Exhibit 10.5
SECOND AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT (the
"Agreement") is made and entered into effective as of May 19, 2005, by and
between the undersigned TRIBECA LENDING CORPORATION, ("Borrower"), and SKY BANK
("Sky Bank", "Lender", or "Bank").
WHEREAS, Bank originally granted a revolving warehousing line of credit
loan in the principal amount of THIRTY MILLION AND 00/100 DOLLARS
($30,000,000.00) to Borrower subject to and in accordance with a WAREHOUSING
CREDIT AND SECURITY AGREEMENT dated as of September 30, 2003 by and between
Borrower and Bank (the "Loan Agreement" and all capitalized terms herein having
the meaning ascribed to such term in the Loan Agreement unless otherwise defined
herein); and
WHEREAS, Borrower and Bank subsequently agreed to (i) increase the maximum
amount of the Commitment from THIRTY MILLION AND 00/100 DOLLARS ($30,000,000.00)
to FORTY MILLION AND 00/100 DOLLARS ($40,000,000.00) (the "Loan" or the
"Commitment") and (ii) extend the original expiration date of the Commitment in
the AMENDED AND RESTATED FIRST AMENDMENT TO WAREHOUSING CREDIT AND SECURITY
AGREEMENT dated effective as of April 7, 2004 ("First Amendment"); and
WHEREAS, the Loan is guaranteed by Franklin Credit Management Corporation;
and
WHEREAS, the purpose of the Loan is to finance the funding or purchase of
originations of Mortgage Loans; and
WHEREAS, Borrower has asked Bank to further extend the date of expiration
and termination of the Commitment up to and through July 31, 2005 and Bank, in
accordance with and subject to the terms, conditions and covenants and
representations and warranties contained herein, has agreed to said request.
NOW THEREFORE, by mutual agreement of the parties and in mutual
consideration of the premises and for other good and valuable considerations,
the receipt and sufficiency of which is hereby mutually acknowledged, Borrower
and Bank agree as follows:
1. Extension of Expiration and/or Termination of Commitment. The date of
expiration and/or termination of Commitment shall be extended up to and through
July 31, 2005 and all references in the Loan Agreement and First Amendment to an
expiration and/or termination of Commitment shall now be deemed to refer to the
date of expiration
and or termination of Commitment up to and through July 31, 2005. All Advances
under the Commitment will continue to be subject to the terms, provisions,
conditions and covenants of the Loan Agreement.
2. Conditions Precedent. The agreement of Bank to modify the Loan
Agreement as set forth herein shall become effective when, and only when, Bank
has received a counterpart of this Agreement duly executed by Borrower, and
each of the following conditions have been fully satisfied, including, without
limitation, that all related documents as required below have been executed (as
applicable) and/or delivered to Bank by the appropriate party or parties:
(a) Execution of the Guarantor's Consent and Acknowledgement
herein-below.
3. Terms and Conditions. Other than as modified herein, all of the terms,
conditions and covenants of the Loan Agreement shall remain in full force and
effect.
4. Representations and Warranties. Borrower hereby represents and warrants
to Bank that (i) there are no present uncured defaults under the Loan Agreement,
as amended, or, to Borrower's knowledge, any events or conditions which but for
the giving of notice and/or passage of time would constitute a default
thereunder, (ii) Borrower's financial conditions is and shall remain such as to
enable Borrower to perform all of its obligations under the Loan Agreement, as
heretofore modified and as modified herein, (iii) to the best of Borrower's
knowledge, all of the representations and warranties of Borrower in the Loan
Agreement are true and correct in all material respects as of the date hereof,
and Borrower continues to be in compliance with all representations, warranties
and covenants contained in the Loan Agreement, and (iv) as of the date hereof,
Borrower has no defenses, claims, counterclaims or rights of offset or
recoupment with respect to the Loan Agreement, the Note, the Amended and
Restated Note, or with respect to the Loan indebtedness evidenced and/or secured
thereby. Borrower acknowledges and agrees that Bank is specifically relying upon
the representations and warranties contained herein. Borrower waives, releases,
and forever discharges Bank, its agents, officers, directors and employees, from
and against any and all rights, claims or causes of action against the Bank, its
agents, officers, directors and employees, arising out of its or their actions
or inactions in connection with the Loan or the Loan Agreement.
5. Miscellanous Term and Conditions
(a) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. Whenever used in this Agreement, unless the context otherwise
specifies or requires, the singular includes the plural, and the plural the
singular; the gender used includes the other genders; and verbs in the present
tense include the future tense. This Agreement shall be deemed to be an
agreement entered into in the State of Ohio and shall be construed and enforced
in accordance with the laws of the State of Ohio, without reference to the
conflict of laws provisions thereof. If any provision of this Agreement
conflicts with applicable law in any specific situation, such provision shall be
modified to the minimum extent necessary to make its application to such
situation valid and enforceable. Such conflict shall not affect any other
provision hereof which can be given effect with the conflicting provision as
modified or, if the conflicting provision cannot be modified, without the
conflicting provision. This Agreement and the exhibit(s) attached hereto
constitutes the entire Agreement between the parties hereto, and there are no
other agreements or understandings with respect to the matters set forth herein
other than as set forth in this Agreement. This Agreement may not be amended
except by written instrument executed by both parties.
(b) The captions and headings contained herein are for convenience
only, and shall not be used to interpret, limit or define the scope or intent of
any provision hereof.
Balance of Page Left Blank Intentionally
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first appearing above notwithstanding the date it is actually executed.
Bank:
SKY BANK,
By: /s/ Jerry S. Sutherin
-------------------------
Jerry S. Sutherin
Its: Senior Vice President, Specialty Lending Group
Borrower:
Tribeca Lending Corporation:
By: /s/ Craig Galea
--------------------------
Craig Galea,
Its: Managing Director
Acknowledgement and Consent of Guarantor
The undersigned does hereby (i) consent to the foregoing SECOND AMENDMENT TO
WAREHOUSING CREDIT AND SECURITY AGREEMENT (the "Second Amendment"); (ii) and
reaffirm and ratify the undersigned's, Unconditional and Continuing Secured
Guaranty dated on or about September 30, 2003 (the "Guaranty"), and (iii) agrees
that the "Indebtedness" guaranteed under said Guaranty includes, without
limitation, all principal, interest, and other sums due to Sky Bank from Tribeca
Lending Corporation under the Warehouse Credit and Security Agreement dated
September 30, 2003 and the First Amendment dated effective as of April 7, 2004
by and between Tribeca Lending Corporation and Sky Bank, as amended by the
foregoing Second Amendment for the purpose of extending the date of expiration
and/or termination of the Commitment up to and through July 31, 2005.
Franklin Credit Management Corp
By: /s/ Jeff Johnson
-----------------------------
Jeff Johnson
Its: President