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NOTE PURCHASE AGREEMENT
FFCA FRANCHISE LOAN OWNER TRUST 1998-1
FRANCHISE LOAN BACKED NOTES SERIES 1998-1
among
FFCA FRANCHISE LOAN OWNER TRUST 1998-1,
as Issuer,
FFCA ACQUISITION CORPORATION,
and
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor
and
XXXXXX XXXXXXX SECURITIZATION FUNDING INC.
as Purchaser
dated as of August 14, 1998
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms...........................................1
Section 1.02. Other Definitional Provisions...................................2
ARTICLE II
COMMITMENT, COMMITMENT FEE; CLOSING AND FUTURE SERIES OF NOTES
Section 2.01. Commitment......................................................3
Section 2.02. Commitment Fee..................................................3
Section 2.03. Closing.........................................................3
Section 2.04. Commitment to Purchase Future Series............................4
ARTICLE III
TRANSFER DATES AND COLLATERAL VALUE EXCESS DATES
Section 3.01. Transfer Dates and Collateral Value Excess Dates................4
ARTICLE IV
CONDITIONS PRECEDENT TO EFFECTIVENESS OF COMMITMENT
Section 4.01. Closing Subject to Conditions Precedent.........................6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ISSUER, FFCA ACQUISITION CORP. AND THE
DEPOSITOR
Section 5.01. Issuer..........................................................8
Section 5.02. Securities Act.................................................10
Section 5.03. No Fee.........................................................10
Section 5.04. Information....................................................10
Section 5.05. The Purchased Note.............................................10
Section 5.06. Use of Proceeds................................................10
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Section 5.07. FFCA Acquisition Corp. and the Depositor.......................11
Section 5.08. Taxes, etc.....................................................11
Section 5.09. Financial Condition............................................11
ARTICLE VI
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
Section 6.01. Organization...................................................11
Section 6.02. Authority, etc.................................................11
Section 6.03. Securities Act.................................................12
Section 6.04. Investment Company Act.........................................12
Section 6.05. Conflicts With Law.............................................12
Section 6.06. Conflicts With Agreements, etc.................................12
ARTICLE VII
COVENANTS OF THE ISSUER, FFCA ACQUISITION CORP. AND THE DEPOSITOR
Section 7.01. Information from the Issuer....................................12
Section 7.02. Access to Information..........................................13
Section 7.03. Ownership and Security Interests; Further Assurances...........13
Section 7.04. Covenants......................................................13
Section 7.05. Amendments.....................................................14
Section 7.06. With Respect to the Exempt Status of the Purchased Note........14
Section 7.07. Option to Purchase Future Series...............................14
ARTICLE VIII
ADDITIONAL COVENANTS
Section 8.01. Legal Conditions to Closing....................................14
Section 8.02. Expenses.......................................................15
Section 8.03. Mutual Obligations.............................................15
Section 8.04. Restrictions on Transfer.......................................15
Section 8.05. Confidentiality................................................15
Section 8.06. Determination of LIBOR.........................................15
Section 8.07. Opinions.......................................................15
ARTICLE IX
INDEMNIFICATION
Section 9.01. Indemnification of Purchaser...................................16
Section 9.02. Procedure and Defense..........................................16
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ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments....................................................17
Section 10.02. Notices.......................................................17
Section 10.03. No Waiver; Remedies...........................................17
Section 10.04. Binding Effect; Assignability.................................17
Section 10.05. Provision of Documents and Information........................18
Section 10.06. Governing Law; Jurisdiction...................................18
Section 10.07. No Proceedings................................................18
Section 10.08. Execution in Counterparts.....................................18
Section 10.09. Reserved......................................................19
Section 10.10. Survival......................................................19
Section 10.11. Tax Characterization..........................................19
Schedule I - Purchaser Account Information...................................I-1
Schedule II - Information for Notices........................................I-1
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NOTE PURCHASE AGREEMENT ("NOTE PURCHASE AGREEMENT") dated as
of August 14, 1998, among FFCA Loan Trust 1998-1 (the "ISSUER"), FFCA
Acquisition Corporation ("FFCA ACQUISITION CORP."), FFCA Loan Warehouse
Corporation (the "DEPOSITOR"), and Xxxxxx Xxxxxxx Securitization Funding Inc.
("MSSFI," and in its capacity as Purchaser hereunder, the "PURCHASER").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. Capitalized terms used
herein without definition shall have the meanings set forth in the Indenture and
the Sale and Servicing Agreement (as defined below), as applicable.
Additionally, the following terms shall have the following meanings:
"CLOSING" shall have the meaning set forth in Section 2.03.
"CLOSING DATE" shall have the meaning set forth in Section
2.03.
"COMMITMENT" means the commitment of the Purchaser to Purchase
Additional Note Principal Balances pursuant to Section 2.01.
"COMMITMENT AMOUNT" means an amount equal to $300,000,000.
"COMMITMENT FEE" means $150,000.
"CONFIDENTIAL INFORMATION" means the Basic Documents, the
Purchased Note, all marketing information, financial information, terms sheets
and other information concerning the transactions contemplated thereby, prepared
by the Purchaser and its Affiliates.
"DEFAULT" shall have the meaning provided in Section 3.01.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934.
"GOVERNMENTAL ACTIONS" means any and all consents, approvals,
permits, orders, authorizations, waivers, exceptions, variances, exemptions or
licenses of, or registrations, declarations or filings with, any Governmental
Authority required under any Governmental Rules.
"GOVERNMENTAL AUTHORITY" means the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
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"GOVERNMENTAL RULES" means any and all laws, statutes, codes,
rules, regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"INCREASE" means the increase of the Note Principal Balance
through the purchase by the Purchaser of Additional Note Principal Balances sold
pursuant to the terms hereof.
"INDEMNIFIED PARTY" means the Purchaser and any of its
officers, directors, employees, agents, representatives, assignees and
Affiliates and any Person who controls the Purchaser or its Affiliates within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act.
"INDENTURE" means the Indenture dated as of August 14, 1998
between the Issuer, as Issuer and LaSalle National Bank, as Indenture Trustee.
"INVESTMENT COMPANY ACT" shall have the meaning provided in
Section 5.01(i).
"LIEN" means, with respect to any asset, (a) any mortgage,
lien, pledge, charge, security interest, hypothecation, option or encumbrance of
any kind in respect of such asset or (b) the interest of a vendor or lessor
under any conditional sale agreement, financing lease or other title retention
agreement relating to such asset.
"PURCHASED NOTE" means the Series 1998-1 Note issued by the
Issuer pursuant to the 1998-1 Indenture Supplement.
"PURCHASER" means the Purchaser and its permitted successors
and assigns.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing
Agreement dated as of August 14, 1998 among FFCA Franchise Loan Owner Trust
1998-1, as Issuer, FFCA Acquisition Corp., as Loan Originator FFCA, as Servicer
and LaSalle National Bank, as Indenture Trustee, as the same may be amended,
modified or supplemented from time to time.
"THIRD PARTY CLAIM" has the meaning specified in Section 9.02
hereof.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Note Purchase Agreement shall
have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.01, and accounting terms partially defined in Section 1.01 to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein shall
control.
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(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Note Purchase Agreement shall refer to this
Note Purchase Agreement as a whole and not to any particular provision of this
Note Purchase Agreement; and Section, subsection, Schedule and Exhibit
references contained in this Note Purchase Agreement are references to Sections,
subsections, and Exhibits in or to this Note Purchase Agreement unless otherwise
specified.
ARTICLE II
COMMITMENT, COMMITMENT FEE; CLOSING AND FUTURE SERIES OF NOTES
SECTION 2.01. COMMITMENT.
(a) On each Transfer Date and Collateral Value Excess Date
during the Revolving Period, to the extent that the Outstanding Note Principal
Balance (after giving effect to the proposed Increase) is less than the
Committed Amount, and subject to the terms and conditions hereof and in
accordance with the other Basic Documents, the Purchaser agrees to fund such
Increases in the Purchased Note subject to the terms and conditions and in
reliance upon the covenants, representations and warranties set forth herein and
in the other Basic Documents
(b) On each Transfer Date and Collateral Value Excess Date
during the Revolving Period, to the extent that the Note Principal Balance is
equal to or greater than the Committed Amount, and subject to the terms and
conditions hereof and the other Basic Documents, the Purchaser may, in its sole
discretion, upon the request of the Issuer, fund Increases in the Purchased Note
subject to the terms and conditions and in reliance upon the representations,
warranties and covenants set forth herein and in the other Basic Documents;
PROVIDED, that in no event shall the Note Principal Balance (after giving effect
to such Increase) exceed the Maximum Note Principal Balance.
(c) The Commitment Amount may be irrevocably reduced in whole
or in part by the Issuer upon 5 Business Days prior written notice to the
Purchaser, with a copy to the Indenture Trustee.
SECTION 2.02. COMMITMENT FEE. On or prior to the initial
Transfer Date, FFCA Acquisition Corp. shall pay or cause to be paid to the
Purchaser the Commitment Fee. The Commitment Fee will be payable by wire
transfer in immediately available funds, to the account of the Purchaser in
accordance with the instructions set forth on Schedule I hereto.
SECTION 2.03. CLOSING.
The closing (the "CLOSING") of the execution of the Basic
Documents and Purchased Note shall take place at 10:00 a.m. at the offices of
Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, on
August 14, 1998, or if the conditions to closing set forth in Article IV of this
Note Purchase Agreement shall not have been satisfied or waived by such date, as
soon as practicable after such conditions shall have been satisfied or
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waived, or at such other time, date and place as the parties shall agree upon
(the date of the Closing being referred to herein as the "CLOSING DATE").
SECTION 2.04. COMMITMENT TO PURCHASE FUTURE SERIES.
For a period ending 365 days after the date hereof, the
Purchaser covenants and agrees to, at the request of the Issuer, purchase from
the Issuer the Notes of each Series hereafter issued on terms and conditions
substantially similar to those set forth herein with respect to the Purchased
Notes.
ARTICLE III
TRANSFER DATES AND COLLATERAL VALUE EXCESS DATES
SECTION 3.01. TRANSFER DATES AND COLLATERAL VALUE EXCESS
DATES.
(a) Subject to the conditions and terms set forth herein and
in Section 2.06(a) of the Sale and Servicing Agreement with respect to each
Transfer Date and Section 2.06(b) of the Sale and Servicing Agreement with
respect to each Collateral Value Excess Date, the Issuer may request, and the
Purchaser agrees to purchase Additional Note Principal Balances from the Issuer
from time to time in accordance with, and upon the satisfaction, as of the
applicable Transfer Date or Collateral Value Excess Date, as the case may be, of
each of the following additional conditions:
(i) With respect to each Transfer Date, each condition set
forth in Section 2.06(a) of the Sale and Servicing Agreement shall have been
satisfied and with respect to each Collateral Value Excess Date, each condition
set forth in Section 2.06(b) of the Sale and Servicing Agreement shall have been
satisfied;
(ii) Each of the representations and warranties of the Issuer,
FFCA Acquisition Corp. and the Depositor made in the Basic Documents shall be
true and correct as of such date (except to the extent they expressly relate to
an earlier or later time);
(iii) The Issuer, FFCA Acquisition Corp. and the Depositor
shall be in compliance with all of their respective covenants contained in the
Basic Documents and the Purchased Note;
(iv) No Event of Default under the Sale and Servicing
Agreement or the Indenture and no other event that would constitute an "event of
default" (however defined) under any other Basic Document or the Purchased Note
or that with the giving of notice or passage of time or both could become an
"event of default" (however defined) under any other Basic Document or the
Purchased Note (each, a "DEFAULT") shall have occurred or shall be occurring;
and
(v) With respect to each Transfer Date, the Purchaser shall
have received evidence reasonably satisfactory to it of the completion of all
recordings, registrations, and filings as may be necessary or, in the reasonable
opinion of the Purchaser, desirable to perfect or
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evidence the assignments required to be effected on such Transfer Date
including, without limitation, the assignment of the Loans and the proceeds
thereof required to be assigned pursuant to the related LPA Assignment, S&SA
Assignment and the Indenture.
(vi) With respect to the first Transfer Date only, counsel to
the Servicer shall have delivered to the Purchaser favorable opinions, dated as
of such Transfer Date to the effect that (i) the Indenture Trustee has a first
priority perfected security interest in all cash held in the Distribution and
Transfer Obligation Accounts and (ii) the Indenture Trustee has a first priority
perfected security interest in all Permitted Investments held in the Transfer
Obligation Account, in each case satisfactory in form and substance to the
Purchaser and its counsel.
(vii) With respect to the first Transfer Date only, for all
Loans required or elected to be insured by the Environmental Policy and sold to
the Trust on such date, a copy of the executed Environmental Policy and
endorsements thereto, in form and substance satisfactory to the Initial
Noteholder and its counsel.
(b) The Purchaser, shall determine in its reasonable
discretion whether each of the above conditions have been met and its
determination shall be binding on the parties hereto.
(c) (i) The price paid by the Purchaser on each Transfer Date
for the related Additional Note Principal Balance shall be equal to 100% of such
Additional Note Principal Balance, and shall be remitted not later than 3:00
p.m. New York City time on the Transfer Date by wire transfer of immediately
available funds to the Advance Account.
(ii) The price paid by the Purchaser on each
Collateral Value Excess Date for the related Additional Note
Principal Balance shall be equal to 100% of the amount of Additional Note
Principal Balance requested by the Issuer, which amount shall not exceed the
Collateral Value Excess as of such Collateral Value Excess Date, and shall be
remitted not later than 3:00 p.m. New York City time on the Collateral Value
Excess Date by wire transfer of immediately available funds to the Advance
Account.
(d) The Purchaser shall record on the schedule attached to the
Purchased Note, the date and amount of any Additional Note Principal Balance
purchased by it; PROVIDED, that failure to make such recordation on such
schedule or any error in such schedule shall not adversely affect the
Purchaser's rights with respect to its Note Principal Balance and its right to
receive interest payments in respect of the Note Principal Balance actually
held. Absent manifest error, the Note Principal Balance of the Purchased Note as
set forth in the Purchaser's records shall be binding upon the parties hereto,
notwithstanding any notation or record made or kept by any other party hereto.
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ARTICLE IV
CONDITIONS PRECEDENT TO
EFFECTIVENESS OF COMMITMENT
SECTION 4.01 CLOSING SUBJECT TO CONDITIONS PRECEDENT. The
effectiveness of the Commitment hereunder is subject to the satisfaction at the
time of the Closing of the following conditions (any or all of which may be
waived by the Purchaser in its sole discretion):
(a) PERFORMANCE BY THE ISSUER, FFCA ACQUISITION CORP. AND THE
DEPOSITOR. All the terms, covenants, agreements and conditions of the Basic
Documents to be complied with and performed by the Issuer, FFCA Acquisition
Corp. and the Depositor on or before the Closing Date shall have been complied
with and performed in all material respects.
(b) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of the Issuer, FFCA Acquisition Corp. and the
Depositor made in the Basic Documents shall be true and correct in all material
respects as of the Closing Date (except to the extent they expressly relate to
an earlier or later time).
(c) OFFICER'S CERTIFICATE. The Purchaser shall have received
in form and substance reasonably satisfactory to the Purchaser an Officer's
Certificate from FFCA Acquisition Corp. and the Depositor and a certificate of
an Authorized Officer of the Issuer, dated the Closing Date, certifying to the
satisfaction of the conditions set forth in the preceding paragraphs (a) and
(b).
(d) OPINIONS OF COUNSEL TO THE ISSUER, FFCA ACQUISITION CORP.,
SERVICER AND DEPOSITOR. Counsel to the Issuer, FFCA Acquisition Corp., Servicer
and Depositor shall have delivered to the Purchaser favorable opinions, dated as
of the Closing Date and reasonably satisfactory in form and substance to the
Purchaser and its counsel.
(e) OPINIONS OF COUNSEL TO THE INDENTURE TRUSTEE. Counsel to
the Indenture Trustee shall have delivered to the Purchaser a favorable opinion,
dated as of the Closing Date and reasonably satisfactory in form and substance
to the Purchaser and its counsel.
(f) OPINIONS OF COUNSEL TO THE OWNER TRUSTEE. Delaware counsel
to the Owner Trustee of the Issuer shall have delivered to the Purchaser
favorable opinions regarding the formation, existence and standing of the Issuer
and of the Issuer's execution, authorization and delivery of each of the Basic
Documents to which it is a party and such other matters as the Purchaser may
reasonably request, dated as of the Closing Date and reasonably satisfactory in
form and substance to the Purchaser and its counsel.
(g) FILINGS AND RECORDATIONS. The Purchaser shall have
received evidence reasonably satisfactory to it of (i) the completion of all
recordings, registrations, and filings as may be necessary or, in the reasonable
opinion of the Purchaser, desirable to perfect or evidence the assignment by
FFCA Acquisition Corp. to the Depositor of FFCA Acquisition Corp.'s ownership
interest in the Trust Estate including, without limitation, the Loans and the
proceeds thereof, (ii) the completion of all recordings, registrations and
filings as may be necessary or, in
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the reasonable opinion of the Purchaser, desirable to perfect or evidence the
assignment by the Depositor to the Issuer of the Depositor's ownership interest
in the Trust Estate including, without limitation, the Loans and the proceeds
thereof and (iii) the completion of all recordings, registrations, and filings
as may be necessary or, in the reasonable opinion of the Purchaser, desirable to
perfect or evidence the grant of a first priority perfected security interest in
the Issuer's ownership interest in the Trust Estate including, without
limitation, the Loans, in favor of the Indenture Trustee, subject to no Liens
prior to the Lien of the Indenture.
(h) DOCUMENTS. The Purchaser shall have received a duly
executed counterpart of each of the Basic Documents, the Purchased Note and each
and every document or certification delivered by any party in connection with
any of the Basic Documents or the Purchased Note, and each such document shall
be in full force and effect.
(i) ACTIONS OR PROCEEDINGS. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, any of the
transactions contemplated by the Basic Documents, the Purchased Note and the
documents related thereto in any material respect.
(j) APPROVALS AND CONSENTS. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Basic Documents, the Purchased Note and the documents related thereto
shall have been obtained or made.
(k) ACCOUNTS. The Purchaser shall have received evidence
reasonably satisfactory to it that each Trust Account has each been established
in accordance with the terms of the Sale and Servicing Agreement.
(l) FEES AND EXPENSES. The Commitment Fee and such other fees
and expenses payable by the Issuer, FFCA Acquisition Corp., and the Depositor
pursuant to Section 8.02(b) shall have been paid.
(m) OTHER DOCUMENTS. The Issuer, FFCA Acquisition Corp. and
the Depositor shall have furnished to the Purchaser such other opinions,
information, certificates and documents as the Purchaser may reasonably request.
(n) PROCEEDINGS IN CONTEMPLATION OF SALE OF PURCHASED NOTE.
All actions and proceedings undertaken by the Issuer, FFCA Acquisition Corp. and
the Depositor in connection with the issuance and sale of the Purchased Note as
herein contemplated shall be reasonably satisfactory in all respects to the
Purchaser and its counsel.
If any condition specified in this Section 4.01 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Purchaser by notice to FFCA Acquisition Corp. at any time at
or prior to the Closing Date, and the Purchaser shall incur no liability as a
result of such termination.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ISSUER, FFCA ACQUISITION CORP.
AND THE DEPOSITOR
The Issuer, FFCA Acquisition Corp. and the Depositor hereby
jointly and severally make the following representations and warranties to the
Purchaser, as of the Closing Date, and as of each Transfer Date and Collateral
Value Excess Date, and the Purchaser shall be deemed to have relied on such
representations and warranties in making (or committing to make) purchases of
Additional Note Principal Balances on each Transfer Date and Collateral Value
Excess Date:
SECTION 5.01. ISSUER.
(a) The Issuer has been duly organized and is validly existing
and in good standing as a business trust under the laws of the State of
Delaware, with requisite trust power and authority to own its properties and to
transact the business in which it is now engaged, and is duly qualified to do
business and is in good standing (or is exempt from such requirements) in each
State of the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the Issuer or any adverse effect on the interests of
the Purchaser.
(b) The issuance, sale, assignment and conveyance of the
Purchased Note, the performance of the Issuer's obligations under each Basic
Document to which it is a party and the consummation of the transactions therein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any Lien (other than any Lien created by the Basic Documents),
charge or encumbrance upon any of the property or assets of the Issuer or any of
its Affiliates pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it or any of its
Affiliates is bound or to which any of its property or assets is subject, nor
will such action result in any violation of the provisions of its organizational
documents or any Governmental Rule applicable to the Issuer, in each case which
could be expected to have a material adverse effect on the transactions
contemplated therein.
(c) No Governmental Action which has not been obtained is
required by or with respect to the Issuer in connection with the execution and
delivery of the Purchased Note. No Governmental Action which has not been
obtained is required by or with respect to the Issuer in connection with the
execution and delivery of any of the Basic Documents to which the Issuer is a
party or the consummation by the Issuer of the transactions contemplated
thereby.
(d) The Issuer possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding,
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would materially and adversely affect its condition, financial or otherwise, or
its earnings, business affairs or business prospects.
(e) Each of the Basic Documents to which the Issuer is a party
has been duly authorized, executed and delivered by the Issuer and is a valid
and legally binding obligation of the Issuer, enforceable against the Issuer in
accordance with its terms, subject to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
(f) The execution, delivery and performance by the Issuer of
each of its obligations under each of the Basic Documents to which it is a party
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any agreement or instrument to which the Issuer
is a party or by which the Issuer is bound or to which any of the its properties
are subject or of any statute, order or regulation applicable to the Issuer of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Issuer or any of its properties, in each case which could
be expected to have a material adverse effect on any of the transactions
contemplated therein.
(g) The Issuer is not in violation of its organizational
documents or in default under any agreement, indenture or instrument the effect
of which violation or default would be material to the Purchaser. The Issuer is
not a party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Issuer that materially and adversely affects,
or may in the future materially and adversely affect (i) the ability of the
Issuer to perform its obligations under any of the Basic Documents to which it
is a party or (ii) the business, operations, financial condition, properties,
assets or prospects of the Issuer.
(h) There are no actions or proceedings against, or
investigations of, the Issuer pending, or, to the knowledge of the Issuer
threatened, before any Governmental Authority, court, arbitrator, administrative
agency or other tribunal (i) asserting the invalidity of any of the Basic
Documents, or (ii) seeking to prevent the issuance of the Purchased Note or the
consummation of any of the transactions contemplated by the Basic Documents or
the Purchased Note, or (iii) that, if adversely determined, could materially and
adversely affect the business, operations, financial condition, properties,
assets or prospects of the Issuer or the validity or enforceability of, or the
performance by the Issuer of its respective obligations under, any of the Basic
Documents to which it is a party or (iv) seeking to affect adversely the income
tax attributes of the Purchased Note.
(i) The Issuer is not, and neither the issuance and sale of
the Purchased Note nor the activities of the Issuer pursuant to the Basic
Documents, shall render the Issuer an "investment company" or under the
"control" of an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT").
(j) It is not necessary to qualify the Indenture under the
Trust Indenture Act of 1939, as amended.
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(k) The Issuer is solvent and has adequate capital for its
respective business and undertakings.
(l) The chief executive offices of the Issuer are located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration, telecopy number: (000) 000-0000,
telephone number (000) 000-0000.
(m) There are no contracts, agreements or understandings
between the Issuer and any Person granting such Person the right to require the
filing at any time of a registration statement under the Act with respect to the
Purchased Note.
SECTION 5.02. SECURITIES ACT. Assuming the accuracy of the
representations and warranties of and compliance with the covenants of the
Purchaser, contained herein, the sale of the Purchased Note pursuant to this
Agreement and the sale of Additional Note Principal Balances are each exempt
from the registration and prospectus delivery requirements of the Act. In the
case of each offer or sale of the Purchased Note, no form of general
solicitation or general advertising was used by the Issuer, any Affiliates of
the Issuer or any person acting on its or their behalf, including, but not
limited to, advertisements, articles, notices or other communications published
in any newspaper, magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Neither the Issuer, any Affiliates
of the Issuer nor any Person acting on its or their behalf has offered or sold,
nor will the Issuer or any Person acting on its behalf offer or sell directly or
indirectly, the Purchased Note or any other security in any manner that,
assuming the accuracy of the representations and warranties and the performance
of the covenants given by each Purchaser and compliance with the applicable
provisions of the Indenture with respect to each transfer of the Purchased Note,
would render the issuance and sale of any of the Purchased Note as contemplated
hereby a violation of Section 5 of the Act or the registration or qualification
requirements of any state securities laws, nor has any such Person authorized,
nor will it authorize, any Person to act in such manner.
SECTION 5.03. NO FEE. Neither the Issuer, FFCA Acquisition
Corp., the Depositor nor any of their Affiliates has paid or agreed to pay to
any Person any compensation for soliciting another to purchase the Purchased
Note.
SECTION 5.04. INFORMATION. The information provided pursuant
to Section 7.06(c) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 5.05. THE PURCHASED NOTE. The Purchased Note has been
duly and validly authorized, and, when executed and authenticated in accordance
with the terms of the Indenture, and delivered to and paid for in accordance
with this Note Purchase Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of the Indenture.
SECTION 5.06. USE OF PROCEEDS. No proceeds of a purchase
hereunder will be used (i) for a purpose that violates or would be inconsistent
with Regulations G, T, U or X
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promulgated by the Board of Governors of the Federal Reserve System from time to
time or (ii) to acquire any security in any transaction in violation of Section
13 or 14 of the Securities Exchange Act of 1934, as amended.
SECTION 5.07. FFCA ACQUISITION CORP. AND THE DEPOSITOR. FFCA
Acquisition Corp. and the Depositor hereby make to the Purchaser each of their
respective representations, warranties and covenants set forth in Sections 3.01,
3.02 and 3.03 of the Sale and Servicing Agreement as of the Closing Date, as of
each Transfer Date and as of each Collateral Value Excess Date (except to the
extent that any such representation, warranty or covenant is expressly made as
of another date).
SECTION 5.08. TAXES, ETC. Any taxes, fees and other charges of
Governmental Authorities applicable to the Issuer, FFCA Acquisition Corp. and
the Depositor, except for franchise or income taxes, in connection with the
execution, delivery and performance by the Issuer, FFCA Acquisition Corp. and
the Depositor of each Basic Document to which they are parties, the issuance of
the Purchased Note or otherwise applicable to the Issuer, FFCA Acquisition Corp.
or the Depositor in connection with the Trust Estate have been paid or will be
paid by the Issuer, FFCA Acquisition Corp. or the Depositor, as applicable, at
or prior to the Closing Date, Transfer Date or Collateral Value Excess Date, as
applicable, to the extent then due.
SECTION 5.09. FINANCIAL CONDITION. On the date hereof, on each
Transfer Date and on each Collateral Value Excess Date, neither the Issuer, FFCA
Acquisition Corp. nor the Depositor is insolvent or the subject of any voluntary
or involuntary bankruptcy proceeding.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PURCHASER
The Purchaser hereby makes the following representations and
warranties, as to itself, to the Issuer, FFCA Acquisition Corp. and the
Depositor on which the same may rely in entering into this Note Purchase
Agreement.
SECTION 6.01. ORGANIZATION. The Purchaser has been duly
organized and is validly existing and in good standing under the laws of the
jurisdiction of its organization with power and authority to own its properties
and to transact the business in which it is now engaged.
SECTION 6.02. AUTHORITY, ETC.. The Purchaser has all requisite
power and authority to enter into and perform its obligations under this Note
Purchase Agreement and to consummate the transactions herein contemplated. The
execution and delivery by the Purchaser of this Note Purchase Agreement and the
consummation by the Purchaser of the transactions contemplated hereby have been
duly and validly authorized by all necessary organizational action on the part
of the Purchaser. This Note Purchase Agreement has been duly and validly
executed and delivered by the Purchaser and constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, subject as to
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enforcement to bankruptcy, reorganization, insolvency, moratorium and other
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity. Neither the execution and delivery by the
Purchaser of this Note Purchase Agreement nor the consummation by the Purchaser
of any of the transactions contemplated hereby, nor the fulfillment by the
Purchaser of the terms hereof, will conflict with, or violate, result in a
breach of or constitute a default under any term or provision of the Purchaser's
organizational documents or any Governmental Rule applicable to the Purchaser.
SECTION 6.03. SECURITIES ACT. The Purchaser will acquire the
Purchased Note pursuant to this Note Purchase Agreement without a view to any
public distribution thereof, and will not offer to sell or otherwise dispose of
the Purchased Note (or any interest therein) in violation of any of the
registration requirements of the Act or any applicable state or other securities
laws, or by means of any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act). The Purchaser acknowledges
that it has no right to require the Issuer to register the Purchased Note under
the Act or any other securities law.
SECTION 6.04. INVESTMENT COMPANY ACT. The Purchaser is not
required to register as an "investment company" nor is the Purchaser controlled
by an "investment company" within the meaning of the Investment Company Act.
SECTION 6.05. CONFLICTS WITH LAW . The execution, delivery and
performance by the Purchaser of its obligations under this Note Purchase
Agreement will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or instrument to
which the Purchaser is a party or by which the Purchaser is bound or of any
statute, order or regulation applicable to the Purchaser of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Purchaser, in each case which could be expected to have a material
adverse effect on the transactions contemplated therein.
SECTION 6.06. CONFLICTS WITH AGREEMENTS, ETC. . The Purchaser
is not in violation of its organizational documents or in default under any
agreement, indenture or instrument the effect of which violation or default
would be materially adverse to the Purchaser in the performance of its
obligations or duties under any of the Basic Documents to which it is a party.
The Purchaser is not a party to, bound by or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Purchaser that
materially and adversely affects, or may in the future materially and adversely
affect the ability of the Purchaser to perform its obligations under this Note
Purchase Agreement.
ARTICLE VII
COVENANTS OF THE ISSUER, FFCA ACQUISITION CORP. AND THE DEPOSITOR
SECTION 7.01. INFORMATION FROM THE ISSUER. So long as the
Purchased Note remains outstanding, the Issuer, FFCA Acquisition Corp. and the
Depositor shall each furnish to the Purchaser:
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(a) such information (including financial information),
documents, records or reports with respect to the Trust Estate, the Loans, the
Issuer, FFCA Acquisition Corp. or the Depositor as the Purchaser may from time
to time reasonably request;
(b) as soon as possible and in any event within five Business
Days after the occurrence thereof, notice of each Event of Default under the
Sale and Servicing Agreement and the Indenture, and each Default; and
(c) promptly and in any event within 30 days after the
occurrence thereof, written notice of a change in address of the chief executive
office of the Issuer, FFCA Acquisition Corp. or the Depositor.
SECTION 7.02. ACCESS TO INFORMATION. So long as the Purchased
Note remains outstanding, each of the Issuer, FFCA Acquisition Corp. and the
Depositor shall, at any time and from time to time during regular business
hours, or at such other times upon reasonable notice to the Issuer, FFCA
Acquisition Corp. or the Depositor, as applicable, permit the Purchaser, or its
agents or representatives to:
(a) examine all books, records and documents (including
computer tapes and disks) in the possession or under the control of the Issuer,
FFCA Acquisition Corp. or the Depositor relating to the Loans as may be
requested, and
(b) visit the offices and property of the Issuer, FFCA
Acquisition Corp. and the Depositor for the purpose of examining such materials
described in clause (a) above.
Except as provided in Section 10.05, any information obtained
by the Purchaser pursuant to this Section 7.02 shall be held in confidence
unless and to the extent such information (i) has become available to the
public, (ii) is required or requested by any Governmental Authority or in any
court proceeding or (iii) is required by any Governmental Rule.
SECTION 7.03. OWNERSHIP AND SECURITY INTERESTS; FURTHER
ASSURANCES. FFCA Acquisition Corp. and the Depositor will take all action
necessary to maintain the Issuer's ownership interest in the Loans and the other
items sold pursuant to Article II of the Sale and Servicing Agreement. The
Issuer will take all action necessary to maintain the Indenture Trustee's
security interest in the Loans and the other items pledged to the Indenture
Trustee pursuant to the Indenture.
Each of the Issuer, FFCA Acquisition Corp. and the Depositor
agree to take any and all acts and to execute any and all further instruments
reasonably necessary or requested by the Purchaser to more fully effect the
purposes of this Note Purchase Agreement.
SECTION 7.04. COVENANTS. The Issuer, FFCA Acquisition Corp.
and the Depositor shall each duly observe and perform each of their respective
covenants set forth in each of the Basic Documents to which they are parties.
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SECTION 7.05. AMENDMENTS. Neither the Issuer, FFCA Acquisition
Corp. nor the Depositor shall make, or permit any Person to make, any amendment,
modification or change to, or provide any waiver under any Basic Document to
which the Issuer, FFCA Acquisition Corp. or the Depositor, as applicable, is a
party without the prior written consent of (x) the Purchaser to the extent that
such amendment, modification, change or waiver would materially and adversely
affect the interests, rights or powers of the Purchaser under any of the Basic
Documents.
SECTION 7.06. WITH RESPECT TO THE EXEMPT STATUS OF THE
PURCHASED NOTE.
(a) Neither the Issuer, FFCA Acquisition Corp. nor the
Depositor, nor any of their respective Affiliates, nor any Person acting on
their behalf will, directly or indirectly, make offers or sales of any security,
or solicit offers to buy any security, under circumstances that would require
the registration of the Purchased Note under the Securities Act.
(b) Neither the Issuer, FFCA Acquisition Corp. nor the
Depositor, nor any of their Affiliates, nor any Person acting on their behalf
will engage in any form of general solicitation or general advertising (within
the meaning of Regulation D promulgated under the Securities Act) in connection
with any offer or sale of the Purchased Note.
(c) On or prior to any Transfer Date or Collateral Value
Excess Date, the Issuer, FFCA Acquisition Corp. and the Depositor will furnish
or cause to be furnished to the Purchaser and any subsequent purchaser therefrom
of Additional Note Principal Balance, if the Purchaser or such subsequent
purchaser so request, a letter from each Person furnishing a certificate or
opinion on the Closing Date as described in Section 4.01 hereof or on or before
any such Transfer Date or Collateral Value Excess Date in which such Person
shall state that such subsequent purchaser may rely upon such original
certificate or opinion as though delivered and addressed to such subsequent
purchaser and made on and as of the Closing Date or such Transfer Date or
Collateral Value Excess Date, as the case may be, except for such exceptions set
forth in such letter as are attributable to events occurring after the Closing
Date or such Transfer Date or Collateral Value Excess Date.
SECTION 7.07. OPTION TO PURCHASE FUTURE SERIES. In
consideration of the Commitment hereunder and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
Issuer, FFCA Acquisition Corp. and the Depositor each covenant and agree to, at
the request of the Purchaser, sell to the Purchaser the Notes of each Series
hereafter issued on terms and conditions substantially similar to those set
forth herein.
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01. LEGAL CONDITIONS TO CLOSING. The parties hereto
will take all reasonable action necessary to obtain (and will cooperate with one
another in obtaining) any consent, authorization, permit, license, franchise,
order or approval of, or any exemption by, any
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Governmental Authority or any other Person, required to be obtained or made by
it in connection with any of the transactions contemplated by this Note Purchase
Agreement.
SECTION 8.02. EXPENSES.
(a) The Issuer, FFCA Acquisition Corp. and the Depositor
jointly and severally covenant that, whether or not the Closing takes place,
except as otherwise expressly provided herein, all costs and expenses incurred
in connection with this Note Purchase Agreement and the transactions
contemplated hereby shall be paid by the Issuer, FFCA Acquisition Corp. or the
Depositor.
(b) The Issuer, FFCA Acquisition Corp. and the Depositor
jointly and severally covenant to pay as and when billed by the Purchaser all of
the out-of-pocket costs and expenses incurred in connection with the
consummation and administration of the transactions contemplated hereby and in
the other Basic Documents including, without limitation, (i) all fees,
disbursements and expenses of counsel to the Purchaser in an amount not to
exceed $50,000, (ii) all fees and expenses of the Indenture Trustee and the
Owner Trustee and their counsel and (iii) all fees and expenses of the Custodian
and its counsel.
SECTION 8.03. MUTUAL OBLIGATIONS. On and after the Closing,
each party hereto will do, execute and perform all such other acts, deeds and
documents as the other party may from time to time reasonably require in order
to carry out the intent of this Note Purchase Agreement.
SECTION 8.04. RESTRICTIONS ON TRANSFER. The Purchaser agrees
that it will comply with the restrictions on transfer of the Purchased Note set
forth in the Indenture and resell the Purchased Note only in compliance with
such restrictions.
SECTION 8.05. CONFIDENTIALITY. Each of the Issuer, FFCA
Acquisition Corp. and the Depositor shall hold in confidence all Confidential
Information and shall not, at any time hereafter, use disclose or divulge any
such information, knowledge or data to any Person except:
(a) Information which at the time of disclosure is a part of the
public knowledge or literature and readily accessible;
(b) Information required to be disclosed by a Governmental
Authority; or
(c) Disclosure to a Person that has entered into a
confidentiality agreement, acceptable to the Purchaser.
SECTION 8.06. DETERMINATION OF LIBOR The Purchaser hereby
covenants to determine LIBOR in accordance with the definition thereof in the
Basic Documents.
SECTION 8.07. OPINIONS. When obtained by FFCA, FFCA shall cause
its counsel to deliver to the Purchaser, favorable opinions, dated as of the
date of such delivery to the effect that (i) the Issuer will not be treated as
an association (or publicly traded partnership) taxable as a corporation or as a
taxable mortgage pool, for federal income tax purposes, (ii) the Notes shall be
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treated as the issuance of debt instruments by FFCA or an Affiliate thereof for
federal income tax purposes, and (iii) the issuance of the Notes shall not cause
FFCA to fail to qualify as a real estate investment trust, as described in
Section 856 of the Code, in each case satisfactory in form and substance to the
Purchaser and its counsel.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. INDEMNIFICATION OF PURCHASER. Each of the
Issuer, FFCA Acquisition Corp. and the Depositor hereby agree to, jointly and
severally, indemnify and hold harmless each Indemnified Party against any and
all losses, claims, damages, liabilities, expenses or judgments (including
accounting fees and legal fees and other expenses incurred in connection with
this Note Purchase Agreement or any other Basic Document and any action, suit or
proceeding or any claim asserted) (collectively, "LOSSES"), as incurred (payable
promptly upon written request), for or on account of or arising from or in
connection with any breach of any representation, warranty or covenant of the
Issuer, FFCA Acquisition Corp. or the Depositor, as the case may be, in this
Note Purchase Agreement or any other Basic Document; provided, however, that
FFCA Acquisition Corp. shall not be so required to indemnify any such Person or
to otherwise be liable to any such Person hereunder for any losses in respect of
the performance of the Loans, the creditworthiness of the Borrowers under the
Loans, changes in the market value of the Loans or other, similar investment
risks associated with the Loans arising from a breach of any representation or
warranty set forth in Section 3.02 or 3.04 of the Sale and Servicing Agreement,
a remedy for the breach of which is provided in the Sale and Servicing
Agreement. The indemnities contained in this Section 9.01 will be in addition to
any liability which the Issuer, FFCA Acquisition Corp. or the Depositor may
otherwise have pursuant to this Note Purchase Agreement and any other Basic
Document.
SECTION 9.02. PROCEDURE AND DEFENSE. In case any action or
proceeding (including any governmental or regulatory investigation or
proceeding) shall be instituted involving any Indemnified Party in respect of
which indemnity may be sought pursuant to Section 9.01, such Indemnified Party
shall promptly notify the Issuer, FFCA Acquisition Corp. and the Depositor in
writing and, upon request of the Indemnified Party, the Issuer, FFCA Acquisition
Corp. and the Depositor shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party to
represent such Indemnified Party and any others the indemnifying party may
designate and shall pay the fees and disbursements of such counsel related to
such proceeding; provided that no failure to give such notice or deliver such
documents shall effect the rights to indemnity hereunder. In any such action or
proceeding, any Indemnified Party shall have the right to retain its own counsel
subject to the reasonable approval of the Issuer, FFCA Acquisition Corp. and the
Depositor. Expenses of counsel to any Indemnified Party shall be reimbursed by
the Issuer, FFCA Acquisition Corp. and the Depositor as they are incurred. The
Issuer, FFCA Acquisition Corp. and the Depositor shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such
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settlement or judgment. Neither the Issuer, FFCA Acquisition Corp. nor the
Depositor will, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. AMENDMENTS. No amendment or waiver of any
provision of this Note Purchase Agreement shall in any event be effective unless
the same shall be in writing and signed by all of the parties hereto, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 10.02. NOTICES. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telecopies) and mailed, telecopied (with a copy delivered by
overnight courier) or delivered, as to each party hereto, as set forth in
Schedule II hereto or as otherwise designated by such party in a written notice
to the other parties hereto. All such notices and communications shall, be
deemed effective upon receipt thereof, and, in the case of telecopies, when
receipt is confirmed by telephone.
SECTION 10.03. NO WAIVER; REMEDIES. No failure on the part of
any party hereto to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10.04. BINDING EFFECT; ASSIGNABILITY.
(a) This Note Purchase Agreement shall be binding upon and
inure to the benefit of the Issuer, FFCA Acquisition Corp., the Depositor and
the Purchaser and their respective permitted successors and assigns (including
any subsequent holders of the Purchased Note); PROVIDED, HOWEVER, neither the
Issuer, FFCA Acquisition Corp. nor the Depositor shall have any right to assign
their respective rights hereunder or interest herein (by operation of law or
otherwise) without the prior written consent of the Purchaser.
(b) The Purchaser may, in the ordinary course of its business
and in accordance with applicable law including applicable securities laws, at
any time sell to one or more Persons (each, a "PARTICIPANT"), participating
interests in all or a portion of its rights and obligations under this Note
Purchase Agreement. Notwithstanding any such sale by the Purchaser of
participating interests to a Participant, the Purchaser's rights and obligations
under this Note Purchase Agreement shall remain unchanged, the Purchaser shall
remain solely responsible for the performance thereof, and the Issuer, FFCA
Acquisition Corp. and the
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Depositor shall continue to deal solely and directly with the Purchaser in
connection with the Purchaser's rights and obligations under this Note Purchase
Agreement. Each of the Issuer and FFCA Acquisition Corp. also agrees that each
Participant shall be entitled to the benefits of Article IX hereof; PROVIDED,
however, that all amounts payable by the Issuer, FFCA Acquisition Corp. or the
Depositor to the Participant shall be limited to the amounts which would have
been payable directly to the Purchaser with respect to such participating
interest had the Purchaser, rather than the participant, held such participating
interest.
(c) This Note Purchase Agreement shall create and constitute
the continuing obligation of the parties hereto in accordance with its terms,
and shall remain in full force and effect until such time as all amounts payable
with respect to the Purchased Note shall have been paid in full.
SECTION 10.05. PROVISION OF DOCUMENTS AND INFORMATION. Each of
the Issuer, FFCA Acquisition Corp. and the Depositor acknowledges and agrees
that the Purchaser is permitted to provide to any subsequent Purchaser,
permitted assignees and Participants, opinions, certificates, documents and
other information relating to the Issuer, FFCA Acquisition Corp., the Depositor
and the Loans delivered to the Purchaser pursuant to this Note Purchase
Agreement.
SECTION 10.06. GOVERNING LAW; JURISDICTION. THIS NOTE PURCHASE
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH
OF THE PARTIES TO THIS NOTE PURCHASE AGREEMENT HEREBY AGREES TO THE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF
THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 10.07. NO PROCEEDINGS.
Until the date that is one year and one day after the last day
on which any amount is outstanding under this Note Purchase Agreement, FFCA
Acquisition Corp., the Depositor and the Purchaser hereby covenant and agree
that they will not institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law.
SECTION 10.08. EXECUTION IN COUNTERPARTS. This Note Purchase
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.
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SECTION 10.09. RESERVED.
SECTION 10.10. SURVIVAL. All representations, warranties,
covenants, guaranties and indemnifications contained in this Note Purchase
Agreement and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the sale, transfer or repayment
of the Purchased Note.
SECTION 10.11. TAX CHARACTERIZATION. Each party to this Note
Purchase Agreement (a) acknowledges and agrees that it is the intent of the
parties to this Note Purchase Agreement that for all purposes, including
federal, state and local income, single business and franchise tax purposes, the
Purchased Note will be treated as evidence of indebtedness secured by the Loans
and proceeds thereof and the trust created under the Indenture will not be
characterized as an association (or publicly traded partnership) taxable as a
corporation, (b) agrees to treat the Purchased Note for federal, state and local
income, single business and franchise tax purposes as indebtedness and (c)
agrees that the provisions of all Basic Documents shall be construed to further
these intentions of the parties.
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IN WITNESS WHEREOF, the parties have caused this Note Purchase
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
FFCA FRANCHISE LOAN OWNER TRUST
1998-1, as Issuer
By: WILMINGTON TRUST COMPANY,
----------------------------------
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FFCA ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
XXXXXX XXXXXXX SECURITIZATION FUNDING INC.,
as Purchaser
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ACCEPTED AND AGREED
LASALLE NATIONAL BANK, as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
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SCHEDULE I
PURCHASER ACCOUNT INFORMATION
Citibank: ABA Routing number: 000000000.
For the Account of MSSFI: Account number: 00000000.
I-1
SCHEDULE II
INFORMATION FOR NOTICES
1. if to the Issuer:
FFCA Franchise Loan Owner Trust 1998-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
telecopy number: (000) 000-0000
telephone number: (000) 000-0000
2. if to FFCA Acquisition Corp.:
FFCA Acquisition Corporation
The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
telecopy number: (000) 000-0000
telephone number: (000) 000-0000
3. if to the Depositor:
FFCA Loan Warehouse Corporation
The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
telecopy number: (000) 000-0000
telephone number: (000) 000-0000
II-1
4. if to the Purchaser:
Xxxxxx Xxxxxxx Securitization Funding Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
telecopy number: (000) 000-0000
telephone number: (000) 000-0000
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