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Joinder And Amendment No. 1 To Tribeca Forbearance Agreement

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Sectors: Financial Services
Governing Law: Ohio, View Ohio State Laws
Effective Date: March 31, 2008
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Exhibit 10.57Execution Copy JOINDER AND AMENDMENT NO. 1 TO
TRIBECA FORBEARANCE AGREEMENT THIS JOINDER AND AMENDMENT NO. 1 TO TRIBECA FORBEARANCE AGREEMENT (this " Amendment" ) is entered into at Columbus, Ohio, as of March 31, 2008 (the " Amendment Effective Date" ), by and among the BORROWERS listed on Schedule 1 hereto (each, a " Borrowe r" and collectively, the " Borrowers" ), including without limitation, TRIBECA LENDING CORP., a New York corporation (" Tribeca" ), FRANKLIN CREDIT MANAGEMENT CORPORATION, a Delaware corporation, in its capacity as Guarantor hereunder and in its capacity as servicer (" FCMC" or " Guarantor" ), and THE HUNTINGTON NATIONAL BANK (" Huntington" or " Lender" ). This Amendment amends and modifies a certain Tribeca Forbearance Agreement and Amendment to Credit Agreements dated as of December 28, 2007 (as amended, supplemented, restated or otherwise modified from time to time prior to the date hereof, the " Forbearance Agreement" ) by and among the Borrowers (other than the Additional Subsidiaries), Tribeca, FCMC and Lender. All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Forbearance Agreement. RECITALS: A. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries), Tribeca, FCMC and Lender executed the Forbearance Agreement amending and restating the terms of certain extensions of credit to the Borrowers and Tribeca, as applicable; and B. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executed and delivered to Lender, inter alia , an Amended and Restated Promissory Note (A Note) in the original principal sum of $400,000,000 (the " Existing Tranche A Note" ); and C. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executed and delivered to Lender, inter alia , an Amended and Restated Promissory Note (B-1 Note) in the original principal sum of $22,783,296.75 (the " Existing Tranche B-1 Note" ); and D. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executed and delivered to Lender, inter alia , an Amended and Restated Promissory Note (B-2 Note) in the original principal sum of $22,783,296.75 (the " Existing Tranche B-2 Note" ); and E. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executed and delivered to Lender, inter alia , an Amended and Restated Promissory Note (B-3 Note) in the original principal sum of $22,783,296.75 (the " Existing Tranche B-3 Note" ); and F. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executed and delivered to Lender, inter alia , an Amended and Restated Promissory Note (B-4 Note) in the original principal sum of $22,783,296.75 (the " Existing Tranche B-4 Note" ); and together


with the Existing Tranche A Note, the Existing Tranche B-1 Note, the Existing Tranche B-2 Note, and the Existing Tranche B-3 Note, collectively, the " Notes" ; and G. Lender has required all Subsidiaries of Tribeca to be parties to the Forbearance Agreement, the Notes and the other Loan Documents, and Tribeca XVI 2004 Corp and Tribeca LI 2005 Corp. (the " Additional Subsidiaries" and individually, an " Additional Subsidiary" ) are each a Subsidiary of Tribeca and are not parties signatory to the Forbearance Agreement, the Notes or other Loan Documents previously and desire to join as Borrowers to the Forbearance Agreement, the Notes and the other Loan Documents; and H. Tribeca, FCMC and the applicable Borrowers have failed to comply with certain provisions of Section 11, " Certain Post-Closing Deliverables ," of the Forbearance Agreement by failing to deliver certain financial statements, schedules, documents and other items as required by the Forbearance Agreement, and Section 12(d), " Interest Coverage Ratios ," of the Forbearance Agreement for the monthly period ending January 31, 2008, by failing to maintain a minimum ratio of Adjusted EBITDA to Interest Expense, as required by the Forbearance Agreement (collectively, the " Identified Forbearance Defaults" ), and each of the Acknowledged Defaults are continuing; and I. Tribeca, FCMC and the Borrowers have requested that Lender extend additional credit to Tribeca and the other Borrowers for the purpose of paying in full a certain loan (the " BOS Loan" ) made by BOS (USA) Inc. to Tribeca LI 2005 Corp. pursuant to the terms of a certain Master Credit and Security Agreement among BOS (USA) Inc., Tribeca and Tribeca LI 2005 Corp. dated as of March 24, 2006, and the promissory notes, guaranties and other agreements, instruments and documents executed in connection therewith (collectively, the " BOS Loan Documents" ), and Lender is willing to so upon the terms and subject to the conditions contained herein provided that BOS (USA) Inc. concurrently purchase from Lender a participation interest in the Tranche A Advances in an amount not less than the outstanding balance of the BOS Loan as of the Effective Date, subject to a participation agreement satisfactory to Lender in all respects; and J. Tribeca, FCMC and the Borrowers have requested that Lender (i) join the Additional Subsidiaries as Borrowers and parties to the Forbearance Agreement and the other Loan Documents, (ii) amend and modify certain terms and covenants in the Forbearance Agreement and (iii) extend the time periods or modify the requirements for Tribeca, FCMC and the Borrowers to satisfy certain post-closing deliverables composing the Identified Forbearance Defaults, and Lender is willing to do so upon the terms and subject to the conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants, agreements and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto for themselves and their successors and assigns do hereby agree, represent and warrant as follows: 1. Joinder . Each Additional Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Amendment, such Additional Subsidiary will be a Borrower under the Forbearance Agreement, each Note and each other Loan Document and shall have all of the

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obligations of a Borrower thereunder as if it had executed the Forbearance Agreement, each Note and each other Loan Document. Each Additional Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Forbearance Agreement, each Note and each other Loan Document, including without limitation (a) all of the representations and warranties of the Borrowers set forth in Section 9 of the Forbearance Agreement, and (b) all of the covenants set forth in Section 12 of the Forbearance Agreement. 2. Definitions Added . The following defined terms are hereby added to Section 2, " Certain Defined Terms ," of the Forbearance Agreement in their correct alphabetical order and shall recite as follows:" Amendment No. 1" shall mean a certain Joinder and Amendment No. 1 to Tribeca Forbearance Agreement dated as of March 31, 2008." Reserves" shall mean such reserves as Lender reasonably deems appropriate to establish in such amounts, and with respect to such matters, as Lender in its good faith discretion shall deem necessary or appropriate, including without limitation, reserves with respect to (i) sums that FCMC, Tribeca or any Borrower is required to pay pursuant to its contractual obligations (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases), (ii) Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law in and to an item of Collateral, and (iii) up to $5,000,000 at any time as a reserve for the payment of any Required Payment or interest under any Advance, or any fees or expenses owing or anticipated to be owing to Lender under the terms of any Loan Document. 3. Definitions Amended . The definitions of " Tranche A ," " Tranche B ," " Tranche B-1 ," " Tranche B-2 ," " Tranche B-3 ," " Tranche B-4 ," " Tranche A Commitment ," " Tranche B Commitment ," " Minimum Tranche A Payment Amount" and " Minimum Tranche B Payment Amount" set forth in the Recitals to the Forbearance Agreement or Section 2, " Certain Defined Terms ," of the Forbearance Agreement are hereby amended to recite as follows:" Tranche A" means a term loan facility made by Lender to the Borrowers in the original principal amount of $400,000,000, as reduced by certain payments made in respect thereof between the Forbearance Effective Date and March 31, 2008, and as increased to $410,859,753.55, as of March 31, 2008." Tranche B" means a term loan facility made by Lender to the Borrowers in the original principal amount of $91,133,187, as reduced by certain payments made in respect thereof between the Forbearance Effective Date and March 31, 2008, and as increased to $98,774,361.20, as of March 31, 2008, divided into four (4) sub-tranches, with the first such sub-tranche being in the original amount of $22,783,296.75, as increased to $24,131,090.30

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(" Tranche B-1" ) as of March 31, 2008, and the second, third and fourth sub-tranches, each being in the original amount of $22,783,296.75 and as increased to $24,881,090.30, each referred to as " Tranche B-2 ," " Tranche B-3" and " Tranche B-4" ." Tranche A Commitment" shall mean the commitment of Lender to make a Tranche A Advance in the original aggregate amount of $400,000,000, as increased to $410,859,753.55." Tranche B Commitment" shall mean the commitment of Lender to make a Tranche B Advance in the original aggregate amount of $91,133,187, as increased to $98,774,361.20." Minimum Tranche A Payment Amount" shall mean (i) with respect to any Payment Date other than the Tranche A Termination Date, $3,900,000, and (ii) with respect to the Tranche A Termination Date, the amount necessary to repay the aggregate outstanding unpaid principal balance of the Tranche A Advances in full." Minimum Tranche B Payment Amount" shall mean (i) with respect to any Payment Date other than the Tranche B Termination Date, $275,000, which amount will be allocated first to Tranche B-1 Advances, second to Tranche B-2 Advances, third to Tranche B-3 Advances, and fourth to Tranche B-4 Advances (each in the inverse order of maturing payments) and (ii) with respect to the Tranche B Termination Date, the amount necessary to repay the aggregate outstanding unpaid principal balance of the Tranche B Advances in full. 4. Amendment to Section 3 (b) . Paragraph (b) of Section 3, " Amended and Restated Advances" of the Forbearance Agreement is hereby amended to recite in its entirety as follows: (b) Tranche B Advances . Lender agrees, on the Forbearance Effective Date, to convert a portion of the outstanding principal amount of Lender' s Commercial Loans equal to Lender' s Tranche B Commitment into four term loans to the Borrowers, each in an amount of $22,783,296.75, and increase such amounts as of March 31, 2008 as set forth below (each aggregate amount so converted, a " Tranche B Advance" and, collectively, the " Tranche B Advances" ; and each such proportionate portion thereof a " Tranche B-1 Advance" in the amount of $24,131,090.30 as of March 31, 2008, and " Tranche B-2 Advance" , " Tranche B-3 Advance" , and " Tranche B-4 Advance" each in the amount of $24,881,090.30 as of March 31, 2008, and collectively, the " Tranche B-1 Advances" , " Tranche B-2 Advances" , " Tranche B-3 Advances" , and " Tranche B-4 Advances" ). Any portion of the Tranche B Advances that is subsequently repaid or prepaid may not be reborrowed.

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5. Amendments to Waterfall . Paragraph (d), " Collateral Collection ," of Section 5, " Payments of Interest and Principal on the Advances ," of the Forbearance Agreement is hereby amended to recite in its entirety as follows: (d) Collateral Collection . Without in any way limiting the obligations of the Borrowers to make the payments of principal and interest that are required to be made in respect of the Advances pursuant to Sections 5(a) and 5(b) (with respect to any Payment Date, the " Required Payments" ), the Borrowers hereby authorize and direct Lender, on each Payment Date, to apply all Collections received from and after the immediately preceding Payment Date (or, in the case of the first Payment Date, from and after the Forbearance Effective Date) to but excluding such Payment Date (the aggregate amount of such Collections, minus any Reserves established during such period, being the " Applicable Collections Amount" in respect of such Payment Date) in the following order of priority: first , to the payment of interest on the Tranche A Advances as calculated for such Payment Date; second , to the payment of interest on the Tranche B Advances as calculated for such Payment Date; third , to the payment of amounts constituting additional periodic payments of interest required under any Interest Rate Hedge Agreement to Lender in full; fourth , to pay the Minimum Tranche A Payment Amount for such Payment Date; fifth , to pay the Minimum Tranche B Payment Amount for such Payment Date; sixth , to prepay the outstanding principal amount of the Tranche A Advances until the same are paid in full, with such prepayments being applied in the inverse order of maturity to the remaining Minimum Tranche A Payment Amounts; seventh , to prepay the outstanding principal amount of the Tranche B Advances until the same are paid in full, with such prepayments being applied in the order set forth in the definition of Minimum Tranche B Payment Amounts; eighth , to repay any Obligations (other than payments constituting additional period payments of interest payable under item " third" above) under any Interest Rate Hedge Agreement to Lender in full;

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ninth , [Reserved]; and tenth , to pay Franklin Advances until paid in full and then to Guarantor for the benefit of the Borrowers.Furthermore, notwithstanding the foregoing applications of Collections,
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