Exhibit 99.03
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AMENDED AND RESTATED 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIZATION FUNDING INC.
as Purchaser
dated as of January 1, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms........................................ 1
Section 1.02. Other Definitional Provisions................................ 3
ARTICLE II
COMMITMENT, COMMITMENT FEE; CLOSING AND
FUTURE SERIES OF NOTES
Section 2.01. Commitment................................................... 3
Section 2.02. Commitment Fee............................................... 4
Section 2.03. Closing...................................................... 4
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............. 5
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....................................................... 9
Section 5.02. Securities Act............................................... 11
Section 5.03. No Fee....................................................... 11
Section 5.04. Information.................................................. 11
Section 5.05. The Purchased Note........................................... 11
Section 5.06. Use of Proceeds.............................................. 11
Section 5.07. FFCA Acquisition Corp. and the Depositor..................... 12
Section 5.08. Taxes, etc................................................... 12
Section 5.09. Financial Condition.......................................... 12
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
Section 6.01. Organization................................................. 12
Section 6.02. Authority, etc............................................... 12
Section 6.03. Securities Act............................................... 13
Section 6.04. Investment Company Act....................................... 13
Section 6.05. Conflicts With Law........................................... 13
Section 6.06. Conflicts With Agreements, etc............................... 13
ARTICLE VII
COVENANTS OF THE ISSUER, FFCA ACQUISITION CORP. AND THE DEPOSITOR
Section 7.01. Information from the Issuer.................................. 14
Section 7.02. Access to Information........................................ 14
Section 7.03. Ownership and Security Interests; Further Assurances......... 14
Section 7.04. Covenants.................................................... 15
Section 7.05. Amendments................................................... 15
Section 7.06. With Respect to the Exempt Status of the Purchased Note...... 15
Section 7.07. Option to Purchase Future Series............................. 15
ARTICLE VIII
ADDITIONAL COVENANTS
Section 8.01. Legal Conditions to Closing.................................. 16
Section 8.02. Expenses..................................................... 16
Section 8.03. Mutual Obligations........................................... 16
Section 8.04. Restrictions on Transfer..................................... 16
Section 8.05. Confidentiality.............................................. 16
Section 8.06. Determination of LIBOR....................................... 17
Section 8.07. Opinions..................................................... 17
ARTICLE IX
INDEMNIFICATION
Section 9.01. Indemnification of Purchaser................................. 17
Section 9.02. Procedure and Defense........................................ 18
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ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments.................................................. 18
Section 10.02. Notices..................................................... 18
Section 10.03. No Waiver; Remedies......................................... 19
Section 10.04. Binding Effect; Assignability............................... 19
Section 10.05. Provision of Documents and Information...................... 19
Section 10.06. Governing Law; Jurisdiction................................. 20
Section 10.07. No Proceedings.............................................. 20
Section 10.08. Execution in Counterparts................................... 20
Section 10.09. Reserved.................................................... 20
Section 10.10. Survival.................................................... 20
Section 10.11. Tax Characterization........................................ 20
Section 10.12. No Agency................................................... 21
Schedule I - Purchaser Account Information.................................. I-1
Schedule II - Information for Notices.......................................II-1
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THIS AMENDED AND RESTATED NOTE PURCHASE AGREEMENT ("NOTE PURCHASE
AGREEMENT") is entered into effective as of January 1, 2001, among FFCA Loan
Trust 1998-1 (the "ISSUER"), FFCA Acquisition Corporation ("FFCA ACQUISITION
CORP."), FFCA Loan Warehouse Corporation (the "DEPOSITOR"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Securitization Funding Inc. ("MSSFI," and in its capacity as Purchaser
hereunder, the "PURCHASER") which amends and restates that certain Note Purchase
Agreement, dated as of August 14, 1998 (the "ORIGINAL NOTE PURCHASE AGREEMENT")
among the Issuer, FFCA Acquisition Corp., the Depositor and the Purchaser, as
amended by Amendment No. 1 to the Note Purchase Agreement ("AMENDMENT NO. 1 TO
THE ORIGINAL NOTE PURCHASE AGREEMENT"), dated as of October 30, 1998, Amendment
No. 2 to the Note Purchase Agreement ("AMENDMENT NO. 2 TO THE ORIGINAL NOTE
PURCHASE AGREEMENT"), dated as of March 18, 1999, Amendment No. 3 to the Note
Purchase Agreement ("AMENDMENT NO. 3 TO THE ORIGINAL NOTE PURCHASE AGREEMENT"),
dated as of August 27, 1999, and Amendment No. 4 to the Note Purchase Agreement
("AMENDMENT NO. 4 TO THE ORIGINAL NOTE PURCHASE AGREEMENT"), dated as of January
1, 2000, each among the Issuer, FFCA Acquisition Corporation, the Depositor and
the Purchaser.
WHEREAS, the parties hereto desire to amend and restate the Original
Note Purchase Agreement, as amended by Amendment No. 1 to the Original Note
Purchase Agreement, Amendment No. 2 to the Original Note Purchase Agreement,
Amendment No. 3 to the Original Note Purchase Agreement and Amendment No. 4 to
the Original Note Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Issuer, FFCA Acquisition Corp., the Depositor and the Purchaser
hereby agree for the benefit of each of them to amend and restate the Original
Note Purchase Agreement as amended by Amendment No. 1 to the Original Note
Purchase Agreement, Amendment No. 2 to the Original Note Purchase Agreement,
Amendment No. 3 to the Original Note Purchase Agreement and Amendment No. 4 to
the Original Note Purchase Agreement in its entirety to read 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.
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"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 $600,000,000.
"COMMITMENT FEE" means $750,000.
"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.
"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, together
with the Indenture Supplement, between the Issuer and the 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
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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 Third Amended and Restated
Sale and Servicing Agreement dated as of January 1, 2001 among FFCA Franchise
Loan Owner Trust 1998-1, as Issuer, FFCA Acquisition Corporation, as Loan
Originator, FFCA, as Servicer and LaSalle Bank National Association, 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 Amended and Restated 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.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Amended and Restated Note Purchase Agreement shall
refer to this Amended and Restated Note Purchase Agreement as a whole and not to
any particular provision of this Amended and Restated Note Purchase Agreement;
and Section, subsection, Schedule and Exhibit references contained in this
Amended and Restated Note Purchase Agreement are references to Sections,
subsections, and Exhibits in or to this Amended and Restated 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
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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,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on January 1,
2001, or if the conditions to closing set forth in Article IV of this Amended
and Restated 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 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.
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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 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
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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. In the case of Table-Funded Loans, the
Purchaser (acting pursuant to the instructions of the Issuer which are hereby
given) shall disburse the related amount in respect of Additional Note Principal
Balances to the Settlement Agent for releases in accordance with the related
Escrow Instructions, as applicable.
(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.
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):
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(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 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
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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.
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
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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, 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
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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.
(k) The Issuer is solvent and has adequate capital for its respective
business and undertakings.
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(l) The chief executive offices of the Issuer are located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, telephone
number (▇▇▇) ▇▇▇-▇▇▇▇.
(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
Amended and Restated 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 promulgated by the Board of Governors of the Federal
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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 Amended and Restated
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 Amended and
Restated Note Purchase Agreement and to consummate the transactions herein
contemplated. The execution and delivery by the Purchaser of this Amended and
Restated 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 Amended and
Restated Note Purchase Agreement has been duly and validly executed and
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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 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 Amended and Restated 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 Amended and Restated 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 Amended and Restated
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 Amended and Restated Note
Purchase Agreement.
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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:
(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.
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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 Amended and Restated 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.
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 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
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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 Governmental Authority or any
other Person, required to be obtained or made by it in connection with any of
the transactions contemplated by this Amended and Restated 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 Amended and Restated 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 (and any amendments thereto) 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 Amended and Restated 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:
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(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
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 Amended and
Restated 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
Amended and Restated 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 Amended and Restated Note
Purchase Agreement and any other Basic Document.
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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 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 Amended and Restated 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.
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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 Amended and Restated 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 Amended and Restated
Note Purchase Agreement. Notwithstanding any such sale by the Purchaser of
participating interests to a Participant, the Purchaser's rights and obligations
under this Amended and Restated Note Purchase Agreement shall remain unchanged,
the Purchaser shall remain solely responsible for the performance thereof, and
the Issuer, FFCA Acquisition Corp. and the Depositor shall continue to deal
solely and directly with the Purchaser in connection with the Purchaser's rights
and obligations under this Amended and Restated 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 Amended and Restated 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 Amended and Restated Note
Purchase Agreement.
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SECTION 10.06. GOVERNING LAW; JURISDICTION. THIS AMENDED AND RESTATED
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 AMENDED AND RESTATED 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 Amended and Restated 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 Amended and Restated
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.
SECTION 10.09. RESERVED.
SECTION 10.10. SURVIVAL. All representations, warranties, covenants,
guaranties and indemnifications contained in this Amended and Restated 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 Amended and
Restated Note Purchase Agreement (a) acknowledges and agrees that it is the
intent of the parties to this Amended and Restated 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.
SECTION 10.12 NO AGENCY. Nothing contained herein or in the Basic
Documents shall be construed to create an agency or fiduciary relationship
between the Purchaser and its Affiliates and the Issuer, Depositor, Loan
Originator or the Servicer.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Financial Services Officer
FFCA ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIZATION FUNDING INC.,
as Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ACCEPTED AND AGREED
LASALLE BANK NATIONAL ASSOCIATION,
f/k/a LASALLE NATIONAL BANK, as Indenture Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Asst. Vice President
SCHEDULE I
PURCHASER ACCOUNT INFORMATION
Citibank: ABA Routing number: ▇▇▇▇▇▇▇▇▇.
For the Account of MSSFI: Account number: ▇▇▇▇▇▇▇▇.
SCHEDULE II
INFORMATION FOR NOTICES
1. if to the Issuer:
FFCA Franchise Loan Owner Trust 1998-1
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
2. if to FFCA Acquisition Corp.:
FFCA Acquisition Corporation
The Perimeter Center
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
3. if to the Depositor:
FFCA Loan Warehouse Corporation
The Perimeter Center
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
4. if to the Purchaser:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securitization Funding Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
telephone number: (▇▇▇) ▇▇▇-▇▇▇▇