BID RATE NOTE
$175,000,000.00 Dallas, Texas April 15, 1997
FOR VALUE RECEIVED, the undersigned, FRANCHISE FINANCE CORPORATION OF
AMERICA, a Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the
order of COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES BRANCH ("Lender") the
lesser of ONE HUNDRED SEVENTY-FIVE MILLION AND NO/100 DOLLARS ($175,000,000.00)
and the unpaid principal amount of the Bid Rate Loans (as defined in the Credit
Agreement hereinafter defined) made by Lender to Borrower, pursuant to the
Credit Agreement, payable at such times, and in such amounts, as are agreed to
by Lender and Borrower pursuant to Section 2.2(h) of the Credit Agreement. The
books and records of Administrative Agent shall be prima facie evidence of all
sums due Lender.
Borrower promises to pay interest on the unpaid principal amount of the
Bid Rate Loans from the date made until such principal amount is paid in full,
at such interest rates, and payable at such times, as are agreed to by Xxxxxx
and Borrower pursuant to Section 2.2(g) of the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Administrative Agent (as defined in the Credit Agreement)
(for the account of Lender) at its principal banking house at NationsBank Plaza,
000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, or such other place as Administrative
Agent may direct, in immediately available funds.
This Bid Rate Note is one of the Bid Rate Notes evidencing Bid Rate
Loans referred to in, and is entitled to the benefits of, the Amended and
Restated Credit Agreement dated as of April 15, 1997, among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, Lender and certain other
lenders (as from time to time amended, modified or supplemented, the "Credit
Agreement"). The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of an Event of Default
(as defined in the Credit Agreement) and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
Borrower and each guarantor, surety and endorser waives demand,
presentment, notice of dishonor, protest and diligence in collecting sums due
hereunder; agrees to application of any debt of Xxxxxx to the payment hereof;
agrees that extensions and renewals without limit as to number, acceptance of
any number of partial payments, releases of any party liable hereon, and
releases or substitutions of collateral, before or after maturity, shall not
release or discharge its obligation under this Bid Rate Note; and agrees to pay
in addition to all other sums due hereunder reasonable attorney's fees if this
Bid Rate Note is placed in the hands of an attorney for collection or if it is
collected through bankruptcy or other judicial proceeding. Xxxxxxxx agrees that
during the full term
hereof the maximum lawful interest rate for this Bid Rate Note determined under
Texas law shall be the indicated rate ceiling as specified in Article 5069-1.04
of V.A.T.S. Further, to the extent that any other lawful rate ceiling exceeds
the rate ceiling so determined, then the higher rate ceiling shall apply.
Chapter 15 of the Texas Credit Code does not apply to this Bid Rate Note.
This Bid Rate Note shall be governed by and construed in accordance
with the laws of the State of Texas.
FRANCHISE FINANCE CORPORATION
OF AMERICA, a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxxx
Executive Vice President and
Chief Financial Officer
