ISDA ® International Swap Dealers Association, Inc. MASTER AGREEMENT dated as of February 27, 2008
(Local Currency — Single Jurisdiction)
ISDA ®
International
Swap Dealers Association, Inc.
dated as of
February 27, 2008
The Huntington National
Bank
and
Franklin Credit Management Corporation
have entered
and/or
anticipate entering into one or more transactions (each a
“Transaction”) that are or will be governed by this
Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming
evidence (each a “Confirmation”) exchanged between the
parties confirming those Transactions.
Accordingly,
the parties agree as follows: —
| 1. | Interpretation |
(a) Definitions. The terms defined
in Section 12 and in the Schedule will have the meanings
therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of
any inconsistency between the provisions of the Schedule and the
other provisions of this Master Agreement, the Schedule will
prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement
(including the Schedule), such Confirmation will prevail for the
purpose of the relevant Transaction.
(c) Single Agreement. All
Transactions are entered into in reliance on the fact that this
Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this
“Agreement”), and the parties would not otherwise
enter into any Transactions.
| 2. | Obligations |
(i) Each party will make each payment or delivery specified
in each Confirmation to be made by it, subject to the other
provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due
date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds and in the manner
customary for payments in the required currency. Where
settlement is by delivery (that is, other than by payment), such
delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified
in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under
Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default
with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable
condition precedent specified in this Agreement.
1
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each
party’s obligation to make payment of any such amount will
be automatically satisfied and discharged and, if the aggregate
amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been
payable by the other party, replaced by an obligation upon the
party by whom the larger aggregate amount would have been
payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions
that a net amount will be determined in respect of all amounts
payable on the same date in the same currency in respect of such
Transactions, regardless of whether such amounts are payable in
respect of the same Transaction. The election may be made in the
Schedule or a Confirmation by specifying that subparagraph
(ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date
(in which case subparagraph (ii) above will not, or will
cease to, apply to such Transactions from such date). This
election may be made separately for different groups of
Transactions and will apply separately to each pairing of
branches or offices through which the parties make and receive
payments or deliveries.
| 3. | Representations |
Each party represents to the other party (which representations
will be deemed to be repeated by each party on each date on
which a Transaction is entered into) that: —
2
their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors’ rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in
equity or at law)).
| 4. | Agreements |
Each party agrees with the other that, so long as either party
has or may have any obligation under this Agreement or under any
Credit Support Document to which it is a party: —
| 5. | Events of Default and Termination Events |
(1) Failure by the party or any Credit Support Provider of
such party to comply with or perform any agreement or obligation
to be complied with or performed by it in accordance with any
Credit Support Document if such failure is continuing after any
applicable grace period has elapsed;
3
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of this
Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such
party under each Transaction to which such Credit Support
Document relates without the written consent of the other
party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable
to pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for the
benefit of its creditors; (4) institutes or has instituted
against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors’
rights, or a petition is presented for its
winding-up
or liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding or
petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of
an order for its
winding-up
or liquidation or (B) is not dismissed, discharged, stayed
or restrained in each case within 30 days of the
institution or presentation thereof; (5) has a resolution
passed for its
winding-up,
official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or
becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee,
custodian or other similar official for it or for all or
substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal
process
4
levied, enforced or sued on or against all or substantially all
its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained,
in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to
any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any
of the foregoing acts; or
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit Support
Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other
party to this Agreement; or
(2) the benefits of any Credit Support Document fail to
extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee entity of
its obligations under this Agreement.
(1) to perform any absolute or contingent obligation to
make a payment or delivery or to receive a payment or delivery
in respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which the
party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction;
5
| 6. | Early Termination |
(1) an agreement under Section 6(b)(ii) has not been
effected with respect to all Affected Transactions within
30 days after an Affected Party gives notice under
Section 6(b)(i); or
(2) an Illegality other than that referred to in
Section 6(b)(ii), a Credit Event Upon Merger or an
Additional Termination Event occurs,
either party in the case of an Illegality, any Affected Party in
the case of an Additional Termination Event if there is more
than one Affected Party, or the party which is not the Affected
Party in the case of a Credit Event Upon Merger or an Additional
Termination Event if there is only one Affected Party may, by
not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all
Affected Transactions.
(i) If notice designating an Early Termination Date is
given under Section 6(a) or (b), the Early Termination Date will
occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an
Early Termination Date, no further payments or deliveries under
Section 2(a)(i) or 2(d) in respect of the Terminated
Transactions will be required to be made, but without prejudice
to the other provisions of this Agreement. The amount, if any,
payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
6
(A) if Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of
(a) one-half of the difference between the Settlement
Amount of the party with the higher Settlement Amount
(“X”) and the Settlement Amount of the party with the
lower Settlement Amount (“Y”) and (b) the Unpaid
Amounts owing to X less (II) the Unpaid Amounts owing to
Y; and
7
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all Terminated
Transactions) and an amount will be payable equal to one-half of
the difference between the Loss of the party with the higher
Loss (“X”) and the Loss of the party with the lower
Loss (“Y”).
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of
that amount to Y.
| 7. | Transfer |
Neither this Agreement nor any interest or obligation in or
under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written
consent of the other party, except that: —
(a) a party may make such a transfer of this Agreement
pursuant to a consolidation amalgamation with, or merger with or
into, or transfer of all or substantially all its assets to,
another entity (but without prejudice to any other right or
remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of
its interest in any amount payable to it from a Defaulting Party
under Section 6(e).
Any
purported transfer that is not in compliance with this Section
will be void
| 8. | Miscellaneous |
7(a) Entire Agreement. This Agreement
constitutes the entire agreement and understanding of the
parties with respect to its subject matter and supersedes all
oral communication and prior writings with respect thereto.
(i) This Agreement (and each amendment, modification and
waiver in respect of it) may be executed and delivered in
counterparts (including by facsimile transmission), each of
which will be deemed an original.
8
(ii) The parties intend that they are legally bound by the
terms of each Transaction from the moment they agree to those
terms (whether orally or otherwise). A Confirmation shall be
entered into as soon as practicable and may be executed and
delivered in counterparts (including by facsimile transmission)
or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in
each case will be sufficient for all purposes to evidence a
binding supplement to this Agreement. The parties will specify
therein or through another effective means that any such
counterpart, telex or electronic message constitutes a
Confirmation.
A Defaulting Party will, on demand, indemnify and hold harmless
the other party for and against all reasonable out-of-pocket
expenses, including legal fees, incurred by such other party by
reason of the enforcement and protection of its rights under
this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early
termination of any Transaction, including, but not limited to,
costs of collection.
| 10. | Notices |
(i) if in writing and delivered in person or by courier, on
the date it is delivered;
(ii) if sent by telex, on the date the recipient’s
answerback is received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender’s facsimile
machine);
(iv) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), on the
date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date
that electronic message is received,
unless the date of that delivery (or attempted delivery) or that
receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as
applicable, after the close of business on a Local Business Day,
in which case that communication shall be deemed given and
effective on the first following day that is a local Business
Day.
| 11. | Governing Law and Jurisdiction |
9
(i) submits to the jurisdiction of the English courts, if
this Agreement is expressed to be governed by English law, or to
the non-exclusive jurisdiction of the courts of the State of New
York and the United States District Court located in the Borough
of Manhattan in New York City, if this Agreement is expressed to
be governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to
the laying of venue of any Proceedings brought in any such
court, waives any claim that such Proceedings have been brought
in an inconvenient forum and further waives the right to object,
with respect to such Proceedings, that such court does not have
any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing
Proceedings in any other jurisdiction (outside, if this
Agreement is expressed to be governed by English law, the
Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force)
nor will the bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.
| 12. | Definitions |
As used in
this Agreement: —
“Additional Termination Event” has the
meaning specified in Section 5(b).
“Affected Party” has the meaning
specified in Section 5(b).
“Affected Transactions” means
(a) with respect to any Termination Event consisting of an
Illegality, all Transactions affected by the occurrence of such
Termination Event and (b) with respect to any other
Termination Event, all Transactions.
“Affiliate” means, subject to the
Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls,
directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this
purpose, “control” of any entity or person means
ownership of a majority of the voting power of the entity or
person.
“Applicable Rate” means: —
(a) in respect of obligations payable or deliverable (or
which would have been but for Section 2(a)(iii)) by a
Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under
Section 6(e) of either party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that
amount is payable, the Default Rate;
(c) in respect of all other obligations payable or
deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
“consent” includes a consent, approval,
action, authorisation, exemption, notice, filing, registration
or exchange control consent.
“Credit Event Upon Merger” has the
meaning specified in Section 5(b).
10
“Credit Support Document” means any
agreement or instrument that is specified as such in this
agreement.
“Credit Support Provider” has the
meaning specified in the Schedule.
“Default Rate” means a rate per annum
equal to the cost (without proof or evidence of any actual cost)
to the relevant payee (as certified by it) if it were to fund or
of funding the relevant amount plus 1% per annum.
“Defaulting Party” has the meaning
specified in Section 6(a).
“Early Termination Date” means the date
determined in accordance with Section 6(a) or 6(b)(iii).
“Event of Default” has the meaning
specified in Section 5(a) and, if applicable, in the
Schedule.
“Illegality” has the meaning specified
in Section 5(b).
“law” includes any treaty, law, rule or
regulation and “lawful” and
“unlawful” will be construed accordingly.
“Local Business Day” means, subject to
the Schedule, a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under
Section 2(a)(i), in the place(s) specified in the relevant
Confirmation or, if not so specified, as otherwise agreed by the
parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement,
(b) in relation to any other payment, in the place where
the relevant account is located, (c) in relation to any
notice or other communication, including notice contemplated
under Section 5(a)(i), in the city specified in the address
for notice provided by the recipient and, in the case of a
notice contemplated by Section 2(b), in the place where the
relevant new account is to be located and (d) in relation
to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
“Loss” means, with respect to this
Agreement or one or more Terminated Transactions, as the case
may be, and a party, an amount that party reasonably determines
in good faith to be its total losses and costs (or gain, in
which case expressed as a negative number) in connection with
this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss
of bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result of
its terminating, liquidating, obtaining or reestablishing any
hedge or related trading position ( or any gain resulting from
any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent)
on or before the relevant Early Termination Date and not made,
except, so as to avoid duplication, if Section 6(e)(i)(1)
or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party’s legal fees and out-of-pocket expenses referred to
under Section 9. A party will determine its Loss as of the
relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by
reference to quotations of relevant rates or prices from one or
more leading dealers in the relevant markets.
“Market Quotation” means, with respect
to one or more Terminated Transactions and a party making the
determination, an amount determined on the basis of quotations
from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive
number) in consideration of an agreement between such party
(taking into account any existing Credit Support Document with
respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the
“Replacement Transaction”) that would have the effect
of preserving for such party the economic equivalent of any
payment or delivery (whether the underlying obligation was
absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the
occurrence of the relevant Early Termination Date, have been
required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any
payment or delivery that would, but
11
for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent)
after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith,
agree. The party making the determination (or its agent) will
request each Reference Market-maker to provide its quotation to
the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination
Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to
make a determination under Section 6(e), and, if each party
is so obliged, after consultation with the other. If more than
three quotations are provided, the Market Quotation will be the
arithmetic mean of the quotations, without regard to the
quotations having the highest and lowest values. If exactly
three such quotations are provided, the Market Quotation will be
the quotation remaining after disregarding the highest and
lowest quotations. For this purpose, if more than one quotation
has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations
are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated
Transactions cannot be determined.
“Non-default Rate” means a rate per
annum equal to the cost (without proof or evidence of any actual
cost) to the Non-defaulting Party (as certified by it) if it
were to fund the relevant amount.
“Non-defaulting Party” has the meaning
specified in Section 6(a).
“Potential Event of Default” means any
event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default.
“Reference Market-makers” means four
leading dealers in the relevant market selected by the party
determining a Market Quotation in good faith (a) from among
dealers of the highest credit standing which satisfy all the
criteria that such party applies generally at the time in
deciding whether to offer or to make an extension of credit and
(b) to the extent practicable, from among such dealers
having an office in the sane city.
“Scheduled Payment Date” means a date on
which a payment or delivery is to be made under
Section 2(a)(i) with respect to a Transaction.
“Set-off” means set-off, offset,
combination of accounts, right of retention or withholding or
similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising
under this Agreement, another contract, applicable law or
otherwise) that is exercised by, or imposed on, such payer.
“Settlement Amount” means, with respect
to a party and any Early Termination Date, the sum
of: —
(a) the Market Quotations (whether positive or negative)
for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party’s Loss (whether positive or negative
and without reference to any Unpaid Amounts) for each Terminated
Transaction or group of Terminated Transactions for which a
Market Quotation cannot be determined or would not (in the
reasonable belief of the party making the determination) produce
a commercially reasonable result.
“Specified Entity” has the meaning
specified in the Schedule.
“Specified Indebtedness” means, subject
to the Schedule, any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money.
“Specified Transaction” means, subject
to the Schedule, (a) any transaction (including an
agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit
Support Provider of such party or any applicable Specified
Entity of such party) and the other party to this Agreement (or
any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate
swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any
other similar transaction (including
12
any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any
other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
“Terminated Transactions” means with
respect to any Early Termination Date (a) if resulting from
a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either
case) in effect immediately before the effectiveness of the
notice designating that Early Termination Date (or, if
“Automatic Early Termination” applies, immediately
before that Early Termination Date).
“Termination Event” means an Illegality
or, if specified to be applicable, a Credit Event Upon Merger or
an Additional Termination Event.
“Termination Rate” means a rate per
annum equal to the arithmetic mean of the cost (without proof or
evidence of any actual cost) to each party (as certified by such
party) if it were to fund or of funding such amounts.
“Unpaid Amounts” owing to any party
means, with respect to an Early Termination Date, the aggregate
of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable
but for Section 2(a)(iii)) to such party under
Section 2(a)(i) on or prior to such Early Termination Date
and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have
been but for Section 2(a)(iii)) required to be settled by
delivery to such party on or prior to such Early Termination
Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market value of
that which was (or would have been) required to be delivered as
of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law)
interest, in the currency of such amounts, from (and including)
the date such amounts or obligations were or would have been
required to have been paid or performed to (but excluding) such
Early Termination Date, at the Applicable Rate. Such amounts of
interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. The fair market value of
any obligation referred to in clause (b) above shall be
reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so
obliged, it shall be the average of the fair market values
reasonably determined by both parties.
|
The Huntington National Bank
|
Franklin Credit Management Corporation | |
|
(Name of Party)
|
(Name of Party) | |
|
By:
/s/ Xxxxx
Xxxxxxxx |
By: /s/ Xxxxxxxxx
Xxxxxx Jardin |
|
|
Name: Xxxxx Xxxxxxxx
|
Name: Xxxxxxxxx Xxxxxx Jardin | |
|
Title: Senior Vice President
|
Title: Chief Executive Officer | |
|
Date: March 7, 2008
|
13
SCHEDULE TO
THE 1992 ISDA MASTER AGREEMENT
dated as
of February 27, 2008
between
THE HUNTINGTON NATIONAL BANK, a national banking association
(“Party A”),
(“Party A”),
&
Franklin
Credit Management Corporation, a Delaware corporation
(“Party B”).
(“Party B”).
Part 1:
Termination Provisions
(a) “Specified Entity” means in relation
to Party A for all purposes, None; and in relation to Party B
for all purposes, all Affiliates of Party B.
(b) “Specified Transaction” will have the
meaning specified in Section 12 of this Agreement.
(c) The “Cross Default” provisions of
Section 5(a)(vi) of this Agreement will apply to Party B,
except that the Acknowledged Defaults (as that term is defined
in that certain Forbearance Agreement and Amendment to Credit
Agreements (as it may have been or may in the future be amended
or modified from time to time, the “Franklin Forbearance
Agreement”) dated as of December 28, 2007, between
Party A, Party B and the other parties listed in said
document as parties thereto) and the Acknowledged Defaults (as
that term is defined in that certain Tribeca Forbearance
Agreement and Amendment to Credit Agreements (as it may have
been of may in the future be amended or modified from time to
time, the “Tribeca Forbearance Agreement”) dated as of
December 28, 2007, between Party A, Party B, Tribeca
Lending Corporation and the other parties listed in said
document as parties thereto) are not Events of Default under
this Agreement.
(d) “Specified Indebtedness” will have the
meaning specified in Section 12 of this Agreement.
(e) “Threshold Amount” means $1,000,000.00.
(f) The “Credit Event Upon Merger”
provisions of Section 5(b)(ii) of this Agreement will
apply to Party B.
(g) The “Automatic Early Termination”
provisions of Section 6(a) of this Agreement will not
apply to Party A and will not apply to Party B.
1
(h) Payments on Early Termination. For
the purpose of Section 6(e) of this Agreement the Second
Method and Market Quotation provisions will apply.
(i) Additional Termination Events. For
the purpose of Section 5(b)(iii) of the Agreement, it shall
be an “Additional Termination Event” with Party B
being the Affected Party if (a) any Credit Support Document
expires, terminates, or fails to be in full force and effect, or
if any attempt is made to cancel, limit or release any Credit
Support Document, prior to the satisfaction of all obligations
of Party B under each Transaction, or (b) there is a
termination or cancellation of Party B’s credit
relationship with Party A such that Party A no longer provides a
loan, extension of credit or credit commitment to Party B unless
Party B has arranged for a transfer (without regard to the
limitations on such transfer set forth in Section 7(a) of
this Agreement) of any and all rights and obligations of Party A
under this Agreement and all Transactions to a third party, such
transfer to be (i) evidenced by an agreement between Party
A which shall terminate all of Party A’s obligations
hereunder, Party B and such third party that is on such terms
and in form and substance acceptable to Party A, and
(ii) effective contemporaneously with such termination or
cancellation.
Part 2:
Agreement to Deliver Documents
For the purpose of Section 4(a) of this Agreement, Party B
agrees to deliver the following documents:
(a) On or before the execution of this Agreement and
thereafter upon Party A’s request, a certificate of an
authorized officer or other person of Party B in form and
substance satisfactory to Party A and evidencing the necessary
corporate authorizations, resolutions, and approvals with
respect to the execution, delivery and performance of this
Agreement, and certifying the names, true signatures, and
authority of the officer(s) signing this Agreement and executing
Transactions hereunder.
(b) When requested by Party A, quarterly reports on
Form 10-Q
and reports on
Form 10-K.
(a) Addresses for Notices. For the
purpose of Section 10(a) of this Agreement:
Address for notices or communications to Party A:
Address: 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
Attention: Rate Risk Management Unit, HC0931
Facsimile No.: (000)
000-0000 Telephone
Number:
(000) 000-0000
Address for notices or communications to Party B:
Address: 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, XX
00000
Attention: Xxx Xxxx
Facsimile No.:
Telephone:
(000)
000-0000
(b) Calculation Agent. The Calculation
Agent is Party A
(d) Credit Support Provider(s): Each of
(a) the Borrowers (as that term is defined in the Franklin
Forbearance Agreement) that is a party to a Credit Support
Document, and (b) the Borrowers (as that term is defined in
the Tribeca Forbearance Agreement) that is a party to a Credit
Support Document.
2
(e) Governing Law; Venue. This Agreement
will be governed by and construed in accordance with the law of
the State of New York without reference to choice of law
doctrine. The parties agree that all actions or proceedings
arising in connection with this Agreement, any documents
incorporated herein or executed in connection herewith, shall be
tried and litigated only in the Federal District Courts for the
Southern District of Ohio or the state courts of Franklin
County, Ohio. The parties waive any right to assert the doctrine
of forum non conveniens or to object to venue to the
extent any proceeding is brought in accordance with this Section.
(g) Section 7 of the Agreement is hereby deleted in
its entirety and replaced by the following:
Neither this Agreement nor any interest or obligation in or
under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written
consent of the other party, except that:
(a) Party A may make such a transfer of this Agreement
and/or any
Transaction hereunder if such a transfer is to third party with
an unsecured unsubordinated debt rating in one of the four
highest generic rating categories (without considering
subcategories or gradations indicating relative standing) by
either Standard & Poor’s Corporation or
Xxxxx’x Investors Services, Inc., and if Party A
notifies Party B of such a transfer promptly after it becomes
effective; and
(b) a party may make such a transfer of all or any part of
its interest in any amount payable to it from a Defaulting Party
under Section 6(e).
Any purported transfer that is not in compliance with this
Section will be void.
Party A will make payments to Party B by transfer of immediately
available funds to the account of Party B at The Huntington
National Bank in Columbus (Account
Number: )
Party B will make payments to Party A by having immediately
available funds in the account of Party B at The Huntington
National Bank in Columbus (Account
Number: ),
and Party A is irrevocably authorized to debit such account for
each payment (it being understood that Party B will at all times
maintain sufficient available balances in such account for such
purposes).
(k) Absence of Certain
Events. Section 3(b) of the Agreement is
amended by deleting the word “No” and by inserting in
its place the phrase “Except for the Acknowledged Defaults
(as that term is defined in the Franklin Forbearance Agreement)
and the Acknowledged Defaults (as that term is defined in the
Tribeca Forbearance Agreement), no”.
(l) No Waiver, etc. Nothing in this
Agreement or in any of the agreements, schedules or
confirmations executed in connection with this Agreement shall
waive, amend, modify, limit, impair or extend the maturity of
any warranty, term, covenant or condition of the Franklin
Forbearance Agreement, the Tribeca Forbearance Agreement or any
Loan Document (as such term is defined in each such forbearance
agreement, but excluding from such definition this Agreement or
any Interest Rate Hedging Agreement executed in connection with
this Agreement), and nothing herein shall affect, modify, limit
or impair any of the rights and powers which Party A may
have under any of the Franklin Forbearance Agreement, the
Tribeca Forbearance Agreement or any Loan Document (as such term
is defined in each such forbearance agreement), including
without
3
limitation, the right to demand full payment of all Advances (as
such term is defined in each such forbearance agreement) on the
Forbearance Date (as such term is defined in each such
forbearance agreement).
i) it is entering into the Transaction in connection with
the conduct of its business or to manage the risk of an asset
owned or a debt incurred, or reasonably likely to be owned or
incurred in the conduct of its business;
ii) it qualifies as an “eligible contract
participant” under the Commodity Exchange Act; and this
Agreement is a “swap agreement” as defined in
Section 101(53B) of the Bankruptcy Code,
11 U.S.C. §101(53B);
iii) It is not relying (for purposes of making any
investment decision or otherwise) upon any advice or counsel
(whether written or oral) or upon any representation (whether
written or oral) not explicitly contained in writing in this
Agreement of Party A, regardless of whether Party A provides
Party B with market information or its views;
iv) It has consulted and will continue to consult with its
own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent it has deemed necessary, and
has made and will continue to make its own investing, hedging
and trading decisions (including without limitation decisions
regarding the appropriateness
and/or
suitability of any Transaction pursuant to this Agreement) based
upon its own judgment and upon any advice from such advisors as
it has deemed necessary and not upon any view expressed by Party
A;
v) It has a full understanding of all the terms, conditions
and risks (economic and otherwise) of this Agreement, each
Credit Support Document and each Transaction, and is capable of
assuming and willing to assume (financially and otherwise) such
risks;
vi) It is entering into this Agreement, each Credit Support
Document and each Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business, and not
for purposes of speculation; and
vii) It is entering into this Agreement and will enter into
all Transactions as principal and in connection with its
business or the management of its business, and not as agent or
in any other capacity, fiduciary or otherwise.
4
Obligations set-off is unascertained, the Non-Defaulting or
Non-Affected Party may in good faith estimate such amount and
set-off based on such estimate, subject to an accounting to the
other Party when such an amount is ascertained, and to
appropriate adjustment. The set-off rights of each Party
hereunder shall be in addition to, and not in lieu of, such
other remedies, including such other set-off rights, as such
Party may have under this Agreement, by contract, by operation
of law, in equity or otherwise. As used in this paragraph (e),
the term “Other Obligations” means, with respect to
either Party, any amount payable by it or any of its Affiliates
to the other Party or any Affiliate of the other Party, whether
such amount is payable under this Agreement, another contract,
applicable law, in equity or otherwise.
Disclaimer: In entering into this Agreement,
Party B understands that there is no assurance as to the
direction in which interest rates in financial markets may move
in the future, and that Party A makes no covenant,
representation, or warranty in this regard or in regard to the
suitability of the terms of the Agreement or any Transaction to
the particular needs and financial situation of Party B. Party B
represents that it has had the opportunity, independently of
Party A and Party A’s affiliates, officers, employees, and
agents to consult its own financial advisors and has determined
that it is in Party B’s interest to enter into the
Agreement and any Transaction.
JURY WAIVER: THE PARTIES ACKNOWLEDGE THAT, AS
TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN THE PARTIES, THE
COMMERCIAL NATURE OF THE TRANSACTION(S) OUT OF WHICH THIS
AGREEMENT ARISES MAKES ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY
JURY. ACCORDINGLY, EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO
THIS AGREEMENT, ANY TRANSACTION OR ANY OF THE INSTRUMENTS OF
DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
IN WITNESS WHEREOF, the parties have executed and
delivered this document as of the date specified on the first
page of this document.
|
The Huntington National Bank
|
Franklin Credit Management Corporation | |
|
By:
/s/ Xxxxx
X. Xxxxxxxx Name: Xxxxx
X. Xxxxxxxx
Title: Senior Vice President Date: March 7, 2008 |
By:
/s/ Xxxxxxxxx
Xxxxxx Jardin Name: Xxxxxxxxx
Xxxxxx Jardin
Title: Chief Executive Officer |
5