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AMENDMENT NO. 4
dated as of January 1, 2000
to the
NOTE PURCHASE AGREEMENT,
among
FFCA FRANCHISE LOAN OWNER TRUST 1998-1,
as Issuer,
FFCA ACQUISITION CORPORATION,
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor
and
XXXXXX XXXXXXX SECURITIZATION FUNDING INC.,
as Purchaser
Dated as of August 14, 1998
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AMENDMENT NO. 4
TO THE
NOTE PURCHASE AGREEMENT
AMENDMENT NO. 4 TO THE NOTE PURCHASE AGREEMENT, dated as of January 1,
2000 ("AMENDMENT NO. 4") to that certain Note Purchase Agreement, dated as of
August 14, 1998 (the "NOTE PURCHASE AGREEMENT") among FFCA Loan Trust 1998-1
(the "ISSUER"), FFCA Acquisition Corporation, FFCA Loan Warehouse Corporation
(the "DEPOSITOR") and Xxxxxx Xxxxxxx Securitization Funding Inc. ("MSSFI," and
in its capacity as Purchaser hereunder, the "PURCHASER"), as amended by
Amendment No. 1 to the Note Purchase Agreement, dated as of October 30, 1998
("AMENDMENT NO. 1"), Amendment No. 2 to the Note Purchase Agreement, dated as of
March 18, 1999 ("AMENDMENT NO. 2") and Amendment No. 3 to the Note Purchase
Agreement, dated as of August 27, 1999 ("AMENDMENT NO. 3"), each among the
Issuer, FFCA Acquisition Corporation, the Depositor and the Purchaser.
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto have entered into that certain Note
Purchase Agreement, whereby the Purchaser agrees to purchase certain Notes;
WHEREAS, the Purchaser wishes to amend the Note Purchase Agreement;
and
WHEREAS, Section 10.01 provides that the Note Purchase Agreement may
be amended in writing by the parties thereto;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
shall have the respective meanings ascribed to such terms in the Note Purchase
Agreement.
2. AMENDMENT TO NOTE PURCHASE AGREEMENT.
(a) Section 1.01 is hereby amended by deleting the definition of
"COMMITMENT AMOUNT" and by replacing such definition with the following:
"COMMITMENT AMOUNT" means an amount equal to $600,000,000.
(b) Section 2.02 is hereby amended by adding at the end thereof the
following sentence:
On or prior to the date of the execution of Amendment No. 4, the
Issuer shall pay or cause to be paid to the Purchaser an additional
commitment fee of $360,000 (the "ADDITIONAL COMMITMENT FEE"), to 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.
(c) Article X is hereby amended by adding the following:
SECTION 10.12. LIMITATION OF OWNER TRUSTEE LIABILITY. It is expressly
understood and agreed by the parties hereto that (a) this Note Purchase
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Trustee of FFCA Franchise Loan
Owner Trust 1998-1, in the exercise of the powers and authority conferred
and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the Trust is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose for binding only the
Trust, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under this Note Purchase Agreement or any
other related documents.
3. COVENANT TO PAY. The Issuer, FFCA Acquisition Corp. and the
Depositor jointly and severally covenant to pay as and when billed by the
Purchaser the reasonable fees, disbursements and expenses of counsel to the
Purchaser in connection with the amendments to the Basic Documents effected on
the date hereof.
4. FULL FORCE AND EFFECT. Except as modified by this Amendment No. 4,
the Note Purchase Agreement shall otherwise remain in full force and effect
against any and all of the parties thereunder.
5. GOVERNING LAW. This Amendment No. 4 shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to its conflicts of laws provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance therewith.
6. COUNTERPARTS. This Amendment No. 4 may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties have executed this Amendment No. 4 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/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Financial Services Officer
FFCA ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
XXXXXX XXXXXXX SECURITIZATION FUNDING INC.,
as Purchaser
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE FOLLOWS]
ACCEPTED AND AGREED
LASALLE BANK NATIONAL ASSOCIATION f/k/a LASALLE NATIONAL BANK, as Indenture
Trustee
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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SCHEDULE I
PURCHASER ACCOUNT INFORMATION
Bank: Citibank
ABA Routing number: 000000000 (For the Account of MSSFI)
Account number: 00000000
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