AMENDED AND RESTATED SECURITY
AGREEMENT
THIS AMENDED AND
RESTATED SECURITY AGREEMENT , dated as of March 31, 2009
(this " Agreement ”), is entered into by FRANKLIN
CREDIT ASSET CORPORATION , a Delaware corporation (“
Franklin Asset ”), TRIBECA LENDING CORP., a New York
corporation (“ Tribeca ”), FRANKLIN ASSET, LLC,
a Delaware limited liability company (“ Franklin LLC
”) and each of the entities listed on the signature pages
hereof as loan parties or that becomes a party hereto pursuant to
Section 7.10 , in favor of The Huntington National
Bank, acting hereunder as contractual representative pursuant to
the Credit Agreement (as defined below) for Lenders (as defined
below) (“ Huntington ”, acting as such
contractual representative and any successor or successors to
Huntington acting in such capacity, being referred to as “
Administrative Agent ”).
WHEREAS, Franklin Asset, Tribeca,
Franklin LLC and certain other Loan Parties, Administrative Agent,
and the financial institutions party thereto as Lenders
(Huntington, in its individual capacity, and such other financial
institutions being hereafter referred to collectively as “
Lenders ” and individually as “ Lender
”), have entered into a certain Amended and Restated Credit
Agreement, dated March 31, 2009 (as amended, supplemented,
modified or restated from time to time, the “ Credit
Agreement ”), pursuant to which Huntington and the other
Lenders have agreed to make and/or maintain advances and other
financial accommodations to and for the benefit of the Loan
Parties, upon the terms and subject to the conditions set forth in
the Credit Agreement (Administrative Agent and Lenders, together
with affiliates of Lenders, being referred to collectively as the
“ Secured Creditors ” and individually as a
“ Secured Creditor ”);
WHEREAS, this Agreement shall
amend and restate the Existing Security Agreements (as defined
below) in their entirety as of the date hereof on the terms and
subject to the conditions set forth herein, (ii) this
Agreement shall not constitute a novation of the obligations and
liabilities existing under the Existing Security Agreements or
evidence payment of all or any ofsuch obligations and liabilities
secured thereby, and (iii) from and after the date hereof, the
Existing Security Agreements shall be of no further force or
effect, except to secure the Secured Obligations (as defined below)
incurred, the representations and warranties made, and the actions
and omissions performed or required to be performed, thereunder
prior to the date hereof;
WHEREAS, the Credit Agreement,
each master credit and security agreement, flow warehousing credit
and security agreement, term loan and security agreement,
warehousing credit and security agreement, loan agreement, credit
agreement, forbearance agreement, promissory note, security
agreement, certificate, letter of credit reimbursement agreement,
pledge agreement, control agreement, joinder agreement, counterpart
signature page, assignment, guaranty agreement, banking services
agreement, hedging agreement, cash management agreement, consent
agreement, collateral agreement, amendment, modification agreement,
instrument and financing statements and other loan documents (as
any of the same may be amended, restated, supplemented, modified or
replaced from time to time) executed or delivered from time to time
to any Lender by any Loan Party, are collectively referred to as
the “ Credit Documents ”);
WHEREAS, pursuant to the
respective Credit Documents, Lenders have agreed subject to certain
conditions precedent, to make and/or maintain loans and other
financial accommodations to the Loan Parties from time to
time;
WHEREAS, the Secured Creditors
have required as a condition, among others, of extending credit to
any Loan Party or of renewing, extending, or forbearing from
demanding immediate payment of extensions of credit to the Loan
Parties, that Franklin Asset, Tribeca, Franklin LLC and the other
Loan Parties enter into this Agreement; and
WHEREAS, each Loan Party will
benefit, directly or indirectly, from credit and other financial
accommodations extended by the Secured Creditors to the Loan
Parties.
NOW, THEREFORE, in consideration
of the promises, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Franklin
Asset, Tribeca, Franklin LLC and each other Loan Party hereby
agrees with the Secured Creditors as follows:
(a) Terms
used herein that are defined in the UCC have the meanings given to
them in the UCC, including the following terms (which are
capitalized herein):
“ Account
Debtor ”, “ Accounts ”, “
Chattel Paper ”, “ Commercial Tort Claim
”, “ Commodity Account ”, “
Commodity Intermediary ”, “ Deposit
Account ”, “ Documents ”, “
Entitlement Holder ”, “ Entitlement Order
”, “ Equipment ”, “ Financial
Asset ”, “ General Intangibles ”,
“ Instruments ”, “ Inventory
”, “ Investment Property ”, “
Letter-of-Credit Right ”, “ Proceeds
”, “ Securities Account ”, “
Securities Intermediary ”, “ Security,
“ Security Entitlement ”.
(b) The
following terms shall have the following meanings:
“
Additional Pledged Collateral ” means all shares of,
partnership interests in (whether limited or general), trust
certificates of, and limited liability company interests in, all
securities convertible into, and warrants, options and other rights
to purchase or otherwise acquire, stock of or interests in, either
(i) any Person that, after the date of this Agreement, as a
result of any occurrence, becomes a direct Subsidiary of any Loan
Party or (ii) any issuer of Pledged Stock, any Partnership or
any LLC that is acquired by any Loan Party after the date hereof;
all certificates or other instruments representing any of the
foregoing; all Security Entitlements of any Loan Party in respect
of any of the foregoing; all additional indebtedness from time to
time owed to any Loan Party by any obligor on the Pledged Notes and
the instruments evidencing such indebtedness; and all interest,
cash, instruments and other property or Proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any of the foregoing. Additional Pledged Collateral
may be General Intangibles or Investment Property.
“
Agreement ” means this Agreement.
“
Approved Deposit Account ” means any present or future
Deposit Account of any Loan Party that (i) is maintained with
Huntington (or any affiliate thereof) or (ii) is subject to an
effective Deposit Account Control Agreement in favor of the
Administrative Agent and maintained with a Deposit Account Bank.
“ Approved Deposit Account ” includes all monies
on deposit in a Deposit Account and all certificates and
instruments, if any, representing or evidencing such Deposit
Account.
“
Approved Securities Intermediary ” means a Securities
Intermediary or Commodity Intermediary acceptable to the
Administrative Agent and with respect to which a Loan Party has
delivered to Administrative Agent an executed Control Account
Agreement.
“ Banking
Services ” means each and any of the following bank
services provided to any Loan Party by any Lender or any of its
affiliates: (a) commercial credit cards, (b) stored value
cards and (c) treasury management services (including, without
limitation, controlled disbursement, automated clearinghouse
transactions, return items, overdrafts and interstate depository
network services).
“
Bankruptcy Code ” means Title 11 of the United States
Code (11 USC, § 101 et seq ), as amended from
time to time, and any successor statute thereto, including (unless
the context requires otherwise) any rules or regulations
promulgated thereunder.
“
Borrower Representative ” shall mean Franklin Asset
acting as the representative of the Borrowers pursuant to
Section 2.09 of the Credit Agreement.
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“ Capital
Leases ” means a lease that is required to be capitalized
for financial reporting purposes in accordance with
GAAP.
“ Cash
Collateral Account ” means any deposit account over which
the Administrative Agent has sole dominion and control, established
by the Administrative Agent, in its sole discretion at the
Administrative Agent, and entitled “The Huntington National
Bank, as Agent and Secured Party for Franklin Credit Asset
Corporation (Blocked Account)” or such similar title as the
Administrative Agent may approve or require.
“ Cash
Equivalents ” means (i) marketable direct
obligations issued or unconditionally guaranteed by the United
States of America or issued by any agency thereof and backed by the
full faith and credit of the United States, in each case maturing
within one (1) year from the date of acquisition thereof,
(ii) marketable direct obligations issued by any state of the
United States or any political subdivision of any such state or any
public instrumentality thereof maturing within one (1) year
from the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from either
S&P or Moody’s, and (iii) certificates of deposit or
bankers’ acceptances maturing within one (1) year from
the date of acquisition thereof either (A) issued by any bank
organized under the laws of the United States or any state thereof
which bank has a rating of A or A2, or better, from S&P or
Moody’s, or (B) issued by any other bank insured by the
Federal Deposit Insurance Corporation, (“ FDIC
”) provided that such certificates of deposit are less than
or equal to, in the aggregate, the deposit insurance coverage limit
set by the FDIC for single ownership accounts.
“
Collateral ” has the meaning specified in
Section 2.1.
“
Collection Account ” means any Approved Deposit
Account or Control Account in which cash and Cash Equivalents may
from time to time be on deposit or held therein as provided in this
Agreement .
“
Contingent Obligations ” means any agreement,
undertaking or arrangement by which any Loan Party assumes,
guaranties, endorses, agrees to provide funding, or otherwise
becomes or is contingently liable upon the obligation or liability
of any other Loan Party.
“ Control
Account ” means a Securities Account or Commodity Account
that is subject of an effective Control Account Agreement and that
is maintained by any Loan Party with an Approved Securities
Intermediary. “ Control Account ” includes all
Financial Assets held in a Securities Account or a Commodity
Account and all certificates and instruments, if any, representing
or evidencing the Financial Assets contained therein.
“ Control
Account Agreement ” means an agreement, in form and
substance acceptable to the Administrative Agent, executed by the
relevant Loan Party, the Administrative Agent and the relevant
Approved Securities Intermediary.
“
Copyright Licenses ” means any written agreement
naming any Loan Party as licensor or licensee granting any right
under any Copyright, including the grant of any right to copy,
publicly perform, create derivative works, manufacture, distribute,
exploit or sell materials derived from any Copyright.
“
Copyrights ” means (a) all copyrights arising
under the laws of the United States, any other country or any
political subdivision thereof, whether registered or unregistered
and whether published or unpublished, all registrations and
recordings thereof and all applications in connection therewith,
including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts
thereof, and (b) the right to obtain all renewals
thereof.
“ Credit
Documents ” has the meaning specified above in the
recitals.
“ Deposit
Account Bank ” means a financial institution selected or
approved by the Administrative Agent and with respect to which a
Loan Party has delivered to the Administrative Agent an executed
Deposit Account Control Agreement.
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“ Deposit
Account Control Agreement ” means an agreement, in form
and substance acceptable to the Administrative Agent, executed by
the relevant Loan Party, the Administrative Agent and the relevant
Deposit Account Bank.
“ Event
of Default ” means each of the following:
(a) Franklin Asset, Tribeca, Franklin LLC or any other Loan
Party fails to perform or observe any covenant, agreement or duty
contained in this Agreement or any other Loan Document, or any
default, forbearance default, or event of default occurs under any
Loan Document, including, without limitation, the Credit Agreement;
or (b) any warranty, representation or other statement made or
deemed to be made in this Agreement or in any Loan Document is
false or misleading in any respect.
“
Excluded Property ” means Equipment owned by any Loan
Party that is, and continues to be, subject to a Permitted Lien
listed on Schedule 9 attached hereto, if the contract
or other agreement pursuant to which such Lien is granted contains
an enforceable prohibition on the creation of any Lien on such
Equipment in favor of the Administrative Agent; and (b) equity
interests (whether Investment Property or General Intangibles), if
the organizational or operating documents pursuant to which such
equity interests are issued or governed contain an enforceable
prohibition on the creation of any Lien on such equity interests in
favor of the Administrative Agent; in each case, only to the
extent, and for so long as, such prohibition is not removed,
terminated or rendered unenforceable or otherwise deemed
ineffective by applicable Law; provided, however, that
“ Excluded Property ” shall not include
(i) the right to receive any payment of money (including,
without limitation, general intangibles for money due or to become
due); and (ii) any proceeds, products, offspring, accessions,
rents, profits, income, benefits, substitutions or replacements of
any of the foregoing.
“
Existing Security Agreements ” means (a) that
certain Security Agreement, dated as of November 15, 2007, executed
and delivered by and among the Franklin Credit Holding Corporation,
Franklin Credit Management Corporation, Franklin Asset and certain
other Loan Parties, to and for the benefit of Huntington (as
amended, modified, supplemented or restated from time to time prior
to the date hereof), and (b) that certain Security Agreement,
dated as of December 28, 2007, executed and delivered by and
among Tribeca and certain other Loan Parties, to and for the
benefit of Huntington (as amended, modified, supplemented or
restated from time to time prior to the date hereof).
“
GAAP ” means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board, the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board as in
effect from time to time in the United States consistently
applied.
“
Governmental Authority ” means any nation or
government, any federal, state, local or other political
subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority
or other quasi-governmental entity established to perform any of
such functions.
“
Indebtedness ” means, at any time, (i) all
indebtedness, obligations or other liabilities (other than accounts
payable arising in the ordinary course of business payable on terms
customary in the trade) which in accordance with GAAP should be
classified as liabilities on the balance sheet of such Person,
including without limitation, (A) for borrowed money or
evidenced by debt securities, debentures, acceptances, notes or
other similar instruments, and any accrued interest, fees and
charges relating thereto, (B) under profit payment agreements
or in respect of obligations to redeem, repurchase or exchange any
securities or to pay dividends in respect of any stock, (C) with
respect to letters of credit, bankers acceptances, interest rate
swaps or other contracts, currency agreement or other financial
products, (D) to pay the deferred purchase price of property
or services, or (E) in respect of Capital Leases;
(ii) all indebtedness, obligations or other liabilities
secured by a lien on any property, whether or not such
indebtedness, obligations or liabilities are assumed by the owner
of the same; and (iii) all Contingent Obligations.
“
Insolvency Proceeding ” means any proceeding commenced
by or against any Person under any provision of the Bankruptcy Code
or under any other state or federal bankruptcy or insolvency law,
receivership,
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assignment for
the benefit of creditors, formal or informal moratorium,
forbearance, composition, extension generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar
relief.
“
Intellectual Property ” means, collectively, all
rights, priorities and privileges of any Loan Party relating to
intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including domain names,
Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks, Trademark Licenses and trade secrets, and all rights to
sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages
therefrom.
“
Intercompany Note ” means any promissory note
evidencing loans made by any Loan Party to any of its Subsidiaries
or another Loan Party.
“ Joinder
Agreement ” means a joinder agreement, in the form and
substance acceptable to the Administrative Agent, executed by the
Administrative Agent and the relevant Subsidiary that Franklin
Asset, Tribeca, Franklin LLC or any other Loan Party is required to
cause to become a party hereto as a Loan Party.
“ Law
” means any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental
Authority.
“
Lien ” means any interest in an asset securing an
obligation owed to, or a claim by, any Person other than the owner
of the asset, whether such interest shall be based on the common
law, statute, or contract, whether such interest shall be recorded
or perfected, and whether such interest shall be contingent upon
the occurrence of some future event or events or the existence of
some future circumstance or circumstances, including the lien or
security interest arising from any mortgage, deed of trust,
encumbrance, pledge, hypothecation, assignment (collateral or
otherwise), hypothec, deposit arrangement, security agreement,
conditional sale, trust receipt, lease, consignment, or bailment
for security purposes, judgment, claim encumbrance or statutory
trust and also including reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions,
leases, and other title exceptions and encumbrances affecting real
property.
“ LLC
” means each limited liability company in which a Loan Party
has an interest, including those set forth on
Schedule 3.
“ LLC
Agreement ” means each operating agreement with respect
to an LLC, as each agreement has heretofore been, and may hereafter
be, amended, restated, supplemented or otherwise modified from time
to time.
“ Loan
Documents ” means the Credit Documents, any agreements or
documents evidencing or relating to the provision of any Banking
Services by any Lender for the benefit of a Loan Party, and any
other agreement, document, or arrangement (whether now existing or
hereafter arising) by and among a Lender (or its affiliate) and one
or more Loan Party.
“ Loan
Party ” means each of Franklin Asset, Tribeca, Franklin
LLC, and any affiliate or Subsidiary of Franklin Asset, Tribeca or
Franklin LLC that is a signatory hereto on the date of this
Agreement, and any other Person who becomes a party to this
Agreement pursuant to a Joinder Agreement (in accordance with
Section 7.10), and their respective successors and assigns.
The term “Loan Party” or “Loan Parties” as
used herein shall mean and include the Loan Parties collectively
and also each individually, with all grants, representations,
warranties, and covenants of and by the Loan Parties, or any of
them, herein contained to constitute joint and several grants,
representations, warranties, and covenants of and by the Loan
Parties.
“
Material Intellectual Property ” means Intellectual
Property owned by or licensed to a Loan Party and material to such
Loan Party’s business.
5
“
Partnership ” means each partnership or joint venture
in which a Loan Party has an interest, including those set forth on
Schedule 3 .
“
Partnership Agreement ” means each partnership or
joint venture agreement governing a Partnership, as each such
agreement has heretofore been, and may hereafter be, amended,
restated, supplemented or otherwise modified.
“
Patents ” means (a) all letters patent of the
United States, any other country or any political subdivision
thereof and all reissues and extensions thereof, (b) all
applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part
thereof and (c) all rights to obtain any reissues or
extensions of the foregoing.
“ Patent
License ” means all agreements, whether written or oral,
providing for the grant by or to any Loan Party of any right to
manufacture, use, import, sell or offer for sale any invention
covered in whole or in part by a Patent.
“
Permitted Contests ” means the right of Franklin
Asset, Tribeca, Franklin LLC or another Loan Party to contest or
protest any Lien (other than any such Lien that secures the Secured
Obligations), taxes (other than payroll taxes or taxes that are the
subject of a United States federal tax lien), or rental payment,
provided that (i) a reserve with respect to such obligation is
established on Franklin Asset’s, Tribeca’s, Franklin
LLC’s or another Loan Party’s, as the case may be,
books and records in such amount as is required under GAAP,
(ii) any such protest is instituted promptly and prosecuted
diligently by Franklin Asset, Tribeca, Franklin LLC or the
applicable other Loan Party in good faith, and (iii) the
Administrative Agent is satisfied in its sole, good faith
discretion, that, while any such protest is pending, there will be
no impairment of the enforceability, validity, or priority of any
of the Administrative Agent’s Liens.
“
Permitted Liens ” means (i) any Liens held by the
Administrative Agent or an affiliate of the Administrative Agent,
(ii) Liens for unpaid taxes that either are not yet
delinquent, or do not constitute an Event of Default hereunder and
are the subject of a Permitted Contest, (iii) Liens set forth
on Schedule 9 to the extent of the Indebtedness
referenced therein, (iv) the interests of lessors under
operating leases, (v) Liens securing purchase money
Indebtedness or the interests of lessors under Capital Leases to
the extent that such Liens or interests secure Permitted Purchase
Money Indebtedness, (vi) Liens arising by operation of law in
favor of warehousemen, landlords, carriers, mechanics, materialmen,
or laborers, incurred in the ordinary course of a Loan
Party’s business and not in connection with the borrowing of
money, and which Liens either (A) are for sums not yet
delinquent, or (B) are the subject of Permitted Contests,
(vii) Liens arising from deposits made in connection with
obtaining worker’s compensation or other unemployment
insurance, (viii) Liens or deposits to secure performance of bids,
tenders, or leases incurred in the ordinary course of a Loan
Party’s business and not in connection with the borrowing of
money, (ix) Liens granted as security for surety or appeal
bonds in connection with obtaining such bonds in the ordinary
course of a Loan Party’s business, and (x) Liens
resulting from any judgment or award that is not an Event of
Default hereunder.
“
Permitted Purchase Money Indebtedness ” means secured
or unsecured purchase money Indebtedness (including obligations
under Capital Leases) incurred to finance the acquisition of fixed
assets or equipment, if such Indebtedness (i) has a scheduled
maturity and is not due on demand, (ii) does not exceed the
purchase price of the items being purchased, and (iii) is not
secured by any property or assets other than the item or items
being purchased.
“
Person ” means any individual, corporation, firm,
enterprise, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, limited liability
company or any other entity of any kind or any government or
political subdivision or any agency, department or instrumentality
thereof.
“ Pledged
Collateral ” means, collectively, the Pledged Notes, the
Pledged Stock, the Pledged Trust Certificates, the Pledged
Partnership Interests, the Pledged LLC Interests, any other
Investment Property of any
6
Loan Party, all
certificates or other instruments representing any of the foregoing
and all Security Entitlements of any Loan Party in respect of any
of the foregoing. Pledged Collateral may be General Intangibles or
Investment Property.
“ Pledged
LLC Interests ” means all right, title and interest of
any Loan Party as a member of any LLC and all right, title and
interest of any Loan Party in, to and under any LLC Agreement to
which it is a party.
“ Pledged
Notes ” means all right, title and interest of any Loan
Party in the Instruments evidencing all Indebtedness owed to such
Loan Party, including all Indebtedness described on
Schedule 3 , issued by the obligors named
therein.
“ Pledged
Partnership Interests ” means all right, title and
interest of any Loan Party as a limited or general partner in all
Partnerships and all right, title and interest of any Loan Party
in, to and under any Partnership Agreements to which it is a
party.
“ Pledged
Stock ” means the shares of capital stock owned by each
Loan Party, including all shares of capital stock listed on
Schedule 3 .
“ Pledged
Trust Certificates ” means trust certificates issued by
or on behalf of a statutory trust and owned or held by a Loan
Party.
“ Rate
Management Transactions ” means any transaction
(including an agreement with respect thereto) now existing or
hereafter entered into among Franklin Asset, Tribeca, Franklin LLC,
any Subsidiary thereof, any Lender or any affiliate of a Lender, or
any of its subsidiaries or affiliates or their successors, which is
a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to
one or more interest rates, foreign currencies, commodity prices,
equity prices or other financial measures.
“ Secured
Obligations ” means (a) any and all indebtedness,
obligations, and liabilities now existing or hereafter arising of
Franklin Asset, Tribeca, Franklin LLC or any other Loan Party to
one or more Lender (or any affiliate) or arising under or in
connection with or evidenced by (i) the Credit Documents, this
Agreement, or any other Loan Document, (ii) any other
agreement relating to (A) letters of credit or pursuant to any
letter of credit agreement or application (if any), or pursuant to
any agreement or document relating to Banking Services,
(B) any agreement in respect of any Rate Management
Transaction, (C) any agreement for any electronic transfers,
treasury management, cash management services and deposit and
disbursement account liability, and (D) any agreement of
guaranty, surety or indemnity issued by such Person, (b) any
and all indebtedness, obligations, and liabilities, now existing or
hereafter arising, whether absolute or contingent and however and
whenever created, arising, evidenced or acquired, of Franklin
Asset, Tribeca, Franklin LLC or any other Loan Party owed to any
Lender (or any affiliate of a Lender), (and in each instance in
clauses (a)and (b) above, whether arising before or after the
filing of a petition in bankruptcy and including all interest
accrued after any such petition date), due or to become due, direct
or indirect, absolute or contingent, and howsoever evidenced, held
or acquired, and (c) any and all reasonable expenses and
charges, legal or otherwise, suffered or incurred by a Lender or
any affiliate of a Lender in collecting or enforcing any such
indebtedness, obligation, and liability or in realizing on or
protecting or preserving any security therefor, including, without
limitation, the Lien and security interest granted by any Credit
Document.
“
Securities Act ” means the Securities Act of 1933, as
amended.
“
Subsidiary ” of a Person means any corporation,
partnership, limited liability company or other entity in which
such Person directly or indirectly owns or controls the securities
or other ownership interests having
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ordinary voting
power to elect a majority of the board of directors, or appoint
managers or other persons performing similar functions.
“
Trademark License ” means any agreement, whether
written or oral, providing for the grant by or to any Loan Party of
any right to use any Trademark.
“
Trademarks ” means (a) all trademarks, trade
names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos and other source
or business identifiers, and, in each case, all goodwill associated
therewith, whether now existing or hereafter adopted or acquired,
all registrations and recordings thereof and all applications in
connection therewith, in each case whether in the United States
Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (b) the right to obtain all
renewals thereof.
“ Trust
Agreement ” means that certain Trust Agreement, dated as
of March 31, 2009, by and among Franklin Asset, LLC, as
depositor, The Huntington National Bank, as certificate trustee,
Wilmington Trust Company, as owner trustee.
“ UCC
” means the Uniform Commercial Code as from time to time in
effect in the State of Ohio; provided , however ,
that, in the event that, by reason of mandatory provisions of Law,
any of the attachment, perfection or priority of the Administrative
Agent’s security interest in any Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other
than the State of Ohio, the term “ UCC ” shall
mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions
related to such provisions.
“
Vehicles ” means all vehicles covered by a certificate
of title law of any state.
Section 1.2 Certain Other Terms
(a) In this
Agreement, in the computation of periods of time from a specified
date to a later specified date, the word “from” means
“from and including” and the words “to” and
“until” each mean “to but excluding” and
the word “through” means “to and
including.”
(b) The terms
“herein,” “hereof,” “hereto”
and “hereunder” and similar terms refer to this
Agreement as a whole and not to any particular Article, Section,
subsection or clause in this Agreement.
(c) References
herein to a Schedule, Article, Section, subsection or clause refer
to the appropriate Schedule to, or Article, Section, subsection or
clause in this Agreement.
(d) The
meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(e) Where the
context requires, provisions relating to any Collateral, when used
in relation to a Loan Party, shall refer to such Loan Party’s
Collateral or any relevant part thereof.
(f) Any
reference in this Agreement to a Loan Document shall include all
appendices, exhibits and schedules thereto, and, unless
specifically stated otherwise all amendments, restatements,
supplements or other modifications thereto, and as the same may be
in effect at any time such reference becomes operative.
(g) Each of
the terms “Lender”, “Lenders”,
“Secured Creditor”, and “Secured Creditors”
includes its or their respective successors or assigns.
(h) References
in this Agreement to any statute shall be to such statute as
amended or modified and in effect from time to time.
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ARTICLE II Grant of Security
Interest
For the purposes
of this Agreement, all of the following property now owned or at
any time hereafter acquired by a Loan Party or in which a Loan
Party now has or at any time in the future may acquire any right,
title or interests is collectively referred to as the “
Collateral ”:
all Accounts and
all rights to payment, whether or not earned by performance,
including, without limitation, for property that has been or is to
be sold, leased, licensed, assigned or otherwise disposed of, for
services rendered or to be rendered, to a government, state, or
governmental unit, or for or in connection with any federal, state
or local governmental relief, bailout or other similar program or
plan, whether or not arising under statute, rule or regulation; all
Chattel Paper; all Deposit Accounts; any amounts or refunds
received from or in connection with any taxing authority; all
Documents; all Equipment; all General Intangibles (including,
without limitation, all contractual rights arising under any
purchase agreement or assignments relating to mortgage loans); all
Instruments; all Inventory; all Investment Property; all
Letter-of-Credit Rights; all Vehicles; the Commercial Tort Claims
described on Schedule 8 and on any supplement thereto
received by the Administrative Agent; all books and records
pertaining to the other property described in this
Section 2.1 ; all other goods and personal property of
such Loan Party, whether tangible or intangible and wherever
located; all property of any Loan Party held by any Lender,
including all property of every description, in the possession or
custody of or in transit to the Administrative Agent for any
purpose, including safekeeping, collection or pledge, for the
account of such Loan Party or as to which such Loan Party may have
any right or power; and to the extent not otherwise included, all
Proceeds.
Section 2.2 Grant of Security Interest in
Collateral
Each Loan Party,
as collateral security for the full, prompt and complete payment
and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, hereby
collaterally assigns, mortgages, pledges and hypothecates to
Administrative Agent (for the benefit of the Secured Creditors),
and grants (whether under the UCC or otherwise) to Administrative
Agent (for the benefit of the Secured Creditors), a lien on and
security interest in, and a collateral assignment of, all of its
right, title and interest in, to and under the Collateral of such
Loan Party; provided , however , that the foregoing
grant of security interest shall not include a security interest in
any Excluded Property; provided , further , that, if
and when any property shall cease to be Excluded Property, the
Administrative Agent shall have, and at all times after the date
hereof deemed to have had, a security interest in such
property.
Section 2.3 Cash Collateral Accounts
The Administrative
Agent may, in its discretion, establish one or more Cash Collateral
Accounts with Huntington, one or more other Deposit Account Banks
and one or more Approved Securities Intermediaries as it in its
sole discretion shall determine. Each such account shall be in the
name of the Administrative Agent (as Agent for the benefit of the
Secured Creditors) (but may also have words referring to each Loan
Party and such account’s purpose). Each Loan Party agrees
that each such Cash Collateral Account shall be under the sole
dominion and control of the Administrative Agent, as Agent for the
benefit of the Secured Creditors. The Administrative Agent shall be
the sole Entitlement Holder with respect to each Securities Account
constituting a Cash Collateral Account and the only Persons
authorized to give Entitlement Orders with respect thereto. No Loan
Party or Person claiming on behalf of any Loan Party shall have any
right to demand payment of any funds held in any Cash Collateral
Account at any time prior to the termination of all outstanding
letters of credit and the indefeasible payment in full of all
Secured Obligations. During the continuance of an Event of Default,
the
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Administrative
Agent shall apply all funds on deposit in any Cash Collateral
Account in accordance with the terms and conditions of the Credit
Agreement and otherwise as the Administrative Agent may
elect.
ARTICLE III Representations and
Warranties
To induce the
Administrative Agent and Lenders to enter into or maintain the
Credit Documents, each Loan Party hereby represents and warrants
each of the following to each Secured Creditor:
Section 3.1 Title; No Other Liens
Except for the
Lien granted to the Administrative Agent pursuant to this Agreement
and the other Permitted Liens, such Loan Party is the record and
beneficial owner of the Pledged Collateral pledged by it hereunder
constituting Instruments or certificated securities, is the
Entitlement Holder of all such Pledged Collateral constituting
Investment Property held in a Securities Account and has rights in
or the power to transfer each other item of Collateral in which a
Lien is granted by it hereunder, free and clear of any
Lien.
Section 3.2 Perfection and Priority
The security
interest granted pursuant to this Agreement shall constitute a
valid and continuing perfected security interest in favor of the
Administrative Agent in the Collateral for which perfection is
governed by the UCC or filing with the United States Copyright
Office upon (i) the completion of the filings and other actions
specified on Schedule 4 which, in the case of all
filings and other documents referred to on such schedule, have been
delivered to the Administrative Agent in completed and duly
executed form), (ii) the delivery to the Administrative Agent
of all Collateral consisting of Instruments and certificated
securities, in each case properly endorsed for transfer to the
Administrative Agent or in blank, (iii) the execution of
Control Account Agreements with respect to Investment Property not
in certificated form, (iv) the execution of Deposit Account
Control Agreements with respect to all Deposit Accounts and
(v) all appropriate filings having been made with the United
States Copyright Office. Such security interest shall be prior to
all other Liens on the Collateral except for Permitted Liens having
priority over the Administrative Agent’s Lien by operation of
law or otherwise, as permitted under this Agreement or any other
Loan Documents.
Section 3.3 Name; Jurisdiction of Organization; Chief
Executive Office
Except as set
forth on Schedule 2 , within the five-year period
preceding the date hereof, such Loan Party has not had, or operated
in any jurisdiction, under any trade name, fictitious name or other
name other than its legal name, and such Loan Party’s
jurisdiction of organization, organizational identification number,
if any, and the location of such Loan Party’s chief executive
office
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