LIMITED WAIVER
Exhibit
10.2
This
Limited Waiver is made and entered into as of November 15, 2007, between The
Huntington National Bank, successor by merger to Sky Bank, Tribeca Lending
Corp., a New York corporation (“Borrower”) and each subsidiary of the Borrower
listed on the signature pages hereof.
Reference
is hereby made to (1) a certain Master Credit and Security Agreement dated
as of
February 28, 2006 (as amended, restated, modified or supplemented from time
to
time, the “Master Credit Agreement”) entered into between Sky
Bank, now known as The Huntington National Bank (“Lender”) and
Tribeca Lending Corp., a New York corporation (“Borrower”),
certain subsidiaries of Borrower from time to time party to the Master Credit
Agreement and (2) a certain Warehousing Credit and Security Agreement dated
as
of October 18, 2005, entered into between Lender and Borrower (as amended,
restated, modified or supplemented from time to time, the “Warehousing
Agreement). All capitalized terms not otherwise
defined in this Limited Waiver shall have the meanings ascribed to such terms
in
the Master Credit Agreement or the Warehousing Agreement, as
specified.
Borrower
agrees that Lender has
reasonably requested pursuant to Section 6.1(b)(i) of the Master Credit
Agreement and Section 6.2(a) of the Warehousing Agreement that Borrower provide,
within 45 days after the end of each calendar quarter, statements of income
and
cash flows and related balance sheet, each for the fiscal quarter ending
September 30, 2007, certified by the chief financial officer or other
appropriate officer of the Borrower (the
“9/30/07Quarterly
Financials”). Borrower has advised Lender that it has failed
to deliver to Lender the 9/30/07 Quarterly Financials as required, and Lender
hereby provides notice to Borrower of such failure and that such failure
constitutes an Event of Default under each of the Master Credit Agreement and
the Warehousing Agreement (the “Identified
Defaults”). Borrower hereby acknowledges the Identified
Defaults and has requested that Lender waive the Identified Defaults through
the
earlier of (i) such time as Borrower’s parent corporation files copies of the
9/30/07 Quarterly Financials with the Securities and Exchange Commission or
(ii)
December 31, 2007 (the “Specified Waiver Date”).
Borrower
hereby agrees (i) not to
request any further loans, advances or other extensions of credit pursuant
to
the Master Credit Agreement, the Warehousing Agreement or any other loan
document, letter of credit agreement, hedging agreement or banking services
agreement (each of the foregoing a “Credit Extension”) through
and including the Specified Waiver Date and (ii) contemporaneously herewith
to
cause its parent corporation to enter into a Security Agreement, in form and
substance satisfactory to Lender, pursuant to which its parent corporation
will
grant to Lender, to secure all present and future loans, liabilities and
obligations of such parent corporation and each direct and indirect subsidiary
thereof to Lender, a first priority lien in all property and assets of such
parent corporation and each direct and indirect subsidiary (each of the
foregoing, a “Condition of Waiver”). Subject
to the terms and conditions set forth herein, including without limitation
Lender’s satisfaction with each Condition of Waiver and the execution of this
Limited Waiver by each of Borrower and each Company Subsidiary (as defined
in
the Master Credit Agreement), Lender hereby waives the Identified Defaults
through and including the Specified Waiver Date.
Nothing
in this Limited Waiver shall
(i) cause a modification of the Master Credit Agreement, the Warehousing
Agreement, any other loan document agreement in connection with any extension
of
credit from Lender to Borrower, except as precisely set forth above, (ii)
establish any custom, course of dealing or in any manner waive or modify any
future default or Event of Default, (iii) entitle Borrower or any Company
Subsidiary to any other waiver, any other or further notice or demand
whatsoever, or (iv) in any way modify, change, impair, effect, diminish, or
release Borrower's or any Company Subsidiary’s liability under or pursuant to
the Master Credit Agreement, the Warehousing Agreement or any other loan
document or agreement.
Borrower
and each Company Subsidiary
hereby agree to execute and deliver such additional documents, instruments
and
agreements reasonably requested by Lender as may be reasonably necessary or
appropriate to effectuate the purposes of this Limited Waiver, the Master Credit
Agreement, the Warehousing Agreement or any other loan agreement or
document.
This
Limited Waiver and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Ohio.
This
Limited Waiver may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same
instrument.
Borrower
and each Company Subsidiary,
for itself and its respective successors and assigns, agents, employees,
officers and directors, hereby forever waive, relinquish, discharge and release
all defenses and Claims of every kind or nature, whether existing by virtue
of
state, federal, or local law, by agreement or otherwise, against Lender, its
successors, assigns, directors, officers, shareholders, agents, employees and
attorneys, the obligations evidenced by the Master Credit Agreement, the
Warehousing Agreement, each promissory note or instrument in connection
therewith, each other loan document and the Collateral, whether
previously or now existing or arising out of or related to any transaction
or
dealings between Lender and Borrower or Lender and any Company Subsidiary,
which
Borrower or any Company Subsidiary, may have or may have made at any time up
through and including the date of this Limited Waiver, including without
limitation, any affirmative defenses, counterclaims, setoffs, deductions or
recoupments, by Borrower or any Company Subsidiary. “Claims” means
all debts, demands, actions, causes of action, suits, dues, sums of money,
accounts, bonds, warranties, covenants, contracts, controversies, promises,
agreements or obligations of any kind, type or description, and any other claim
or demand of any nature whatsoever, whether known or unknown, accrued or
unaccrued, disputed or undisputed, liquidated or contingent, in contract, tort,
at law or in equity, Borrower, each Company Subsidiary or any of them ever
had,
claimed to have, now has, or shall or may have. Nothing contained in
this Limited Waiver prevents enforcement of this waiver and
release.
IN
WITNESS WHEREOF, this Limited Waiver has been executed as of the date first
appearing above notwithstanding the date it is actually executed.
[Signature
page follows]
Lender:
The
Huntington National Bank
By:
/s/ Xxxxx X.
Xxxxx
Its: President
Borrower:
Tribeca
Lending Corp.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title: Director
Each
Company Subsidiary listed on Schedule A attached hereto:
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title: Director, as
an authorized officer of, and on behalf of, each Company Subsidiary listed
on
Schedule A attached hereto
SCHEDULE
A
COMPANY
SUBSIDIARIES
EXECUTING
LIMITED WAIVER
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SCHEDULE
A TO TRIBECA LIMITED WAIVER
COMPANY
SUBSIDIARIES
EXECUTING
LIMITED WAIVER
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TRIBECA
L 2005 CORP.
TRIBECA
LI 2005 CORP.
TRIBECA
LII 2005 CORP.
TRIBECA
LIII 2005 CORP.
TRIBECA
LIV 2005 CORP.
TRIBECA
LIX 2006 CORP.
TRIBECA
LV 2005 CORP.
TRIBECA
LVI 2005 CORP.
TRIBECA
LVII 2006 CORP.
TRIBECA
LVIII 2006 CORP.
TRIBECA
LX 2006 CORP.
TRIBECA
LXI 2006 CORP.
TRIBECA
LXII 2006 CORP.
TRIBECA
LXIII 2006 CORP.
TRIBECA
LXIV 2006 CORP.
TRIBECA
LXIV CORP.
TRIBECA
LXIX 2006 CORP.
TRIBECA
LXV 2006 CORP.
TRIBECA
LXV CORP.
TRIBECA
LXVI 2006 CORP.
TRIBECA
LXVII 2006 CORP.
TRIBECA
LXVIII 2006 CORP.
TRIBECA
LXX 2006 CORP.
TRIBECA
LXXI 2006 CORP.
TRIBECA
LXXII 2006 CORP.
TRIBECA
LXXIII 2006 CORP.
TRIBECA
LXXIV 2006 CORP.
TRIBECA
LXXIX 2007 CORP.
TRIBECA
LXXV 2006 CORP.
TRIBECA
LXXVI 2006 CORP.
TRIBECA
LXXVII 2006 CORP.
TRIBECA
LXXVIII 2006 CORP.
TRIBECA
LXXX 2007 CORP.
TRIBECA
LXXXI 2007 CORP.
TRIBECA
LXXXII 2007 CORP.
TRIBECA
LXXXIII 2007 CORP.
TRIBECA
LXXXIV 2007 CORP.
TRIBECA
LXXXIX 2007 CORP.
TRIBECA
LXXXV 2007 CORP.
TRIBECA
LXXXVI 2007 CORP.
TRIBECA
LXXXVII 2007 CORP.
TRIBECA
LXXXVIII 2007 CORP.
TRIBECA
XC 2007 CORP.
TRIBECA
XCI 2007 CORP.
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TRIBECA
XCII 2007 CORP.
TRIBECA
XCIII 2007 CORP.
TRIBECA
XCIV 2007 CORP.
TRIBECA
XCV 2007 CORP.
TRIBECA
XIX 2004 CORP.
TRIBECA
XV 2004 CORP.
TRIBECA
XVII 2004 CORP.
TRIBECA
XVIII 2004 CORP.
TRIBECA
XX 2004 CORP.
TRIBECA
XXI 2004 CORP.
TRIBECA
XXII 2004 CORP.
TRIBECA
XXIII 2004 CORP.
TRIBECA
XXIV 2004 CORP.
TRIBECA
XXIX 2005 CORP.
TRIBECA
XXV 2004 CORP.
TRIBECA
XXVI 2004 CORP.
TRIBECA
XXVII 2004 CORP.
TRIBECA
XXVIII 2004 CORP.
TRIBECA
XXX 2005 CORP.
TRIBECA
XXXI 2005 CORP.
TRIBECA
XXXII 2005 CORP.
TRIBECA
XXXIII 2005 CORP.
TRIBECA
XXXIV 2005 CORP.
TRIBECA
XXXIX 2005 CORP.
TRIBECA
XXXV 2005 CORP.
TRIBECA
XXXVI 2005 CORP.
TRIBECA
XXXVII 2005 CORP.
TRIBECA
XXXVIII 2005 CORP.
TRIBECA
XXXX 2005 CORP.
TRIBECA
XXXXI 205 CORP.
TRIBECA
XXXXI 2005 CORP.
TRIBECA
XXXXII 2005 CORP.
TRIBECA
XXXXIII 2005 CORP.
TRIBECA
XXXXIV 2005 CORP.
TRIBECA
XXXXIX 2005 CORP.
TRIBECA
XXXXV 2005 CORP.
TRIBECA
XXXXVI 2005 CORP.
TRIBECA
XXXXVII 2005 CORP.
TRIBECA
XXXXVIII 2005 CORP.
TRIBECA
XVI 2004 CORP.
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