G. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executedand delivered to Lender, *inter alia*, an Amended and Restated Promissory Note (B-5 Note) in theoriginal principal sum of $25,000,000 (the “**Tranche B-5 Note**”); and     H. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executedand delivered to Lender, *inter alia*, an Amended and Restated Promissory Note (C Note) in theoriginal principal sum of $125,000,000 (the “**Tranche C Note**”); and     I. As of December 28, 2007, the Borrowers (other than the Additional Subsidiaries) executedand delivered to Lender, *inter alia*, an Amended and Restated Promissory Note (D Note) in theoriginal principal sum of $5,000,000 (the “**Tranche D Note**” and together with the Tranche ANote, the Tranche B-1 Note, the Tranche B-2 Note, the Tranche B-3 Note, the Tranche B-4 Note, theTranche B-5 Note, and the Tranche C Note, collectively, the “**Notes**”); and     J. Lender has required all Subsidiaries of FCMC to be parties to the Forbearance Agreement,the Notes and the other Loan Documents, and Rontex 1617 Corporation, Juniper Corp., Newport 50Corporation, Fort 100 Corporation, Fort 100 B Corporation, Tribeca Funding Corporation, SixHarrison Corporation, Hudson Management Corporation, New Haven 58 Corporation, Norwich 42Corporation, Island 52 Corporation, Flow 2007 E Corp. and Emgold 57 Corp. (the “**AdditionalSubsidiaries**” and individually, an “**Additional Subsidiary**”) are each a Subsidiary ofFCMC and are not parties signatory to the Forbearance Agreement, the Notes or other Loan Documentspreviously and desire to join as Borrowers to the Forbearance Agreement, the Notes and the otherLoan Documents; and     K. FCMC and the applicable Borrowers have failed to comply with certain provisions of Section11, “Certain Post-Closing Deliverables,” of the Forbearance Agreement by failing to delivercertain financial statements, schedules, documents and other items as required by the ForbearanceAgreement, and Section 12(d), “Interest Coverage Ratios,” of the Forbearance Agreement forthe monthly period ending January 31, 2008, by failing to maintain a minimum ratio of AdjustedEBITDA to Interest Expense, as required by the Forbearance Agreement (collectively, the“**Identified Forbearance Defaults**”), and each of the Acknowledged Defaults are continuing;and     L. FCMC and the Borrowers have requested that Lender (i) join the Additional Subsidiaries asBorrowers and parties to the Forbearance Agreement and the other Loan Documents, (ii) extend anadditional period of forbearance in respect of the Static Loans, (iii) extend additional credit toBorrowers pursuant to Tranche D, (iv) amend and modify certain terms and covenants in theForbearance Agreement, (v) adjust the Interest Period, the Interest Rate, and the Payment Date withrespect to interest on the Tranche C, and (vi) extend the time periods or modify the requirementsfor FCMC and the Borrowers to satisfy certain post-closing deliverables composing the IdentifiedForbearance Defaults, and Lender is willing to do so upon the terms and subject to the conditionscontained herein.     NOW, THEREFORE, in consideration of the mutual covenants, agreements and promises containedherein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legallybound, the parties hereto for themselves and their successors and assigns do hereby agree,represent and warrant as follows:
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     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 theForbearance Agreement, each Note and other Loan Document and shall have all of the obligations of aBorrower thereunder as if it had executed the Forbearance Agreement each Note and other LoanDocument. Each Additional Subsidiary hereby ratifies, as of the date hereof, and agrees to bebound by, all of the terms, provisions and conditions contained in the Forbearance Agreement, eachNote and other Loan Document, including without limitation (a) all of the representations andwarranties of the Borrowers set forth in Section 9 of the Forbearance Agreement, and (b) all of thecovenants set forth in Section 12 of the Forbearance Agreement.     2. Extension of Forbearance for Static Loans. Absent the occurrence and continuanceof a Forbearance Default, prior to July 31, 2008, Lender agrees not to initiate collectionproceedings or exercise its remedies under the Loan Documents in respect of any Static Loan againstGuarantor, any Borrower or any Collateral or elect to have interest accrue under the respectiveLoan Documents at the stated rate applicable after default.     3. Definitions Amended. The definitions of “Interest Period,” “InterestRate,” “Payment Date,” “Tranche C Collections Amount,” “Tranche D” and“Tranche D Commitment” set forth in Section 2, “Certain Defined Terms,” of theForbearance Agreement are hereby amended to recite as follows:“Interest Period” shall mean, with respect to any Advance, (i)initially, the period commencing on any funding date with respect to suchAdvance and ending on the calendar day prior to the Payment Date of the nextsucceeding month (except with respect to a Tranche C Advance, as to which the“Interest Period” shall commence on the Tranche C Accrual Date) (ii)thereafter, each period commencing on the Payment Date of one month andending on the calendar day prior to the Payment Date of the next succeedingmonth; provided, that if any Interest Period would otherwise expireon a day which is not a business day, such Interest Period shall be extendedto the next succeeding business day; provided, however, that if suchnext succeeding business day occurs in the following calendar month, thensuch Interest Period shall expire on the immediately preceding business day,and provided further that interest shall continue to accrue on allamounts due and payable hereunder that remain unpaid on the applicableTermination Date until such time as such amounts are paid in full.“Interest Rate” shall mean, for each day in respect of (a) theTranche A Advances, the Tranche B Advances or the Tranche D Advances, asapplicable, a per annum rate equal to LIBOR for that day plus the relevantApplicable Margin, and (b) the Tranche C Advances, a rate of 20% per annum.“Payment Date” shall mean either (a) the fifth (5th) day of eachcalendar month or, if such day is not a business day, the next succeedingbusiness day, or (b) in the case of the final Payment Date for the Tranche AAdvances, the Tranche B Advances, the Tranche C Advances or the Tranche DAdvances, the Tranche A Termination Date, the Tranche B Termination Date, the
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Tranche C Termination Date or the Tranche D Termination Date, respectively;provided, however, payments of interest accrued on the Advances shallcommence on February 5, 2008 (except with respect to the Tranche C Advances,which shall commence on the first Payment Date following the Tranche CAccrual Date). If the due date of any payment due in respect to any Advanceshall be a day that is not a business day, such due date shall be extended tothe next succeeding business day; provided, however, that if such nextsucceeding business day occurs in the following calendar month, then such duedate shall be the immediately preceding business day.“Tranche C Collections Amount” shall mean, with respect to anyPayment Date and the portion of the Applicable Collections Amount for suchPayment Date remaining after giving effect to the payments provided inclauses first through eleventh of Section 5(d), (i) 90% ofsuch remaining Applicable Collections Amount for so long as FCMC iscontinuing to service the Mortgage Loans pledged as Collateral, and (ii)otherwise 100% of such remaining Applicable Collections Amount if FCMC is nolonger servicing such Mortgage Loans until all Tranche C Advances are paid infull.“Tranche D” shall mean (i) a revolving credit facility to Borrowersin the maximum principal sum outstanding at any time of $10,000,000, and, inaddition, (ii) a Letter of Credit facility pursuant to which Lender in itsdiscretion may issue Letters of Credit for the account of FCMC, Tribeca orany other Borrower; provided that Letter of Credit Exposure shall at no timeexceed $5,500,000.“Tranche D Commitment” shall mean as to Lender, subject to the termsand conditions of this Agreement, the commitment of Lender to (i) fundTranche D Advances up to $10,000,000 outstanding at any time under therevolving credit portion of Tranche D and (ii) issue Letters of Credit;provided that Letter of Credit Exposure shall at no time exceed $5,500,000.     4. Definitions Added. The following defined terms are hereby added to Section 2,“Certain Defined Terms,” of the Forbearance Agreement in their correct alphabetical orderand shall recite as follows:“Amendment No. 1” shall mean a certain Joinder and Amendment No. 1 toForbearance Agreement dated as of March 31, 2008.“Reserves” shall mean such reserves as Lender reasonably deemsappropriate 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 orany Borrower is required to pay pursuant to its contractual obligations (suchas taxes, assessments, insurance premiums, or, in the case of leased assets,rents or other amounts payable under such leases), (ii) Liens or trusts forad valorem, excise, sales, or other taxes where given priority underapplicable law in and to an item of Collateral, and (iii) up to $5,000,000 atany time as a reserve for
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the payment of any Required Payment or interest under any Advance, or anyfees or expenses owing or anticipated to be owing to Lender under the termsof any Loan Document.“Tranche C Accrual Date” shall mean the first Business Day followingpayment in full satisfaction of all outstanding amounts under the Tranche ANote and shall be the date upon which interest shall begin to accrue on theTranche C Note.     5. Amendments to Tranche D Provisions. New subsections (iv) and (v) are hereby addedto Paragraph (d), “Tranche D Advances,” of Section 3, “Amended and RestatedAdvances,” of the Forbearance Agreement and shall recite as follows:(iv) The proceeds of each Tranche D Advance under the revolving portion ofTranche D shall be used (x) in an amount up to $1,000,000 shall be designatedfor use by Tribeca to assure that certain state licensing requirements ofTribeca are met (including without limitation, “wet funding” of qualifiedMortgage Loans) (y) for the working capital and general corporate needs ofeach Borrower as Lender shall advance in its sole discretion and (z) toenable FCMC, Tribeca or a Borrower to purchase real property in which suchPerson has a Lien, whether by foreclosure, trustee’s sale, power of sale orother involuntary arrangement or pursuant to a deed-in-lieu of foreclosure orother voluntary conveyance arrangement (including without limitation payingindebtedness secured by a prior Lien on such real property) and to payexpenses of any such voluntary or involuntary arrangement with respect tosuch real property; provided, however that FCMC, Tribeca or such Borrower (A)has presented to Lender at least fifteen (15) days prior to any such proposeddate for foreclosure sale or purchase an analysis satisfactory to Lenderconcerning any such proposed purchase and disbursements and a draw requestfor a Tranche D Advance, and (B) Lender has provided its prior writtenconsent to such purchase of real estate and disbursements related thereto.Each Tranche D Advance relating to any Letter of Credit shall be used tosolely assure that all state licensing requirements of the applicableBorrower are met.(v) Upon the request of Lender, within five (5) Business Days after theacquisition of any REO Property by FCMC or any Subsidiary, FCMC shall, andshall cause each such Subsidiary to execute and deliver to the Lender amortgage, deed of trust, assignment or other appropriate instrumentevidencing a Lien in favor of Lender upon any such REO Property, togetherwith such title policies, certified surveys, environmental reports, localcounsel opinions and such other property assurances, agreements, documentsand instruments which Lender deems necessary or desirable, and to be subjectonly to (i) Liens in favor of Lender and (ii) such other Liens as Lender mayreasonably approve, it being understood that the granting of such additionalsecurity for the Obligations is a material inducement to the execution anddelivery of this Agreement by Lender.
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     6. **RESERVED**.     7. Amendments to Section 5. Section 5, “Payments of Interest and Principal on theAdvances,” of the Forbearance Agreement is hereby amended to recite in its entirety as follows:          5. Payments of Interest and Principal on the Advances.               (a) Interest on the Advances; PIK Interest.               (i) The Borrowers shall pay to Lender interest on the aggregate outstanding principal amountof the Advances of each Tranche for the period from and including the respective dates of suchAdvances (except in the case of the Tranche C Advance as to which it shall pay interest from theTranche C Accrual Date) to but excluding the respective dates such Advances are paid in full, ineach case at a rate per annum equal to the applicable Interest Rate. Notwithstanding the foregoing,the Borrowers shall pay to Lender interest at the applicablePost-Default Rate (i) on the outstanding principal amount of any Advancesduring any period when any Forbearance Default has occurred and is continuingand (ii) on any interest or amount (other than principal of any Advance)payable by the Borrowers hereunder or under any applicable Note that shallnot be paid in full when due, for the period from and including the due datethereof to but excluding the date the same is paid in full. Accrued andunpaid interest on each Advance shall be payable monthly on each Payment Dateand on the Tranche A Termination Date, Tranche B Termination Date, Tranche CTermination Date, or Tranche D Termination Date, as applicable, except thatinterest payable at the applicable Post-Default Rate shall accrue daily andshall be payable promptly upon demand.               (ii) Anything contained in Section 5 (a)(i) to the contrarynotwithstanding, Guarantor, on behalf of the Borrowers, has elected as of theForbearance Effective Date and Lender has consented thereto, to pay theaccrued and unpaid interest due in respect of the Tranche C Advances from andafter the date that such interest begins to accrue on the Tranche C AccrualDate by adding the amount thereof to the outstanding principal amount of theTranche C Advances (any such interest in respect of the Tranche C Advancesthat is so added to the outstanding principal amount of the Tranche CAdvances being “PIK Interest”). Upon request of Lender, Borrowerswill execute and deliver to Lender an additional Tranche C Note for theamount of such PIK Interest or a replacement Tranche C Note in a face amountequal to the then outstanding principal sum, plus the amount of such PIKInterest; provided, however, the failure of Lender to request that theBorrowers execute, or the failure of the Borrowers to provide, any suchadditional Tranche C Note shall in no way affect the Borrowers obligation topay any such PIK Interest at the time and in the manner of other Tranche CAdvances.
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     (b) Scheduled Principal Payments in Respect of Tranche A Advancesand Tranche B Advances, Principal Payments. On each Payment Date inrespect of the Tranche A Advances and the Tranche B Advances, the Borrowersshall pay to Lender, the Minimum Tranche A Payment Amount and the MinimumTranche B Payment Amount, as applicable, for such Payment Date. The Borrowersshall pay all remaining amounts of Tranche C Advances and Tranche D Advancesas set forth in paragraphs (d) and (e) below and on the applicableTermination Date.     (c) Payment Date Reports. No later than two business days priorto each Payment Date, Lender shall provide to Guarantor a report stating (i)the amount of interest due for the current Interest Period pursuant toSection 5(a), separately stated for the applicable Tranche A Advances, theTranche B Advances, the Tranche C Advances, if applicable, and theTranche D Advances, (ii) the Minimum Tranche A Payment Amount and the MinimumTranche B Payment Amount for such Payment Date, and (iii) if such PaymentDate occurs on a Termination Date, the aggregate outstanding principal amountof the Tranche A Advances, Tranche B Advances, Tranche C Advances and/orTranche D Advances, as applicable; provided, that the failure ofLender to make any such report shall not affect the obligations of theBorrowers to make payment when due of any amount owing hereunder or under anyNote in respect of the related Advances.     (d) Collateral Collection. Without in any way limiting theobligations of the Borrowers to make the payments of principal and interestthat are required to be made in respect of the Advances pursuant to Sections5(a) and 5(b) (with respect to any Payment Date, the “RequiredPayments”), the Borrowers hereby authorize and direct Lender, on eachPayment Date, to apply all Collections received from and after theimmediately preceding Payment Date (or, in the case of the first PaymentDate, from and after the Forbearance Effective Date) to but excluding suchPayment Date (the aggregate amount of such Collections, minus any Reservesestablished during such period, being the “Applicable CollectionsAmount” in respect of such Payment Date) in the following order ofpriority:first, to the payment of interest on the Tranche A Advancesas calculated for such Payment Date;second, to the payment of interest on the Tranche B Advancesas calculated for such Payment Date;third, to the payment of interest on the Tranche D Advancesas calculated for such Payment Date;fourth, to the payment of amounts constituting additionalperiodic payments of interest required under any Interest Rate HedgeAgreement to Lender in full;
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fifth, to pay any Letter of Credit Facing Fee or Letter ofCredit Fee;sixth, to pay the Minimum Tranche A Payment Amount for suchPayment Date;seventh, to pay the Minimum Tranche B Payment Amount for suchPayment Date;eighth, to prepay the outstanding principal amount of theTranche A Advances until the same are paid in full, with suchprepayments being applied in the inverse order of maturity to theremaining Minimum Tranche A Payment Amounts;ninth, to prepay the outstanding principal amount of theTranche B Advances until the same are paid in full, with suchprepayments being applied in the order set forth in the definition ofMinimum Tranche B Payment Amounts;tenth, to any unpaid amounts on the Static Loans;eleventh, on a pro rata basis to repay Tranche DAdvances in full, Letter of Credit Exposure in full and anyObligations (other than payments constituting additional periodicpayments of interest payable under item “fourth” above) under anyInterest Rate Hedge Agreement to Lender in full;twelfth, to the payment of PIK Interest on the Tranche CAdvances as calculated for such Payment Date;thirteenth, to the extent of the applicable Tranche CCollections Amount, to pay the outstanding interest and principalamount of the Tranche C Advances until the same are paid in full,with such payments being applied first to any outstanding PIKInterest in respect of the Tranche C Advances and thereafterto the remaining principal amount thereof; andfourteenth, to pay any unpaid Tribeca Advances until paid infull and then to Guarantor for the benefit of the Borrowers.All Collections in respect of the Static Loans shall be applied pursuant tothe terms of the Franklin Master Agreement. Furthermore, notwithstanding theforegoing applications of Collections, all Collections arising from the sale,lease or other disposition of REO Property purchased or acquired with anyTranche D Advance shall be used first to repay the principal of the revolvingcredit portion of any such Tranche D Advance until the same is paid in fulland then applied pursuant to clauses first through fourteenthof this Section 5(d).
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     8. Amendments to Financial Reporting. Paragraph (c) of Section 10, “FinancialStatements,” of the Forbearance Agreement is hereby amended to recite as follows:     (c)(i) as soon as available and in any event within 30 days after theend of each monthly fiscal period of each fiscal year of Guarantor, (A) theconsolidated balance sheets of Guarantor and its consolidated Subsidiaries asat the end of such period and (B) the related unaudited consolidatedstatements of income and retained earnings for Guarantor and its consolidatedSubsidiaries for such period and the portion of the fiscal year through theend of such period, setting forth in each case in comparative form thefigures for the previous year, and (C) accompanied by a certificate of thechief financial officer of Guarantor, which certificate shall state that saidconsolidated financial statements fairly present the consolidated financialcondition and results of operations of Guarantor and its Subsidiaries inaccordance with GAAP, consistently applied, as at the end of, and for, suchperiod (subject to normal year-end audit adjustments) and shall contain acalculation of the financial covenants contained in Section 12 (d);     (ii) as soon as available and in any event within 20 days after the endof each monthly fiscal period of each fiscal year, a thirteen (13)consecutive week statement of Guarantor and its Subsidiaries projectingprospective cash receipts and cash payments, disbursements and advances forthe 13 week consecutive period beginning on the first day after suchmonth-end; and     (iii) as soon as available and in any event within 20 days after theend of each monthly fiscal period of each fiscal year of Guarantor, aschedule of REO Properties in form satisfactory to Lender.     9. Post-Closing Items. Section 11, “Certain Post-Closing Deliverables,” ofthe Forbearance Agreement is hereby amended to recite in its entirety as follows:     11. Certain Post-Closing Deliverables.     FCMC and the Borrowers shall comply with each requirement set forth onSchedule 11 to Amendment No. 1 within the time period specifiedtherein (or such later date as Lender may agree in writing). Each Borrowerand FCMC agree to deliver to Lender, on a post-closing basis, the itemsdescribed in Schedule 11 attached to Amendment No. 1, each in formand content satisfactory to Lender (the “Post-Closing Items”). EachBorrower and FCMC agree to deliver the Post-Closing Items to Lender no laterthan the time periods specified in Schedule 11 (or such later date asLender may agree in writing). The failure to deliver any Post-Closing Itemby the required date shall constitute a Forbearance Default. Upon Lender’sdemand therefor, each Borrower and FCMC will indemnify, protect, defend andhold harmless Lender for and against all losses, damages, and expensesincurred by Lender arising from or relating to FCMC’s or any Borrower’sfailure to deliver any Post-Closing Item in accordance with Amendment No. 1.
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     10. Amendment to Financial Covenants. The first sentence of Paragraph (d),“Interest Coverage Ratios,” of Section 12, “Covenants,” of the ForbearanceAgreement is hereby amended to recite as follows:     (d) Interest Coverage Ratios. Until such time as all Tranche AAdvances and Tranche B Advances are indefeasibly paid in full, Guarantor andeach Subsidiary, on a consolidated basis, shall maintain for each quarterlyperiod (i) a ratio of Adjusted EBITDA to Adjusted Interest Expense of notless than 1.25 to 1.00, and (ii) a ratio of Adjusted EBITDA to InterestExpense of not less than 1.05 to 1.00, with each such ratio being determined(A) beginning March 31, 2008, and continuing as of the end of each quarterthrough and including September 30, 2008, as of the end of each such quarterfor the period from January 1, 2008, through the end of such quarter ofdetermination (on a year-to-date basis), and (B) beginning December 31, 2008,and continuing as of the end of each quarter thereafter, for the mostrecently-ended twelve consecutive (12) month period ending on such date.     11. Waiver of Identified Forbearance Defaults. Lender hereby waives the IdentifiedForbearance Defaults for the period through and including March 31, 2008.     12. Consent to Certain Originations. Pursuant to the first sentence of Section 12(g) of the Forbearance Agreement, Lender hereby consents to FCMC, Tribeca or any Borroweroriginating any Mortgage Loan in order to refinance any existing Mortgage Loan in which FCMC orany Borrower has an interest which Lender has approved for purchase and subsequent sale in thesecondary market or which Lender determines are qualified for purchase by Fannie Mae (formerlyknown as the Federal National Mortgage Association) or Freddie Mac (formerly known as the FederalHome Loan Mortgage Corporation), or any successor of either of the foregoing; provided that theproceeds of any such refinancing or Mortgage Loan are paid to Lender for application pursuant toSection 5 (d) of the Forbearance Agreement.     13. Replacement of Schedule 1. Schedule 1 to the Forbearance Agreement is herebyamended and replaced with the Schedule 1 attached to this Amendment.     14. Addition of Schedule 11. Schedule 11 to the Forbearance Agreement is herebyattached to this Amendment as Schedule 11.     15. Conditions of Effectiveness. This Amendment shall become effective as of theAmendment Effective Date, upon satisfaction of all of the following conditions precedent:     (a) Lender shall have received execution and delivery of, by all parties signatory thereto,originals, or completion as the case may be, to the satisfaction of Lender and its counsel,containing such information requested by Lender and its counsel and reflecting the absence of anymaterial fact or issues and in all respect satisfactory to Lender, each of the following LoanDocuments:
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 (i) Three duly executed copies of this Amendment;  (ii) Second Amended and Restated Promissory Note (D Note) in theamount of $10,000,000;  (iii) Joinder to Security Agreement by Additional Subsidiaries;  (iv) Resolutions of the Additional Subsidiaries;  (v) Concurrence of M & I;     (b) Lender shall have received a fee in respect of this Amendment in the amount of $10,000.00;and     (c) The representations contained in the immediately following paragraph shall be true andaccurate.     16. Representations and Warranties. Each Borrower and FCMC represent and warrant toLender as follows: except in respect of the Acknowledged Defaults, (a) after giving effect to thisAmendment**,**each representation and warranty made by or on behalf of such Borrower and FCMC in theForbearance Agreement and in any other Loan Document is true and correct in all respects on and asof the date hereof as though made on and as of such date, except to the extent that any suchrepresentation or warranty expressly relates solely to a date prior hereto; (b) the execution,delivery and performance by such Borrower and FCMC of this Amendment and each other Loan Documenthave been duly authorized by all requisite corporate or organizational action on the part of suchBorrower and FCMC and will not violate any Constituent Document (as defined below) of such Borrowerand FCMC; (c) this Amendment has been duly executed and delivered by such Borrower and FCMC, andeach of this Amendment, the Forbearance Agreement and each other Loan Document as amended herebyconstitutes the legal, valid and binding obligation of such Borrower and FCMC, enforceable againstsuch Borrower and FCMC in accordance with the terms thereof; and (d) no event has occurred and iscontinuing, and no condition exists, which would constitute a Forbearance Default.“**Constituent Document**” means with respect to any entity, each of (i) the articles orcertificate of incorporation or organization or partnership agreement (or equivalent organizationaldocuments) of such entity, (ii) the regulations, by-laws or operating agreement (or equivalentgoverning documents) of such entity and (iii) any document setting forth the designation, amount orrelative rights, limitations and preferences of any class or series of capital stock, warrants,options or other equity interests.     17. Ratification and Reaffirmation. Each Borrower and FCMC agree (i) that all theobligations, indebtedness and liabilities of such Borrower and FCMC to Lender under the ForbearanceAgreement are the valid and binding obligations of such Borrower and FCMC respectively; (ii) thatthe obligations, indebtedness and liabilities of such Borrower and FCMC evidenced by each Noteexecuted and delivered by the each Borrower are valid and binding without any present right ofoffset, claim, defense or recoupment of any kind and are hereby ratified and confirmed in allrespects; and (iii) that the Liens and security interests granted to Lender as security for allobligations and liabilities of each Borrower and FCMC under the Forbearance Agreement and the Notesare valid and binding and are hereby ratified and confirmed in all respects.
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     18. Reference to and Effect on the Loan Documents. (a) Upon the effectiveness of thisAmendment, each reference in the Forbearance Agreement to “Forbearance Agreement and Amendment toCredit Agreements,” “Forbearance Agreement,” “Agreement,” the prefix “herein,” “hereof,” or wordsof similar import, and each reference in the Loan Documents to the Forbearance Agreement, shallmean and be a reference to the Forbearance Agreement as amended hereby. (b) Except to the extentamended or modified hereby, all of the representations, warranties, terms, covenants and conditionsof the Forbearance Agreement and the other Loan Documents shall remain as written originally and infull force and effect in accordance with their respective terms and are hereby ratified andconfirmed, and nothing herein shall affect, modify, limit or impair any of the rights and powerswhich Lender may have hereunder or thereunder. Nothing in this Amendment shall constitute annovation. The amendments set forth herein shall be limited precisely as provided for herein, andshall not be deemed to be a waiver of, amendment of, consent to or modification of any of Lender’srights under, or of any other term or provisions of, the Forbearance Agreement or any other LoanDocument, or of any term or provision of any other instrument referred to therein or herein or ofany transaction or future action on the part of the Borrower which would require the consent ofLender.     19. Waiver and Release of All Claims and Defenses; Communications.     (a) FCMC and each Borrower, for itself and its respective successors and assigns, agents,employees, officers and directors, hereby forever waive, relinquish, discharge and release alldefenses and Claims of every kind or nature, whether existing by virtue of state, federal, or locallaw, by agreement or otherwise, against (i) Lender, its successors, assigns, directors, officers,shareholders, agents, employees and attorneys, and (ii) all participants in any Commercial Loans orAdvances, such participants’ successors, assigns, directors, officers, shareholders, agents,employees and attorneys, (iii) any obligation evidenced by any Credit Agreement, any promissorynote, instrument or other Loan Document in connection therewith, and (iv) any Collateral, in eachinstance, which FCMC or any Borrower, may have or may have made at any time up through andincluding the date of this Amendment, including without limitation, any affirmative defenses,counterclaims, setoffs, deductions or recoupments, by FCMC or any Borrower. “**Claims**” meansall 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 orunknown, accrued or unaccrued, disputed or undisputed, liquidated of contingent, in contract, tort,at law or in equity, which FCMC, each Borrower or any or them ever had, claimed to have, now has,or shall or may have. The term Claims also includes all causes of action, liabilities and rightsarising under or by virtue of any Credit Agreement, promissory note or other document or anytransaction entered into in connection therewith. Nothing contained in this Amendment preventsenforcement of this waiver and release.     (b) Each party to this Amendment acknowledges and agrees that one purpose of this Amendment isto facilitate the resolution of the Identified Forbearance Defaults and the Acknowledged Defaultsand that, consistent with such purpose, no part of any oral or written communications between oramong any Borrower, FCMC or Lender regarding the transactions contemplated in this Amendment,exclusive of this written Amendment itself (collectively, “**Communications**”), shall beutilized or deemed to be admissible as evidence in any litigation involving any party to thisAmendment. Communications shall be deemed to constitute “compromise negotiations,” and not toconstitute evidence that is “discoverable,” as those phrases
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are used in the Federal Rules of Evidence and any applicable state rules of evidence, and noCommunications shall be deemed to constitute evidence that is otherwise admissible for any otherpurpose.     (c) The release and communication provisions provided by paragraphs (a) and (b) of thisSection, shall survive and continue in full force and effect notwithstanding the occurrence of aForbearance Default under the terms of this Amendment or the termination of this Amendment.     20. No Waiver. Nothing in this Amendment shall be construed to waive, modify, or cureany default or Event of Default or Forbearance Default (other than the Identified ForbearanceDefaults) that exist that exists or may exist under the Forbearance Agreement or other LoanDocument.     21. Waiver of Right to Trial by Jury. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLYWAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDERTHIS AMENDMENT OR ANY LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TOTHE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOANDOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING ORHEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, AND EACH PARTY HEREBYAGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BYCOURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPARTOR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETOTO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.     22. Counterparts. This Amendment may be executed in any number of counterparts and bydifferent parties hereto in separate counterparts, each of which when so executed and deliveredshall be an original, and all of which together will constitute one and the same instrument.Receipt by Lender of a facsimile copy of an executed signature page hereof will constitute receiptby Lender of an executed counterpart of this Amendment.     23. Costs and Expenses. FCMC and each Borrower agree to pay on demand all costs andexpenses of Lender in connection with the preparation, reproduction, execution and delivery of thisAmendment and all other Loan Documents entered into in connection herewith, including thereasonable fees and out-of-pocket expenses of Lender’s counsel with respect thereto.     24. Further Assurances. FCMC and each Borrower hereby agree to execute and deliversuch additional documents, instruments and agreements reasonably requested by Lender as may bereasonably necessary or appropriate to effectuate the purposes of this Amendment.     25. Governing Law. This Amendment and the rights and obligations of the partieshereto shall be governed by, and construed and interpreted in accordance with, the laws of theState of Ohio.
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     26. Headings. Section headings in this Amendment are included herein for convenienceof reference only and will not constitute a part of this Amendment for any other purpose.     27. Patriot Act Notice. Lender hereby notifies FCMC and each Borrower that pursuantto the requirements of the USA Patriot Act (Title III of Pub.L. 10756, signed into law October 26,2001) (the “**Act**”), it is required to obtain, verify and record information that identifiesFCMC and each Borrower, which information includes the name and address of FCMC and each Borrowerand other information that will allow Lender to identify FCMC or any Borrower in accordance withthe Act.*[Signature Pages Follow.]*
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          IN WITNESS WHEREOF, the Borrowers, FCMC and Lender have hereunto set their hands as of thedate first set forth above.**EACH BORROWER LISTED ON****SCHEDULE 1**