Franklin Credit Management Corporation 10-12GExhibit 10.7






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, 

THE FINANCIAL
INSTITUTIONS PARTY HERETO AS LENDERS,
as Lenders, and 

THE HUNTINGTON
NATIONAL 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	 



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	 	 	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 Moody’s, 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 Moody’s, (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 6 Harrison
      Street, Unit 6, New York, New York, 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 350
      Albany St. New York, New York; 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) Thomas J. Axon, 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 James Thomas Realty LLC.


     “Guarantor Collateral” shall
mean collectively (i) a Mortgage on certain commercial real Property in
favor of the Administrative Agent, commonly known as 6 Harrison Street, Unit 5,
New York, New York, 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 

8










 




$2,019,919.02 as of
the Effective Date, secured by first and second Mortgages on commercial Real
Property known as 18 Harrison Street, New York, New York, 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 185 Franklin Street, New York, New York . 

     “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. 

9










 




     “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. 

10










 




     “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 

11










 




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 

12










 




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 Moody’s
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. 

13










 




     “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.


14










 




     “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. 

16










 




     “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. 

17










 




     “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. 

18










 




     (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, sue 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 

30










 




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 Mr. Thomas J. Axon;
	 
	 	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;



31










 





	 	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.



32










 





	 	(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 

33










 




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 

34










 




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. 

36










 




          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;


39










 




     (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. 

41










 




          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 

43










 




     (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, 

44










 




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 

46










 




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 

47










 




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 

48










 




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; 

49










 




     (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
      SUE 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.



51










 








          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 sue 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.


52










 




     (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 

53










 




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 

55










 




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 

56










 




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


57










 




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


58










 




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 

59










 




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 

60










 




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. 

61










 




     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/ Thomas J. Axon 	 	 
	
       
	 	Name: 	 	
       
Thomas
      J. Axon 	 	 
	
       
	 	Title: 	 	President	 	 
	
       
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	
       
	 	 	 	 	 	 
	 	 	101 Hudson St., 25th Floor	 	 
	 	 	Jersey City, New Jersey 07302	 	 
	 	 	Fax: (201) 604-4400	 	 
	 	 	Attention: General Counsel	 	 
	
       
	 	 	 	 	 	 
	 	 	With a copy to:	 	 
	
       
	 	 	 	 	 	 
	 	 	Kramer Levin Naftalis & Frankel
    LLP	 	 
	 	 	1177 Avenue of the Americas	 	 
	 	 	New York, New York 10036	 	 
	 	 	Fax: (212) 715-8346	 	 
	 	 	Attention: J. Michael Mayerfeld	 	 
	
       
	 	 	 	 	 	 
	 	 	FRANKLIN CREDIT HOLDING
      CORPORATION	 	 
	
       
	 	 	 	 	 	 
	
       
	 	By:	 	/s/ Thomas J. Axon 	 	 
	
       
	 	Name: 	 	
       
Thomas
      J. Axon 	 	 
	
       
	 	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/ Alan D Seitz	 	 
	
       
	 	Name: 	 	
       
Alan D.
      Seitz 	 	 
	
       
	 	Title: 	 	Senior Vice President	 	 
	
       
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	
       
	 	 	 	 	 	 
	 	 	2361 Morse Road	 	 
	 	 	NC3W67	 	 
	 	 	Columbus, Ohio 43229	 	 
	 	 	Attn: Special Assets	 	 
	 	 	Telephone No.: (614) 480-5355	 	 
	 	 	Telecopier No.: (614) 480-3795	 	 
	
       
	 	 	 	 	 	 
	 	 	With a copy to:	 	 
	
       
	 	 	 	 	 	 
	 	 	Porter Wright Morris & Arthur
    LLP	 	 
	 	 	41 South High Street	 	 
	 	 	Columbus, Ohio 43215	 	 
	 	 	Attn: Timothy E. Grady, Esq.	 	 
	 	 	Telecopier No.: (614) 227-2105	 	 
	 	 	Telephone No.: (614) 227-2100	 	 



Signature Page to
Amended and Restated Credit Agreement (Licensing) 

 










 





	 	 	 	 	 	 	 
	 	 	LENDERS:	 	 
	
       
	 	 	 	 	 	 
	 	 	HUNTINGTON FINANCE, LLC, as
      Lender	 	 
	
       
	 	 	 	 	 	 
	
       
	 	By:	 	/s/ James K. Ciroli	 	 
	
       
	 	Name: 	 	
       
James K.
      Ciroli 	 	 
	
       
	 	Title: 	 	Vice President	 	 
	
       
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	
       
	 	 	 	 	 	 
	 	 	c/o Huntington Bancshares
    Incorporated	 	 
	 	 	41 South High Street	 	 
	 	 	Columbus, Ohio 43215	 	 
	 	 	Attn: James K. Ciroli, Vice
    President	 	 
	 	 	Telephone No.: (614) 480-5931	 	 
	 	 	Telecopier No.: (614) 480-4284	 	 
	
       
	 	 	 	 	 	 
	 	 	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