ASSIGNMENT AND ASSUMPTION OF LEASE LANDLORD CONSENT AND LEASE MODIFICATION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION OF LEASE LANDLORD CONSENT AND LEASE MODIFICATION
AGREEMENT
(the
“Assignment”)
is
made as of February 22, 2007 among The New York Mortgage Company, LLC.
(“Assignor”),
Tribeca Lending Corporation (the “Assignee”),
and
First States Investors 5200 LLC (“Landlord”).
RECITALS
WHEREAS,
the
Landlord and the Assignor executed that certain Office Lease Agreement dated
as
of June 21, 2005, as amended by that certain First Amendment to Office lease
dated as of September 30, 2005 (the “Lease”)
by
which the Landlord leased certain premises to the Assignor of approximately
14,070 rentable square feet located in the office building at 0000 Xxxxx 00
Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx, as more fully described therein (the
“Premises”);
WHEREAS,
Assignor wishes to assign and transfer all of its right, title and interest
in
and to the Premises and Lease to Assignee, and Assignee is willing to assume
all
of the obligations of Tenant under the Lease arising after the date
hereof;
WHEREAS,
Landlord’s consent to such assignment is required pursuant to the terms of the
Lease, and the Landlord has agreed to consent to such assignment;
WHEREAS,
concurrently with this Assignment, in consideration of Landlord releasing
Assignor from its obligations to Landlord under the Lease, Assignee’s parent,
Franklin Credit Management Corporation (“Franklin”), has executed and delivered
to Landlord a guaranty of the Lease (the “Franklin Guaranty”);
NOW,
THEREFORE,
in
consideration of the foregoing premises, and Ten Dollars ($10.00) and other
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Assignment.
Assignor hereby gives, grants, assigns, transfers, sets over and conveys to
the
Assignee its entire right, title and interest in and to the Premises and the
Lease (including, without limitation, any security deposits posted pursuant
thereto and any rights or options granted to tenant thereunder), effective
as of
the date hereof (the “Effective Date”),
and
the Landlord hereby consents to such assignment subject to all of the terms
and
conditions herein contained.
2. Assignor’s
Representations and Warranties.
Assignor hereby represents warrants and covenants to the Landlord and Assignee
that: (a) it is the Tenant under the Lease; (b) subject to obtaining Landlord’s
consent contained in paragraph 1 hereof, it has the full right, power and
authority to execute and deliver this Assignment and to consummate the
transaction provided for herein and such execution, delivery, performance and
consummation have been duly authorized by all necessary action on the part
of
Assignor, and will not conflict with, result in the breach of, or entitle any
party to terminate or call a material default with respect to the Lease; (c)
it
has not assigned, encumbered, pledged, mortgaged or otherwise transferred its
interest in the Lease nor subleased the Premises or entered into any other
occupancy agreement for such space, and that this assignment is made free and
clear of the rights of any other party; (d) a true, correct and complete copy
of
the Lease is attached hereto as Exhibit
A;
it has
received no notices of default from Landlord with respect to the Lease and,
to
its knowledge, no default or event of default currently exists nor will exist
with notice, the passage of time, or both; (e) all rent and other payments
payable under the Lease on account of time periods on or before the Effective
Date have been paid in full, or to the extent such amounts are not yet
ascertainable shall be paid promptly when known to Assignor; (f) there exists
no
event or circumstance, which with the giving of notice or passage of time,
or
both, would constitute an event of default under the Lease; (g) except as
specifically stated herein, Assignor has not amended the Lease; and (h) None
of
Assignor or its affiliates (i) is a Person whose property or interest in
property is blocked or that has been determined to be subject to blocking
pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) knowingly engages
in any dealings or transactions prohibited by Section 2 of such executive order,
or otherwise knowingly associates with any such person in any manner violative
of Section 2, or (iii) is a Person on the list of Specially Designated Nationals
and Blocked Persons published by the Office of Foreign Assets Control of the
United States Department of the Treasury on June 24, 2003, as updated from
time
to time, or subject to the limitations or prohibitions under any other United
States Department of the Treasury’s Office of Foreign Assets Control regulation
or executive order. Assignor and its affiliates are in full compliance with
The
Patriot Act.
3. Assignee’s
Representations and Warranties.
The
Assignee hereby represents and warrants to the Landlord and the Assignor that:
(a) Assignee has full right, power and authority to assume the Lease, to execute
and deliver this Assignment and to observe and perform all of the terms,
covenants, conditions and provisions of the Lease and this Assignment; and
(b)
no authorization, consent, approval or license or other action by any
governmental authority is or will be necessary in connection with the execution,
delivery and performance of this Assignment and the Lease.
4. Waiver.
Assignee hereby waives its rights to terminate the Lease pursuant to the Early
Termination Rider attached to and made a part of the Lease and the Early
Termination Rider shall be deemed deleted from the Lease. Assignee and Landlord
agree that the provisions of this paragraph 4 shall amend the terms and
conditions of the Lease to the extent set forth herein.
5. Assumption.
Assignee hereby attorns to Landlord; and Assignee hereby assumes and agrees
to
fully and promptly perform and discharge all of the obligations and
responsibilities of Assignor under the Lease accruing on and after the Effective
Date.
6. Indemnification.
Assignee agrees to indemnify, defend and hold Assignor harmless from and against
any loss, cost or damage which Assignor may suffer as a result of any failure
of
Assignee to fulfill, perform and discharge its obligations under the Lease
on
and after the Effective Date. Assignor hereby agrees to assume any and all
obligations arising under the Lease prior to the Effective Date and agrees
to
indemnify, defend and hold Assignee harmless from and against all loss, cost
and
damage which Assignee may suffer as a result of any failure of Assignor to
fulfill, perform and discharge its obligations under the Lease on account of
periods prior to the Effective Date.
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7. Landlord’s
Consent.
By
execution of this Assignment, Landlord hereby (i) consents and agrees to the
assignment of the Lease from Assignor to Assignee, (ii) acknowledges the change
of “notice” address for tenant as set forth below, (iii) acknowledges and
consents to the provisions of paragraph 4 of this Assignment and (iv) upon
receipt of a fully executed (with original signatures and reasonable evidence
that the Franklin Guaranty was duly authorized by appropriate corporate action
of Franklin) and duly acknowledged Franklin Guaranty, releases Assignor from
its
obligations under the Lease arising after the date hereof. Assignee covenants
with Landlord that except as otherwise permitted under the Lease, it shall
not,
without obtaining the written approval of the Landlord in accordance with the
terms of the Lease, further assign the Lease or make any sublease of the
Premises. Landlord’s consent to this Assignment shall not be construed as a
waiver of Landlord’s right to consent to any further assignment of the Lease or
any subletting of the Premises. Landlord’s consent shall not be deemed a release
of any liability of Assignor under the Lease except as set forth above. Nothing
contained in this Assignment shall otherwise amend or modify any terms or
provisions of the Lease, nor be deemed to grant to Assignor or Assignee any
rights, powers, or privileges with respect to the Premises, the Building or
the
common areas which are not specifically provided in the Lease.
Notice
Address for Tenant:
Tribeca
Lending Corporation
c/o
Franklin Credit Management Corporation
000
Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxx, Chief Operating Officer
with
a
copy to:
Tribeca
Lending Corporation
c/o
Franklin Credit Management Corporation
000
Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attn:
Xxxxx X. Xxxxxx, General Counsel
8. Miscellaneous.
This
Assignment shall bind and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns. This
Assignment may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall constitute one instrument. This Assignment
shall be governed by and construed in accordance with the laws of the State
of
New Jersey.
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IN
WITNESS WHEREOF,
Landlord, Assignor and Assignee have caused this instrument to be executed
as of
the date first above written.
WITNESSED BY: |
LANDLORD:
FIRST
STATES INVESTORS 5200, LLC
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/s/ | By: | /s/ Xxxxx Xxxxxxxxxx |
Name: Xxxxx
Xxxxxxxxxx
Title: Vice
President
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ASSIGNOR:
THE
NEW YORK MORTGAGE COMPANY, LLC
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/s/ Xxxxxx Xxxxx, CFO | By: | /s/ Xxxxxx X. Xxxxxxx |
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Name: Xxxxxx
X. Xxxxxxx
Title: President
& Chief Executive Officer
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ASSIGNEE:
TRIBECA
LENDING CORPORATION
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/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxx Xxxxxx |
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Name: A.
Xxxxxx Xxxxxx
Title: CEO
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Exhibit
A
The
Lease
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