INVESTMENT PROPERTY SECURITY
AGREEMENT
This Investment
Property Security Agreement (this “ Agreement
”), is entered into as of the 31 st day of March, 2009. FRANKLIN CREDIT MANAGEMENT
CORPORATION, a corporation organized under the laws of the State of
Delaware (hereinafter called “ Pledgor ”), for
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby grants, pledges, and assigns to
(a) THE HUNTINGTON NATIONAL BANK, acting as contractual
representative pursuant to the Credit Agreement (Licensing) (as
defined below) (“ Huntington ,” and acting as
such contractual representative and any successor or successors to
Huntington acting in such capacity, being referred to as “
Administrative Agent ”) and (b) THE HUNTINGTON
NATIONAL BANK, acting as contractual representative pursuant to the
Credit Agreement (Legacy) (as defined below) (“
Huntington ,” and acting as such contractual
representative and any successor or successors to Huntington acting
in such capacity, being referred to as “ Administrative
Agent ”), for the benefit of the Lenders (as defined
below), a security interest in the following account (the “
Account ”), whether Pledgor’s interest therein
be now owned or existing or hereafter arising or acquired, together
with all substitutions, replacements, exchanges, reissues and
additions therefor or thereto:
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Account Number
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Name and Address
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and Title
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of
“Intermediary”
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Name: The
Huntington National Bank
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Name: FMCC
Money Market Account
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Address: 41
South High St.
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Columbus,
Ohio 43214
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Attention:
Melanie Arthur
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as it exists on
the date hereof and as it may be constituted in the future, and
in
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any
free credit balance or other money, now or hereafter credited to,
or owing from Intermediary to Pledgor in respect of, the
Account;
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any
money, securities (certificated or uncertificated), commodities
contracts, instruments, documents, general intangibles, financial
assets or other investment property arising in connection with,
constituting a portion of, or distributed from the Account, now or
in the future;
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all
books and records relating thereto;
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all
proceeds, cash or non-cash, of the sale, exchange, redemption or
exercise of any of the foregoing thereof, including, but not
limited to, any dividend, interest payment or other distribution of
cash or property in respect thereof; and
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any
rights incidental to the ownership of any of the foregoing, such as
voting, conversion and registration rights and rights of recovery
for violations of applicable securities laws
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(all of the
foregoing may be referred to herein as the “
Collateral ”) on the following terms and subject to
the following conditions:
Article 1. Other Credit
Documents.
Section 1.1. Credit Agreement. This Agreement is
executed pursuant to, and subject to the terms and conditions of,
each Credit Agreement. “ Credit Agreement ”
means each of those certain (a) Amended and Restated Credit
Agreement (Licensing), dated as of March 31, 2009 (the “
Credit Agreement (Licensing) ”), by and among Pledgor
and Franklin Credit Holding Corporation (“ Holding
”) as borrowers, the Administrative Agent, and the financial
institutions party thereto as Lenders (Huntington, in its
individual capacity and as Issuing Bank, and such other financial
institutions being hereafter referred to collectively as “
Licensing Lenders ” and individually as a “
Licensing Lender ”) together with all amendments,
modifications, supplements and restatements thereto from time to
time and (b) Amended and Restated Credit Agreement, dated as
of March 31, 2009 (the “ Credit Agreement
(Legacy) ”), by and among Franklin Credit Asset
Corporation, Tribeca Lending Corporation, the other borrowers party
thereto (the “ Legacy Borrowers ”), the
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
“ Legacy Lenders ” and individually as a “
Legacy Lender ”). “ Lenders ” means
the Licensing Lenders and the Legacy Lenders. Capitalized terms
used in this Agreement but not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement
(Licensing), unless otherwise designated.
Article 2. Security
Interest.
Section 2.1. Control Agreement and Capitalized Terms.
Simultaneously with the execution and delivery of this Agreement,
Pledgor, Administrative Agent and Intermediary have executed and
delivered that certain Account Control Agreement dated of even date
herewith (the “ Control Agreement ”) for the
purpose of providing Administrative Agent with control of the
Account and perfecting the security interest and Lien granted by
Pledgor to Administrative Agent herein.
Section 2.2. Secured Obligations. The pledge, security
interest, and collateral assignment hereby granted is to secure the
prompt and full payment and complete performance of all Obligations
to the Administrative Agent or any Lender (i) of Pledgor and
Holding arising under or in connection with the Credit Agreement
(Licensing), the promissory notes and all other Loan Documents (as
defined in the Credit Agreement (Licensing)) executed in connection
with the Credit Agreement (Licensing) and (ii) of Pledgor and
the Legacy Borrowers arising under or in connection with the Credit
Agreement (Legacy), the promissory notes and all other Loan
Documents (as defined in the Credit Agreement (Legacy)) executed in
connection with the Credit Agreement (Legacy). “
Obligations ” means, as to any Person, 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
Pledgor’s account pursuant hereto), obligations (including
indemnification obligations), fees (including any fees provided for
in any Credit 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 such Person
to the Administrative Agent or any Lender 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 such Person is required to pay or reimburse,
all of the foregoing arising in connection with any Credit
Agreement, by law, or otherwise. The absence of any reference to
this Agreement in any documents, instruments or agreements
evidencing or relating to any Obligation secured hereby shall not
limit or be construed to limit the scope or applicability of this
Agreement.
Section 2.3. Blocked Account. Pledgor acknowledges and
agrees that the Account is designated as a “blocked
account” under the Control Agreement, and thus the
Intermediary may not act upon any direction or instruction of
Pledgor with respect to any portion of the Collateral at any
time.
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Section 2.4. Duty of Administrative Agent. If
Administrative Agent takes possession of any of the Collateral, the
duty of Administrative Agent with respect to the Collateral shall
be solely to use reasonable care in the physical custody thereof,
and Administrative Agent shall not be under any obligation to take
any action with respect to any of the Collateral or to preserve
rights against prior parties. The powers conferred on
Administrative Agent hereunder are solely to protect its interest
in the Collateral and do not impose any duty upon it to exercise
any such powers. Pledgor is not looking to Administrative Agent to
provide it with investment advice. Administrative Agent shall have
no duty to ascertain or take any action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
concerning any Collateral, whether or not Administrative Agent has
or is deemed to have knowledge of such matters, or as to the taking
of any necessary steps to preserve any rights pertaining to any
Collateral. Administrative Agent shall have no duty to exercise
reasonable care to preserve the value of any of the
Collateral.
Section 2.5. Subsequent Changes Affecting Collateral.
Pledgor acknowledges that it has made its own arrangements for
keeping informed of changes or potential changes affecting the
Collateral and Pledgor agrees that Administrative Agent has no
responsibility to inform Pledgor of such matters or to take any
action with respect thereto even if any of the Collateral has been
registered in the name of Administrative Agent or its agent or
nominee.
Section 2.6. Return of Collateral. Except as otherwise
provided herein or as in any Loan Documents (as defined in the
Credit Agreements), the security interest granted to Administrative
Agent hereunder shall not terminate and Administrative Agent shall
not be required to return the Collateral to Pledgor or to terminate
its security interest therein unless and until (a) the
Obligations have been fully paid or performed, (b) all of
Pledgor’s obligations hereunder have been fully and
indefeasibly paid or performed, (c) the obligations of all
parties to the Loan Documents (as defined in the Credit Agreements)
have been discharged or released, and (d) Pledgor has
reimbursed Administrative Agent for any expenses of returning the
Collateral and filing any termination statements and other
instruments as are required to be filed in public offices under
applicable laws.
Section 2.7. Tax Reporting. All items of income, gain,
expense and loss recognized in the Account shall be reported to the
Internal Revenue Service and all state and local taxing authorities
under the name and taxpayer identification number of
Pledgor.
Section 2.8. Financing Statements. Pledgor hereby
authorizes Administrative Agent to file financing statements
describing the Collateral, and any necessary future amendments
thereto, in any and all public offices in which Administrative
Agent deems such filing to be necessary or desirable.
Article 3. Representations and
Warranties. Pledgor
hereby represents and warrants to Administrative Agent and Lenders
as follows:
Section 3.1. Enforceability. This Agreement and the
Control Agreement have been duly executed and delivered by Pledgor,
constitute its valid and legally binding obligations and are
enforceable in accordance with their respective terms against
Pledgor.
Section 3.2. No Conflict. The execution, delivery and
performance of this Agreement and the Control Agreement, the grant
of the security interest in the Collateral hereunder and the
consummation of the transactions contemplated hereby and thereby
will not, with or without the giving of notice or the lapse of
time, (a) violate any material law applicable to Pledgor, (b)
violate any judgment, writ, injunction or order of
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any court or
governmental body or official applicable to Pledgor,
(c) violate or result in the breach of any material agreement
to which Pledgor is a party or by which any of its properties,
including the Collateral, is bound; (d) conflict with, or
result in any breach of any of the provisions of, or constitute a
default under, or result in the creation or imposition of, any lien
upon any of the property of Pledgor pursuant to, the provisions of
the Certificate of Incorporation or bylaws of Pledgor; nor
(e) violate any restriction on the transfer of any of the
Collateral.
Section 3.3. No Consents. No consent, approval,
license, permit or other authorization of any third party (other
than Intermediary) or any governmental body or officer is required
for the valid and lawful execution and delivery of this Agreement
and the Control Agreement, the creation and perfection of
Administrative Agent’s security interest in the Collateral,
or the valid and lawful exercise by Administrative Agent of
remedies available to it under this Agreement, the Control
Agreement or applicable law, or of the voting and other rights
granted to it in this Agreement or the Control Agreement, except as
may be required for the offer or sale of those items of Collateral
which are securities under applicable securities laws.
Section 3.4. Account. The securities entitlements
credited to the Account are valid and genuine and Pledgor has
provided Administrative Agent with a complete and accurate
statement of the financial assets and the money credited to the
Account as of the date hereof.
Section 3.5. Security Interest. Pledgor is the sole
owner of the Collateral free and clear of all liens, encumbrances,
and adverse claims (other than those created by this Agreement),
has the unrestricted right to grant the security interest provided
for herein to Administrative Agent and has granted to
Administrative Agent a valid and perfected first priority security
interest in the Collateral free of all liens, encumbrances,
transfer restrictions, and adverse claims.
Section 3.6. Information. None of the information,
documents, or financial statements which have been supplied by
Pledgor or its officers, agents or representatives to
Administrative Agent or any of its representatives in connection
with the transactions contemplated by this Agreement or the Loan
Documents contains any untrue statement of material fact or omits
to state any material fact required to be stated hereby or thereby
to make such statements not misleading.
Article 4. Covenants.
Pledgor hereby covenants and agrees
with Administrative Agent that Pledgor shall:
Section 4.1. Defend Title. Defend its title to the
Collateral and the security interest of Administrative Agent
therein against the claims of any person claiming rights in the
Collateral against or through Pl
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