Form 10-Q
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
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þ |
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended June 30, 2009
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o |
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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)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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26-3104776
(IRS Employer
Identification No.) |
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101 Hudson Street
Jersey City, New Jersey
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07302 |
(Address of Principal
Executive Offices)
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(Zip code) |
(201) 604-1800
(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)
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company þ |
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(Do not check if a smaller reporting company) |
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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 $0.01 per share, outstanding as of
August 11, 2009: 8,025,295
FRANKLIN CREDIT HOLDING CORPORATION
FORM 10-Q
INDEX
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
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June 30, 2009 |
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December 31, 2008 |
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(Unaudited) |
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ASSETS |
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Cash and cash equivalents |
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$ |
13,276,648 |
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$ |
21,426,777 |
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Restricted cash |
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1,271,695 |
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27,890,706 |
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Investment in REIT securities |
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477,316,409 |
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Investment in trust certificates at fair value |
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82,472,492 |
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Mortgage loans and real estate held for sale |
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410,772,828 |
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Notes Receivable: |
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Principal |
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1,021,648,291 |
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Purchase discount |
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(9,777,475 |
) |
Allowance for loan losses |
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(471,093,159 |
) |
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Net notes receivable |
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540,777,657 |
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Notes receivable held for sale |
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3,954,922 |
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Originated loans held for investment: |
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Principal, net of deferred fees and costs |
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391,704,319 |
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Allowance for loan losses |
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(49,876,092 |
) |
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Originated loans held for investment, net |
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341,828,227 |
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Accrued interest receivable |
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47,606 |
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10,055,241 |
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Other real estate owned |
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60,748,390 |
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Deferred financing costs, net |
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7,369,087 |
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7,824,432 |
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Other receivables |
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9,636,090 |
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7,028,334 |
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Building, furniture and equipment, net |
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1,861,287 |
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2,042,436 |
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Income tax receivable |
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2,047,635 |
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2,126,590 |
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Other assets |
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927,880 |
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634,652 |
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Total assets |
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$ |
1,010,954,579 |
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$ |
1,022,383,442 |
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LIABILITIES AND STOCKHOLDERS (DEFICIT) |
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Liabilities: |
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Notes payable, net of debt discount of $190,911 at June 30, 2009
and $205,976 at December 31, 2008 |
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$ |
1,366,971,035 |
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$ |
1,442,126,964 |
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Financing agreements |
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1,000,000 |
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1,958,011 |
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Nonrecourse liability |
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410,772,828 |
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Accounts payable and accrued expenses |
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8,130,097 |
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15,056,870 |
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Terminated derivative liability |
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8,200,000 |
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Derivative liabilities, at fair value |
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14,771,242 |
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27,753,436 |
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Total liabilities |
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1,809,845,202 |
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1,486,895,281 |
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Commitments and Contingencies |
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Stockholders (Deficit): |
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Preferred stock, $0.01 par value; authorized 3,000,000;
issued and outstanding: none |
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Common stock and additional paid-in capital, $0.01 par value,
22,000,000 authorized shares; issued and outstanding: 8,025,295
at June 30, 2009 and 8,025,295 at December 31, 2008 |
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21,804,659 |
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23,383,120 |
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Noncontrolling interest in subsidiary |
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1,710,490 |
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Accumulated other comprehensive (loss) |
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(20,157,137 |
) |
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(27,753,436 |
) |
Retained (deficit) |
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(802,248,635 |
) |
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(460,141,523 |
) |
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Total stockholders (deficit) |
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(798,890,623 |
) |
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(464,511,839 |
) |
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Total liabilities and stockholders (deficit) |
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$ |
1,010,954,579 |
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$ |
1,022,383,442 |
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See Notes to Consolidated Financial Statements.
3
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
THREE AND SIX MONTHS ENDED JUNE 30, 2009 AND 2008 (UNAUDITED)
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Three Months Ended June 30, |
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Six Months Ended June 30, |
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2009 |
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2008 |
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2009 |
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2008 |
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Revenues: |
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Interest income |
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$ |
16,676,815 |
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$ |
26,605,598 |
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$ |
33,131,140 |
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$ |
58,925,728 |
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Dividend income |
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10,629,299 |
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10,629,299 |
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Purchase discount earned |
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805,409 |
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392,127 |
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1,586,750 |
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Gain on recovery from contractual loan purchase rights |
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30,550,000 |
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30,550,000 |
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(Loss) on mortgage loans and real estate held for sale |
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(282,593,653 |
) |
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(Loss) on valuation of investments in trust certificates
and notes receivable held for sale |
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(62,651,940 |
) |
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Fair valuation adjustments |
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(14,393,966 |
) |
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(14,393,966 |
) |
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Gain on sale of other real estate owned |
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291,891 |
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374,344 |
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382,707 |
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Servicing fees and other income |
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1,717,609 |
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3,175,150 |
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4,227,166 |
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5,197,873 |
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Total revenues/(losses) |
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45,179,757 |
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30,878,048 |
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(280,335,483 |
) |
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66,093,058 |
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Operating Expenses: |
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Interest expense |
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17,117,236 |
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18,902,627 |
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34,800,392 |
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41,784,636 |
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Collection, general and administrative |
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6,905,713 |
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12,305,127 |
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25,598,708 |
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21,928,296 |
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Provision for loan losses |
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280,491,641 |
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169,479 |
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289,147,466 |
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Amortization of deferred financing costs |
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288,577 |
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318,126 |
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455,345 |
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573,965 |
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Depreciation |
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157,892 |
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|
297,676 |
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314,540 |
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614,302 |
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Total expenses |
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24,469,418 |
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312,315,197 |
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61,338,464 |
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354,048,665 |
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Income/(loss) before provision for income taxes |
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20,710,339 |
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(281,437,149 |
) |
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(341,673,947 |
) |
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(287,955,607 |
) |
Income tax |
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433,165 |
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433,165 |
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Net income/(loss) |
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$ |
20,277,174 |
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$ |
(281,437,149 |
) |
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$ |
(342,107,112 |
) |
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$ |
(287,955,607 |
) |
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Net income/(loss) per common share: |
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Basic |
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$ |
2.53 |
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$ |
(35.26 |
) |
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$ |
(42.78 |
) |
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$ |
(36.10 |
) |
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Diluted |
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$ |
2.53 |
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$ |
(35.26 |
) |
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$ |
(42.78 |
) |
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$ |
(36.10 |
) |
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Weighted average number of shares outstanding: |
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Basic |
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8,000,295 |
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7,981,545 |
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7,997,170 |
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7,975,920 |
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Diluted |
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8,000,295 |
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7,981,545 |
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7,997,170 |
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7,975,920 |
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See Notes to Consolidated Financial Statements.
4
FRANKLIN CREDIT MANAGEMENT HOLDING AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS (DEFICIT)
SIX MONTHS ENDED JUNE 30, 2009
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Accumulated |
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Common Stock and |
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Other |
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Noncontrolling |
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Additional Paid-in Capital |
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Comprehensive |
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Interest |
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Retained |
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Shares |
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Amount |
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Loss |
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in Subsidiary |
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(Deficit) |
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Total |
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BALANCE, JANUARY 1, 2009 |
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8,025,295 |
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|
$ |
23,383,120 |
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|
$ |
(27,753,436 |
) |
|
$ |
|
|
|
$ |
(460,141,523 |
) |
|
$ |
(464,511,839 |
) |
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Stock-based compensation |
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|
132,029 |
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|
132,029 |
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Transfer of noncontrolling interest in subsidiary |
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(1,710,490 |
) |
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1,710,490 |
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Amortization unrealized loss on derivatives |
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7,596,299 |
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7,596,299 |
|
Net (loss) |
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(342,107,112 |
) |
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(342,107,112 |
) |
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|
BALANCE, JUNE 30, 2009 (UNAUDITED) |
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|
8,025,295 |
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|
$ |
21,804,659 |
|
|
$ |
(20,157,137 |
) |
|
$ |
1,710,490 |
|
|
$ |
(802,248,635 |
) |
|
$ |
(798,890,623 |
) |
|
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|
|
|
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For the six months ended June 30, 2009, the total comprehensive loss amounted to
$334,510,813 which was comprised of the net loss of $342,107,112 and amortization of unrealized
loss on derivatives of $7,596,299.
See Notes to Consolidated Financial Statements.
5
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
SIX MONTHS ENDED JUNE 30, 2009 AND 2008 (UNAUDITED)
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Six Months Ended June 30, |
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2009 |
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2008 |
|
CASH FLOWS FROM OPERATING ACTIVITIES: |
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Net (loss) |
|
$ |
(342,107,112 |
) |
|
$ |
(287,955,607 |
) |
Adjustments to reconcile income to net cash provided by/(used in) operating activities: |
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|
|
|
|
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|
Gain on sale of other real estate owned |
|
|
(374,344 |
) |
|
|
(382,707 |
) |
Depreciation |
|
|
314,540 |
|
|
|
614,302 |
|
Amortization of deferred costs and fees on originated loans |
|
|
48,215 |
|
|
|
(296,848 |
) |
Loss on mortgage loans and real estate held for sale |
|
|
282,593,653 |
|
|
|
|
|
Fair valuation adjustments |
|
|
14,393,966 |
|
|
|
|
|
Loss on valuation of investment in trust certificates and notes receivable held for sale |
|
|
62,651,940 |
|
|
|
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|
Principal collections on mortgage loans held for sale |
|
|
28,992,711 |
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Proceeds from sale of real estate held for sale |
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22,251,806 |
|
|
|
|
|
Amortization of deferred financing costs |
|
|
455,345 |
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|
573,965 |
|
Amortization of debt discount and success fees |
|
|
15,065 |
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|
15,279 |
|
Non-cash compensation |
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|
132,029 |
|
|
|
141,394 |
|
Purchase discount earned |
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|
(392,127 |
) |
|
|
(1,586,750 |
) |
Provision for loan losses |
|
|
169,479 |
|
|
|
289,147,466 |
|
Changes in operating assets and liabilities: |
|
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|
|
|
|
|
|
Accrued interest receivable |
|
|
1,611,839 |
|
|
|
2,956,661 |
|
Other receivables |
|
|
(9,589,412 |
) |
|
|
(993,550 |
) |
Income tax receivable |
|
|
78,955 |
|
|
|
(400,736 |
) |
Paid in kind interest |
|
|
6,938,945 |
|
|
|
|
|
Other assets |
|
|
(293,227 |
) |
|
|
(415,414 |
) |
Transfer to fixed assets |
|
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(127,190 |
) |
|
|
|
|
Accounts payable and accrued expenses |
|
|
(12,312,666 |
) |
|
|
(6,632,789 |
) |
Terminated derivative liability |
|
|
8,200,000 |
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by/(used in) operating activities |
|
|
63,652,410 |
|
|
|
(5,215,334 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM INVESTING ACTIVITIES: |
|
|
|
|
|
|
|
|
(Increase)/decrease in restricted cash |
|
|
26,619,011 |
|
|
|
3,789,059 |
|
Principal collections on notes receivable |
|
|
10,813,027 |
|
|
|
49,731,473 |
|
Principal collections on loans held for investment |
|
|
5,857,079 |
|
|
|
40,126,149 |
|
Investment in short-term securities |
|
|
|
|
|
|
(69,308 |
) |
Putback of acquired notes receivable |
|
|
|
|
|
|
394,893 |
|
Proceeds from sale of other real estate owned |
|
|
19,227,015 |
|
|
|
17,033,555 |
|
Purchase of building, furniture and equipment |
|
|
(6,201 |
) |
|
|
(78,874 |
) |
|
|
|
|
|
|
|
Net cash provided by investing activities |
|
|
62,509,931 |
|
|
|
110,926,947 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES: |
|
|
|
|
|
|
|
|
Principal payments of notes payable |
|
|
(82,109,940 |
) |
|
|
(109,294,886 |
) |
Proceeds from financing agreements |
|
|
2,017,052 |
|
|
|
291,980 |
|
Principal payments of financing agreements |
|
|
(2,975,063 |
) |
|
|
(397,528 |
) |
Payments on nonrecourse liability |
|
|
(51,244,519 |
) |
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) financing activities |
|
|
(134,312,470 |
) |
|
|
(109,400,434 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET CHANGE IN CASH AND CASH EQUIVALENTS |
|
|
(8,150,129 |
) |
|
|
(3,688,821 |
) |
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD |
|
|
21,426,777 |
|
|
|
18,266,066 |
|
|
|
|
|
|
|
|
CASH AND CASH EQUIVALENTS, END OF PERIOD |
|
$ |
13,276,648 |
|
|
$ |
14,577,245 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION: |
|
|
|
|
|
|
|
|
Cash payments for interest |
|
$ |
23,349,263 |
|
|
$ |
41,784,636 |
|
|
|
|
|
|
|
|
Cash payments for taxes |
|
$ |
268,154 |
|
|
$ |
400,736 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NON-CASH INVESTING AND FINANCING ACTIVITY: |
|
|
|
|
|
|
|
|
|
Transfer from notes receivable and loans held for investment to OREO |
|
$ |
20,566,413 |
|
|
$ |
41,886,259 |
|
|
|
|
|
|
|
|
See Notes to Consolidated Financial Statements.
6
FRANKLIN CREDIT HOLDING CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BUSINESS
Overview
March 2009 Restructuring
Effective March 31, 2009, Franklin Credit Holding Corporation (Franklin Holding), and its
consolidated subsidiaries (together with Franklin Holding, we, us, our or the Company,
unless otherwise specified or the context otherwise requires), including Franklin Credit Management
Corporation (FCMC) and Tribeca Lending Corp. (Tribeca), entered into a series of agreements
(collectively, the Restructuring Agreements) with The Huntington National Bank (the Bank, Lead
Lending Bank or Huntington), 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 pursuant to a legacy credit agreement (the Legacy Credit Agreement), approximately
83% of the Companys portfolio of subprime mortgage loans and owned real estate, acquired through
foreclosure, was transferred to Huntington Capital Financing, LLC (the REIT), a real estate
investment trust wholly-owned by the Bank, FCMC and Franklin Holding entered into an amended $13.5
million credit facility with the Bank (the Licensing Credit Agreement), and FCMC entered into a
market-rate servicing agreement (the Servicing Agreement) with the Bank (the Restructuring).
In connection with the Restructuring, the Company in April 2009 engaged in a number of cost-savings
measures that should result in improved financial performance of FCMC, its servicing subsidiary
company.
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 Franklin forbearance agreement entered into with the Bank in
December 2007 and subsequent amendments thereto (the Franklin Forbearance Agreement) and the
Franklin 2004 master credit agreement. On April 20, 2009, Franklin Holding, and certain of its
direct and indirect subsidiaries, including Franklin Credit Management Corporation (FCMC) and
Franklin Credit Asset Corporation (Franklin Asset) entered into an amendment of the Franklin
Forbearance Agreement and Franklin 2004 master credit agreement (the Amendment) with the Bank
relating to the Unrestructured Debt. Under the Amendment, the forbearance period with respect to
the Unrestructured Debt was extended from May 15, 2009 to June 30, 2009, and the Bank agreed to
forbear, during the forbearance period, 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. On August 10, 2009, the forbearance
period with respect to the balance of approximately $40.2 million of Unrestructured Debt was
further extended from June 30, 2009 through and including September 30, 2009. During the
forbearance period, the Bank, absent the occurrence and continuance of a forbearance default other
than an Identified Forbearance Default, will not 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. In addition, FCMC is not obligated to the Bank with respect to the
Unrestructured Debt and that any references to FCMC in the Franklin 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, the Bank, with notice, could call an event of default under the Legacy
Credit Agreement. The Licensing Credit Agreement and the Servicing Agreement do not include
cross-default provisions that would be triggered by such a default. The Banks recourse in respect
of the Legacy Credit
Agreement is limited to the assets and stock of Franklin Holdings subsidiaries, excluding the
assets of FCMC (except for a first lien of the Bank on an office condominium unit and a second
priority lien of the Bank on cash collateral held as security under the Licensing Credit Agreement)
and the unpledged portion of FCMCs stock.
7
The Franklin forbearance agreement and the Tribeca forbearance agreement (together, the
Forbearance Agreements) that had been entered into with the Bank have been replaced effective
March 31, 2009 by the Restructuring Agreements.
On June 25, 2009, in connection with the Restructuring and with the approval of the holders of
more than two-thirds of the shares of Franklin Holding entitled to vote at an election of
directors, the Certificate of Incorporation of FCMC was amended to delete the provision, adopted
pursuant to Section 251(g) of the General Corporation Law of the State of Delaware in connection
with the Companys December 2008 corporate reorganization, that had required the approval of the
stockholders of Franklin Holding in addition to the stockholders of FCMC for any action or
transaction, other than the election or removal of directors, that would require the approval of
the stockholders of FCMC.
For a fuller discussion of the foregoing, see Managements Discussion and Analysis
Borrowings Restructuring Agreements with Lead Lending Bank.
Going Concern Uncertainty Franklin Holding
The Company has been and continues to be operating in an extraordinary and difficult
environment, and has been significantly and negatively impacted by the unprecedented credit and
economic market turmoil, and the recessionary economy. Particularly impacting Franklin has been
the severe deterioration in the U.S. housing market and the nearly complete shutdown of the
mortgage credit market for borrowers without excellent credit histories, and the recessionary
economy with increasing unemployment. These unprecedented market conditions adversely affected the
Companys portfolio of residential mortgage loans, particularly its second-lien mortgage loans,
delinquencies, provisions for loan losses, operating losses and cash flows, which resulted in a
significant stockholders deficit of $798.9 million at June 30, 2009. The Company has been, since
the latter part of 2007, expressly prohibited by the Bank from acquiring or originating loans. In
addition, the Companys restructuring agreements with the Bank contain affirmative covenants that
the Companys servicing subsidiary, FCMC, be licensed, qualified and in good standing, where
required, and that it maintain its licenses to service mortgage loans and real estate owned
properties serviced under the servicing agreement entered into in connection with the
Restructuring. Any event of default under the March 31, 2009 Restructuring Agreements, or failure
to successfully renew these Restructuring 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 and result in the transfer of the remaining loans pledged
to Huntington to a third party. Moreover, certain events of default under the Restructuring
Agreements, including defaults under provisions relating to enforceability, bankruptcy, maintenance
of collateral and lien positions, and certain negative covenants typical for agreements of this
nature, or defaults under its Servicing Agreement with the Bank or the Licensing Credit Agreement
could result in the transfer of the Companys sub-servicing contract as servicer of its loans.
Without the continued cooperation and assistance from Huntington, the consolidated Franklin
Holdings ability to continue as a viable business is in doubt, and it may not be able to continue
as a going concern. These matters raise substantial doubt about Franklin Holdings ability to
continue as a going concern.
As a result of the Restructuring and the corporate reorganization that took effect December
19, 2008, FCMC, the servicing company within the Franklin consolidated group of companies, has
positive net worth and since January 1, 2009 has been profitable. FCMCs standalone balance sheet
as of December 31, 2008 received an unqualified opinion from our Independent Public Accounting Firm.
See Results of Operations Franklin Credit Management Corporation (FCMC).
8
Operating Losses and Stockholders Deficit
The Company had net income of $20.3 million for the second quarter of 2009, compared with a
net loss of $281.4 million for the second quarter of 2008. The principal driver of the $301.7
million decrease in the net loss for the second quarter of 2009 was the restructured balance sheet
that resulted from the Restructuring and the resultant write-down to estimated fair value of the
Companys loan portfolios in the first quarter of 2009. Exclusive of a nonrecurring gain on
recoveries from contractual loan purchase rights in the aggregate amount of $30.6 million received
in the second quarter of 2009, the Company would have reported a net loss of approximately $10
million.
The Company had a consolidated net loss of $342.1 million for the six months ended June 30,
2009. The net loss for the first half of 2009 was driven principally by the restructuring
agreement entered into with the Bank effective March 31, 2009. As part of the Restructuring, at
March 31, 2009, the Company transferred approximately 83%, or approximately $760 million, of its
portfolio of subprime mortgage loans and owned real estate (in the form of trust certificates that
had been issued by the trust formed by the Bank as part of the Restructuring (the Trust)) and
received preferred and common stock in the amount of $477.3 million in Huntingtons REIT. Because
the transfer of the trust certificates is treated as a financing and not a sale for accounting
purposes, 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.
The loss, therefore, represented a write-down to fair market value of the mortgage loans and real
estate held for sale. Effective March 31, 2009, the carrying value of the remaining approximately
17%, or $151.2 million, of its portfolio of subprime mortgage loans and owned real estate was also
transferred to the Trust as part of the Restructuring in exchange for trust certificates
(Investments in trust certificates at fair value) that are held by the Company, and was
reclassified as an investment available for sale and, therefore, recorded at fair value
approximating $95.8 million on March 31, 2009. In addition, the Company classified as an
investment held for sale loans with a carrying value of approximately $11.4 million of the
Companys remaining subprime mortgage loans not subject to the Restructuring (notes receivable held
for sale, net), which collateralizes the debt that remains subject to the original terms of the
forbearance and 2004 master credit agreements (the Unrestructured Debt) and, as a result recognized
a loss of $7.3 million, which, on March 31, 2009, was recorded as loss on valuation of investment
in trust certificates and notes receivable held for sale.
Although the transfer of the trust certificates, representing approximately 83% of the
Companys portfolio of subprime mortgage loans and owned real estate, to the REIT was structured in
substance as a sale of financial assets, the transfer, for accounting purposes, is being treated as
a financing under Statement of Financial Accounting Standards (SFAS) No. 140, Accounting for
Transfers and Servicing of Financial Assets and Extinguishments of Liabilities (SFAS 140). While
Franklin transferred legal ownership and all of the economic interests and risks relating to the
underlying assets of the trust certificates to the Bank in exchange for preferred and common stocks
of the REIT, the transfer did not meet one of the technical requirements of SFAS 140 insofar as,
for accounting purposes, the transferred assets have not been legally isolated from the Company and
put presumptively beyond the reach of the Company and its creditors, even in bankruptcy. The
treatment as a financing on the Companys balance sheet, however, did not affect the cash flows of
the transfer, and does not affect the Companys cash flows or its reported net income nor would it,
necessarily, dictate the treatment of the assets in a bankruptcy.
9
Licenses to Service Loans and December 2008 Corporate Reorganization
The requirements imposed by state mortgage finance licensing laws vary considerably. In
addition to the requirement for a license to engage in mortgage origination and brokerage
activities, many mortgage licensing laws impose a licensing obligation to service residential
mortgage loans. Further, certain state collection agency licensing laws require entities
collecting on current, delinquent or defaulted loans for others or to acquire such loans to be
licensed as well. Once these licenses are obtained, state regulators impose additional ongoing
obligations on licensees, such as maintaining certain minimum net worth or line of credit
requirements. Generally, net worth is determined in accordance with accounting principles
generally accepted in the United States of America (GAAP) with the minimum net worth varying from
state to state. In limited instances, the net worth calculation may not include recourse on any
contingent liabilities. The highest state minimum net worth requirement, with respect to states
other than New York, is $250,000. In New York, under the new servicing registration law that went
into effect on July 1, 2009, the net worth requirement is the greater of 1% of the outstanding
principal balance of New York loans serviced or $250,000, which when applied to FCMC would be
approximately $1.73 million). If the Companys servicing subsidiary, FCMC, does not, among other
things, meet these minimum net worth or line of credit requirements, state regulators may revoke or
suspend FCMCs licenses and prevent FCMC from continuing to service loans in such states, which
would adversely affect FCMCs operations and financial condition and ability to attract new
servicing customers. As of June 30, 2009, we believe that FCMC has net worth in excess of that
which is required to maintain its licenses, both in accordance with GAAP and with requirements of
those states that exclude the portion of its assets pledged to secure the obligations of any other
person or entity.
While at December 31, 2008, FCMC had positive net worth in accordance with GAAP, its deficit
net worth during 2008 resulted in FCMCs noncompliance with the requirements to maintain certain
licenses in approximately 21 states. The regulators in these states could have taken a number of
possible corrective actions in response to FCMCs noncompliance, including license revocation or
suspension, requirement for the filing of a corrective action plan, denial of an application for a
license renewal or a combination of the same, in which case FCMCs business would have been
adversely affected. As a consequence of its deficit net worth, FCMC was contacted by four state
regulators to address its noncompliance with state laws. In October 2008, FCMC was notified of
such noncompliance by the state of West Virginia and, as a result, entered into an Assurance of
Voluntary Compliance with the states Commissioner of Banking to assure the state that, as of
November 30, 2008, FCMC would meet the states statutory minimum net worth requirement of $250,000.
In November 2008, the state of Ohio issued a Notice of Intent to Refuse Renewal unless FCMC
explained how it would meet the states minimum net worth requirement of $50,000. On December 2,
2008, the state of Washington notified FCMC that the processing of its collection agency license
renewal was being delayed pending the states review of FCMCs off-balance sheet liabilities to its
corporate affiliate. Finally, on January 14, 2009, the state of Wisconsin issued FCMC a Letter of
Reprimand that cited its failure in 2008 to maintain the minimum net worth required of mortgage
bankers registered in the state.
In order to address these and other issues, in December 2008, FCMC completed a reorganization
of its company structure for the principal purpose of restoring the required minimum net worth
under FCMCs licenses to ensure that FCMC would be able to continue to service mortgage loans.
Effective December 19, 2008, Franklin Holding became the parent company of FCMC in the adoption of
a holding company form of organizational structure. This reorganization (the Reorganization)
resulted in FCMC, which holds the Companys servicing platform, having positive net worth as a
result of having assigned and transferred to a newly formed sister company ownership of the
entities that held beneficial ownership of the Companys loan portfolios and the related
indebtedness and accordingly, being able to comply with applicable net worth requirements to
maintain licenses to service and collect loans in various jurisdictions; and, is expected to
enhance FCMCs ability to grow its servicing business. Other than the
difference in their names, the certificate of incorporation, by-laws, authorized capital
stock, outstanding capital stock, board of directors and officers of Franklin Holding are the same
as those of FCMC prior to the reorganization. No post-merger exchange of stock certificates was
necessary, and the outstanding shares of FCMC common stock have been automatically converted into
an equal number of shares of Franklin Holding common stock.
10
The business operations and financial condition of the Company taken as a whole, including
FCMC, which holds the servicing platform, on a consolidated basis, including the Companys
consolidated substantial negative net worth, did not change as a result of the Reorganization.
However, the resulting financial condition of FCMC changed, inasmuch as it had positive net worth
at December 31, 2008, at March 31, 2009 and June 30, 2009.
Upon
our compliance with the states minimum net worth requirement as a result of the
Reorganization, FCMCs West Virginia license was renewed on December 30, 2008. Ohio terminated its
Notice of Intent to Refuse Renewal on January 8, 2009. The state of Wisconsin also noted that FCMC
had tangible net worth in excess of $250,000 by December 31, 2008. On June 12, 2009, FCMC was
notified that its Washington state collection agency license was renewed. The Company, however,
may be subject to future regulatory action in three other states, Michigan, Illinois and
Massachusetts, because in those states the net worth calculation may not include recourse on any
contingent liabilities, which prior to March 31, 2009, would have caused FCMCs net worth to be
deemed negative by those states. As of and since March 31, 2009, however, we believe that FCMC has
maintained net worth in excess of that which is required to maintain its licenses in such states.
In the summer of 2008, FCMC formed a wholly-owned subsidiary, Franklin Credit Loan Servicing, LLC,
a Delaware limited liability company (and following the Reorganization, a wholly-owned subsidiary
of the Company), which does not have any liabilities or pledged assets and, therefore, is expected
to become licensed in those three states and in the event that such states determine that FCMC does
not meet the applicable net worth requirements, Franklin Credit Loan Servicing, LLC would, upon
licensure, service loans in such states so that the Company overall has the required licenses to
operate in all 50 states, the District of Columbia and the Commonwealth of Puerto Rico. Under the
Servicing Agreement entered into on March 31, 2009 as part of the Restructuring with Huntington, it
would be an event of default if FCMC failed to maintain its license to do business in any
jurisdiction where any mortgaged property or other real estate owned (OREO) property serviced
under the servicing agreement is located and such failure continues unremedied for ten (10) days,
which, if the same were to occur, would entitle the Bank to terminate the Servicing Agreement. In
addition, with notice in connection with such a default, the Bank could also call an event of
default under the Licensing Credit Agreement and the Legacy Credit Agreement entered into in
connection with the Restructuring, which, among other remedies, would entitle the Bank to foreclose
on the assets of the Company pledged to the Bank, including on Franklin Holdings pledge of 70% of
the common stock of FCMC.
Franklins Business
As a result of the Restructuring and the Reorganization that took effect December 19, 2008,
FCMC, the servicing company within the Franklin consolidated group of companies, has positive net
worth and since January 1, 2009 has been profitable.
The Companys operating business is conducted principally through FCMC (a subsidiary company
of Franklin), which is a specialty consumer finance company primarily engaged in the servicing and
resolution of performing, reperforming and nonperforming residential mortgage loans, and in the
analysis, pricing, due diligence and acquisition of residential mortgage portfolios, for third
parties. The portfolios serviced for other entities, as of June 30, 2009, principally for
Huntington (loans previously acquired and originated by Franklin and transferred to the Trust),
primarily consist of first and second-lien
loans secured by 1-4 family residential real estate that generally fell outside the
underwriting standards of Fannie Mae and Freddie Mac and involve elevated credit risks as a result
of the nature or absence of income documentation, limited credit histories, higher levels of
consumer debt or credit difficulties.
11
In the past year, through our servicing subsidiary, FCMC, we have been seeking to begin
providing services for third parties, on a fee-paying basis, which are directly related to our
servicing operations and our portfolio acquisition experience with residential mortgage loans. We
are actively seeking to (a) expand our servicing operations to provide servicing and collection
services to third parties, particularly specialized collection services, and (b) capitalize on our
experience to provide customized, comprehensive loan analysis and in-depth end-to-end transaction
and portfolio management services to the residential mortgage markets. Some of these services
include, in addition to servicing loans for others, performing 1-4 family residential portfolio
stratification and analysis, pricing, due diligence, closing, and collateral transfer. These new
business activities are subject to the consent of the bank, and we may not be successful in
entering into or implementing any of these businesses in a meaningful way.
On May 28, 2008, FCMC entered into various agreements, including a servicing agreement, to
service on a fee-paying basis approximately $245 million in residential home equity line of credit
mortgage loans for Bosco Credit LLC (Bosco). Bosco was organized by FCMC, and the membership
interests in Bosco 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 of that entity. The loans that are subject to the servicing agreement were
acquired by Bosco on May 28, 2008, and the Bank is the administrative agent for the lenders to
Bosco. FCMC also provided the loan analysis, due diligence and other services for Bosco on a
fee-paying basis for the loans acquired by Bosco.
On February 27, 2009, FCMC entered into an amendment (the Amendment) to the Bosco servicing
agreement. The Amendment provides that, for the next 12 months, FCMCs monthly servicing fee will
be paid only after a monthly loan modification fee of $29,167 is paid to Boscos lenders.
Additionally, the Amendment provides that, on each monthly payment date, if the aggregate amount of
net collections is less than $1 million, 25% of FCMCs servicing fee will be paid only after
certain other monthly distributions are made, including, among other things, payments made by Bosco
to repay its third-party indebtedness. The term of this provision is indefinite. If the amount of
collections is not sufficient to make the required payments in any given month, the unpaid
servicing fees due to FCMC, or portions thereof, will accrue and become due and payable the next
month or in future months.
Prior to December 28, 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 assets, including the origination of
subprime mortgage loans. We specialized in acquiring and originating loans secured by 1-4 family
residential real estate that generally fell outside the underwriting standards of Fannie Mae and
Freddie Mac and involved elevated credit risk as a result of the nature or absence of income
documentation, limited credit histories, higher levels of consumer debt or past credit
difficulties.
Loan Servicing
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 customers. Because the loans we service generally experience above average
delinquencies, erratic payment patterns and defaults, our servicing operation is focused on
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 loss mitigation and recovery strategies. Our servicing staff employs a variety of
collection strategies that we have developed to successfully manage serious delinquencies,
bankruptcy and foreclosure. Additionally, we maintain a real estate department with experience in
property management and the sale of residential properties.
12
As of June 30, 2009, through our servicing subsidiary, FCMC, we had two significant servicing
contracts with third parties to service 1-4 family mortgage loans and owned real estate, Huntington
and Bosco.
Due Diligence Services
During the first quarter of 2008, capitalizing on our portfolio acquisition experience with
residential mortgage loans, the Company began providing services for third parties not related to
us or our lender, on a fee-paying basis. During 2008, we completed 13 due diligence or loan
analysis and pricing assignments for third parties interested in acquiring mortgage loan pools.
During the six months ended June 30, 2009, we were engaged in due diligence, loan analysis and
pricing for a third party that acquired a small residential mortgage loan pool.
Financing
We historically financed both our acquisitions of mortgage loan portfolios and our loan
originations through various long and short-term borrowing arrangements with Sky Bank, the
predecessor to the Bank, with which we had a strong relationship since the early 1990s.
On December 28, 2007, Franklin entered into Forbearance Agreements with the Bank, which
substantially modified our borrowing arrangements referred to above and expressly terminated
fundings for new acquisitions and originations under those credit facilities. Effective March 31,
2009, Franklin entered into a series of 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, and approximately 83% of the Companys portfolio of subprime mortgage
loans and owned real estate, acquired through foreclosure, while not removed from the Companys
balance sheet, was transferred to a real estate investment trust wholly-owned by a subsidiary of
the Bank. Except for approximately $40.2 million of the Companys debt that remains subject to the
original terms of the Franklin 2004 master credit agreement and the Franklin Forbearance Agreement,
all previous Forbearance Agreements and credit agreements have been replaced effective March 31,
2009 by the Restructuring Agreements. See Managements Discussion and Analysis Borrowings.
Corporate History
We were formed in 1990 by, among others, Thomas J. Axon, our Chairman and President, and Frank
B. Evans, Jr., one of our directors, for the purpose of acquiring consumer loan portfolios from the
Resolution Trust Company, or RTC, and the Federal Deposit Insurance Corporation, or FDIC. We
became a public company in December 1994, when we merged with Miramar Resources, Inc., a publicly
traded oil and gas company that had emerged from bankruptcy proceedings in December 1993. The
newly formed entity was renamed Franklin Credit Management Corporation. At the time of the merger,
we divested substantially all of the remaining oil and gas assets directly owned by Miramar in
order to focus primarily on the non-conforming sector of the residential mortgage industry. At
that time, we decided to capitalize on our experience and expertise in acquiring and servicing
loans from the RTC and the FDIC and began purchasing performing, reperforming and nonperforming residential mortgage
loans from additional financial institutions. In 1997, we formed Tribeca to originate subprime
residential mortgage loans.
13
In December 2007, Franklin entered into Forbearance Agreements with the Bank, which
substantially modified our borrowing arrangements referred to above and terminated fundings for new
acquisitions and originations under those credit facilities.
In December 2008, the Company engaged in 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 and
Tribeca, to other entities in the reorganized corporate structure of the Company, and (iv) amended
its loan agreements with Huntington. As a result, Franklin Credit Holding Corporation is the
successor issuer to FCMC.
In the Reorganization, FCMC became a subsidiary of Franklin Holding and ceased to have any
subsidiaries and, therefore, ceased to have portfolios of loans and real estate properties and the
related indebtedness to the Bank.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation The 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 the instructions to Quarterly Reports Form 10-Q. Accordingly,
they do not include all of the information and footnotes required by GAAP for complete financial
statements. However, such information reflects all adjustments which are, in the opinion of
management, necessary for a fair statement of results for the periods.
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. As of June 30, 2009, the most significant estimates of the Company are the
continuing assessment of the fair value of the investment in (i) preferred and common stocks, or
the REIT Securities, (ii) trust certificates, and (iii) because for accounting purposes the
Restructuring is being treated as a financing under SFAS 140, mortgage loans and real estate held
for sale and the corresponding nonrecourse liability. The Companys estimates and assumptions
primarily arise from uncertainties and changes associated with interest rates and the secondary and
whole loan markets for residential 1-4 family mortgage loans. 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 and conditions may occur which could cause actual results to
differ materially.
Investment in REIT Securities Investment in preferred stock is classified at the date of
purchase as available for sale securities and carried at fair market value, which is valued as of
the end of each reporting period. The fair value of the preferred stock was established at the
date received on March 31, 2009, the effective date of the Restructuring. As the preferred stock
in the REIT is not marketable, and cannot be sold or redeemed by the Company, the fair value
subsequent to March 31, 2009, while essentially equal to the value received on the date of the
Restructuring, is evaluated quarterly
to confirm that the cash flows from the REIT securities approximate fair market value and that
the cash flows from the REIT are significantly in excess of, and can support, the dividend on the
REIT securities. The investment in common stock of the REIT of
approximately $4.9 million is carried at cost.
14
Investment in Trust Certificates Investment in trust certificates is classified at the date
of purchase as available for sale, and the fair value adjustment at March 31, 2009 was recorded
as loss on valuation of trust certificates and notes receivable held for sale. Investment in trust
certificates is carried at fair market value, and the certificates are valued as of the end of each
reporting period. Subsequent to March 31, 2009, changes in fair value are recorded in earnings as
fair valuation adjustments. The fair value of the trust certificates is based on an assessment of
the underlying investment, expected cash flows and other market-based information, and where
observable market prices and other data are not available for similar investments, pricing models
or discounted cash flow analyses, using observable market data where available, are utilized to
estimate fair market value.
Mortgage Loans and Real Estate Held for Sale As part of the Restructuring, approximately
83% of the Companys portfolio of subprime mortgage loans and owned real estate, acquired through
foreclosure, were transferred to the REIT and are classified as held for sale. As a result, a
loss on the transfer was recorded as loss on mortgage loans and real estate held for sale.
Subsequent to March 31, 2009, mortgage loans and real estate held for sale are carried at the lower
of cost or market value. Because the transfer has been accounted for as a secured financing in
accordance with SFAS No. 140 (based solely on the assertion that the transferred assets have not
been legally isolated from the Company and put presumptively beyond the reach of the Company and
its creditors, even in bankruptcy), the mortgage loans and real estate remain on the Companys
balance sheet classified as mortgage loans and real estate held for sale with a nonrecourse
liability in an equal amount. The fair value of the mortgage loans held for sale is based on an
assessment of the underlying residential 1-4 family mortgage loans and real estate, expected cash
flows and other market-based information, and where observable market prices and other data are not
available for similar loans, pricing models or discounted cash flow analyses, using observable
market data where available, are utilized to estimate market value. Mortgage loans and real estate
held for sale are valued as of the end of each reporting period, and changes in fair value are
recorded in earnings as fair valuation adjustments.
Nonrecourse Liability The nonrecourse liability is the offset to, and is secured by, the
mortgage loans and real estate held for sale. The Company elected the fair value option for the
nonrecourse liability, and adjustments to fair value are recorded as fair valuation adjustments.
No interest expense is recorded on the nonrecourse liability as any payments received from the
Trust on the investment in trust certificates are recorded as a reduction to the balance of the
nonrecourse liability, which is adjusted to fair value each quarter through the fair valuation
adjustments line item.
Fair Valuation Adjustments Fair valuation adjustments include amounts after March 31, 2009
related to adjustments in the fair value of the investment in trust certificates and 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.
15
The following table sets forth the activity affecting the fair valuation adjustments during
the three months ended June 30, 2009:
|
|
|
|
|
|
|
Three Months Ended |
|
|
|
June 30, 2009 |
|
Valuation (loss) on OREO sold |
|
$ |
(11,564,907 |
) |
Valuation (loss) on mortgage loans and OREO |
|
|
(17,046,415 |
) |
Valuation gain on nonrecourse liability |
|
|
16,368,732 |
|
Other |
|
|
(2,151,376 |
) |
|
|
|
|
|
|
|
|
|
(Loss) on valuation |
|
$ |
(14,393,966 |
) |
|
|
|
|
Notes Receivable Held for Sale At March 31, 2009, as part of the Restructuring, notes
receivable are classified as held for sale as this portfolio is being actively marketed for sale,
and a lower of cost or market value was recorded as loss on valuation of investments in trust
certificates and notes receivable held for sale. Subsequent to March 31, 2009, the fair value of
the notes receivable is based on an assessment of the underlying residential 1-4 family mortgage
loans, expected cash flows and other market-based information, and where observable market prices
and other data are not available for similar loans, pricing models or discounted cash flow
analyses, using observable market data where available, are utilized to estimate market value.
Notes receivable are valued as of the end of each reporting period, and changes in fair value are
recorded as fair valuation adjustments.
Income Recognition on Investment in Trust Certificates and Mortgage Loans and Real Estate Held
for Sale Income on the investment in mortgage loans and real estate held for sale is estimated
based on the available information on these loans and real estate provided by our Bank and from the
loans serviced for the Trust. The estimated income does not represent cash received and retained
by the Company, and is essentially offset through a valuation adjustment of the nonrecourse
liability. During the second quarter of 2009, the Company revised its interest accrual policy to
accrue only one month of interest on performing loans (loans that are contractually current).
Notes Receivable and Income Recognition The notes receivable portfolio consisted primarily
of secured real estate mortgage loans purchased from financial institutions and mortgage and
finance companies. Such notes receivable were performing, nonperforming or subperforming at the
time of purchase and were generally purchased at a discount from the principal balance remaining.
Notes receivable were carried at the amount of unpaid principal, reduced by purchase discount and
allowance for loan losses. The Company reviewed its loan portfolios upon purchase of loan pools,
at loan boarding, and on a frequent basis thereafter to determine an estimate of the allowance
necessary to absorb probable loan losses in its portfolios. Managements judgment in determining
the adequacy of the allowance for loan losses was based on an evaluation of loans within its
portfolios, the known and inherent risk characteristics and size of the portfolio, the assessment
of current economic and real estate market conditions, estimates of the current value of underlying
collateral, past loan loss experience and other relevant factors. In connection with the
determination of the allowance for loan losses, management obtained independent appraisals for the
underlying collateral on an ongoing basis in accordance with company policy.
In general, interest on the notes receivable was calculated based on contractual interest
rates applied to daily balances of the principal amount outstanding using the accrual method.
Accrual of interest on notes receivable, including impaired notes receivable, was discontinued when
management believed, after considering economic and business conditions and collection efforts,
that the borrowers financial condition was such that collection of interest was doubtful. When
interest accrual was discontinued, all unpaid accrued interest was reversed against interest
income. Subsequent recognition of
income occurred only to the extent payment was received, subject to managements assessment of
the collectibility of the remaining interest and principal. A non-accrual note was restored to an
accrual status when collectibility of interest and principal was no longer in doubt and past due
interest was recognized at that time.
16
Originated Loans Held for Investment In general, interest on originated loans held for
investment was calculated based on contractual interest rates applied to daily balances of the
principal amount outstanding using the accrual method. The Company accrued interest on secured
real estate first mortgage loans originated by the Company up to a maximum of 209 days
contractually delinquent with a recency payment in the last 179 days, and that were judged to be
fully recoverable for both principal and accrued interest, based principally on a foreclosure
analysis that included an updated estimate of the realizable value of the property securing the
loan.
The accrual of interest was discontinued when management believed, after considering economic
and business conditions and collection efforts, that the borrowers financial condition was such
that collection of interest was doubtful, which can be less than 209 days contractually delinquent
with a recency payment in the last 179 days. When interest accrual was discontinued, the unpaid
accrued interest on certain loans in the foreclosure process was not reversed against interest
income where the current estimate of the value of the underlying collateral exceeded 110% of the
outstanding loan balance. For all other loans held for investment, all unpaid accrued interest was
reversed against interest income when interest accrual was discontinued. Except for certain loan
modifications, subsequent recognition of income occurred only to the extent payment was received,
subject to managements assessment of the collectibility of the remaining interest and principal.
Allowance for Loan Losses The Company reviewed its loan portfolios upon purchase of loan
pools, at loan boarding, and on a frequent basis thereafter to determine an estimate of the
allowance necessary to absorb probable loan losses in its portfolios. Managements judgment in
determining the adequacy of the allowance for loan losses was based on an evaluation of loans
within its portfolios, the known and inherent risk characteristics and size of the portfolio, the
assessment of current economic and real estate market conditions, estimates of the current value of
underlying collateral, past loan loss experience and other relevant factors. In connection with
the determination of the allowance for loan losses, management obtained independent appraisals for
the underlying collateral on an ongoing basis in accordance with company policy.
17
The following table shows the activity in the allowance for loan losses during the three and
six months ended June 30, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
Allowance for loan losses, beginning of period |
|
$ |
|
|
|
$ |
251,626,987 |
|
|
|
|
|
|
|
|
|
|
Provision for loan losses |
|
|
|
|
|
|
262,420,799 |
|
Loans transferred to OREO |
|
|
|
|
|
|
(4,273,245 |
) |
Loans charged off |
|
|
|
|
|
|
(47,373,393 |
) |
Loans transferred to Huntington
and loans exchanged for trust certificates and retained |
|
|
|
|
|
|
|
|
Loans transferred to loans held for sale |
|
|
|
|
|
|
|
|
Other, net |
|
|
|
|
|
|
(31,980 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for loan losses, end of period |
|
$ |
|
|
|
$ |
462,369,168 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
Allowance for loan losses, beginning of period |
|
$ |
520,969,251 |
|
|
$ |
254,661,653 |
|
|
|
|
|
|
|
|
|
|
Provision for loan losses |
|
|
169,479 |
|
|
|
267,587,175 |
|
Loans transferred to OREO |
|
|
(6,517,919 |
) |
|
|
(6,713,115 |
) |
Loans charged off |
|
|
(14,029,345 |
) |
|
|
(53,058,255 |
) |
Loans transferred to Huntington
and loans exchanged for trust certificates and retained |
|
|
(481,453,374 |
) |
|
|
|
|
Loans transferred to loans held for sale |
|
|
(17,435,075 |
) |
|
|
|
|
Other, net |
|
|
(1,703,017 |
) |
|
|
(108,290 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for loan losses, end of period |
|
$ |
|
|
|
$ |
462,369,168 |
|
|
|
|
|
|
|
|
Write-downs for declines in the estimated net realizable value of OREO resulted in a
provision for loan losses of $18.1 million and $21.5 million during the three and six months ended
June 30, 2008, which was not included in the above tables. As a result of the Restructuring and
the exchange of loans and other real estate owned for trust certificates, and because, as of March
31, 2009, the Company is carrying its investments at fair value or lower of cost or market value,
the allowance for loan losses was eliminated during the first quarter of 2009, and at June 30, 2009
was $0.
Derivatives As part of the Companys interest-rate risk management process, we entered into
interest rate cap agreements in 2006 and 2007, and interest rate swap agreements in 2008. In
accordance with SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities (SFAS
133), as amended and interpreted, derivative financial instruments are reported on the
consolidated balance sheets at their fair value.
Interest rate caps are recorded at fair value. The interest rate caps are not designated as
hedging instruments for accounting purpose, and unrealized changes in fair value are recognized in
the period in which the changes occur and realized gains and losses are recognized in the period
when such instruments are settled.
18
Franklins management of interest-rate risk predominantly includes 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 SFAS 133, 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 SFAS 133 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 discontinues hedge accounting if it is determined that a derivative is not
expected to be or has ceased to be highly effective as a hedge, and then reflects changes in the
fair value of the derivative in earnings. All of the Companys interest-rate swaps qualify for
cash flow hedge accounting, and are so designated.
Effective April 30, 2008, the Company entered into $275 million (notional amount) of
fixed-rate interest-rate swaps in order to effectively stabilize the future interest payments on a
portion of its interest-sensitive borrowings. The fixed-rate swaps are for a period of three
years, are non-amortizing, and at a fixed rate of 3.47%. These swaps will reduce further the
Companys exposure to future increases in interest costs on a portion of its borrowings due to
increases in the one-month LIBOR. The interest-rate swaps were executed with the Companys lead
lending bank.
On March 5, 2009, $220 million of one-year interest-rate swaps matured, which have not been
replaced.
In conjunction with the Restructuring, and at the request of the Bank, effective March 31,
2009, the Company exercised its right to terminate two non-amortizing fixed-rate interest-rate
swaps with the Bank, one with a notional amount of $150 million and the other with a notional
amount of $240 million. The total termination fee for cancellation of the swaps was $8.2 million,
which is payable only to the extent cash is available under the waterfall provisions of the Legacy
Credit Agreement, and only after the first $837.9 million of debt owed to the Bank has been paid in
full. The carrying value included in accumulated other comprehensive loss (AOCL) within
stockholders equity at December 31, 2008 related to the terminated hedges is amortized to earnings
over time.
As of June 30, 2009, the notional amount of the Companys fixed-rate interest-rate swaps
totaled $390 million, representing approximately 31% of the Companys outstanding variable rate
debt. The fixed-rate interest-rate swaps are expected to reduce the Companys exposure to future
increases in interest costs on a portion of its borrowings due to increases in one-month LIBOR
during the remaining terms of the swap agreements. All of our interest-rate swaps were executed
with the Companys lead lending bank.
Changes in the fair value of derivatives designated as cash flow hedges, in our case the
swaps, are recorded in AOCL within stockholders equity to the extent that the hedges are
effective. Any hedge ineffectiveness is recorded in current period earnings as a part of interest
expense. If a derivative instrument in a cash flow hedge is terminated, the hedge designation is
removed, or the hedge accounting criteria are no longer met, the Company will discontinue the hedge
relationship.
As of January 1, 2009, the Company removed the hedge designations for its cash flow hedges.
As a result, the Company will continue to carry the December 31, 2008 balance related to these
hedges in AOCL unless it becomes probable that the forecasted cash flows will not occur. The
balance in AOCL as of June 30, 2009 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 June 30, 2009, the net impact of the cash flow hedges was an increase of $2.8
million to interest expense, inclusive of $3.7 million of amortization of the AOCL balance,
reclassified from AOCL into earnings, and the cost of the hedges in the amount of $2.9 million,
which was somewhat offset by an increase of $3.8 million in the fair value of the existing swaps.
During the six months ended June 30, 2009, the net impact of the cash
flow hedges was an increase of $10.9 million to interest expense, inclusive of $7.6 million of
amortization of the AOCL balance and reclassified from AOCL into earnings, the cost of the hedges
in the amount of $8.0 million, somewhat offset by an increase of $4.7 million in the fair value of
the existing swaps. Future changes in the fair value of the remaining interest-rate swaps will be
accounted for directly in earnings.
19
Fair Value Measurements
SFAS No. 157, Fair Value Measurements, 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.
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 June 30, 2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 1 |
|
|
Level 2 |
|
|
Level 3 |
|
|
Level 3 |
|
Interest-rate swaps |
|
$ |
|
|
|
$ |
(14,771,242 |
) |
|
$ |
|
|
|
$ |
|
|
Investment in REIT securities |
|
|
|
|
|
|
|
|
|
|
472,413,331 |
|
|
|
|
|
Investment in trust certificates |
|
|
|
|
|
|
|
|
|
|
82,472,492 |
|
|
|
|
|
Nonrecourse liability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(410,772,828 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
|
|
|
$ |
(14,771,242 |
) |
|
$ |
554,885,823 |
|
|
$ |
(410,772,828 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
20
The changes in items classified as Level 3 during the six months ended June 30, 2009 are
as follows:
|
|
|
|
|
|
|
|
|
Balance, January 1, 2009 |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
Additions |
|
|
623,602,529 |
|
|
|
(477,316,409 |
) |
Total recognized unrealized (losses)/gains |
|
|
(54,753,531 |
) |
|
|
16,368,733 |
|
Transfer in/(out) |
|
|
(5,625,114 |
) |
|
|
|
|
Distributions/payments |
|
|
(8,338,061 |
) |
|
|
50,174,828 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, June 30, 2009 |
|
$ |
554,885,823 |
|
|
$ |
(410,772,828 |
) |
|
|
|
|
|
|
|
Unrealized losses included in earnings during the six months ended June 30, 2009 related
to investments held at June 30, 2009 were $54.8 million.
The carrying value of assets measured at the lower of cost or market value at June 30, 2009
are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 1 |
|
|
Level 2 |
|
|
Level 3 |
|
Mortgage loans and real estate held for sale |
|
$ |
|
|
|
$ |
|
|
|
$ |
410,772,828 |
|
|
|
|
|
|
|
|
|
|
|
Recent Developments
Unrestructured Debt
On August 10, 2009, the forbearance period with respect to the Unrestructured Debt was
extended from June 30, 2009 through and including September 30, 2009, and the Bank agreed to
forbear, during the forbearance period, with respect to any defaults past or present with respect
to any failure to make scheduled principal and interest payments to the Bank relating to the
Unrestructured Debt. The Company, as directed by the Bank, has been actively seeking to sell the
loans collateralizing the Unrestructured Debt and, subject to the Banks approval of such sale,
will attempt to have a sale completed on or before September 30, 2009.
Management has evaluated and disclosed recent developments up to and including August 14,
2009, which is the issuance date of the financial statements.
21
|
|
|
ITEM 2. |
|
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
General
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), that are subject to a variety of risks and uncertainties. There are a number of
important factors that could cause actual results to differ materially from those projected or
suggested in forward-looking statements made by the Company. 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; (ii) the Companys relations with the Companys lenders
and such lenders willingness to waive any defaults under the Companys agreements with such
lenders; (iii) increases in the delinquency rates of the Companys borrowers, (iv) the availability
of third parties holding subprime mortgage debt for servicing by the Company on a fee-paying basis;
(v) changes in the statutes or regulations applicable to the Companys business or in the
interpretation and enforcement thereof by the relevant authorities; (vi) the status of the
Companys regulatory compliance; (vii) our ability to meet collection targets under the Legacy
Credit Agreement in order to reduce the pledge of equity interest in FCMC from 70% to a minimum of
20%; and (viii) other risks detailed from time to time in the Companys Securities and Exchange
Commission (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 Securities and Exchange Commission, 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 and, if applicable, 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.
Application of Critical Accounting Policies and Estimate
The Companys significant accounting policies, as of December 31, 2008 are described in Note 2
to the December 31, 2008 consolidated financial statements filed on the Annual Report on Form 10-K.
We identified notes receivable and income recognition, discounts on acquired loans, allowance for
loan losses, originated loans held for investment, other real estate owned (OREO), and income
taxes as the Companys most critical accounting policies and estimates. As of June 30, 2009, 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 is being treated as a financing under SFAS 140, 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, or 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.
22
Portfolio Characteristics
Overall Portfolio
Due to the Restructuring and the exchange of loans and other real estate owned for trust
certificates effective March 31, 2009, the Company no longer had portfolios of loans classified as
held to maturity. Therefore, the tables that follow are only for December 31, 2008.
At December 31, 2008, our portfolio (excluding OREO) consisted of $1.14 billion of notes
receivable (inclusive of purchase discount not reflected on the face of the balance sheet) and
$395.2 million of loans held for investment. Throughout the Portfolio Characteristics section,
unless otherwise indicated or required by the context of the description, all loan amounts refer to
the unpaid principal balance (UPB). The following table sets forth information regarding the
types of properties securing our loans.
|
|
|
|
|
|
|
|
|
|
|
Unpaid |
|
|
Percentage of Total |
|
Property Types |
|
Principal Balance |
|
|
Principal Balance |
|
Residential 1-4 family |
|
$ |
1,268,478,890 |
|
|
|
82.41 |
% |
Condos, co-ops, PUD dwellings |
|
|
193,149,884 |
|
|
|
12.55 |
% |
Manufactured and mobile homes |
|
|
15,135,861 |
|
|
|
0.98 |
% |
Multi-family |
|
|
443,023 |
|
|
|
0.03 |
% |
Secured, property type unknown(1) |
|
|
18,464,780 |
|
|
|
1.20 |
% |
Commercial |
|
|
1,920,922 |
|
|
|
0.12 |
% |
Unsecured loans(2) |
|
|
41,678,994 |
|
|
|
2.71 |
% |
|
|
|
|
|
|
|
Total |
|
$ |
1,539,272,354 |
|
|
|
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. |
23
Geographic Dispersion. The following table sets forth information regarding the
geographic location of properties securing the loans in our portfolio at December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
Unpaid |
|
|
Percentage of Total |
|
Location |
|
Principal Balance |
|
|
Principal Balance |
|
California |
|
$ |
226,583,453 |
|
|
|
14.72 |
% |
New York |
|
|
172,713,267 |
|
|
|
11.22 |
% |
New Jersey |
|
|
145,363,612 |
|
|
|
9.44 |
% |
Florida |
|
|
136,181,054 |
|
|
|
8.85 |
% |
Pennsylvania |
|
|
69,705,413 |
|
|
|
4.53 |
% |
Texas |
|
|
69,656,734 |
|
|
|
4.53 |
% |
Maryland |
|
|
50,994,311 |
|
|
|
3.31 |
% |
Ohio |
|
|
50,792,987 |
|
|
|
3.30 |
% |
Illinois |
|
|
49,072,979 |
|
|
|
3.19 |
% |
Michigan |
|
|
43,731,150 |
|
|
|
2.84 |
% |
All Others |
|
|
524,477,394 |
|
|
|
34.07 |
% |
|
|
|
|
|
|
|
Total |
|
$ |
1,539,272,354 |
|
|
|
100.00 |
% |
|
|
|
|
|
|
|
Asset Quality
Delinquency. Because we specialized in acquiring and servicing loans with erratic payment
patterns and an elevated level of credit risk, a portion of the loans we have acquired were in
various stages of delinquency, foreclosure and bankruptcy when we acquired them. We monitor the
payment status of our borrowers based on both contractual delinquency and recency delinquency, and
as servicer for third parties we continue to do so. By contractual delinquency, we mean the
delinquency of payments relative to the contractual obligations of the borrower. By recency
delinquency, we mean the recency of the most recent full monthly payment received from the
borrower. By way of illustration, on a recency delinquency basis, if the borrower has made the
most recent full monthly payment within the past 30 days, the loan is shown as current regardless
of the number of contractually delinquent payments. In contrast, on a contractual delinquency
basis, if the borrower has made the most recent full monthly payment, but has missed an earlier
payment or payments, the loan is shown as contractually delinquent. We classify a loan as in
foreclosure when we determine that the best course of action to maximize recovery of unpaid
principal balance is to begin the foreclosure process. We classify a loan as in bankruptcy
generally when we receive notice of a bankruptcy filing from the bankruptcy court. We classify a
previously delinquent or performing loan as modified when we have restructured the loan due
principally to the borrowers deteriorated financial situation, and, as a condition to the closing
of the modification, received at least one full monthly payment at the time of the closing of the
modification. Modified loans are classified as current on both a contractual and recency basis at
the time of the modification. As of December 31, 2008, principally all of our loan modifications
consisted of the deferral of the past due and uncollected interest or a reduction in the interest
rate. Interest rate reduction modifications generally are for a period of one year, and for rate
reduction modifications of delinquent loans, also incorporate a deferral of the past due and
uncollected interest. Approximately 20% of our modified loans as of December 31, 2008 were
modified a second time due to the borrowers difficulty in making payments in accordance with the
initial modification.
Approximately 85% of all loan modifications as of December 31, 2008 were performing loans that
were delinquent on a contractual basis less than 90 days at the time of modification, including
approximately 67% that were in a current status on a contractual basis and granted modifications
based on our evaluation of the borrowers deteriorated financial situation.
24
The following table provides a breakdown of the delinquency status of our notes receivable and
loans held for investment as of December 31, 2008, by unpaid principal balance.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2008 |
|
|
|
|
|
Contractual Delinquency |
|
|
Recency Delinquency |
|
|
|
Days Past Due |
|
Amount |
|
|
% |
|
|
Amount |
|
|
% |
|
Performing Current |
|
0 30 days |
|
$ |
373,712,487 |
|
|
|
24.28 |
% |
|
$ |
419,653,369 |
|
|
|
27.26 |
% |
Delinquent |
|
31 60 days |
|
|
30,511,251 |
|
|
|
1.98 |
% |
|
|
25,910,879 |
|
|
|
1.69 |
% |
|
|
61 90 days |
|
|
4,302,736 |
|
|
|
0.28 |
% |
|
|
21,390,383 |
|
|
|
1.39 |
% |
|
|
90+ days |
|
|
128,904,056 |
|
|
|
8.38 |
% |
|
|
70,475,899 |
|
|
|
4.58 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modified Loans |
|
0 30 days |
|
|
262,156,611 |
|
|
|
17.03 |
% |
|
|
299,215,550 |
|
|
|
19.44 |
% |
Delinquent |
|
31 60 days |
|
|
46,097,510 |
|
|
|
2.99 |
% |
|
|
32,572,746 |
|
|
|
2.12 |
% |
|
|
61 90 days |
|
|
1,195,906 |
|
|
|
0.08 |
% |
|
|
15,542,772 |
|
|
|
1.01 |
% |
|
|
90+ days |
|
|
78,911,624 |
|
|
|
5.13 |
% |
|
|
41,030,583 |
|
|
|
2.66 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bankruptcy |
|
0 30 days |
|
|
26,527,458 |
|
|
|
1.72 |
% |
|
|
62,020,559 |
|
|
|
4.03 |
% |
Delinquent |
|
31 60 days |
|
|
5,929,387 |
|
|
|
0.38 |
% |
|
|
10,264,968 |
|
|
|
0.67 |
% |
|
|
61 90 days |
|
|
1,644,545 |
|
|
|
0.11 |
% |
|
|
4,623,655 |
|
|
|
0.30 |
% |
|
|
90+ days |
|
|
90,762,522 |
|
|
|
5.90 |
% |
|
|
47,954,730 |
|
|
|
3.11 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreclosure |
|
0 30 days |
|
|
2,575,557 |
|
|
|
0.16 |
% |
|
|
19,594,271 |
|
|
|
1.27 |
% |
Delinquent |
|
31 60 days |
|
|
743,187 |
|
|
|
0.05 |
% |
|
|
7,639,599 |
|
|
|
0.50 |
% |
|
|
61 90 days |
|
|
123,808 |
|
|
|
0.01 |
% |
|
|
7,248,534 |
|
|
|
0.47 |
% |
|
|
90+ days |
|
|
485,173,709 |
|
|
|
31.52 |
% |
|
|
454,133,857 |
|
|
|
29.50 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
1,539,272,354 |
|
|
|
100.00 |
% |
|
$ |
1,539,272,354 |
|
|
|
100.00 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All current loans |
|
0 30 days |
|
$ |
664,972,113 |
|
|
|
43.20 |
% |
|
$ |
800,483,749 |
|
|
|
52.00 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Included in the foreclosure category are approximately $189.4 million of loans for which
the Company has proceeded to file a judgment action against the borrower on the note personally
instead of seeking to foreclose on the related collateral. Approximately $184.2 million of these
loans are second-lien loans. Judgments have been obtained on approximately $6.0 million of loans,
of which approximately $5.2 million are second-lien loans.
Included in the above table are second-lien mortgage loans in our notes receivable portfolio
in the amount of $754.1 million, of which $334.3 million and $371.9 million were current on a
contractual and recency basis, respectively. The legal status composition of the second-lien
mortgage loans at December 31, 2008 was: $344.5 million, or 46%, are performing; $110.9 million, or
15%, are modified due to delinquency or the borrowers financial difficulty; $55.3 million, or 7%,
are in bankruptcy; and, $243.4 million, or 32%, are in foreclosure (including $189.3 million where
a judgment action has been filed against the borrower on the note personally or where judgments
have been obtained). At December 31, 2008, $29.3 million of the modified second-lien loans was
delinquent on a contractual basis, while $24.1 million of the modified second-lien loans was
delinquent on a recency basis.
25
Notes Receivable Portfolio
Due to the Restructuring and the exchange of loans and other real estate owned for trust
certificates effective March 31, 2009, the Company no longer had a notes receivable portfolio
classified as held to maturity. Therefore, the tables that follow are only as of December 31,
2008.
At December 31, 2008, our notes receivable portfolio included approximately 22,817 loans with
an aggregate UPB of $1.14 billion. Impaired loans comprised a significant portion of our
portfolio. Many of the loans we acquired were impaired loans at the time of purchase. We
generally purchased such loans at discounts and considered the payment status, underlying
collateral value and expected cash flows when determining our purchase price. While interest
income generally was not accrued on impaired loans, interest and fees were received on a portion of
loans classified as impaired. The following table provides a breakdown of the notes receivable
portfolio by performing and impaired loans at December 31, 2008:
|
|
|
|
|
|
|
December 31, 2008 |
|
Performing loans |
|
$ |
528,953,209 |
|
Allowance for loan losses |
|
|
130,724,698 |
|
Nonaccretable discount* |
|
|
25,277,808 |
|
|
|
|
|
Total performing loans, net
allowance for loan losses and nonaccretable discount |
|
|
372,950,703 |
|
|
|
|
|
|
|
|
|
|
Impaired loans |
|
|
615,159,200 |
|
Allowance for loan losses |
|
|
340,368,461 |
|
Nonaccretable discount* |
|
|
72,325,558 |
|
|
|
|
|
Total impaired loans, net
allowance for loan losses and nonaccretable discount |
|
|
202,465,181 |
|
|
|
|
|
|
|
|
|
|
Total notes receivable, net
allowance for loan losses and nonaccretable discount |
|
|
575,415,884 |
|
|
|
|
|
|
|
|
|
|
Accretable discount* |
|
|
24,860,752 |
|
|
|
|
|
|
|
|
|
|
Total notes receivable, net
allowance for loan losses and
accretable/nonaccretable discount |
|
$ |
550,555,132 |
|
|
|
|
|
|
|
|
* |
|
Represents purchase discount not reflected on the face of the balance sheet in
accordance with SOP 03-3 for loans acquired after December 31, 2004. Accretable Discount
is the excess of the loans estimated cash flows over the purchase prices, which is
accreted into income over the life of the loan. Nonaccretable Discount is the excess of
the undiscounted contractual cash flows over the undiscounted cash flows estimated at the
time of acquisition. |
Changes in the allowance for loan losses and nonaccretable discount were principally the
result of movement of loans between performing and impaired classifications.
26
The following table provides a breakdown of the balance of our portfolio of notes receivable
between fixed-rate and adjustable-rate loans, net of allowance for loan losses as of December 31,
2008.
|
|
|
|
|
|
|
December 31, 2008 |
|
Performing Loans: |
|
|
|
|
Fixed rate |
|
$ |
325,799,144 |
|
|
|
|
|
Adjustable rate |
|
|
72,429,367 |
|
|
|
|
|
Total Performing Loans |
|
$ |
398,228,511 |
|
|
|
|
|
|
|
|
|
|
Impaired Loans: |
|
|
|
|
Fixed rate |
|
$ |
162,504,488 |
|
|
|
|
|
Adjustable rate |
|
|
112,286,251 |
|
|
|
|
|
Total Impaired Loans |
|
$ |
274,790,739 |
|
|
|
|
|
Total Notes |
|
$ |
673,019,250 |
|
|
|
|
|
|
|
|
|
|
Accretable discount |
|
$ |
24,860,752 |
|
|
|
|
|
Nonaccretable discount |
|
$ |
97,603,366 |
|
|
|
|
|
Total Notes Receivable,
net of allowance for loan losses |
|
$ |
550,555,132 |
|
|
|
|
|
Impaired loans comprised a significant portion of the portfolio. Many of the loans we
acquired were impaired loans at the time of purchase. We generally purchased such loans at
discounts and considered the payment status, underlying collateral value and expected cash flows
when determining our purchase price. While interest income generally was not accrued on impaired
loans, interest and fees were received on a portion of loans classified as impaired.
Lien Position. The following table sets forth information regarding the lien position of the
properties securing our portfolio of notes receivable at December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
December 31, 2008 |
|
|
|
|
|
|
|
Percentage of Total |
|
Lien Position |
|
Principal Balance |
|
|
Principal Balance |
|
1st Liens |
|
$ |
390,020,158 |
|
|
|
34.09 |
% |
2nd Liens |
|
|
754,092,251 |
|
|
|
65.91 |
% |
|
|
|
|
|
|
|
Total |
|
$ |
1,144,112,409 |
|
|
|
100.00 |
% |
|
|
|
|
|
|
|
27
Other Real Estate Owned
The following table sets forth our real estate owned, or OREO portfolio, and OREO sales during
the three and six months ended June 30, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Other real estate owned |
|
$ |
|
|
|
$ |
61,843,230 |
|
|
$ |
|
|
|
$ |
61,843,230 |
|
OREO as a percentage of total assets |
|
|
|
|
|
|
4.78 |
% |
|
|
|
|
|
|
4.78 |
% |
OREO sold (prior to the Restructuring) |
|
$ |
|
|
|
$ |
9,381,848 |
|
|
$ |
18,852,671 |
|
|
$ |
16,650,847 |
|
Gain on sale |
|
$ |
|
|
|
$ |
291,891 |
|
|
$ |
374,344 |
|
|
$ |
382,707 |
|
Due to the Restructuring effective March 31, 2009, any gains and losses on sales of OREO
properties supporting the investment in trust certificates and mortgage loans and real estate
properties held for sale are included in as fair valuation adjustments.
Results of Operation
Although the transfer of the trust certificates, representing approximately 83% of the
Companys portfolio of subprime mortgage loans and owned real estate, to the REIT was structured in
substance as a sale of financial assets, the transfer, for accounting purposes, is treated as a
financing under SFAS 140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities. While Franklin transferred legal ownership and all of the
economic interests and risks relating to the underlying assets of the trust certificates to the
Bank in exchange for preferred and common stocks of the REIT, the transfer did not meet one of the
technical requirements of SFAS 140 insofar as, for accounting purposes, the transferred assets have
not been legally isolated from the Company and put presumptively beyond the reach of the Company
and its creditors, even in bankruptcy. The treatment as a financing on the Companys balance
sheet, however, did not affect the cash flows of the transfer, and does not affect the Companys
cash flows or its reported net income nor would it, necessarily, dictate the treatment of the
assets in a bankruptcy.
Three Months Ended June 30, 2009 Compared to Three Months Ended June 30, 2008
Overview. The Company had net income of $20.3 million for the second quarter of 2009,
compared with a net loss of $281.4 million for the second quarter of 2008. The principal driver of
the $301.7 million decrease in the net loss for the second quarter of 2009 was the restructured
balance sheet that resulted from the Restructuring and the resultant write-down of the Companys
loan portfolios to estimated fair value in the prior quarter. Exclusive of a nonrecurring gain on
recoveries from contractual loan purchase rights in the aggregate amount of $30.6 million received
in the second quarter of 2009, the Company would have reported a net loss of approximately $10
million.
Revenues increased by $14.3 million to $45.2 million for the three months ended June 30, 2009,
from revenues of $30.9 million for the three months ended June 30, 2008. The Company had net
income per common share for the three months ended June 30, 2009 of $2.53 both on a diluted and
basic basis, compared to a net loss per share of $35.26 on both a diluted and basic basis for the
three months ended June 30, 2008. Our total debt outstanding decreased to $1.37 billion at June
30, 2009 from $1.44 billion at December 31, 2008, and from $1.52 billion at June 30, 2008.
Interest expense (inclusive of amortization of deferred financing costs, success fees and the cost
of interest-rate swaps) decreased by $1.8 million, or 9%, to $17.4 million, during the three months
ended June 30, 2009, from $19.2 million during the three months ended June 30, 2008. Our average cost of funds, including the cost of
the interest-rate swaps, during the three months ended June 30, 2009 decreased to 4.71% from 4.88%
during the three months ended June 30, 2008. At June 30, 2009, the weighted average interest rate
of borrowed funds was 3.92%. Collection, general and administrative expenses decreased by $5.4
million, or 44%, to $6.9 million during the three months ended June 30, 2009, from $12.3 million
for the same period in 2008. The provision for loan losses decreased by $280.5 million to $0
during the three months ended June 30, 2009. Stockholders deficit increased by 72% to $798.9
million at June 30, 2009, from stockholders deficit of $464.5 million at December 31, 2008.
28
Revenues. Revenues increased by $14.3 million to $45.2 million during the second quarter of
2009, from revenues of $30.9 million during the same period in 2008. Revenues include interest
income, dividend income, purchase discount earned, gain on recovery of contractual loan purchase
rights, fair valuation adjustments, gain on sale of OREO, and servicing fees and other income.
Interest income decreased by $9.9 million, or 37%, to $16.7 million during the three months
ended June 30, 2009 from $26.6 million during the three months ended June 30, 2008. The decrease
in interest income reflected an approximate 79% increase in loans on nonaccrual due to increased
serious delinquencies in the Companys loan portfolios and a change in the interest accrual policy,
effective with the Restructuring, to accrue only one month of interest on performing loans (loans
that are contractually current). Approximately $1.23 billion of loans were on nonaccrual at June
30, 2009 compared with $688.7 million at June 30, 2008, which caused a corresponding reduction in
the amount of accrued interest on loans on accrual status during the three months ended June 30,
2009 compared to the three months ended June 30, 2008.
Dividend income from the Investment in REIT securities, received in exchange for Trust
Certificated transferred to the Banks REIT on March 31, 2009, was $10.6 million during the three
months ended June 30, 2009. There was no dividend income during the same period last year.
There was no purchase discount earned during the second quarter of 2009 as purchase discount
on loans acquired in past years was eliminated effective March 31, 2009 with the Restructuring.
During the second quarter of 2008, purchase discount earned amounted to $805,000.
Gain on recovery of contractual loan purchase rights amounted to $30.6 million during the
three months ended June 30, 2009. The gain was the result of proceeds received from contractual
loan purchase rights during the three months ended June 30, 2009. There was no gain on recovery of
contractual loan purchase rights in the three months ended June 30, 2008.
Fair valuation adjustments (fair value adjustments of the Investment in trust certificates and
the Nonrecourse liability) amounted to a net loss of $14.4 million for the three months ended June
30, 2009. Included in the fair valuation adjustments in the three months ended June 30, 2009 were
a net increase in the valuation of $16.4 million on the nonrecourse liability, a loss on OREO sold
in the amount of $11.6 million, a valuation write-down on OREO inventory of $17.1 million and
various other adjustments to the fair value in the amount of approximately $2.1 million, net.
During the three months ended June 30, 2009, gains and losses on sales of OREO were reflected
in the fair valuation adjustments line item. During the three months ended June 30, 2008, we
realized a net gain of $292,000 from the sales of 138 OREO properties with an aggregate carrying
value of $9.4 million.
29
Servicing fees and other income (principally third-party subservicing fees, third-party
acquisition services fees and late charges, prepayment penalties and other miscellaneous servicing
revenues)
decreased by $1.5 million, or 46%, to $1.7 million during the three months ended June 30, 2009
from $3.2 million during the corresponding period last year. This decrease was principally the
result of decreased recoveries of outside foreclosure attorney costs from delinquent borrowers,
reduced late charges collected from delinquent borrowers, decreased prepayment penalties due to a
continuing slower rate of loan payoffs, and the reversal of $90,000 in administrative fees
associated with services provided to Bosco by FCMC.
Operating Expenses. Operating expenses decreased by $287.8 million, to $24.5 million during
the second quarter of 2009 from $312.3 million during the same period in 2008. Total operating
expenses include interest expense, collection, general and administrative expenses, provisions for
loan losses, amortization of deferred financing costs and depreciation expense.
Interest expense decreased by $1.8 million, or 9%, to $17.1 million during the three months
ended June 30, 2009, from $18.9 million during the three months ended June 30, 2008. This decrease
was the result of a lower average cost of funds during the three months ended June 30, 2009 of
4.71%, compared to 4.88% during the three months ended June 30, 2008, which was the result of the
cost of interest-rate swaps. As of April 1, 2009, the Company had in place $390 million (notional
amount) of fixed-rate interest-rate swaps, intended 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. Because short-term interest rates actually declined in the months
following the purchase of these swaps and due to the amortization of the AOCL balance relating to
terminated interest-rate swaps, offset somewhat by an increase in the fair value of the swaps
during the quarter ended June 30, 2009, the interest-rate swaps actually increased the Companys
interest cost in the quarter ended June 30, 2009 by $2.8 million. At June 30, 2009, the weighted
average interest rate of our borrowed funds, exclusive of the effect of interest-rate swaps, was
3.92%, compared with 4.47% at June 30, 2008.
Collection, general and administrative expenses decreased by $5.4 million, or 44%, to $6.9
million during the three months ended June 30, 2009, from $12.3 million during the corresponding
period in 2008. The decrease in collection, general and administrative expenses was principally
the result of a reduction in operating costs throughout the Company including decreased servicing
costs due to a reduction of third party expenses incurred on servicing the Banks portfolio of
loans since, effective April 1, 2009 with the Restructuring, the Bank has directed the Company as
servicer to limit certain third party costs and expenses that are reimbursed by the Bank. Salaries
and employee benefits expenses decreased by $974,000, or 22%, to $3.4 million during the three
months ended June 30, 2009, from $4.4 million during the three months ended June 30, 2008, due to
reductions in staff throughout the Company during the past 18 months, including the Companys
cost-savings measures that took place in the beginning of April 2009 (across the board salary
reductions and additional reductions in staff). The number of servicing employees decreased to 129
at June 30, 2009, from 143 employees at June 30, 2008. The Company ended the three months ended
June 30, 2009 with 178 employees, compared with 210 employees at June 30, 2008. Legal fees
relating to collection and loss mitigation activities decreased by $1.2 million, or 49%, to $1.2
million from $2.5 million during the same period last year. This decrease principally reflected a
reduction in outside legal service for foreclosure, bankruptcy and judgment activities for the
delinquent loans in the portfolios serviced for the Bank, which under the terms of the
Restructuring Agreements are reimbursed by the Bank. The Company also experienced a decrease in
corporate legal expenditures of $464,000, or 78%, to $130,000 from $594,000, as compared to the
same three-month period last year. Servicing expenses related to the maintenance and management of
OREO decreased by approximately $538,000 to $234,000 million during the three months ended June 30,
2009, from $772,000 during the same three-month period last year, due to principally to the
reduction in the OREO portfolio and reduced OREO servicing costs, due to reimbursement by the Bank
for OREO serviced on behalf of the Trust, during the period. In addition, other third-party
servicing expenses related to our collection, loss mitigation and deficiency operations decreased
by $395,000 to $307,000 from $702,000 for the three months ended June 30, 2008, primarily due to decreased third party
vendor activity as directed by the Bank and reduced servicing costs and expenditures, due to
reimbursement by the Bank for loans serviced on behalf of the Trust, during the period.
Professional fees decreased by $181,000, or 30%, to $431,000 from $612,000, principally due to
decreased outside tax and audit fees, compared to the same period last year. Rent expenses
decreased by $722,000 to $302,000 for the three months ended June 30, 2009, due principally to the
cost of a lease write-down of vacant office space during the second quarter of 2008. Various other
general and administrative expenses decreased by approximately $923,000 during the three months
ended June 30, 2009, principally due to reduced costs throughout the Companys operations because
the Company ceased to acquire and originate loans in November 2007 and the related reductions in
the workforce.
30
There was no provision for loan losses during the three months ended June 30, 2009, compared
with a provision of $280.5 million during the three months ended June 30, 2008. The absence of a
provision for loan losses during the three months ended June 30, 2009 reflected the transfer of a
significant portion of our portfolio of notes receivable, loans held for sale and OREO properties
to the Bank on March 31, 2009 and the exchange and retention, principally in the form of trust
certificates, of the remaining portion of our portfolio of notes receivable, loans held for sale
and OREO properties as part of the Restructuring. As a result of the Restructuring and the
exchange of the Companys loans and OREO assets for investments carried at either fair market value
or lower of cost or market value, an allowance for loan losses is no longer necessary and the
provision for loan losses effective March 31, 2009 was substantially eliminated.
Amortization of deferred financing costs decreased by $30,000, or 9%, to $289,000 during the
second quarter of 2009 from $318,000 during the second quarter of 2008. This decrease resulted
primarily from a reduction in collections that culminated in a decrease in the pay down of our
borrowed funds made in accordance with the terms of the Restructuring Agreements.
Depreciation expenses decreased by $140,000, or 47%, to $158,000 in the second quarter of
2009. This decrease during the three months ended June 30, 2009 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 2008.
Our pre-tax loss decreased by $302.1 million, from a loss of $281.4 million during the three
months ended June 30, 2008 to pre-tax net income of $20.7 million during the three months ended
June 30, 2009, for the reasons set forth above.
The Company recorded state income tax expense of $433,000 on income from one of its subsidiary
companies during the three months ended June 30, 2009. There was no provision for income taxes
during the three months ended June 30, 2008.
Six Months Ended June 30, 2009 Compared to Six Months Ended June 30, 2008
Overview. The Company had a net loss of $342.1 million for the first half of 2009, compared
with a net loss of $288.0 million for the first half of 2008. Revenues decreased by $346.4 million
to a loss of $280.3 million for the six months ended June 30, 2009, from revenues of $66.1 million
for the six months ended June 30, 2008. The Company had a net loss per common share for the six
months ended June 30, 2009 of $42.78 both on a diluted and basic basis, compared to a net loss per
common share of $36.10 on both a diluted and basic basis for the six months ended June 30, 2008.
Nevertheless, because of the Companys restructured balance sheet that resulted from the March 31,
2009 Restructuring and the resultant write-down of the Companys loan portfolios to estimated fair
value in the prior quarter, the Company had a significantly reduced loss in the second quarter of
2009. In addition, during the six months ended June 30, 2009, the Company realized nonrecurring gain on net recoveries from
contractual loan purchase rights in the aggregate amount of $30.6 million. Effective March 31,
2009, as part of the Restructuring Agreements with its Bank, the Company incurred a loss of $282.6
million in the 2009 first quarter on the transfer of assets. In addition, the Company recognized a
loss of $62.7 million on the valuation of the remaining investments on the Companys balance sheet,
approximately 17% of its portfolio of loans and real estate assets transferred to a trust in
exchange for trust certificates and the remaining loans not subject to the Restructuring.
31
Our total debt outstanding decreased to $1.37 billion at June 30, 2009 from $1.44 billion at
December 31, 2008, and from $1.52 billion at June 30, 2008. Interest expense (inclusive of
amortization of deferred financing costs and success fees) decreased by $7.1 million, or 17%,
including the cost of the interest-rate swaps, during the first half of 2009 compared with the same
period in 2008. Our average cost of funds, including the cost of the interest-rate swaps, during
the six months ended June 30, 2009 decreased to 4.83% from 5.29% during the six months ended June
30, 2008. At June 30, 2009, the weighted average interest rate of borrowed funds was 3.92%.
Collection, general and administrative expenses increased by $3.7 million, or 17%, to $25.6 million
during the six months ended June 30, 2009, from $21.9 million for the same period in 2008. The
provision for loan losses decreased by $289.0 million to $170,000 during the six months ended June
30, 2009. Stockholders deficit increased by 72% to $798.9 million at June 30, 2009, from
stockholders deficit of $464.5 million at December 31, 2008.
Revenues. Revenues decreased by $346.4 million from $66.1 million during the six months ended
June 30, 2008, to a loss of $280.3 million during the first half of 2009. Revenues include
interest income, dividend income, purchase discount earned, gain on recovery of contractual loan
purchase rights, loss on mortgage loans and real estate held for sale, loss on valuation of trust
certificates, notes receivable held for sale and nonrecourse liability, fair valuation adjustments,
gain on sale of OREO and servicing fees and other income.
Interest income decreased by $25.8 million, or 44%, to $33.1 million during the six months
ended June 30, 2009 from $58.9 million during the six months ended June 30, 2008. The decrease in
interest income reflected an approximate 79% increase in loans on nonaccrual due to increased
serious delinquencies in the Companys loan portfolios and a change in the interest accrual policy
effective with the Restructuring, to accrue only one month of interest on performing loans (loans
that are contractually current). Approximately $1.23 billion of loans were on nonaccrual at June
30, 2009 compared with $688.7 million at June 30, 2008, which caused a corresponding reduction in
the amount of accrued interest on loans on accrual status during the six months ended June 30, 2009
compared to the six months ended June 30, 2008.
Dividend income from the Investment in REIT securities, received in exchange for Trust
Certificated transferred to the Banks REIT on March 31, 2009, was $10.6 million during the six
months ended June 30, 2009. There was no dividend income during the same period last year.
Purchase discount earned decreased by $1.2 million, or 75%, to $392,000 during the first half
of 2009 from $1.6 million during the first half of 2008. This decrease was the result of the
elimination of the remaining balance of purchase discount on March 31, 2009 effective with the
Restructuring, and, therefore there was no purchase discount remaining to be earned during the
second quarter of 2009.
Gain on recovery of contractual loan purchase rights amounted to $30.6 million during the six
months ended June 30, 2009. The gain was the result of proceeds received from contractual loan
purchase rights during the three months ended June 30, 2009. There was no gain on recovery of
contractual loan purchase rights in the six months ended June 30, 2008.
32
Loss on mortgage loans and real estate held for sale was $282.6 million during the three
months ended March 31, 2009. On March 31, 2009, the Company transferred its trust certificates in
the Trust having a carrying value approximating $759.9 million, representing approximately 83% of
the trust certificates (representing the Companys loans and OREO assets previously transferred to
the Trust), in exchange for preferred and common stock in Huntingtons REIT (REIT Securities) with
a fair market value approximating $477.3 million. Because the transfer of the trust certificates
has been accounted for as a secured financing in accordance with SFAS No. 140 (based on the
assertion that the transferred assets have not been legally isolated from the Company and put
presumptively beyond the reach of the Company and its creditors, even in bankruptcy), the mortgage
loans and real estate remain on the Companys balance sheet classified as mortgage loans and real
estate held for sale securing the nonrecourse liability in an equal amount. The loss, therefore,
represented the application of fair market value accounting that resulted in a write-down to fair
market value. Included in the realized loss from the March 31, 2009 exchange was a charge-off of
accrued interest on the loans exchanged in the amount of $8.6 million that was not collected as
part of the Restructuring.
Loss on valuation of investment in trust certificates, mortgage loans and real estate held for
sale was $62.7 million during the six months ended June 30, 2009. At March 31, 2009 effective with
the Restructuring, the retained trust certificates in the Trust with a book value of approximately
$151.2 million, representing approximately the remaining 17% of the Companys loans and OREO
assets, exclusive of the assets collateralizing the Unrestructured Debt, were classified as
available for sale and fair market value accounting was applied that resulted in a write-down to
fair market value approximating $95.8 million. The loans collateralizing the Unrestructured Debt
with a carrying value of $11.4 million were classified as held for sale and adjusted to
approximate the fair market value of $4.1 million, which resulted in a realized a loss of $7.3
million.
Fair valuation adjustments (fair value adjustments of the investment in trust certificates and
the nonrecourse liability) amounted to a net loss of $14.4 million for the three months ended June
30, 2009. Included in the fair valuation adjustments in the three months ended June 30, 2009 were
a net increase of $16.4 million in the valuation on the nonrecourse liability, a loss on OREO sold
in the amount of $11.6 million, a valuation write-down on OREO and various other adjustments to the
fair value in the amount of approximately $2.1 million, net.
Gain on sale of OREO decreased by $8,000, or 2%, to $374,000 during the six months ended June
30, 2009, from $383,000 during the six months ended June 30, 2008. We sold 198 OREO properties
with an aggregate carrying value of $18.9 million during the first half of 2009, as compared to 221
OREO properties with an aggregate carrying value of $16.7 million during the first half of 2008.
During the three months ended June 30, 2009, gains and losses on sales of OREO were reflected in
fair valuation adjustments.
Servicing fees and other income (principally third-party subservicing fees, third-party
acquisition services fees and late charges, prepayment penalties and other miscellaneous servicing
revenues) decreased by $971,000, or 19%, to $4.2 million during the six months ended June 30, 2009
from $5.2 million during the corresponding period last year. This decrease was principally the
result of decreased recoveries of outside foreclosure attorney costs from delinquent borrowers,
reduced late charges collected from delinquent borrowers, decreased prepayment penalties due to a
continuing slower rate of loan payoffs, and the reversal of $90,000 in administrative fees
associated with services provided on the Bosco portfolio by FCMC.
Operating Expenses. Operating expenses decreased by $292.7 million, or 83%, to $61.3 million
during the first half of 2009 from $354.0 million during the same period in 2008. Total operating
expenses include interest expense, collection, general and administrative expenses, provisions
for loan losses, amortization of deferred financing costs and depreciation expense.
33
Interest expense decreased by $7.0 million, or 17%, to $34.8 million during the six months
ended June 30, 2009, from $41.8 million during the six months ended June 30, 2008. This decrease
was the result of a lower average cost of funds during the six months ended June 30, 2009 of 4.83%,
compared to 5.29% during the six months ended June 30, 2008, reflecting the restructuring of the
interest rate terms on our debt and a decline of about 215 basis points in one-month LIBOR since
June 30, 2008, which was offset somewhat by the cost of interest-rate swaps and a decrease of our
total debt. On February 27, 2008, the Company entered into $725 million (notional amount) of
fixed-rate interest-rate swaps, and on April 30, 2008, the Company entered into an additional $275
million (notional amount) of 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. As of April 1, 2009, due to swap maturities and early
terminations, the Company had in place $390 million (notional amount) of fixed-rate interest-rate
swaps. Because short-term interest rates actually declined in the months following the purchase of
these swaps and due to the amortization of the AOCL balance relating to terminated interest-rate
swaps, offset somewhat by an increase in the fair value of the swaps in the second quarter of 2009,
the interest-rate swaps actually increased the Companys interest cost in the six months ended June
30, 2009 by $10.9 million. At June 30, 2009, the weighted average interest rate of our borrowed
funds, exclusive of the effect of the interest-rate swaps, was 3.92%, compared with 4.47% at June
30, 2008.
Collection, general and administrative expenses increased by $3.7 million, or 17%, to $25.6
million during the six months ended June 30, 2009, from $21.9 million during the corresponding
period in 2008. The increase in collection, general and administrative expenses was principally
the result of the costs of the Restructuring and increased servicing costs due to increased
delinquencies and defaults in our loan portfolio. These increased costs were somewhat offset by a
reduction in operating costs throughout the Company and a decrease in certain third party servicing
costs due a reduction of third party expenses incurred on servicing the Banks portfolio of loans
since, effective April 1, 2009 with the Restructuring, the Bank has directed the Company as
servicer to limit certain third party costs. Total restructuring costs were $5.5 million during
the six months ended June 30, 2009 and represented principally outside legal and consulting
expenses, including reimbursement of costs incurred by Huntington in accordance with the
Restructuring Agreements. Salaries and employee benefits expenses decreased by $418,000, or 5%, to
$8.3 million during the six months ended June 30, 2009, from $8.7 million during the six months
ended June 30, 2008, due to reductions in staff throughout the Company during the past 18 months,
including the Companys cost-savings measures that took place in the beginning of April 2009
(including across the board salary reductions and additional reductions in staff). The number of
servicing employees decreased to 129 at June 30, 2009, from 143 employees at June 30, 2008. The
Company ended the six months ended June 30, 2009 with 178 employees, compared with 210 employees at
June 30, 2008. Legal fees relating to collection and loss mitigation activities decreased by $1.0
million, or 23%, to $3.3 million from $4.3 million during the same period last year. This decrease
principally reflected the reduced servicing costs, which are now reimbursed by the Bank, and
decreased outside legal services for foreclosure, bankruptcy and judgment activities for the
delinquent loans in the portfolios serviced for the Bank during the second quarter of 2009. The
Company also experienced an increase in corporate legal expenditures not directly related to the
Restructuring of $416,000, or 45%, to $1.3 million from $1.0 million, principally related to a
nonrecurring matter, as compared to the same six-month period last year. Servicing expenses
related to the maintenance and management of OREO increased by approximately $496,000 to $1.8
million during the six months ended June 30, 2009, from $1.3 million during the same six-month
period last year, primarily due to the payments of all outstanding property taxes in the first
quarter of 2009 in accordance with the Restructuring and reduced OREO servicing costs, due to
reimbursement by the Bank for OREO serviced on behalf of the Trust, during the second quarter of
2009. In addition, other third-party servicing expenses
34
related to our collection, loss mitigation
and deficiency operations increased by $906,000 to $2.3 million from $1.4 million for the six months ended
June 30, 2008, primarily due to an increase in the volume of properties placed on our force-placed
insurance policy related to the continued deterioration of our loan portfolios and the re-title and
transfer of all of our OREO properties between subsidiaries and/or transferred to the Trust as part
of the Restructuring. This increase was somewhat offset by decreased third party vendor activity
as directed by the Bank effective April 1, 2009 and reduced servicing costs, due to reimbursement
by the Bank for loans and OREO serviced on behalf of the Trust, during the second quarter ended
June 30, 2009. Professional fees decreased by $133,000, or 12%, to $1.0 million from $1.1 million,
principally due to a decrease in outside tax and audit fees, compared to the same period last year.
Rent expenses decreased by $793,000 to $598,000 for the six months ended June 30, 2009, due
principally to the cost of a lease write-down of vacant office space during the second quarter of
2008. Various other general and administrative expenses decreased by approximately $1.3 million
during the six months ended June 30, 2009, principally due to reduced costs throughout the
Companys operations because the Company ceased to acquire and originate loans in November 2007 and
the related reductions in the workforce.
The provision for loan losses decreased by $289.0 million, to $169,000 during the six months
ended June 30, 2009, from $289.1 million during the six months ended June 30, 2008. This decrease
reflected the transfer of a significant portion of our portfolio of notes receivable, loans held
for sale and OREO properties to the Bank on March 31, 2009 and the exchange and retention,
principally in the form of trust certificates, of the remaining portion of our portfolio of notes
receivable, loans held for sale and OREO properties as part of the Restructuring. As a result of
the Restructuring and the exchange of the Companys loans and OREO assets for investments carried
at either fair market value or lower of cost or market value, an allowance for loan losses is no
longer necessary and the provision for loan losses effective March 31, 2009 was substantially
eliminated.
Amortization of deferred financing costs decreased by $119,000, or 21%, to $455,000 during the
first half of 2009 from $574,000 during the first half of 2008. This decrease resulted primarily
from a reduction in collections that resulted in a decrease in the pay down of our borrowed funds
and in accordance with the terms of the Restructuring Agreements.
Depreciation expenses decreased by $300,000, or 49%, to $315,000 in the first half of 2009.
This decrease during the six months ended June 30, 2009 was principally due to fully depreciated
assets during the past twelve months and a reduction in assets purchased compared with the same
six-month period in 2008.
Our pre-tax loss increased by $53.7 million to a loss of $341.7 million during the six months
ended June 30, 2009, from a loss of $288.0 million during the six months ended June 30, 2008 for
the reasons set forth above.
The Company recorded state income tax expense of $433,000 on income from one of its subsidiary
companies during the six months ended June 30, 2009. There was no provision for income taxes
during the six months ended June 30, 2008.
35
Franklin Credit Management Corporation (FCMC)
As a result of the Restructuring and the corporate reorganization that took effect December
19, 2008, FCMC, the Companys servicing entity within the Franklin group of companies has positive
net worth and 30% of its equity free from the pledges to the Bank. At June 30, 2009, FCMC had
total assets of $29.7 million and had stockholders equity of $19.2 million. At December 31, 2008,
FCMCs total assets amounted to $40.4 million and its stockholders equity was $15.7 million. FCMC
recognized net income of approximately $2.2 million and $3.5 million, respectively, for the three
and six months ended June 30, 2009, principally from servicing for the Bank and Bosco loans and other real estate
owned. The net income recognized during the three months ended March 31, 2009 was principally the
result of servicing for its sister companies the portfolio of loans and real estate owned. The
inter-company servicing revenues allocated to FCMC during the first quarter of 2009 were based
principally on the servicing contract entered into as part of the Restructuring, which became
effective on March 31, 2009, and internal company allocations of operating expenses. Inter-company
allocations and cash servicing revenues received from the Bank during the second quarter of 2009
have been eliminated in deriving the Consolidated Financial Statements of Franklin. Servicing
revenues were eliminated in the Consolidated Financial Statements of Franklin due to the accounting
treatment for the transfer of the trust certificates as a financing under SFAS 140.
From the perspective of the Company and its stockholders, the Restructuring provided for the
release of thirty percent of the equity in FCMC, 10 percent of which has been transferred to the
Companys principal stockholder, Thomas J. Axon, from the Companys pledges to the Bank in respect
of its Legacy Credit Agreement. The Legacy Credit Agreement also provides for the possibility of
release of up to an additional fifty percent (of which a maximum of ten percent would go to Thomas
J. Axon), based upon the Banks receipt of the agreed amounts of net remittances from the
Portfolio, summarized below (the Net Remittances), from March 31, 2009, the effective date of the
Legacy Credit Agreement (the Legacy Effective Date), through the term of the Legacy Credit
Agreement pursuant to and in accordance with the schedule of collection levels identified in the
Legacy Credit Agreement. See Managements Discussion and Analysis Borrowings Restructuring
Agreements with Lead Lending Bank.
During the twelve month period ending March 31, 2010, the minimum amount of Net Remittances,
referred to as Level I, to achieve release of an additional 10% of pledged equity interest, from
70% to 60%, is $225 million. During the three months ended June 30, 2009, the Company collected
in aggregate approximately $93.8 million from loans and real estate owned serviced for the Bank, of
which $30.6 million was received from contractual loan purchase rights. Net Remittances, as
defined in the Legacy Credit Agreement essentially as collections less expenses incurred by the
Bank related to the Companys servicing of the Banks loans and real estate owned, amounted to
approximately $78.9 million. The balance of Net Remittances remaining, over the next nine month
period ending March 31, 2010, therefore, to meet the Level I minimum is approximately $146 million.
Liquidity and Capital Resources
General
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 June 30, 2009, we had one limited source of external funding to meet our liquidity
requirements, in addition to the cash flow provided from servicing loans and performing due
diligence services for third parties, dividends from preferred stock in a REIT owned by a
Huntington subsidiary, and borrower payments of interest and principal from the notes receivable
held for sale and the mortgage loans collateralizing the owned trust certificates. See
Borrowings.
We are required to submit all payments we receive from our preferred stock investment, the
trust certificates that we own and the notes receivable held for sale to a lockbox, which is
controlled by the Bank. Substantially all amounts submitted to the lockbox are used to pay down
amounts outstanding under our Legacy Credit Agreement with the Bank. If the cash flow received
from servicing loans and
performing due diligence services for third parties is insufficient to sustain the cost of
operating our business, and we have fully utilized our licensing credit facilities, there is no
guarantee that we can continue in business.
36
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.
As of June 30, 2009, all of the Companys unrestricted cash was invested in money market accounts
and certificates of deposits held at The Huntington National Bank.
Cost of Funds. As of June 30, 2009, we had total borrowings of $1.37 billion, of which $1.33
billion was subject to the Restructuring Agreements and $40.2 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 June 30, 2009 is secured by the REIT Securities, trust certificates, cash and
certain other assets, including 70% of the equity interests in FCMC and 100% of the equity
interests in all other direct and indirect subsidiaries of Franklin Holding. However, the assets
of our servicing subsidiary, FCMC (other than an office condominium unit, on which the Bank has a
first lien, and cash collateral held as security under the Licensing Credit Agreement, on which the
Bank has a second priority lien), are not pledged as collateral for such debt. At June 30, 2009,
the interest rates on our term debt (Notes payable) were as follows:
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Agreements |
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FHLB 30-day LIBOR advance rate plus 2.60% |
|
$ |
|
|
|
$ |
16,278,232 |
|
FHLB 30-day LIBOR advance rate plus 2.75% |
|
|
|
|
|
|
23,970,620 |
|
LIBOR plus 2.25% |
|
|
787,485,730 |
|
|
|
|
|
LIBOR plus 2.75% |
|
|
409,681,025 |
|
|
|
|
|
15.00% |
|
|
129,746,339 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,326,913,094 |
|
|
$ |
40,248,852 |
|
|
|
|
|
|
|
|
At June 30, 2009, the weighted average interest rate on term debt was 3.92%.
Cash Flow from Operating, Investing and Financing Activities
Liquidity represents our ability to obtain adequate funding to meet our financial obligations.
As of June 30, 2009, our liquidity position is affected principally by the collections from
servicing the trust certificates and the dividends received from the preferred stock investment in
the Huntington subsidiary REIT.
At June 30, 2009, we had cash and cash equivalents of $13.3 million compared with $21.4
million at December 31, 2008. Restricted cash of $1.3 million and $27.9 million at June 30, 2009
and December 31, 2008, respectively, was restricted under our credit agreements and lockbox
facility with our bank.
37
Until March 31, 2009, substantially all of our assets were invested in our portfolios of notes
receivable, loans held for investment, OREO and loans held for sale. Primary sources of our cash
flow for operating and investing activities had been borrowings under our various credit
facilities, collections
of interest and principal on notes receivable and loans held for investment and proceeds from
sales of notes and OREO properties, and from time to time, sales of our newly originated loans that
generally were held for investment. Primary uses of cash included purchases of notes receivable,
originations of loans and for operating expenses. We relied significantly upon our lender and the
other banks that participated in the loans made to us by our lender to provide the funds necessary
for the purchase of notes receivable portfolios and the origination of loans. We ceased to acquire
and originate loans in November 2007, and under the terms of the Restructuring Agreements, we are
expressly prohibited from acquiring or originating mortgage loans or other assets without the prior
consent of the bank.
Net
cash provided by operating activities was $63.7 million during the six months ended June 30,
2009, compared with cash used of $5.2 million during the six months ended June 30, 2008. The
increase in cash provided by operating activities during the six months ended June 30, 2009 was
primarily due to principal collections on mortgage loans held for sale and proceeds from the sale
of real estate held for sale during the period. These increases were only partially offset by
decreases in accounts payable and accrued expenses during the period.
Net cash provided by investing activities was $62.5 million in the six months ended June 30,
2009, compared to $110.9 million of cash provided in the six months ended June 30, 2008. The
decrease in cash provided by investing activities during the six months ended June 30, 2009 was due
primarily to reductions in principal collections on both notes receivable and loans held for
investment, which was partially offset by an increase in the use of restricted cash, which was used
to settle the cash related to the Restructuring.
Net cash used in financing activities was $134.3 million during the six months ended June 30,
2009, compared to $109.4 million used during the six months ended June 30, 2008. The increase in
cash used in financing activities during the six months ended June 30, 2009 was due to the pay-down
of the nonrecourse liability, which was the result of the principal collections on mortgage loans
held for sale and proceeds from the sale of real estate held for sale, which was partially offset
by reductions in principal payments of notes payable.
Borrowings
As of June 30, 2009, the Company owed an aggregate of $1.37 billion under the Restructuring
Agreements and one remaining credit facility excluded from the Restructuring Agreements (the
Unrestructured Debt) with our lender. These borrowings are shown in the Companys financial
statements as Notes payable (referred to as term loans herein).
Restructuring 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 and prior credit and warehousing agreements
with Huntington. As of June 30, 2009, all of our borrowings, with the exception of the
Unrestructured Debt in the amount of $40.2 million, are governed by credit agreements entered into
as part of the Restructuring Agreements. For information regarding all credit agreements in place
prior to March 31, 2009 please see the Companys Form 10-K for the year 2008.
38
March 2009 Restructuring
On March 31, 2009, Franklin Holding, and certain of its direct and indirect subsidiaries,
including Franklin Credit Management Corporation (FCMC) and Tribeca Lending Corp. (Tribeca),
entered into a series of agreements (collectively, the Restructuring Agreements) with The
Huntington National Bank
(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 Companys portfolio of subprime mortgages was transferred to Huntington
Capital Financing, LLC (the REIT), a real estate investment trust wholly-owned by the Bank (the
Restructuring). In connection with the Restructuring, the Company has engaged in a number of
cost savings measures that should result in improved financial performance of FCMC.
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 Franklin forbearance agreement entered into with the Bank in
December 2007 and subsequent amendments thereto (the Franklin Forbearance Agreement) and the
Franklin 2004 master credit agreement. On April 20, 2009, Franklin Holding, and certain of its
direct and indirect subsidiaries, including FCMC and Franklin Credit Asset Corporation (Franklin
Asset) entered into an amendment of the Franklin Forbearance Agreement and Franklin 2004 master
credit agreement (the Amendment) with the Bank relating to the Unrestructured Debt. Under the
Amendment, the forbearance period with respect to the Unrestructured Debt was extended from May 15,
2009 to June 30, 2009, and the Bank agreed to forbear, during the forbearance period, 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. On August 10, 2009, the forbearance period with respect to the balance of approximately
$40.2 million of Unrestructured Debt was further extended from June 30, 2009 through and including
September 30, 2009. During the forbearance period, the Bank, absent the occurrence and continuance
of a forbearance default other than an Identified Forbearance Default, will not 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. In addition, FCMC is not obligated to
the Bank with respect to the Unrestructured Debt and that any references to FCMC in the Franklin
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, the Bank, with notice, could call an event of default under the Legacy
Credit Agreement. The Licensing Credit Agreement and the Servicing Agreement do not include
cross-default provisions that would be triggered by such a default. The Banks recourse in respect
of the Legacy Credit Agreement is limited to the assets and stock of Franklin Holdings
subsidiaries, excluding the assets of FCMC (except for a first lien of the Bank on an office
condominium unit and a second priority lien of the Bank on cash collateral held as security under
the Licensing Credit Agreement) and the unpledged portion of FCMCs stock.
The Franklin forbearance agreement and the Tribeca forbearance agreement (together, the
Forbearance Agreements) that had been entered into with the Bank were, except for approximately
$40.2 million of the Companys debt, replaced effective March 31, 2009 by the Restructuring
Agreements.
In conjunction with the Restructuring, and at the request of the Bank, effective March 31,
2009, the Company exercised its right to terminate two non-amortizing fixed-rate interest-rate
swaps with the Bank, one with a notional amount of $150 million and the other with a notional
amount of $240 million. The total termination fee for cancellation of the swaps was $8.2 million,
which is payable only to the extent cash is available under the waterfall provisions of the Legacy
Credit Agreement, and only after the first $837.9 million of debt has been paid in full. The
Company has other non-amortizing fixed-rate interest-rate swaps with the Bank, which were not
terminated.
39
On June 25, 2009, also in connection with the Restructuring and with the approval of the
holders of more than two-thirds of the shares of Franklin Holding entitled to vote at an election
of directors, the Certificate of Incorporation of FCMC was amended to delete the provision, adopted
pursuant to Section 251(g) of the General Corporation Law of the State of Delaware in connection
with the Companys December 2008 corporate reorganization, that had required the approval of the
stockholders of Franklin Holding in addition to the stockholders of FCMC for any action or
transaction, other than the election or removal of directors, that would require the approval of
the stockholders of FCMC.
Background. The severe deterioration in the U.S. housing market and the nearly complete
shutdown of the mortgage credit market for borrowers without excellent credit histories, and more
recently the severe economic slowdown and rapidly rising unemployment, severely degraded the value
of the portfolio of subprime 1-4 family mortgage loans and assets acquired and originated by the
Company (the Portfolio), particularly its second-lien mortgage loans, and resulted in increased
delinquencies, provisions for loan losses and operating losses, and decreased cash flows, during
the past two years. The impact on the Companys operations has been severe, and has included:
|
|
|
a substantial and growing shortfall in cash collections from the Portfolio relative
to the Companys debt service obligations owed to the Bank; |
|
|
|
a substantial and growing shortfall in the value of the Companys assets, relative
to the amounts owed to the Bank under the facility agreements for the Companys
outstanding debt with the Bank; |
|
|
|
concern by potential servicing customers and other constituencies over the continued
viability of the Company in its current form, including the viability of FCMC, the
Companys servicing platform; |
|
|
|
concern that the Bank was increasingly likely to: |
|
|
|
cease granting necessary waivers and forbearances with respect to
Company defaults under the Companys various credit facilities; and |
|
|
|
|
declare a default with respect to the credit facilities and foreclose
on the assets of the Company, substantially all of which were pledged to the Bank,
especially in light of communications from the Bank indicating that it was seeking
greater and more direct control over the collection guidelines related to the
assets in the Portfolio and may have needed to foreclose on the Portfolio if it
were not able to consummate a transaction like the Restructuring in which it was
able to gain control over the Portfolio while keeping the credit facilities
outstanding. Such a foreclosure would have left no value for the Companys
stockholders. |
In order to address these issues, accommodate the concerns of the Bank to take advantage of
what the Company believes is the best option to preserve value for its stockholders, the Company
negotiated and entered into the Restructuring, which was approved by the Companys Board of
Directors.
Summary. Key attributes of the Restructuring, as they relate to the Companys legacy
indebtedness to the Bank include:
|
|
|
in exchange for the transfer of that part of the Portfolio underlying the Bank Trust
Certificates (as defined below), the Company received common membership interests and
Class C preferred membership interests in the REIT having in the aggregate a value
intended to approximate the fair market value of that portion of the Portfolio transferred to the
Bank, which as of March 31, 2009 was approximately $477.3 million (the REIT
Securities). The preferred membership interests have a liquidation value of $100,000
per unit and an annual cumulative dividend rate of 9% of such liquidation value. Any
dividends on the preferred shares shall be payable only out of funds legally available
for the payment thereof;
|
40
|
|
|
principal and interest payments in respect of the Legacy Credit Agreement are only
due and payable to the extent of cash flow of the Company, which cash flow would
include dividends declared and paid in respect of the REIT Securities or any other
assets of the Company, other than the retained interest in FCMC (as discussed below);
and |
|
|
|
the Banks recourse in respect of the Legacy Credit Agreement is limited to the
assets and stock of Franklin Holdings subsidiaries, excluding the assets of FCMC
(except for a first lien of the Bank on an office condominium unit and a second
priority lien of the Bank on cash collateral held as security under the Licensing
Credit Agreement) and a portion of FCMCs stock, representing not less than twenty
percent and not more than seventy percent of FCMCs common equity, based on the amounts
received by the Bank from the cash collections from FCMCs servicing of the Portfolio
as discussed in more detail below. Under the terms and conditions of the Restructuring
Agreements, FCMC may pay dividends or other distributions in respect of its capital
stock if FCMC delivers to the Bank a payment to be applied to outstanding obligations
under the Legacy Credit Agreement equal to seventy percent of any such distribution or
dividend that FCMC elects to make or declare, which percentage share may be reduced to
twenty percent based upon the Banks receipt of the agreed amounts of net remittances
from the Portfolio summarized below. |
From the perspective of the Company and its stockholders, the Restructuring accomplished a
number of overarching objectives, including:
|
|
|
release of thirty percent of the equity in FCMC, 10 percent of which has been
transferred to the Companys principal stockholder, Thomas J. Axon, from the Companys
pledges to the Bank in respect of its Legacy Credit Agreement, with the possibility of
release of up to an additional fifty percent (of which a maximum of ten percent would
go to Thomas J. Axon), based upon the Banks receipt of the agreed amounts of net
remittances from the Portfolio, summarized below (the Net Remittances), from March
31, 2009, the effective date of the Legacy Credit Agreement (the Legacy Effective
Date), through the term of the Legacy Credit Agreement; the Bank shall reduce its
interest in the equity in FCMC, as collateral, in accordance with the following
collection levels: |
|
|
|
|
|
|
|
|
|
|
Minimum Amount |
|
|
|
|
|
|
of Net Remittances |
|
|
|
|
Level |
|
(Minimum Level Amount) |
|
Time Period |
|
Release of Equity Interests |
Level 1
|
|
$ |
225 million
|
|
1 year from the Legacy Effective Date
|
|
10% (70% reduces to 60%) |
Level 2
|
|
$ |
475 million
|
|
3 years from the Legacy Effective Date
|
|
10% (60% reduces to 50%) |
Level 3
|
|
$ |
575 million
|
|
No time period specified
|
|
10% (50% reduces to 40%) |
Level 4
|
|
$ |
650 million
|
|
No time period specified
|
|
10% (40% reduces to 30%) |
Level 5
|
|
$ |
750 million
|
|
No time period specified
|
|
10% (30% reduces to 20%) |
41
provided, however, (i) if Net Remittances do not reach the minimum Level 1 amount prior to the
first anniversary of the Legacy Effective Date, but reach the minimum Level 2 amount prior to the
third anniversary of the Legacy Effective Date, the Bank shall retain, as collateral, 55% of the
FCMC equity instead of 50%, as currently scheduled, and any subsequent reductions in the amount of
FCMC equity pledged to the Bank shall be 10% smaller than the reductions currently scheduled; and provided
further that (ii) if Net Remittances do not reach the minimum Level 1 amount prior to the first
anniversary of the Legacy Effective Date and do not reach the minimum Level 2 amount prior to the
third anniversary of the Legacy Effective Date, then the schedule for release of the equity
interests in FCMC currently pledged to the Bank shall be as follows: (x) upon attaining the minimum
Level 3 amount, the pledged equity interests in FCMC shall reduce 25% (from 70% to 45%); (y) upon
attaining the minimum Level 4 amount, the pledged equity interests in FCMC shall reduce an
additional 10% (from 45% to 35%), and (z) upon attaining the minimum Level 5 amount, the pledged
equity interests in FCMC shall reduce an additional 10% (from 35% to 25%);
|
|
|
entry into a servicing agreement enabling the Company to receive fee income in
respect of its continued servicing of the transferred Portfolio; and |
|
|
|
entry into amended credit facilities in the aggregate principal amount of $13.5
million, including a $5 million facility for working capital and to support various
servicer licenses, a $2 million revolving facility and a $6.5 million letter of credit
facility to support various servicer licenses. |
Among the most significant costs of accomplishing these objectives were:
|
|
|
the possible transfer of ownership of a portion of FCMC, including a minimum of
twenty percent and a maximum of seventy percent, to the Bank at maturity of the
Companys Legacy Credit Agreement with the Bank, unless further extended if the Company
is not otherwise able to satisfy or refinance the Legacy Credit Agreement prior to
maturity; |
|
|
|
the transfer of ten percent of ownership of FCMC to Franklin Holdings principal
stockholder, Thomas J. Axon, as the cost of obtaining certain guarantees and pledges
required by the Bank as a condition of the restructuring, subject to increase to an
additional ten percent should the pledge of common shares of FCMC by Franklin Holding
to the Bank be reduced upon the attainment by FCMC of certain net collection targets
set by the Bank with respect to the Portfolio; |
|
|
|
entry into a service agreement with respect to FCMCs continued servicing of the
Portfolio that allows the Bank to terminate such servicing and, concomitantly, FCMCs
fee income from servicing the Portfolio; and |
|
|
|
in part as a result of a tax basis transfer, the Company may incur significant
income tax liabilities at termination of the Legacy Credit Agreement, liquidation of
the Company or any of its direct or indirect subsidiary companies, or certain other
Company events such as a de facto liquidation. The amount of any tax liability that
the Company may incur is not certain since any such calculations need to be performed
on a company by company basis and are influenced by a number of factors including, but
not limited to, the ability to use prior year losses and future results of operations. |
42
Restructuring Agreements. In connection with the Restructuring, the Company and its
subsidiaries have:
1. Transferred substantially all of the Portfolio in exchange for the REIT Securities.
Pursuant to the terms of a Transfer and Assignment Agreement, certain subsidiaries of the
Company (the Franklin Transferring Entities) transferred approximately 83% of the Portfolio to a
newly formed Delaware statutory trust (New Trust) in exchange for the following trust
certificates (collectively, the Trust Certificates):
|
(a) |
|
an undivided 100% interest of the Banks portion of consumer mortgage
loans (the Bank Consumer Loan Certificate); |
|
|
(b) |
|
an undivided 100% interest in the Banks portion of consumer REO assets
(the Bank Consumer REO Certificate, and together with the Bank Consumer Loan
Certificate, the Bank Trust Certificates); |
|
|
(c) |
|
an undivided 100% interest in the portion of consumer mortgage loan
assets allocated to the M&I Marshall & Ilsley Bank (M&I) and BOS (USA) Inc.
(BOS) (M&I and BOS collectively, the Participants) represented by two
certificates (the Participants Consumer Loan Certificates); and |
|
|
(d) |
|
an undivided 100% interest in Participants portion of the consumer REO
assets represented by two certificates (the Participants Consumer REO
Certificates, and together with the Participants Consumer Loan Certificate, the
Participants Trust Certificates). |
The Bank Trust Certificates represent approximately 83.27961% of the assets transferred to New
Trust considered in the aggregate (such portion, the Bank Contributed Assets) and the
Participants Trust Certificates represent approximately 16.72039% of the assets transferred to New
Trust considered in the aggregate.
Pursuant to the Transfer and Assignment Agreement, the Franklin Transferring Entities made
certain representations, warranties and covenants to New Trust related to the Portfolio. To the
extent any Franklin Selling Entity breaches any such representations, warranties and covenants and
the Franklin Transferring Entities are unable to cure such breach, New Trust has recourse against
the Franklin Transferring Entities (provided that recourse to FCMC is limited solely to instances
whereby FCMC transferred REO property FCMC did not own) (the Reacquisition Parties). In such
instances, the Reacquisition Parties are obligated to repurchase any mortgage loan or REO property
and indemnify New Trust, the Bank, the Administrator (as defined below), the holders of the Trust
Certificates and the trustees to the trust agreement. The Franklin Transferring Entities provided
representations and warranties, including but not limited to correct information, loans have not
been modified, loans are in force, valid lien, compliance with laws, licensing, enforceability of
the mortgage loans, hazardous substances, fraud, and insurance coverage. In addition, the Franklin
Transferring Entities agreed to provide certain collateral documents for each mortgage loan and REO
property transferred (except to the extent any collateral deficiency was disclosed to New Trust).
To the extent any collateral deficiency exists with respect to such mortgage loan or REO property
and the Franklin Transferring Entities do not cure such deficiency, the Reacquisition Parties shall
be obligated to repurchase such mortgage loan. In connection with the reacquisition of any asset,
the price to be paid by the Reacquisition Parties for such asset (the Reacquisition Price) shall
be as agreed upon by the Administrator and the applicable Reacquisition Party; provided, however,
should such parties not promptly come to agreement, the Reacquisition Price shall be as determined
by the Administrator in good faith using its sole discretion.
The subsidiaries then transferred the Trust Certificates to a newly formed Delaware limited
liability company, Franklin Asset, LLC, in exchange for membership interests in Franklin Asset,
LLC. Franklin Asset, LLC then contributed the Bank Trust Certificates to a newly formed Delaware
limited liability company, Franklin Asset Merger Sub, LLC, in exchange for membership interests in
Franklin Asset Merger Sub, LLC (Franklin Asset, LLC retained the Participant Trust Certificates).
Franklin Merger Sub, LLC merged with and into a Huntington National Bank wholly-owned subsidiary of the
REIT (REIT Sub) and Franklin Asset, LLC received the REIT Securities having in the aggregate a
value equal to the estimated fair market value of the loans underlying the Bank Trust Certificates,
which as of March 31, 2009 was approximately $477.3 million, in exchange for its membership
interests in Franklin Asset Merger Sub, LLC. The preferred REIT Securities have a liquidation
value of $100,000 per unit and an annual cumulative dividend rate of 9% of such liquidation value.
If there is a reacquisition required to be made by the Reacquisition Parties under the Transfer and
Assignment Agreement, Franklin Asset, LLC will return such number of Class C Preferred Shares of
Huntington Capital Financing Stock that is equal in value to the Reacquisition Price (as defined in
the Transfer and Assignment Agreement).
43
2. Amended and restated substantially all of its outstanding debt.
Pursuant to the terms of the Amended and Restated Credit Agreement (Legacy) (the Legacy
Credit Agreement), the Company amended and restated substantially all of its indebtedness
currently subject to a certain First Amended and Restated Forbearance Agreement and Amendment to
Credit Agreements, dated December 19, 2008, and a certain First Amended and Restated Tribeca
Forbearance Agreement and Amendment to Credit Agreements, dated December 19, 2008 (the Forbearance
Agreements). As more fully described below, pursuant to the terms of the Legacy Credit Agreement,
(1) the Participant Trust Certificates were collaterally assigned to the Bank as collateral for the
loans as modified pursuant to the terms of the Legacy Credit Agreement (the Restructured Loans);
(2) all net collections received by New Trust in connection with the portion of the Portfolio
represented by the Bank Trust Certificates will be paid to the REIT Sub or its subsidiaries; (3)
the REIT Securities were pledged to the Bank as collateral for the Restructured Loans; (4) Franklin
Holding pledged seventy percent (70%) of the common equity in FCMC to the Bank as collateral for
the Restructured Loans; and (5) Franklin Holding and FCMC were released from existing guarantees of
the Restructured Loans, including Franklin Holdings pledge of 100% of the outstanding shares of
FCMC, in exchange for providing certain limited recourse guarantees relating to the Restructured
Loans, wherein the Bank agreed to exercise only limited recourse against property encumbered by the
pledge agreement (the Pledged Collateral) made in connection with the Legacy Credit Agreement,
provided Franklin Holding and FCMC, respectively, any designee acting under the authority thereof
or any subsidiary of either Franklin Holding or FCMC did not (i) commission any act fraud or
material misrepresentation in respect of the Pledged Collateral; (ii) divert, embezzle or misapply
proceeds, funds or money and/or other property relating in any way to the Pledged Collateral; (iii)
breach any covenant under Article IV of the Pledge Agreement entered into by Franklin Holding; or
(iv) conduct any business activities to perform diligence services, to service mortgage Loans or
REO Properties or any related activities, directly or indirectly, other than by FCMC and Franklin
Credit Loan Servicing, LLC.
The terms of the Legacy Credit Agreement vary according to the three tranches of loans covered
by the Legacy Credit Agreement. Tranche A includes outstanding debt in the approximate principal
sum of $837.9 million bearing interest at a per annum rate equal to one-month LIBOR plus 2.25% per
annum, payable monthly in arrears on the outstanding principal balance of the related advances.
Tranche B includes outstanding debt in the approximate principal sum of $407.5 million bearing
interest at a per annum rate equal to one-month LIBOR plus 2.75% per annum, payable monthly in
arrears on the outstanding principal balance of the related advances. Tranche C includes
outstanding debt in the approximate principal sum of $125 million bearing interest at a per annum
rate equal to 15%, payable monthly in arrears on the outstanding principal balance of the related
advances. In the event of a default, the applicable interest rate will increase to 5% over the
rate otherwise applicable to the respective tranche.
44
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 immediately following the Restructuring.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding |
|
|
Outstanding |
|
|
|
|
|
|
|
|
|
Principal Amount |
|
|
Principal Amount |
|
|
Applicable Interest |
|
|
Required Monthly |
|
|
|
at March 31, 2009 |
|
|
at June 30, 2009 |
|
|
Margin Over LIBOR |
|
|
Principal |
|
|
|
Franklin Asset/Tribeca |
|
|
Franklin Asset/Tribeca |
|
|
(basis points) |
|
|
Amortization |
|
Tranche A |
|
$ |
838,000,000 |
|
|
$ |
787,000,000 |
|
|
|
225 |
|
|
None |
|
Tranche B |
|
$ |
407,000,000 |
|
|
$ |
410,000,000 |
|
|
|
275 |
|
|
None |
|
Tranche C |
|
$ |
125,000,000 |
|
|
$ |
130,000,000 |
|
|
|
N/A |
(1) |
|
None |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrestructured Debt |
|
$ |
41,000,000 |
|
|
$ |
40,000,000 |
|
|
|
|
(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 the
one-month London Interbank Offered Rate (LIBOR) plus applicable margins. In accordance with the
terms of the Restructuring Agreements, interest due and unpaid on Tranche B and Tranche C debt is
accrued and added to the debt balance.
All cash available for each tranche shall be used to pay cash interest to the extent cash is
available, and any accrued interest for which cash is not available will be added to the principal
sum of such tranche. Cash payments on each tranche will be made from: (i) any cash or other assets
of the borrowers (Tribeca and certain subsidiaries of Tribeca and Franklin Credit Asset
Corporation), (ii) dividends and distributions on the REIT Securities, all of which shall be
applied as a non pro rata distribution solely to the Banks pro rata share of such tranche (until
paid in full), (iii) all distributions made by New Trust on the Participant Trust Certificates, all
of which shall be applied as a non pro rata distribution to the Participants pro rata shares of
such tranche (until paid in full), and (iv) from any proceeds received from any other collateral,
which will be applied pursuant to a waterfall provision described more fully in the Legacy Credit
Agreement. The borrowers will not be required to make scheduled principal payments, provided that
all amounts received by any borrower in excess of accrued interest, whether from collateral or
otherwise, shall be applied to reduce the principal sum. All remaining principal and interest will
be due and payable at maturity of the Legacy Credit Agreement on March 31, 2012. Based on the
current cash flows described above, it is not expected that that the Company will be able to repay
remaining principal and interest due on March 31, 2012. Under such circumstances, the Bank would
have all available rights and remedies under the Legacy Credit Agreement.
In accordance with the terms of the Legacy Credit Agreement, during the three months ended
June 30, 2009, the outstanding balance of Tranche B increased from $407.0 million to $409.7 million
and the outstanding balance of Tranche C increased from $125.0 million to $129.7 million, due to
the addition of accrued interest for which cash was not available to pay the interest due.
The Legacy Credit Agreement contains representations, warranties, covenants and events of
default (The Legacy Credit Agreement Defaults) that are customary in transactions similar to the
restructuring. Some, but not all, of the Legacy Credit Agreement defaults (including defaults
under provisions relating to enforceability, bankruptcy, maintenance of collateral and lien
positions, and certain negative covenants typical for agreements of this nature) will create an
event of default under the Licensing Credit Agreement and the Servicing Agreement (as defined
below). Under such circumstances,
the Bank would be entitled to foreclose on all of the assets of the Company pledged to the
Bank, including on Franklin Holdings pledge of 70% of the stock of FCMC.
45
The Legacy Credit Agreement is secured by a first priority security interest in (i) the REIT
Shares; (ii) the Participant Trust Certificates; (iii) an undivided 16.72039% interest in the
consumer mortgage loans and REO properties transferred to New Trust; (iv) 70% of all equity
interests in FCMC, and 100% equity interests in all other direct and indirect subsidiaries of
Franklin Holding, pledged by Franklin Holding (subject to partial releases of such equity interests
under Cumulative Collective Targets under the terms relating to the Servicing Agreement); (v) all
amounts owing pursuant to any deposit account or securities account of any Company entities bound
to the Legacy Credit Agreement (other than Franklin Holding), (vi) a first mortgage in real
property interests at 6 Harrison Street, Unit 6, New York, New York; (vii) all monies owing to any
borrower from any taxing authority; (viii) any commercial tort or other claim of FCMC, Holding, or
any borrower, including FCMCs right, title and interest in claims and actions with respect to
certain loan purchase agreements and other interactions of FCMC with various entities engaged in
the secondary mortgage market; (ix) certain real property interests of FCMC in respect to the
proprietary leases under the existing Forbearance Agreements if not transferred to New Trust; (x) a
second priority lien on cash collateral held as security for the Licensing Credit Agreement to
FCMC; and (xi) any monies, funds or sums due or received by any Borrower in respect of any program
sponsored by any Governmental Authority, any federal program, federal agency or quasi-governmental
agency, including without limitation any fees received, directly or indirectly, under the U.S.
Treasury Homeowners Affordability and Stability Plan. Any security agreement, acknowledgement or
other agreement in respect of a lien or encumbrance on any asset of New Trust shall be non-recourse
in nature and shall permit New Trust to distribute, without qualification, 83.27961% of all net
collections received by New Trust to the REIT Sub and its subsidiaries irrespective of any event or
condition in respect of the Legacy Credit Agreement.
All collections received by New Trust, provided that an event of default has not occurred and
is continuing, shall go first to the payment of monthly servicing fees, which shall be paid one
month in advance, under the Servicing Agreement and then to (i) Administration Fees, expenses and
costs (if any), (ii) pro rata to the owner trustee, certificate trustee and each custodian for any
due and unpaid fees and expenses of such trustee and/or custodian, and (iii) to the pro-rata
ownership of the Trust Certificates. All amounts received pursuant to the Participants Trust
Certificates shall be distributed pursuant to the applicable Waterfall provisions.
3. Entered into an amended and restated credit agreement to fund FCMCs licensing obligations and
working capital.
Franklin Holding and FCMC have entered into an Amended and Restated Credit Agreement
(Licensing) (the Licensing Credit Agreement) which includes a credit limit of $13,500,000,
composed of a secured (i) revolving line of credit (Revolving Facility) up to the principal
amount outstanding at any time of $2,000,000, (ii) up to the aggregate stated amount outstanding at
any time for letters of credit of $6,500,000, and (iii) a draw credit facility (Draw Facility) up
to the principal amount outstanding at any time of $5,000,000. The Revolving Facility and the
letters of credit shall be used to assure that all state licensing requirements of FCMC are met and
to pay approved expenses of the Company. The Draw Facility shall be used to provide for working
capital of FCMC, and amounts drawn and repaid under this facility cannot be reborrowed. As of June
30, 2009, $1.0 million was outstanding under the revolving facility and $6.2 million of letters of
credit for various state licensing purposes were outstanding.
46
The principal sum shall be due and payable in full on the earlier of the date that the
Licensing Agreement is due and payable in full pursuant to the terms of this facility, whether by
acceleration or otherwise, or at maturity on March 31, 2010. Advances under the Revolving Facility
shall bear interest at
the one-month reserve adjusted LIBOR Rate plus a margin of 8%. Advances under the Draw
Facility shall bear interest at the one-month reserve adjusted LIBOR Rate plus a margin of 6%. The
requirement to make monthly payments of interest accrued on the Advances under the Revolving
Facility and the Draw Facility commenced on April 30, 2009. After any default, all advances and
letters of credit shall bear interest at 5% in excess of the rate of interest then in effect.
The Licensing Credit Agreement contains warranties, representations, covenants and events of
default that are customary in transactions similar to the restructuring.
The Licensing Credit Agreement is secured by (i) a first priority security interest in FCMCs
cash equivalents in a controlled account maintained at the Bank in an amount satisfactory to the
Bank, but not less than $8,500,000, (ii) blanket existing lien on all personal property of FCMC,
(iii) a second mortgage in real property interests at 6 Harrison Street, Unit 6, New York, New
York, (iv) a first Mortgage in certain real property interests at 350 Albany Street, New
York, New York; and (v) any monies or sums due FCMC in respect of any program sponsored by any
Governmental Authority, including without limitation any fees received, directly or indirectly,
under the U.S. Treasury Homeowners Affordability and Stability Plan.
The Draw Facility is guaranteed by Thomas J. Axon, Chairman of the Board of Directors and a
principal stockholder of the Company. Mr. Axons Guaranty shall be secured by a first priority and
exclusive lien on commercial real estate, at a loan to value ratio satisfactory to the Bank. In
consideration for his guaranty, the Bank and the Companys Audit Committee each has consented to
the payment to Mr. Axon equal to 10% of FCMCs common shares, which has been paid, subject to a
further payment of up to an additional 10% in FCMCs common shares should the pledge of common
shares of FCMC by Franklin Holding to the Bank be reduced upon attainment by FCMC of certain net
collection targets set by the Bank with respect to the Portfolio.
4. Entered into a servicing agreement with the New Trust.
The servicing agreement (the Servicing Agreement) governs the servicing by FCMC, as the
servicer (the Servicer) of the Portfolio transferred to New Trust. New Trust and/or the Bank as
the administrator of New Trust (the Administrator) have significant control over all aspects of
the servicing of the Portfolio based on (i) a majority of the Servicers actions or Servicers
utilization of any subservicer or subcontractor is contingent on the Servicer receiving explicit
instructions or consent from New Trust or Administrator, (ii) compliance with work rules and an
approval matrix provided by the Bank and (iii) monthly meetings between New Trust and the Servicer.
All collections by the Servicer are remitted to a collection account and controlled through
the Banks lockbox account. The Administrator shall transfer the collection amounts from the
lockbox account to a certificate account whereby the funds shall flow through the trust agreements
Waterfall as described above. The Servicers servicing fees and servicing advance reimbursements
are paid in advance provided an event of default has not occurred. If an event of default has
occurred, the Servicers servicing fees and servicing advances are the third remittance in the
Waterfall, following remittances for payment of Administrator, custodian and trustee fees.
New Trusts indemnification obligation to the Servicer is limited to the collections from the
Portfolio. In addition, the Servicer will be indemnified by New Trust only for a breach of
corporate representations and warranties or if the Administrator forces the Servicer to take an
action that results in a loss to the Servicer.
47
The Servicer is required to maintain net worth of approximately $7.6 million and net income
before taxes of $800,000 for the most recent twelve-month period or an event of default will be
deemed to have occurred. In addition to typical servicer events of default and the defaults listed
above, the Servicing Agreement contains the following events of default: (i) certain defaults under
the Legacy Loan Agreement would trigger an event of default under the Servicing Agreement, (ii)
failure to adopt a servicing action plan as directed by the Administrator would trigger an event of
default, (iii) any event of default under the Licensing Loan Agreement would trigger an event of
default under the Servicing Agreement, and (iv) failure of Servicer to satisfy certain gross
collection targets if determined to be the result of a failed servicing practice as determined by
the Bank per a servicing audit would trigger an event of default.
The Servicing Agreement shall have an initial term of three years which may be extended for
one or two additional one year periods at the sole discretion of New Trust. During the first year
of the agreement, Servicer shall receive a termination fee for each loan to the extent the
servicing is terminated by the Bank for any reason other than a default under the terms of the
servicing agreement. During the term of the servicing agreement, FCMC may not enter into any other
third-party servicing agreements to service any other assets that could likely impair its ability
to service the Portfolio without the consent of the Bank, which cannot be unreasonably withheld.
Interest Rate Caps
On September 5, 2007, the Company purchased a $200 million (notional amount) one-month LIBOR
cap with a strike price of 5.75% at a price of $102,000, and on September 6, 2007, the Company
purchased a $400 million (notional amount) one-month LIBOR cap with a strike price of 6.0% at a
price of $90,000. Both cap agreements expired on September 30, 2008.
Interest Rate Swaps
Effective February 27, 2008, the Company entered into $725 million (notional amount) of
fixed-rate interest-rate swaps in order to effectively stabilize the future interest payments on a
portion of its interest-sensitive borrowings. The fixed-rate swaps are for periods ranging from
one to four years, are non-amortizing, and are in effect for the respective full terms of each swap
agreement. These swaps effectively fixed the Companys interest costs on a portion of its
borrowings regardless of increases or decreases in the one-month LIBOR. The interest-rate swaps
were executed with the Companys lead lending bank and are for the following terms: $220 million
notional amount for one year at a fixed rate of 2.62%; $390 million notional amount for two-years
at a fixed rate of 2.79%; $70 million notional amount for three years at a fixed rate of 3.11%;
and, $45 million notional amount for four years at a fixed rate of 3.43%.
Effective April 30, 2008, the Company entered into an additional $275 million (notional
amount) of fixed-rate interest-rate swaps in order to effectively stabilize the future interest
payments on a portion of its interest-sensitive borrowings. The fixed-rate swaps are for a period
of three years, are non-amortizing, and at a fixed rate of 3.47%. These swaps reduced further the
Companys exposure to future increases in interest costs on a portion of its borrowings due to
increases in one-month LIBOR during the remaining terms of the swap agreements. The interest-rate
swaps were executed with the Companys lead lending bank.
48
Under these swap agreements, the Company makes interest payments to its lead lending bank at
fixed rates and receives interest payments from its lead lending bank on the same notional amounts
at variable rates based on LIBOR. Effective December 28, 2007, the Company pays interest on its
interest-sensitive borrowings, principally based on one-month LIBOR plus applicable margins.
Accordingly,
Franklin established a fixed rate, plus applicable margins, on $1.0 billion of its borrowings,
which at the time of entering into the swap agreements ranged from one year to four years. On
March 5, 2009, $220 million of one-year interest-rate swaps matured, which have not been replaced.
In conjunction with the Restructuring, and at the request of the Bank, effective March 31,
2009, the Company exercised its right to terminate two non-amortizing fixed-rate interest-rate
swaps with the Bank, one with a notional amount of $150 million and the other with a notional
amount of $240 million. The total termination fee for cancellation of the swaps was $8.2 million,
which is payable only to the extent cash is available under the waterfall provisions of the Legacy
Credit Agreement, and only after the $787.5 million remaining at June 30, 2009 of Tranche A debt
owed to the Bank has been paid in full.
The unamortized balance of derivative losses in the amount of $24.0 million, as a result of
the Company electing to cease hedge accounting as of December 31, 2008, is amortized to interest
expense over time. The amount amortized during the three and six months ended June 30, 2009 was
$3.7 million and $7.6 million, respectively, which increased our interest expense.
The following table presents the notional and fair value amounts of the interest-rate swaps
outstanding at June 30, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notional Amount |
|
Term |
|
|
Maturity Date |
|
|
Fixed Rate |
|
|
Estimated Fair Value* |
|
$ |
275,000,000 |
|
3 years |
|
March 5, 2011 |
|
|
3.47 |
% |
|
$ |
(10,714,131 |
) |
|
70,000,000 |
|
3 years |
|
March 5, 2011 |
|
|
3.11 |
% |
|
|
(2,220,380 |
) |
|
45,000,000 |
|
4 years |
|
March 5, 2012 |
|
|
3.43 |
% |
|
|
(1,836,731 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
390,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(14,771,242 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Determined in accordance with SFAS 157 based upon a Level 2 valuation methodology. |
49
|
|
|
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
principally the impact of interest rate changes, real estate, delinquency and default risk of the
loans that we service for third parties, and changes in corporate tax rates. A material change in
these risks or rates 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
earned on its assets and the interest paid on its borrowings. Most of the Companys assets,
consisting primarily of REIT Securities (principally preferred REIT stock) and Trust Certificates
(collateralized by mortgage loans and real estate owned properties) generate fixed returns and have
remaining contractual maturities in excess of five years. Our borrowings are based on one-month
LIBOR. In most cases, the interest income from our assets will respond more slowly to interest
rate fluctuations than the cost of our borrowings, creating a mismatch between interest earned on
our interest-yielding assets and the interest paid on our borrowings. Consequently, changes in
interest rates, particularly short-term interest rates, will significantly impact our net interest
income and, therefore, net income. Our borrowings bear interest at rates that fluctuate with the
one-month LIBOR rate. We currently use 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. Based on approximately $848.4
million of unhedged interest-rate sensitive borrowings outstanding at June 30, 2009, a 1%
instantaneous and sustained increase in the one-month LIBOR rate could increase quarterly interest
expense by as much as approximately $2.1 million, pre-tax, during the remaining terms of the swap
agreements, which would negatively impact our quarterly after-tax net income or loss. Due to our
liability-sensitive balance sheet, increases in these rates will decrease both net income, or
increase net loss, and the market value of our net assets. If the Companys existing swap
contracts expire, and are not renewed, a 1% instantaneous and sustained increase in the one-month
LIBOR rate would have the effect of increasing quarterly interest expense by approximately $3.1
million, pre-tax. See Managements Discussion and Analysis Borrowings.
50
|
|
|
ITEM 4T. |
|
CONTROLS AND PROCEDURES |
Disclosure Controls and Procedures
The Companys management, with the participation of the Companys Chief 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 Chief 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 June 30, 2009 that have materially affected, or are reasonably likely to
materially affect, such internal control over financial reporting.
51
PART II
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 or service for others, none of which is individually or in the aggregate material. In
addition, because we originated, acquired and service mortgage loans throughout the country, we
must comply and were required to comply with various state and federal lending 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.
Not required because the Company is a Smaller Reporting Company.
|
|
|
ITEM 2. |
|
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS |
None.
|
|
|
ITEM 3. |
|
DEFAULTS UPON SENIOR SECURITIES |
None.
|
|
|
ITEM 4. |
|
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS |
On June 17, 2009, at the Companys annual meeting, the stockholders voted to elect two
Directors to the Board of Directors and to amend the Certificate of Incorporation of FCMC to delete
the provision, adopted pursuant to Section 251(g) of the General Corporation Law of the State of
Delaware in connection with the Companys December 2008 corporate reorganization, that requires the
approval of the stockholders of Franklin Holding in addition to the stockholders of FCMC for any
action or transaction, other than the election or removal of directors, that would require the
approval of the stockholders of FCMC. However, at the annual meeting, the stockholders did not
ratify the appointment of Deloitte & Touche LLP as the Companys independent registered public
accountants for the fiscal year ending December 31, 2009.
Election of Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director |
|
For |
|
|
Withhold |
|
|
Abstain |
|
|
Not Voted |
|
|
Total |
|
Alexander Gordon Jardin |
|
|
6,778,059 |
|
|
|
200 |
|
|
|
588,152 |
|
|
|
658,884 |
|
|
|
8,025,295 |
|
William F. Sullivan |
|
|
6,778,059 |
|
|
|
200 |
|
|
|
588,152 |
|
|
|
658,884 |
|
|
|
8,025,295 |
|
Certificate of Incorporation of FCMC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For |
|
Against |
|
|
Abstain |
|
|
Not Voted |
|
|
Total |
|
6,808,566 |
|
|
501,683 |
|
|
|
56,160 |
|
|
|
658,886 |
|
|
|
8,025,295 |
|
52
Independent Registered Public Accountants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For |
|
Against |
|
|
Abstain |
|
|
Not Voted |
|
|
Total |
|
3,492,909 |
|
|
484,562 |
|
|
|
3,388,938 |
|
|
|
658,886 |
|
|
|
8,025,295 |
|
|
|
|
ITEM 5. |
|
OTHER INFORMATION |
Effective with the opening of stock market trading on April 22, 2009, the Companys common
stock has been quoted on the OTC Bulletin Board under the trading symbol FCMC.OB. In May 2009,
the Companys trading symbol was changed to FCMCE.OB to reflect its delinquency in not filing its
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009 in a timely manner.
However, we met the OTC Bulletin Board filing requirements on June 19, 2009, and on June 23, 2009,
the OTC Bulletin Board removed from our trading symbol the fifth character E. Our common stock
was delisted from The Nasdaq Capital Market as of November 3, 2008, and has been quoted under the
stock symbol FCMC.PK on the Pink Sheets, a centralized quotation service for over-the-counter
securities, until April 22, 2009. Prior to November 3, 2008, the Companys common stock traded on
The Nasdaq Capital Market.
On August 10, 2009, Franklin Holding, and certain of its direct and indirect subsidiaries,
including Franklin Asset (but not FCMC), entered into a second amendment to the Franklin
Forbearance Agreement and Franklin 2004 master credit agreement (the Second Amendment) with the
Bank relating to approximately $40.2 million of the Companys indebtedness to the Bank (the
Unrestructured Debt), which had been the remaining legacy indebtedness to the Bank not
restructured on March 31, 2009. FCMC, which is not a party to the Second Amendment, is not
obligated to the Bank with respect to the Unrestructured Debt.
Under the Second Amendment, the forbearance period with respect to the Unrestructured Debt has
been extended from June 30, 2009, through and including September 30, 2009, and the Bank has agreed
to forbear, during the forbearance period, 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. In particular, during the forbearance
period, the Bank, absent the occurrence and continuance of a forbearance default other than an
Identified Forbearance Default, will not 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.
Upon expiration of the forbearance period, in the event that the Unrestructured Debt with the
Bank remains outstanding, the Bank, with notice, could call an event of default under the Legacy
Credit Agreement. The Licensing Credit Agreement and the Servicing Agreement do not include
cross-default provisions that would be triggered by such a default. The Banks recourse in respect
of the Legacy Credit Agreement is limited to the assets and stock of Franklin Holdings
subsidiaries, excluding the assets of FCMC (except for a first lien of the Bank on an office
condominium unit and a second priority lien of the Bank on cash collateral held as security under
the Licensing Credit Agreement) and the unpledged portion of FCMCs stock.
53
|
|
|
|
|
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. |
|
|
|
|
|
10.100
|
* |
|
|
Amendment No. 2 to First Amended and Restated Forbearance
Agreement and Amendment to Credit Agreements, dated as of
August 10, 2009, by and among the Registrant, Franklin
Credit Asset Corporation, Flow 2006 F Corp., FCMC 2006 M
Corp., FCMC 2006 K Corp. and The Huntington National Bank. |
|
|
|
|
|
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. |
54
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
|
|
August 14, 2009 |
By: |
/s/ ALEXANDER GORDON JARDIN
|
|
|
|
Alexander Gordon Jardin
Chief Executive Officer
(Principal Executive Officer) |
|
|
|
|
|
August 14, 2009 |
By: |
/s/ PAUL D. COLASONO
|
|
|
|
Paul D. Colasono
Executive Vice President and Chief Financial Officer
(Principal Financial Officer) |
|
55
EXHIBIT INDEX
|
|
|
|
|
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. |
|
|
|
|
|
10.100
|
* |
|
|
Amendment No. 2 to First Amended and Restated Forbearance
Agreement and Amendment to Credit Agreements, dated as of
August 10, 2009, by and among the Registrant, Franklin
Credit Asset Corporation, Flow 2006 F Corp., FCMC 2006 M
Corp., FCMC 2006 K Corp. and The Huntington National Bank. |
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|
|
|
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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. |
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|
|
|
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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. |
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|
|
|
|
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. |
56