Attached files
file | filename |
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EX-10.2 - EXHIBIT 10.2 - FRANKLIN CREDIT HOLDING CORP/DE/ | c17117exv10w2.htm |
EX-32.2 - EXHIBIT 32.2 - FRANKLIN CREDIT HOLDING CORP/DE/ | c17117exv32w2.htm |
EX-31.1 - EXHIBIT 31.1 - FRANKLIN CREDIT HOLDING CORP/DE/ | c17117exv31w1.htm |
EX-31.2 - EXHIBIT 31.2 - FRANKLIN CREDIT HOLDING CORP/DE/ | c17117exv31w2.htm |
EX-32.1 - EXHIBIT 32.1 - FRANKLIN CREDIT HOLDING CORP/DE/ | c17117exv32w1.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended March 31, 2011
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 0-17771
FRANKLIN CREDIT HOLDING CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware | 26-3104776 | |
(State or other jurisdiction of | (IRS Employer | |
incorporation or organization) | Identification No.) | |
101 Hudson Street | ||
Jersey City, New Jersey | 07302 | |
(Address of Principal | (Zip code) | |
Executive Offices) |
(201) 604-1800
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes o
No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one)
o Large accelerated filer | o Accelerated filer | o Non-accelerated filer | þ Smaller reporting company | |||
(Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes o No þ
Number of shares of the registrants common stock, par value $0.01 per share, outstanding as of May
9, 2011: 8,028,795
FRANKLIN CREDIT HOLDING CORPORATION
FORM 10-Q
INDEX
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Exhibit 10.2 | ||||||||
Exhibit 31.1 | ||||||||
Exhibit 31.2 | ||||||||
Exhibit 32.1 | ||||||||
Exhibit 32.2 |
Table of Contents
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
March 31, 2011 | December 31, 2010 | |||||||
ASSETS |
||||||||
Cash and cash equivalents |
$ | 13,127,040 | $ | 12,640,619 | ||||
Restricted cash |
2,459,363 | 2,407,194 | ||||||
Investment in REIT securities |
477,316,409 | 477,316,409 | ||||||
Investment in trust certificates at fair value |
997,667 | 1,505,978 | ||||||
Mortgage loans and real estate held for sale |
4,969,105 | 7,500,863 | ||||||
Notes receivable held for sale, net |
2,773,773 | 2,857,312 | ||||||
Accrued interest receivable |
33,099 | 28,245 | ||||||
Deferred financing costs, net |
6,605,245 | 6,923,169 | ||||||
Other receivables |
3,123,518 | 3,463,029 | ||||||
Building, furniture and equipment, net |
958,797 | 1,038,152 | ||||||
Other assets |
553,019 | 2,633,072 | ||||||
Total assets |
$ | 512,917,035 | $ | 518,314,042 | ||||
LIABILITIES AND STOCKHOLDERS (DEFICIT) |
||||||||
Liabilities: |
||||||||
Notes
payable, net of debt discount of $172,901 at March 31, 2011
and $181,616 at December 31, 2010 |
$ | 1,294,631,834 | $ | 1,340,838,509 | ||||
Deferred dividend income |
31,887,898 | | ||||||
Nonrecourse liability |
4,969,105 | 7,500,863 | ||||||
Accounts payable and accrued expenses |
2,545,794 | 9,454,136 | ||||||
Derivative liabilities, at fair value |
| 4,922,375 | ||||||
Income tax payable, net |
884,439 | 274,266 | ||||||
Terminated derivative liability |
14,662,661 | 8,200,000 | ||||||
Total liabilities |
1,349,581,731 | 1,371,190,149 | ||||||
Commitments and Contingencies |
||||||||
Stockholders (Deficit): |
||||||||
Preferred stock, $0.001 par value; authorized 3,000,000;
issued and outstanding: none |
| | ||||||
Common stock and additional paid-in capital, $0.01 par value,
22,000,000 authorized shares; issued and outstanding: 8,028,795
at March 31, 2011 and 8,028,795 at December 31, 2010 |
20,593,812 | 20,588,782 | ||||||
Noncontrolling interest in subsidiary |
3,183,492 | 3,174,632 | ||||||
Accumulated other comprehensive (loss) |
(1,290,450 | ) | (3,140,312 | ) | ||||
Retained (deficit) |
(859,151,550 | ) | (873,499,209 | ) | ||||
Total stockholders (deficit) |
(836,664,696 | ) | (852,876,107 | ) | ||||
Total liabilities and stockholders (deficit) |
$ | 512,917,035 | $ | 518,314,042 | ||||
See Notes to Consolidated Financial Statements.
3
Table of Contents
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2011 AND 2010
THREE MONTHS ENDED MARCH 31, 2011 AND 2010
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Revenues: |
||||||||
Interest income |
$ | 216,838 | $ | 11,475,228 | ||||
Dividend income |
31,887,898 | 10,629,299 | ||||||
Fair valuation adjustments |
(719,210 | ) | (3,771,042 | ) | ||||
Servicing fees and other income |
3,595,615 | 1,178,557 | ||||||
Total revenues |
34,981,141 | 19,512,042 | ||||||
Operating Expenses: |
||||||||
Interest expense |
16,189,444 | 19,019,243 | ||||||
Collection, general and administrative |
3,951,205 | 6,867,983 | ||||||
Amortization of deferred financing costs |
317,924 | 34,637 | ||||||
Depreciation |
83,049 | 145,512 | ||||||
Total expenses |
20,541,622 | 26,067,375 | ||||||
Income/(loss) before provision for income taxes |
14,439,519 | (6,555,333 | ) | |||||
Income tax |
83,000 | 98,300 | ||||||
Net income/(loss) |
14,356,519 | (6,653,633 | ) | |||||
Net income attributed to noncontrolling interest |
8,860 | 65,331 | ||||||
Net income/(loss) attributed to common stockholders |
$ | 14,347,659 | $ | (6,718,964 | ) | |||
Net income/(loss) per common share: |
||||||||
Basic and diluted |
$ | 1.79 | $ | (0.84 | ) | |||
Weighted average number of shares outstanding: |
||||||||
Basic and diluted |
8,027,756 | 8,020,256 | ||||||
See Notes to Consolidated Financial Statements.
4
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FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS (DEFICIT)
THREE MONTHS ENDED MARCH 31, 2011
THREE MONTHS ENDED MARCH 31, 2011
Accumulated | ||||||||||||||||||||||||
Common Stock and | Noncontrolling | Other | Retained | |||||||||||||||||||||
Additional Paid-in Capital | Interest | Comprehensive | (Deficit)/ | |||||||||||||||||||||
Shares | Amount | in Subsidiary | Loss | Earnings | Total | |||||||||||||||||||
BALANCE, JANUARY 1, 2011 |
8,028,795 | $ | 20,588,782 | $ | 3,174,632 | $ | (3,140,312 | ) | $ | (873,499,209 | ) | $ | (852,876,107 | ) | ||||||||||
Stock-based compensation |
| 5,030 | | | | 5,030 | ||||||||||||||||||
Net income attributed to noncontrolling
interest |
| | 8,860 | | | 8,860 | ||||||||||||||||||
Amortization unrealized loss on derivatives |
| | | 1,849,862 | | 1,849,862 | ||||||||||||||||||
Net income attributed to common shareholders |
| | | | 14,347,659 | 14,347,659 | ||||||||||||||||||
BALANCE, MARCH 31, 2011 |
8,028,795 | $ | 20,593,812 | $ | 3,183,492 | $ | (1,290,450 | ) | $ | (859,151,550 | ) | $ | (836,664,696 | ) | ||||||||||
For the quarter ended March 31, 2011, the total comprehensive income amounted to $16.2
million, which was comprised of the net income of $14.3 million and amortization of unrealized loss
on derivatives of $1.8 million. For the quarter ended March 31, 2010, the total comprehensive loss
amounted to $3.4 million, which was comprised of the net loss of $6.7 million and amortization of
unrealized loss on derivatives of $3.3 million.
See Notes to Consolidated Financial Statements.
5
Table of Contents
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED MARCH 31, 2011 AND 2010
THREE MONTHS ENDED MARCH 31, 2011 AND 2010
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
CASH FLOWS FROM OPERATING ACTIVITIES: |
||||||||
Net income/(loss) attributed to common shareholders |
$ | 14,347,659 | $ | (6,718,964 | ) | |||
Adjustments to reconcile net income/(loss) to net cash provided by/(used in) operating activities: |
||||||||
Depreciation |
83,049 | 145,512 | ||||||
Fair valuation adjustments |
(719,210 | ) | 3,771,042 | |||||
Principal collections on mortgage loans and real estate held for sale, net |
| 5,627,977 | ||||||
Paid in kind interest |
13,838,859 | 8,434,273 | ||||||
Proceeds from the sale of real estate held for sale |
2,531,758 | 3,180,865 | ||||||
Reductions of nonrecourse liability |
(1,399,546 | ) | (10,815,107 | ) | ||||
Amortization of deferred financing costs |
317,924 | 34,637 | ||||||
Amortization of debt discount |
8,715 | 890 | ||||||
Stock-based compensation |
5,030 | 15,170 | ||||||
Net income attributed to noncontrolling interest in subsidiary |
8,860 | 65,331 | ||||||
Changes in operating assets and liabilities: |
||||||||
Accrued interest receivable |
(4,854 | ) | 89 | |||||
Other receivables |
339,511 | 35,463 | ||||||
Deferred dividend income |
31,887,898 | | ||||||
Income tax receivable |
| 3,738,532 | ||||||
Other assets |
2,080,053 | (259,614 | ) | |||||
Taxes payable |
610,173 | | ||||||
Accounts payable and accrued expenses |
(9,980,855 | ) | 2,073,558 | |||||
Terminated derivative liability |
6,462,661 | | ||||||
Net cash provided by operating activities |
60,417,685 | 9,329,654 | ||||||
CASH FLOWS FROM INVESTING ACTIVITIES: |
||||||||
(Increase) in restricted cash |
(52,169 | ) | (2,637 | ) | ||||
Principal collections on notes receivable |
178,848 | 241,619 | ||||||
Purchase of building, furniture and equipment |
(3,694 | ) | (5,677 | ) | ||||
Net cash provided by investing activities |
122,985 | 233,305 | ||||||
CASH FLOWS FROM FINANCING ACTIVITIES: |
||||||||
Principal payments of notes payable |
(60,054,249 | ) | (6,522,443 | ) | ||||
Net cash (used in) financing activities |
(60,054,249 | ) | (6,522,443 | ) | ||||
NET CHANGE IN CASH AND CASH EQUIVALENTS |
486,421 | 3,040,516 | ||||||
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD |
12,640,619 | 15,963,115 | ||||||
CASH AND CASH EQUIVALENTS, END OF PERIOD |
$ | 13,127,040 | $ | 19,003,631 | ||||
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION: |
||||||||
Cash payments for interest |
$ | 5,639,194 | $ | 7,892,289 | ||||
Cash payments for taxes |
$ | 14,087 | $ | 173,525 | ||||
See Notes to Consolidated Financial Statements.
6
Table of Contents
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. | BUSINESS |
As used herein, references to the Company, Franklin Holding, we, our and us refer to
Franklin Credit Holding Corporation (FCHC), collectively with its subsidiaries; and, references
to FCMC refers to Franklin Credit Management Corporation, the Companys servicing business
subsidiary.
Overview
Recent Developments May 2011 Term Sheet with The Huntington National Bank (the Bank or
Huntington) and Termination of Interest Rate Swap Agreements
On January 25, 2011, the Bank declared an early termination of all remaining interest rate
swaps due to a failure by the Company to make payments due under the swap agreements. The
Companys failure to make these payments was occasioned by insufficient funds available under the
credit agreement with the Bank and its participating banks (the Legacy Credit Agreement) as a
direct result of the loss of cash flows attributable to the July, September and December 2010 loan
sales by a trust of the Bank (the Banks Trust or the Trust) and the suspension of dividends by
its REIT. The swap termination fee payable by the Company (but not FCMC) to the Bank is $6.5
million, and will be payable only to the extent cash is available under the waterfall provisions of
the Legacy Credit Agreement and only after the outstanding balance designated as tranche A debt
owed to the Bank has been paid in full (which is unlikely), which at March 31, 2011 was $653.6
million. The swap termination fee is not an obligation of FCMC.
The Bank also verbally indicated that it was their position that the early termination of the
interest rate swaps in January 2011 and a prior early termination of interest rate swaps effective
March 31, 2009, which was exercised at the request of the Bank, are defaults under the Legacy
Credit Agreement, entitling the Bank to take possession of and dispose of the REIT securities
collateralizing the debt of certain subsidiaries of Franklin Holding (other than FCMC) (the Legacy
Debt). Although the Company disputes this interpretation based on the nature of the swap
terminations in January 2011 and certain equitable defenses with respect to the swap terminations
in March 2009, the Company entered into negotiations with the Bank to surrender the REIT securities
as an alternative to litigation, which might be time-consuming and expensive with an uncertain
outcome.
On May 11, 2011, Franklin Holding and certain of its subsidiaries, including FCMC, entered
into a term sheet (the Term Sheet) with the Bank setting forth agreed upon terms to amicably
resolve the Banks allegation that a default had occurred under the Legacy Credit Agreement due to
a failure of certain Company entities to make certain payments under certain interest rate hedge
agreements (interest rate swaps) with the Bank (the Specified Default).
Pursuant to the Term Sheet, the Company agreed to voluntarily surrender and transfer to the
Bank the REIT securities, which have served as collateral under the Legacy Credit Agreement, free
and clear of any liens other than the liens of the Bank, in exchange for the Bank:
| reducing the outstanding balance of the Banks portion of tranche A debt pursuant to the terms of the Legacy Credit Agreement by an amount equal to $478 million, and releasing, canceling and discharging Franklin Holding and FCMC from any liability in connection with the Specified Default and under any interest rate hedge agreements entered into with the Bank; and, |
7
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| forgiving that portion of the indebtedness owed to the Bank relating to the past terminations of interest rate hedge agreements in the approximate aggregate amount of $12.9 million and obtaining from one of its participants, which has a right of subrogation, forgiveness of approximately $1.8 million. |
In addition, the Bank agreed to seek credit approval to amend and extend the Companys credit
agreement with FCHC and Franklin Holding (the Licensing Credit Agreement) to September 30, 2012,
and delete the financial covenant under the Licensing Credit Agreement that Franklin Holding and
FCMC maintain a net income before taxes of not less than $800,000. See Note 13.
Franklin Holding and certain of its subsidiaries, including FCMC, expect to enter into various
agreements implementing the transactions contemplated by the Term Sheet in the next several days.
As a result of the Company entering into the implementing agreements contemplated by the Term
Sheet to voluntarily surrender and transfer to the Bank the REIT securities in return for a
reduction in the indebtedness to the Bank equal to $478 million, the principal source of cash flow
to meet the obligations of the Company with respect to its remaining approximately $800 million
outstanding indebtedness to the Bank will be eliminated, resulting in accrued and unpaid interest
being added to the outstanding principal balance of the Legacy Debt that the Company will be unable
to pay at maturity on March 31, 2012 (or upon earlier termination under the provisions of
the Legacy Credit Agreement).
In addition, the Companys operating losses are expected to increase commencing with the
quarter ended September 30, 2011 and in the years 2012 and beyond due to the absence of dividend
income on the preferred REIT securities.
Investment in REIT Securities Dividend
The board of directors of the real estate investment trust (the REIT) owned by the Bank did
not declare any dividends on the preferred stock owned by the Company (the REIT Securities) for
the third and fourth calendar quarters of 2010. In February 2011, the Company was advised that the
REIT board in February 2011 declared dividends on the REIT securities for the two quarterly periods
ended December 31 and September 30, 2010, and also declared a dividend for the full year of 2011.
On March 31, 2011 the Company received the dividends on the REIT Securities in the aggregate
amount of $63.8 million, for the two quarters ended December 31, 2010 and for the full year 2011,
of which $31.9 million was recognized in the quarter ended March 31, 2011 (representing the
dividends paid for the third and fourth quarters of 2010 and the first quarter of 2011). See Note
13.
Going Concern Uncertainty Franklin Holding
The Company since September 30, 2007 has been and continues to be operating with significant
operating losses and stockholders deficit. In addition, the Companys Legacy Debt is
significantly greater than its remaining earning assets, and, therefore, the Company will not be
able to pay off the outstanding balance of debt due to the Bank, which at March 31, 2011 was $1.295
billion. Any event of default under the March 2009 Restructuring Agreements or the 2004 master
credit agreement with the Bank, as amended and subject to a forbearance agreement, or failure to
successfully renew these restructuring or forbearance agreements or enter into new credit
facilities with Huntington prior to their scheduled maturity, could entitle Huntington to declare
the Companys indebtedness immediately due and
payable. Without the continued cooperation and assistance from Huntington, the consolidated
Franklin Holdings ability to continue as a viable business is in substantial doubt, and it may not
be able to continue as a going concern. See Managements Discussion and Analysis of Financial
Condition and Results of Operations Borrowings and Notes 9 and 13.
8
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The Company had net income attributed to common stockholders of $14.3 million for the three
months ended March 31, 2011, as a result of the payment of dividends by the Banks REIT on March
31, 2011 for the two quarters ended December 31, 2010 and the first quarter ended March 31, 2011,
compared with a net loss of $6.7 million for the three months ended March 31, 2010. The Company
had income per common share for the three months ended March 31, 2011 of $1.79 both on a diluted
and basic basis, compared to a loss per common share of $0.84 on both a diluted and basic basis for
the three months ended March 31, 2010. At March 31, 2011, the Companys stockholders deficit was
$836.7 million. At December 31, 2010, the Companys stockholders deficit was $852.9 million.
Potential FCMC Spin Off
The Company anticipates that it will break out its mortgage servicing subsidiary, FCMC, from
Franklin Holdings consolidated group as a separate company through a spin off type of
transaction preferably in the late second to early third quarter of 2011, subject to numerous
conditions, including approval by its board of directors and the Bank, the effectiveness of a
registration statement on Form 10 to be filed with the Securities and Exchange Commission, adequate
capital and solvency requirements, regulatory approvals to the extent required, and accounting and
tax treatment considerations. It is the Companys plan to spin off its 80% ownership of FCMC to
the stockholders of FCHC through a pro-rata dividend distribution, and that FCMC then would be a
separate publicly-owned company.
The September 2010 transaction (described below) with the Bank, which occurred simultaneously
with the sale of substantially all of the subordinate-lien consumer loans owned by the Banks Trust
(referred to as the September Loan Sale, and described below), resulted in, subject to the final
approval of the Bank, the Banks consent to proceed with a spin off of the ownership of FCMC. In
the July 2010 transaction, which was amended and modified in part by the September 2010
transaction, the parties agreed that in connection with a potential restructuring (referred to as
the Potential Restructuring, and described below), if acceptable to the Bank and the required
lenders, in each partys sole discretion, and if the Potential Restructuring would not result in
material tax, legal, regulatory, or accounting impediments or issues for Franklin Holding or FCMC,
the Bank would use its reasonable efforts to assist Franklin Holding and FCMC in connection with
such a Potential Restructuring in obtaining the approval of the required lenders and consenting to
any change of control in connection with a potential restructuring to the extent required under its
Legacy Credit Agreement, and FCMC or Franklin Holding would reimburse and hold the Bank and the
required lenders harmless from any reasonable expense incurred by them in connection with any such
Potential Restructuring.
There can be no assurance, however, that the Companys board of directors will approve or FCMC
will be successful in completing a spin-off as tax, shareholder, legal, regulatory, accounting or
other matters could present significant impediments to accomplishing such a spin off.
Following a spin off of FCMC, if successful, the remaining direct and indirect subsidiaries of
Franklin Holding that are obligors under the Legacy Debt will be insolvent and unable to pay off
the balance of Legacy Debt owed to the Bank.
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The Companys Business
Franklin Credit Holding Corporation (FCHC). The Company had net income attributed to common
stockholders of $14.3 million for the three months ended March 31, 2011 as a result of the payment
of dividends by the Banks REIT on March 31, 2011 for the two quarters ended December 31, 2010 and
the first quarter ended March 31, 2011, compared with a net loss of $6.7 million for the three
months ended March 31, 2010. At March 31, 2011, the Companys stockholders deficit was $836.7
million. See Managements Discussion and Analysis of Financial Condition and Results of
Operations.
Except for the mortgage servicing business conducted through FCMC, the business activities of
Franklin Credit Holding Corporation and its subsidiary companies following the December 2008
corporate reorganization (the Reorganization) and 2009 debt restructuring (the Restructuring or
March 2009 Restructuring) have principally consisted of making payments on the Legacy Debt in
accordance with the Legacy Credit Agreement. Payments made on the Legacy Debt generally have been
limited to the cash flows received from the Banks Trust and from the dividends received from the
investment in preferred stock of the Banks REIT.
In September 2010, FCHC and its subsidiary, FCMC, entered into an agreement with the Bank, the
Banks Trust, Thomas J. Axon, the Chairman and President of FCHC and FCMC (Mr. Axon), and Bosco
Credit II, LLC (Bosco II), an entity of which Mr. Axon is the sole member, for the sale of
principally all the subordinated consumer loans (the September Loan Sale).
Contemporaneously with the consummation of the September Loan Sale, among other things and for
certain consideration paid to the Bank, FCHCs pledge of 70% of the outstanding shares of FCMC as
security for the Legacy Credit Agreement was released. FCMC entered into a servicing agreement
with Bosco II for the servicing and collection of the loans purchased by Bosco II from the Trust
(the Bosco II Servicing Agreement).
In consideration of Mr. Axons undertaking the obligations required of him under the September
2010 agreement, and various guarantees and concessions previously provided by Mr. Axon for the
Companys benefit, the Companys Audit Committee agreed to the transfer to Mr. Axon of a number of
shares of FCMC common stock currently held by FCHC representing 10% of FCMCs outstanding shares
(resulting in Mr. Axon currently owning 20% of the common shares of FCMC and the remaining 80%
owned by FCHC and indirectly by its public shareholders, including Mr. Axon as a principal
shareholder of FCHC). See Note 12.
For a description of the key terms and conditions of the September Loan Sale and the
implementing agreements, and the sales of loans in July 2010 (the July Loan Sale), see Note 9.
As a result of the loan sales by the Banks Trust in the third quarter of 2010, the remaining
principal source of payments on the Legacy Debt is the dividend on the preferred stock in the
Banks REIT, which was paid on March 31, 2011 for the third and fourth calendar quarters of 2010
and for the full year 2011. See Notes 9 and 13.
Prior to December 2007, the Company was primarily engaged in the acquisition and origination
for portfolio, and servicing and resolution, of performing, reperforming and nonperforming
residential mortgage loans and real estate owned (REO) properties, including the origination of
subprime mortgage loans.
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Table of Contents
In December 2008, the Company engaged in a series of transactions (the Reorganization) in
which the Company (i) adopted a holding company form of organizational structure, with Franklin
Holding serving as the new public-company parent, (ii) transferred all of the equity and
membership interests in FCMCs direct subsidiaries to other entities in the reorganized corporate
structure of the Company, (iii) assigned legal record ownership of any loans in the Companys
portfolios held directly by FCMC to other entities in the reorganized corporate structure of the
Company, and (iv) amended its loan agreements with the Bank.
Under the Reorganization, Franklin Credit Holding Corporation became the successor issuer to
Franklin Credit Management Corporation (FCMC), and FCMC ceased to have portfolios of loans and real
estate properties and the related indebtedness to the Bank under the Legacy Credit Agreement and
became the Companys servicing business subsidiary.
In March 2009, Franklin Holding, and its consolidated subsidiaries, including FCMC, entered
into a series of agreements (the Restructuring Agreements) with the Bank pursuant to which, among
other things, (i) the Companys debt, pledges and guarantees under the Legacy Credit Agreement with
the Bank and its participating banks were substantially restructured, and (ii) substantially all of
the Companys portfolio of subprime mortgage loans and owned real estate was transferred to the
Banks Trust (with the loans and owned real estate transferred to the Banks Trust collectively
referred to herein as the Portfolio) in exchange for trust certificates, with certain trust
certificates, representing an undivided interest in approximately 83% of the Portfolio, transferred
in turn by the Company to a REIT wholly-owned by the Bank. The Restructuring did not include a
portion of the Companys debt, which as of March 31, 2011 amounted to approximately $38.7 million
(the Unrestructured Debt). See Note 9.
Franklin Credit Management Corporation (FCMC). Since the Reorganization that took effect in
December 2008 and the March 2009 Restructuring, the Companys operating business has been conducted
solely through FCMC, a specialty consumer finance company primarily engaged in the servicing and
resolution of performing, reperforming and nonperforming residential mortgage loans, including
specialized loan collection and recovery servicing, and in the due diligence, analysis, pricing and
acquisition of residential mortgage portfolios, for third parties. FCMC, the servicing company
within Franklin Holdings consolidated group of companies, has positive net worth and, as a result
of the September 2010 Transaction, all of its equity is free from the pledges to the Bank. Except
for cash collateral of $7.5 million held by FCMC, the Legacy Debt is not an obligation of FCMC.
At March 31, 2011, FCMC had total assets of $32.8 million and had stockholders equity of
$15.9 million. Under Amendment No. 2 to the Licensing Credit Agreement with the Bank, FCMC has
available credit under a revolving loan facility of $1 million and a $6.5 million letter of credit
facility with the Bank, and cash collateral securing the revolving loan and letter of credit
facilities of $7.5 million. The Licensing Credit Agreement expires September 30, 2011. At March
31, 2011, FCMC had no debt outstanding under the revolving line and approximately $5.4 million of
letters of credit under the Licensing Credit Agreement.
As a result of the transactions entered into with the Bank in September and December 2010 and
the sales of loans for the remaining loans held by the Banks Trust and a 50% participation
interest in each of the Banks commercial loans to the Company covering the Unrestructured Debt in
December 2010 to entities controlled by Mr. Axon, Chairman and President of the Company, the
Company, through FCMC, provides servicing, collection and recovery services for third parties that
to date have been primarily entities related to Mr. Axon. Effective September 30, 2010, FCMC has
been operating its servicing, collections and recovery business free of pledges of its stock and
free of significant restrictive covenants under the Legacy Credit Agreement with the Bank, which
governs the substantial debt owed to the Bank by subsidiaries of FCHC, other than FCMC.
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FCMC was not in compliance at December 31, 2010 with the covenant in the Licensing Credit
Agreement that requires Franklin Holding and FCMC to maintain net income before taxes of not less
than $800,000 as of the end of each calendar month for the most recently ended twelve consecutive
month period or, with notice, an event of default will be deemed to have occurred. On March 28,
2011, as a temporary measure, Franklin Holding and FCMC entered into an agreement with the Bank
that provides for a limited waiver of the financial covenant of Franklin Holding and FCMC under the
Licensing Credit Agreement, for the period through and including September 30, 2011, related to the
failure to maintain the minimum level of net income before taxes.
See Managements Discussion and Analysis of Financial Condition and Results of Operations
Franklin Credit Management Corporation (FCMC) and Note 12.
Franklins Business Loan Servicing, Collections and Recovery Servicing
The Companys servicing business is conducted through FCMC, a specialty consumer finance
company primarily engaged in the servicing and resolution of performing, reperforming and
nonperforming residential mortgage loans, including specialized loan collections and recovery
servicing, for third parties.
We have invested to create a loan servicing capability that is focused on collections, loss
mitigation and default management. In general, we seek to ensure that the loans we service for
others are repaid in accordance with the original terms or according to amended repayment terms
negotiated with the borrowers and in accordance with the terms of our servicing contracts with our
servicing clients. Because the loans we service generally experience above average delinquencies,
erratic payment patterns and defaults, our servicing operation is focused on collections and
recovery, and, therefore, maintaining close contact with borrowers and as a result, is more
labor-intensive than traditional mortgage servicing operations. Through frequent communication we
are able to encourage positive payment performance, quickly identify those borrowers who are likely
to move into seriously delinquent status and promptly apply appropriate collection, loss mitigation
and recovery strategies. Our servicing staff employs a variety of collection and recovery
strategies that we have developed to successfully manage serious delinquencies and defaults,
bankruptcy and foreclosure. Additionally, we maintain a real estate department with experience in
property management and the sale of residential properties.
At March 31, 2011, FCMC had four significant servicing contracts to service 1-4 family
mortgage loans and owned real estate, principally consisting of first and second-lien loans and
owned properties secured by 1-4 family residential real estate that were previously acquired and
originated by Franklin entities and transferred to the Trust in the March 2009 Restructuring, and
sold in the July Loan Sale and the September Loan Sale by the Trust and the Bank to third parties
in the quarter ended September 30, 2010 (the Loan Sales) and in the sales of loans in December
2010 (the December Loan Sale).
Loan Servicing and Collection Operations
At March 31, 2011, our servicing and collection business, conducted through FCMC, consisted of
81 servicing and collection employees who serviced and provided recovery collection services and
managed approximately 32,000 loans and real estate properties (with an unpaid principal balance of
$1.60 billion), including approximately 22,200 first and second-lien loans for the Bosco entities:
approximately 2,200 home equity loans for Bosco Credit I, LLC (Bosco I); approximately 19,600
subordinate-lien loans for Bosco II; and, approximately 373 of principally charge-off first and
subordinate-lien loans for Bosco Credit III, LLC (Bosco III). Included in the Companys
consolidated revenues were servicing
fees recognized from servicing the portfolios for the Bosco entities of $1.7 million and
$244,000 for the three months ended March 31, 2011 and 2010, respectively. See Note 12.
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Our servicing and collection operations are conducted utilizing principally a one-call
resolution structure to facilitate borrower management functions. We maintain a call center
staffed by professionals with skills based in customer service, collections, loss mitigation, and
recovery. Our call center handles borrower inquiries on a one-call resolution basis, wherein the
first agent with whom a borrower speaks is qualified to satisfy almost any request for information,
such as payoff declarations, escrow account balance, payment information, collections, repayment
arrangements, settlements and short sales. Our one-call resolution structure includes the
following principal functions/groups:
Customer Service. The primary objective of customer service is to obtain timely payments from
borrowers, respond to borrower requests and resolve disputes with borrowers. Within 10 days of
boarding newly acquired loans onto our servicing system, our customer service representatives
contact each new borrower to welcome them to FCMC and to gather and/or verify any missing
information, such as loan balance, interest rate, contact phone numbers, place of employment,
insurance coverage and all other pertinent information required to properly service a loan.
Customer service representatives responds to all inbound customer calls for information requests
regarding payments, statement balances, escrow balances and taxes, payoff requests, returned check
and late payment fees. In addition, our customer service representatives process payoff requests
and reconveyances.
Collections. The main objective of our collections function is to ensure loan performance
through maintaining contact with our servicing and recovery collection clients borrowers. Our
collections agents continuously review and monitor the status of collections and individual loan
payments in order to proactively identify and solve potential collection problems. When a loan
becomes seven days past due, our collections agents begin making collection calls and generating
past-due letters. Our collections group attempts to determine whether a past due payment is an
aberration or indicative of a more serious delinquency. If the past due payment appears to be an
aberration, we emphasize a cooperative approach and attempt to assist the borrower in becoming
current or arriving at an alternative repayment arrangement. Upon a serious delinquency, by which
we mean a delinquency of sixty-one days by a borrower, or the earlier determination by our
collections group based on the evidence available that a serious delinquency is likely, the loan is
typically transferred to our loss mitigation group. We employ a range of strategies to modify
repayment terms in order to enable the borrower to make payments and ultimately cure the
delinquency, or focus on expediting the foreclosure process so that loss mitigation can begin as
promptly as practicable.
Loss Mitigation. Our loss mitigation group, which consists of staff experienced in collection
work, manages and monitors the progress of seriously delinquent loans and loans which we believe
will develop into serious delinquencies. In addition to maintaining contact with borrowers through
telephone calls and collection letters, this group utilizes various strategies in an effort to
reinstate an account or revive cash flow on an account. Loss mitigation agents analyze each loan
to determine a collection strategy to maximize the amount and speed of recovery and minimize costs.
The particular strategy is based upon each individual borrowers past payment history, current
credit profile, current ability to pay, collateral lien position and current collateral value.
Loss mitigation agents qualify borrowers for relief programs appropriate to the borrowers hardship
and finances. Loss mitigation agents process borrower applications for Temporary Relief programs
(deferments and rate reductions), Expanded Temporary Relief programs (repayment plans), Homeowner
Relief programs (pre-foreclosure home sale) and Permanent Relief programs (long-term modifications,
including, when applicable, those sponsored by the U.S. Treasurys Home Affordable Modification
Program (HAMP), as well as for settlements, short sales, and deeds-in-lieu.
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Seriously delinquent accounts not resolved through the loss mitigation activities described
above are foreclosed or a judgment is obtained, if potential collection warrants the cost, against
the related borrower in accordance with state and local laws, with the objective of maximizing
asset recovery in the most expeditious manner possible. This is commonly referred to as loss
management. Foreclosure timelines are managed through a timeline report built into the loan
servicing system. The report schedules milestones applicable for each state throughout the
foreclosure process, which enhances our ability to monitor and manage the process. Properties
acquired through foreclosure are transferred to our real estate department to manage eviction and
marketing or renting of the properties. However, until foreclosure is completed, efforts at loss
mitigation generally are continued.
In addition, our loss mitigation group manages loans by borrowers who have declared
bankruptcy. The primary objective of the bankruptcy function within our loss mitigation group,
which utilizes outside legal counsel, is to proactively monitor bankruptcy assets and outside legal
counsel to ensure compliance with individual plans and to explore recovery in the event of
non-compliance.
Loan Boarding and Administration. The primary objective of the loan boarding function is to
ensure that newly acquired loans under contracts to service and provide collection and recovery
services for others are properly transitioned from the prior servicer and are accurately boarded
onto our servicing systems. Our loan boarding group audits loan information for accuracy to ensure
that the loans conform to the terms provided in the original note and mortgage. The information
boarded onto our systems provide us with a file that we use to automatically generate introductory
letters to borrowers summarizing the terms of the servicing transfer of their loan, among other
standard industry procedures.
The loan administration group performs typical duties related to the administration of loans,
including incorporating modifications to terms of loans. The loan administration group also
ensures the proper maintenance and disbursement of funds from escrow accounts and monitors
non-escrow accounts for delinquent taxes and insurance lapses. For loans serviced with adjustable
interest rates, the loan administration group ensures that adjustments are properly made and
identified to the affected borrowers in a timely manner.
Our
servicing and collection operations also include the following principal
functions/groups:
Real Estate. The real estate-owned department is responsible for managing and or disposing of
properties, located throughout the country, acquired through foreclosure in an orderly, timely, and
cost-efficient manner in order to maximize our clients return on assets. These properties include
1-4 family residences, cooperative apartment and condominium units. We foreclose on property
primarily with the intent to sell it at fair market value to recover a portion of the outstanding
balance owed by the borrower. From time to time, foreclosed properties may be in need of repair or
improvement in order to either increase the value of the property or reduce the time that the
property is on the market. In those cases, the property is evaluated independently and we make a
determination of whether the additional investment might increase the return upon sale or rental of
the property.
Deficiency Recovery & Judgment Processing Department (Recovery). The Recovery group pursues
principally hard-to-collect consumer debt on a first, second, or third-placement basis. Our
recovery departments primary objective is to maximize the recovery of unpaid principal on each
seriously delinquent account by offering borrowers multiple workout solutions and/or negotiated
settlements. The recovery unit performs a complete analysis of the borrowers financial situation,
taking into consideration lien status, in order to determine the best course of action. Based on
the results of our analysis, we determine to either continue collection efforts and a negotiated
workout of settlement or seek judgment. Agents may qualify borrowers for Temporary Relief and
Expanded Temporary Relief programs where appropriate. Agents will seek to perfect a judgment
against a borrower and may seek
wage garnishment, if economically justified by the borrowers finances and if provided by the
clients servicing agreement.
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Face to Face Home Solutions (Face to Face). The Face to Face group seeks to reestablish
connection with incommunicative borrowers and advise borrowers of available loss mitigation
opportunities. Whether successful in meeting with a borrower or not, Face to Face agents confirm
occupancy and report property conditions as well as any evidence of code violation or additional
liens on the property.
Client Relations. The principal objective of the client relations group is to interface with
our servicing and recovery collection clients regarding the servicing performance of their loans,
and for invoicing servicing clients. In addition, our client relations group oversees the boarding
of new loans for servicing and/or recovery collections.
Training. Our training department works with all departments of our servicing operations to
ensure that the employees of all departments are fully informed of the procedures necessary to
complete their required tasks. The department ensures all loan servicing employees are trained in
the tenets of the Fair Debt Collection Practices Act, and in state and local debt collection laws,
as well as in effective communication skills.
Quality Control. Our quality control department monitors all aspects of loan servicing from
boarding through foreclosure. It is the departments responsibility to ensure that FCMCs policies
and procedures are implemented and followed. Collection calls are monitored to ensure quality and
compliance with the requirements of the federal Fair Debt Collection Practices Act and state and
local collection laws. Monthly meetings with staff to discuss individual quality control scores
are held and, in certain cases, further training is recommended. Reviews of the controls for
privacy and information safeguarding and document removal are conducted monthly.
Home Affordable Modification Program
In September 2009, FCMC voluntarily entered into an agreement to actively participate as a
mortgage servicer in the Federal governments HAMP for first-lien mortgage loans that are not owned
or guaranteed by Fannie Mae or Freddie Mac. HAMP is a program for consenting servicing clients,
with borrower, mortgage servicer, and mortgage loan owner incentives, designed to enable eligible
borrowers to avoid foreclosure through a more affordable and sustainable loan modification made in
accordance with HAMP guidelines, procedures, directives, and requirements. If a borrower is not
eligible for HAMP, FCMC considers other available loss mitigations options, as appropriate for the
consenting owner of the loans serviced.
Licenses to Service Loans
By letter dated April 12, 2010, the Banking Department had notified FCMC that in connection
with its review of FCMCs financial statements and mortgage servicing volume, its application for
registration as a mortgage servicer in that state, which FCMC had filed during the transitional
period allowed by the state for registration of mortgage servicers doing business in New York State
on June 30, 2009, could not be accepted for processing until FCMC addressed its Adjusted Net Worth
(defined below), which the Banking Department had determined to be below the minimum Adjusted Net
Worth requirement for mortgage servicers established under applicable regulations adopted through
emergency rule making.
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On September 9, 2010, the New York State Banking Department (the Banking Department) found
the capital plan submitted by FCMC on May 12, 2010 (to address how FCMC would achieve compliance
with regulatory net worth requirements that were adopted in New York State in 2009 for mortgage
servicers) to be satisfactory and accepted for processing the application of FCMC to continue to
service residential mortgage loans in that state and granted a twelve-month waiver of otherwise
applicable net worth requirements. FCMCs capital plan includes in relevant part a commitment,
until FCMC is in full compliance with the net worth requirements for mortgage servicers in New York
State, to (i) meet regulatory net worth requirements as soon as practicable but in no event later
than December 31, 2012 through the retention of net earnings and dividend restrictions, (ii)
maintain an interim adjusted net worth (as adjusted and calculated by the Banking Department (see
below), the Adjusted Net Worth) until FCMC complies with regulatory net worth requirements of not
less than approximately $7.9 million (Minimum Level), and not less than 5% of the principal
balance of New York mortgage loans serviced by FCMC and 0.25% of the aggregate mortgage loans
serviced in the United States (with each such percentage a Minimum Percentage), (iii) not,
without the prior written consent of the Banking Department, service additional mortgage loans
secured by 1-4 family residential homes located in New York State, (iv) not declare or pay any
dividends upon the shares of its capital stock, and (v) submit quarterly reports on the total
number of and principal balance of loans serviced and its Adjusted Net Worth. Under the terms of
the capital plan, in the event that FCMCs Adjusted Net Worth falls below the Minimum Level or is
less in percentage terms than either of the Minimum Percentages, FCMC shall promptly notify the
Banking Department and (i) within 90 days cure the deficiency or (ii) within 90 days submit a
written plan acceptable to the superintendent of the Banking Department describing the primary
means and timing by which the Minimum Level or Minimum Percentages, as applicable, will be
achieved.
The emergency regulations, which were adopted by the New York State Superintendent of Banks
and which implement the statutory registration requirement for mortgage servicers in New York State
that went into effect on July 1, 2009, require (i) an Adjusted Net Worth of at least 1% of the
outstanding principal balance of aggregate mortgage loans serviced (whether or not in New York),
but in any event not less than $250,000; and, (ii) a ratio of Adjusted Net Worth to the outstanding
principal balance of New York mortgage loans serviced of at least 5%. Adjusted Net Worth, as
defined under the Superintendents emergency regulations, consists of total equity capital at the
end of the reporting period as determined by GAAP less: goodwill, intangible assets (excluding
mortgage servicing rights), any assets pledged to secure obligations of a person other than the
applicant, any assets due from officers or stockholders of the applicant or related companies; that
portion of any marketable securities (listed or unlisted) not shown at lower of cost or market; any
amount in excess of the lower of cost or market value of mortgages in foreclosure, construction
loans or property acquired through foreclosure, and any amount shown on the balance sheet as
investments in unconsolidated joint ventures, subsidiaries, affiliates, and/or other related
companies that is greater than the value of such investments accounted for using the equity method
of accounting.
At March 31, 2011, FCMCs Adjusted Net Worth was approximately $7.3 million, or approximately
0.45% of the aggregate principal balance of loans serviced nationwide and 7.20% for loans serviced
in New York. FCMCs requirement under the capital plan with the Banking Department is to maintain
not less than $7.9 million in Adjusted Net Worth and not less than 0.25% of the aggregate principal
balance of loans serviced nationwide and 5% for loans serviced in New York. Following the receipt
of payments in April 2011 from FCMCs related companies for servicing receivables outstanding at
March 31, 2011, FCMC was in compliance with the Minimum Level under its capital plan.
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Due Diligence Services
During 2008, capitalizing on our acquisition experience with residential mortgage loans, FCMC
began providing services for third parties not related to us or the Bank, on a fee-paying basis.
During the quarter ended March 31, 2011, we were engaged in a due diligence assignment principally
for one third party.
Financing
In December 2007, the Company entered into forbearance agreements with the Bank with respect
to its borrowing arrangements.
In March 2009 and through December 31, 2010, Franklin entered into a series of restructuring
agreements and amendments to restructuring agreements with the Bank, pursuant to which the
Companys debt, loans, pledges and guarantees with the Bank and its participating banks were
substantially restructured, except for approximately $38.7 million of the Companys debt (as of
December 31, 2010) with the Bank (the Unrestructured Debt) that is subject to the Forbearance
Agreement effective until September 30, 2011 and 2004 master credit agreement.
Under Amendment No. 2 to the Licensing Credit Agreement with the Bank, entered into in July
2010, FCMC has available credit under a revolving loan facility of $1 million and a $6.5 million
letter of credit facility with the Bank, and cash collateral securing the revolving loan and letter
of credit facilities of $7.5 million. The Licensing Credit Agreement expires September 30, 2011.
At March 31, 2011, FCMC had no debt outstanding under the revolving line and approximately
$5.4 million of letters of credit under the Licensing Credit Agreement with the Bank.
See Managements Discussion and Analysis of Financial Condition and Results of Operations
Borrowings and Note 9.
2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Basis of Presentation The unaudited Consolidated Financial Statements include the accounts
of the Company and its subsidiaries. All significant intercompany accounts and transactions have
been eliminated in consolidation. The accompanying unaudited Consolidated Financial Statements
have been prepared in accordance with instructions to Form 10-Q. Accordingly, they do not include
all of the information and footnotes required by accounting principles generally accepted in the
United States of America (GAAP) for complete financial statements. However, these unaudited
Consolidated Financial Statements include all normal and recurring adjustments that management
believes necessary for a fair statement of results for the periods. These unaudited Consolidated
Financial Statements do not necessarily indicate the results that may be expected for the full
year; the interim financial information should be read in conjunction with our Annual Report on
Form 10-K for the year ended December 31, 2010.
The preparation of financial statements in conformity with GAAP requires management to make
estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure
of contingent assets and liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual results could differ from
those estimates. The Companys estimates and assumptions primarily arise, effective as of the
March 31, 2009 Restructuring, from uncertainties and changes associated with interest rates, credit
exposure and fair market values of its investments in trust certificates, mortgage loans and real
estate held for sale and REIT securities.
Although management is not currently aware of any factors that would significantly change its
estimates and assumptions in the near term, future changes in market trends, market values and
interest rates and other conditions may occur which could cause actual results to differ
materially. For additional information refer to the Companys Annual Report on Form 10-K for the
year ended December 31, 2010, filed with the Securities and Exchange Commission, and, if
applicable, Quarterly Reports on Form 10-Q, which the Company urges investors to consider.
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Because the Portfolio transferred by the Company to the Trust on March 31, 2009 continued to
be included on the Companys consolidated balance sheet, the revenues from such loans were
reflected in the Companys consolidated results up to the effective dates of the Loan Sales, in
accordance with GAAP, notwithstanding the fact that trust certificates representing an undivided
interest in approximately 83% of the Portfolio were transferred to Huntingtons REIT in the
Restructuring. Accordingly, the fees received from Huntington for the quarter ended March 31, 2010
for servicing their loans and the third-party costs incurred by us in the servicing and collection
of their loans and reimbursed by Huntington, for purposes of these Consolidated Financial
Statements were not recognized as servicing fees and reimbursement of third-party servicing costs,
but instead as additional interest and other income earned, with offsetting expenses in an equal
amount, as if the Company owned and self-serviced the loans.
Basic and diluted net loss per share is calculated by dividing net loss attributed to common
shareholders by the weighted average number of common shares outstanding during the period. The
effects of warrants, restricted stock and stock options are excluded from the computation of
diluted earnings per common share in periods in which the effect would be antidilutive. Dilutive
potential common shares are calculated using the treasury stock method. For the three months ended
March 31, 2011 and 2010, 229,000 and 582,000 stock options, respectively, were not included in the
computation of net loss per share because they were antidilutive.
Recent Accounting Pronouncements
In January 2011, the Financial Accounting Standards Board (FASB) issued Accounting Standards
Update (ASU) No. 2011-01, Receivables (Topic 310): Deferral of the Effective Date of Disclosures
about Troubled Debt Restructurings in Update No. 2010-20 (ASU 2011-01). The amendments in ASU
2011-01 temporarily delay the effective date of the disclosures about troubled debt restructurings
in ASU No. 2010-20, Receivables (Topic 310): Disclosures about the Credit Quality of Financing
Receivables and the Allowance for Credit Losses, for public entities. The delay is intended to
allow the FASB time to complete its deliberations on what constitutes a troubled debt
restructuring. The effective date of the new disclosures about troubled debt restructurings for
public entities and the guidance for determining what constitutes a troubled debt restructuring
will then be coordinated. Currently, that guidance is anticipated to be effective for interim and
annual periods ending after June 15, 2011. The adoption of this standard is not expected to have
any material impact on the Companys consolidated financial position and results of operations.
In April 2010, the FASB issued ASU 2010-12, Income Taxes, (Topic 740) Accounting for Certain
Tax Effects of the Health Care Reform Acts (ASU 2010-12). On March 30, 2010, the President of
the United States signed the Health Care and Education Reconciliation Act of 2010, which is a
reconciliation bill that amends the Patient Protection and Affordable Act that was signed on March
23, 2010 (collectively, the Acts). ASU 2010-12 allows entities to consider the two Acts together
for accounting purposes. The Company does not expect the adoption of this standard to have any
impact on the Companys consolidated financial position and results of operations.
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3. | CASH AND CASH EQUIVALENTS |
At March 31, 2011 and December 31, 2010, the Company had $13.1 million and $12.6 million,
respectively, in cash and cash equivalents. Included in Cash and cash equivalents at both March
31, 2011 and December 31, 2010 was pledged cash to the Bank of $7.5 million under the Licensing
Credit Agreement (secured by a first-priority lien) and Legacy Credit Agreement (secured by a
second-priority lien).
4. | INVESTMENT IN PREFERRED AND COMMON STOCK (HUNTINGTON REIT SECURITIES) |
The Companys investment in REIT securities (REIT Securities) includes preferred and common
stocks of the Banks REIT. On or about June 14, 2010, the REIT, in which the Company owned 4,724
shares of Class C preferred stock and seven shares of common stock, was merged with another REIT of
the Bank, with the Company receiving, in exchange for preferred stock and common stock held in the
initial REIT, 4,724 shares of Class C preferred stock and 154 shares of common stock of the
combined REIT, which did not constitute a change in the approximate fair value or carrying value of
the Companys investment. In addition, the terms of the new Class C shares of the combined REIT
mirror the terms of the Class C shares of the initial REIT.
On July 23, 2010, the Company was verbally notified by the Bank that due to losses recognized
by the new combined REIT from a write down of the carrying value of the mortgage loans owned by the
Trust, the board of directors of the new combined REIT decided not to declare any preferred
dividends for the third and fourth calendar quarters of 2010.
In February 2011, the Company was advised that the REIT board in February declared dividends
on the REIT Securities for the two quarterly periods ended December 31 and September 30, 2010, and
also declared a dividend for the full year of 2011. The Company was advised that these declared
dividends would be paid one business day after the dividends are approved by the Banks regulator.
On March 31, 2011, the Company received the declared dividends on the REIT Securities in the amount
$63.8 million, which represented the dividends for the third and fourth calendar quarters of 2010
and for the full year 2011. The dividends paid on March 31, 2011 for the three quarters ended
December 31, 2011 in the amount of $31.9 million were deferred and will be recognized in earnings
in the appropriate subsequent quarterly periods in 2011.
As a direct result of the new combined REIT not declaring dividends for the third and fourth
quarters of 2010, the Company was unable to pay the full amount of its monthly interest due on
tranche A debt under the Legacy Credit Agreement with the Bank. Accordingly, the Company, as
permitted under the terms of the Legacy Credit Agreement, elected to accrue interest on tranche A
debt, to the extent not paid (due to the temporary deferral of preferred dividends by the REIT)
through distributions made on the Companys investment in the trust certificates of the Trust, by
adding the amount unpaid to the outstanding principal balance of the tranche A debt.
The proceeds of $63.8 million from the REIT dividend payment received on March 31, 2011 were
applied to pay off the outstanding balance of accrued and unpaid monthly costs of the January 25,
2011 terminated interest-rate swaps of $5.5 million (which the Bank does not view as a cure of the
alleged default under the Legacy Credit Agreement) and to pay down the unpaid principal of tranche
A debt by $58.3 million. None of the dividends received were applied by the Bank to pay accrued
and unpaid interest due on the Legacy Debt, which was added to the outstanding debt balance.
During the quarter ended March 31, 2011, $13.8 million was added to the outstanding balance of
Legacy Debt due to interest accrued and unpaid, of which $4.4 million was added to tranche A debt.
On May 11, 2011, the
Company entered into a Term Sheet with the Bank setting forth terms to amicably resolve the
Banks allegation of a default by the Company under the Legacy Credit Agreement. See Note 13.
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5. | INVESTMENT IN TRUST CERTIFICATES AT FAIR VALUE, MORTGAGE LOANS AND REAL ESTATE HELD FOR SALE, AND NOTES RECEIVABLE HELD FOR SALE |
The Investment in trust certificates (principally the trust certificates representing
approximately 17% of the Portfolio not transferred to the Banks REIT as of the March 2009
Restructuring), carried at estimated fair value, as of March 31, 2011 and 2010, which at March 31,
2011 consisted of only REO properties. Activity for the three months ended March 31, 2011 and
2010 is as follows:
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Balance, January 1 |
$ | 1,505,978 | $ | 69,355,735 | ||||
Trust distributions |
| (3,142,005 | ) | |||||
Transfers (out) |
(508,311 | ) | (640,045 | ) | ||||
Fair value adjustments, net |
| 2,005,836 | ||||||
Balance, March 31 |
$ | 997,667 | $ | 67,579,521 | ||||
There were no Trust distributions during the three months ended March 31, 2011 as all the
mortgage loans were sold in 2010. Transfers out of the Investment in trust certificates represent
REO Sales. There were no adjustments to the estimated fair value of the Investment in trust
certificates during the quarter ended March 31, 2011. The fair value adjustments during the
quarter ended March 31, 2010 include a reduction in the estimated market value of the pro rata
percentage of loans underlying the Trust certificates of approximately $617,000 and a gain on the
Trust distributions of approximately $2.6 million.
The Mortgage loans and real estate held for sale (principally the Trust certificates
transferred to the Banks REIT representing approximately 83% of the Portfolio as of the March 2009
Restructuring), carried at lower of cost or estimated fair value, as of March 31, 2011 and 2010,
which at March 31, 2011 consisted of only REO properties. Activity for the three months ended
March 31, 2011 and 2010 is as follows:
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Balance, January 1 |
$ | 7,500,863 | $ | 345,441,865 | ||||
REO sales |
(2,531,758 | ) | (3,180,865 | ) | ||||
Principal payments |
| (7,634,242 | ) | |||||
Loans written off |
| (7,021 | ) | |||||
Fair value adjustments, net |
| 1,975,296 | ||||||
Balance, March 31 |
$ | 4,969,105 | $ | 336,595,033 | ||||
There were no principal payments on the Mortgage loans and real estate held for sale
during the quarter ended March 31, 2011 because all of the mortgage loans included therein were
sold in 2010. There were no adjustments to the estimated fair value of the Mortgage loans and real
estate held for sale during the quarter ended March 31, 2011. The fair value adjustments during
the quarter ended March 31, 2010 include a reduction in the estimated market value of the pro rata
percentage of loans underlying the Mortgage loans and real estate held for sale of approximately
$3.1 million and a gain on the REO sales proceeds and principal payments of approximately $5.0
million.
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Notes receivable held for sale, carried at lower of cost or estimated fair value, as of March
31, 2011 and 2010 consisted principally of the Companys loans securing the Unrestructured Debt.
Activity for the three months ended March 31, 2011 and 2010 is as follows:
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Balance, January 1 |
$ | 2,857,312 | $ | 3,575,323 | ||||
Principal payments |
(178,848 | ) | (241,619 | ) | ||||
Loans written off |
(3,819 | ) | (4,748 | ) | ||||
Fair value adjustments, net |
99,128 | 16,184 | ||||||
Balance, March 31 |
$ | 2,773,773 | $ | 3,345,140 | ||||
The fair value adjustments during the quarter ended March 31, 2011 included a gain on the
principal payments on the Notes receivable held for sale of approximately $99,000. The fair value
adjustments during the quarter ended March 31, 2010 included a reduction in the estimated market
value of the Notes receivable held for sale of approximately $172,000 and a gain on the principal
payments of approximately $188,000.
6. | FAIR VALUATION ADJUSTMENTS |
Fair valuation adjustments include adjustments in the fair value of the Investment in trust
certificates, the Nonrecourse liability, and adjustments to the lower of cost or market related to
Mortgage loans and real estate held for sale, and for losses on sales of real estate owned.
The following table sets forth the activity affecting the fair valuation adjustments for the
three months ended March 31, 2011 and 2010:
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Gain on REO sold |
$ | 417,971 | $ | 1,772,900 | ||||
Valuation gain on mortgage loans and REO |
| 1,975,296 | ||||||
Valuation (loss) on nonrecourse liability |
| (1,975,296 | ) | |||||
Valuation gain on trust certificates |
| 2,005,836 | ||||||
Valuation gain on notes receivable |
99,128 | 16,184 | ||||||
Other adjustments |
(1,236,309 | ) | (7,565,962 | ) | ||||
(Loss) on valuation |
$ | (719,210 | ) | $ | (3,771,042 | ) | ||
Other adjustments during the quarter ended March 31, 2011 include estimated fair market
value adjustments to offsets to the REO gains of approximately $928,000 and a $308,000 charge off
of the receivable outstanding from the Loan Sales by the Trust and the Bank in 2010 due to the
uncertainty that currently exists for future collectability. Other adjustments during the quarter
ended March 31, 2010 include estimated fair market value adjustments to offsets to the REO gains of
approximately $2.4 million and the offset to the interest and other income recorded on the mortgage
loans of approximately $5.2 million.
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7. | DERIVATIVES |
As part of the Companys interest-rate risk management process, the Company entered into
interest rate swap agreements in 2008. In accordance with ASC Topic 815, Derivatives and Hedging
(Topic 815), as amended and interpreted, derivative financial instruments are reported on the
consolidated balance sheets at their fair value.
The Companys management of interest-rate risk predominantly included the use of plain-vanilla
interest-rate swaps to synthetically convert a portion of its London Interbank Offered Rate
(LIBOR)-based variable-rate debt to fixed-rate debt. In accordance with Topic 815, derivative
contracts hedging the risks associated with expected future cash flows are designated as cash flow
hedges. The Company formally documents at the inception of its hedges all relationships between
hedging instruments and the related hedged items, as well as its interest risk management
objectives and strategies for undertaking various accounting hedges. Additionally, we use
regression analysis at the inception of the hedge and for each reporting period thereafter to
assess the derivatives hedge effectiveness in offsetting changes in the cash flows of the hedged
items. The Company discontinued hedge accounting if it was determined that a derivative was not
expected to be or had ceased to be highly effective as a hedge, and then reflected such changes in
the fair value of the derivative in earnings. All of the Companys interest-rate swaps qualified
for cash flow hedge accounting, and were so designated.
As of March 31, 2011, the Companys had no interest rate swaps agreements in place to
potentially reduce the Companys exposure to future increases in interest costs on a portion of its
borrowings due to increases in one-month LIBOR. All of our interest rate swaps agreements had been
executed with the Bank.
On January 25, 2011, the Bank declared an early termination of all remaining interest rate
swaps due to a failure by the Company to make payments due under the swap agreements with the Bank.
The Companys failure to make these payments was occasioned by insufficient funds available under
the Legacy Credit Agreement with the Bank and its participating banks as a direct result of the
loss of cash flows attributable to the July, September and December 2010 loan sales by the Banks
Trust and the suspension of dividends by its REIT. The swap termination fee payable by the Company
(but not FCMC) to the Bank is $6.5 million. It is anticipated that the swap termination fee will
be payable only to the extent cash is available under the waterfall provisions of the Legacy Credit
Agreement and only after the outstanding balance designated as tranche A debt owed to the Bank has
been paid in full (which would be unlikely), which at March 31, 2011 was $653.6 million. The swap
termination fee is not an obligation of FCMC.
The Bank has also verbally indicated that it is their position that the early termination of
the interest rate swaps in January 2011 and a prior early termination of interest rate swaps
effective March 31, 2009, which was exercised at the request of the Bank, are defaults under the
Legacy Credit Agreement, entitling the Bank to take possession of and dispose of the REIT
securities collateralizing the Legacy Debt of certain subsidiaries of Franklin Holding, other than
FCMC. Although we dispute this interpretation based on the nature of the swap terminations in
January 2011 and certain equitable defenses with respect to the swap terminations in March 2009, we
have entered into negotiations with the Bank to surrender the REIT securities as an alternative to
litigation, which might be time-consuming and expensive with an uncertain outcome. The Banks
position, which FCMC is inclined to cooperate with, will enable the REIT securities effectively to
be redeemed at estimated fair value (as determined by the Bank), the proceeds of which are expected
to be applied principally to reduce the outstanding balance of the Legacy Debt.
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As of December 31, 2008, the Company removed the hedge designations for its cash flow hedges.
As a result, the Company continues to carry the December 31, 2008 balance related to those hedges
in AOCL. The balance in AOCL is amortized to earnings as part of interest expense in the same
period or periods during which the hedge forecasted transaction affects earnings. During the three
months ended March 31, 2011, the net impact of the cash flow hedges was an increase of $2.0 million
to interest expense, inclusive of $1.8 million of amortization of the AOCL balance and reclassified
from AOCL into earnings, the cost of the existing hedges in the amount of $272,000 (prior to the
early termination of the remaining interest-rate swaps), somewhat offset by an increase of $77,000
in the fair value of the existing swaps (prior to the early termination of the remaining
interest-rate swaps). During the three months ended March 31, 20010, the net impact of the cash
flow hedges was an increase of $5.5 million to interest expense, inclusive of $3.3 million of
amortization of the AOCL balance and reclassified from AOCL into earnings, the cost of the hedges
in the amount of $3.0 million, somewhat offset by an increase of $767,000 in the fair value of the
existing swaps.
The net changes in the fair value of the Companys derivatives, which is reflected in
derivative liabilities, at fair value, for the three months ended March 31, 2011 and 2010 is as
follows:
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Balance, January 1 |
$ | (4,922,375 | ) | $ | (13,144,591 | ) | ||
Cash settlements |
4,922,375 | 3,021,296 | ||||||
Fair value adjustments |
| (2,184,240 | ) | |||||
Balance, March 31 |
$ | | $ | (12,307,535 | ) | |||
8. | FAIR VALUE MEASUREMENTS |
Topic 820, Fair Value Measurements and Disclosures, establishes a three-tier hierarchy for
fair value measurements based upon the transparency of the inputs to the valuation of an asset or
liability and expands the disclosures about instruments measured at fair value. A financial
instrument is categorized in its entirety and its categorization within the hierarchy is based upon
the lowest level of input that is significant to the fair value measurement. The three levels are
described below.
| Level 1 Inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets. |
| Level 2 Inputs to the valuation methodology include quoted prices for similar assets and liabilities in active markets and inputs that are observable for the asset of liability, either directly or indirectly, for substantially the full term of the financial instrument. Fair values for these instruments are estimated using pricing models, quoted prices of securities with similar characteristics, or discounted cash flows. |
| Level 3 Inputs to the valuation methodology are unobservable and significant to the fair value measurement. Fair values are initially valued based upon transaction price and are adjusted to reflect exit values as evidenced by financing and sale transactions with third parties. |
Fair values for over-the-counter interest rate contracts are determined from market observable
inputs, including the LIBOR curve and measures of volatility, used to determine fair values are
considered Level 2, observable market inputs.
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Fair values for certain investments (Level 3 assets) are determined using pricing models,
discounted cash flow methodologies or similar techniques and at least one significant model
assumption or input is unobservable.
The carrying value of derivative and financial instruments on the Companys financial
statements at March 31, 2011 are as follows:
Level 1 | Level 2 | Level 3 | Level 3 | |||||||||||||
Interest-rate swaps |
$ | | $ | | $ | | $ | | ||||||||
Investment in trust certificates |
| | 997,667 | | ||||||||||||
Nonrecourse liability |
| | | (4,969,105 | ) | |||||||||||
Total |
$ | | $ | | $ | 997,667 | $ | (4,969,105 | ) | |||||||
The changes in items classified as Level 3 during the three months ended March 31, 2011
are as follows:
Investments | Liabilities | |||||||
Balance, January 1, 2011 |
$ | 1,505,978 | $ | (7,500,863 | ) | |||
Total unrealized gains/(losses) |
| | ||||||
Transfers in/(out) |
(508,311 | ) | | |||||
Distributions/payments |
| 2,531,758 | ||||||
Balance, March 31, 2011 |
$ | 997,667 | $ | (4,969,105 | ) | |||
The carrying value of assets measured at the lower of cost or market value at March 31,
2011 is as follows:
Level 1 | Level 2 | Level 3 | ||||||||||
Mortgage loans and real estate held for sale |
$ | | $ | | $ | 4,969,105 | ||||||
9. | NOTES PAYABLE AND FINANCING AGREEMENTS |
As of March 31, 2011, the Company had total borrowings, Notes payable and Financing
agreements, of $1.295 billion under the Restructuring Agreements, of which $1.256 billion was
subject to the Legacy Credit Agreement and $38.7 million remained under a credit facility excluded
from the Restructuring Agreements (the Unrestructured Debt). Substantially all of the debt under
the Legacy Credit Agreement (the Legacy Debt) was incurred in connection with the Companys
purchase and origination of residential 1-4 family mortgage loans prior to December 2007. We
ceased to acquire and originate loans in November 2007, and under the terms of the Restructuring
Agreements, the Company cannot originate or acquire mortgage loans or other assets without the
prior consent of the Bank. As of March 31, 2011, substantially all of the debt under the Companys
credit facilities is secured by the REIT Securities, the trust certificates, pledged cash in the
amount of $7.5 million and certain other assets, including 100% of the equity interests in all
direct and indirect subsidiaries of Franklin Holding, but not FCMC. The assets of our servicing
subsidiary, FCMC (other than $7.5 million of cash collateral held as security under the Licensing
Credit Agreement on which the Bank has a second-priority lien under the Legacy Credit Agreement),
are not pledged as collateral for the Legacy Debt. The borrowings under the Legacy Credit
Agreement (the Legacy Debt) are shown in the Companys financial statements as Notes payable
(also referred to as term debt herein).
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At March 31, 2011, FCMC had no borrowed funds outstanding under the revolving line of its
Licensing Credit Agreement with the Bank, which is shown in the Companys financial statements as
Financing agreement.
Restructuring Agreements with Lead Lending Bank
December Sale of Remaining Loans and Participation Interest in Unrestructured Debt with the Bank
In December 2010 (the December Loan Sale), Bosco III, which is owned 50% by the Companys
Chairman and President, Thomas J. Axon, purchased $174 million of principally charge-off first and
subordinate-lien loans sold by the Trust, which were the remaining loans (other than real estate
owned properties) held by the Banks Trust, and also purchased from the Bank a 50% participation
interest in each of the commercial loans to the Company covering that portion of the Companys debt
(the Unrestructured Debt) with the Bank (see Forbearance Agreements with Lead Lending Bank
described below).
As of March 31, 2011, the Unrestructured Debt totaled approximately $38.7 million and is
secured by approximately 658 loans, for which FCMC is the loan servicer, and certain Company
entities are the beneficial owners. The Unrestructured Debt is subject to the original terms of
the Companys forbearance agreement with the Bank, as amended, which has an expiration date of
September 30, 2011, and the Companys 2004 master credit agreement with the Bank.
In conjunction with the December Loan Sale, FCMC entered into a servicing agreement with Bosco
III for the servicing and collection of approximately $174 million of loans purchased by Bosco III
of principally charge-off first and subordinate-lien loans sold by the Trust and the Bank, which
were the remaining loans (other than real estate owned properties, the servicing of which has been
extended by the Bank to May 31, 2011) held by the Banks Trust. FCMCs servicing agreement with
Bosco III may be terminated with respect to some or all of the assets without cause and without
penalty on 30 days prior written notice. See Note 12.
FCMC also has one servicing contract between FCMC and certain Company entities for the
mortgage loans collateralizing the Unrestructured Debt. However, the Bank, as administrator and
nominal title owner of the commercial loans covering the Unrestructured Debt, has not, despite
receiving directions from the Company, netted servicing fees and certain reimbursable servicing
expenditures out of collections so that FCMC may be paid and reimbursed for services rendered
(which as of March 31, 2011 totaled $154,000) pursuant to the 2004 master credit agreement with the
Bank to preserve, service and collect on the mortgage loan collateral securing the Unrestructured
Debt. The Bank, which has indicated it has no objection to paying FCMC as servicer out of
collections and asserts that it has the right to charge back any of its expenses to the lending
participants of the commercial loans to certain Company entities, has indicated that if it is not
presented with clear, consensual directions from both lending participants, which the Bank
maintains it has not received, it may deposit/interplead all funds collected in an account at a
local court. All of the foregoing, may impact the services rendered by FCMC with respect to the
subject mortgage loan collateral and the pay down of the Unrestructured Debt (which in any event is
highly unlikely to ever be paid in full).
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September 2010 Transaction
September 16, 2010 Agreement
On September 16, 2010, FCHC and its subsidiary, FCMC, entered into an agreement with the Bank,
the Banks Trust, Thomas J. Axon, the Chairman and President of FCHC and FCMC and Bosco II, an
entity of which Mr. Axon is the sole member.
The agreement was entered into in connection with discussions regarding the then proposed sale
to Bosco II (with approximately 95% of the funds provided by a third-party lender) of all of the
subordinate-lien consumer loans (the Subordinate Consumer Loans) owned by the Trust and serviced
by FCMC under an amended and restated servicing agreement dated as of August 1, 2010 (the
Servicing Agreement). The conditions and transactions contemplated by the agreement, including
the sale of the Subordinate Consumer Loans (the September Loan Sale) were consummated on September
22, 2010.
It was agreed that contemporaneously with the consummation of the September Loan Sale, and
after obtaining the requisite agreement of syndicate members under the Legacy Credit Agreement,
FCHCs pledge of 70% of the outstanding shares of FCMC as security for the Legacy Credit Agreement
would be released, in consideration of and subject to:
| receipt of $4 million in cash at closing from FCMC to be applied to the amounts outstanding under the Legacy Credit Agreement; |
| payment by Bosco II to the Trust of approximately $650,000 as additional payment for the September Loan Sale, an amount equal to the servicing fees paid by the Trust to FCMC for FCMCs servicing of the Trusts portfolio during August 2010; |
| FCMC and Mr. Axon entering into an agreement (the Deferred Payment Agreement) providing that upon each monetizing transaction, dividend or distribution (other than the sale, restructuring or spin off of FCMC (each referred to as the Proposed Restructuring)) prior to March 20, 2019, they will be obligated to pay the lenders under the Legacy Credit Agreement 10% of the aggregate value of qualifying transactions (as defined in the agreement), in excess of a threshold of $4 million of consideration in respect of such transactions; and, |
| the cash payment of $1 million by FCMC to release the mortgages on certain office and residential condominium units owned by FCMC (the Real Estate) pledged to the Bank under the Legacy Credit Agreement and the Licensing Credit Agreement (the Real Estate Release Payment); provided, however, that if by the closing of the September Loan Sale and the Proposed Restructuring, FCMC is unable to make such payment, FCMC will deliver in lieu of such cash payment a $1 million note payable on November 22, 2010, guaranteed by Mr. Axons note. FCMC made the $1 million payment to the Bank prior to November 22, 2010, and the Bank released the Real Estate. |
The Bank also agreed that, in consideration of its receipt of the above items and either the
Real Estate Release payment or delivery of Mr. Axons note upon closing, the EBITDA Payment
described in the July 2010 Transaction among FCHC, FCMC, Mr. Axon, the Bank and the Trust would be
waived.
Additionally, the agreement provided that:
| the Trust will consent under the Servicing Agreement with FCMC to the change of control of FCMC resulting from the Proposed Restructuring and agree to eliminate any cross default provisions in the Servicing Agreement relating to defaults under the Legacy Credit Agreement; |
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| the Bank and the requisite lenders will consent under the Legacy Credit Agreement to the change of control of FCMC resulting from the Proposed Restructuring and agree to waive any related defaults and amend the definition of Collateral and certain FCMC-related restrictive covenants; and, |
| FCMC and the Bank will amend the Licensing Credit Agreement to permit a change of control of FCMC resulting from the Proposed Restructuring and agree to eliminate any cross default provisions relating to defaults under the Legacy Credit Agreement and extend the letter of credit facility and the revolving facility under the Licensing Credit Agreement to September 30, 2011. |
In the agreement, FCMC also waived any additional notice of the termination of the Servicing
Agreement with respect to the Subordinate Consumer Loans, and any fees or other amounts in respect
thereof with respect to any period from and after the closing of the September Loan Sale.
In consideration of Mr. Axons undertaking the obligations required of him under the
agreement, and various guarantees and concessions previously provided by Mr. Axon for the Companys
benefit, the Companys Audit Committee agreed, subject to specific terms to be negotiated with the
Company and Mr. Axon, to the transfer to Mr. Axon of a number of shares of FCMC common stock
currently held by FCHC representing 10% of FCMCs outstanding shares, effective upon the closing of
the September Loan Sale and the release of FCHCs pledge of 70% of the outstanding shares of FCMC
as security for the Legacy Credit Agreement. See Note 12.
September 22, 2010 Implementing Agreements
On September 22, 2010, FCHC and FCMC entered into various agreements implementing the
transactions contemplated by the September 16, 2010 agreement (the Implementing Agreements or the
September 2010 Transaction). On September 22, 2010, the letter agreement was superseded by the
execution and delivery of an agreement, in a form and under terms substantially similar to the
letter agreement, to implement the terms and conditions agreed to under the letter agreement.
Deferred Payment Agreement. On September 22, 2010, FCMC entered into the Deferred Payment
Agreement with the Bank, in its capacity as Administrative Agent under the Legacy Credit Agreement,
and Mr. Axon.
The Deferred Payment Agreement has a term expiring March 20, 2019, and provides that FCMC will
pay to the Bank in respect of a qualifying transaction consummated during the term of the agreement
an amount equal to ten percent of the aggregate value of the qualifying transaction minus $4
million.
Qualifying transactions, which do not include the Proposed Restructuring, would include
transactions or series or combinations of related transactions involving any of:
| sale of all or a portion of the assets (an Asset Sale) or the capital stock (a Stock Sale) of FCMC, whether any such sale is effected by FCMC, Mr. Axon, its then-current owners if such owners sell 30% or more of the fully diluted outstanding equity securities of FCMC, a third party or any combination of any of the foregoing; |
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| any exchange or tender offer, merger, consolidation or other business combination involving FCMC; |
| any recapitalization, reorganization, restructuring or any other similar transaction including, without limitation, negotiated repurchases of FCMCs securities, an issuer tender offer, a dividend or distribution, or a spin-off or split-off involving FCMC; and, |
| any liquidation or winding-down of FCMC, whether by FCMC, its then-current owners, a third party or any combination of any of the foregoing. |
Qualifying transactions specifically exclude:
| the issuance of shares under FCMCs equity compensation plans to the extent that those issuances do not exceed 7% of the fully diluted outstanding securities of FCMC during the term of the Deferred Payment Agreement; and, |
| the sale, restructuring or spin off, which is subject to the Banks prior approval, by the Company of its ownership interests in FCMC. |
In the event of a qualifying transaction, the aggregate value of the transaction will be:
| in the case of a Stock Sale, the total consideration paid or payable to equity holders, or FCMC in the case of a new issuance. If a Stock Sale involves the acquisition of a majority of the fully diluted outstanding equity shares of FCMC, the total consideration will also include additional amounts reflecting FCMCs indebtedness for borrowed money, net pension liabilities, to the extent they are under funded and deferred compensation liabilities, and be grossed up to the amount that would have been paid if all of the outstanding equity securities were acquired for the same per share consideration as that ascribed to the shares actually acquired; and, |
| in the case of an Asset Sale, the total consideration paid or payable for the assets. If an Asset Sale involves the sale of a material portion of the assets or business of FCMC, the total consideration will also include any assumed debt (including capitalized leases and repayment obligations under letters of credit), pension liabilities assumed, to the extent they are under funded, and deferred compensation liabilities assumed, the net book value of net current assets retained by FCMC and the fair market value of any other retained assets. |
In any qualifying transaction, the aggregate value of the transaction will also include:
| consideration paid or payable to FCMC and its equity holders in connection with the qualifying transaction for covenants not to compete and management or consulting arrangements (excluding reasonable salaries or wages payable under bona fide arrangements for actual services); |
| dividends or distributions declared, and payments by FCMC to repurchase outstanding equity securities, in either event, after the date of the Deferred Payment Agreement; and, |
| in any qualifying transaction, amounts payable pursuant to any earn out, royalty or similar arrangement will be included in the aggregate value of the transaction. If such amounts are contingent, the deferred payment in respect of the contingent amounts will be paid at the time the contingency is realized, provided that amounts payable pursuant to notes or an escrow arrangement will not be treated as contingent. |
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Additionally, pursuant to the Deferred Payment Agreement, Mr. Axon guaranteed prompt and full
payment to the Bank of each required deferred payment when due.
Amendment to Legacy Credit Agreement. On September 22, 2010, subsidiaries of FCHC (other than
FCMC) entered into an amendment to the Legacy Credit Agreement with the Bank. Various definitions,
terms and FCMC-related covenants were amended to permit a change of control of FCMC as part of the
Proposed Restructuring, to effectuate the release of the equity interests of FCHC in FCMC and
release of the Real Estate (subject to payment in full of Mr. Axons note since FCMC had elected to
deliver Mr. Axons Note, which payment was made to the Bank and the Bank released the Real Estate),
and to add the Deferred Payment Agreement as collateral under the Legacy Credit Agreement.
On September 22, 2010, the limited recourse guarantee of FCMC under the Legacy Credit
Agreement was released, cancelled and discharged by the Bank. On September 22, 2010, FCHC and the
Bank entered into a first amendment to the limited recourse guaranty and first amendment to amended
and restated pledge agreements of FCHC under the Legacy Credit Agreement, which eliminated any
reference to the equity interests in FCMC of FCHC.
Amendment to Licensing Credit Agreement. On September 22, 2010, FCHC and FCMC entered into an
amendment to the Licensing Credit Agreement with the Bank. Various definitions, terms and
FCMC-related covenants were amended to permit a change of control of FCMC as part of the Proposed
Restructuring, to effectuate the release of the Real Estate (subject to the agreement of the
applicable administrative agents and the lenders to release the same pursuant to the terms of the
Restructure Agreement), eliminate any cross defaults resulting from any default under the Legacy
Credit Agreement; permit incurrence of liabilities for indebtedness subject to the prior written
consent of the Bank, which consent shall not be unreasonably withheld or delayed; and, eliminate
the provision that FCMC shall, to the extent permitted by applicable law, no less frequently than
semi-annually, within forty-five days after each June 30th and December 31st of each calendar year,
make pro rata dividends, distributions and payments to FCMCs shareholders and the Bank under the
Legacy Credit Agreement. In addition the Licensing Credit Agreement and the revolving loan and
credit facilities thereunder were extended to September 30, 2011.
Amendment to Servicing Agreement with the Bank. On September 22, 2010, the Servicing
Agreement was amended to eliminate any cross-default provisions resulting from any default under
the Legacy Credit Agreement.
EBIDTA Payment. On September 22, 2010, the Bank cancelled and terminated the obligations to
make any EBITDA payments under the July 2010 Transaction.
Servicing Agreement with Bosco II. On September 22, 2010, FCMC entered into a servicing
agreement with Bosco II for the servicing and collection of approximately 20,000 loans purchased by
Bosco II from the Trust (the Bosco II Servicing Agreement). Pursuant to the Bosco II Servicing
Agreement, FCMC shall service the loans subject to customary terms, conditions and servicing
practices for the mortgage servicing industry. Under the terms of the Bosco II Servicing
Agreement, FCMC is entitled to a servicing fee equal to a percentage of net amounts collected and a
per unit monthly service fee for loans less than thirty days contractually delinquent, a straight
contingency fee for loans equal to or more than thirty days contractually delinquent, and
reimbursement of certain third-party fees and expenses incurred by FCMC. The Bosco II Servicing
Agreement may be terminated without cause and penalty upon thirty days prior written notice. See
Note 12.
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July 2010 Transaction
On July 16, 2010, FCHC and its servicing business subsidiary, FCMC, entered into a letter
agreement (the Letter Agreement) with the Bank, Franklin Mortgage Asset Trust 2009-A, an indirect
subsidiary of the Bank (the Trust) and, for certain limited purposes, Mr. Axon. The Letter
Agreement was entered into in connection with and in anticipation of the Trusts then-proposed sale
to a third party, on a servicing-released basis (the July Loan Sale), of substantially all of the
first-lien residential mortgage loans serviced by FCMC under the servicing agreement by and among
the Trust and FCMC dated March 31, 2009 (the Legacy Servicing Agreement).
The July Loan Sale, effective July 1, 2010, closed on July 20, 2010 (the July Loan Sale
Closing Date) and, on July 20, 2010, the July Loan Sale purchaser (the Purchaser) entered into a
loan servicing agreement with FCMC (the Loan Sale Servicing Agreement), pursuant to which FCMC
continues to service approximately 75% of the first-lien residential mortgage loans acquired by
Purchaser in the July Loan Sale (effective October 1, 2010, 25% of the loans acquired were
transferred by the Purchaser to its affiliate, which was an event that had been planned by the
Purchaser at acquisition). Approximately 3,300 residential mortgage loans, consisting principally
of first-lien mortgage loans, were included in the July Loan Sale.
The Letter Agreement included terms amending, or committing the Bank, FCMC, the Company, and
related parties to amend certain of the March 2009 Restructuring Agreements entered into in
connection with the Companys Restructuring with the Bank on March 31, 2009, including the existing
relationships under the Legacy Servicing Agreement, the Legacy Credit Agreement, and the Licensing
Credit Agreement, and FCMC to commit to make certain payments to the Bank. Additionally, the
Letter Agreement set forth certain mutual commitments of the parties with respect to the Companys
consideration of a restructuring or spin-off of its ownership of FCMC (a Potential Restructuring),
as well as certain guaranties of Mr. Axon, the Chairman and President of the Company and FCMC.
Letter Agreement with the Bank. Under the Letter Agreement with the Bank:
| FCMC made a $1 million payment to the Bank as reimbursement for certain expenses of the Bank in connection with the July Loan Sale; |
| FCMC released all claims under the Legacy Servicing Agreement as of the loan sale date (other than those for unpaid servicing advances for services incurred prior to June 30, 2010) with respect to the loans sold in the July Loan Sale; |
| FCMC refunded to the Trust an estimated $400,000 for servicing fees paid in advance to FCMC under the Legacy Servicing Agreement in respect of July 2010 to the extent attributable to the loans sold in the July Loan Sale; |
| the Legacy Servicing Agreement was terminated as to the loans sold, except with respect to FCMCs obligations to assist in curing documentary issues or deficiencies relating to the loans sold; and, |
| FCMC and the Trust entered into the New Trust Servicing Agreement on July 30, 2010 and effective August 1, 2010, relating to the servicing of the loans and real estate properties previously serviced under the Legacy Servicing Agreement, other than those sold in the July Loan Sale (see below). |
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On the July Loan Sale Closing Date, the Company and FCMC entered into Amendment No. 2 to the
Licensing Credit Agreement with the Bank and an affiliate of the Bank, Huntington Finance, LLC
(Amendment No. 2).
Amendment No. 2 to the Licensing Credit Agreement with the Bank. Under Amendment No. 2 to the
Licensing Credit Agreement with the Bank:
| FCMC used $1 million in unpledged cash to repay the amount outstanding under its revolving line of credit with the Bank; and, |
| available credit under the revolving loan facility was reduced from $2 million to $1 million and the cash collateral, which was required to secure the revolving loan and letter of credit facilities, was reduced from $8.5 million to $7.5 million, with the released collateral applied as a voluntary payment against the debt outstanding of certain subsidiaries of the Company under the Legacy Credit Agreement. |
Loan Sale Servicing Agreement with Purchaser. On July 20, 2010, but effective as of July 1,
2010, FCMC entered into a loan servicing agreement with the third-party Purchaser, pursuant to
which FCMC provides servicing for the loans acquired by the Purchaser in the July Loan Sale. The
Purchaser, which is now the second largest servicing client of FCMC, has the right to terminate the
servicing of any of such loans without cause upon ninety (90) calendar days prior written notice,
subject to the payment of a termination fee for each such loan terminated. Pursuant to the Loan
Sale Servicing Agreement, FCMC services the loans subject to customary terms, conditions and
servicing practices for the mortgage servicing industry.
Effective October 1, 2010, the Purchaser exercised its right to terminate the servicing of
approximately 25% of the loans acquired by the Purchaser in the July Loan Sale (based on unpaid
principal balance).
FCMC as servicer receives a monthly servicing fee per loan per month with the per loan amount
dependent upon loan status at the end of each month, resolution and disposition fees based on the
unpaid principal balance of loans collected from borrowers or gross proceeds from the sales of
properties, as applicable, and a contingency fee for unpaid principal balance collected on loans
designated by the Purchaser, in addition to various ancillary fees and reimbursement of certain
third-party expenses.
Potential Restructuring. In the July 2010 Transaction, which was amended and modified in part
by the September 2010 Transaction described above, the parties agreed that in connection with a
potential restructuring (the Potential Restructuring), if the Potential Restructuring is acceptable
to the Bank and the required lenders, in each partys sole discretion, and the Potential
Restructuring does not result in material tax, legal, regulatory, or accounting impediments or
issues for Franklin Holding or FCMC, then:
| the Bank would use its reasonable efforts to assist Franklin Holding and FCMC in connection with such Potential Restructuring in obtaining the approval of the required lenders for the Potential Restructuring and consenting to any change of control in connection with the Potential Restructuring to the extent required under the Legacy Credit Agreement, and FCMC or Franklin Holding would reimburse and hold the Bank and the required lenders harmless from any reasonable expense incurred by them in connection with any such Potential Restructuring; |
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| FCMC would make semi-annual payments to the Bank under the Legacy Credit Agreement (the EBITDA Payment) equal to (i) 50% of FCMCs EBITDA, in accordance with GAAP, for each period for the first 18 months from the July Loan Sale Closing Date, and (ii) 70% of FCMCs GAAP EBITDA for each period thereafter, up to a maximum aggregate of $3 million. The EBITDA Payment obligation, which was never triggered, was terminated and cancelled pursuant to the September 2010 Transaction; |
| Thomas J. Axons existing personal guaranty to the Bank would be extended to the EBITDA Payment pursuant to an amendment to the guarantee, which will also provide that to the extent that the EBITDA Payment in respect of any period is less than $500,000, Mr. Axon will pay such shortfall. Mr. Axons obligations pursuant to the guaranty would be secured and continue to be secured by the collateral he had pledged to the Bank on March 31, 2009; and, |
| any payments by FCMC or Mr. Axon in respect of the EBITDA Payment would go to reduce the obligation of the other in respect of the obligations to make such payment, or the guaranty in respect of such payment, as the case may be; and, any payments in respect of the EBITDA Payments, and application of payments to the Bank in respect of distributions by FCMC to its stockholders, would each serve as a credit against the other, which could have the effect of reducing the impact of the $3 million maximum amount of the EBITDA Payments otherwise payable as described above. (These obligations, which were never triggered, were terminated and cancelled, and Mr. Axons collateral has been released by the Bank, pursuant to the September 2010 Transaction.) |
New Trust Servicing Agreement. On July 30, 2010, FCMC entered into the New Trust Servicing
Agreement for the loans and real estate properties not sold by the Trust, effective August 1, 2010,
with the Trust to replace the servicing agreement (the Legacy Servicing Agreement) that had been
entered into with the Trust as part of the Companys March 31, 2009 Restructuring with the Bank.
The New Trust Servicing Agreement, which contains terms that are generally similar to those
included in FCMCs Legacy Servicing Agreement, included the following material changes: (i) the
servicing fees for the second-lien mortgage loans (which on September 22, 2010 were terminated from
the New Trust Servicing Agreement and sold to Bosco II in the September Loan Sale) were based
predominately on the percentage of principal and interest collected and a per unit monthly service
fee only for contractually performing loans and loans in the early stages of bankruptcy, (ii) the
servicing fees for the first-lien mortgages and real estate owned properties not sold to the
Purchaser were based on a fee schedule from the Loan Sale Servicing Agreement FCMC had entered into
with Purchaser (as described above), (iii) the New Trust Servicing Agreement is terminable without
penalty and without cause on 90 days prior written notice, or 30 days prior written notice in
connection with a sale of some or all of the assets by the Trust, (iv) the consent process for
hiring vendors was replaced with a general restriction that vendors may not be engaged to perform a
substantial portion of the primary day-to-day servicing obligations of FCMC, (v) minimum gross
collection targets that could have triggered a termination of the agreement were removed, and (vi)
the restrictions on entering into new servicing agreements that could reasonably likely impair the
ability of FCMC to perform its obligations were eliminated. On December 22, 2010, the Bank
terminated the New Trust Servicing Agreement and the servicing of all assets by FCMC for the Trust
(which as of December 31, 2010 consisted of only REO assets) effective March 24, 2011. Since then,
the Bank has extended the servicing agreement to May 31, 2011.
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Forbearance Agreements with Lead Lending Bank
Prior to the March 31, 2009 Restructuring Agreements that we entered into with Huntington, our
indebtedness was governed by forbearance agreements (the Forbearance Agreements) and prior credit
agreements with Huntington. Effective as of March 31, 2009, all of our borrowings, with the
exception of the Unrestructured Debt in the current amount of $38.7 million, are governed by credit
agreements entered into as part of the Restructuring Agreements. The Unrestructured Debt remains
subject to the original terms of the Forbearance Agreements entered into with the Bank in December
2007 and subsequent amendments thereto and the Companys 2004 master credit agreement with
Huntington. On April 20, August 10, and November 13, 2009, March 26, June 28, and November 19,
2010, and January 7, 2011, the Bank extended the term of forbearance period, which is now until
September 30, 2011.
The Bank has agreed to forbear with respect to any defaults past or present with respect to
any failure to make scheduled principal and interest payments to the Bank (Identified Forbearance
Default) relating to the Unrestructured Debt. The Bank, absent the occurrence and continuance of
a forbearance default other than an Identified Forbearance Default, has agreed not to initiate
collection proceedings or exercise its remedies in respect of the Unrestructured Debt or elect to
have interest accrue at the stated rate applicable after default. FCMC is not obligated to the
Bank with respect to the Unrestructured Debt and any references to FCMC in the Companys 2004
master credit agreement governing the Unrestructured Debt have been amended to refer to Franklin
Asset.
Upon expiration of the forbearance period, in the event that the Unrestructured Debt with the
Bank remains outstanding (currently $38.7 million), the Bank, with notice, has the right to call an
event of default under the Legacy Credit Agreement, but not the Licensing Credit Agreement and the
Servicing Agreement, which do not include cross-default provisions that would be triggered by such
an event of default under the Legacy Credit Agreement. The Banks recourse in respect of the
Legacy Credit Agreement is limited to the assets and stock of Franklin Holdings subsidiaries,
excluding the assets and stock of FCMC (except for a second-priority lien of the Bank on $7.5
million of cash collateral held as security under the Licensing Credit Agreement).
March 2009 Restructuring
On March 31, 2009, Franklin Holding, and certain of its direct and indirect subsidiaries,
including Franklin Credit Management Corporation, entered into the Restructuring Agreements with
the Bank, successor by merger to Sky Bank, pursuant to which the Companys loans, pledges and
guarantees with the Bank and its participating banks were substantially restructured, and
approximately 83% of the Portfolio was transferred to the Banks REIT.
The Restructuring did not include a portion of the Companys debt (the Unrestructured Debt),
which as of March 31, 2009 totaled approximately $40.7 million. The Unrestructured Debt remains
subject to the original terms of the Companys Forbearance Agreements entered into with the Bank in
December 2007 and subsequent amendments thereto and the Franklin 2004 master credit agreement. The
Companys Forbearance Agreements that had been entered into with the Bank were, except for the
Unrestructured Debt, replaced effective March 31, 2009 by the Restructuring Agreements.
10. | NONCONTROLLING INTEREST |
For the Companys consolidated majority-owned subsidiary in which the Company owns less than
100% of the total outstanding common shares of stock (FCMC), the Company recognizes a
noncontrolling interest for the ownership interest of the noncontrolling interest holder, the
Companys President and Chairman, and principal stockholder, Thomas J. Axon. The noncontrolling
interest
represents the minority stockholders proportionate share of the equity of FCMC. At March 31,
2011, the Company owned 80% of FCMCs capital stock, and Mr. Axon directly owned 20%. The 20%
equity interest of FCMC that is not owned by the Company is shown as noncontrolling interest in
subsidiary in the Companys Consolidated Financial Statements. See Note 12.
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The change in the carrying amount of the Noncontrolling interest in subsidiary for the three
months ended March 31, 2011 and 2010 is as follows:
Three Months Ended March 31, | ||||||||
2011 | 2010 | |||||||
Balance, January 1 |
$ | 3,174,632 | $ | 1,657,275 | ||||
Net income attributed to noncontrolling interest |
8,860 | 65,331 | ||||||
Balance, March 31 |
$ | 3,183,492 | $ | 1,722,606 | ||||
11. | CERTAIN CONCENTRATIONS |
Third Party Servicing Agreements The Companys operating business is conducted solely
through FCMC, which is a specialty consumer finance company primarily engaged in the servicing and
resolution of performing, reperforming and nonperforming residential mortgage loans, including
specialized loan collection and recovery servicing, for third parties. The portfolios serviced for
other entities, as of March 31, 2011, were heavily concentrated with loans serviced for related
parties (which consist primarily of loans previously acquired and originated by Company entities,
transferred to the Trust and then subsequently sold by the Trust to third parties). At March 31,
2011, FCMC had four significant servicing contracts with third parties to service 1-4 family
mortgage loans and owned real estate; three with related parties (Bosco I, Bosco II and Bosco III);
and one with an unrelated third party. We also had one servicing contract remaining with
Huntington for the remaining real estate properties not sold by the Trust in the Loan Sales and the
December Loan Sale. At March 31, 2011, we serviced and provided recovery collection services on a
total population of approximately 22,200 loans, with approximately $956.2 billion of unpaid
principal balance, for the Bosco-related entities. See Note 12.
The following table summarizes percentages of total principal balances by the geographic
location of properties securing the residential mortgage loans serviced for other entities at March
31, 2011:
Location | March 31, 2011 | |||
California |
27.11 | % | ||
Florida |
7.98 | % | ||
New Jersey |
6.86 | % | ||
New York |
6.38 | % | ||
Texas |
5.46 | % | ||
Pennsylvania |
3.30 | % | ||
Illinois |
3.06 | % | ||
Ohio |
3.05 | % | ||
Georgia |
2.89 | % | ||
Michigan |
2.76 | % | ||
All Others |
31.15 | % | ||
100.00 | % | |||
Financing All of the Companys existing debt and available credit facility is with one
financial institution, Huntington.
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12. | RELATED PARTY TRANSACTIONS |
Restructuring On March 31, 2009, the Company transferred ten percent of its ownership in
common stock of FCMC to its Chairman and President, Thomas J. Axon, as the cost of obtaining
certain guarantees and pledges from Mr. Axon, which were required by the Bank as a condition of the
March 2009 Restructuring entered into by the Company and certain of its wholly-owned direct and
indirect subsidiaries on March 31, 2009. On September 22, 2010, in consideration for Mr. Axons
undertaking the obligations required of him under a series of transactions the Company and FCMC
entered into with the Bank on that date (which resulted in a release of the pledge of FCMC stock to
the Bank, a significant revision to the Companys Legacy Credit Agreement and, subject to the final
approval of the Bank, the consent to proceed with a restructuring or spin-off of the ownership of
FCMC) and various guarantees and concessions provided by Mr. Axon for the benefit of both FCMC and
the Company, the Company transferred to Mr. Axon an additional 10% of FCMCs outstanding shares of
common stock. When combined with FCMC shares already directly owned by Mr. Axon, the Chairman and
President of the Company and FCMC now directly owns 20% of FCMC, while the remaining 80% of FCMC is
owned by the Company and indirectly by its public shareholders (including Mr. Axon as a principal
shareholder of the Companys publicly owned shares).
Bosco-Related Entities The Companys servicing revenues from the Bosco-related entities
amounted to $1.7 million and $244,000 for the three months ended March 31, 2011 and 2010,
respectively.
Bosco I Servicing Agreement. In May 2008, FCMC entered into various agreements, including a
servicing agreement, to service on a fee-paying basis for Bosco I approximately $245 million in
residential home equity line of credit mortgage loans. Bosco I was organized by FCMC, and the
membership interests in Bosco I include the Companys Chairman and President, Thomas J. Axon, and a
related company of which Mr. Axon is the chairman of the board and three of the Companys directors
serve as board members. FCMCs servicing agreement was approved by its Audit Committee. The Bosco
I lending agreement expires, if not renewed, May 28, 2011; and, in the event that Bosco Is lending
agreement is not extended or renewed, it is uncertain whether the lenders would permit FCMC to
remain the servicer of the mortgage loans.
Included in the Companys consolidated revenues were servicing fees recognized from servicing
the Bosco I portfolio of $156,000 and $244,000 for the three months ended March 31, 2011 and 2010,
respectively. The Company did not recognize any administrative fees for the three months ended
March 31, 2011 and 2010 and Bosco I did not pay for any fees for such services provided during the
three months ended March 31, 2011 and 2010.
In October 2009, at the request of the Bosco I lenders in an effort to maximize cash flow to
the Bosco I lenders and to avoid payment defaults by Bosco I, the fee structure relating to
deferred fees was adjusted through an amendment to the loan servicing agreement with Bosco I (the
Bosco Amendment), which was approved by FCMCs Audit Committee.
Under the terms of the Bosco Amendment, FCMC is entitled to a minimum monthly servicing fee of
$50,000. However, to the extent that the servicing fee otherwise paid for any month would be in
excess of the greater of $50,000 or 10% of the total cash collected on the loans serviced for Bosco
I (such amount being the Monthly Cap), the excess will be deferred, without the accrual of
interest. The cumulative amounts deferred will be paid (i) with the payment of the monthly
servicing fee, to the maximum extent possible, for any month in which the servicing fee is less
than the applicable Monthly Cap, so long as the sum paid does not exceed the Monthly Cap or (ii) to
the extent not previously paid, on the date on which any of the promissory notes (Notes) payable
by Bosco I to the lenders, which were
entered into to finance the purchase of and are secured by the loans serviced by FCMC, is
repaid, refinanced, released, accelerated, or the amounts owing thereunder increased (other than by
accrual or capitalization of interest). If the deferred servicing fees become payable by reason of
acceleration of the Notes, the lenders right to payment under such Notes shall be prior in right
to FCMCs rights to such deferred fees.
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As of March 31, 2011, the Company had no outstanding accrued and unpaid servicing fees due
from Bosco I other than the servicing fee due for the current month of March 2011, which was
received in April 2011, and $15,000 in outstanding reimbursable third-party expenses incurred by
FCMC in the servicing and collection of the Bosco I loans. As March 31, 2011, no deferred
servicing fees per the Bosco I amendments have been accrued, and all such amounts remain unpaid.
During the quarter ended December 31, 2010, the Company charged off as uncollectible $299,000 of
accrued and unpaid servicing fees due from Bosco I that represented the remaining portion of
outstanding servicing fees due and unpaid prior to August 1, 2009, due to current disputes among
Bosco I and its lenders regarding the May 28, 2011 maturity of the Bosco I lending agreement.
Bosco II Servicing Agreement. In September 2010, FCMC entered into a servicing agreement with
Bosco II and a trust to service and collect loans purchased by Bosco II from Franklin Mortgage
Asset Trust 2009-A, an indirect subsidiary of the Banks Trust. 100% of the membership interest in
Bosco II is held by the Companys Chairman and President, Thomas J. Axon. The Bosco II Servicing
Agreement governs the servicing of approximately 20,000 loans. Pursuant to the Bosco II Servicing
Agreement, FCMC services the loans subject to customary terms, conditions and servicing practices
for the mortgage servicing industry. Under the terms of the Bosco II Servicing Agreement, FCMC is
entitled to a servicing fee equal to a percentage of net amounts collected and per unit monthly
service fee for loans less than thirty days contractually delinquent and a straight contingency fee
for loans equal to or more than thirty days contractually delinquent, and reimbursement of certain
third-party fees and expenses incurred by FCMC. The Bosco II Servicing Agreement may be terminated
without cause and penalty upon thirty days prior written notice.
FCMC also provided the loan analysis and certain other services for Bosco II for the loans
acquired by Bosco II and will perform various administrative and bookkeeping services for Bosco
Credit II at the rate of $1,500 per month. FCMCs servicing agreement and administrative services
agreement with Bosco II were approved by its Audit Committee.
Included in the Companys consolidated revenues for the three months ended March 31, 2011 were
servicing fees recognized from servicing the Bosco II portfolio of approximately $1.5 million.
Bosco III Servicing Agreement and Participation Interest in Unrestructured Debt with the Bank.
In December 2010, FCMC entered into a servicing agreement with Bosco III to service and collect
approximately $174 million of charge-off loans purchased by Bosco III from the Banks Trust (the
remaining loans held by the Banks Trust) and purchased from the Bank a 50% participation interest
in each of the commercial loans to the Company covering that portion of the Companys debt with the
Bank in the amount of approximately $39 million (the Unrestructured Debt). 50% of the membership
interest in Bosco III is held by the Companys Chairman and President, Thomas J. Axon.
The Bosco III servicing agreement, as amended in January and April 2011, governs the servicing
of approximately 4,800 of charge-off loans, of which substantially fewer loans are actively
serviced by FCMC. Pursuant to the Bosco III servicing agreement as amended, the servicing fees for
second-lien mortgage loans are predominately based on the percentage of principal and interest
collected, with a contingency rate dependent on the delinquency of the loan, and a per unit monthly
service fee for only those loans less than 30 days delinquent or in a bankruptcy status during the
90 day period following a
bankruptcy filing. Otherwise, FCMC receives a monthly servicing fee per loan per month for
first-lien mortgage loans less than 120 days delinquent or in foreclosure or bankruptcy with the
amount dependent upon loan status at the end of each month, a monthly fee for real estate owned
properties, a contingency fee for first-lien mortgage loans equal to or more than 120 days
delinquent and not in foreclosure, resolution and disposition fees based on the unpaid principal
balance of first-lien mortgage loans collected from borrowers or gross proceeds from the sales of a
properties, as applicable, in addition to various ancillary fees and reimbursement of certain
third-party expenses. FCMCs services may be terminated with respect to some or all of the assets
without cause and without penalty on 30 days prior written notice.
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FCMC also provided the loan analysis and certain other services for Bosco III for the loans
acquired by Bosco III. FCMCs servicing agreement with Bosco III was ratified by its Audit
Committee.
Included in the Companys consolidated revenues for the three months ended March 31, 2011 were
servicing fees recognized from servicing the Bosco III portfolio of approximately $66,000.
Other Significant Related Party Transaction with the Companys Chairman In September 2010,
FCMCs audit committee authorized a 22% commission (minus certain expenses) to Hudson Servicing
Solutions, LLC (Hudson), a procurer of force-placed insurance products for FCMC, with respect to
force-placed hazard insurance coverage maintained on FCMCs remaining portfolio of mortgage loans
and mortgage loans serviced for third parties. The sole member of Hudson is RMTS, LLC, of which
Mr. Axon, the Companys Chairman and President, is the majority owner.
13. | SUBSEQUENT EVENT |
On May 11, 2011, Franklin Holding and certain of its subsidiaries, including FCMC, entered
into the Term Sheet with the Bank setting forth agreed upon terms to amicably resolve the Banks
allegation that a default had occurred under the Legacy Credit Agreement due to a failure of
certain Company entities to make certain payments under certain interest rate hedge agreements
(interest rate swaps) with the Bank (the Specified Default).
Pursuant to the Term Sheet, the Company agreed to voluntarily surrender and transfer to the
Bank the REIT securities, which have served as collateral under the Legacy Credit Agreement, free
and clear of any liens other than the liens of the Bank, in exchange for the Bank:
| reducing the outstanding balance of the Banks portion of tranche A debt pursuant to the terms of the Legacy Credit Agreement by an amount equal to $478 million, and releasing, canceling and discharging Franklin Holding and FCMC from any liability in connection with the Specified Default and under any interest rate hedge agreements entered into with the Bank; and, |
| forgiving that portion of the indebtedness owed to the Bank relating to the past terminations of interest rate hedge agreements in the approximate aggregate amount of $12.9 million and obtaining from one of its participants, which has a right of subrogation, forgiveness of approximately $1.8 million. |
In addition, the Bank agreed to seek credit approval to amend and extend the Licensing Credit
Agreement to September 30, 2012, and delete the financial covenant under the Licensing Credit
Agreement that Franklin Holding and FCMC maintain a net income before taxes of not less than
$800,000.
Further, the Bank agreed to use its good faith efforts to seek approval from required lenders
under the Legacy Credit Agreement to:
| eliminate the covenant in the Legacy Credit Agreement with respect to activities of Franklin Credit Loan Servicing LLC (FCLS), which is an inactive limited purpose entity formed as part of the Reorganization with assets of approximately $370,000) and permit FCLS to dissolve and transfer or distribute its assets to Franklin Holding or to merge into Franklin Holding, and to release the equity interests of FCLS from any security agreement or pledge in connection with any merger into Franklin Holding; |
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| release Franklin Holding from any obligation under its limited recourse guaranty dated March 31, 2009, which was entered into in connection with the Legacy Credit Agreement, and remove Franklin Holding from the definition of guarantor under the Legacy Credit Agreement; provided that Franklin Holding shall remain a pledgor, other than with respect to the interests of FCLS, under its amended and restated pledge agreement dated March 31, 2009 and entered into pursuant to the Legacy Credit Agreement (which includes a pledge of 100% of the equity interests in all direct and indirect subsidiaries of Franklin Holding other than FCMC); and, |
| waive the Specified Default. |
The are certain conditions precedent to the closing of a settlement between the parties, which
are customary for transactions of this type and include the Company delivering a comprehensive all
claims release in favor of participating lenders under the Legacy Credit Agreement and the Bank.
Franklin Holding and certain of its subsidiaries, including FCMC, expect to enter into various
agreements implementing the transactions contemplated by the Term Sheet in the next several days.
The foregoing summaries are qualified in their entirety by reference to the complete copy of
the Term Sheet, filed as Exhibit 10.2 to this Form 10-Q.
As a result of the Company entering into the implementing agreements contemplated by the Term
Sheet to voluntarily surrender and transfer to the Bank the REIT securities in return for a
reduction in the indebtedness to the Bank equal to $478 million, the Companys principal source of
cash flow to meet the obligations with respect its remaining approximately $800 million outstanding
indebtedness to the Bank will be eliminated, resulting in accrued and unpaid interest being added
to the outstanding principal balance of the Legacy Debt that the Company will be unable to pay at
maturity on March 31, 2012 (or upon earlier termination under the provisions of the
Legacy Credit Agreement).
In addition, the Companys operating losses will increase commencing with the quarter ended
September 30, 2011 and in the years 2012 and beyond due to the absence of dividend income on the
preferred REIT securities.
ITEM 2. | MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
As used herein, references to the Company, Franklin Holding, we, our and us refer to
Franklin Credit Holding Corporation (FCHC), collectively with its subsidiaries; and, references
to FCMC refers to Franklin Credit Management Corporation, the Companys servicing business
subsidiary; the Bank and Huntington refer to The Huntington National Bank; the Reorganization
refers to the December 2008 corporate reorganization; the Restructuring and the March 2009
Restructuring refer to the March 31, 2009 Restructuring; Bosco I refers to Bosco Credit,
LLC; Bosco II refers to Bosco Credit II, LLC; the Trust and the Banks Trust refer to
Franklin Mortgage Asset Trust 2009-A, an indirect subsidiary of the Bank; the Letter Agreement
refers to a July 16, 2010 letter agreement with the Bank and other parties; the July 2010
Transaction refers to a transaction with the Bank and other parties entered into on July 16, 2010;
the September 2010 Transaction refers to a transaction with the Bank and other parties entered
into on September 22, 2010; the July Loan Sale refers to the sale of loans in connection with the
July 2010 Transaction and the September Loan Sale refers to the sale of loans in connection with
the September 2010 Transaction (together, the Loan Sales); and, the December Loan Sale refers
to the remaining loans sold by the Banks Trust and the Banks 50% interest in the commercial loans
to the Company covering that portion of the Companys debt (referred to as the Unrestructured
Debt) with the Bank.
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Safe Harbor Statements. Statements contained herein and elsewhere in this Quarterly Report on
Form 10-Q that are not historical fact may be forward-looking statements regarding the business,
operations and financial condition of Franklin Credit Holding Corporation (Franklin Holding, and
together with its consolidated subsidiaries, the Company, we, us or our unless otherwise
specified or the context otherwise requires) within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the
Exchange Act). This information may involve known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be materially different
from our future results, performance or achievements expressed or implied by any forward-looking
statements. Forward-looking statements, which involve assumptions and describe our future plans,
strategies and expectations, and other statements that are not historical facts, are generally
identifiable by use of the words may, will, should, expect, anticipate, estimate,
believe, intend, plan, potential or project or the negative of these words or other
variations on these words or comparable terminology. These forward-looking statements are based on
assumptions that may be incorrect, and there can be no assurance that these projections included in
these forward-looking statements will come to pass. Our actual results could differ materially
from those expressed or implied by the forward-looking statements as a result of various factors.
These factors include, but are not limited to: (i) unanticipated changes in the U.S. economy,
including changes in business conditions such as interest rates, changes in the level of growth in
the finance and housing markets, such as slower or negative home price appreciation and economic
downturns or other adverse events in certain states; (ii) the Companys ability to continue as a
going concern; (iii) the Companys relations with the Companys lenders and such lenders
willingness to waive any defaults under the Companys agreements with such lenders; (iv) the
Companys ability to obtain renewals of its loans or alternative refinancing opportunities; (v) the
availability of or ability to retain as clients third parties holding distressed mortgage debt for
servicing by the Company on a fee-paying basis; (vi) changes in the statutes or regulations
applicable to the Companys business or in the interpretation and enforcement thereof by the
relevant authorities; (vii) the status of the Companys regulatory compliance; (viii) the risk that
legal proceedings could be brought against the Company which could adversely affect its financial
results; (ix) the Companys ability to adapt to and implement technological change; (x) the
Companys ability to attract and retain qualified employees; (xi) our failure to reduce quickly
overhead and infrastructure costs in response to a reduction in revenue; and, (xii) other risks
detailed from time to time in the Companys SEC reports and filings. Additional factors that would
cause actual results to differ materially from those projected or suggested in any forward-looking
statements are contained in the Companys filings with the SEC, including, but not limited to,
those factors discussed under the captions Risk Factors, Interest Rate Risk and Real Estate
Risk in the Companys Annual Report on Form 10-K for the year ended December 31, 2010, filed with
the SEC on March 30, 2011, and Quarterly Reports on Form 10-Q, which the Company urges investors to
consider. The Company undertakes no obligation to publicly release the revisions to such
forward-looking statements that may be made to reflect events or circumstances after the date
hereof or to reflect the occurrences of unanticipated events, except as otherwise required by
securities, and other applicable laws.
Readers are cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof. The Company undertakes no obligation to release publicly the
results on any events or circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
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Application of Critical Accounting Policies and Estimates
The Companys significant accounting policies, as of December 31, 2010 are described in Note 2
to the December 31, 2010 Consolidated Financial Statements filed in the Companys Annual Report on
Form 10-K. As of March 31, 2011 and December 31, 2010, we have identified the continuing
assessment of the fair value of the investment in (i) preferred and common stocks, or the REIT
Securities, (ii) trust certificates, (iii) because for accounting purposes the Restructuring was
treated as a financing under Accounting Standards Codification Topic 860, Transfers and Servicing
(ASC Topic 860), Mortgage loans and real estate held for sale and the corresponding Nonrecourse
liability, and (iv) income taxes as the Companys most critical accounting policies and estimates.
The following discussion and analysis of financial condition and results of operations is based on
the amounts reported in our Consolidated Financial Statements, which are prepared in accordance
with accounting principles generally accepted in the United States of America (GAAP). In
preparing the Consolidated Financial Statements, management is required to make various judgments,
estimates and assumptions that affect the financial statements and disclosures. Changes in these
estimates and assumptions could have a material effect on our Consolidated Financial Statements.
Management believes that the estimates and judgments used in preparing these Consolidated Financial
Statements were the most appropriate at that time.
Serviced for Others Portfolio
The Companys servicing business is conducted through FCMC, a specialty consumer finance
subsidiary company primarily engaged in the servicing and resolution of performing, reperforming
and nonperforming residential mortgage loans, including specialized collections and loan recovery
servicing for third parties.
As of March 31, 2011, FCMC had four significant servicing and recovery collection services
contracts with third parties to service 1-4 family mortgage loans and owned real estate: three with
related parties (Bosco I, Bosco II and Bosco III); and, one with an unrelated third party. We also
had one servicing contract remaining with Huntington and the Trust, for the owned real estate not
sold in the Loan Sales in July and September 2010 and the December Loan Sale in December 2010, and
another servicing contract between FCMC and certain Company entities for the loans collateralizing
the Unrestructured Debt. At March 31, 2011, we also serviced and provided recovery collection
services for relatively small pools of loans under recovery collection contracts for a few other
third parties, whereby we receive fees based solely on a percentage of amounts collected.
The unpaid principal balance of loans serviced for the Bosco related- party entities
represented approximately 60% of the unpaid principal balance (69% of the number of loans) of the
total loans serviced at March 31, 2011, while the loans serviced for Huntington represented
approximately 1% of the unpaid principal balance of total loans serviced at March 31, 2011 (which
is less than half of 1% of the total number of loans serviced for third parties).
Bosco II is the Companys largest servicing client and the purchaser of the loans acquired in
the July Loan Sale (the Purchaser) is now the Companys second largest servicing client.
On December 22, 2010, the Bank notified FCMC that the remaining servicing under the amended
and restated servicing agreement effective August 1, 2010 (the New Trust Servicing Agreement)
with FCMC and the servicing of all assets by FCMC for the Trust (which as of December 31, 2010
consisted of only real estate owned assets) would be terminated by the Bank effective March 24,
2011. Since then, the Bank has extended the servicing agreement to May 31, 2011.
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At March 31, 2011, the portfolio of residential mortgage loans serviced for other entities
consisted of 32,000 loans representing $1.57 billion of unpaid principal balance (UPB). At March
31, 2011, approximately 22,200 loans were serviced for the Bosco-related entities. The following
table sets forth information regarding the types of properties securing the serviced for others
portfolio at March 31, 2011.
March 31, 2011 | ||||||||||||
Number | Unpaid | Percentage of Total | ||||||||||
Property Types | of Loans | Principal Balance | Principal Balance | |||||||||
Residential 1-4 family |
17,261 | $ | 1,003,803,033 | 63.94 | % | |||||||
Condos, co-ops, PUD dwellings |
2,788 | 161,829,789 | 10.31 | % | ||||||||
Manufactured and mobile homes |
428 | 10,923,632 | 0.70 | % | ||||||||
Secured, property type unknown(1) |
1,193 | 17,174,709 | 1.09 | % | ||||||||
Commercial |
39 | 2,722,551 | 0.17 | % | ||||||||
Unsecured loans(2) |
10,203 | 373,388,125 | 23.79 | % | ||||||||
Total |
31,912 | $ | 1,569,841,839 | 100.00 | % | |||||||
(1) | The loans included in this category are principally small balance (less than $10,000) second-lien loans acquired, and are collateralized by residential real estate. | |
(2) | The loans included in this category are principally second-lien loans where the Company is aware that residential real estate collateral has been foreclosed by the first-lien holder. |
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The following table provides a breakdown of the delinquency status of our portfolio of
residential mortgage loans serviced for other entities, as of March 31, 2011, by unpaid principal
balance.
March 31, 2011 | ||||||||||
Contractual Delinquency | ||||||||||
Days Past Due | Amount | % | ||||||||
Performing Current |
0 30 days | $ | 181,574,190 | 11.57 | % | |||||
Delinquent |
31 60 days | 15,623,399 | 1.00 | % | ||||||
61 90 days | 8,443,238 | 0.54 | % | |||||||
90+ days | 764,981,654 | 48.73 | % | |||||||
Modified Loans |
0 30 days | 139,630,927 | 8.89 | % | ||||||
Delinquent |
31 60 days | 21,977,705 | 1.40 | % | ||||||
61 90 days | 9,728,018 | 0.62 | % | |||||||
90+ days | 38,786,480 | 2.47 | % | |||||||
Bankruptcy |
0 30 days | 22,012,196 | 1.40 | % | ||||||
Delinquent |
31 60 days | 4,067,827 | 0.26 | % | ||||||
61 90 days | 2,736,410 | 0.17 | % | |||||||
90+ days | 176,275,661 | 11.23 | % | |||||||
Foreclosure |
0 30 days | 234,772 | 0.01 | % | ||||||
Delinquent |
31 60 days | | | |||||||
61 90 days | 263,626 | 0.02 | % | |||||||
90+ days | 183,505,736 | 11.69 | % | |||||||
Total | $ | 1,569,841,839 | 100.00 | % | ||||||
All current loans |
0 30 days | $ | 343,452,085 | 21.88 | % | |||||
Included in the above table were second-lien mortgage loans in the amount of $1.09
billion, of which $126.5 million were current on a contractual basis. The legal status composition
of the second-lien mortgage loans at March 31, 2011 was: $849.5 million (including $708.6 million
at least 90 days contractually delinquent), or 78%, were performing; $75.0 million, or 7%, were
modified due to delinquency or the borrowers financial difficulty; $156.5 million, or 14%, were in
bankruptcy; and $9.4 million, or less than 1%, were in foreclosure.
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The following table provides a breakdown of the delinquency status of our portfolio of
residential mortgage loans serviced for other entities, as of March 31, 2011, by loan count.
March 31, 2011 | ||||||||||
Contractual Delinquency | ||||||||||
Days Past Due | Number of Loans | % | ||||||||
Performing Current |
0 30 days | 4,723 | 14.80 | % | ||||||
Delinquent |
31 60 days | 339 | 1.06 | % | ||||||
61 90 days | 200 | 0.63 | % | |||||||
90+ days | 18,892 | 59.20 | % | |||||||
Modified Loans |
0 30 days | 1,612 | 5.05 | % | ||||||
Delinquent |
31 60 days | 252 | 0.79 | % | ||||||
61 90 days | 127 | 0.40 | % | |||||||
90+ days | 733 | 2.30 | % | |||||||
Bankruptcy |
0 30 days | 576 | 1.81 | % | ||||||
Delinquent |
31 60 days | 97 | 0.30 | % | ||||||
61 90 days | 70 | 0.22 | % | |||||||
90+ days | 3,339 | 10.46 | % | |||||||
Foreclosure |
0 30 days | 2 | 0.01 | % | ||||||
Delinquent |
31 60 days | | | |||||||
61 90 days | 4 | 0.01 | % | |||||||
90+ days | 946 | 2.96 | % | |||||||
Total | 31,912 | 100.00 | % | |||||||
All current loans |
0 30 days | 6,913 | 21.66 | % | ||||||
Included in the above table were 26,823 second-lien mortgage loans, of which 3,991 were
current on a contractual basis. The legal status composition of the second-lien mortgage loans at
March 31, 2011 was: 21,226 loans (including 16,796 loans at least 90 days contractually
delinquent), or 79%, were performing; 1,807 loans, or 7%, were modified due to delinquency or the
borrowers financial difficulty; 3,664 loans, or 14%, were in bankruptcy; and 126 loans, or less
than 1%, were in foreclosure.
The following table sets forth information regarding the lien position of the properties
securing the portfolio of residential mortgage loans (exclusive of real estate assets) serviced for
other entities at March 31, 2011:
March 31, 2011 | ||||||||||||
Number | Unpaid | Percentage of Total | ||||||||||
Lien Position | of Loans | Principal Balance | Principal Balance | |||||||||
1st Liens |
5,089 | $ | 479,352,122 | 30.54 | % | |||||||
2nd Liens |
26,823 | 1,090,489,717 | 69.46 | % | ||||||||
Total |
31,912 | $ | 1,569,841,839 | 100.00 | % | |||||||
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The following table sets forth information regarding the geographic location of
properties securing the residential mortgage loans serviced for others at March 31, 2011:
March 31, 2011 | ||||||||||||
Number | Unpaid | Percentage of Total | ||||||||||
Location | of Loans | Principal Balance | Principal Balance | |||||||||
California |
5,195 | $ | 425,556,128 | 27.11 | % | |||||||
Florida |
2,580 | 125,289,501 | 7.98 | % | ||||||||
New Jersey |
825 | 107,773,189 | 6.86 | % | ||||||||
New York |
1,202 | 100,103,133 | 6.38 | % | ||||||||
Texas |
3,223 | 85,644,624 | 5.46 | % | ||||||||
Pennsylvania |
1,009 | 51,870,753 | 3.30 | % | ||||||||
Illinois |
1,217 | 47,982,487 | 3.06 | % | ||||||||
Ohio |
1,620 | 47,882,140 | 3.05 | % | ||||||||
Georgia |
1,196 | 45,376,153 | 2.89 | % | ||||||||
Michigan |
1,588 | 43,320,177 | 2.76 | % | ||||||||
All Others |
12,257 | 489,043,554 | 31.15 | % | ||||||||
Total |
31,912 | $ | 1,569,841,839 | 100.00 | % | |||||||
Real Estate Assets Serviced for Others
At March 31, 2011, the Company serviced 165 real estate assets for other entities with an
aggregate UPB of $30.7 million.
Results of Operations Franklin Credit Management Corporation (FCMC)
Through FCMC, the Companys servicing entity within the Franklin group of companies, we
continue to actively seek to expand our servicing business to provide servicing and recovery
services to third parties, particularly specialized collection services, and to capitalize on our
experience to provide due diligence and various other portfolio management services to the
residential mortgage markets. Since January 1, 2009, the Companys operating business has been
conducted solely through FCMC, a specialty consumer finance subsidiary company primarily engaged in
the servicing and resolution of performing, reperforming and nonperforming residential mortgage
loans, including specialized loan recovery servicing, and in the due diligence, analysis and
pricing of residential mortgage portfolios, for third parties.
Inter-company allocations and the Federal provision for income taxes during the three months
ended March 31, 2011 and 2010 have been eliminated in deriving the Consolidated Financial
Statements of the Company. Servicing revenues received from the Bank for servicing its loans and
REO properties during the three months ended March 31, 2010 have been eliminated in deriving the
Consolidated Financial Statements of the Company. The servicing fees received from the Bank during
three months ended March 31, 2011 for servicing their remaining REO properties were eliminated in
deriving the Consolidated Financial Statements of the Company. Servicing revenues were eliminated
in the Consolidated Financial Statements of the Company due to the accounting treatment for the
transfer of the trust certificates as a financing under ASC Topic 860.
The Companys Consolidated Financial Statements, while including the results of FCMC, include
the results of all its subsidiary companies, which comprise all the remaining assets and debt
obligations (the Legacy Debt) that have resulted from the Companys legacy business activities
prior to 2008.
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At March 31, 2011, FCMC, notwithstanding the substantial stockholders deficit of Franklin
Holding, has positive net worth, and effective September 22, 2010 all of FCMCs stock became free
from the pledges to the Bank. In addition, FCMC, effective September 22, 2010, is free of
significant restrictive covenants under the Companys credit agreements with the Bank (the Legacy
Credit Agreement) that governs the substantial debt owed to the Bank by subsidiaries of FCHC
(referred to as the Legacy Debt), but not FCMC.
At March 31, 2011, FCMC had total assets of $32.8 million and had stockholders equity of
$15.9 million. Inter-company payables and receivables, and non-dividend distributions made by
FCMC, were eliminated in deriving the Consolidated Financial Statements of Franklin Holding.
FCMC had income before tax of $74,000 and $1.1 million, respectively, for the three months
ended March 31, 2011 and 2010, principally from servicing the portfolio of loans and assets for the
Banks Trust in the first quarter of 2010; and, in the first quarter of 2011 from servicing the
portfolio of loans and assets for the third party that purchased the loans in the July Loan Sale
(the Purchaser), the three Bosco entities and for the Banks Trust. The decline in before tax
income for the quarter ended March 31, 2011 compared with the same quarter in 2010 was due
principally to new servicing contracts entered into in connection with the Loan Sales and the
December Loan Sale, and to a lesser extent reduced servicing fees as a result of a reduction in the
number of loans serviced. FCMC charges its sister companies a management fee that is estimated
based on internal services rendered by its employees to those companies.
FCMC was not in compliance at December 31, 2010 with the covenant in its credit agreement with
the Bank (the Licensing Credit Agreement) that requires Franklin Holding and FCMC to maintain net
income before taxes of not less than $800,000 as of the end of each calendar month for the most
recently ended twelve consecutive month period or, with notice, an event of default will be deemed
to have occurred. FCMC, however, would have been in compliance with the net income covenant had it
not paid the Bank a $1.0 million fee in connection with the July Loan Sale by the Banks Trust
pursuant to the terms of the Letter Agreement entered into with Huntington in July 2010. On March
28, 2011, as a temporary measure, Franklin Holding and FCMC entered into an agreement with the Bank
that provides for a limited waiver of the financial covenant of Franklin Holding and FCMC under the
Licensing Credit Agreement, for the period through and including September 30, 2011, related to the
failure to maintain the minimum level of net income before taxes.
As of March 31, 2011, FCMC had four significant servicing contracts with third parties to
service 1-4 family mortgage loans and owned real estate; three with related parties (Bosco I, Bosco
II and Bosco III) and one with an unrelated third party. In addition, FCMC had a servicing
contract remaining with Huntington, through the Trust, for the remaining real estate owned
properties not sold in the Loan Sales and the December Loan Sale. FCMC also had one servicing
contract with certain Company entities for the loans collateralizing the Unrestructured Debt. At
March 31, 2011, FCMC serviced and provided recovery collection services on a total population of
approximately 32,000 loans. The loans serviced for Huntington represented less than 1% of the
total number of loans serviced for third parties as of March 31, 2011 (due to the July, September
and December 2010 loan sales by the Banks Trust). The servicing revenues earned from servicing
the Bosco entities represented approximately 47% of the total servicing revenues earned during the
three months ended March 31, 2011, while the servicing revenues earned from servicing the
Huntington portfolio represented approximately 94% of the total servicing revenues earned during
the three months ended March 31, 2010. See Note 12 Related Party Transactions.
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The Company and FCMC entered into a series of transactions (the September 2010 Transaction)
with the Bank and other parties on September 22, 2010. The September 2010 Transaction has enabled
FCMC to operate its servicing, collections and recovery business free of pledges of its stock
(FCHCs
pledge of 70% of the outstanding shares of FCMC as security for the Legacy Credit Agreement
was released by the Bank, in consideration of $4 million paid by FCMC to the Bank) and significant
restrictive covenants under the Legacy Credit Agreement with the Bank, which governs the
substantial debt owed to the Bank by subsidiaries of FCHC (the Legacy Debt), but not FCMC.
For a description of the key terms and conditions of the September 2010 Transaction that
relate to FCMC, see Note 9 Notes Payable and Financing Agreements.
In conjunction with the September 2010 Transaction, FCHC transferred to Thomas J. Axon (Mr.
Axon) an additional 10% of FCMCs outstanding shares of common stock. When combined with FCMC
shares already directly owned by him, Mr. Axon (the Chairman and President of the Company) now
directly owns 20% of FCMC, while the remaining 80% of FCMC is owned by FCHC and indirectly by its
public shareholders (including Mr. Axon as a principal shareholder of FCHC). See Note 12
Related Party Transactions.
Following the loan sale to Bosco III on December 22, 2010, the Banks servicing agreement for
the servicing of all remaining assets by FCMC for the Trust (which as of March 31, 2011 consisted
of 47 REO assets with an unpaid principal balance of approximately $12.0 million), which expires
effective May 31, 2011.
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A summary of FCMCs stand-alone financial results for the three months ended March 31, 2011
and 2010, and financial condition at March 31, 2011 and December 31, 2010 are as follows:
Three Months Ended | Three Months Ended | |||||||
STATEMENT OF INCOME | March 31, 2011 | March 31, 2010 | ||||||
REVENUES: |
||||||||
Servicing fees and other income |
$ | 3,712,323 | $ | 5,675,865 | ||||
Interest income |
5,121 | 9,246 | ||||||
Total revenues |
3,717,444 | 5,685,111 | ||||||
OPERATING EXPENSES: |
||||||||
Interest expense |
| 21,858 | ||||||
Collection, general and administrative |
3,560,095 | 4,431,033 | ||||||
Depreciation |
83,049 | 144,356 | ||||||
Total operating expenses |
3,643,144 | 4,597,247 | ||||||
INCOME BEFORE PROVISION FOR INCOME TAXES |
$ | 74,300 | $ | 1,087,864 | ||||
Provision for income taxes |
30,000 | 434,550 | ||||||
NET INCOME |
$ | 44,300 | $ | 653,314 | ||||
BALANCE SHEET | At March 31, 2011 | At December 31, 2010 | ||||||
ASSETS: |
||||||||
Cash and cash equivalents |
$ | 12,506,601 | $ | 12,071,212 | ||||
Restricted cash |
15,389,709 | 7,304,521 | ||||||
Receivables, fixed and other assets |
4,888,526 | 5,413,821 | ||||||
Total assets |
$ | 32,784,836 | $ | 24,789,554 | ||||
LIABILITIES: |
||||||||
Servicing liabilities |
$ | 15,389,709 | $ | 7,304,521 | ||||
Other liabilities |
1,477,665 | 1,611,871 | ||||||
Total liabilities |
$ | 16,867,374 | $ | 8,916,392 | ||||
STOCKHOLDERS EQUITY |
$ | 15,917,462 | $ | 15,873,162 | ||||
Total liabilities and stockholders equity |
$ | 32,784,836 | $ | 24,789,554 | ||||
SERVICING PORTFOLIO: |
||||||||
Number of loans serviced |
32,000 | 32,400 | ||||||
Unpaid principal balance serviced |
$ | 1.60 billion | $ | 1.60 billion |
Included in Cash and cash equivalents was $7.5 million at March 31, 2011 and December 31,
2010 pledged to the Bank under the Licensing Credit Agreement (secured by a first-priority lien)
and Legacy Credit Agreement (secured by a second-priority lien). See Note 2 Cash and Cash
Equivalents.
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Results of Operations Franklin Credit Holding Corporation
On March 31, 2009, Franklin Holding, and certain of its subsidiaries, including FCMC, entered
into the Restructuring Agreements with the Bank, pursuant to which the Companys loans, pledges and
guarantees with the Bank and its participating banks were substantially restructured, and
approximately 83% of the Portfolio was transferred to the Banks REIT.
Effective March 31, 2009, Franklin Holding, and its consolidated subsidiaries, including FCMC,
entered into a series of agreements (collectively, the Restructuring Agreements) with the Bank
pursuant to which (i) the Companys loans, pledges and guarantees under the Legacy Credit Agreement
with the Bank and its participating banks were substantially restructured, (ii) substantially all
of the Companys portfolio of subprime mortgage loans and owned real estate was transferred to the
Banks Trust (with the loans and owned real estate transferred to the Banks Trust collectively
referred to herein as the Portfolio) in exchange for trust certificates, with certain trust
certificates, representing an undivided interest in approximately 83% of the Portfolio, transferred
in turn by the Company to a real estate investment trust wholly-owned by the Bank (the Banks Trust
or the Trust), (iii) FCMC and Franklin Holding entered into a new credit facility with the Bank
(the Licensing Credit Agreement), and (iv) FCMC entered into a servicing agreement (the Legacy
Servicing Agreement) with the Banks Trust (the preceding collectively referred to herein as the
Restructuring). Although the transfer of the trust certificates in the March 2009 Restructuring,
representing approximately 83% of the Portfolio, to the REIT was structured in substance as a sale
of financial assets, the transfer, for accounting purposes, was treated as a secured financing in
accordance with ASC Topic 860. Therefore, the mortgage loans and real estate remained on the
Companys balance sheet classified as Mortgage loans and real estate held for sale securing a
Nonrecourse liability in an equal amount.
Because the loans transferred by the Company to the Trust had continued to be included on the
Companys consolidated balance sheet, the revenues from such loans were reflected in the Companys
consolidated results, in accordance with GAAP, notwithstanding the fact that trust certificates
representing an undivided interest in approximately 83% of the Portfolio were transferred to
Huntington in the Restructuring. Accordingly, except for and effective with the sale of Huntington
loans sold in the third and fourth quarters of 2010, the fees received from Huntington subsequent
to March 31, 2009 for servicing their loans and REO properties, and the third-party costs incurred
by us in the servicing and collection of their loans and REO properties and reimbursed by
Huntington, for purposes of these Consolidated Financial Statements were not recognized as
servicing fees and reimbursement of third-party servicing costs, but instead as additional interest
and other income earned with additional offsetting expenses in an equal amount as if the Company
continued to own the loans and REO properties.
As a result of the third and fourth quarter 2010 loan sales by the Trust, the transfer of
approximately 83% of the trust certificates to the Banks REIT in March 2009, which was accounted
for as a secured financing in accordance with GAAP, with an equal percentage of mortgage loans and
owned real estate sold to the Banks Trust remaining on the Companys balance sheet classified as
Mortgage loans and real estate held for sale and securing a Nonrecourse liability in an equal
amount, was as of the effective dates of the Loan Sales and December Loan Sale substantially
accounted for as a sale of loans in accordance with GAAP, to the extent of the loans sold by the
Trust. Similarly, the Loan Sales and December Loan Sale by the Banks Trust also resulted in
treating substantially all of the loans represented by the remaining 17% in trust certificates held
by the Company as sold in accordance with GAAP effective with the dates of the Loan Sales and
December Loan Sale. However, the Trust did not sell the real estate owned inventory, which has
remained on the Companys balance sheet classified as Mortgage loans and real estate held for sale
and securing a Nonrecourse liability in an equal amount.
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The treatment as a financing on the Companys balance sheet did not affect the cash flows of
the March 2009 transfer, and has not affected the Companys cash flows or its reported net income.
The treatment of the Loan Sales and the December Loan Sale to the extent of the 83% represented by
the trust certificates held by the Banks REIT in the quarters ended September 30 and December 31,
2010 as a sale of financial assets also did not affect the cash flows of the Company or its
reported net income.
As a result of third and fourth quarter 2010 loan sales by the Trust and the Bank qualifying
as sales in accordance with GAAP, the Companys balance sheet has declined significantly (no longer
grossed up pursuant to the provisions of applicable Accounting Standards Codification Topic 860) as
the carrying values of the Mortgage loans and real estate held for sale and the offsetting
Nonrecourse liability were significantly reduced. As a result, at March 31, 2011, the carrying
value of the Mortgage loans and real estate held for sale, and the offsetting Nonrecourse
liability, was $5.0 million, compared with a carrying value of $7.5 million at December 31, 2010
and $345.4 million at December 31, 2009. In addition, as a result of the third and fourth quarter
2010 loan sales by the Trust and the Bank, the carrying value of the Companys Investment in trust
certificates at fair value amounted to $1.0 million at March 31, 2011, compared with $1.5 million
at December 31, 2010 and $69.4 million at December 31, 2009.
Three Months Ended March 31, 2011 Compared to Three Months Ended March 31, 2010
Overview. The Company had a net income attributed to common stockholders of $14.3 million for
the first quarter of 2011, compared with a net loss of $6.7 million for the first quarter of 2010.
Revenues increased by $15.5 million to $35.0 million for the three months ended March 31, 2011,
from $19.5 million for the three months ended March 31, 2010. The Company had income per common
share for the three months ended March 31, 2011 of $1.79 both on a diluted and basic basis,
compared to a loss per share of $0.84 on both a diluted and basic basis for the three months ended
March 31, 2010. The net income in the first quarter of 2011 resulted principally from the Banks
REIT declaring and paying dividends on March 31, 2011 for the third and fourth quarters of 2010 and
for the full year of 2011 in the aggregate amount of $63.8 million, of which $31.9 million was
recognized in the quarter ended March 31, 2011 (representing the dividends paid for the third and
fourth quarters of 2010 and the first quarter of 2011).
Our total debt outstanding decreased to $1.295 billion at March 31, 2011 from $1.341 billion
at December 31, 2010. Interest expense (inclusive of amortization of deferred financing costs and
success fees) decreased by $2.5 million, or 13%, in the quarter ended March 31, 2011 compared with
March 31, 2010. As a result principally of the effect of an interest rate of 15% on an increasing
balance of tranche C debt, which at March 31, 2011 totaled $169.1 million, interest expense on the
Companys borrowed funds (the Legacy Debt), excluding the cost of the interest swaps, increased by
$645,000 during the first quarter of 2011 compared with the same period in 2010. The average costs
of borrowed funds, excluding the costs of interest rate swaps, during the three months ended March
31, 2011 increased to 4.29% during the three months ended March 31, 2011 from 3.94% during the
three months ended March 31, 2010. Our average cost of funds, including the cost of interest-rate
swaps, during the three months ended March 31, 2011 decreased to 4.91% from 5.56% during the three
months ended March 31, 2010. Collection, general and administrative expenses decreased by $2.9
million, or 42%, to $4.0 million during the three months ended March 31, 2011, from $6.9 million
for the same period in 2010 due principally to reduced third-party servicing costs incurred for
servicing the Banks portfolio and lower salaries and benefits costs due to reductions in the
Companys workforce. Stockholders deficit decreased to $836.7 million at March 31, 2011, or a
deficit book value per common share at March 31, 2011 of approximately $104.20, from stockholders
deficit of $852.9 million at December 31, 2010.
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Revenues. Revenues increased by $15.5 million to $35.0 million during the first quarter of
2011, from 19.5 million during the same period in 2010. Revenues include interest income, dividend
income, fair valuation adjustments, and servicing fees and other income.
Interest income decreased by $11.3 million, or 98%, to $217,000 during the three months ended
March 31, 2011, as compared to $11.5 million for the same quarter in 2010. The decrease in
interest income reflected the impact of the Loan Sales by the Banks Trust and the Bank in the
third quarter of 2010 and the resultant elimination of mortgage loans underlying the Companys
Investment in trust certificates at fair value and Mortgage loans and real estate held for sale.
Dividend income from the Companys Investment in REIT securities increased by $21.3 million,
or 200%, to $31.9 million as compared to $10.6 million in during the three months of March 31,
2010. The increase was the result of the payment of dividends by the Banks REIT on March 31,
2011, in the aggregate amount of $63.8 million, for the two quarters ended December 31, 2010 and
for the full year of 2011, of which $31.9 million was recognized in the quarter ended March 31,
2011 (representing the dividends paid for the third and fourth quarters of 2010 and the first
quarter of 2011).
Fair valuation adjustments amounted to a net loss of $719,000 for the quarter ended March 31,
2011 compared with a net loss of $3.8 million for the three months ended March 31, 2010. Included
in the fair valuation adjustments in the three months ended March 31, 2011 were a net decrease of
$928,000 in the valuation of the nonrecourse liability and a $308,000 negative adjustment of an
outstanding receivable from the sale of loans by the Trust and the Bank in the third quarter of
2010. The $308,000 negative adjustment of an outstanding receivable represented a write off of the
outstanding receivable from the sale of loans by the Trust and the Bank in the third quarter of
2010 due to the uncertainty that currently exists for future collectability from the Bank.
Included in the fair valuation adjustments in the three months ended March 31, 2010 were a net
decrease of $2.0 million in the valuation of the nonrecourse liability, a valuation gain on
mortgage loans and REO of $2.0 million, a gain on OREO sold in the amount of $1.8 million, a
valuation gain on trust certificates of $2.0 million and various other net negative adjustments of
approximately $7.6 million, which included expenses recognized on the nonrecourse liability equal
to the interest income and fees received of approximately $5.2 million and fair value adjustments
to the nonrecourse liability for offsets to OREO gains of approximately a negative $2.4 million.
Servicing fees and other income (principally third-party subservicing fees, other third-party
mortgage-related services fees, late charges, prepayment penalties and other miscellaneous
servicing revenues) increased by $2.4 million, or 205%, to $3.6 million during the three months
ended March 31, 2011 from $1.2 million during the corresponding period last year. This increase
was principally the result of the recognition of servicing fees earned under two new servicing
agreements with third parties entered into by the Company in the third quarter of 2010 as a result
of the Loan Sales, compared with the non recognition of servicing and collection fees earned from
servicing the loans for the Banks Trust prior to the effective dates of the July Loan Sale and the
September Loan Sale (due to the required accounting treatment of the Companys investment in
Mortgage loans held for sale as a secured financing in accordance with GAAP, ASC Topic 860, prior
to the effective dates of the Loan Sales), which contributed $2.5 million in servicing fees in the
quarter ended March 31, 2011. In addition, the Company earned increased servicing fees of $161,000
from various other third-party servicing and collection agreements, increased due diligence fees of
$125,000, and received an insurance premium rebate in the amount of $308,000 in the three months
ended March 31, 2011. These revenue increases were somewhat offset by a reduction of $89,000 in
the servicing fees recognized on the portfolio of loans serviced for Bosco I (the result of
amendments to the servicing contract with Bosco I effective in February and October 2009); reduced
late charges collected from delinquent borrowers in the amount of $490,000 and decreased recoveries
of outside foreclosure attorney costs collected from delinquent borrowers in the
amount of $179,000 as these revenues in the first quarter of 2010 were accounted for as if the
Companys owned the Mortgage loans held for sale and serviced its owned mortgage loans underlying
the Mortgage loans held for sale (due to the required accounting treatment of the Companys
investment in Mortgage loans held for sale a secured financing in accordance with GAAP, ASC Topic
860, prior to the effective dates of the Loan Sales); and various other net revenue reductions of
$37,000.
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Operating Expenses. Operating expenses decreased by $5.5 million, or 21%, to $20.5 million
during the first quarter of 2011 from $26.0 million during the same period in 2010. Total
operating expenses include interest expense, collection, general and administrative expenses,
amortization of deferred financing costs and depreciation expense.
Interest expense decreased by $2.8 million, or 15%, to $16.2 million during the three months
ended March 31, 2011 from $19.0 million during the three months ended March 31, 2010. This
decrease was the result of lower costs of interest rate swaps during the three months ended March
31, 2011 as compared to the three months ended March 31, 2010. Interest expense on borrowed funds,
excluding the cost of the interest swaps, increased by $645,000 during the three months ended March
31, 2011 due to an increase in interest expense of the Companys tranche C debt, the outstanding
amount of which increased from $145.4 million at March 31, 2010 to $169.1 million at March 31,
2011(the result of the addition of accrued and unpaid interest at a fixed interest rate of 15%).
The average cost of borrowed funds, including interest rate swaps, during the three months ended
March 31, 2011 was 4.91%, compared to 5.56% during the three months ended March 31, 2010,
principally reflecting the reduced cost of the Companys interest rate swaps. The average costs of
borrowed funds, excluding the costs of interest rate swaps, during the three months ended March 31,
2011 was 4.29% compared to 3.94% during the three months ended March 31, 2010, principally
reflecting the interest cost of the Companys increasing balance of Tranche C debt at 15%.
The Company had in place fixed-rate interest rate swaps in order to limit the negative effect
of a rise in short-term interest rates by effectively stabilizing the future interest payments on a
portion of its variable-rate debt. Due principally to the amortization of the Accumulated other
comprehensive loss (AOCL) balance, the interest rate swaps actually increased the Companys
interest cost in the quarter ended March 31, 2011 by $2.0 million. In the quarter ended March 31,
2010, interest rate swaps actually increased the Companys interest cost by $5.5 million due to the
amortization of the AOCL balance of $3.2 million and a decline in the fair value if the swaps (due
to a decline in interest rates) of $2.3 million. However, compared with the same quarter of 2010,
the cost of the interest-rate swaps decreased by $3.5 million due to the termination of the swaps
effective on January 5, 2011. At March 31, 2011, the weighted average interest rate of our
borrowed funds, exclusive of the effect of the interest-rate swaps, was 4.31%, compared with 3.98%
at March 31, 2010.
Collection, general and administrative expenses decreased by $2.9 million, or 42%, to $4.0
million during the three months ended March 31, 2011, from $6.9 million during the corresponding
period in 2010. For the purpose of comparing collection, general and administrative expenses
incurred by the Company on a recurring basis, third-party servicing expenses, which since the March
2009 Restructuring through principally the effective dates of the Loan Sale in the third quarter
2010 have been reimbursed by the Bank, in the aggregate amount of $12,000 and $1.8 million,
respectively, during the quarter ended March 31, 2011 and 2010, are excluded from the
quarter-to-quarter change analysis. These third-party servicing expenses have been, however,
included in the consolidated statements of operations due to the treatment for accounting
purposes of the transfer of the trust certificates, representing ownership in approximately 83% of
the Portfolio transferred to the REIT, as a financing in accordance with GAAP and, as a result the
mortgage loans and real estate remained on the Companys balance sheet. Therefore, the third-party
costs incurred by us in the servicing and collection of the Banks loans and reimbursed by the
Bank, for purposes of these consolidated financial
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statements, have not been treated as reimbursed third-party servicing costs but as additional collection, general and
administrative expenses as if the Company owned and self serviced the mortgage loans,
with an offsetting amount included in fair valuation adjustments, which had no impact on the
Companys consolidated net loss. The third-party servicing costs were substantially eliminated in
the three months ended March 31, 2011 from the same period ended March 31, 2010 as a result of the
third and fourth quarter 2010 loan sales by the Trust, the transfer of approximately 83% of the
trust certificates to the Banks REIT in March 2009 that was accounted for as a secured financing
in accordance with GAAP with an equal percentage of mortgage loans and owned real estate sold to
the Banks Trust remaining on the Companys balance sheet classified as Mortgage loans and real
estate held for sale and securing a Nonrecourse liability in an equal amount, was as of the
effective dates of the Loan Sales and December Loan Sale substantially accounted for as a sale of
loans in accordance with GAAP, to the extent of the loans sold by the Trust. Similarly, the Loan
Sales and December Loan Sale by the Banks Trust also resulted in treating substantially all of the
loans represented by the remaining 17% in trust certificates held by the Company as sold in
accordance with GAAP effective with the dates of the Loan Sales and December Loan Sale.
Exclusive of these items described above, collection, general and administrative expenses
decreased by $1.1 million, or 22%, in the three months ended March 31, 2011, from $5.1 million
during the corresponding period in 2010. Salaries and employee benefits expenses decreased by
$960,000, or 32%, to $2.0 million during the three months ended March 31, 2011, from $3.0 million
during the three months ended March 31, 2010, due to reductions in staff throughout the Company.
The number of servicing employees decreased to 81 at March 31, 2011, from 112 employees at March
31, 2010. The Company ended the three months ended March 31, 2011 with 112 employees, compared
with 156 employees at March 31, 2010. The Company also experienced a decrease in corporate legal
expenditures of $377,000, or 89%, to $45,000 from $421,000 as compared to the same three-month
period last year, with the decrease principally related to additional legal costs for a
nonrecurring matter that had been incurred in the prior year quarter. Professional fees increased
by $97,000, or 25%, to $477,000 from $380,000, principally due to the timing of outside tax and
audit fees recognized, compared to the same period last year. Contract underwriter costs increased
by $46,000 during the first quarter of 2011, to $73,000 from $26,000 in the prior year first
quarter, due to increased due diligence services provided to third parties. Various other general
and administrative expenses increased by $63,000 during the three months ended March 31, 2011 as a
result in part to increased occupancy costs due to a rent escalation effective January 1, 2011 in
our office lease and one-time costs of an office lease termination.
Amortization of deferred financing costs increased by $283,000, or 818%, to $318,000 during
the first quarter of 2011 from $35,000 during the first quarter of 2010. This increase was the
result of the $63.8 million of dividends received on the REIT Securities on March 31, 2011 (for the
two quarters ended December 31, 2010 and for the full year of 2011), which was applied principally
to pay down the Companys term debt.
Depreciation expenses decreased by $62,000, or 43%, to $83,000 in the first quarter of 2011.
This decrease during the three months ended March 31, 2011 was principally due to fully depreciated
assets during the past twelve months and a reduction in assets purchased compared with the same
quarterly period in 2010.
Our pre-tax loss in the quarter ended March 31, 2010 decreased by $21.0 million to net income
of $14.3 million during the three months ended March 31, 2011, for the reasons set forth above.
The Company recorded state income tax expense of $7,000 on income from one of its subsidiaries
and a $76,000 FIN 48 state income tax provision during the three months ended March 31, 2011,
compared with a provision of $98,000 for state income taxes during the three months ended March 31,
2010.
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Liquidity and Capital Resources
General
As of March 31, 2011, we had one limited source of external funding, a $1 million credit line,
to meet our liquidity requirements, in addition to the cash flow provided from servicing loans and
performing due diligence and other services for third parties, and the dividends from preferred
stock in the Banks REIT (the payments of which were suspended during the second and third quarters
of 2010). At March 31, 2011, the carrying value of the Notes receivable held for sale was
approximately $2.8 million. As a result principally of the Banks REIT declaring and paying
dividends for the third and fourth quarters of 2010 and for the full year of 2011 on March 31, 2011
in the aggregate amount of $63.8 million, the Company paid down tranche A debt during the quarter
ended March 31, 2011 by the net amount of $55.4 million; and, the outstanding principal balance of
the tranche A debt at March 31, 2011 was $653.6 million. None of the dividends received were
applied by the Bank to pay interest due on the Legacy Debt (including on tranche A debt), which was
added to the debt balance outstanding. As a result o the REIT paying the full year 2011 dividend
on March 31, 2011, it is likely that for the remainder of 2011 cash flow from other sources will
not be sufficient to cover the interest cost on the tranche A debt and, as a result, the balance of
tranche A debt is likely to increase due to the accrued and unpaid interest.
We are required to submit all payments we receive from our preferred stock investments, the
remaining cash flow from the Investment in trust certificates at fair value (which as of March 31,
2011, was supported by a relatively small pool of real estate owned properties held by the Trust)
and the Notes receivable held for sale, net, to a lockbox, which is controlled by the Bank.
Substantially all amounts submitted to the lockbox are used to pay interest and principal
outstanding under the Legacy Credit Agreement with the Bank.
As a result of the Company entering into the implementing agreements contemplated by the Term
Sheet to voluntarily surrender and transfer to the Bank the REIT securities, in return for a
reduction in the indebtedness to the Bank by not less than $478 million, the Companys principal
source of cash flow to meet the obligations with respect its approximately $800 million outstanding
indebtedness remaining after the surrender of the REIT securities to the Bank will be eliminated,
resulting in accrued and unpaid interest being added to the outstanding principal balance of the
Legacy Debt that the Company will be unable to pay at maturity on March 31, 2012 (or upon
earlier termination under the provisions of the Legacy Credit Agreement). See Borrowings and
Note 13 Subsequent Events.
Short-term Investments. The Companys investment policy is structured to provide an adequate
level of liquidity in order to meet normal working capital needs, while taking minimal credit risk.
At March 31, 2011, all of the Companys unrestricted cash (including FCMCs $7.5 million of
pledged cash) was held in operating accounts or invested in money market accounts at the Bank.
Cost of Funds. As of March 31, 2011, we had total borrowings of $1.295 billion, of which
$1.256 billion was subject to the Legacy Credit Agreement and $38.7 million remained under the
original credit facility with the Bank (the Unrestructured Debt). Substantially all of the debt
under these facilities was incurred in connection with the purchase and origination of loans prior
to November 2007, and as of March 31, 2011 is secured by the REIT Securities, the trust
certificates, pledged cash in the amount of $7.5 million and certain other assets, including 100%
of the equity interests in all direct and indirect subsidiaries of Franklin Holding, but not FCMC.
The assets of our servicing subsidiary, FCMC (other than $7.5 million of cash collateral held as
security under the Licensing Credit Agreement on which the Bank has a second-priority lien under
the Legacy Credit Agreement), are not pledged as collateral for the Legacy Debt.
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At March 31, 2011, the interest rates on our term debt (Notes payable) were as follows:
Under the terms of the | ||||||||
Forbearance Agreements | ||||||||
and Credit Agreement | ||||||||
In accordance with the | excluded | |||||||
terms of the Restructuring | from the Restructuring | |||||||
Agreements | Agreements | |||||||
FHLB 30-day LIBOR advance rate plus 2.60% |
$ | | $ | 15,675,136 | ||||
FHLB 30-day LIBOR advance rate plus 2.75% |
| 23,035,122 | ||||||
LIBOR plus 2.25% (Tranche A) |
653,646,101 | | ||||||
LIBOR plus 2.75% (Tranche B) |
433,335,300 | | ||||||
15.00% (Tranche C) |
169,113,076 | | ||||||
$ | 1,256,094,477 | $ | 38,710,258 | |||||
At March 31, 2010, the weighted average interest rate on term debt (the Legacy Debt) was
4.31%.
Terms of the Restructured Indebtedness under the Legacy Credit Agreement. The following table
summarizes the principal economic terms of the Companys indebtedness under the Legacy Credit
Agreement.
Outstanding | Outstanding | |||||||||||||||
Principal Amount | Principal Amount | |||||||||||||||
at March 31, 2009 | at March 31, 2011 | Applicable Interest | Required Monthly | |||||||||||||
Franklin | Franklin | Margin Over LIBOR | Principal | |||||||||||||
Asset/Tribeca | Asset/Tribeca | (basis points) | Amortization | |||||||||||||
Tranche A |
$ | 838,000,000 | $ | 654,000,000 | 225 | None | ||||||||||
Tranche B |
$ | 407,000,000 | $ | 433,000,000 | 275 | None | ||||||||||
Tranche C |
$ | 125,000,000 | $ | 169,000,000 | N/A | (1) | None | |||||||||
Unrestructured Debt |
$ | 41,000,000 | $ | 39,000,000 | (2) | None |
(1) | The applicable interest rate is fixed at 15% per annum. Interest will be paid in kind during the term of the Restructuring. | |
(2) | Interest margin over FHLB 30-day LIBOR advance rate plus 2.60%-2.75%. |
The interest rate under the terms of the Restructuring Agreements for tranche A and
tranche B indebtedness that is the basis, or index, for the Companys interest cost is one-month
LIBOR plus applicable margins. In accordance with the terms of the Restructuring Agreements,
interest due and unpaid on tranche A (upon election), tranche B and tranche C debt is accrued and
added to the debt balance. During the quarter ended March 31, 2011, $13.8 million was added to the
outstanding balance of Legacy Debt due to interest accrued and unpaid, of which $4.4 million was
added to tranche A debt.
Cash Flow from Operating, Investing and Financing Activities
Liquidity represents our ability to obtain adequate funding to meet our financial obligations.
As of March 31, 2011, our liquidity position is affected almost solely by the dividends received
from the preferred stock investment in the Huntington subsidiary REIT.
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At March 31, 2011, we had cash and cash equivalents of $13.1 million compared with $12.6
million at December 31, 2010. Restricted cash of $2.5 million at March 31, 2011 and $2.4 million
at December 31, 2010 was restricted under our credit agreements and lockbox facility with the Bank.
Changes in several of the cash flows noted in the explanations that follow were the result of
the March 2009 Restructuring and the resultant changed asset classifications form notes receivable
and originated loans held for investment to investment in trust certificates at fair value and
mortgage loans and real estate held for sale.
Net cash provided by operating activities as reported was $60.4 million during the three
months ended March 31, 2011, compared with net cash provided of $9.3 million during the three
months ended March 31, 2010. Although the transfer of the trust certificates, representing
approximately 83% of the Portfolio, to the Banks REIT was structured in substance as a sale of
financial assets, the transfer, for accounting purposes, has been treated as a secured financing in
accordance with ASC Topic 860. Therefore, the mortgage loans and real estate have remained on the
Companys balance sheet classified as Mortgage loans and real estate held for sale securing a
Nonrecourse liability in an equal amount. The treatment as a financing on the Companys balance
sheet, however, did not affect the cash flows of the transfer and has not affected the Companys
cash flows or its reported net income. Excluding reported activities related to Mortgage loans and
real estate held for sale and the offsetting Nonrecourse liability, the increase in cash provided
by operating activities was primarily due to Banks REIT declaring and paying dividends for the
third and fourth quarters of 2010 and for the full year of 2011 on March 31, 2011 in the aggregate
amount of $63.8 million and the increase in cash flow provided from the non-payment of interest on
the Legacy Debt (Paid in kind interest) of $5.4 million.
Net cash provided by investing activities was $123,000 in the three months ended March 31,
2011, compared to $223,000 of cash provided in the three months ended March 31, 2010. The decrease
in cash provided by investing activities during the three months ended March 31, 2011 was due
primarily to reductions in principal collections on Notes receivable held for sale and a slight
increase in restricted cash during the current quarter.
Net cash used in financing activities increased to approximately $60.1 million during the
three months ended March 31, 2011, compared to $6.5 million used during the three months ended
March 31, 2010. The increase in cash used in financing activities during the three months ended
March 31, 2011 was principally due the increase in the pay down of debt (Notes payable) from
dividends paid by the Banks REIT for the third and fourth quarters of 2010 and for the full year
of 2011 on March 31, 2011 in the aggregate amount of $63.8 million.
Borrowings
Substantially all of the Companys debt was incurred in connection with the purchase and
origination of residential 1-4 family mortgage loans prior to December 2007. These borrowings are
shown in the Companys Consolidated Financial Statements as Notes payable (also referred to as term
debt or Legacy Debt herein). The Company ceased to acquire and originate loans in November 2007,
and under the terms of the Restructuring Agreements, the Company cannot originate or acquire
mortgage loans or other assets without the prior consent of the Bank. In 2008, the Company changed
its business model to become a provider to third parties of loan servicing and recovery collection
services, due diligence and certain other services to the residential mortgage loan industry, and
has operated these activities through FCMC.
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At March 31, 2011, the Company had total borrowings, Notes payable and Financing agreements,
of $1.295 billion under the Restructuring Agreements, of which $1.256 billion was subject to the
Companys debt restructured in the March 2009 Restructuring (the Legacy Debt) and $38.7
million remained outstanding under a credit facility excluded from the Restructuring Agreements
(the Unrestructured Debt). During the quarter ended March 31, 2011, $13.8 million was added to the
outstanding balance of Legacy Debt due to interest accrued and unpaid, of which $4.4 million was
added to the tranche A debt.
At March 31, 2011, FCMC had no debt outstanding under the revolving line under its Licensing
Credit Agreement with the Bank, which is shown in the Companys financial statements as Financing
agreement.
For a description the Companys borrowing agreements, see Note 9 Notes Payable and
Financing Agreements.
Interest Rate Swaps
As of March 31, 2011, the Company had no outstanding interest-rate swap agreements in place to
reduce the Companys exposure to future increases in interest costs on a portion of its borrowings
due to increases in one-month LIBOR. All of our past interest-rate swap agreements were executed
with the Bank. See Note 7 Derivatives.
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ITEM 3. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
We are exposed to various types of market risk in the normal course of business, including the
impact of interest rate changes, real estate, delinquency and default risks of the loans that we
service for third parties, the loans in our portfolio (although transferred to the Bank, for
accounting purposes the portfolio is treated as a financing under GAAP and remains on the balance
sheet), and changes in corporate tax rates. A material change in these rates or risks could
adversely affect our operating results and cash flows.
Impact of Inflation
The Company measures its financial condition and operating results in historical dollars
without considering changes in the purchasing power of money over time due to inflation, although
the impact of inflation is reflected in increases in the costs of our operations. Substantially
all of the Companys assets and liabilities are monetary in nature, and therefore, interest rates
have a greater impact on our performance than the general effects of inflation. Because a
substantial portion of the Companys borrowings are sensitive to changes in short-term interest
rates, any increase in inflation, which often gives rise to increases in interest rates, could
materially impact the Companys financial performance.
Interest Rate Risk
Interest rate fluctuations can adversely affect our operating results and present a variety of
risks, including the risk of a mismatch between the repricing of interest-earning assets and
borrowings, and variances in the yield curve.
Interest rates are highly sensitive to many factors, including governmental monetary policies
and domestic and international economic and political conditions. Conditions such as inflation,
recession, unemployment, money supply and other factors beyond our control may also affect interest
rates. Fluctuations in market interest rates are neither predictable nor controllable and may have
a material adverse effect on our business, financial condition and results of operations.
The Companys operating results depend in large part on differences between the interest and
dividends earned on its assets and the interest paid on its borrowings. Most of the Companys
assets, consisted primarily of REIT Securities (principally preferred stock) and Trust Certificates
(collateralized by mortgage loans and real estate owned properties) generated fixed returns and had
remaining contractual maturities in excess of five years. Our borrowings are based on one-month
LIBOR. As of March 31, 2011, due to the Loan Sales, the interest and dividend income from our
remaining assets, principally the REIT securities, is based on a fixed rate, while the interest
cost of our borrowings is principally based on a variable rate, creating a mismatch between
interest earned on our interest-yielding assets and the interest paid on our borrowings. In
addition, the Companys interest-bearing liabilities as of March 31, 2011 greatly exceed the
remaining interest-earning assets. Consequently, changes in interest rates, particularly
short-term interest rates, will significantly impact our net interest and dividend income and,
therefore, net income. We have used from time to time interest-rate derivatives, essentially
interest-rate swaps, to hedge our interest rate exposure by converting a portion of our highly
interest-sensitive borrowings from variable-rate payments to fixed-rate payments. However,
effective as of January 5, 2011, the Bank terminated the remaining $390 million balance of
interest-rate swaps intended to hedge a portion of the interest-rate risk. Therefore, as of March
31, 2011, a 1% instantaneous and sustained increase in one-month LIBOR would have the effect of
increasing quarterly interest expense by approximately $2.8 million, pre-tax, which would
negatively impact our quarterly after-tax net income or loss. See Note 9 Notes Payable and
Financing Agreements, and Note 13 Subsequent Events.
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Real Estate Risk
Residential property values are subject to volatility and may be affected adversely by a
number of factors, including, but not limited to, national, regional and local economic conditions,
which may be adversely affected by industry slowdowns and other factors; local real estate
conditions (such as the supply of housing or the rapid increase in home values). Decreases in
property values reduce the value of the collateral and the potential proceeds available to
borrowers to repay their mortgage loans, which could cause the value of our investments not carried
at cost to decrease.
ITEM 4T. | CONTROLS AND PROCEDURES |
Disclosure Controls and Procedures
The Companys management, with the participation of the Companys Principal Executive Officer
and Chief Financial Officer, has evaluated the effectiveness of the Companys disclosure controls
and procedures (such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act as of
the end of the period covered by this Quarterly Report on Form 10-Q. Based upon that evaluation,
the Companys Principal Executive Officer and Chief Financial Officer concluded that the Companys
disclosure controls and procedures were effective as of the end of the period covered by this
report.
Changes in Internal Controls over Financial Reporting
There have been no changes in the Companys internal control over financial reporting during
the quarter ended March 31, 2011 that have materially affected, or are reasonably likely to
materially affect, such internal control over financial reporting.
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PART II
OTHER INFORMATION
OTHER INFORMATION
ITEM 1. | LEGAL PROCEEDINGS |
We are involved in routine litigation matters generally incidental to our business, which
primarily consist of legal actions related to the enforcement of our rights under mortgage loans we
hold, held, service or collect for others, none of which is individually or in the aggregate
material. In addition, because we service and collect on mortgage loans throughout the country,
and prior to November 2007 originated and acquired mortgage loans on a nationwide basis, we must
comply and were required to comply with various state and federal lending, servicing and debt
collection laws, rules and regulations and we are routinely subject to investigation and inquiry by
regulatory agencies, some of which arise from complaints filed by borrowers, none of which is
individually or in the aggregate material.
ITEM 1A. | RISK FACTORS |
Risk factors applicable to the Company, including, but not limited to, those factors discussed
under the captions Impact of Inflation, Interest Rate Risk and Real Estate Risk are contained
in the Companys Annual Report on Form 10-K for the year ended December 31, 2010, filed with the
SEC on March 30, 2011.
There have been no material changes to the risk factors included in our Annual Report on Form
10-K for the fiscal year ended December 31, 2010, other than as set forth below.
Risks Related to Our Business
Our borrowings are sensitive to changes in interest rates.
On January 25, 2011, the Bank declared an early termination of all remaining interest
rate swaps due to a failure by the Company to make payments due under the swap agreements. The
Companys failure to make these payments was occasioned by insufficient funds available under the
credit agreement with the Bank and its participating banks (the Legacy Credit Agreement) as a
direct result of the loss of cash flows attributable to the July, September and December 2010 loan
sales by the Banks Trust and the suspension of dividends by its REIT. Due to the termination by
the Bank of the Companys remaining interest rate swaps in January 2011, all of the our interest
rate sensitive borrowings are unhedged and an increase in interest rates will result in an increase
in our interest expense without an offsetting increase in income.
We will not be able to reduce the Legacy Debt.
We have limited sources of cash flow available to pay interest on our Legacy Debt, which
principally include the dividends from preferred stock in the Banks REIT. As a result of the
Company entering into the implementing agreements contemplated by the Term Sheet to voluntarily
surrender and transfer to the Bank the REIT securities in return for a reduction in the
indebtedness to the Bank equal to $478 million, the principal source of cash flow to meet our
obligations with respect to the approximately $800 million in outstanding indebtedness to the Bank
remaining after surrender of the REIT securities will be eliminated, resulting in accrued and
unpaid interest being added to the outstanding principal
balance of the Legacy Debt that the Company will be unable to pay at maturity on March 31,
2012 (or upon earlier termination under the provisions of the Legacy Credit Agreement).
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Our operating losses commencing with the quarter ended September 30, 2011 and
in 2012 and beyond will increase due to the surrender and transfer to the Bank of the REIT
securities.
As a result of the Company entering into the implementing agreements contemplated by the
Term Sheet to voluntarily surrender and transfer to the Bank the REIT securities in return for a
reduction in the indebtedness to the Bank equal to $478 million, the Companys operating losses
likely will increase commencing with the quarter ended September 30, 2011 and in the years 2012 and
beyond due to the absence of dividend income on the preferred REIT securities.
Our business is sensitive to, and can be materially affected by, changes in interest rates.
Our business may be adversely affected by changes in interest rates, particularly changes
that are unexpected in timing or size since our interest rate sensitive borrowings are unhedged and
the majority of our borrowings bear interest at variable rates. Moreover, due to the surrender of
the REIT securities, the Companys interest-bearing liabilities will continue to increase and any
increase in interest rates is likely to result in an increase in interest expense without an
offsetting increase in income, which would adversely affect our results.
The risk factors discussed in detail in the Companys Form 10-K to which there have been no
material changes include the following:
Risks Related to Our Business
| The Company may not be able to continue as a going concern. | |
| Our Restructuring Agreements and Forbearance Agreements with the Bank require us to observe certain covenants, and our failure to satisfy such covenants could render us insolvent. | |
| If our lenders fail to renew our available credit under the Licensing Credit Agreement for additional terms, our revolving line of credit and letter of credit facilities will expire on September 30, 2011. | |
| If our lenders fail to renew our loans under the Legacy Credit Agreement for additional terms or provide us with refinancing opportunities, our legacy indebtedness will become due and payable in 2012. | |
| If our lenders fail to extend the Forbearance Agreement covering the Unrestructured Debt, the Unrestructured Debt will become due and payable September 2011. | |
| The clients for whom we service loans may transfer our rights as servicer and we may be unable to add business or take appropriate cost saving measures to replace reduced revenues. | |
| Our ability to fund operating expenses depends on the cash flow received from servicing loans for third parties. | |
| A prolonged economic slowdown or a lengthy or severe recession could harm our servicing operations, particularly if it results in a decline in the real estate market. |
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| We may not be successful in expanding or implementing our planned business of providing servicing and other mortgage related services for other entities on a fee-paying basis. | |
| If we do not obtain and maintain the appropriate state licenses, we will not be allowed to service mortgage loans in affected states, which would adversely affect our operations. | |
| A significant amount of the mortgage loans that we originated and acquired prior to the March 2009 Restructuring and continue to service on behalf of third parties are secured by property in New York, New Jersey, Florida, Texas and California, and our operations could be harmed by economic downturns or other adverse events in these states. | |
| We may not be adequately protected against the risks inherent in servicing subprime residential mortgage loans. | |
| A number of the second-lien mortgage loans that we service are subordinated to ARM or interest-only mortgages that may be subject to monthly payment increases, which may result in delinquencies and a decrease in servicing and collection revenues. | |
| We are subject to losses from the mortgage loans we acquired and originated prior to the Restructuring due to fraudulent and negligent acts on the part of loan applicants, mortgage brokers, sellers of loans we acquired, vendors and our employees. | |
| Legal proceedings and regulatory investigations could be brought or initiated which could adversely affect our financial results. | |
| Given the nature of the industry in which we operate, our businesses is, and in the future may become, involved in various legal proceedings the ultimate resolution of which is inherently unpredictable and could have a material adverse effect on our business, financial position, results of operations or cash flows. | |
| We are exposed to counter-party risk and there can be no assurances that we will manage or mitigate this risk effectively. | |
| The success and growth of our servicing business will depend on our ability to adapt to and implement technological changes, and any failure to do so could result in a material adverse effect on our business. | |
| If we do not manage the changes in our businesses effectively, our financial performance could be harmed. | |
| The inability to attract and retain qualified employees could significantly harm our business. | |
| An interruption in or breach of our information systems may result in lost business and increased expenses. | |
| We are exposed to the risk of environmental liabilities with respect to properties to which we took title. | |
| A loss of our Chairman and President may adversely affect our operations. |
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Risks Related to Our Financial Statements
| We may become subject to liability and incur increased expenditures as a result of our having reassessed our allowance for loan losses and our transfer of substantially all our mortgage portfolio related assets to the Bank. |
| Failures in our internal controls and disclosure controls and procedures could lead to material errors in our financial statements and cause us to fail to meet our reporting obligations. |
Risks Related to the Regulation of Our Industry
| New legislation and regulations directed at curbing predatory lending and abusive servicing practices could restrict our ability to service non-prime residential mortgage loans, which could adversely impact our earnings. |
| The broad scope of our operations exposes us to risks of noncompliance with an increasing and inconsistent body of complex laws and regulations at the federal, state and local levels. |
| We may be subject to fines or other penalties based upon the conduct of our independent brokers. |
| We are subject to reputation risks from negative publicity concerning the subprime mortgage industry. |
| We are subject to significant legal and reputation risks and expenses under federal and state laws concerning privacy, use and security of customer information. |
| If many of the borrowers of the loans we service become subject to the Servicemembers Civil Relief Act of 2003, our cash flows and service fee income may be adversely affected. |
| Legislative action to provide mortgage relief may negatively impact our business. |
Risks Related to Our Securities
| Thomas J. Axon effectively controls our company, substantially reducing the influence of our other stockholders. |
| Our common stock is quoted only on the OTC Bulletin Board, which may adversely impact the price and liquidity of the common stock, and our ability to raise capital. |
| Our organizational documents, Delaware law and our Restructuring Agreements may make it harder for us to be acquired without the consent and cooperation of our board of directors, management and our Bank. |
| Our quarterly operating results may fluctuate and cause our stock price to decline. |
| Compliance with the rules of the market in which our common stock is quoted and proposed and recently enacted changes in securities laws and regulations are likely to increase our costs. |
ITEM 2. | UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS |
None.
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ITEM 3. | DEFAULTS UPON SENIOR SECURITIES |
None.
ITEM 4. | (REMOVED AND RESERVED) |
ITEM 5. | OTHER INFORMATION |
On May 11, 2011, Franklin Holding and certain of its subsidiaries, including FCMC, entered
into a term sheet (the Term Sheet) with the Bank setting forth agreed upon terms to amicably
resolve the Banks allegation that a default had occurred under the Legacy Credit Agreement due to
a failure of certain Company entities to make certain payments under certain interest rate hedge
agreements (interest rate swaps) with the Bank (the Specified Default).
Pursuant to the Term Sheet, the Company agreed to voluntarily surrender and transfer to the
Bank the REIT securities, which have served as collateral under the Legacy Credit Agreement, free
and clear of any liens other than the liens of the Bank, in exchange for the Bank:
| reducing the outstanding balance of the Banks portion of Tranche A debt pursuant to the terms of the Legacy Credit Agreement by an amount equal to $478 million, and releasing, canceling and discharging Franklin Holding and FCMC from any liability in connection with the Specified Default and under any interest rate hedge agreements entered into with the Bank; and, |
| forgiving that portion of the indebtedness owed to the Bank relating to the past terminations of interest rate hedge agreements in the approximate aggregate amount of $12.9 million and obtaining from one of its participants, which has a right of subrogation, forgiveness of approximately $1.8 million. |
In addition, the Bank agreed to seek credit approval to amend and extend the Licensing Credit
Agreement to September 30, 2012, and delete the financial covenant under the Licensing Credit
Agreement that Franklin Holding and FCMC maintain a net income before taxes of not less than
$800,000.
Further, the Bank agreed to use its good faith efforts to seek approval from required lenders
under the Legacy Credit Agreement to:
| eliminate the covenant in the Legacy Credit Agreement with respect to activities of Franklin Credit Loan Servicing LLC (FCLS), which is an inactive limited purpose entity formed as part of the Reorganization with assets of approximately $370,000) and permit FCLS to dissolve and transfer or distribute its assets to Franklin Holding or to merge into Franklin Holding, and to release the equity interests of FCLS from any security agreement or pledge in connection with any merger into Franklin Holding; |
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| release Franklin Holding from any obligation under its limited recourse guaranty dated March 31, 2009, which was entered into in connection with the Legacy Credit Agreement, and remove Franklin Holding from the definition of guarantor under the Legacy Credit Agreement; provided that Franklin Holding shall remain a pledgor, other than with respect to the interests of FCLS, under its amended and restated pledge agreement dated March 31, 2009 and entered into pursuant to the Legacy Credit Agreement (which includes a pledge of 100% of the equity interests in all direct and indirect subsidiaries of Franklin Holding other than FCMC); and, |
| waive the Specified Default. |
The are certain conditions precedent to the closing of a settlement between the parties, which
are customary for transactions of this type and include the Company delivering a comprehensive all
claims release in favor of participating lenders under the Legacy Credit Agreement and the Bank.
Franklin Holding and certain of its subsidiaries, including FCMC, expect to enter into various
agreements implementing the transactions contemplated by the Term Sheet in the next several days.
As result of the Company entering into the implementing agreements contemplated by the Term
Sheet to voluntarily surrender and transfer to the Bank the REIT securities in return for a
reduction in the indebtedness to the Bank equal to $478 million, the Companys principal source of
cash flow to meet its obligations with respect to its remaining approximately $800 million of
outstanding indebtedness to the Bank will be eliminated, resulting in accrued and unpaid interest
being added to the outstanding principal balance of the Legacy Debt that the company will be unable
to pay at maturity on March 31, 2012 (or upon earlier termination under the provisions of
the Legacy Credit Agreement).
The foregoing summary is qualified in its entirety by reference to the complete copy of the
Term Sheet, filed as Exhibit 10.2 to this Form 10-Q.
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ITEM 6. | EXHIBITS |
Exhibit | ||||
Number | ||||
3.1 | First Amended and Restated Certificate of Incorporation.
Incorporated by reference to Exhibit 3.1 to the Registrants
Current Report on Form 8-K, filed with the Securities and Exchange
Commission (the Commission) on December 24, 2008. |
|||
3.2 | Amended and Restated By-laws. Incorporated by reference to
Exhibit 3.2 to the Registrants Current Report on Form 8-K, filed
with the Commission on December 24, 2008. |
|||
10.1 | Limited Waiver dated as of March 28, 2011, by and among The
Huntington National Bank, as Administrative Agent, the Registrant
and Franklin Credit Management Corporation, under the Amended and
Restated Credit Agreement (Licensing) dated as of March 31, 2009,
as amended. Incorporated by reference to Exhibit 10.100 to the
Registrants Annual Report on Form 10-K for the annual period
ended December 31, 2010, filed with the Commission on March 30,
2011. |
|||
10.2* | Settlement Term Sheet, dated May 11, 2011, by and among The
Huntington National Bank, the Registrant, Franklin Credit Asset
Corporation, Franklin Asset, LLC, each other Borrower listed on
the signature pages to the Legacy Credit Agreement or any schedule
thereto, and Franklin Credit Management Corporation. |
|||
31.1* | Rule 13a-14(a) Certification of Chief Executive Officer of the
Registrant in accordance with Section 302 of the Sarbanes-Oxley
Act of 2002. |
|||
31.2* | Rule 13a-14(a) Certification of Chief Financial Officer of the
Registrant in accordance with Section 302 of the Sarbanes-Oxley
Act of 2002. |
|||
32.1* | Section 1350 Certification of Chief Executive Officer of the
Registrant in accordance with Section 906 of the Sarbanes-Oxley
Act of 2002. |
|||
32.2* | Section 1350 Certification of Chief Financial Officer of the
Registrant in accordance with Section 906 of the Sarbanes-Oxley
Act of 2002. |
* | Filed herewith. | |
() | Management contracts and compensation plans and arrangements. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
FRANKLIN CREDIT HOLDING CORPORATION
|
||||
May 12, 2011 |
||||
By: | /s/ THOMAS J. AXON | |||
Thomas J. Axon | ||||
President (Principal Executive Officer) | ||||
May 12, 2011 | ||||
By: | /s/ PAUL D. COLASONO | |||
Paul D. Colasono | ||||
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
||||