AMENDED AND RESTATED CREDIT AGREEMENT (LICENSING) Dated as of March 31, 2009 among FRANKLIN CREDIT MANAGEMENT CORPORATION, and FRANKLIN CREDIT HOLDING CORPORATION as Borrowers, THE FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS, as Lenders, and THE...
Exhibit 10.12
Execution Copy
AMENDED AND RESTATED CREDIT AGREEMENT (LICENSING)
Dated as of March 31, 2009
among
FRANKLIN CREDIT MANAGEMENT CORPORATION, and
FRANKLIN CREDIT HOLDING CORPORATION
as Borrowers,
FRANKLIN CREDIT HOLDING CORPORATION
as Borrowers,
THE FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS,
as Lenders, and
as Lenders, and
THE HUNTINGTON NATIONAL BANK,
as Administrative Agent and as Issuing Bank
as Administrative Agent and as Issuing Bank
TABLE OF CONTENTS
Page | ||||
Article I. Definitions and Accounting Matters |
2 | |||
Section 1.01 Certain Defined Terms |
2 | |||
Section 1.02 Accounting Terms and Determinations |
18 | |||
Article II. Advances and Prepayments |
18 | |||
Section 2.01 Advances |
18 | |||
Section 2.02 Notes |
19 | |||
Section 2.03 19 |
||||
Section 2.03 Inability to Determine Rates; Illegality |
20 | |||
Section 2.04 Payments of Interest on the Advances; Waterfall |
20 | |||
Section 2.05 Mandatory Prepayments |
21 | |||
Section 2.06 Breakage |
22 | |||
Section 2.07 Requirements of Law |
22 | |||
Section 2.08 Purpose of Advances |
23 | |||
Section 2.09 Facility Fee |
23 | |||
Section 2.10 Letters of Credit |
23 | |||
Section 2.11 Joint and Several Liability |
25 | |||
Section 2.12 Disbursements from Reserve Account |
28 | |||
Article III. Blocked Accounts, Computations; Taxes |
28 | |||
Section 3.01 Payments |
28 | |||
Section 3.02 Computations |
29 | |||
Section 3.03 U.S. Taxes |
29 | |||
Article IV. Certain Matters Relating to Collateral |
30 | |||
Section 4.01 Collections |
30 | |||
Article V. Conditions Precedent |
31 | |||
Section 5.01 Closing and Initial Advances |
31 | |||
Section 5.02 Advances |
33 | |||
Article VI. Representations and Warranties |
34 | |||
Section 6.01 Existence |
34 | |||
Section 6.02 Litigation |
34 | |||
Section 6.03 No Breach |
35 | |||
Section 6.04 Action |
35 | |||
Section 6.05 Approvals |
35 | |||
Section 6.06 Taxes |
35 | |||
Section 6.07 Investment Company Act |
35 | |||
Section 6.08 No Legal Bar |
36 | |||
Section 6.09 No Default |
36 | |||
Section 6.10 True and Complete Disclosure |
36 |
i
Page | ||||
Section 6.11 ERISA |
36 | |||
Section 6.12 True Sales |
37 | |||
Section 6.13 No Burdensome Restrictions |
37 | |||
Section 6.14 Subsidiaries |
37 | |||
Section 6.15 Financial Statements; Solvency; Fraudulent Conveyance |
37 | |||
Section 6.16 Regulation U |
38 | |||
Section 6.17 Licenses |
38 | |||
Article VII. Covenants of Borrower |
38 | |||
Section 7.01 Financial Statements |
38 | |||
Section 7.02 Litigation |
39 | |||
Section 7.03 Existence |
39 | |||
Section 7.04 Prohibition of Fundamental Changes; Subsidiaries |
40 | |||
Section 7.05 Restricted Payments |
40 | |||
Section 7.06 Notices |
40 | |||
Section 7.07 Financial Covenants |
41 | |||
Section 7.08 Transactions with Affiliates |
41 | |||
Section 7.09 Use of Proceeds |
41 | |||
Section 7.10 Limitation on Liens |
42 | |||
Section 7.11 Limitation on Indebtedness |
42 | |||
Section 7.12 Limitation on Sale of Assets |
42 | |||
Section 7.13 Limitation on Investments |
42 | |||
Section 7.14 Solvency |
42 | |||
Section 7.15 No Amendment or Waiver |
42 | |||
Section 7.16 Maintenance of Property; Insurance |
42 | |||
Section 7.17 Organizational Documents |
42 | |||
Section 7.18 Payment of Expenses |
43 | |||
Section 7.19 Certain Post-Effective Date Deliverables |
43 | |||
Section 7.20 Representations and Warranties; Disclosure Updates |
43 | |||
Article VIII. Events of Default |
43 | |||
Section 8.01 Events of Default |
43 | |||
Article IX. Remedies |
46 | |||
Section 9.01 Remedies Upon Default |
46 | |||
Article X. Miscellaneous |
47 | |||
Section 10.01 Waiver |
47 | |||
Section 10.02 Notices |
47 | |||
Section 10.03 Indemnification and Expenses |
48 | |||
Section 10.04 Amendments |
49 | |||
Section 10.05 Successors and Assigns |
50 | |||
Section 10.06 Survival |
50 | |||
Section 10.07 Captions |
50 | |||
Section 10.08 Counterparts |
50 | |||
Section 10.09 Governing Law |
50 | |||
Section 10.10 SUBMISSION TO JURISDICTION; WAIVERS |
50 |
ii
Page | ||||
Section 10.11 WAIVER OF JURY TRIAL |
51 | |||
Section 10.12 Acknowledgments |
51 | |||
Section 10.13 Non-liability of the Administrative Agent and the Lenders |
52 | |||
Section 10.14 Amendment and Restatement |
52 | |||
Section 10.15 Assignment of Liens |
53 | |||
Section 10.16 Set-Off |
53 | |||
Section 10.17 Entire Agreement; Continuation of Agreement |
54 | |||
Section 10.18 Full-Recourse |
54 | |||
Section 10.19 Confidentiality |
54 | |||
Article XI. The Administrative Agent |
55 | |||
Section 11.01 Appointment; Nature of Relationship |
55 | |||
Section 11.02 Exculpatory Provisions |
55 | |||
Section 11.03 Reliance on Communications |
56 | |||
Section 11.04 Delegation of Duties |
56 | |||
Section 11.05 The Administrative Agent’s Reimbursement and Indemnification |
57 | |||
Section 11.06 Notice of Default |
57 | |||
Section 11.07 Rights as a Lender |
58 | |||
Section 11.08 Non-Reliance on Administrative Agent and Other Lenders |
58 | |||
Section 11.09 Resignation of Administrative Agent |
58 | |||
Section 11.10 Administrative Agent Fees |
59 | |||
Section 11.11 Execution of Collateral Documents |
59 | |||
Section 11.12 Collateral |
59 | |||
Section 11.13 Agency for Perfection |
60 | |||
Article XII. Assignments |
60 | |||
Section 12.01 Assignments |
60 | |||
Section 12.02 Dissemination of Information |
63 | |||
Section 12.03 Tax Treatment |
63 |
iii
SCHEDULES | ||
SCHEDULE 1
|
Commitments of Lenders | |
SCHEDULE 2.10
|
Existing Letters of Credit | |
SCHEDULE 6.14
|
Subsidiaries | |
SCHEDULE 6.17
|
Licenses | |
SCHEDULE 7
|
Transaction Documents | |
SCHEDULE 7.19
|
Post-Closing Matters | |
EXHIBITS | ||
EXHIBIT A-1
|
Form of Revolving Loan Note | |
EXHIBIT A-2
|
Form of Draw Loan Note | |
EXHIBIT B
|
Form of Guarantee | |
EXHIBIT C
|
Form of Security Agreement | |
EXHIBIT D
|
Form of Investment Property Security Agreement | |
EXHIBIT E
|
Form of Assignment and Acceptance Agreement |
i
AMENDED AND RESTATED CREDIT AGREEMENT (LICENSING)
THIS AMENDED AND RESTATED CREDIT AGREEMENT (LICENSING), dated as of March 31, 2009 (as the
same may be amended, supplemented, or otherwise modified and in effect from time to time in
accordance with the terms hereof, this “Agreement”) is entered into by and among FRANKLIN
CREDIT MANAGEMENT CORPORATION, a Delaware Corporation, and FRANKLIN CREDIT HOLDING CORPORATION, a
Delaware corporation (each, a “Borrower” and collectively “Borrowers”), THE
FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS (each, a “Lender” and collectively, the
“Lenders”) and THE HUNTINGTON NATIONAL BANK, a national banking association
(“Huntington”), as administrative agent for the Lenders (in such capacity, together with
its successors and assigns in such capacity, the “Administrative Agent”) and as Issuing
Bank for certain Letters of Credit.
RECITALS:
WHEREAS, each FCMC and Huntington (as successor-in-interest to Sky Bank) are parties to that
certain Flow Warehousing Credit and Security Agreement, dated as of August 11, 2006, as the same
has been amended, supplemented, restated, or otherwise modified prior to the date of this Agreement
(the “Franklin Warehousing Agreement”), pursuant to which Huntington holds certain
outstanding loans made to such Borrower and in connection therewith issued certain outstanding
letters of credit for the account of such Borrower (collectively, the “Franklin Warehousing
Credits”), which loans and reimbursement obligations under such letters of credit are secured
by, among other things, certain Mortgage Loans as provided in the Franklin Warehousing Agreement
and the other agreements entered into in connection therewith; and
WHEREAS, FCMC and Huntington (as successor-in-interest to Sky Bank) are parties to that
certain Term Loan and Security Agreement, dated as of February 22, 1995, as the same has been
amended, supplemented, restated, or otherwise modified prior to the date of this Agreement (the
“Franklin Term Loan Agreement”), pursuant to which Huntington holds certain outstanding
loans made to such Borrower (the “Franklin Revolving Loans”), which loans are secured by,
among other things, certain Mortgage Loans as provided in the Franklin Term Loan Agreement and the
other agreements entered into in connection therewith; and
WHEREAS, the Franklin Warehousing Agreement and the Franklin Term Loan Agreement are
collectively referred to as the “Credit Agreements,” and the Franklin Warehousing Credits,
and the Franklin Revolving Loans are collectively referred to as the “Commercial Credits;”
and
WHEREAS, each Borrower, certain other affiliates of the Borrowers, and Huntington are parties
to that certain First Amended and Restated Forbearance Agreement and Amendment to Credit Agreements
dated as of December 19, 2008, as the same has been amended, supplemented, restated, or otherwise
modified prior to the date of this Agreement, and which amended and restated a certain Forbearance
Agreement and Amendment to Credit Agreements dated as of December 27, 2007 (together, the
“Existing Forbearance Agreement”), pursuant to the terms of which Huntington agreed not to
exercise its rights to initiate proceedings to foreclose or otherwise realize upon the Collateral
which secures the Obligations of the loan
1
parties thereunder as a consequence of the defaults acknowledged therein, the loan parties thereto
granted Liens to Huntington in all assets of such loan parties as provided in such loan documents
and other agreements entered into in connection therewith, and Holding guaranteed the full payment
of each Commercial Credit; and
WHEREAS, in connection with the Credit Agreements and the Existing Forbearance Agreement, each
Borrower and certain other borrowers, as applicable, are parties to certain promissory notes,
security agreements, pledge agreements, powers of attorney, letter of credit reimbursement
agreements, control agreements, joinder agreements, counterpart signature pages, assignments,
collateral assignments, guaranties, banking services agreements, hedging agreements, financing
statements and other loan documents (as amended, restated, supplemented or otherwise modified from
time to time prior to the date hereof, together with each Credit Agreement and Existing Forbearance
Agreement, an “Existing Loan Document”, and together the “Existing Loan
Documents”); and
WHEREAS, the Borrowers, the Administrative Agent, and the Lenders wish to amend and restate
Tranche D in full under the Credit Agreements and the Existing Forbearance Agreement and assign all
Liens held in respect of a portion of the collateral security therefor to the Administrative Agent
in order to, among other things, (a) maintain a credit facility in an amount not to exceed the
maximum amount of the Commitment, composed of: (i) a separate existing letter of credit facility in
an amount not to exceed the aggregate sum of the Letter of Credit Commitment, (ii) a revolving line
of credit facility in an amount not to exceed the aggregate sum of the Revolving Loan Commitment,
and (iii) a draw credit facility in an amount not to exceed the aggregate sum of the Draw Loan
Commitment, (b) maintain Tranche D as a full recourse obligation of each Borrower, and (c) reaffirm
all obligations, liabilities, and Liens and grant Liens on substantially all assets of each
Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Article I. Definitions and Accounting Matters.
Section 1.01 Certain Defined Terms. As used herein and the recitals, the following
terms shall have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used in the plural and
vice versa):
“Address for Notices” shall have the meaning assigned thereto in Section 10.02.
“Administrative Agent” shall have the meaning assigned to that term in the preamble
and as further defined in Section 11.01.
“Administrative Agent Fee” shall mean an annual to be determined by the Administrative
Agent at such time as Huntington and its Affiliates are not the only Lenders hereunder, payable to
the Administrative Agent.
2
“Advance” or “Advances” shall mean any one or more of the Revolving Loan
Advances or the Draw Loan Advances.
“Affected Lender” shall have the meaning assigned thereto in Section 2.03(c).
“Affiliate” shall mean, with respect to any Person, any other Person who, directly or
indirectly, controls, is controlled by, or is under common control with, such Person. For purposes
of this definition, “control” (together with the correlative meanings of “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power (a) to vote ten
percent (10%) or more of the securities (on a fully diluted basis) having ordinary voting power for
the directors or managing general partners (or their equivalent) of such Person, or (b) to direct
or cause the direction of the management or policies of such Person, whether through the ownership
of voting securities, by contract, or otherwise; provided, however, that with respect to the Loan
Parties, under common control with” shall mean “under common control of Holding with”, in each
instance of this Agreement, other than Section 7.08 and Section 7.18.
“Agreement” shall have the meaning assigned to that term in the preamble of this
Agreement.
“Applicable Collections Amount” shall have the meaning assigned thereto in Section
2.04(c).
“Applicable Draw Loan Margin” shall mean six percent (6.00%).
“Applicable Margin” shall mean eight percent (8.00%).
“Application and Agreement for Letter of Credit” shall mean an application and
agreement for standby letter of credit by, between, and among any Borrower, on the one hand, and
Huntington, on the other hand, in a form provided by Huntington, either as originally executed or
as it may from time to time be supplemented, modified, amended, renewed, or extended.
“Approved Expenses” shall mean those expenses of any Borrower as set forth in the
budget periodically submitted to the Administrative Agent, which budget shall be subject to the
written consent of the Administrative Agent, which consent will not be withheld unreasonably, and
shall include without limitation, fees and expenses incurred in the ordinary course of business,
all fees and charges in respect of Letters of Credit and banking services provided for the account
of any Borrower and reasonable costs of any litigation to require sellers of Mortgage Loans to
repurchase such loans because of fraud, misrepresentation, or breach of warranty.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 12.02) and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.
3
“Bankruptcy Code” shall mean Title 11 of the United States Code (11 U.S.C. Section 101
et seq.), as amended by the Bankruptcy Reform Act and as further amended from time to time, or any
successor statute.
“Bankruptcy Reform Act” shall mean the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005, effective as of October 17, 2005.
“Blocked Account” shall have the meaning assigned to such term in Section 3.01(a).
“Borrower” shall have the meaning assigned to that term in the preamble of this
Agreement.
“Business Day” shall mean any day other than (i) a Saturday, Sunday, or other day on
which commercial banks are required or authorized to close under the laws of the State of Ohio or
(ii) a day on which any Custodian is required or authorized to close under the laws of the state in
which such Custodian’s offices are located and, if such day relates to a determination of LIBOR,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
“Capital Lease Obligations” shall mean, for any Person, all obligations of such Person
to pay rent or other amounts under a lease of (or other agreement conveying the right to use)
Property to the extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Agreement,
the amount of such obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
“Capital Stock” shall mean any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any other Equity Interests in
an entity however designated, any membership interests in a limited liability company, any and all
similar ownership interests in a Person, in each case whether certificated or uncertificated, and
any and all warrants or options to purchase any of the foregoing.
“Cash Equivalents” shall mean (a) securities with maturities of 90 days or less from
the date of acquisition thereof that are issued or fully Guaranteed or insured by the United States
Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with
maturities of 90 days or less from the date of acquisition thereof and overnight bank deposits, in
each case of any commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this
definition, in each case having a term of not more than seven days and relating to securities
issued or fully Guaranteed or insured by the United States Government, (d) commercial paper of a
domestic issuer rated at least A-1 or the equivalent thereof by Standard and Poor’s Ratings Group
(“S&P”) or P-1 or the equivalent thereof by Xxxxx’x, and in either case maturing within 90
days after the date of acquisition thereof, (e) securities with maturities of 90 days or less from
the date of acquisition thereof that are issued or fully Guaranteed by any state, commonwealth, or
territory of the United States, by any political subdivision or taxing authority of any such state,
commonwealth, or territory or by any foreign government, in each case the securities of which
state, commonwealth, territory, political subdivision, taxing authority, or foreign government (as
4
the case may be) are rated at least A by S&P or A by Xxxxx’x, (f) securities with maturities
of 90 days or less from the date of acquisition thereof that are backed by standby letters of
credit issued by any commercial bank satisfying the requirements of clause (b) of this definition,
or (g) shares of money market mutual or similar funds that invest exclusively in assets satisfying
the requirements of clauses (a) through (f) of this definition.
“Change of Control” shall mean, (a) with respect to any Borrower, the replacement of a
majority of the board of directors from the directors who constituted the board of directors on the
Effective Date for any reason other than death or disability, and such replacement shall not have
been approved by such board of directors, as constituted on the Effective Date (or as changed over
time with the approval of the then existing board of directors of Holding); or (b) a Person or
Persons acting in concert, as a result of a tender or exchange offer, open market purchases,
privately negotiated purchases, exercise of the stock pledge or otherwise, shall have become the
beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of equity securities of any Borrower representing more than 20% of the combined voting
power of the outstanding securities of such Person, ordinarily having the right to vote in the
election of directors from the beneficial owners as of the Effective Date; or (c) with respect to
FCMC, the failure of Holding to own, directly or indirectly, and free and clear of any adverse
claims (other than Liens securing the obligations under the Legacy Loans Credit Agreement), 100% of
the issued and outstanding Capital Stock of such Borrower.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” shall have the meaning assigned to such term in the Security Agreement,
Mortgage, or any other Loan Document executed and delivered to the Administrative Agent by any Loan
Party and shall include without limitation:
(i) | a first and best Lien on FCMC’s Cash or Cash Equivalents in account number 01892543486 at Huntington, maintained in an amount satisfactory to the Administrative Agent, but not less than $8,500,000; | ||
(ii) | a Mortgage in certain real property interests of FCMC at 0 Xxxxxxxx Xxxxxx, Xxxx 0, Xxx Xxxx, Xxx Xxxx, subject to the existing Lien of Huntington, as agent for certain lenders under the Legacy Loans Credit Agreement; | ||
(iii) | a first and best Lien on all FCMC’s now owned or hereafter acquired right, title, and interest in personal property; | ||
(iv) | a first Mortgage in certain real property interests of FCMC at 000 Xxxxxx Xx. Xxx Xxxx, Xxx Xxxx; and | ||
(v) | any monies or sums due FCMC in respect of any program sponsored by any Governmental Authority, including without limitation any fees received, directly or indirectly, under the U.S. Treasury Homeowners Affordability and Stability Plan. |
“Collection Account” shall mean that certain account, subject to a Control Agreement,
in the name of the Administrative Agent, being account number 01899715877, maintained at
Huntington, or such other similar account subject to a Control Agreement as may be specified in
writing by the Administrative Agent from time to time as a “Collection Account.”
5
“Collections” shall mean, without duplication, all collections from accounts
receivable, distributions, dividends, payments and other proceeds, net liquidation proceeds or
insurance proceeds, received by or for the account of any Borrower, or received by the
Administrative Agent on or in respect of any asset, property or otherwise constituting part of the
Collateral, including without limitation (i) the net cash proceeds received by any Borrower or any
of its Subsidiaries, together with any non-offered securities issued, in connection with the
securitization or sale of any property, and (ii) the related proceeds of any liquidation,
collection, sale, receipt, appropriation or realization upon the Collateral, net of Approved
Expenses, if any.
“Commercial Credits” shall have the meaning assigned to that term in the recitals of
this Agreement.
“Commitment” shall mean, as to any Lender, such Lender’s (i) Letter of Credit
Commitment, (ii) Revolving Loan Commitment to make or maintain any Revolving Loan Advance, and
(iii) Draw Loan Commitment to make or maintain any Draw Loan Advance.
“Contractual Obligation” shall mean, as to any Person, any provision of any written
agreement, instrument, or other undertaking to which such Person is a party or by which it or any
of its property is bound, or any provision of any security issued by such Person.
“Control Agreement” means each control agreement, in form and substance satisfactory
to the Administrative Agent, executed and delivered by any Borrower, the Administrative Agent, and
the applicable depositary bank.
“Credit Agreements” shall have the meaning assigned to that term in the recitals of
this Agreement.
“Default” shall mean an Event of Default or an event that, with notice or lapse of
time or both, would become an Event of Default.
“Disbursement Accounts” shall have the meaning assigned to such term in Section
3.01(b).
“Dollars” and “$” shall mean lawful money of the United States of America.
“Draw Loan” is defined in Section 2.01(c).
“Draw Loan Advance” and “Draw Loan Advances” shall have the meanings assigned
to those terms in Section 2.01.
“Draw Loan Commitment” shall mean, as to any Lender, the lesser of (i) the
Commitment of such Lender to make a Draw Loan Advance as set forth on Schedule 1, or (ii)
the aggregate fair market value of the Guarantor Collateral, in the case of (A) real Property,
multiplied by 70%, and (B) other Property, multiplied by an advance rate satisfactory to the
Administrative Agent in its good faith discretion, less in each instance the amount of any prior
Mortgage or Lien thereon. The original maximum aggregate amount of the Draw Loan Commitments of
all Lenders is $5,000,000.
6
“Draw Loan Note” shall mean the promissory note provided for each Lender’s Draw Loan
Advance and any promissory note delivered in substitution or exchange therefor, in each case as the
same shall be modified, supplemented, amended, or restated and in effect from time to time in
accordance with the terms of this Agreement.
“Effective Date” shall mean the date on which the conditions set forth in Section 5.01
are satisfied.
“Eligible Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender (other than
an individual), (c) any other Person approved by the Administrative Agent, and prior to a Default,
by FCMC, (d) a commercial bank organized under the laws of the United States, or any state thereof,
and having total assets in excess of $250,000,000, (e) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic Cooperation and Development
or a political subdivision of any such country and which has total assets in excess of
$250,000,000, provided that such bank is acting through a branch or agency located in the United
States and has complied with Section 3.03, (f) a finance company, insurance company, or other
financial institution or fund that has complied with Section 3.03 and is engaged in making,
purchasing, or otherwise investing in commercial loans in the ordinary course of its business and
having (together with its Affiliates) total assets in excess of $250,000,000; provided
that, notwithstanding the foregoing, “Eligible Assignee” shall not include any Loan Party or an
Affiliate of any Loan Party.
“Equity Interests” shall mean any and all shares, interests, participations, or other
equivalents (however designated) of Capital Stock of a corporation, any other equity interests in
an entity however designated, any membership interests in a limited liability company, any and all
similar ownership interests in a Person, in each case whether certificated or uncertificated, and
any and all warrants or options to purchase any of the foregoing.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.
“ERISA Affiliate” shall mean any corporation or trade or business that is a member of
any group of organizations (i) described in Section 414(b) or (c) of the Code of which any Borrower
is a member or (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA
and Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which any Borrower is a
member.
“Event of Default” shall have the meaning provided in Article 8.
“Existing Forbearance Agreement” shall have the meaning assigned to that term in the
recitals of this Agreement.
“Existing Loan Documents” shall have the meaning assigned to that term in the recitals
of this Agreement.
“Facility Fee” shall mean $135,000.
7
“FCMC” shall mean Franklin Credit Management Corporation, a Delaware corporation.
“Form W-8BEN” shall have the meaning assigned thereto in Section 3.03(a).
“Form W-8ECI” shall have the meaning assigned thereto in Section 3.03(a).
“Franklin Revolving Loans” shall have the meaning assigned to that term in the
recitals of this Agreement.
“Franklin Term Loan Agreement” shall have the meaning assigned to that term in the
recitals of this Agreement.
“Franklin Warehousing Agreement” shall have the meaning assigned to that term in the
recitals of this Agreement.
“Franklin Warehousing Credits” shall have the meaning assigned to that term in the
recitals of this Agreement.
“GAAP” shall mean generally accepted accounting principles as in effect from time to
time in the United States of America.
“Governmental Authority” shall mean any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government and any court or arbitrator having
jurisdiction over any Borrower, any of their Subsidiaries, or any of their properties.
“Guarantee” shall mean, as to any Person, any obligation of such Person directly or
indirectly guaranteeing any Indebtedness of any other Person or in any manner providing for the
payment of any Indebtedness of any other Person or otherwise protecting the holder of such
Indebtedness against loss (whether by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities, or services, or to take-or-pay or otherwise);
provided that the term “Guarantee” shall not include (i) endorsements for collection or
deposit in the ordinary course of business or (ii) obligations to make servicing advances for
delinquent taxes and insurance, or other obligations in respect of Mortgage securing any Mortgage
Loan or REO Property. The terms “Guarantee” and “Guaranteed” used as verbs shall
have correlative meanings.
“Guarantor” shall mean (i) Xxxxxx X. Xxxx, in respect of the Draw Loan, and (ii) any
other Person which has become obligated to the Administrative Agent or the Lenders in respect of
any of the Obligations under any Loan Document pursuant to the terms of a Guarantee, including
without limitation Xxxxx Xxxxxx Realty LLC.
“Guarantor Collateral” shall mean collectively (i) a Mortgage on certain commercial
real Property in favor of the Administrative Agent, commonly known as 0 Xxxxxxxx Xxxxxx, Xxxx 0,
Xxx Xxxx, Xxx Xxxx, subject only to a Mortgage in favor of the Communication Workers of America
securing Indebtedness not to exceed the principal sum of $550,000, (ii) a first and exclusive Lien
on one or more promissory notes or other obligations in the aggregate amount of
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$2,019,919.02 as of the Effective Date, secured by first and second Mortgages on commercial Real
Property known as 00 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and (iii) a first and exclusive Lien on a
certain Demand Note in the amount of $1,315,382 as of the Effective Date, secured by a first
Mortgage on commercial Real Property known as 000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx .
“HF” shall mean Huntington Finance LLC, an Ohio limited liability company.
“Holding” shall mean Franklin Credit Holding Corporation, a Delaware corporation.
“Huntington” shall have the meaning assigned to that term in the preamble of this
Agreement.
“Indebtedness” shall mean, for any Person: (a) obligations created, issued, or
incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt
securities, or the sale of Property to another Person subject to an understanding or agreement,
contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such
Person to pay the deferred purchase or acquisition price of Property or services, other than trade
accounts payable arising, and accrued expenses incurred, in the ordinary course of business so long
as such trade accounts payable are payable within ninety (90) days of the date the respective goods
are delivered or the respective services are rendered; (c) indebtedness and obligations of others
secured by a Lien on the Property of such Person, whether or not the respective Indebtedness so
secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person
in respect of letters of credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease Obligations of such Person;
(f) obligations of such Person under repurchase agreements or like arrangements; (g) indebtedness
and obligations of others Guaranteed by such Person; (h) all obligations of such Person incurred in
connection with the acquisition or carrying of fixed assets by such Person; (i) indebtedness and
obligations of general partnerships of which such Person is a general partner; and (j) any other
indebtedness or obligation of such Person evidenced by a note, bond, debenture, or similar
instrument.
“Indemnified Party” shall have the meaning assigned thereto in Section 10.03.
“Interest Period” shall mean, with respect to any Advance, (i) initially, the period
commencing on the Effective Date with respect to such Advance and ending on the calendar day prior
to the Payment Date of the next succeeding month; (ii) thereafter, each period commencing on the
Payment Date of one month and ending on the calendar day prior to the Payment Date of the next
succeeding month; provided, that if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall be extended to the next succeeding Business
Day; provided, however, that if such next succeeding Business Day occurs in the following
calendar month, then such Interest Period shall expire on the immediately preceding Business Day,
and provided further that interest shall continue to accrue on all amounts due and payable
hereunder that remain unpaid on the applicable Termination Date until such time as such amounts are
paid in full.
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“Interest Rate” shall mean, for each day: (i) in respect of the Revolving Loan
Advances, a per annum rate equal to LIBOR for that day plus the Applicable Margin, and (ii) in
respect of the Draw Loan Advances, a per annum rate equal to LIBOR for that day plus the Applicable
Draw Loan Margin.
“Inventory” means all now owned or hereafter acquired right, title and interest in
“inventory” (as defined in the UCC) and goods, goods in transit, goods held for sale or lease, or
to be furnished under any contract of service, raw materials, work in process or supplies, and all
materials used or consumed in the business of any Borrower, and any property the sale or other
disposition of which has given rise to Accounts and which has been returned, repossessed or stopped
in transit.
“Investment” means, with respect to any Person, (i) any purchase or other acquisition
by that Person of any securities or Equity Interest, or of a beneficial interest in any securities
or Equity Interest issued by any other Person, (ii) any purchase by that Person of all or a
significant part of the Property of a business conducted by another Person, and (iii) any loan,
advance (other than deposits with financial institutions available for withdrawal on demand,
prepaid expenses, accounts receivable, and similar items made or incurred in the ordinary course of
business as presently conducted), or a capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of Property by such Person other than
in the ordinary course of its business.
“Investment Company Act” shall have the meaning assigned thereto in Section 6.07.
“Issuing Bank” shall mean initially Huntington, and thereafter means any Lender that,
at the request of the Administrative Agent and with the consent of each Borrower, agrees, in such
Lender’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit
pursuant to Section 2.10.
“Legacy Loans Credit Agreement” shall mean that certain Amended and Restated Credit
Agreement dated as of the Effective Date by and among Franklin Asset Corporation, Tribeca Lending
Corp., the other borrowers party thereto, the financial institutions party thereto as lenders, and
The Huntington National Bank, as administrative agent, as amended, restated, supplemented or
otherwise modified from time to time.
“Lender” shall have the meaning assigned thereto in the preamble hereof and includes
the financial institutions party hereto as Lenders on the Effective Date and parties that become
Lenders thereafter pursuant to an Assignment and Acceptance.
“Letter of Credit” and “Letters of Credit” shall mean any letter of credit
issued by the Issuing Bank for the account of any Borrower, either as originally issued or as the
same may, from time to time, be amended or otherwise modified, extended, or replaced.
“Letter of Credit Commitment” shall mean, as to any Lender, the Commitment of such
Lender to pay any Risk Participation Liability as set forth on Schedule 1. The original
aggregate amount of the Letter of Credit Commitments of all Lenders is $6,500,000.
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“Letter of Credit Exposure” shall mean, as of any date of determination, the aggregate
undrawn stated amount of all outstanding Letters of Credit plus the aggregate of all
amounts drawn under Letters of Credit for which the Issuing Bank has not yet received payment or
reimbursement (whether from any Borrower or otherwise); provided, however, that the Letter
of Credit Exposure shall at no time exceed the aggregate sum of the Letter of Credit Commitment.
“Letter of Credit Facing Fee” shall mean, with respect to each issued and outstanding
Letter of Credit, a facing fee payable to the Issuing Bank, for its own account, at the rate of
0.125% per annum multiplied by the average daily undrawn amount of such Letter of Credit during the
period in respect of which such fee is paid.
“Letter of Credit Fee” shall mean (i) a fee equal to fifty percent (50%) of the
Applicable Margin, due and payable in advance to the Issuing Bank upon the issuance of each Letter
of Credit, which shall be shared among the Lenders, based of each Lender’s Pro Rata Share of the
Letter of Credit Commitment.
“LIBOR” shall mean, for each day during an Interest Period with respect to an Advance,
the rate per annum obtained by dividing (1) the actual or estimated per annum rate, or the
arithmetic mean of the per annum rates, of interest for deposits in U.S. dollars for one (1) month,
as determined by the Administrative Agent in its good faith discretion based upon information which
appears on page LIBOR01, captioned British Bankers Assoc. Interest Settlement Rates, of the Reuters
America Network, a service of Reuters America Inc. (or such other page that may replace that page
on that service for the purpose of displaying London interbank offered rates; or, if such service
ceases to be available or ceases to be used by the Administrative Agent, such other reasonably
comparable money rate service as the Administrative Agent may select) or upon information obtained
from any other reasonable procedure, as of two (2) Business Days prior to the commencement of such
Interest Period; by (2) an amount equal to one minus the stated maximum rate (expressed as a
decimal), if any, of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) that is specified on each date LIBOR is
determined by the Board of Governors of the Federal Reserve System (or any successor agency
thereto) for determining the maximum reserve requirement with respect to eurocurrency funding
(currently referred to as “Eurocurrency liabilities” in Regulation D of such Board) maintained by a
member bank of such system, or any other regulations of any Governmental Authority having
jurisdiction with respect thereto, all as conclusively determined by the Administrative Agent. As
used herein, “banking day” shall mean any day other than a Saturday or a Sunday on which banks are
open for business in Columbus, Ohio, and on which banks in London, England, settle payments.
Subject to any maximum or minimum interest rate limitation specified herein or by applicable law,
LIBOR shall change automatically without notice to any Borrower immediately on the first day of
each Interest Period, with any change thereto effective as of the opening of business on the day of
any change.
“LIBOR Advance” shall mean an Advance bearing an Interest Rate based on LIBOR.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), other charge or security interest, or any
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preference, priority or other agreement or preferential arrangement of any kind or nature
whatsoever.
“Loan Documents” shall mean, collectively, this Agreement, the Notes, the Security
Agreement, each agreement in respect of a Blocked Account, Disbursement Account, Collection
Account, or Reserve Account, each deposit account control agreement, each Application and Agreement
for Letter of Credit, letter of credit reimbursement agreement, pledge agreement, joinder
agreement, collateral assignments, Guarantee, banking services agreement, cash management
agreement, amendment, modification agreement, instrument, financing statements and each other
document or agreement relating to this Agreement or the transactions contemplated by this
Agreement; provided, however, no Transaction Document shall be a Loan Document.
“Loan Parties” shall mean each Borrower and any Guarantor collectively, and “Loan
Party” means any Borrower, any Guarantor and any other Person which has become obligated to the
Administrative Agent or any Lender under the terms of this Agreement or any other Loan Document
pursuant to a joinder, supplement or Guarantee and other Loan Documents satisfactory to the
Administrative Agent in its sole and absolute discretion.
“Mandatory Prepayment Event” shall mean:
(a) any sale, transfer, or other disposition of any Property of any Borrower or any
property constituting Collateral pursuant hereto; or
(b) any casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any Property of any Borrower or any
Collateral; or
(c) the issuance by any Borrower of any Equity Interests, or the receipt by Borrower of
any capital contribution; or
(d) the incurrence by any Borrower of any Subordinated Indebtedness; or
(e) the receipt by any Borrower of the proceeds of any settlement or monetary judgment
in respect of any litigation or other similar proceeding.
“Margin Stock” shall have the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System (or any successor agency thereto) as in effect
from time to time.
“Material Adverse Effect” shall mean a material adverse effect on (a) the operations,
business, properties, liabilities (actual or contingent), or condition (financial or otherwise) of
any Borrower, (b) the ability of any Loan Party to perform in all material respects its Obligations
under this Agreement or any obligations under any of the Loan Documents to which it is a party, (c)
the validity or enforceability in all material respects of any of the Loan Documents, other than
any Loan Document that is terminated with the prior written consent of the Administrative Agent,
and if required hereby, the Required Lenders, (d) the rights and remedies of the
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Administrative Agent or any Lender under any of the Loan Documents (including without
limitation the Administrative Agent’s or any Lender’s ability to foreclose upon any Collateral or
to exercise any of its other rights or remedies under any of the Loan Documents, whether as a
secured party under the Uniform Commercial Code, in equity, at law or otherwise), (e) the timely
payment of the principal of or interest on the Advances or other amounts payable in connection
therewith or (f) the Collateral; provided, however, that in no event shall a Material Adverse
Effect be deemed to occur as a result of the consummation of the Transaction Documents.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc.
“Mortgage” shall mean, any mortgage, security agreement and assignment of rents, deed
of trust, security deed or other instrument which creates a Lien on the fee simple or a leasehold
estate in the real property and related personal property securing any obligation described
therein.
“Mortgage Loan” shall mean any mortgage loan in which any Borrower has an interest,
which mortgage loan includes, without limitation, (i) a mortgage note, the related Mortgage and all
other mortgage loan documents and (ii) all right, title and interest of any Borrower in and to the
related property subject to a Mortgage as collateral security therefor.
“Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37)
of ERISA to which contributions have been or are required to be made by any Borrower or any ERISA
Affiliate and that is covered by Title IV of ERISA.
“Net Income Before Taxes” of any Person shall mean, for any period, the net income (or
loss) of such Person before taxes for such period taken as a single accounting period, determined
in conformity with GAAP.
“Net Proceeds” shall mean, with respect to any Mandatory Prepayment Event, (a) the
cash proceeds received in respect of such Mandatory Prepayment Event, including (i) any cash
received in respect of any non-cash proceeds (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), (ii) in the case of a casualty
or other insured damage to any property or asset of any Borrower, insurance proceeds, and (iii) in
the case of a condemnation or similar event, condemnation awards and similar payments, in each case
net of (b) the sum of (i) all reasonable and customary fees and out-of-pocket expenses paid to
third parties (other than Affiliates) in connection with such Mandatory Prepayment Event, and
(ii) in the case of a sale, transfer or other disposition of an asset or a casualty, a condemnation
or similar proceeding, or the receipt of any tax refund, the amount of all payments required to be
made as a result of such Mandatory Prepayment Event to repay Indebtedness (other than Advances)
secured by such asset.
“Net Worth” shall mean, at the time of each determination, in respect to any Person
and for all purposes, the excess of total assets of such Person over total liabilities of such
Person, determined in accordance with GAAP.
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“New Trust” shall mean Franklin Mortgage Asset Trust 2009-A, a Delaware statutory
trust.
“Note” or “Notes” shall mean any one or more of the Revolving Loan Notes or
the Draw Loan Notes.
“Obligations” shall mean all loans, debts, principal, interest (including any interest
that, but for the commencement of an insolvency proceeding, would have accrued), premiums,
liabilities (including all amounts charged to any Borrower’s account pursuant hereto), obligations
(including indemnification obligations), fees (including the fees provided for in this Agreement),
charges, costs, expenses (including any fees or expenses that, but for the commencement of an
insolvency proceeding would have accrued), lease payments, guaranties, covenants, and duties of any
kind and description owing by any Borrower to any Secured Party pursuant to or evidenced by any
Loan Document and irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising, and including all
interest not paid when due and all expenses that any Borrower is required to pay or reimburse by
any Loan Document, by law, or otherwise. Any reference in this Agreement or in any Loan Document
to the Obligations shall include all extensions, modifications, renewals, or alterations thereof,
both prior and subsequent to any insolvency proceeding.
“Payment Date” shall mean either (a) the last day of each calendar month or, if such
day is not a Business Day, the next succeeding Business Day, or (b) in the case of the final
Payment Date for the Advances, the Termination Date; provided, however, payments of
interest accrued on the Advances shall commence on April 30, 2009. If the due date of any payment
due in respect to any Advance shall be a day that is not a Business Day, such due date shall be
extended to the next succeeding Business Day; provided, however, that if such next
succeeding Business Day occurs in the following calendar month, then such due date shall be the
immediately preceding Business Day.
“PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.
“Person” shall mean any individual, corporation, company, voluntary association,
partnership, joint venture, limited liability company, trust, unincorporated association or
government (or any agency, instrumentality or political subdivision thereof).
“Plan” shall mean an employee benefit or other plan established or maintained by any
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA, other than a
Multiemployer Plan.
“Post-Default Rate” shall mean, in respect of any principal of any Advance or any
other amount under this Agreement, any Note or any other Loan Document that is not paid when due to
the Administrative Agent, Issuing Bank, any Lender or any Affiliate thereof (whether at stated
maturity, by acceleration or mandatory prepayment or otherwise), a rate per annum during the period
from and including the due date to but excluding the date on which such amount is paid in full
equal to the sum of (x) five percent (5.00%) per annum plus (y) the related fixed or
variable Interest Rate otherwise applicable to such Advance or other amount.
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“Prime Commercial Rate” shall mean the commercial lending rate of interest per annum
as fixed from time to time by the management of Huntington and its successors, at its main office
and designated as its “Prime Commercial Rate,” from time to time in effect, with each change in
such rate automatically and immediately changing the interest rate on all applicable Advances
without notice to Borrowers, subject to any maximum or minimum interest rate limitation specified
by applicable law. Each Borrower hereby waives any right to claim that the Prime Commercial Rate is
an interest rate other than that rate designated by Huntington as its “Prime Commercial Rate” on
the grounds that: (i) such rate may or may not be published or otherwise made known to each
Borrower or (ii) Huntington may make loans to certain borrowers at interest rates that are lower
than its “Prime Commercial Rate.”
“Pro Forma Balance Sheet” shall have the meaning assigned thereto in Section 6.10(b).
“Property” shall mean any right or interest in or to property of any kind whatsoever,
whether real, personal, or mixed, and whether tangible or intangible.
“Pro Rata Share” shall mean, for any Lender as of any date of determination, the
percentage obtained, by dividing (A) the Commitment of such Lender by (B) the
aggregate Commitments of all Lenders (the applicable amount in clause (A) above being such Lender’s
“Commitment Exposure” as of such date of determination).
“Purchasers” shall have the meaning assigned thereto in Section 12.01(b).
“Register” shall have the meaning assigned thereto in Section 12.01(d).
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System (or any successor agency thereto), as the same may be modified and supplemented and
in effect from time to time.
“Related Assets” shall have the meaning assigned thereto in Section 7.03(f).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, and advisors of such Person and of such Person’s
Affiliates.
“REO Property” shall mean any real property, the title to which is held by any
Borrower or one of its Subsidiaries, together with all buildings, fixtures and improvements thereon
and all other rights, benefits and proceeds arising from and in connection with such property.
“Required Lenders” shall mean the Lenders having in the aggregate at least 50.1% of
the sum of the Commitment Exposure of all Lenders.
“Required Payments” shall have the meaning assigned thereto in Section 2.04(c).
“Requirement of Law” shall mean, as to any Person, the certificate of incorporation
and by-laws, limited liability company agreement (whether written or oral), certificate of
formation or other organizational or governing documents of such Person, and any law, treaty, rule,
or regulation (including, without limitation, the Investment Company Act of 1940, as amended) or
15
determination of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which such Person or any of
its property is subject.
“Reserve Account” shall mean that certain account, subject to a Control Agreement, in
the name of the Administrative Agent, being account number 01892594529, for the payment of any
expense of a Borrower approved by the Administrative Agent, maintained at Huntington, or such other
similar account as may be specified in writing by the Administrative Agent from time to time as the
“Reserve Account.”
“Reserves” shall mean such cash reserves in the Reserve Account or such other
collateral account subject to a Control Agreement pledged as security for the Obligations as the
Administrative Agent shall establish in such amounts, and with respect to such matters, as the
Administrative Agent in its good faith discretion shall deem necessary or appropriate, including
without limitation, to make available to any Borrower or a creditor of any Borrower with respect to
(i) sums that any Borrower is required to pay pursuant to any Contractual Obligations (such as
taxes, or assessments), (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, (iii) the payment of any
Required Payment or interest under any Advance, or any fees or expenses owing or anticipated to be
owing to any Secured Party under the terms of any Loan Document, and (iv) funds required to
preserve or protect any of the Collateral.
“Responsible Officer” shall mean, as to any Person, the chief executive officer or,
with respect to financial matters, the chief financial officer of such Person; provided,
that in the event any such officer is unavailable at any time he or she is required to take any
action hereunder, Responsible Officer shall mean any officer authorized to act on such officer’s
behalf as demonstrated by a certificate of corporate resolution.
“Restricted Payment” shall mean (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of Capital Stock or Equity Interest of any Borrower
now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital
Stock or Equity Interest of any Borrower now or hereafter outstanding, (iii) any payment made to
redeem, purchase, repurchase, or retire, or to obtain the surrender of, any outstanding warrants,
options, or other rights to acquire shares of any class of Capital Stock or Equity interest of any
Borrower now or hereafter outstanding, and (iv) any payment or prepayment of principal, premium, if
any, or interest, fees, or other charges on or with respect to, and any redemption, purchase,
retirement, defeasance, sinking fund or similar payment and any claim to rescission with respect
to, any Subordinated Indebtedness.
“Revolving Loan” is defined in Section 2.01(b).
“Revolving Loan Advance” and “Revolving Loan Advances” shall have the meanings
assigned to those terms in Section 2.01.
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“Revolving Loan Commitment” shall mean, as to any Lender, the Commitment of such
Lender to make a Revolving Loan Advance as set forth on Schedule 1. The original aggregate
amount of the Revolving Loan Commitments of all Lenders is $2,000,000.
“Revolving Loan Note” shall mean the amended and restated promissory note providing
for each Lender’s Revolving Loan Advance and any promissory note delivered in substitution or
exchange therefor, in each case as the same shall be modified, supplemented, amended, or restated
and in effect from time to time in accordance with the terms of this Agreement.
“Risk Participation Liability” shall mean, as to each Letter of Credit, all
reimbursement obligations of any Borrower to the Issuing Bank with respect to a Letter of Credit,
consisting of (a) the amount available to be drawn or which may become available to be drawn, and
(b) all accrued and unpaid interest, fees, and expenses payable with respect thereto.
“Secured Parties” shall mean the Administrative Agent, the Issuing Bank, and each
Lender.
“Security Agreement” shall mean each of: (i) a certain Amended and Restated Security
Agreement, substantially in the form of Exhibit C, and (ii) a certain Investment Property
Security Agreement, substantially in the form of Exhibit D, each dated as of the date
hereof and made by Borrowers in favor of the Administrative Agent on behalf of the Secured Parties,
as each of the same may be amended, supplemented, or otherwise modified and in effect from time to
time in accordance with the terms thereof.
“Servicer” shall mean FCMC or such other servicer of the assets of New Trust.
“Servicing Agreement” shall mean that certain Servicing Agreement entered into as of
the Effective Date between New Trust and FCMC with respect to the assets purchased by New Trust
pursuant to the Transactions, as amended, restated, supplemented, substituted or otherwise modified
from time to time.
“Subordinated Indebtedness” shall mean any Indebtedness incurred by a Borrower or any
Subsidiary, the payment of which is subject to a debt subordination agreement or other
subordination provisions in favor of the Administrative Agent, to the written satisfaction of the
Administrative Agent and the terms (including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants, subordination terms, events of
default and remedies) of which are reasonably acceptable to the Administrative Agent.
“Subsidiary” shall mean, with respect to any Person, any corporation, limited
liability company, partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions of such corporation,
partnership, limited liability company or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of such corporation,
partnership or other entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such Person or one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
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“Termination Date” shall mean March 31, 2010, or such earlier date on which this
Agreement shall terminate in accordance with the provisions hereof or by operation of law.
“Transaction Documents” shall mean the agreements set forth on Schedule 7
attached hereto.
“Transactions” shall have the meaning assigned to that term in the Legacy Loans Credit
Agreement.
“Transfer” shall have the meaning assigned thereto in Section 7.12.
“Transferee” shall have the meaning assigned thereto in Section 12.02.
“Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect on the
date hereof in the State of Ohio; provided, that if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of the security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than
Ohio, “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
“U.S. Taxes” shall have the meaning assigned thereto in Section 3.03(a).
Section 1.02 Accounting Terms and Determinations. Except as otherwise expressly
provided herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be delivered to the
Administrative Agent under this Agreement shall be prepared, in accordance with GAAP.
Article II. Advances and Prepayments.
Section 2.01 Advances.
Subject to the terms and conditions of this Agreement and in reliance on the representations,
warranties, and covenants of each Borrower herein set forth, each Lender hereby severally agrees on
the Effective Date to amend and restate and make Advances described in this Section 2.01:
(a) Letters of Credit Advances. The Issuing Bank shall issue Letters of Credit
for the account of any Borrower from time to time on any Business Day during the period from
and including the Effective Date to but excluding the Termination Date, in an aggregate
amount not exceeding the Letter of Credit Commitment in accordance with the terms and
subject to the conditions of Section 2.10 of this Agreement. Letters of Credit shall be
used solely to assure that all state licensing requirements of FCMC are met.
(b) Revolving Loan Advances. Each Lender will extend a revolving credit
facility (the “Revolving Loan”) to Borrowers, subject to the terms and conditions
hereof, the principal sum outstanding under which at any time shall not exceed such Lender’s
Revolving Loan Commitment.
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(i) Interest shall accrue on the unpaid balance of the Revolving Loan at an
interest rate per annum equal to LIBOR plus the Applicable Margin. All interest
accruing on the Revolving Loan shall be due and payable on each Payment Date.
(ii) The principal sum and all obligations outstanding under the Revolving Loan
shall be due and payable in full on the earlier of (A) the date that the Revolving
Loan is due and payable in full pursuant to the terms of this Agreement, whether by
acceleration or otherwise, or (B) the Termination Date.
(iii) The net proceeds of the Revolving Loan shall be used solely (A) to assure
that all state licensing requirements of FCMC are met, and (B) to pay Approved
Expenses of Holding.
(b) Draw Loan Advances. Each Lender will extend a draw credit facility (the
“Draw Loan”) to Borrowers, subject to the terms and conditions hereof, the principal
sum outstanding under which at any time shall not exceed such Lender’s Draw Loan Commitment.
(i) Interest shall accrue on the unpaid balance of the Draw Loan at an interest
rate per annum equal to LIBOR plus the Applicable Draw Loan Margin. All interest
accruing on the Draw Loan shall be due and payable on each Payment Date.
(ii) The principal sum and all obligations outstanding under the Draw Loan
shall be due and payable in full on the earlier of (A) the date that the Draw Loan
is due and payable in full pursuant to the terms of this Agreement, whether by
acceleration or otherwise, or (B) the Termination Date.
(iii) The proceeds of the Draw Loan may be advanced in partial amounts at any
time prior to ten (10) calendar days before the Termination Date; provided,
however, that no Draw Loan Advances repaid shall be readvanced.
(iv) The net proceeds of the Draw Loan shall be used solely to provide for
working capital needs of FCMC.
Section 2.02 Notes.
(a) Each Lender’s Revolving Loan Advance shall be evidenced by an amended and restated
promissory note of Borrowers, substantially in the form of Exhibit
A-1, and each Lender’s Draw Loan Advance shall be evidenced by a promissory
note of Borrowers, substantially in the form of Exhibit A-2, in each case dated as
of the Effective Date and payable to such Lender or its registered assigns in a principal
amount equal to such Lender’s Pro Rata Share of the Revolving Loan Commitment or the Draw
Loan Commitment, as applicable.
19
(b) The date, amount, and Interest Rate applicable from time to time in respect of each
Advance made by a Lender, and each payment made on account of the principal thereof or
interest thereon, shall be recorded by such Lender on its books and records and, prior to
any transfer of the applicable Note, noted by such Lender on the grid attached to such Note
or any continuation thereof. Any such recordation or notation shall be conclusive and
binding on each Borrower, absent manifest error; provided, that the failure of such
Lender to make any such recordation or notation shall not affect the obligations of any
Borrower to make payment when due of any amount owing hereunder or under such Note in
respect of the applicable Advance; and, provided further, that in the event of any
inconsistency between the Register and any Lender’s books and records, the recordation in
the Register shall govern.
Section 2.03 Inability to Determine Rates; Illegality.
Anything contained herein to the contrary notwithstanding, if, prior to or upon any
determination of LIBOR, for any applicable Interest Period:
(a) the Administrative Agent or the Required Lenders determine in good faith, which
determination shall be conclusive and binding upon each Borrower, that quotations of
interest rates for the relevant deposits referred to in the definition of “LIBOR” are not
being provided in the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for LIBOR Advances as provided herein; or
(b) the Administrative Agent or the Required Lenders determine in good faith, which
determination shall be conclusive and binding upon each Borrower, that LIBOR is not likely
to adequately cover the cost to such Lenders of making or maintaining the relevant LIBOR
Advances; or
(c) any Lender (for purposes of this Section 2.03, an “Affected Lender”)
notifies the Administrative Agent that it has become unlawful for such Lender to honor its
obligations to make or maintain LIBOR Advances hereunder;
then the Administrative Agent shall give Borrowers prompt notice thereof and, so long as such
condition remains in effect, all Advances of the Lenders or such Affected Lender, as the case may
be, shall bear interest at a rate per annum equal to the Prime Commercial Rate plus six
percent (6%).
Section 2.04 Payments of Interest on the Advances; Waterfall.
(a) Interest on the Advances. Borrowers shall pay to the Administrative Agent for the
benefit of the Lenders interest on the aggregate outstanding principal amount of the Advances for
the period from and including the respective dates of such Advances to but excluding the respective
dates such Advances are paid in full, in each case at a rate per annum equal to the applicable
Interest Rate. Notwithstanding the foregoing,
Borrowers shall pay to the Administrative Agent for the benefit of the Lenders
interest at the applicable Post-Default Rate (i) on the outstanding principal amount of any
Advances during any period when any Event of Default has occurred and is continuing
20
and
(ii) on any interest or amount (other than principal of any Advance) payable by Borrowers
hereunder or under the Note that shall not be paid in full when due, for the period from
and including the due date thereof to but excluding the date the same is paid in full.
Accrued and unpaid interest on each Advance shall be payable monthly on each Payment Date
and on the Termination Date, except that interest payable at the applicable Post-Default
Rate shall accrue daily and shall be payable promptly upon demand.
(b) Payment Date Reports. No later than two (2) Business Days prior to each
Payment Date, the Administrative Agent shall provide to each Borrower a report stating (i)
the amount of interest due for the current Interest Period pursuant to Section 2.04(a), and
(ii) if such Payment Date occurs on a Termination Date, the outstanding aggregate principal
amount of the Advances; provided that the failure of the Administrative Agent to
make any such report shall not affect the obligations of any Borrower to make payment when
due of any amount owing hereunder or under any Note in respect of the related Advances.
(c) Distributions on Payment Dates. Without in any way limiting the
obligations of each Borrower to make the payments of interest that are required to be made
in respect of the Advances pursuant to Section 2.04(a) (with respect to any Payment Date,
the “Required Payments”), each Borrower hereby authorizes and directs the
Administrative Agent, on each Payment Date, to apply all Collections received from and
after the immediately preceding Payment Date to but excluding such Payment Date (the
aggregate amount of such Collections, after deducting any Reserves, shall be referred to as
the “Applicable Collections Amount” in respect of such Payment Date) in the
following order of priority:
first, to pay any costs, expenses, fees, charges, or indemnities due the
Administrative Agent under the terms of this Agreement or any Loan Document;
second, to pay any costs, expenses, fees, charges, or indemnities due any
Lender under the terms of this Agreement or any Loan Document;
third, to pay any Letter of Credit Facing Fee, Letter of Credit Fee, or
other fees due in respect of any Letter of Credit;
fourth, to the payment of interest on the Advances;
fifth, on a pro rata basis to repay any Letter of Credit Exposure,
any Revolving Loan Advances, and any Draw Loan Advances to any Lender in full;
sixth, to any obligations secured by any Collateral then remaining; and
seventh, to FCMC for the benefit of the Borrowers.
Section 2.05 Mandatory Prepayments. Within five (5) Business Days after the
occurrence of any Mandatory Prepayment Event, Borrowers shall prepay the Advances in an aggregate
amount equal to the Net Proceeds of such Mandatory Prepayment Event.
21
Section 2.06 Breakage. If any Borrower makes any prepayment of the Advances on a day
that is not a Payment Date, Borrowers shall indemnify each Lender and hold each Lender harmless
from and against any actual loss or expense that such Lender may sustain or incur arising from (i)
the re-employment of funds obtained by such Lenders to maintain the portion of such Lender’s
Advances so prepaid or (ii) fees payable to terminate the arrangements from which such funds were
obtained, in either case which actual loss or expense shall be equal to the excess, as determined
by the such Lender, of (x) its cost of obtaining funds for such portion of such Lender’s Advances
for the period from the date of such prepayment through the following Payment Date over (ii) the
amount of interest likely to be realized by such Lender in redeploying the funds not utilized by
reason of such prepayment for such period. This Section 2.06 shall survive termination of this
Agreement and payment in full of any Note.
Section 2.07 Requirements of Law.
(a) If any Requirement of Law or any change in the interpretation or application
thereof, or compliance by the Administrative Agent or any Lender with any request or
directive (whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) | shall subject the Administrative Agent or any Lender to any tax of any kind whatsoever with respect to this Agreement, such Lender’s Note(s) or any Advance(s) made by it (excluding net income taxes), or change the basis of taxation of payments to the Administrative Agent or any Lender in respect thereof; | ||
(ii) | shall impose, modify, or hold applicable any reserve, special deposit, compulsory advance, or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or other extensions of credit by, or any other acquisition of funds by any office of such Lender; or | ||
(iii) | shall impose on the Administrative Agent or any Lender any other condition; |
and the result of any of the foregoing is to increase the cost to the Administrative Agent
or such Lender, by an amount which the Administrative Agent or such Lender deems to be
material, of making, continuing, or maintaining any Advance or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, Borrowers shall promptly
pay the Administrative Agent or such Lender such additional amount or amounts as will
compensate the Administrative Agent or such Lender for such increased cost or reduced amount
receivable thereafter incurred.
(b) If any Lender shall have determined that the adoption, effectiveness, phase-in, or
applicability of, or any change in, any Requirement of Law regarding capital adequacy or in
the interpretation or application thereof, or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) from any Governmental Authority
22
made subsequent to the date
hereof shall have the effect of reducing the rate of return on that Lender’s or such
corporation’s capital as a consequence of its obligations hereunder to a level below that
which that Lender or such corporation (taking into consideration that Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by that Lender
to be material, then from time to time, Borrowers shall promptly pay to that Lender such
additional amount or amounts as will thereafter compensate that Lender for such reduction.
(c) If the Administrative Agent or any Lender becomes entitled to claim any additional
amounts pursuant to this Section 2.07, it shall promptly notify Borrowers of the event by
reason of which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this Section 2.07 submitted by the Administrative Agent or a Lender to
any Borrower shall be conclusive and binding on Borrowers in the absence of manifest error.
(d) Failure or delay on the part of the Administrative Agent or any Lender to demand
compensation pursuant to this Section 2.07 shall not constitute a waiver of the
Administrative Agent’s or such Lender’s right to demand such compensation.
Section 2.08 Purpose of Advances. Letters of Credit and Revolving Loan Advances shall
be used solely (i) to assure that all state licensing requirements of FCMC are met, and (ii) to pay
approved expenses to Holding. Draw Loan Advances shall be used solely to provide for working
capital of FCMC.
Section 2.09 Facility Fee. Borrowers agree, jointly and severally, to pay the
Facility Fee to the Administrative Agent on the Effective Date, for the account of each applicable
Lender according to its Pro Rata Share.
Section 2.10 Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this Agreement
and any applicable Application and Agreement for Letter of Credit, on any Business Day at
least thirty (30) Business Days prior to the Termination Date and upon Borrower’s written
request to the Administrative Agent and the Issuing Bank, the Issuing Bank may issue such
Letters of Credit in such face amounts as requested; provided that: (i) on the date
of issuance of any Letter of Credit and after giving effect to the issuance thereof, the
Letter of Credit Exposure will not exceed the amount of such Letter of Credit Exposure
stated in the definition of Letter of Credit Commitment; (ii) the expiry date of any Letter
of Credit shall not be later than the date which is thirty (30) days prior to the
Termination Date; provided, however, that the Issuing Bank may permit, in
its sole discretion any Letter of Credit to remain outstanding after the Termination Date
if one or more Loan Parties shall deposit prior to the date that is ten (10) Business Days
prior to the Termination Date into an account with the Issuing Bank, in the name and for
the benefit of the Issuing Bank, an amount in cash equal to one hundred five percent (105%)
of the face amount of each such Letter of Credit as of such date, (iii) Borrower has
provided the information necessary for the Issuing Bank to complete the form of Letter of
Credit, and (iv) the issuance of such Letter of Credit would not violate any policy of the
Issuing
23
Bank. On and after the Effective Date, the Letters of Credit issued by the Issuing
Bank for the account of any Borrower prior to the date of this Agreement and set forth on
Schedule 2.10 hereto shall be subject to the terms of this Agreement and deemed
issued pursuant to the terms hereof. Any deposit held by the Issuing Bank as collateral
for the payment and performance of the obligations of any Borrower under the outstanding
Letters of Credit shall be under the Administrative Agent’s exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at the option
and sole discretion of the Administrative Agent, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank
for letter of credit disbursements for which it has not been reimbursed and, to the extent
not so applied, shall be held for the satisfaction of the reimbursement obligations or any
other Obligations of the Loan Parties at such time.
(b) Reimbursement Obligations; Payment of Letter of Credit. Each Borrower
agrees unconditionally, irrevocably and absolutely to pay immediately to the Issuing Bank
the amount of each advance drawn under or pursuant to a Letter of Credit or any draft
related thereto (such obligation of each Borrower to reimburse the Issuing Bank for an
advance made under a Letter of Credit or a related draft being hereinafter referred to as a
“L/C Reimbursement Obligation”), each such reimbursement to be made by Loan Parties
no later than the Business Day on which the Issuing Bank makes payment of each such draft.
If the Loan Parties at any time fail to repay an L/C Reimbursement Obligation, the Loan
Parties shall be deemed to have elected to borrow pursuant to the Revolving Loan, as of the
date of the advance giving rise to the L/C Reimbursement Obligation in the amount of the
unpaid L/C Reimbursement Obligation. Such borrowing shall be made as of the date of the
payment giving rise to such L/C Reimbursement Obligation, automatically, without notice and
without any requirement to satisfy the
conditions precedent otherwise applicable to an advance under the Revolving Loan. If,
for any reason, the Loan Parties fail to repay an L/C Reimbursement Obligation on the day
such L/C Reimbursement Obligation arises, and, for any reason, the Administrative Agent is
unable to make or has no obligation to make an advance under the Revolving Loan, then such
L/C Reimbursement Obligation shall bear interest from and after such day, until paid in
full, at the interest rate applicable to a LIBOR Advance. Without limiting the foregoing in
any way, in consideration for the issuance by the Issuing Bank of the Letters of Credit,
each Borrower hereby authorizes, empowers, and directs the Administrative Agent to disburse
directly to the Issuing Bank from any Reserve Account, any other account maintain or
controlled by the Administrative Agent, or any other source, an amount equal to the stated
amount of each draft drawn under each Letter of Credit, plus all interest, costs, expenses
and fees due to the Issuing Bank pursuant to this Agreement or any other Loan Document.
(c) Acceleration of Undrawn Amounts. Should the Administrative Agent or any
Lender demand payment of the Obligations hereunder during the existence of an Event of
Default prior to the Termination Date, the Issuing Bank, by written notice to Borrower, may
take one or more of the following actions: (i) declare any obligation of the Issuing Bank
to issue Letters of Credit hereunder terminated, whereupon any such
24
obligations shall
forthwith terminate without any other notice of any kind; or (ii) declare the outstanding
Letter of Credit Exposure to be forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby waived, and demand that
the Loan Parties pay to the Issuing Bank for deposit in a segregated non interest-bearing
cash collateral account, as security for the Obligations, an amount equal to the Letters of
Credit Exposure then outstanding at the time such notice is given. Unless otherwise
required by law, upon the full and final payment of the Obligations, the Issuing Bank shall
return to Borrower any amounts remaining in said cash collateral account.
(d) Risk Participation. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank, the Issuing Bank shall be deemed to have granted to
each Lender with a Letter of Credit Commitment, and each Lender with a Letter of Credit
Commitment shall be deemed to have purchased, a participation in each Letter of Credit, in
an amount equal to its Pro Rata Share of the Risk Participation Liability of such Letter of
Credit, and each such Lender agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender’s Pro Rata Share of any payments made by the Issuing Bank
under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender with a Letter of Credit Commitment hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Pro
Rata Share of such payment made by the Issuing Bank and not reimbursed by Borrower on the
date due as provided in this Section 2.09(d), or of any reimbursement payment required to
be refunded to Borrower for any reason. Each Lender with a Letter of Credit Commitment
acknowledges and agrees that its obligation to deliver to the Administrative Agent, for the
account of the Issuing Bank, an amount equal to its respective Pro Rata Share pursuant to
this Section 2.09(d) shall be absolute and unconditional and such remittance shall be made
notwithstanding the occurrence or
continuation of an Event of Default or Default or the failure to satisfy any condition
set forth in Article 5 hereof. If any such Lender fails to make available to the
Administrative Agent the amount of such Lender’s Pro Rata Share of any payments made by the
Issuing Bank in respect of such Letter of Credit as provided in this Section 2.09(d), the
Administrative Agent (for the account of the Issuing Bank) shall be entitled to recover
such amount on demand from such Lender together with interest thereon at the Defaulting
Lender Rate until paid in full.
(e) Letter of Credit Fees. Borrower shall pay to the Issuing Bank: (a) a
non-refundable fee equal to fifty percent (50%) of the Applicable Margin, multiplied by the
daily face amount of each Letter of Credit outstanding, less the amount of any draws on
such Letter of Credit, payable in monthly installments in arrears, commencing on the
issuance date and continuing for so long as such Letter of Credit remains outstanding; and
(b) for the benefit of the Issuing Bank (i) the Letter of Credit Facing Fee, and (ii) the
Issuing Bank’s standard charges for issuing letters of credit and for any amendments
thereto, payable upon demand by the Issuing Bank.
Section 2.11 Joint and Several Liability.
25
(a) Each Borrower is accepting joint and several liability hereunder and under the
other Loan Documents in consideration of the financial accommodations to be provided by the
Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each
Borrower and in consideration of the undertakings of each other Borrower to accept joint
and several liability for the Obligations.
(b) Each Borrower, jointly and severally, hereby irrevocably and unconditionally
accepts, as a surety and as a co-debtor, joint and several liability with each other
Borrower, with respect to the payment and performance of all of the Obligations (including,
without limitation, any Obligations arising under this Section 2.11), it being the
intention of the parties hereto that all the Obligations shall be the joint and several
Obligations of each Borrower without preferences or distinction among them.
(c) If and to the extent that any Borrower shall fail to make any payment with respect
to any Obligation as and when due or to perform any Obligation in accordance with the terms
thereof, then, in each such event, the other Borrowers will make such payment with respect
to, or perform, such Obligation, as applicable.
(d) The Obligations of each Borrower under the provisions of this Section 2.11
constitute the absolute and unconditional, full recourse Obligations of each Borrower
enforceable against each such Borrower to the full extent of its properties and assets,
irrespective of the validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.
(e) Except as otherwise expressly provided in this Agreement, each Borrower hereby
waives notice of acceptance of its joint and several liability, notice of any
Advances issued under or pursuant to this Agreement, notice of the occurrence of any
Default, Event of Default, or of any demand for any payment under this Agreement, notice of
any action at any time taken or omitted by the Administrative Agent or any Lender under or
in respect of any Obligation, any requirement of diligence or to mitigate damages and,
generally, to the extent permitted by applicable law, all demands, notices and other
formalities of every kind in connection with this Agreement (except as otherwise provided
in this Agreement). Each Borrower hereby assents to, and waives notice of, any extension
or postponement of the time for the payment of any Obligation, the acceptance of any
payment of any Obligation, the acceptance of any partial payment thereon, any waiver,
consent or other action or acquiescence by the Administrative Agent or any Lender at any
time or times in respect of any Default by any Borrower in the performance or satisfaction
of any term, covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Administrative Agent or any Lender in respect of any
Obligation, and the taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any Obligation or the addition, substitution or release,
in whole or in part, of any Borrower. Without limiting the generality of the foregoing,
each Borrower assents to any other action or delay in acting or failure to act on the part
of the Administrative Agent or any Lender with respect to the failure by any Borrower to
comply with any of its respective Obligations, including, without limitation, any failure
strictly or diligently to assert any right or to
26
pursue any remedy or to comply fully with
applicable laws or regulations thereunder, which might, but for the provisions of this
Section 2.11 afford grounds for terminating, discharging or relieving any Borrower, in
whole or in part, from any of its Obligations under this Section 2.11, it being the
intention of each Borrower that, so long as any of the Obligations hereunder remain
unsatisfied, the Obligations of such Borrower under this Section 2.11 shall not be
discharged except by performance and then only to the extent of such performance. The
Obligations of each Borrower under this Section 2.11 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction
or similar proceeding with respect to any Borrower. The joint and several liability of
Borrowers hereunder shall continue in full force and effect notwithstanding any absorption,
merger, amalgamation or any other change whatsoever in the name, constitution or place of
formation of the other Borrowers, the Administrative Agent or any Lender.
(f) Each Borrower represents and warrants to the Administrative Agent and the Lenders
that such Borrower is currently informed of the financial condition of each other Borrower
and of all other circumstances which a diligent inquiry would reveal and which bear upon
the risk of nonpayment of the Obligations. Each Borrower hereby covenants that such
Borrower will continue to keep informed of each other Borrower’s financial condition, the
financial condition of any Guarantors, if any, and of all other circumstances which bear
upon the risk of nonpayment or nonperformance of the Obligations.
(g) The provisions of this Section 2.11 are made for the benefit of the Administrative
Agent and the Lenders and their respective successors and assigns, and may be enforced by
any of them from time to time against any or all Borrowers as often as occasion therefor
may arise and without requirement on the part of the Administrative
Agent or any Lender, or any or their respective successors or assigns first to marshal
any claims or to exercise any rights against any other Borrower or to exhaust any remedies
available against any other Borrower or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy. The provisions
of this Section 2.11 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment, or any part
thereof, made in respect of any of the Obligations, is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon any insolvency
proceeding of any Borrower, or otherwise, the provisions of this Section 2.11 will
forthwith be reinstated in effect, as though such payment had not been made.
(h) Each Borrower hereby agrees that it will not enforce any of its rights of
contribution or subrogation against any other Borrower with respect to any liability
incurred by it hereunder or under any of the other Loan Documents, any payments made by it
to the Administrative Agent or any Lender with respect to any of the Obligations or any
collateral security therefor until such time as all of the Obligations have been paid in
full in cash. Any claim which any Borrower may have against any other Borrower with
respect to any payments to the Administrative Agent or any Lender hereunder or under any
other Loan Documents are hereby expressly made subordinate and junior in right of payment,
without limitation as to any increases in the Obligations arising hereunder or
27
thereunder,
to the prior payment in full of the Obligations and, in the event of any insolvency
proceeding relating to any Borrower, its debts or its assets, whether voluntary or
involuntary, all such Obligations shall be paid in full in cash before any payment or
distribution of any character, whether in cash, securities or other property, shall be made
to any other Borrower therefor.
(i) Each Borrower hereby agrees that, after the occurrence and during the continuance
of any Default or Event of Default, the payment of any amounts due with respect to the
Indebtedness owing by any Borrower to any other Borrower is hereby subordinated to the
prior payment in full in cash of the Obligations. Each Borrower hereby agrees that after
the occurrence and during the continuance of any Default or Event of Default, such Borrower
will not demand, xxx for or otherwise attempt to collect any Indebtedness of any other
Borrower owing to such Borrower until the Obligations shall have been paid in full in cash.
If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or
receive any amounts in respect of such Indebtedness, such amounts shall be collected,
enforced and received by such Borrower as trustee for the Administrative Agent and the
Lenders.
Section 2.12 Disbursements from Reserve Account. Upon the request of Borrowers for a
disbursement from the Reserve Account, the Administrative Agent, in its sole discretion, may
disburse any such amount to any Disbursement Account.
Article III. Blocked Accounts, Computations; Taxes.
Section 3.01 Payments.
(a) On or before the Effective Date, Borrowers shall establish one or more blocked
accounts at Huntington, including without limitation the Reserve Account (“Blocked
Accounts”), and thereafter Borrowers shall (i) request in writing and otherwise take
such reasonable steps to ensure proceeds of Collateral and other payments due any Borrower
are forwarded directly to the Blocked Accounts, (ii) irrevocably instruct the bank which
maintains each Blocked account to transfer to the Collection Account, on each Business Day,
cleared funds in respect of all cash, checks, drafts, or other similar items of payment so
received in any Blocked Account and (iii) deposit promptly, and in any event no later than
the first Business Day after the date of receipt thereof, any cash, checks, drafts, or
other similar items of payment relating to or constituting payments made in respect of any
and all Collateral that are received directly by any Borrower (notwithstanding the
requirements of clause (i) above) into the Collection Account.
(b) Borrowers may maintain at Huntington or other bank reasonably acceptable to the
Administrative Agent, in the name of Borrowers, one or more accounts, including without
limitation, account number 01580177302, subject to a Control Agreement (a “Disbursement
Account”), into which the Administrative Agent shall, from time to time, deposit the
proceeds of Collections or Reserves, as applicable, for the payment of any Approved
Expenses and any other expenses approved by the Administrative Agent to be
28
paid from the
Reserves.
(c) On or before the Effective Date (or such later date as the Administrative Agent
shall consent to in writing with respect to any deposit account entered into after the
Effective Date), Borrowers shall cause any bank where a Disbursement Account is maintained
to enter into a Control Agreement with the Administrative Agent, for the benefit of the
Secured Parties and each Borrower, in form and substance acceptable to the Administrative
Agent, which shall become operative on or prior to the Effective Date (or such later date
as the Administrative Agent shall consent to in writing). No Borrower shall accumulate or
maintain cash in any Disbursement Account as of any date of determination in excess of
checks outstanding against such accounts as of that date and amounts necessary to pay
Approved Expenses.
(d) Each Blocked Account and Disbursement Account shall be controlled accounts, with
all cash, checks, and other similar items of payment in such accounts securing payment of
the Advances and all other Obligations, and in which Borrowers shall have granted a Lien to
the Administrative Agent, on behalf of the Secured Parties, pursuant to the Security
Agreement.
(e) All amounts deposited in the Collection Account shall be deemed received by the
Administrative Agent in accordance with Section 2.04 and shall be applied (and allocated)
by the Administrative Agent in accordance with Section 2.04. In no event shall any amount
be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account. Each Borrower hereby
acknowledges that it has no rights of withdrawal from the Collection Account or any Blocked
Account established for Reserves.
(f) Each Borrower shall (i) hold in trust for the Administrative Agent, for the
benefit of the Secured Parties, all checks, cash, and other items of payment received by
such Borrower or Related Party for the account of any Borrower, and (ii) within one
Business Day after receipt by such Borrower or any Related Party of any checks, cash, or
other items of payment, deposit the same into the Collection Account or a Blocked Account
of such Borrower, as applicable. All proceeds of the sale or other disposition of any
Collateral shall be deposited directly into the applicable Blocked Accounts.
Section 3.02 Computations. Interest on the Advances and fees and other charges
expressed as a percentage shall be computed on the basis of a 360-day year for the actual days
elapsed (including the first day but excluding the last day) occurring in the period for which
payable.
Section 3.03 U.S. Taxes.
(a) Each Borrower hereby agrees to pay to the Administrative Agent or any Lender such
additional amount as is necessary in order that the net payment of any amount due to the
Administrative Agent or that Lender hereunder after deduction for or withholding in respect
of any U.S. Tax imposed with respect to such payment (or in lieu thereof, payment of such
U.S. Tax by the Secured Parties), will not be less than the
29
amount stated herein to be then
due and payable; provided that the foregoing obligation to pay such additional
amounts shall not apply:
(i) | to any payment to any Secured Party hereunder unless that Secured Party is entitled to submit a Form W-8BEN (relating to that Secured Party and entitling it to a complete exemption from withholding on all interest to be received by it hereunder in respect of the Advances) or Form W-8ECI (relating to all interest to be received by that Secured Party hereunder in respect of the Advances), or | ||
(ii) | to any U.S. Tax imposed solely by reason of the failure by that Secured Party to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of Secured Party if such compliance is required by statute or regulation of the United States of America as a precondition to relief or exemption from such U.S. Tax. |
For the purposes of this Section 3.03(a), (w) “Form W-8BEN” shall mean Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding) of the
Department of the Treasury of the United States of America, (x) “Form W-8ECI” shall
mean Form W-8ECI (Certificate of Exemption from Withholding
on Income Effectively Connected with the Conduct of a Trade or Business in the United
States) of the Department of the Treasury of the United States of America (or in relation to
either such Form such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim to which
such Form relates), and (y) “U.S. Taxes” shall mean any present or future tax,
assessment or other charge or levy imposed by or on behalf of the United States of America
or any taxing authority thereof or therein.
(b) Within thirty (30) days after paying any such amount to a Secured Party, and
within thirty (30) days after it is required by law to remit such deduction or withholding
to any relevant taxing or other authority, each Borrower shall deliver to that Secured
Party evidence satisfactory to that Secured Party of such deduction, withholding or payment
(as the case may be).
(c) Each Secured Party, on its behalf, represents and warrants to Borrowers that, on
the date of this Agreement, such Secured Party is either incorporated under the laws of the
United States or a State thereof or is entitled to submit a Form W-8BEN (relating to that
Secured Party and entitling it to a complete exemption from withholding on all interest to
be received by it hereunder in respect of the Advances) or Form W-8ECI (relating to all
interest to be received by that Secured Party under this Agreement in respect of the
Advances).
Article IV. Certain Matters Relating to Collateral.
Section 4.01 Collections. Each Borrower shall remit (or cause to be remitted) all
Collections to the Administrative Agent, in the manner contemplated by Section 3.01(a), for
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application as provided in Sections 2.04 and 9.01(d) as applicable. Notwithstanding the foregoing,
if an Event of Default shall occur and be continuing, (a) all proceeds of Collateral received by
any Borrower consisting of cash, checks, and other non-cash items shall be held by such Borrower in
trust for the Administrative Agent, segregated from other funds of such Borrower, and shall
forthwith upon receipt by such Borrower be turned over to the Administrative Agent in the exact
form received by such Borrower (duly endorsed by such Borrower to the Administrative Agent, if
required) and (b) any and all such proceeds received by the Administrative Agent will be applied by
the Administrative Agent against the Obligations (whether matured or unmatured), such application
to be in the order of priority specified in Section 9.01(d). Any balance of such proceeds
remaining after the Obligations shall have been paid in full and this Agreement shall have been
terminated shall be promptly paid over to such Borrower. For purposes hereof, proceeds shall
include, but not be limited to, all principal and interest payments, prepayments, payoffs,
insurance claims, condemnation awards, sale proceeds, real estate owned rents, any other income,
and all other amounts received with respect to the Collateral.
Article V. Conditions Precedent.
Section 5.01 Closing and Initial Advances.
The obligations of the Lenders to make the Advances are subject to the satisfaction,
immediately prior to or concurrently with the making of such Advances, of the following conditions
precedent:
(a) | [Reserved.] | ||
(b) | Credit Agreement. The Administrative Agent and each Lender shall have received this Agreement, executed and delivered by a duly authorized officer of each Borrower. | ||
(c) | Loan Documents. The Administrative Agent and the Lenders as applicable shall have received the following documents, each of which shall be satisfactory to the Administrative Agent in form and substance: |
1) | Notes. The Notes, duly completed, executed, and delivered; | ||
2) | Guarantee. Guarantee from Xx. Xxxxxx X. Xxxx; | ||
3) | Security Agreement. The Security Agreement, duly executed and delivered by each Borrower; | ||
4) | Cash Management Agreements. Each agreement governing a Blocked Account, a Collection Account, and the Disbursement Accounts, duly executed and delivered by each Borrower and the applicable depository bank; | ||
5) | Control Agreements. A deposit account control agreement for each Disbursement Account, the Collection Account, and the Blocked Account established for Reserves; |
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6) | Other Documents. The other documents as the Administrative Agent shall reasonably require. |
(d) | Organizational Documents. The Administrative Agent shall have received, in form and substance satisfactory to the Lenders, a good standing certificate, certified copies of the charter and by-laws (or equivalent documents) and an incumbency certificate of each Borrower and evidence of all corporate or other authority for each Borrower with respect to the execution, delivery, and performance of the Loan Documents and each other document to be delivered by such Borrower, as applicable, from time to time in connection herewith (and the Administrative Agent may conclusively rely on such certificates until it receives notice in writing from each Borrower, as applicable, to the contrary). | ||
(e) | Legal Opinion. The Administrative Agent shall have received one or more legal opinions of counsel to Borrowers and Guarantors, in the form acceptable to the Administrative Agent and the Lenders, containing customary legal opinions for a secured loan facility. | ||
(f) | No Material Adverse Effect. There shall not have occurred one or more events that, in the good faith judgment of the Administrative Agent or the Required Lenders, constitutes or could reasonably be expected to constitute a Material Adverse Effect. | ||
(g) | No Litigation. There shall exist no action, suit, investigation, litigation, or proceeding, pending or threatened, in any court or before any arbitrator or governmental instrumentality that, if adversely determined, could reasonably be expected to have a Material Adverse Effect. | ||
(h) | Filings, Registrations, Recordings. (i) Any documents (including, without limitation, financing statements) required to be filed, registered or recorded in order to create, in favor of the Administrative Agent for the benefit of the Secured Parties, a perfected, first-priority security interest in the Collateral, subject to no Liens other than those created hereunder, shall have been properly prepared and (if necessary) executed for filing (including any applicable county-level filings if the Administrative Agent determines such filings are necessary in its reasonable discretion), registration or recording in each office in each jurisdiction in which such filings, registrations and recordations are required to perfect such first-priority security interest and any assignments necessary for perfecting security interests in the Collateral; and (ii) UCC lien searches in such jurisdictions as shall be applicable to each Borrower and the Collateral, the results of which shall be satisfactory to the Administrative Agent. |
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(i) | Liens. The Administrative Agent shall have a valid and perfected first priority lien on, and security interest in, (i) the Collateral and (ii) the Guarantor Collateral. | ||
(j) | Fees and Expenses. The Administrative Agent shall have received all fees and expenses required to be paid by Borrowers on or prior to the Effective Date pursuant to Section 10.03(b). | ||
(k) | Consents, Licenses, Approvals, etc. The Administrative Agent shall have received copies, certified by each Borrower, of all consents, licenses, and approvals, if any, required in connection with the execution, delivery, and performance by each Borrower of, and the validity and enforceability against each Borrower of, the Loan Documents to which each Borrower is a party, which consents, licenses, and approvals shall be in full force and effect. | ||
(l) | Insurance. The Administrative Agent shall have received evidence in form and substance satisfactory to the Administrative Agent showing compliance by FCMC with this Agreement. | ||
(m) | Legacy Loans. The Legacy Loans Credit Agreement shall have been fully consummated, satisfactory in form to the Administrative Agent and Lenders. | ||
(n) | Accounts. The Administrative Agent shall have received evidence of the establishment of each Blocked Account and the Collection Account. | ||
(o) | Officer’s Certificates. The Administrative Agent shall have received a duly executed copy of an officer’s certificate of each Borrower. | ||
(p) | Entry of FCMC and New Trust into Servicing Agreement, satisfactory to the Administrative Agent and the Lenders. | ||
(q) | Closing of all Transactions contemplated by the Transaction Documents and closing of the Legacy Loans Credit Agreement. | ||
(r) | Other Documents. The Administrative Agent shall have received such other documents as the Administrative Agent or its counsel may reasonably require. |
Section 5.02 Advances. The making of any Advance is subject to the following further
conditions precedent, both immediately prior to the making of such Advance and also after giving
effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be continuing;
(b) the representations and warranties made by each Borrower in Article 6
hereof, and in each of the other Loan Documents, shall be true and correct on and as of
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the
date of the making of such Advance with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date). At the request of the Administrative
Agent, the Administrative Agent shall have received officer’s certificates signed by
Responsible Officers of each Borrower certifying as to the truth and accuracy of the
foregoing, which certificates shall specifically include a statement that Borrowers are in
compliance with all governmental licenses and authorizations and is qualified to do
business and in good standing in all required jurisdictions;
(c) the Administrative Agent shall have received the tax identification number of each
Borrower;
(d) all corporate and other proceedings, and all documents, instruments, and other
legal matters in connection with the financing transactions contemplated by this Agreement
and the other Loan Documents shall be satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received such other documents
and legal opinions in respect of any aspect or consequence of the financing transactions
contemplated hereby or thereby as it shall request;
(e) there shall not have occurred one or more events that, in the good faith judgment
of the Administrative Agent or the Required Lenders, constitutes or could reasonably be
expected to constitute a Material Adverse Effect;
(f) all fees and expenses due and payable to the Administrative Agent and the Lenders
pursuant to this Agreement and each Loan Document shall have been paid in full; and
(g) the Administrative Agent shall have received such other documents as the
Administrative Agent or its counsel may reasonably request.
Article VI. Representations and Warranties. Each Borrower hereby represents and
warrants to Secured Parties that, as of the Effective Date, as of the date of each Advance
hereunder, and throughout the term of this Agreement:
Section 6.01 Existence. Each Borrower (a) is a corporation or limited liability
company duly formed, validly existing, and in good standing under the laws of the jurisdiction of
its formation, (b) has all requisite power, and has all governmental licenses, authorizations,
consents, and approvals, necessary to own its assets and carry on its business as now being
conducted, except where the lack of such licenses, authorizations, consents and approvals would not
be reasonably likely to have a Material Adverse Effect; and (c) is qualified to do business and is
in good standing in all other jurisdictions in which the nature of the business conducted by it
makes such qualification necessary, except where failure so to qualify would not be reasonably
likely (either individually or in the aggregate) to have a Material Adverse Effect and (d) is in
compliance in all material respects with all Requirements of Law.
Section 6.02 Litigation. There are no actions, suits, arbitrations, investigations or
proceedings pending or, to its knowledge, threatened against any Borrower or any of their
respective Subsidiaries or affecting any of the property thereof before any Governmental
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Authority,
(i) as to which individually or in the aggregate there is a reasonable likelihood of an adverse
decision which would be reasonably likely to have a Material Adverse Effect or (ii) which questions
the validity or enforceability of any of the Loan Documents.
Section 6.03 No Breach.
Neither (a) the execution and delivery of the Loan Documents or (b) the consummation of the
financing transactions therein contemplated in compliance with the terms and provisions thereof
will conflict with or result in a breach of the charter, by-laws, limited liability company
agreement (written or oral), certificate of formation (or equivalent documents or oral agreements)
of any Borrower, or any applicable law, rule or regulation, or any order, writ, injunction or
decree of any Governmental Authority or other agreement or instrument to which Borrower or any of
their respective Subsidiaries, is a party or by which any of them or any of their property is bound
or to which any of them is subject, or constitute a default under any such agreement or instrument,
or (except for the Liens created pursuant to this Agreement) result in the creation or imposition
of any Lien upon any property of any Borrower or any of their respective Subsidiaries pursuant to
the terms of any such agreement or instrument.
Section 6.04 Action. Each Borrower has all necessary power, authority and legal right
to execute, deliver and perform its obligations under each of the Loan Documents to which it is a
party; the execution, delivery, and performance by each Borrower of each of the Loan Documents to
which it is a party have been duly authorized by all necessary action on its part; and each Loan
Document has been duly and validly executed and delivered by each Borrower and constitutes a legal,
valid, and binding obligation of each Borrower, enforceable against each Borrower in accordance
with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors’ rights generally or by equitable principles
relating to enforceability.
Section 6.05 Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any Governmental Authority, or any other Person, are necessary for the
execution, delivery, or performance by any Borrower of the Loan Documents to which it is a party or
for the legality, validity or enforceability thereof, except for filings and recordings in respect
of the Liens created pursuant to any Loan Document.
Section 6.06 Taxes. Each Borrower has filed all Federal income tax returns and all
other tax returns that are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by any of them, except for any such taxes, if
any, that are being appropriately contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves have been provided. The charges, accruals,
and reserves on the books of each Borrower in respect of taxes and other governmental charges are,
in the opinion of each Borrower, adequate.
Section 6.07 Investment Company Act.
No Borrower is an “investment company” within the meaning of the Investment Company Act of
1940, as amended (the “Investment Company Act”). No Borrower is subject to any Federal or
state statute or regulation that limits its ability to incur Indebtedness.
35
Section 6.08 No Legal Bar. The execution, delivery, and performance of this Agreement
and the Notes, the borrowings hereunder, and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of any Borrower and will not result in, or require,
the creation or imposition of any Lien (other than the Liens created under any Loan Document) on
any of its or their respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
Section 6.09 No Default. No Borrower is in default under or with respect to any of
its respective Contractual Obligations in any respect which is reasonably expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
Section 6.10 True and Complete Disclosure.
(a) The information, reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of any Borrower to the Administrative Agent or any Lender in
connection with the negotiation, preparation or delivery of this Agreement and the other
Loan Documents or included herein or therein or delivered pursuant hereto or thereto, when
taken as a whole, do not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written information furnished
after the date hereof by or on behalf of each Borrower to the Administrative Agent or any
Lender in connection with this Agreement and the other Loan Documents and the financing
transactions contemplated hereby and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable good faith estimates,
on the date as of which such information is stated or certified. There is no fact known to
a Responsible Officer of any Borrower that, after due inquiry, could reasonably be expected
to have a Material Adverse Effect that has not been disclosed herein, in the other Loan
Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Administrative Agent for use in connection with the financing
transactions contemplated hereby or thereby.
(b) The unaudited pro forma balance sheet of FCMC, dated as of the Effective Date, a
copy of which has heretofore been delivered to the Administrative Agent, gives pro forma
effect to the consummation of each Transfer Agreement, the initial extensions of credit made
under this Agreement, and the payment of transaction fees and expenses related to the
foregoing, all as if such events had occurred on such date (the “Pro Forma Balance
Sheet”). The Pro Forma Balance Sheet has been prepared in a manner consistent with GAAP
and the financial statements described in Section 7.01(a) (subject to the
absence of footnotes required by GAAP and subject to normal year-end adjustments) and,
made in good faith and having a reasonable basis set forth therein, presents fairly in all
material respects the financial condition of FCMC on an unaudited pro forma basis as of the
date set forth therein after giving effect to the consummation of the Transactions.
Section 6.11 ERISA. No Borrower nor any of their respective Subsidiaries has any Plan
or Multiemployer Plan subject to the provisions of ERISA, the Code and other Federal or State law.
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Section 6.12 True Sales. Any and all interest of a prior owner in, to and under any
Mortgage Loan or other Collateral has been sold, transferred, conveyed, and assigned to the
applicable Borrower pursuant to a legal sale or capital contribution and such prior owner retains
no interest in such Mortgage Loan or other Collateral.
Section 6.13 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of any Borrower would reasonably be expected to have a Material Adverse Effect.
Section 6.14 Subsidiaries. All of the Subsidiaries of FCMC are listed on Schedule
6.14 to this Agreement.
Section 6.15 Financial Statements; Solvency; Fraudulent Conveyance.
(a) The balance sheet of each Borrower and any Subsidiaries as of the specific date
and the related statements of income and cashflows for that fiscal year, previously
furnished to the Secured Parties, fairly present the financial condition of each Borrowers
as of that date and the results of its operations for that fiscal period. No Borrower had,
on that date, any known liabilities, direct or indirect, fixed or contingent, matured or
unmatured, or liabilities for taxes, long-term leases, or unusual forward or long-term
commitments not disclosed by, or reserved against in, said balance sheet and related
statements, except for the Lenders’ extensions of credit to Borrowers. Except for
financial statements prepared for interim periods between the fiscal year-end, all
financial statements were prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved. Since the date of the statement, there has been no change
in the business, operations, assets or financial condition of any Borrower that could
reasonably be expected to have any Material Adverse Effect, nor is any Borrower aware of
any state of facts that (with or without notice or lapse of time or both) could reasonably
be expected to have a Material Adverse Effect.
(b) As of the date hereof and immediately after giving effect to each Advance and the
application of the proceeds thereof by Borrowers, the fair value of the tangible assets of
FCMC is greater than the fair value of the liabilities (including, without limitation,
contingent liabilities if and to the extent required to be recorded as a liability
on the financial statements of FCMC in accordance with GAAP) of FCMC, and FCMC is and
will be solvent, is and will be able to pay its debts as they mature and does not and will
not have an unreasonably small capital to engage in the business in which it is engaged and
proposes to engage. No Borrower intends to incur, or believes that it has incurred, debt
beyond its ability to pay such debts as they mature. No Borrower is taking any action to
commence insolvency, bankruptcy, liquidation or consolidation proceedings or the
appointment of a receiver, liquidator, conservator, trustee or similar official in respect
of such Borrower or any of its assets. No Borrower is pledging or transferring any Assets
with any intent to hinder, delay or defraud any of its creditors.
(c) FCMC is solvent and will not be rendered insolvent by the financing transactions
contemplated by this Agreement and the other Loan Documents and the application of the
proceeds thereof by such Borrower, and, after giving effect to such
37
financing transactions
and the payment by such Borrower of any dividends, shall not be left with an unreasonably
small amount of capital with which to engage in its business.
Section 6.16 Regulation U. No part of the proceeds of any Advance will be used to
purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
Section 6.17 Licenses. Schedule 6.17 contains a complete and accurate listing
of all licenses currently held by FCMC and the status of each such license. FCMC has all licenses
necessary to carry on its business as now being conducted and is licensed, qualified, and in good
standing in each state where a Mortgaged Property or REO Property is located if the laws of such
state require licensing or qualification in order to conduct business of the type conducted by the
Servicer, and in any event the Servicer is in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of each related Mortgage Loan and REO Property, and
the servicing of each Mortgage Loan and REO Property in accordance with the terms of the Servicing
Agreement.
Article VII. Covenants of Borrower. Each Borrower hereby covenants and agrees with
the Secured Parties that, so long as any Advance is outstanding and until payment in full of all
Obligations:
Section 7.01 Financial Statements. Each Borrower shall deliver to the Administrative
Agent and each Lender:
(a) as soon as available and in any event within thirty (30) days after the end of each
month, a separate balance sheet of each Borrower and its consolidated Subsidiaries, if any,
as at the end of such period and the related unaudited consolidated statements of income for
each Borrower and consolidated Subsidiaries, if any, for such period and the portion of the
fiscal year through the end of such period, setting forth in
each case in comparative form the figures for the previous year and accompanied by a
certificate of a Responsible Officer of each Borrower, which certificate shall state that
said financial statements fairly present the financial condition and results of operations
of each Borrower and its Subsidiaries, if any, in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal year-end audit
adjustments);
(b) as soon as available and in any event within ninety (90) days after the end of each
fiscal year of Borrowers, (i) balance sheet of each Borrower and its consolidated
Subsidiaries, if any, as at the end of such fiscal year and the related statements of income
and retained earnings and of cash flows for each Borrower and its consolidated Subsidiaries,
if any, for such year, setting forth in each case in comparative form the figures for the
previous year, and (ii) an audit report on the items listed in clause (i) hereof prepared
and certified by independent certified public accountants of recognized standing and
acceptable to the Administrative Agent, which audit report shall be unqualified as to FCMC
and shall state that such financial statements fairly present the financial position of each
Borrower and its Subsidiaries, if any, at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with GAAP and that the
examination by such accountants in connection with such financial
38
statements has been made
in accordance with generally accepted auditing standards. The deliveries made pursuant to
this clause shall be accompanied by (X) any management letter prepared by the
above-referenced accountants and (Y) a certificate of such accountants that, in the course
of their examination necessary for their certification of the foregoing, they have obtained
no knowledge of any Default or Event of Default, or if, in the opinion of such accountants,
any Default or Event of Default shall exist, a statement of the nature and status thereof;
(c) at the time that any Borrower delivers financial statements to the Administrative
Agent in accordance with this Section 7.01 as the end of a quarter, Borrowers shall forward
to the Administrative Agent a certificate of a Responsible Officer of each Borrower that
demonstrates that Borrowers are in compliance with the financial covenants set forth in
Section 7.07;
(d) Borrowers shall furnish to the Administrative Agent, at the time as it furnishes
each set of financial statements pursuant to paragraphs (a) and (b) above, a certificate of
a Responsible Officer of each Borrower to the effect that, to the best of such Responsible
Officer’s knowledge, such Borrower, as applicable, during such fiscal period or year has
observed or performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to be observed,
performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate (and, if any Default
or Event of Default has occurred and is continuing, describing the same in reasonable detail
and describing the action such Borrower, as applicable, has taken or proposes to take with
respect thereto);
(e) (i) within 30 days following the Effective Date, and thereafter within 30 days
prior to the end of each fiscal year, Borrowers shall furnish to the Administrative
Agent an annual budget of prospective cash receipts, cash payments, disbursements and
advances, which budget shall be updated and furnished to the Administrative Agent within 30
days following the end of each quarter, in detail satisfactory to the Administrative Agent
and the Required Lenders; and
(f) from time to time such other information regarding the financial condition,
operations, or business of any Borrower as the Administrative Agent may request.
Section 7.02 Litigation. Each Borrower shall promptly, and in any event within two
(2) Business Days after service of process on any of the following, give to the Administrative
Agent notice of all legal or arbitral proceedings affecting any Borrower or any of their respective
Subsidiaries that questions or challenges the validity or enforceability of any of the Loan
Documents or as to which there is a reasonable likelihood of an adverse determination that would
result in a Material Adverse Effect.
Section 7.03 Existence. Each Borrower and its respective Subsidiaries will:
(a) preserve and maintain its legal existence and all of its material rights,
privileges, licenses, and franchises;
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(b) comply with the requirements of all applicable laws, rules, regulations, and
orders of Governmental Authorities and other Requirements of Law (including, without
limitation, truth in lending, real estate settlement procedures, consumer protection and
all environmental laws) if failure to comply with such requirements would be reasonably
likely (either individually or in the aggregate) to have a Material Adverse Effect;
(c) keep adequate records and books of account, in which complete entries will be made
in accordance with GAAP consistently applied;
(d) pay and discharge all taxes, assessments, and governmental charges or levies
imposed on it or on its income or profits or on any of its Property prior to the date on
which penalties attach thereto, except for any such tax, assessment, charge, or levy the
payment of which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained;
(e) permit representatives of the Administrative Agent, during normal business hours
upon prior written notice at a mutually desirable time (or at any time and from time to
time upon the occurrence of a Default or an Event of Default and during the continuance
thereof), to examine, copy and make extracts from any Borrower’s books and records, to
inspect any of its Properties, and to discuss its business and affairs with its officers,
all to the extent reasonably requested by the Administrative Agent; and
(f) limit its activities to such activities as are incident to and necessary or
convenient to accomplish the following purposes: to acquire, own, hold, pledge, finance and
otherwise deal with the Collateral, or with the prior written consent of the Administrative
Agent, property or assets similar to the Collateral (collectively, the “Related
Assets”), in each case, as are to be pledged to the Secured Parties pursuant to this
Agreement.
Section 7.04 Prohibition of Fundamental Changes; Subsidiaries. No Borrower shall
enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation, winding up or dissolution) or sell any substantial
portion of its assets other than pursuant to the Transaction Documents. No Borrower shall permit
to exist or establish any Subsidiary (other than a Subsidiary existing as of the Effective Date).
Section 7.05 Restricted Payments. No Borrower shall make or declare any Restricted
Payment without the prior written consent of the Administrative Agent, other than FCMC shall, to
the extent permitted by applicable law, make pro-rata dividends, distributions and payments to its
shareholders and to the administrative agent for the benefit of the lenders under the Legacy Loans
Credit Agreement and related loan documents; provided, however that no such distribution,
distribution or payment shall be made if, after giving effect to the same, a Default or an Event of
Default shall exist.
Section 7.06 Notices. Each Borrower shall give notice to the Administrative Agent
promptly:
40
(a) within three (3) Business Days after such Borrower becomes aware of the occurrence
of any Default or Event of Default or any event of default or default under any other
material agreement of any Borrower;
(b) within three (3) Business Days after service of process on any Borrower or any of
their respective Subsidiaries, or any agent thereof for service of process, in respect of
any legal or arbitral proceedings affecting such Borrower or any of its respective
Subsidiaries (i) that questions or challenges the validity or enforceability of any of the
Loan Documents or (ii) in which the amount in controversy exceeds $250,000;
(c) upon any Borrower becoming aware of any Default related to any Collateral, any
Material Adverse Effect, or any event or change in circumstances that should reasonably be
expected to have a Material Adverse Effect;
(d) upon any Borrower becoming aware that any Collateral with an aggregate fair market
value of at least $100,000 has been damaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado, or other casualty, or otherwise damaged; and
(e) upon the entry of a judgment or decree against any Borrower in an amount in excess
of $100,000.
Each notice pursuant to this Section 7.06 (other than 7.06(e)) shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to therein and stating
what action such Borrower has taken or proposes to take with respect thereto.
Section 7.07 Financial Covenants.
(a) Net Income Before Taxes. Each Borrower shall maintain Net Income Before
Taxes of not less than (i) $800,000 for the period beginning January 1, 2009, and ending
December 31, 2009, and (i) $800,000 as of the end of each calendar month thereafter for the
most recently ended twelve (12) consecutive month period ending on such date.
(b) Net Worth. FCMC, as of the end of each month during the term of this
Agreement, shall maintain a Net Worth of not less than $7,640,000.
Section 7.08 Transactions with Affiliates. No Borrower shall enter into any
transaction, including, without limitation, any purchase, sale, lease, or exchange of property or
the rendering of any service, with any Affiliate unless such transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary course of such Borrower’s business, and (c) upon fair and
reasonable terms no less favorable to such Borrower than it would obtain in a comparable arm’s
length transaction with a Person that is not an Affiliate, or make a payment that is not otherwise
permitted by this Section 7.08.
Section 7.09 Use of Proceeds. Borrowers will use the proceeds of the Advances solely
for the purposes described in Section 2.08.
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Section 7.10 Limitation on Liens.
No Borrower shall, nor will any Borrower permit or allow others to, create, incur or permit to
exist any Lien, security interest or claim on or to any of its Property, except for Liens on the
Collateral created pursuant to this Agreement and as to items (i) and (ii) of the definition of
“Collateral”, Liens in connection with the Legacy Loans Credit Agreement. Each Borrower will
defend the Collateral against, and will take such other action as is necessary to remove, any Lien,
security interest or claim on or to the Collateral, other than the security interests created under
this Agreement and the Liens referred to above, and Borrower will defend the right, title and
interest of each Secured Party in and to any of the Collateral against the claims and demands of
all persons whomsoever. Each Borrower shall take all action necessary to fully preserve, maintain,
and protect each Secured Party’s security interest in the Collateral including, without limitation,
the first priority status of such security interest.
Section 7.11 Limitation on Indebtedness. No Borrower shall incur any liabilities for
Indebtedness, other than (i) the Advances, and (ii) the Letters of Credit.
Section 7.12 Limitation on Sale of Assets. No Borrower shall convey, sell, lease,
assign, transfer, or otherwise dispose of (collectively, “Transfer”), all or any portion of
its Property, business, or assets (including, without limitation, receivables and leasehold
interests) whether now owned or hereafter acquired or allow any Subsidiary to Transfer any portion
all of its assets to any Person.
Section 7.13 Limitation on Investments. No Borrower nor any of their Subsidiaries
shall directly or indirectly make or own any Investment, except Investments in cash and Cash
Equivalents pledged to the Administrative Agent.
Section 7.14 Solvency. No Borrower shall incur debts beyond its ability to pay such
debts as they mature. No Borrower shall commence any insolvency, bankruptcy, liquidation, or
consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee, or
similar official in respect of Borrower or any of its respective assets. No Borrower shall have a
judgment entered against it returned unsatisfied.
Section 7.15 No Amendment or Waiver. No Borrower shall, nor shall any Borrower permit
or allow any Person to, amend, modify, terminate, or waive any provision of any Collateral in any
manner that shall reasonably be expected to materially and adversely affect the value of such item
of Collateral.
Section 7.16 Maintenance of Property; Insurance.
Each Borrower shall keep all property useful and necessary in its business in good working
order and condition. Each Borrower shall maintain errors and omissions insurance and blanket bond
coverage in such amounts as are in effect on the Effective Date (as disclosed to the Administrative
Agent in writing) and shall not reduce such coverage without the written consent of the
Administrative Agent, and shall also maintain such other insurance with financially sound and
reputable insurance companies, and with respect to property and risks of a character usually
maintained by entities engaged in the same or similar business similarly situated, against loss,
damage and liability of the kinds and in the amounts customarily maintained by such entities.
Section 7.17 Organizational Documents.
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(a) No Borrower shall amend its articles or certificate of incorporation, code of
regulations or by-laws, limited liability company agreement, operating agreement,
certificate of formation or other organizational document without the prior written consent
of the Administrative Agent, which consent will not be unreasonably withheld or delayed.
(b) No Borrower shall change its name without at least thirty (30) days prior written
notice to the Administrative Agent.
Section 7.18 Payment of Expenses. At all times after the Effective Date, no Borrower
shall incur any liabilities or pay any expenses other than liabilities and expenses that are
Approved Expenses or incurred in the ordinary course of business. No Borrower shall incur any
liability to each other or pay any amount to any Affiliate without the prior written consent of the
Administrative Agent, which consent shall not be withheld unreasonably.
Section 7.19 Certain Post-Effective Date Deliverables. The Borrowers will comply with
each requirement or condition subsequent set forth on Schedule 7.19 on or before the date
applicable thereto set forth on Schedule 7.19, or such later date as the Administrative
Agent in writing shall provide, to the satisfaction of the Administrative Agent, and each Borrower
hereby agrees that the failure of any Borrower to so perform or cause to be performed shall
constitute an Event of Default hereunder without cure of any kind; provided, with respect to any
such event, the Administrative Agent shall have provided notice to any Borrower of such event.
Section 7.20 Representations and Warranties; Disclosure Updates.
Each Borrower shall promptly and in no event later than five (5) Business Days after obtaining
knowledge thereof, notify the Administrative Agent if any written information, exhibit, or report
furnished to the Administrative Agent or any Lender contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made. The foregoing to the contrary
notwithstanding, any notification pursuant to the foregoing provision will not cure or remedy the
effect of the prior untrue statement of a material fact or omission of any material fact nor shall
any such notification have the affect of amending or modifying this Agreement or any of the
Schedules hereto.
Article VIII. Events of Default.
Section 8.01 Events of Default. An “Event of Default” shall exist under this
Agreement (i) if any one or more of the events set forth in clause (g) or (h) shall have occurred
or (ii) if any one or more of the other events described below shall have occurred, and with
respect to any such event, the Administrative Agent shall have provided notice to any Borrower of
such event:
(a) any Borrower shall fail to make a Required Payment on any Payment Date or
otherwise fail to pay any principal of or interest on any Advance prior to the close of
business on the date on which such payment is due (whether at stated maturity, upon
acceleration or at mandatory prepayment or otherwise); or
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(b) any Borrower shall default in the payment of any other amount payable by it under
this Agreement or any other Loan Document, and such default shall have continued unremedied
for three (3) Business Days; or
(c) any representation, warranty, or certification made or deemed made in this
Agreement or in any other Loan Document by any Borrower or any certificate furnished to the
Administrative Agent pursuant to the provisions hereof or thereof, shall prove to have been
false or misleading in any material respect as of the time made or furnished; or
(d) any Borrower shall fail to comply with the requirements of Section 7.01, Section
7.02, Section 7.03(a), Section 7.03(b), Section 7.03(d), Section 7.03(e), Section 7.04,
Section 7.05, Section 7.06 (a), (b) or (c), Section 7.05, Sections 7.07 through 7.20; or
any Loan Party shall otherwise fail to observe or perform any other agreement contained in
this Agreement or any other Loan Document and such failure to observe or perform shall
continue unremedied for a period of ten (10) Business Days; or
(e) a final judgment or judgments for the payment of money in excess of, with respect
to any Borrower or any Subsidiary of any Borrower, $250,000 in the aggregate shall be
rendered against such Borrower, by one or more courts, administrative tribunals or other
bodies having jurisdiction over them and the same shall not be discharged (or provision
shall not be made for such discharge) or bonded, or a stay of execution thereof shall not
be procured, within sixty (60) days from the date of entry thereof and such
Borrower shall not, within said period of sixty (60) days, or such longer period
during which execution of the same shall have been stayed or bonded, appeal therefrom and
cause the execution thereof to be stayed during such appeal; or
(f) any Loan Party shall admit in writing its inability to pay its debts as such debts
become due; or
(g) any Loan Party shall (i) apply for or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee, examiner, or liquidator of itself or of
all or a substantial part of its property, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the Bankruptcy Code, (iv) file a
petition seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code, or (vi) take any corporate or other action for the purpose of effecting
any of the foregoing; or
(h) a proceeding or case shall be commenced, without the application or consent of any
Loan Party or any Subsidiary of a Loan Party, in any court of competent jurisdiction,
seeking (i) its reorganization, liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator, or the like of any Loan Party or any such Subsidiary or of
all or any substantial part of its property, or (iii) similar relief in respect of any Loan
Party or any such Subsidiary under any law relating to bankruptcy,
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insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect, for a period of
sixty (60) or more days; or an order for relief against any Loan Party or any such
Subsidiary shall be entered in an involuntary case under the Bankruptcy Code; or
(i) this Agreement, any Note, or any other Loan Document shall for whatever reason
(including an Event of Default, Default, default or event of default, as applicable
thereunder) be terminated, or any Lien of any Secured Party on any material portion of the
Collateral or the Guarantor Collateral shall cease to be a valid and perfected first
priority Lien on or other security interest in any of the Collateral or the Guarantor
Collateral, or any Borrower’s obligations under this Agreement shall cease to be in full
force and effect, or the enforceability of any Loan Document shall be contested by any Loan
Party; or
(j) (i) any Borrower or any ERISA Affiliate shall engage in any non-exempt “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any material “accumulated funding deficiency” (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan shall arise on the assets of any Borrower or any ERISA Affiliate, (iii)
proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Plan of any Borrower or
any ERISA Affiliate, which commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Administrative Agent, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, (iv) any such Plan shall terminate for
purposes of Title IV of ERISA, (v) any Borrower or any ERISA Affiliate shall, or in the
reasonable opinion of the Administrative Agent is likely to, incur any liability in
connection with a withdrawal from, or the insolvency or reorganization of, a Multiemployer
Plan, or (vi) any other event or condition shall occur or exist with respect to a Plan; and
in each case in clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(k) any Change of Control of any Borrower shall have occurred without the prior
consent of the Administrative Agent; or
(l) any Loan Party shall grant, or suffer to exist, any Lien on any Collateral or the
Guarantor Collateral except the Liens contemplated by this Agreement; or the Liens
contemplated hereby shall cease to be first priority perfected and enforceable Liens on the
Collateral or the Guarantor Collateral in favor of the Secured Parties or shall be Liens in
favor of any Person other than the Secured Parties; or
(m) any Borrower shall default under, or fail to perform as requested under, the terms
of any repurchase agreement, credit and security agreement or similar credit facility or
agreement in favor of any creditor which provides for borrowed funds in an
45
amount in excess
of $100,000, in each case entered into by such Borrower, which default or failure resulted
in the acceleration or prepayment of any Indebtedness thereunder; or
(n) an “Event of Default” (as defined under the Legacy Loans Credit Agreement) shall
exist under the Legacy Loans Credit Agreement in respect of (i) Article VIII, Section 8.01
(f), (g), (h), (i) or (l), or (ii) as a result of the failure to comply with any
requirement of Section 7.03(d) or (e), Section 7.04, Section 7.05, Sections 7.12 through
7.14 or Section 7.20 thereof, or any Borrower defaults under the terms of a Limited
Recourse Guaranty dated as of even date herewith executed in connection with the Legacy
Loans Credit Agreement;
(o) a default or event of default shall occur and be continuing under the Servicing
Agreement, or FCMC shall cease its servicing business; or
(p) any Material Adverse Effect with respect to any Loan Party or any of their
respective Subsidiaries, or the Collateral, in each case as determined by the
Administrative Agent in its reasonable discretion, or the existence of any other condition
that, in the Administrative Agent’s reasonable discretion, constitutes a material
impairment of any Loan Party’s ability to perform its obligations under this Agreement, any
Application and Agreement for Letter of Credit, any Note, or any other Loan Document.
Article IX. Remedies.
Section 9.01 Remedies Upon Default.(a) (a) Upon the occurrence of one or more
Events of Default (subject to the expiration of the applicable cure period contained
therein) other than those referred to in Section 8(g) or (h), the Required Lenders (at
their election but without notice of their election and without demand) may authorize and
instruct the Administrative Agent to do any one or more of the following on behalf of the
Secured Parties (and the Administrative Agent, acting upon the instructions of the Required
Lenders, shall, subject to the terms of Article 12 hereof, do the same on behalf of the
Secured Parties), all of which are authorized by each Borrower: (i) immediately declare all
Obligations then outstanding to be immediately due and payable, together with all interest
accrued thereon and all other amounts due under this Agreement, the Notes and any other
Loan Document; provided that upon the occurrence of an Event of Default referred to
in Sections 8(g) or (h), such amounts shall immediately and automatically become due and
payable without any further action by any Person and (ii) the Administrative Agent may
exercise, in addition to all other rights and remedies granted to it in this Agreement, the
rights and remedies provided for under any Loan Document. Upon such declaration or such
automatic acceleration, the unpaid balance of all Advances then outstanding and all other
amounts due under this Agreement and any other Loan Document shall become immediately due
and payable, without presentment, demand, protest, or other formalities of any kind, all of
which are hereby expressly waived by each Borrower, and the Administrative Agent, upon
receipt of instructions from the Required Lenders, subject to the terms of Section 12
hereof, thereupon shall exercise any rights and remedies, hereunder and under the other
Loan Documents, including but not limited to, the transfer of servicing or the liquidation
of the Collateral
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on a servicing released basis. To the extent permitted by applicable
law, each Borrower waives all claims, damages, and demands it may acquire against the
Administrative Agent or the Lenders arising out of the exercise by the Administrative Agent
or a Secured Party of any of their rights under this Agreement and any other Loan Document,
other than those claims, damages, and demands to the extent any of the foregoing is found
in a final non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Administrative Agent or a Lender.
(b) Upon the occurrence of one or more Events of Default, the Administrative Agent
shall have the right to obtain physical possession of all records and all other files of
Borrower relating to the Collateral and all documents relating to the Collateral that are
then or may thereafter come in to the possession of any Borrower, or any third party acting
for any Borrower, and each Borrower shall deliver to the Administrative Agent such
assignments and other documents as the Administrative Agent shall request. The
Administrative Agent shall be entitled to specific performance of all agreements of each
Borrower contained in this Agreement and any other Loan Document.
(c) Any money or property collected or otherwise received by the Administrative Agent
in connection with the exercise of its rights and remedies specified in this Section 9.01
(including, without limitation, any money or property received in respect of a liquidation
of any Collateral) shall be applied by the Administrative Agent first, to the
payment of any Obligations in respect of any protective advances, fees, expenses,
reimbursements or indemnities then due to the Administrative Agent, second, to the
payment of any Obligations in respect of any protective advances, fees, expenses,
reimbursements or indemnities then due to any Lender, and then, in the same order
of priority as Section 2.04(d).
Article X. Miscellaneous.
Section 10.01 Waiver. No failure on the part of the Administrative Agent to exercise,
no delay in exercising, and no course of dealing with respect to, any right, power, or privilege
under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power, or privilege under this Agreement or any other Loan
Document preclude any other or further exercise thereof or the exercise of any other right, power,
or privilege. The remedies provided herein and therein are cumulative and not exclusive of any
remedies provided by law.
Section 10.02 Notices. Except as otherwise expressly permitted by this Agreement, all
notices, requests, and other communications provided for herein (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall be given or made in
writing (including, without limitation, by telex or telecopy) delivered to the intended recipient
at the “Address for Notices” specified below its name on the signature pages hereof) or, as
to any party, at such other address as shall be designated by such party in a written notice to
each other party. Except as otherwise provided in this Agreement and except for notices given under
Article 2 (which shall be effective only on receipt), all such communications shall be deemed to
have been duly given when transmitted by telex or telecopier or personally
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delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as aforesaid.
Section 10.03 Indemnification and Expenses.
(a) Each Borrower, jointly and severally, hereby agrees to hold each Secured Party,
and each Affiliate thereof and the respective officers, directors, employees, agents, and
advisors of each Secured Party (each an “Indemnified Party”) harmless from and
indemnify the Secured Parties and such other Persons against all liabilities, losses,
damages, judgments, costs, and expenses of any kind that may be imposed on, incurred by, or
asserted against the Secured Parties or such other Persons, relating to or arising out of,
this Agreement (including, without limitation, any cost, loss, or expense which the Secured
Parties or such other Persons may sustain or incur as a consequence of any acceleration of
the maturity of the Advances by the Secured Parties in accordance with
the terms of this Agreement, including, but not limited to, any cost, loss, or expense
arising in liquidating the Advances and the Collateral and from interest or fees payable by
the Secured Parties to lenders of funds obtained by it in order to maintain the Advances
hereunder), the Notes, any other Loan Document or any financing transaction contemplated
hereby or thereby, or any amendment, supplement, or modification of, or any waiver or
consent under or in respect of, this Agreement, the Notes, any other Loan Document, or any
financing transaction contemplated hereby or thereby, that, in each case, results from any
matter whatsoever, except to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Administrative Agent or a Lender. Without
limiting the generality of the foregoing, each Borrower agrees to hold the Secured Parties
and any other indemnified Person described above harmless from and indemnify such
Indemnified Party against all costs with respect to all any Mortgage Loan and any REO
Property relating to or arising out of any violation or alleged violation of any
environmental law, rule, or regulation or any consumer credit laws, including, without
limitation, laws with respect to unfair or deceptive lending practices and predatory
lending practices, the Truth in Lending Act, and the real estate settlement procedures act,
that, in each case, results from anything other than to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnified Party. In any
suit, proceeding, or action brought by any Secured Party in connection with any other
Collateral pledged hereunder for any sum owing thereunder, or to enforce any provisions of
any Collateral pledged hereunder, each Borrower will save, indemnify, and hold the Secured
Parties and any other indemnified Person described above harmless from and against all
expense, loss, or damage suffered by reason of any defense, set-off, counterclaim,
recoupment, reduction, or liability whatsoever of the account debtor or obligor thereunder,
arising out of a breach by any Borrower of any obligation thereunder or arising out of any
other agreement, Indebtedness, or liability at any time owing to or in favor of such
account debtor or obligor or its successors from any Borrower. Each Borrower also agrees,
jointly and severally, to reimburse the Secured Parties as and when billed by the
Administrative Agent for all the Secured Parties’ reasonable out-of-pocket costs and
expenses incurred in connection with the enforcement or the preservation of the Secured
Parties’ rights
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under this Agreement, the Notes, any other Loan Document, or any financing
transaction contemplated hereby or thereby, including, without limitation, the reasonable
fees and disbursements of its counsel.
(b) Each Borrower agrees to pay as and when billed by the Administrative Agent all of
the out-of pocket costs and expenses reasonably incurred by the Administrative Agent in
connection with the development, preparation, and execution of any amendment, restatement
supplement, or modification to this Agreement, any Note, any other Loan Document, or any
other documents prepared in connection herewith or therewith. Each Borrower further agrees
to pay as and when billed by the Administrative Agent all of the out-of-pocket costs and
expenses, reasonably incurred by any Secured Party (i) in connection with the development,
preparation, and execution of this Agreement, each Note and any Loan Document executed in
connection herewith or therewith, and consummation and administration of the financing
transactions
contemplated hereby and thereby including, without limitation, (A) all the reasonable
fees, disbursements, and expenses of counsel for the Administrative Agent and for each
other Secured Party and (B) all the due diligence, inspection, testing, and review costs
and expenses incurred by any Secured Party with respect to Collateral under this Agreement,
including, but not limited to, those costs and expenses incurred by any Secured Party
pursuant to Sections 11.01, 11.05, and 11.10, other than any costs and expenses incurred in
connection with the Secured Parties’ re-hypothecation of the Assets prior to an Event of
Default, and (ii) all of the out-of pocket costs and expenses after the occurrence of an
Event of Default or in connection with the enforcement of any right or remedy under this
Agreement or applicable law .
Section 10.04 Amendments.(a) (a) Subject to the provisions of this Section 10.04, the
Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders)
and any Loan Party may enter into agreements supplemental hereto for the purpose of adding or
modifying any provisions of this Agreement or any Loan Document, or changing in any manner the
rights of the Lenders or any Loan Party hereunder or thereunder or waiving any Event of Default
hereunder; provided, however, that no such supplemental agreement, waiver or amendment
shall, without the consent of each Lender affected thereby:
(i) Extend any Termination Date or any other date fixed for any payment of
principal of, or interest on, the Advances, or any fees or other amounts payable to
such Lender (except with respect to modifications of the provisions relating to
prepayments of Advances and other Obligations);
(ii) Reduce the rate of interest on any Advance, fee, or other amount due such
Lender;
(iii) Reduce the percentage specified in the definition of Required Lenders or
any other percentage of Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definitions of “Required
Lenders,” or “Pro Rata Share”;
(iv) Increase the amount of Commitment of any Lender;
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(v) Other than pursuant to a transaction permitted by the terms of this
Agreement, release all or substantially all of the Collateral; or
(vi) Amend this Section 10.04.
(b) No amendment of any provision of this Agreement relating to the Administrative Agent shall
be effective without the written consent of the Administrative Agent. The Administrative Agent may
waive payment of the fee required under Section 12.01(c) without obtaining the consent of any of
the Lenders. Except as otherwise expressly provided in Section 10.04(a) above, any provision of
this Agreement may only be amended, modified, or supplemented only by an instrument in writing
signed by each Borrower, the Administrative
Agent, and the Required Lenders.
Section 10.05 Successors and Assigns. Subject to Section 12.01, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 10.06 Survival. The obligations of each Borrower under Sections 2.06, 3.03,
10.03, and 11.05 hereof shall survive the repayment of the Advances and the termination of this
Agreement. In addition, each representation and warranty made, or deemed to be made by a request
for a borrowing, herein or pursuant hereto shall survive the making of such representation and
warranty and the disbursement of the related Advance, and the Secured Parties shall not be deemed
to have waived, by reason of making any Advance, any Default that may arise by reason of such
representation or warranty proving to have been false or misleading, notwithstanding that the
Secured Parties may have had notice or knowledge or reason to believe that such representation or
warranty was false or misleading at the time such Advance was made.
Section 10.07 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
Section 10.08 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
Section 10.09 Governing Law. This Agreement shall be governed by Ohio law without
reference to choice of law doctrine.
Section 10.10 SUBMISSION TO JURISDICTION; WAIVERS. Each party hereby irrevocably and
unconditionally:
(i) | SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL |
50
JURISDICTION OF THE COURTS OF THE STATE OF OHIO, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF OHIO, AND APPELLATE COURTS FROM ANY THEREOF; | |||
(ii) | CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; | ||
(iii) | AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED; AND | ||
(iv) | AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION. |
Section 10.11 WAIVER OF JURY TRIAL. EACH BORROWER, EACH LENDER, AND THE
ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 10.12 Acknowledgments. Each Borrower hereby acknowledges that:
(a) | it has been advised by counsel in the negotiation, execution, and delivery of this Agreement, the Notes and the other Loan Documents to which it is a party; | ||
(b) | the Secured Parties have no fiduciary relationship to any Borrower, and the relationship between any Borrower and the Secured Parties is solely that of debtor and creditor; and | ||
(c) | no joint venture exists among or between the Secured Parties and any Borrower. |
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Section 10.13 Non-liability of the Administrative Agent and the Lenders. Neither the
Administrative Agent nor any Lender undertakes any responsibility to any Borrower to review or
inform any Borrower of any matter in connection with any phase of any Borrower’s business or
operations. Each Borrower agrees that neither the Administrative Agent nor any Lender shall have
liability to any Borrower for losses suffered by any Borrower in connection with, arising out of,
or in anyway related to, the Transactions or any financing transaction contemplated and the
relationship established by the Loan Documents, or any act, omission, or event occurring in
connection therewith, unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of
the party from which recovery is sought. Neither the Administrative Agent nor any Lender shall
have any liability with respect to, and each Borrower hereby waives, releases, and agrees not to
xxx for, any special, indirect, consequential, or punitive damages suffered by any Borrower in
connection with, arising out of, or in any way related to the Loan Documents, the financing
transactions contemplated thereby or any of the Transactions.
Section 10.14 Amendment and Restatement.
(a) On the Closing Date, the Credit Agreements and the Existing Forbearance Agreement
shall be amended and restated in their entirety by this Agreement in respect of “Tranche D”,
as defined in the Existing Forbearance Agreement, and the Credit Agreements, and the
Existing Forbearance Agreement shall thereafter be of no further force and effect except to
evidence (i) the incurrence by any Borrower of the indebtedness evidenced thereby, (ii) the
representations and warranties made by any Borrower prior to the Effective Date, and (iii)
any action or omission performed or required to be performed pursuant to such Credit
Agreements and the Existing Forbearance Agreement prior to the Effective Date. This
Agreement is not in any way intended to constitute a novation of any obligation or liability
of any Borrower existing under any Credit Agreement or Existing Forbearance Agreement or
evidence payment of all or any portion of any such obligation and liability. Each security
agreement and financing statement filed pursuant to any Credit Agreement or Existing
Forbearance Agreement or any predecessor thereto shall remain in full force and effect in
all respects as if such obligation or liability had been payable and effective originally as
provided by this Agreement.
(b) The terms and conditions of this Agreement and the Administrative Agent’s,
Lenders’, and Huntington’s rights and remedies under this Agreement and the other Loan
Documents shall apply to all of the obligations and liabilities incurred under any Credit
Agreement or any Existing Forbearance Agreement and any promissory notes or other
instruments issued thereunder.
(c) Each Borrower reaffirms each Lien granted by it pursuant to any Existing Loan
Document executed and delivered in connection with any Credit Agreement or any
Existing Forbearance Agreement to the extent of the Collateral in favor of The Huntington
National Bank, as Lender and the Administrative Agent for the benefit of Lenders and the
Issuing Bank, which Liens shall continue in full force and effect during the term of this
Agreement and any renewals thereof and shall continue to secure the Obligations.
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(d) On and after the Effective Date, (i) all references to any Credit Agreement or any
Existing Forbearance Agreement (or to any amendment or any amendment and restatement
thereof) in any Loan Document (other than this Agreement) shall be deemed to refer to the
such Credit Agreement or Existing Forbearance Agreement, as amended and restated hereby,
(ii) all references to any section (or subsection) of any Credit Agreement or any Existing
Forbearance Agreement in any Loan Document (but not herein) shall be amended to become,
mutatis mutandis, references to the corresponding provisions of this Agreement, when
applicable, and (iii) except as the context otherwise provides, on or after the Effective
Date, all references to this Agreement herein (including for purposes of indemnification and
reimbursement of fees) shall be deemed to refer to each Credit Agreement or Existing
Forbearance Agreement, insofar as each is amended and restated hereby.
(e) This amendment and restatement is limited as written and is not a consent to any
other amendment, restatement, or waiver, whether or not similar and, except as expressly
provided herein or in any other Loan Document, all terms and conditions of each Existing
Loan Document remain in full force and effect unless otherwise specifically amended hereby
or any other Loan Document.
Section 10.15 Assignment of Liens. As of the Effective Date, Huntington hereby assigns to
the Administrative Agent all Liens and security interests in the Collateral granted by any Borrower
pursuant to any Credit Agreement, the Existing Forbearance Agreement, and any assignment, pledge,
security agreement, or other Existing Loan Document executed in connection therewith.
Section 10.16 Set-Off.
In addition to any rights and remedies of each Lender and the Administrative Agent provided by
this Agreement and by law, the Administrative Agent and each Lender shall have the right, without
prior notice to any Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by any Borrower under this
Agreement or any other Loan Document (whether at the stated maturity, by acceleration or otherwise)
to set-off and appropriate and apply against such amount any and all Property and deposits (general
or special, time or demand, provisional or final), in any currency, and any other credits,
Indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Administrative Agent, such
Lender or any Affiliate thereof to or for the credit or the account of any Borrower, irrespective
of whether the Administrative Agent or such Lender shall have made any demand under this Agreement
or any other Loan Document and although such obligations of any Borrower may be contingent or
unmatured or are owed to a branch or office of the Administrative Agent or such Lender different
from the branch or office holding such deposit or obligated on such Indebtedness. Each Lender may
set-off cash, the proceeds of the liquidation of any Collateral and all other sums or obligations
owed by the Administrative Agent or such Lender or any of their Affiliates to any Borrower against
all of any Borrower’s obligations to the Administrative Agent, such Lender or any of their
Affiliates, whether under this Agreement, any other Loan Document or under any other agreement
between the parties or between any Borrower and the Administrative Agent or any Lender, or
otherwise, without prejudice to the Administrative Agent’s, any Lender’s or any of their
Affiliate’s right to recover any deficiency. Each Lender and the Administrative Agent agrees
promptly to notify
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each Borrower after any such set-off and application made by such Lender or the
Administrative Agent; provided, that the failure to give such notice shall not affect the
validity of such set-off and application. All amounts set off pursuant to this Section 10.16 shall
be applied pursuant to Section 2.04(d) or Section 9.01(d), as applicable.
Section 10.17 Entire Agreement; Continuation of Agreement. This Agreement embodies
the entire agreement and understanding of the parties hereto and supersedes any and all prior
agreements, arrangements, and understandings relating to the matters provided for herein. No
alteration, waiver, amendments, change, or supplement hereto shall be binding or effective unless
the same is set forth in writing by a duly authorized representative of each party hereto.
Section 10.18 Full-Recourse. The Obligations of each Borrower hereunder shall be full
recourse to each Borrower and all property and assets of each Borrower, whether now owned or
hereafter acquired, including, without limitation, the property and assets of any Borrower which
such Borrower pledges on the date hereof, or may hereinafter from time to time pledge, as
Collateral pursuant to the terms of this Agreement.
Section 10.19 Confidentiality.
The Administrative Agent and each Lender agree to hold any confidential information that it
may receive from any Borrower in connection with this Agreement in confidence, except for
disclosure (i) to its Affiliates and to the Administrative Agent and any other Lender and their
respective Affiliates, (ii) to legal counsel, accountants, and other professional advisors to such
Lender, (iii) to regulatory officials, (iv) to any Person as requested pursuant to or as required
by law, regulation, or legal process, (v) to any Person in connection with any legal proceeding to
which it is a party, (vi) to its direct or indirect contractual counterparties in swap agreements
or to legal counsel, accountants, and other professional advisors to such counterparties, and (vii)
to rating agencies if requested or required by such agencies in connection with a rating relating
to the Advances. Each Borrower agrees that the terms of this Section 10.19 shall set forth the
entire agreement between Borrowers and each Lender (including the Administrative Agent) with
respect to any confidential information previously or hereafter received by such Lender in
connection with this Agreement, and this Section 10.19 shall supersede any and all prior
confidentiality agreements entered into by such Lender with respect to such confidential
information. Notwithstanding anything in this Agreement to the contrary, confidential information
shall not include, and each party to any of the Loan Documents and their respective Affiliates (and
the respective partners, directors, officers, employees, advisors, representatives, and other
agents of each of the foregoing and their Affiliates) may disclose to any and all Persons, without
limitation of any kind, (i) any information with respect to the U.S. federal and state income tax
treatment of the transactions contemplated hereby and any facts that may be relevant to
understanding such tax treatment, which facts shall not include for this purpose the names of the
parties or any other Person named herein, or information that would permit identification of the
parties or such other Persons, or any pricing terms or other nonpublic business or financial
information that is unrelated to such tax treatment or facts, and (ii) all materials of any kind
(including opinions or other tax analyses) relating to such tax treatment or facts that are
provided to any of the Persons referred to above, and it is hereby confirmed that each of the
Persons referred to above has been authorized to make such disclosures since the commencement of
discussions regarding the transactions contemplated hereby.
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Article XI. The Administrative Agent.
Section 11.01 Appointment; Nature of Relationship. Huntington is hereby appointed by
each of the Lenders as its contractual representative (referred to as the “Administrative
Agent”) under this Agreement and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent in this Agreement to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of
this Agreement, together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent agrees to act as such contractual representative upon the express conditions
contained in this Section 11.01. Notwithstanding the use of the defined term “Administrative
Agent,” it is expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any other Loan Document and
that the Administrative Agent is merely acting as the contractual representative of the Lenders
with only those duties as are expressly set forth in this Agreement and the other Loan Documents.
The Administrative Agent acknowledges, solely in its capacity as the Administrative Agent, that (i)
it is a “representative” of the Lenders within the meaning of the term “secured party” as defined
in the Uniform Commercial Code, and (ii) it is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan
Documents that provides rights or powers to the Administrative Agent, Lenders agree that the
Administrative Agent shall have the right to exercise the following powers as long as this
Agreement remains in effect: (a) maintain, in accordance with its customary business practices,
ledgers and records reflecting the status of the Obligations, the Collateral, the Collections of
each Borrower and its Subsidiaries, and related matters, (b) execute or file any and all financing
or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs
of claim, notices and other written agreements with respect to the Loan Documents, (c) exclusively
receive, apply, and distribute the Collections of each Borrower and its Subsidiaries as provided in
the Loan Documents, (d) open and maintain such bank accounts as the Administrative Agent deems
necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with
respect to the Collateral and the Collections of each Borrower and its Subsidiaries, (e) perform,
exercise, and enforce any and all other rights and remedies of the Lenders with respect to each
Borrower, the Obligations, the Collateral, the Collections of each Borrower and its Subsidiaries,
or otherwise related to any of same as provided in the Loan Documents, and (f) incur and pay such
expenses as the Administrative Agent may deem necessary or appropriate for the performance and
fulfillment of its functions and powers pursuant to the Loan Documents.
Section 11.02 Exculpatory Provisions. Neither the Administrative Agent nor any of its
Affiliates, nor any of their respective officers, directors, employees, agents, or
attorneys-in-fact, shall be liable to any Lender for any action lawfully taken or omitted to be
taken by it or such Person under or in connection herewith or in connection with any of the other
Loan Documents (except to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the such Person) or responsible in any manner to any of the Lenders for any recitals,
statements, representations, or warranties made by any Borrower contained in this Agreement or in
any of the other Loan Documents or in any certificate, report, document, financial statement, or
other written or oral statement referred to or provided for in, or received
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by the Administrative
Agent under or in connection herewith, or in connection with the other Loan Documents, or
enforceability or sufficiency therefor of any of the other Loan Documents, or for any failure of
any Borrower to perform its obligations under this Agreement or thereunder. The Administrative
Agent shall not be responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility, or sufficiency of this Agreement, or any of the other Loan
Documents or for any representations, warranties, recitals, or statements made herein or therein or
made by any Borrower in any written or oral statement or in any financial or other statements,
instruments, reports, certificates, or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent to the Lenders or by or on behalf of any Borrower to
the Administrative Agent or any Lender or be required to ascertain or inquire as to the performance
or observance of any of the terms, conditions, provisions, covenants, or agreements contained
herein or therein or as to the use of the proceeds of the Advances or of the existence or possible
existence of any Default or Event of Default or to inspect the properties, books, or records of any
Borrower. The Administrative Agent is not a trustee for the Lenders and owes no fiduciary duty to
the Lenders. Each Lender recognizes and agrees that the Administrative Agent shall not be required
to determine independently whether the conditions described in Sections 5.01 and 5.02 have been
satisfied and, when the Administrative Agent disburses funds to any Borrower, it may rely fully
upon statements contained in the relevant requests by such Borrower.
Section 11.03 Reliance on Communications. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability of relying upon, any Note, notice, consent,
request, certificate, affidavit, letter, telegram, facsimile, telex, electronic mail message,
statement, instrument, paper, document, or other writing (including any electronic message,
Internet or intranet website posting, or other distribution) believed by it in good faith to be
genuine and correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the Administrative Agent, which
counsel may be employees of the Administrative Agent. For purposes of determining compliance with
the conditions specified in Sections 5.01 and 5.02, each Lender that has signed this Agreement or
has become a party hereto pursuant to the terms of Section 12 hereof shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document or other matter required
thereunder to be consented to, approved by, or acceptable or satisfactory to, a Lender, unless the
Administrative Agent shall have received notice from such Lender prior to the applicable date
specifying its objection thereto.
Section 11.04 Delegation of Duties. The Administrative Agent may execute any of its
duties as the Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except as to
money or securities received by it or its authorized agents, and to the extent any conduct is found
in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Administrative Agent or any such agents or
attorneys-in-fact. The Administrative Agent shall be entitled to the advice of legal counsel,
accountants, and other professionals selected by the Administrative Agent concerning the
contractual arrangement between the Administrative Agent and the Lenders and all matters pertaining
to the Administrative Agent’s duties under this Agreement and under any other Loan Document.
Borrowers and Lenders agree that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates, and that any such Affiliate that performs
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duties in connection
with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and
other protective provisions to which the Administrative Agent is entitled under Section 10.03.
Section 11.05 The Administrative Agent’s Reimbursement and Indemnification. The
Administrative Agent may incur and pay expenses to the extent the Administrative Agent reasonably
deems necessary or appropriate for the performance and fulfillment of its functions, powers, and
obligations pursuant to the Loan Documents, including court costs, attorneys fees and expenses,
fees and expenses of financial accountants, advisors, consultants, and appraisers, costs of
collection by outside collection agencies, auctioneer fees and expenses, and costs of security
guards or insurance premiums paid to maintain the Collateral, whether or not Borrowers are
obligated to reimburse the Administrative Agent or Lenders for such expenses pursuant to the Credit
Agreement or otherwise. The Administrative Agent is authorized and directed to deduct and retain
sufficient amounts from the Collections of any Borrower and any of its Subsidiaries received by the
Administrative Agent to reimburse the Administrative Agent for such out-of-pocket costs and
expenses prior to the distribution of any amounts to any Lender or any other Person. In the event
the Administrative Agent is not reimbursed for such costs and expenses from the Collections of any
Borrower and its Subsidiaries received by the Administrative Agent, Lenders agree to reimburse and
indemnify the Administrative Agent for their Pro Rata Share of (i) any amounts not reimbursed by
such Borrower for which the Administrative Agent is entitled to reimbursement by such Borrower
under the Loan Documents, (ii) any other expenses incurred by the Administrative Agent on behalf of
the Lenders, in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any expenses incurred by the
Administrative Agent in connection with any dispute between the Administrative Agent and any Lender
or between two or more of the Lenders), and (iii) any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any
way relating to or arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other documents;
provided, that (i) no Lender shall be liable for any of the foregoing to the extent any of
the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the Administrative Agent and (ii)
any indemnification required pursuant to Section 2.06 shall, notwithstanding the provisions of this
Section 11.05, be paid by the relevant Lender in accordance with the provisions thereof. The
obligations of the Lenders under this Section 11.05 shall survive payment of the Advances and
termination of this Agreement.
Section 11.06 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, unless the Administrative
Agent has received written notice from a Lender or any Borrower referring to this Agreement
describing such Default or Event of Default and stating that such notice is a “notice of default.”
In the event that the Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall in all
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cases be fully
protected in acting, or in refraining from acting, under this Agreement or under any of the other
Loan Documents in accordance with a request of the Required Lenders (or to the extent specifically
required, all the Lenders) and such request and any action or failure to act pursuant thereto shall
be binging upon all the Lenders (including their successors and assigns).
Section 11.07 Rights as a Lender. If the Administrative Agent is also a Lender, the
Administrative Agent shall have the same rights and powers under this Agreement and under any other
Loan Document with respect to its Commitment and its Advances as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, at
any time when the Administrative Agent is a Lender, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of business, in addition
to those contemplated by this Agreement or any other Loan Document, with the any Borrower or any of
its Subsidiaries in which such Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person and without any duty to account therefor to the Lenders.
Section 11.08 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents. Except for any
notice, report, document, or other information expressly required to be furnished to the Lenders by
the Administrative Agent under this Agreement, the Administrative Agent shall not have any duty or
responsibility (either initially or on a continuing basis) to provide any Lender with any notice,
report, document, credit information, or other information concerning the affairs, financial
condition, or business of any Borrower or any of its Affiliates that may come into the possession
of the Administrative Agent (regardless of whether in its capacity as Administrative Agent) or any
of its Affiliates.
Section 11.09 Resignation of Administrative Agent. The Administrative Agent may
resign at any time upon thirty (30) days prior written notice to the Lenders and to each Borrower.
Upon such receipt of any such notice of resignation, the Required Lenders shall have the right, in
consultation with each Borrower, to appoint a successor, which shall be a bank with an office in
the United States of America, or an Affiliate of any such bank with an office in the United States
of America. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on behalf of Lenders
appoint a successor Administrative Agent meeting the qualifications set forth above,
provided that if the Administrative Agent shall notify each Borrower and Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of
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the Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is appointed) and (2)
all payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph).
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this paragraph). The fees payable by any
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between Borrowers and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section
11.09 and Section 10.03 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as the
Administrative Agent.
Section 11.10 Administrative Agent Fees. Each Borrower agrees to pay to the
Administrative Agent, for its account, the Administrative Agent Fee on the Effective Date and on
each anniversary thereof. The Administrative Agent agrees that no Administrative Agent Fee shall
accrue while Huntington is the sole Lender under this Agreement.
Section 11.11 Execution of Collateral Documents. Lenders hereby empower and authorize
the Administrative Agent to execute and deliver to each Borrower on their behalf the Loan Documents
and all related financing statements and any financing statements, agreements, documents, or
instruments as shall be necessary or appropriate to effect the purposes of this Agreement.
Section 11.12 Collateral. (a) Lenders hereby irrevocably authorize the Administrative
Agent, at its option and in its sole discretion, to release any Lien on any Collateral (i) upon the
termination of the Commitments and payment and satisfaction in full by any Borrower of all
Obligations, (ii) constituting property in which no Borrower owned any interest at the time the
Lien was granted nor at any time thereafter, (iii) constituting property leased to any Borrower or
its Subsidiary under a lease that has expired or is terminated in a transaction permitted under
this Agreement, (iv) constituting property that any Borrower has authorization to Transfer under
the terms of this Agreement or any other Loan Document or (v) constituting property for which such
release shall otherwise have been approved by the Required Lenders. Upon request by the
Administrative Agent or any Borrower at any time, Lenders will confirm in writing the
Administrative Agent’s authority to release any such Liens on particular types or items of
Collateral pursuant to this Section 11.12; provided, however, that (1) the Administrative
Agent shall not be required to execute any document necessary to evidence such release on terms
that, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or
create any obligation or entail any consequence other than the release of such Lien without
recourse, representation, or warranty, and (2) such release shall not in any manner discharge,
affect, or impair any Obligation of any Borrower or any Lien (other than a
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Lien expressly being
released) upon any interest retained by any Borrower, including, the proceeds of any sale, all of
which shall continue to constitute part of the Collateral.
(b) The Administrative Agent shall have no obligation whatsoever to any of Lenders to assure
that the Collateral exists or is owned by any Borrower or is cared for, protected, or insured or
has been encumbered, or that Liens of the Administrative Agent have been properly or sufficiently
or lawfully created, perfected, protected, or enforced or are entitled to any particular priority,
or to exercise at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and powers granted or available
to the Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed
that in respect of the Collateral, or any act, omission, or event related thereto, subject to the
terms and conditions contained herein, the Administrative Agent may act in any manner it may deem
appropriate, in its sole discretion given the Administrative Agent’s own interest in the Collateral
in its capacity as one of the Lenders, and that the Administrative Agent shall have no other duty
or liability whatsoever to any Lender as to any of the foregoing, except as otherwise provided
herein.
Section 11.13 Agency for Perfection. The Administrative Agent hereby appoints each other
Lender as its agent (and each Lender hereby accepts such appointment) for the purpose of perfecting
the Administrative Agent’s Liens in assets which, in accordance with Article 9 of the UCC can be
perfected only by possession. Should any Lender obtain possession of any such Collateral, such
Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral to the Administrative Agent or in accordance with
the Administrative Agent’s instructions.
Article XII. Assignments.
Section 12.01 Assignments.
(a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise
transfer any of its rights or obligations under this Agreement except (i) to an assignee in
accordance with Section 12.01(b), or (ii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 12.01(e) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby, and, to the
extent expressly contemplated hereby, the Related Parties of each of the Secured Parties)
any legal or equitable right, remedy, or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
banks or other entities (“Purchasers”) all or any part of its rights and
obligations under this Agreement and the Loan Documents. Such assignment shall be substantially
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in the form of Exhibit E or in such other form as may be agreed to by
the parties thereto. Each such assignment shall be subject to the following:
1) Minimum Amounts.
i) in the case of any assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Advances at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender no minimum
amount need be assigned; and
ii) in any case not described in clause (b)(i)(A) of this Section
12.01, the aggregate amount of the Commitment (which for this purpose
includes Advances outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Advances of
the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in
the Assignment and Acceptance, as of the Trade Date) shall not be less than
$2,500,000, in the case of any assignment in respect of a term facility,
unless each of the Administrative Agent and, so long as no Default or Event
of Default has occurred and is continuing, each Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed).
2) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Advance or the Commitment
assigned.
3) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section 12.01 and, in
addition:
i) the consent of each Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such
assignment is to a Lender or an Affiliate of a Lender or is in connection
with merger or consolidation of a Lender or a Transfer by Lender of one or
more of its loan portfolios; and
ii) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of (i) an unfunded or revolving credit facility if such assignment
is to a person that is not a Lender with a Commitment in respect of such
facility or an Affiliate of such Lender with respect to such Lender or (ii)
a funded term facility to a Person who is not a Lender or an Affiliate of a
Lender.
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4) Assignment and Acceptance. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and the assignee, if it is
not a Lender, shall deliver to the Administrative Agent an administrative
questionnaire in form prescribed by the Administrative Agent.
5) No Assignment to any Borrower. No such assignment shall be made to
any Borrower or to any of its Affiliates or Subsidiaries.
6) No Assignment to Natural Persons. No such assignment shall be made
to a natural person.
(c) Effect; Effective Date. Upon (i) delivery to the Administrative Agent of
an assignment, together with any consents required by Section 12.01(b), and (ii) payment of
a $3,500 fee to the Administrative Agent for processing such assignment (unless such fee is
waived by the Administrative Agent), such assignment shall become effective on the
assignment effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration used to make
the purchase of the Commitment and Advances under the applicable assignment agreement
constitutes “plan assets” as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be “plan assets” under ERISA. On and
after the assignment effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party thereto, and the
transferor Lender shall be released with respect to the Commitment and Advances assigned to
such Purchaser without any further consent or action by any Borrower, Lenders, or the
Administrative Agent. In the case of an assignment covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a Lender under
this Agreement but shall continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents that survive payment of the
Advances and termination of the applicable agreement. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.01, the transferor Lender, the
Administrative Agent, and each Borrower shall, if the transferor Lender or the Purchaser
desires that its Advances be evidenced by Notes, make appropriate arrangements so that new
Notes or, as appropriate, replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant to such
assignment.
(d) Register. The Administrative Agent shall maintain at one of its offices
in Columbus, Ohio a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Advances owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive,
and each Borrower, the Administrative Agent, and Lenders may treat each Person whose
62
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each Borrower at any reasonable time and from time to time upon
reasonable prior notice.
(e) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure obligations of
that Lender, including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided, that no such pledge or assignment shall release that Lender from
any of its obligations under this Agreement or substitute any such pledge or assignee for
such Lender as a party to this Agreement; provided, however that such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted by applicable law.
Section 12.02 Dissemination of Information. Each Borrower authorizes each Lender to
disclose to any Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a “Transferee”) and any prospective Transferee any and all documents
and information in such Lender’s possession relating to any Borrower and its Subsidiaries;
provided, that each Transferee and prospective Transferee agrees to be bound by Section
10.19 of this Agreement.
Section 12.03 Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee that is not incorporated under the laws of the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.03 of this Agreement.
[SIGNATURE PAGES FOLLOW]
63
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
and delivered as of the day and year first above written
BORROWERS: | ||||||
FRANKLIN CREDIT MANAGEMENT CORPORATION | ||||||
By: | /s/ Xxxxxx X. Xxxx | |||||
Name: | ||||||
Title: | President | |||||
Address for Notices: | ||||||
000 Xxxxxx Xx., 00xx Xxxxx | ||||||
Xxxxxx Xxxx, Xxx Xxxxxx 00000 | ||||||
Fax: (000) 000-0000 | ||||||
Attention: General Counsel | ||||||
With a copy to: | ||||||
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP | ||||||
0000 Xxxxxx xx xxx Xxxxxxxx | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Fax: (000) 000-0000 | ||||||
Attention: J. Xxxxxxx Xxxxxxxxx | ||||||
FRANKLIN CREDIT HOLDING CORPORATION | ||||||
By: | /s/ Xxxxxx X. Xxxx | |||||
Name: | ||||||
Title: | President | |||||
Address for Notices: | ||||||
Same as above. |
Signature Page to Amended and Restated Credit Agreement (Licensing)
ADMINISTRATIVE AGENT: | ||||||
THE HUNTINGTON NATIONAL BANK | ||||||
By: | /s/ Xxxx X Xxxxx | |||||
Name: | ||||||
Title: | Senior Vice President | |||||
Address for Notices: | ||||||
0000 Xxxxx Xxxx | ||||||
XX0X00 | ||||||
Xxxxxxxx, Xxxx 00000 | ||||||
Attn: Special Assets | ||||||
Telephone No.: (000) 000-0000 | ||||||
Telecopier No.: (000) 000-0000 | ||||||
With a copy to: | ||||||
Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP | ||||||
00 Xxxxx Xxxx Xxxxxx | ||||||
Xxxxxxxx, Xxxx 00000 | ||||||
Attn: Xxxxxxx X. Xxxxx, Esq. | ||||||
Telecopier No.: (000) 000-0000 | ||||||
Telephone No.: (000) 000-0000 |
Signature Page to Amended and Restated Credit Agreement (Licensing)
LENDERS: | ||||||
HUNTINGTON FINANCE, LLC, as Lender | ||||||
By: | /s/ Xxxxx X. Xxxxxx | |||||
Name: | ||||||
Title: | Vice President | |||||
Address for Notices: | ||||||
c/o Huntington Bancshares Incorporated | ||||||
00 Xxxxx Xxxx Xxxxxx | ||||||
Xxxxxxxx, Xxxx 00000 | ||||||
Attn: Xxxxx X. Xxxxxx, Vice President | ||||||
Telephone No.: (000) 000-0000 | ||||||
Telecopier No.: (000) 000-0000 | ||||||
With a copy to: | ||||||
Same Address as Administrative Agent. |
Signature Page to Amended and Restated Credit Agreement (Licensing)
Schedule 1
COMMITMENTS OF LENDERS
Letter of Credit Commitment — Huntington Finance LLC — $6,500,000 — 100%.
Revolving Loan Commitment — Huntington Finance LLC — $2,000,000 — 100%
Draw Loan Commitment — Huntington Finance, LLC — $5,000,000 — 100%
Schedule 1
Schedule 2.10
EXISTING LETTERS OF CREDIT
1. Franklin Credit – L/C# 004679 – Expires April 13, 2009 – $6,272,750.
2. Franklin Credit – L/C# 004680 – Expires December 31, 2010 – $190,500.
Schedule 2.10
Schedule 6.14
SUBSIDIARIES
Schedule 6.14
Schedule 6.17
LICENSES
Schedule 6.17
Schedule 7
TRANSACTION DOCUMENTS
1. | Transfer and Assignment Agreement, dated as of March 31, 2009, among Franklin Credit Asset Corporation, Franklin Credit Management Corporation, Tribeca Lending Corp. and each of their respective subsidiaries listed on Schedule I thereof and Franklin Mortgage Asset Trust 2009-A. |
2. | Servicing Agreement, dated as of March 31, 2009, between Franklin Mortgage Asset Trust 2009-A and Franklin Credit Management Corporation. |
3. | Trust Agreement dated as of March 31, 2009, among Franklin Credit Asset Corporation, Franklin Credit Management Corporation, Tribeca Lending Corp. and each of their respective subsidiaries listed on Schedule I thereof. |
4. | Administration Agreement, dated as of March 31, 2009, between The Huntington National Bank and Franklin Mortgage Asset Trust 2009-A. |
Schedule 7
Schedule 7.19
POST-CLOSING MATTERS
Schedule 7.19
EXHIBIT A-1
FORM OF REVOLVING LOAN NOTE
EXHIBIT A-2
FORM OF DRAW LOAN NOTE
EXHIBIT B
FORM OF GUARANTEE AGREEMENT
EXHIBIT C
FORM OF SECURITY AGREEMENT
EXHIBIT D
FORM OF INVESTMENT PROPERTY SECURITY AGREEMENT
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT