalized term used herein and not defined shall have the meaning assigned to
it in the Loan Servicing Agreement, as amended by this Amendment (the Loan
Servicing Agreement as amended by this Amendment being called the “Amended Loan
Servicing Agreement”) or the Loan Agreement, dated as of May 28, 2008 (the
“Loan Agreement”), among the Borrowers, the Lenders party thereto, the
Administrative Agent, and First City Servicing Corporation, as Surveillance
Agent, as amended.
2. Amendments. Effective on
the Amendment Effective Date (as defined below) and subject to the satisfaction
of the conditions precedent set forth in Section 3 below, the parties
hereto agree as follows:
2.1 The definition of “CPI
Adjustment” is amended by deleting the square brackets surrounding September
in the second and third lines of the definition.
2.2 The definition of “Servicing
Advances” is amended by deleting subsections (d) and (e) and
substituting the following therefor:
“(d) compliance with the obligations
under Section 2.7, 2.9, 2.10, 2.12., 2.13, 2.14 and 2.15, and
(e) other expenses that are the responsibility of the Owner under
Section 2.23.”
2.3 Section 2.9 of the Loan
Servicing Agreement is amended by deleting “Section 2.11” where it appears
on the second line and substituting “Section 2.10”.
2.4 Section 2.10 of the Loan
Servicing Agreement is amended by deleting “Section 2.10” where it appears
on the fifth, sixth and seventh lines and , in each case, substituting
“Section 2.9”.
2.5 Section 2.11 of the Loan
Servicing Agreement is amended by deleting “Section 2.12” where it appears
on the twelfth line and substituting “Section 2.11”.
2.6 Section 2.21.5 of the Loan
Servicing Agreement is amended by deleting “Section 2.22” where it appears
on the first line and substituting “Section 2.21”.
2.7 Section 2.22.1 of the Loan
Servicing Agreement is amended by deleting “Section 2.23” where it appears
on the first line and substituting “Section 2.22”.
2.8 Section 2.23.5 of the Loan
Servicing Agreement is amended by deleting “Section 2.24.5” where it
appears on the third line from the bottom of the Section and substituting
“Section 2.23.5”.
3. Conditions to
Effectiveness. The effectiveness of this Amendment is subject to the
fulfillment, in a manner satisfactory to the Agent, of each of the following
conditions precedent (the date such conditions are fulfilled or waived by the
Agent is hereinafter referred to as the “Amendment Effective Date”):
(a) The
representations and warranties of the Servicer and Bosco set forth herein, in
Section 6 of the Loan Servicing Agreement and in each other Loan Document
and certificate or other writing delivered to the Agent pursuant hereto on or
prior to the Amendment Effective Date shall be correct in all material respects
after giving effect to this Amendment on and as of the Amendment Effective Date
as though made on and as of such date (except to the extent such representations
and warranties expressly relate to an earlier date), and following the execution
of this Amendment, no Default or Event of Default shall have occurred and be
continuing on the Amendment Effective Date or would result from this Amendment
becoming effective in accordance with its terms;
(b) Bosco
and the Servicer shall have executed this Amendment and shall have received a
counterpart to this Amendment;
(c) Bosco
and the Servicer shall have delivered such other agreements, documents and
instruments as Administrative Agent may otherwise require, all of which shall be
in form and substance satisfactory to Agent and its legal counsel;
(d) Bosco
shall have reimbursed Administrative Agent for all legal and other fees incurred
by Agent in connection with the preparation of this Amendment; and
(e) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Administrative Agent and its counsel.
4. Representations and
Warranties. Each of Bosco and the Servicer represents and warrants as
follows:
(a) The
execution, delivery and performance by each of Bosco and the Servicer of this
Amendment and the performance by each of Bosco and the Servicer of the Amended
Loan Servicing Agreement have been duly authorized by all necessary action by
each of Bosco and the Servicer, and each of Bosco and the Servicer have all
requisite power, authority and legal right to execute, deliver and perform this
Amendment and to perform the Amended Loan Servicing Agreement.
(b) This
Amendment and the Amended Loan Servicing Agreement are the legal, valid and
binding obligations of each of Bosco and the Servicer, enforceable against each
of Bosco and the Servicer in accordance with the terms thereof, except as
enforcement may be limited by equitable principles (regardless of whether
enforcement is sought in equity or at law)
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or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally.
(c) The
representations and warranties contained in Section 6 of the Amended Loan
Servicing Agreement are correct after giving effect to this Amendment on and as
of the Amendment Effective Date as though made on and as of the Amendment
Effective Date (except to the extent such representations and warranties
expressly relate to an earlier date.
(d) As
of the date of this Amendment, it does not have, and hereby waives, remises and
releases any claims or causes of action of any kind against the Agent, any
Lender or any of their officers, directors, employees, agents, attorneys, or
representatives, or against any of their respective predecessors, successors, or
assigns relating in any way to any event, circumstance, action, or omission
relative to any of the Loan Documents or any transaction contemplated thereby,
from the beginning of time through the date of this Amendment.
5. Reference to and Effect on
Loan Documents.
(a) Upon
the effectiveness of this Amendment pursuant to Section 3 hereof, on and
after the Amendment Effective Date, each reference to the Loan Servicing
Agreement or the other Loan Documents shall mean and be a reference to the Loan
Servicing Agreement and the other Loan Documents, respectively, as amended
hereby.
(b) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Administrative Agent or the Lenders nor constitute a waiver of any provision
of any of the Loan Documents, or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
6. Miscellaneous.
(a)
Continued Effectiveness of the Loan Servicing Agreement. Except as
otherwise expressly provided herein, the Loan Servicing Agreement, as amended
hereby, and the other Loan Documents are, and shall continue to be, in full
force and effect and are hereby ratified and confirmed in all respects, except
that on and after the Amendment Effective Date all references in the other Loan
Documents to the “Loan Servicing Agreement”, “thereto”, “thereof”, “thereunder”
or words of like import referring to the Loan Servicing Agreement shall mean the
Amended Loan Servicing Agreement.
(b)
Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by facsimile or electronic mail shall be equally as effective as
delivery of an original executed counterpart of this Amendment.
(c)
Headings. Section headings herein are included for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose.
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(d)
Costs and Expenses. Bosco agrees to pay on demand all reasonable fees,
costs and expenses of the Agent and the Lenders in connection with the
preparation, execution and delivery of this Amendment.
(e)
Amendment as Loan Document. Bosco and the Servicer hereby acknowledge and
agree that this Amendment constitutes a “Loan Document” under the Loan
Agreement. Accordingly, it shall be an Event of Default under the Loan Agreement
if any representation or warranty made by Bosco or the Servicer under or in
connection with this Amendment shall have been untrue, false or misleading in
any material respect when made.
(f)
Governing Law. This Amendment shall be governed by the laws of the State
of New York.
(g)
Waiver of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS.
[Remainder of this
Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered as of the date first above written.
| FRANKLIN CREDIT MANAGEMENT
CORPORATION |
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| By: | /s/Xxxxxxxxx Xxxxxx Jardin | |||
| Name: | Xxxxxxxxx Xxxxxx Jardin | |||
| Title: | CEO | |||
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Signature Page to | |
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Agreement |
| BOSCO CREDIT LLC |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President | |||
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First Amendment | |
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Agreement |
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STATE OF NEW JERSEY
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COUNT OF XXXXXX |
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On the 18TH day of February, 2009
before me, a Notary Public in and for said State, personally appeared Xxxxxxxxx
Xxxxxx Jardin, known to me to be CEO of Franklin Credit Management Corporation
the corporation that executed the within instrument and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set
my hand affixed my office seal the day and year in this certificate first above
written.
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/s/ Xxxxx X. Xxxxxxxxx
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My Commission expires | |||
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XXXXX X. XXXXXXXXX | |||
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Notary Public, State of New Jersey | |||
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My Commission Expires February 25, 2011 |
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Signature Page to | |
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First Amendment | |
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to Loan Servicing | |
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Agreement |
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STATE OF New Jersey
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COUNTY OF Xxxxxx |
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On the 23 day of February, 2009 before
me, a Notary Public in and for said State, personally appeared Xxxxxx X. Xxxx,
known to me to be Managing Member of Bosco Credit LLC the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set
my hand affixed my office seal the day and year in this certificate first above
written.
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/s/ Xxxxx X. Xxxxxxxxx
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My Commission expires | |||
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XXXXX X. XXXXXXXXX | |||
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Notary Public, State of New Jersey | |||
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My Commission Expires | |||
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February 25, 2011 |
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Signature Page to | |
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First Amendment | |
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to Loan Servicing | |
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Agreement |
