THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"),
dated as of December 27, 1996, is entered into among FRANCHISE FINANCE
CORPORATION OF AMERICA, a Delaware corporation ("Company"), the banks listed on
the signature page hereof (the "Lenders"), and NATIONSBANK OF TEXAS, N.A. in its
capacity as administrative agent for the Lenders (the "Administrative Lender").
A. Company, certain of the Lenders and Administrative Lender are
parties to that certain Credit Agreement, dated as of December 27, 1995, as
amended by that certain First Amendment to Credit Agreement, dated as of
February 23, 1996, and that certain Second Amendment to Credit Agreement, dated
as of June 24, 1996 (said Credit Agreement, as amended, the "Credit Agreement";
the terms defined in the Credit Agreement and not otherwise defined herein shall
be used herein as defined in the Credit Agreement).
B. Company, Lenders and Administrative Lender desire to amend the
Credit Agreement to (i) decrease the Commitment, (ii) extend the Conversion Date
and the Maturity Date, (iii) add Union Bank of Switzerland (New York Branch) as
a Lender thereto, (iv) delete Texas Commerce Bank National Association as a
Lender thereto ("TCB"), and (v) make certain other amendments thereto.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The dollar amount of "$250,000,000" set forth in (i) the BACKGROUND
section, (ii) the definition of "Commitment" in Section 1.1 and (iii) Section
2.3(a) of the Credit Agreement is hereby amended to be "$200,000,000".
(b) The defined term "Absolute Bid Rate" is hereby added to Section 1.1
of the Credit Agreement in proper alphabetical order to read as follows:
"`Absolute Bid Rate' means an absolute fixed rate of interest
per annum."
(c) The defined term "Absolute Bid Rate Loan" is hereby added to
Section 1.1 of the Credit Agreement in proper alphabetical order to read as
follows:
"`Absolute Bid Rate Loan' means a Bid Rate Loan which bears
interest at an Absolute Rate."
(d) The definition of "Applicable Margin" set forth in Section 1.1 of
the Credit Agreement is hereby deleted in its entirety and the following is
hereby substituted in lieu thereof:
"`Applicable Margin' means the following per annum
percentages, applicable in the following situations:
Applicability Base Rate LIBOR
------------- --------- -----
Category 1 - There is no Index Debt Rating or the Index Debt Rating 0.25 1.50
----------
is the following: below BBB- by S&P or below Baa3 by Xxxxx'x
Category 2 - The Index Debt Rating is the following: BBB- by S&P or 0.00 1.00
----------
Baa3 by Xxxxx'x
Category 3 - The Index Debt Rating is the following: BBB by S&P or 0.00 0.95
----------
Baa2 by Xxxxx'x
Category 4 - The Index Debt Rating is the following: BBB+ by S&P or 0.00 0.90
----------
Baa1 by Xxxxx'x
Category 5 - The Index Debt Rating is the following: A- or better by 0.00 0.80
----------
S&P or A3 or better by Xxxxx'x
The Applicable Margin payable by Company on the Advances outstanding
hereunder shall be adjusted on each Adjustment Date according to the
most recent determination of the Index Debt Rating; provided, that if
(i) there exists a Default or (ii) Company does not have an Index Debt
Rating, the Applicable Margin shall be (A) 0.25% per annum with respect
to Base Rate Advances and (B) 1.50% per annum with respect to LIBOR
Advances. For purposes of the foregoing, if the Index Debt Rating
established by S&P or Xxxxx'x shall fall within a different category,
the Applicable Margin shall be determined by reference to whichever
Index Debt Rating shall fall within the inferior (or numerically lower)
category. If the rating system of Xxxxx'x or S&P shall change prior to
the Maturity Date, Company and Lenders shall negotiate in good faith to
amend the references to specific ratings in this definition to reflect
such changed rating system."
(e) The defined term "Bid Rate Loan" is hereby added to Section 1.1 of
the Credit Agreement in proper alphabetical order to read as follows:
"`Bid Rate Loan' means an Advance the interest rate on which
is determined by agreement between Company and Lender making such
Advance pursuant to Section 2.1(c)."
(f) The defined term "Bid Rate Note" is hereby added to Section 1.1 of
the Credit Agreement in proper alphabetical order to read as follows:
"`Bid Rate Note' means each promissory note of Company
evidencing Bid Rate
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Loans, in substantially the form of Exhibit J hereto, as each such note
may be amended, extended, restated, renewed, substituted or replaced
from time to time."
(g) The definition of "Conversion Date" set forth in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"`Conversion Date' means December 27, 1998, or such later date
as established pursuant to Section 2.15 hereof."
(h) The definition of "Facility" set forth in Section 1.1 of the Credit
Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"`Facility' means the Revolving Loan, the Term Loan and the
Bid Rate Loans evidenced by this Agreement and the other Loan Papers."
(i) The defined term "LIBOR Bid Rate" is hereby added to Section 1.1 of
the Credit Agreement in proper alphabetical order to read as follows:
"`LIBOR Bid Rate' means a rate per annum equal to the LIBOR
Rate Basis for the term in question plus a margin specified by a
Lender."
(j) The defined term "LIBOR Bid Rate Loan " is hereby added to Section
1.1 of the Credit Agreement in proper alphabetical order to read as follows:
"`LIBOR Bid Rate Loan' means a Bid Rate Loan which bears
interest at the LIBOR Bid Rate."
(k) The definition of "Majority Lenders" set forth in Section 1.1 of
the Credit Agreement is hereby deleted in its entirety and the following is
hereby substituted in lieu thereof:
"`Majority Lenders' means any combination of Lenders having at
least 66.67% of the Advances under the Revolving Loan and under the
Term Loan; provided, however, that if no Advances under the Revolving
Loan and under the Term Loan are outstanding under this Agreement, such
term means any combination of Lenders having a Specified Percentage
equal to at least 66.67% of the Commitment."
(l) The definition of "Maturity Date" set forth in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"`Maturity Date' means December 27, 2000, or such later date
as established pursuant to Section 2.15 hereof, or such earlier date
all of the Obligations become due and payable (whether by acceleration,
prepayment in full, scheduled reduction or otherwise)."
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(m) The definitions "Note" and "Notes" set forth in Section 1.1 of the
Credit Agreement are hereby deleted in their entirety and the following is
substituted in lieu thereof:
"`Note' means each and "Notes" means all (a) Revolving Loan
Notes, (b) Term Loan Notes, and (c) Bid Rate Loan Notes."
(n) The defined term "Revolving Loan Note" is hereby incorporated into
this Third Amendment and added to Section 1.1 of the Credit Agreement in proper
alphabetical order to read as follows:
"`Revolving Loan Note' means each promissory note of Company
evidencing the Advances and obligations owing hereunder to each Lender
under the Revolving Loan, in substantially the form of Exhibit A
hereto, as each such note may be amended, extended, restated, renewed,
substituted or replaced from time to time."
(o) The defined term "Term Loan Note" is hereby incorporated into this
Third Amendment and added to Section 1.1 of the Credit Agreement in proper
alphabetical order to read as follows:
"`Term Loan Note' means each promissory note of Company
evidencing the Advances and obligations owing hereunder to each Lender
under the Term Loan, in substantially the form of Exhibit B hereto, as
each such note may be amended, extended, restated, renewed, substituted
or replaced from time to time."
(p) The definition of "Total Unencumbered Assets" set forth in Section
1.1 of the Credit Agreement is hereby deleted in its entirety and the following
is hereby substituted in lieu thereof:
"`Total Unencumbered Assets' means, at any time, the aggregate
amount of Total Assets of Company and its Consolidated Subsidiaries
determined in accordance with GAAP on a consolidated basis which are
not subject to a Lien, other than Permitted Liens of the type described
in clauses (a) through (f) of the definition thereof."
(q) The definition of "Total Unsecured Indebtedness" set forth in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the
following is hereby substituted in lieu thereof:
"`Total Unsecured Indebtedness' means, at any time, the
aggregate amount of Indebtedness of Company and its Consolidated
Subsidiaries that is not secured by a Lien, other than Permitted Liens
of the type described in clauses (a) through (f) of the definition
thereof."
(r) The definition of "Type" set forth in Section 1.1 of the Credit
Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
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"`Type' refers to the distribution between Advances bearing
interest at the Base Rate, LIBOR Rate, Absolute Bid Rate or LIBOR Bid
Rate."
(s) The definition of "Unused Commitment" set forth in Section 1.1 of
the Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"`Unused Commitment' means, on any date, with respect to each
Lender, an amount equal to the product of such Lender's Specified
Percentage multiplied by the Commitment in effect on such date, minus
an amount equal to the sum of (a) all outstanding Advances made by such
Lender under the Revolving Loan which are outstanding on such date and
(b) all Bid Rate Loans made by such Lender which are outstanding on
such date."
(t) Section 2.1(a) of the Credit Agreement is hereby amended by adding
the following sentence to the end thereof to read as follows:
"Notwithstanding anything in this Section 2.1(a) or Section
2.1(c) to the contrary, at no time shall the sum of (i) the aggregate
principal amount of Advances outstanding under the Revolving Loan and
(ii) the aggregate principal amount of Bid Rate Loans outstanding
exceed the Commitment."
(u) Section 2.1 of the Credit Agreement is hereby amended by adding
Section 2.1(c) thereto to read as follows:
"(c) Bid Rate Loans. Each Lender may, in its sole discretion
and on the terms and conditions set forth in this Agreement, make Bid
Rate Loans to Company from time to time until the Conversion Date in an
aggregate amount not in excess of the difference between the Commitment
minus the aggregate outstanding principal amount of all Advances under
the Revolving Loan; provided, however, at no time shall the sum of (i)
the aggregate outstanding principal amount of all Bid Rate Loans made
by all Banks plus (ii) the aggregate principal amount of all
outstanding Advances under the Revolving Loan exceed the Commitment.
Each Bid Rate Loan shall be for a term of not less than 7 days and not
more than six months. Bid Rate Loans may not be prepaid without the
prior written consent of the Lender making such Bid Rate Loan. Each
Borrowing of Bid Rate Loans shall be an aggregate principal amount
which is at least $10,000,000 and which is an integral multiple of
$1,000,000 in excess thereof, and each Bid Rate Loan by a Lender shall
be in a principal amount which is at least $1,000,000 and which is an
integral multiple of $1,000,000 in excess thereof. Notwithstanding
anything herein to the contrary, the aggregate principal amount of Bid
Rate Loans outstanding at any time may not exceed $100,000,000. No
Lender shall have any obligation to make Bid Rate Loans, and Company
shall have no obligation to accept any offers for Bid Rate Loans."
(v) Section 2.2 of the Credit Agreement is hereby deleted in its
entirety and the
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following is hereby substituted in lieu thereof:
"2.2. Making Advances.
(a) Each Borrowing of Advances under the Revolving Loan and
the Term Loan shall be made upon the written notice of Company,
received by Administrative Lender not later than (i) 12:00 noon three
Business Days prior to the proposed date of the Borrowing, in the case
of LIBOR Advances and (ii) not later than 10:00 a.m. on the date of
such Borrowing, in the case of Base Rate Advances. Each such notice of
a Borrowing (a "Borrowing Notice") shall be by telecopy, promptly
confirmed by letter, in substantially the form of Exhibit F hereto
specifying therein:
(i) the date of such proposed Borrowing, which shall
be a Business Day;
(ii) the amount of such proposed Borrowing which, (A)
with respect to Advances under the Revolving Loan, shall not
exceed the Commitment less the sum of Advances under the
Revolving Loan plus Bid Rate Loans then outstanding, (B) with
respect to Advances under the Term Loan, shall not, when
aggregated together with all other outstanding Advances under
the Term Loan, exceed the Reduced Term Loan Amount and (C)
shall, for the Revolving Loan and Term Loan in the case of a
Borrowing of LIBOR Advances, be in an amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and, in the case of a Borrowing of Base Rate Advances,
be in an amount of not less than $1,000,000 or an integral
multiple of $500,000 in excess thereof;
(iii) the Type of Advances of which the Borrowing is
to be comprised; and
(iv) if the Borrowing is to be comprised of LIBOR
Advances, the duration of the initial Interest Period
applicable to such Advances.
If the Borrowing Notice fails to specify the duration of the
initial Interest Period for any Borrowing comprised of LIBOR Advances,
such Interest Period shall be one month. Administrative Lender shall
give prompt notice (which may be by telecopy or telephonic, to be
confirmed by telecopy) of its receipt of a Borrowing Notice to each
Lender. Each Lender shall, before 2:00 p.m. on the date of each Advance
hereunder under the Revolving Loan (other than a Refinancing Advance),
make available to
Administrative Lender
NationsBank Plaza
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn. Xxxxxxx Xxxx
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such Lender's Specified Percentage of the aggregate Advances under the
Revolving Loan to be made on that day in immediately available funds.
(b) Unless any applicable condition specified in Article III
hereof has not been satisfied, Administrative Lender will make the
funds on Advances under the Revolving Loan promptly available to
Company (other than with respect to a Refinancing Advance) by wiring
Norwest Bank Minneapolis, N.A., ABA #000000000, Beneficiary Bank:
Norwest Bank Arizona, Beneficiary Account: 0000000000, Beneficiary
Name: FFCA, or such other account as shall have been specified by
Company.
(c) After giving effect to any Borrowing, (i) there shall not
be more than ten different Interest Periods in effect and (ii) the
aggregate principal of outstanding Advances, shall, (A) prior to the
Conversion Date, not exceed the Commitment, and (B) after the
Conversion Date, not exceed the Reduced Term Loan Amount.
(d) No Interest Period for a Borrowing under the Facility
shall extend beyond the Maturity Date.
(e) Unless a Lender shall have notified Administrative Lender
prior to the date of any Advance under the Revolving Loan or the Term
Loan that it will not make available its Specified Percentage of any
such Advance, Administrative Lender may assume that such Lender has
made the appropriate amount available in accordance with Section
2.2(a), and Administrative Lender may, in reliance upon such
assumption, make available to Company a corresponding amount. If and to
the extent any Lender shall not have made such amount available to
Administrative Lender, such Lender and Company severally agree to repay
to Administrative Lender immediately on demand such corresponding
amount together with interest thereon, from the date such amount is
made available to Company until the date such amount is repaid to
Administrative Lender, at (i) in the case of Company, the Base Rate,
and (ii) in the case of such Lender, the Federal Funds Rate. The
obligation of Company under this Section 2.2(e) shall not affect or
impair any right of Company against any Lender for such Lender's breach
of its obligation to fund Advances under the Revolving Loan or the Term
Loan.
(f) The failure by any Lender to make available its Specified
Percentage of any Advance under the Revolving Loan or the Term Loan
shall not relieve any other Lender of its obligation, if any, to make
available its Specified Percentage of any such Advance. In no event,
however, shall any such Lender be responsible for the failure of any
other Lender to make available any portion of any Advance. No Lender
shall be relieved of its obligation to fund its Specified Percentage of
any Advance under the Revolving Loan notwithstanding the fact that at
any time the aggregate outstanding principal amount of all Bid Rate
Loans and Advances under the Revolving Loan made by such Lender exceeds
its Specified Percentage of the Commitment.
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(g) Company shall indemnify each Lender against any
Consequential Loss incurred by each Lender as a result of (i) any
failure to fulfill, on or before the date specified in the Borrowing
Notice for an Advance under the Revolving Loan or the Term Loan, the
conditions to such Advance set forth herein or (ii) Company's
requesting that an Advance under the Revolving Loan or the Term Loan
not be made on the date specified in the Borrowing Notice.
(h) With respect to each Borrowing consisting of Bid Rate
Loans, Company shall give Administrative Lender and each Lender prior
to 10:00 a.m., (i) in the case of LIBOR Bid Rate Loans, at least four
Business Days prior to the proposed Borrowing and (ii) in the case of
Absolute Bid Rate Loans, at least two Business Days prior to the
proposed Borrowing, irrevocable written notice of its intention to
borrow Bid Rate Loans. Such notice of borrowing shall specify (i) the
requested funding date, which shall be a Business Day, (ii) the
aggregate amount of the proposed Borrowing of Bid Rate Loans (which
shall be at least $10,000,000 and which is an integral multiple of
$1,000,000 in excess thereof), (iii) the term of the Bid Rate Loans
selected by Company, provided that such term shall not extend past the
Conversion Date, (iv) whether the Bid Rate Loans requested are Absolute
Bid Rate Loans or LIBOR Bid Rate Loans, and (v) any other terms
applicable thereto. Company shall pay a $1,000 non-refundable,
administrative fee for the account of Administrative Lender for each
notice of proposed Borrowing consisting of Bid Rate Loans. Such fee
shall be paid to Administrative Lender on the date of delivery of
Company's notice of intention to borrow Bid Rate Loans, and shall not
be refunded notwithstanding that the proposed Borrowing is canceled by
Borrower or no Lender offers to make a Bid Rate Loan.
(i) Each Lender shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Bid
Rate Loans to Company as part of such proposed Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by delivering a written quote to Administrative
Lender before 10:00 a.m., (A) three Business Days prior to the
proposed date of Borrowing, in the case of a request for LIBOR
Bid Rate Loans, and (B) one Business Day prior to the proposed
date of Borrowing, in the case of a request for Absolute Bid
Rate Loans, setting forth (A) the minimum amount (which shall
be $1,000,000 or an integral multiple in excess thereof) and
maximum amount of each Bid Rate Loan which such Lender would
be willing to make as part of the proposed Borrowing (which
amounts may exceed such Lender's Specified Percentage of the
Commitment) and (B) the rate or rates of interest therefor. If
any Lender shall fail to respond to Administrative Lender by
such time, such Lender shall be deemed to have elected not to
make an offer.
(ii) Not later than 11:00 a.m. (A) three Business
Days prior to the proposed date of Borrowing in the case of
LIBOR Bid Rate Loans and (B) on the date of the proposed
Borrowing in the case of Absolute Bid Rate Loans, Company
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shall, in turn, either
(A) cancel such proposed Borrowing by giving
Administrative Lender notice to that effect, or
(B) accept one or more of the offers made by
any Lender or Lenders pursuant to clause (i) above,
in its sole discretion, by giving notice to
Administrative Lender of the amount of each Bid Rate
Loan (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the
maximum amount, for which notification was given to
Company by any Lender for such Bid Rate Loan pursuant
to clause (i) above) to be made by each Lender as
part of such Borrowing, and reject any remaining
offers made by Lenders pursuant to clause (i) above
by giving Administrative Lender notice to that
effect; provided, however, that acceptance by Company
of offers may only be made on the basis of ascending
LIBOR Bid Rates and Absolute Bid Rates within each
term with respect to Lenders whose outstanding
Advances do not exceed or would not exceed as a
result of such Bid Rate Loans its Specified
Percentage of the Commitment; and, provided, further,
that if offers are made by two or more such Lenders
with the same LIBOR Bid Rates or Absolute Bid Rates
for a greater aggregate principal amount than the
amount for which such offers are accepted for the
related term, the principal amount of Bid Rate Loans
accepted shall be allocated by Company among such
Lenders as nearly as possible (in multiples not less
than $1,000,000) in proportion to the aggregate
principal amount of such offers.
(iii) Administrative Lender shall promptly notify
each bidding Lender whether or not its Bid Rate Loan has been
accepted (which notice to those Lenders whose Bid Rate Loans
have been accepted will be given within one hour from the time
such bid was accepted by Company). After completing the
notifications referred to in the immediately preceding
sentence, Administrative Lender shall notify each bidding
Lender (A) the aggregate amount of Bid Rate Loans made in
connection with such proposed Borrowing, (B) each date on
which any Bid Rate Loan shall mature, (C) the principal amount
of Bid Rate Loans which shall mature on each such date, (D)
the interest rate for each such Bid Rate Loan, (E) the highest
and lowest bid submitted by Lenders in connection with each
Bid Rate Loan request and (F) Lender making each such Bid Rate
Loan.
(iv) If Administrative Lender shall at any time elect
to submit a bid for a Bid Rate Loan in its capacity as a
Lender, it shall submit such bid directly to Company one-half
hour earlier than the latest time at which other Lenders are
required to submit their bid to Administrative Lender pursuant
to Section 2(h)(i) hereof.
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(v) If Company accepts one or more offers made by any
Lender or Lenders pursuant to clause (ii)(B) above, each such
Lender shall, unless any applicable condition specified in
Article III hereof has not been satisfied, make the funds
under the Bid Rate Loans promptly available to Company by
wiring Norwest Bank Minneapolis, N.A., ABA # 000000000,
Beneficiary Bank: Norwest Bank Arizona, Beneficiary Account:
0000000000, Beneficiary Name: FFCA, or such other account as
shall have been specified by Company."
(w) Section 2.3(a) of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"(a) The obligations of Company with respect to all Advances
(i) under the Revolving Loan made by each Lender shall be evidenced by
a Revolving Loan Note in the amount of such Lender's Specified
Percentage of $200,000,000 (as the same may be modified pursuant to
Section 9.4 hereof), (ii) under the Term Loan made by each Lender shall
be evidenced by a Term Loan Note in the amount of the sum of such
Lender's Specified Percentage of Initial Term Loan Amount (as the same
may be modified pursuant to Section 9.4 hereof), and (iii) in respect
of Bid Rate Loans made by each Lender shall be evidenced by a Bid Rate
Note in the principal amount not to exceed $100,000,000."
(x) Section 2.4(c) of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"(c) Commitment Reductions, Generally. To the extent that the
sum of the aggregate outstanding (i) Advances under the Revolving Loan
plus (ii) Bid Rate Loans exceed the Commitment after any reduction
thereof, Company shall simultaneously repay on the date of such
reduction, any such excess amount and all accrued interest thereon,
together with any amounts constituting any Consequential Loss. Once
reduced or terminated pursuant to this Section 2.4, the Commitment may
not be increased or reinstated."
(y) Section 2.6(c) of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"(c) Bid Rate Loans. Company shall repay Bid Rate Loans at
such time as agreed upon between Company and each Lender making Bid
Rate Loans pursuant to Section 2.2(h)."
(z) Section 2.6 of the Credit Agreement is hereby amended by adding a
new clause (d) thereto to read as follows:
"(d) Other Obligations. Except if an earlier date is otherwise
provided in this
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Agreement, all Obligations not otherwise due and payable under Sections
2.6(a), 2.6(b) and 2.6(c) above shall be due and payable in full on the
Maturity Date."
(aa) Section 2.7 of the Credit Agreement is hereby amended by adding a
new clause (d) thereto to read as follows:
"(d) Bid Rate Loans. Bid Rate Loans shall bear interest at the
rate per annum agreed to by Company and each Lender making Bid Rate
Loans pursuant to Section 2.2(h). Interest on each Bid Rate Loan shall
be computed and shall be payable at such times as agreed upon between
Company and each Lender making Bid Rate Loans pursuant to Section
2.2(h)."
(ab) Section 2.10(a) of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"2.10 Fees. (a) Subject to Section 9.8 hereof, Company agrees
to pay to Administrative Lender, for the account of each Lender, a
Commitment Fee on the average daily amount of each Lender's Unused
Commitment, from the Closing Date through the Conversion Date, payable
quarterly in arrears on each Quarterly Date occurring after the Closing
Date, with the last such payment due and owing on the Conversion Date
at the following per annum percentage applicable in the following
situations:
Applicability Percentage
------------- ----------
Category 1 - There is no Index Debt Rating or the Index Debt Rating is the 0.375%
-----------
following: below BBB- by S&P or below Baa3 by Xxxxx'x
Category 2 - The Index Debt Rating is the following: BBB-, BBB or 0.200%
-----------
BBB+ by S&P or Xxx0, Xxx0 or Baa1 by Xxxxx'x
Category 3 - The Index Debt Rating is the following: A- or better by 0.150%
-----------
S&P or A3 or better by Xxxxx'x
The Commitment Fee shall be (i) fully earned when due and nonrefundable
when paid and (ii) adjusted on each Adjustment Date according to the
most recent determination of the Index Debt Rating. For purposes of the
foregoing, if the Index Debt Rating established by S&P or Xxxxx'x shall
fall within a different category, the Commitment Fee shall be
determined by reference to whichever Index Debt Rating shall fall
within the inferior (or numerically lower) category."
(ac) Section 2.12(a) of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
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"(a) Company shall make each payment not later than 1:00 p.m.
on the day when due in immediately available funds to Administrative
Lender, (i) in respect of the Revolving Loan and the Term Loan, for the
Ratable account of Lenders unless otherwise specifically provided
herein, and (ii) in respect of the Bid Rate Loans, for the account of
each Lender making Bid Rate Loans, at
Administrative Lender
NationsBank Plaza
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn. Xxxxxxx Xxxx
for the further credit to the account of Franchise Finance Corporation
of America. No later than the end of each day when each payment
hereunder is made, Company shall notify Xxxxxxx Xxxx, telephone (214)
000-0000, facsimile (000) 000-0000, or such other Person as
Administrative Lender may from time to time specify. Notwithstanding
anything in this Section 2.16(a) or any other provision of this
Agreement or any other Loan Paper to the contrary, any payment by
Company in respect of any Advances after acceleration of the Advances
pursuant to Section 7.2 or any monies received by Administrative Lender
or any Lender as a result of the exercise of remedies under any Loan
Paper after acceleration of Advances pursuant to Section 7.2 shall be
distributed pro rata to each Lender based on the percentage that the
outstanding Advances owed to such Lender bears to the aggregate
Advances owed to all Lenders."
(ad) Section 2.15 of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"2.15. Extension of Conversion Date. During each of 1997 and
1998, Company may notify Administrative Lender in writing by no later
than October 1 of each such year of its desire to extend the Conversion
Date (and, consequently, the Maturity Date) for an additional 12
months. If such notice is given, Administrative Lender, no later than
November 15 of each such year, will notify Company in writing of
Lenders' decision whether to extend the Conversion Date (and,
consequently, the Maturity Date). Extensions of the Conversion Date
(and, consequently, the Maturity Date) shall be at the option and in
the sole discretion of Lenders, and the decision to extend the
Conversion Date shall require the consent of all Lenders. If either
Company or Administrative Lender fail to give notice within the time
prescribed above, the Conversion Date (and, consequently, the Maturity
Date) shall be the then present Conversion Date (and, consequently, the
then present Maturity Date), unless otherwise extended by the parties
hereto. Any extension of the Conversion Date (and, consequently, the
Maturity Date) pursuant to this Section 2.15 shall not (i) require any
renewal Note unless otherwise requested by Administrative Lender and
(ii) be effective until and unless Company shall pay to Administrative
Lender, for the account of Lenders in accordance with their
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Specified Percentages, a Revolving Loan Extension Fee based on the
amount of the Commitment and the Index Debt Rating in effect on the
date of extension of the Conversion Date at the following per annum
percentages, applicable in the following situations:
Applicability Percentage
------------- ----------
Category 1 - There is no Index Debt Rating or the Index Debt Rating is the following: 0.250%
----------
below BBB- by S&P or below Baa3 by Xxxxx'x
Category 2 - The Index Debt Rating is the following: BBB- by S&P or Baa3 by Xxxxx'x 0.150%
----------
Category 3 - The Index Debt Rating is the following: BBB by S&P or Baa2 by Xxxxx'x 0.125%
----------
Category 4 - The Index Debt Rating is the following: BBB+ by S&P or Baa1 by Xxxxx'x 0.100%
----------
Category 5 - The Index Debt Rating is the following: A- or better by S&P or A3 or 0.080%
----------
better by Xxxxx'x
For purposes of the foregoing, if the Index Debt Rating established by
S&P or Xxxxx'x shall fall within a different category, the Revolving
Loan Extension Fee shall be determined by reference to whichever Index
Debt Rating shall fall within the inferior (or numerically lower)
category."
(ae) Section 3.3 of the Credit Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"3.3. Conditions Precedent to the Making of the Term Loan. The
obligation of each Lender to make the Term Loan shall be subject to the
further condition precedent that on the date of the making of the Term
Loan (a) the following statements shall be true:
(i) The representations and warranties contained in
Article IV hereof are true and correct on such date, as though
made on and as of such date;
(ii) No event has occurred and is continuing, or
would result from the making of Advances under the Term Loan
that does or could constitute a Default or Event of Default;
(iii) There shall have occurred no Material Adverse
Change, and the making of the Term Loan and Advances
thereunder shall not cause or result in a Material Adverse
Change;
-13-
(iv) Company shall have delivered to each Lender a
Note, duly completed and executed, in the form of Exhibit B
hereto, evidencing Advances under the Term Loan;
(v) Company shall have paid to Administrative Lender,
for the account of Lenders in accordance with their Specified
Percentages, a Term Loan Conversion Fee based on the amount of
the Term Loan at the following per annum percentages,
applicable in the following situations:
Applicability Percentage
------------- ----------
Category 1 - There is no Index Debt Rating or the Index Debt Rating is the 1.000%
----------
following: below BBB- by S&P or below Baa3 by Xxxxx'x
Category 2 - The Index Debt Rating is the following: BBB- by S&P or Baa3 by 0.750%
----------
Xxxxx'x
Category 3 - The Index Debt Rating is the following: BBB by S&P or Baa2 by 0.500%
----------
Xxxxx'x
Category 4 - The Index Debt Rating is the following: BBB+ by S&P or Baa1 by 0.375%
----------
Xxxxx'x
Category 5 - The Index Debt Rating is the following: A- or better by S&P or A3 0.250%
----------
or better by Xxxxx'x
For purposes of the foregoing, if the Index Debt Rating established by
S&P or Xxxxx'x shall fall within a different category, the Term Loan
Conversion Fee shall be determined by reference to whichever Index Debt
Rating shall fall within the inferior (or numerically lower) category,
and (b) Administrative Lender shall have received, in form and
substance acceptable to it, such other approvals, documents,
certificates, opinions, and information as it may deem necessary or
appropriate."
(af) The Specified Percentage of each Lender shall be the Specified
Percentage set forth opposite each Lender on the signatory pages to this Third
Amendment.
(ag) Each Bid Rate Note shall be in the form of Exhibit J attached to
this Third Amendment.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, Company represents and warrants that, as of the
date hereof and after giving effect to the amendments provided in the foregoing
Section 1:
-14-
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as if made on and as
of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) Company has full power and authority to execute, deliver and
perform this Third Amendment, the Revolving Loan Notes, the Bid Rate Notes, and
the Credit Agreement, as amended by this Third Amendment, the execution,
delivery and performance of this Third Amendment, the Revolving Notes, the Bid
Rate Notes, and the Credit Agreement, as amended by this Third Amendment, have
been duly authorized by all corporate action of Company, and this Third
Amendment, the Revolving Notes, the Bid Rate Notes, and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of the
Company, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable debtor relief laws and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as rights to indemnity may be limited
by federal or state securities laws;
(d) neither the execution, delivery and performance of this Third
Amendment, the Revolving Notes, the Bid Rate Notes, or the Credit Agreement, as
amended by this Third Amendment, nor the consummation of any transactions herein
or therein, will contravene or conflict with any Law to which Company or any of
its Subsidiaries is subject or any indenture, agreement or other instrument to
which Company or any of its Subsidiaries or any of their respective property is
subject; and
(e) no authorization, approval, consent or other action by, notice to,
or filing with, any governmental authority or other Person (not previously
obtained), is required for the (i) execution, delivery or performance by Company
of this Third Amendment, the Revolving Notes, the Bid Rate Notes, and the Credit
Agreement, as amended by this Third Amendment, or (ii) acknowledgement of this
Third Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be effective
as of December 27, 1996, subject to the following:
(a) Administrative Lender shall have received counterparts of this
Third Amendment executed by the Lenders;
(b) Administrative Lender shall have received counterparts of this
Third Amendment executed by Company and acknowledged by each Guarantor;
(c) the representations and warranties set forth in Section 2 of this
Third Amendment shall be true and correct;
(d) Administrative Lender shall have received duly executed Revolving
Loan Notes,
-15-
payable to the order of each Lender in an amount equal to such Lender's
Specified Percentage, as established hereby;
(e) Administrative Lender shall have received duly executed Bid Rate
Notes, payable to the order of each Lender in the principal amount not to exceed
$100,000,000;
(f) Administrative Lender shall have received an opinion of counsel of
Company and its Subsidiaries, dated the date of this Third Amendment, acceptable
to Lenders and otherwise in form and substance satisfactory to Lenders and
Special Counsel, with respect to this Third Amendment and otherwise, including,
without limitations opinions (i) to the valid legal and binding nature of this
Third Amendment, the Revolving Loan Notes, the Bid Rate Notes, and the Credit
Agreement as amended hereby, (ii) to the power, authorization and corporate
matters of Company and its Subsidiaries taken with respect to this Third
Amendment, the Revolving Notes, the Bid Rate Notes, and the Credit Agreement, as
amended hereby, (iii) that the execution, delivery and performance by Company
and its Subsidiaries of this Third Amendment, the Revolving Notes, the Bid Rate
Notes, and the Credit Agreement, as amended hereby, does not violate any terms
of the certificate of incorporation, bylaws or agreement of Company or any of
its Subsidiaries, and (iv) to such other matters as are reasonably requested by
Special Counsel;
(g) Administrative Lender shall have received certified corporate
resolutions of Company and each Guarantor authorizing the execution, delivery
and performance of this Third Amendment, the Revolving Loan Notes and the Bid
Rate Notes;
(h) Administrative Lender shall have received an opinion of Special
Counsel, dated as of the date of this Third Amendment, acceptable to Lenders,
with respect to the enforceability of this Third Amendment, the Revolving Loan
Notes and the Credit Agreement, as amended hereby, and the other Loan Papers;
(i) simultaneously herewith, TCB shall be paid in full all amounts due
and owing to it pursuant to the Loan Papers, and TCB shall (i) execute a release
of Company with respect to all obligations of Company to TCB under the Loan
Papers and (ii) return its Revolving Loan Note to Administrative Lender marked
"Paid In Full" or words of similar import;
(j) Administrative Lender shall have received, for the account of each
Lender, a fee equal to 0.15% of each Lender's Specified Percentage of the
Commitment, as established hereby;
(k) simultaneously herewith, Administrative Lender shall have received
payment of all fees due and payable thereto pursuant to that certain fee letter
from Administrative Lender and its Affiliate to Company, dated November 7, 1996;
and
(l) Administrative Lender and Lenders shall have received in form and
substance satisfactory to Administrative Lender and Lenders, such other
documents, certificates and instruments as Lenders shall require.
-16-
4. FUNDING. Simultaneously with the satisfaction of the Conditions of
Effectiveness set forth in Section 3 hereof, each Lender shall be deemed to have
purchased or sold, as the case may be, without recourse an amount of each other
Lender's Advances under the Revolving Loan such that after giving effect to this
Third Amendment, the portion of outstanding Advances under the Revolving Loan
owed to each Lender shall be equal to its Specified Percentage, as established
hereby, of the outstanding Advances under the Revolving Loan.
5. PRIOR NOTES. Simultaneously with the satisfaction of the Conditions
of Effectiveness set forth in Section 3 hereof, each Lender which was a party to
the Credit Agreement prior to this Third Amendment (other than TCB) shall return
its prior Revolving Loan Note to Administrative Lender marked "Renewed" or words
of similar import.
6. GUARANTOR'S ACKNOWLEDGEMENT. By signing below, each Guarantor (i)
acknowledges, consents and agrees to the execution, delivery and performance by
Company of this Third Amendment, (ii) acknowledges and agrees that its
obligations in respect of its Guaranty Agreement and Subordination Agreement are
not released, diminished, waived, modified, impaired or affected in any manner
by this Third Amendment or any of the provisions contemplated herein, (iii)
ratifies and confirms its obligations under its Guaranty Agreement and
Subordination Agreement, and (iv) acknowledges and agrees that it has no claim
or offsets against, or defenses or counterclaims to, its Guaranty Agreement and
Subordination Agreement.
7. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this Third
Amendment.
(b) The Credit Agreement, as amended by this Third Amendment, and all
other Loan Papers shall remain in full force and effect and are hereby ratified
and confirmed.
8. COSTS, EXPENSES AND TAXES. Company agrees to pay on demand all costs
and expenses of Administrative Lender in connection with the preparation,
reproduction, execution and delivery of the Third Amendment and the other
instruments and documents to be delivered hereunder (including the reasonable
fees and out-of-pocket expenses of Special Counsel).
9. EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument.
10. GOVERNING LAW; BINDING EFFECT. This Third Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
(without giving
-17-
effect to conflict of laws) and the United States of America, and shall be
binding upon Company, each Guarantor and each Lender and their respective
successors and assigns.
11. HEADINGS. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Third Amendment for any other purpose.
12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD
AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES.
================================================================================
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
================================================================================
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date first above written.
FRANCHISE FINANCE CORPORATION OF
AMERICA
By: /s/ Xxxx X. Xxxxxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxxxxx
Executive Vice President and Chief
Financial Officer
-19-
NATIONSBANK OF TEXAS, N.A., as
Administrative Lender and Lender
Specified Percentage:
15.250%
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
--------------------------
-00-
XXXXXXX XXXX XX XXXXXXX
Specified Percentage:
10.750%
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------
Title: Real Estate Loan Officer
--------------------------
-00-
XXXX XX XXXXXXXX, XXXXXXX BRANCH
Specified Percentage:
10.750%
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: Director
--------------------------
-22-
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
Specified Percentage:
10.750%
By: /s/ Koh Xxxxxxxx
----------------------------------
Name: Koh Xxxxxxxx
---------------------------
Title: Joint General Manager
--------------------------
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
---------------------------
Title: Vice President
--------------------------
-23-
DRESDNER BANK AG
Specified Percentage: NEW YORK AND GRAND CAYMAN BRANCHES
7.500%
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: Vice President
---------------------------
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------
Title: Assistant Vice President
----------------------------
-24-
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
Specified Percentage:
7.500%
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------
Title: Deputy General Manager
--------------------------
By: /s/ Xxxxx X. Tackling
----------------------------------
Name: Xxxxx X. Tackling
----------------------------
Title: Vice President
--------------------------
-25-
BANK HAPOALIM, B.M.
Specified Percentage:
6.500%
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
---------------------------
Title: First Vice President &
Manager
---------------------------
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President
---------------------------
-00-
XXXXXXXXXXX XXXXXXXXXXXXXXXXXX,
XXX XXXXXXX BRANCH
Specified Percentage:
6.500%
By: /s/ Christian Jagenberg
----------------------------------
Christian Jagenberg
Senior Vice President
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx
Vice President
-27-
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
Specified Percentage:
6.500%
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxx
---------------------------
Title: SVP & Senior Manager
---------------------------
-28-
NORWEST BANK ARIZONA, NATIONAL
ASSOCIATION
Specified Percentage:
6.500%
By: /s/ J. Xxxxxx XxXxxxxx
----------------------------------
Name: J. Xxxxxx XxXxxxxx
---------------------------
Title: Vice President
---------------------------
-29-
SIGNET BANK
Specified Percentage:
6.500%
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------
Title: Vice President
---------------------------
-00-
XXXXX XXXX XX XXXXXXXXXXX (NEW
YORK BRANCH)
Specified Percentage:
5.000%
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: Assistant Vice President
---------------------------
By: /s/ Xxxxxx Xxxxx, III
----------------------------------
Name: Xxxxxx Xxxxx, III
---------------------------
Title: Managing Director
---------------------------
-31-
ACKNOWLEDGED AND AGREED:
FFCA ACQUISITION CORPORATION
FFCA INSTITUTIONAL ADVISORS, INC.
FFCA MORTGAGE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxxxxx
Executive Vice President and
Chief Financial Officer
-32-
EXHIBIT J
---------
BID RATE NOTE
$100,000,000 Dallas, Texas December 27, 1996
FOR VALUE RECEIVED, the undersigned, FRANCHISE FINANCE CORPORATION OF
AMERICA, a Delaware corporation ("Borrower"), HEREBY PROMISES TO PAY to the
order of NationsBank, N.A. ("Lender") the lesser of ONE HUNDRED MILLION AND
NO/100 DOLLARS ($100,000,000.00) 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 Lender 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 Lender
and Borrower pursuant to Section 2.2(h) of the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Administrative Lender (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
Lender 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 Credit Agreement
dated as of December 27, 1995 among Borrower, NationsBank of Texas, N.A., as
Administrative Lender, 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 Lender 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. Borrower 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
----------------------------------
Xxxx X. Xxxxxxxxxxxx
Executive Vice President and
Chief Financial Officer
-2-
