$305,152,000
FFCA SECURED LENDING CORPORATION
SECURED FRANCHISE LOAN
TRUST CERTIFICATES, SERIES 1998-1
PURCHASE AGREEMENT
May 7, 1998
May 7, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
FFCA Secured Lending Corporation, a Delaware corporation (the
"Company"), proposes to sell to the several purchasers named in Schedule I
hereto (the "Initial Purchasers") $305,152,000 aggregate principal or notional
amount of FFCA Secured Lending Corporation Secured Franchise Loan Trust
Certificates, Series 1998-1, Class A-1a, Class A-1b, Class A-2a, Class A-2b,
Class B-1, Class B-2, Class C-1, Class C-2, Class D-1, Class D-2 and Class IO
(the "Securities"). The Securities will evidence the entire beneficial interest
in a trust (the "Grantor Trust Fund") to be formed pursuant to a Grantor Trust
Agreement (the "Grantor Trust Agreement") dated as of April 1, 1998, between
LaSalle National Bank, as grantor trust trustee (in such capacity, the "Grantor
Trust Trustee") and the Company. The Grantor Trust Fund will consist primarily
of the FFCA Secured Franchise Loan Trust 1998-1 Secured Franchise Loan-Backed
Bonds (the "Bonds") designated as Class A-1a, Class A-1b, Class A-2a, Class
A-2b, Class B-1, Class B-2, Class C-1, Class C-2, Class D-1 and Class D-2 (the
"Underlying Bonds"). The Bonds will be issued by FFCA Secured Franchise Loan
Trust 1998-1 (the "Owner Trust"), a Delaware business trust to be established by
the Company pursuant to an Owner Trust Agreement, dated as of April 1, 1998 (the
"Owner Trust Agreement"), between the Company and Wilmington Trust Company, as
owner trustee (the "Owner Trustee").
The Bonds will be issued pursuant to an Indenture, dated as of April 1,
1998 (the "Indenture"), between the Owner Trust and LaSalle National Bank, as
indenture trustee (in such capacity, the "Indenture Trustee" and, in either the
capacity as Grantor Trust Trustee or as Indenture Trustee, the "Trustee"). The
Bonds will be secured by a first priority security interest in, and will be
payable solely from, the assets of the Owner Trust (the "Owner Trust Estate"),
which will consist primarily of a pool (the "Loan Pool") of (i) 502 fixed and
adjustable rate, monthly pay, first
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lien, commercial loans (the "Mortgage Loans"), each of which is secured by real
estate and other property used in the operation of a single chain restaurant,
convenience store, convenience and gasoline store, gasoline station or
automotive service facility (collectively, the "Chain Store Facilities"), (ii)
50 fixed and adjustable rate, monthly pay, first lien, commercial loans (the
"Equipment Loans"), each of which is secured by equipment used in the operation
of a single Chain Store Facility and (iii) six fixed and adjustable rate,
monthly pay, first lien, commercial loans, underwritten on the basis of the
creditworthiness of the related borrower and the value of the related collateral
and secured by real estate, equipment or other property used in the operation of
multiple Chain Store Facilities (the "Corporate Secured Loans" and, together
with the Mortgage Loans and the Equipment Loans, the "Secured Loans"). As of
April 1, 1998, the Secured Loans had an aggregate principal amount of
approximately $335,333,359. Unless otherwise specified herein, references herein
to the Secured Loans will be deemed not to include any Retained Interest (as
defined in the Memorandum (as defined below)).
The Secured Loans were originated by certain affiliates (the
"Originators") of Franchise Finance Corporation of America, a Delaware
corporation ("FFCA"). On the Closing Date (as defined herein), FFCA Acquisition
Corporation (the "Seller") will transfer all of the Secured Loans to the Company
pursuant to a Loan Sale Agreement (the "Loan Sale Agreement"), dated as of April
1, 1998, among FFCA, the Seller and the Company. The Company will in turn assign
the Secured Loans to the Owner Trust, which will simultaneously grant a first
priority security interest in the Secured Loans to secure the Bonds. The Secured
Loans will be serviced and specially serviced on behalf of the Owner Trust by
FFCA, as master servicer and special servicer (in such capacity, the
"Servicer"), pursuant to a Servicing Agreement, dated as of April 1, 1998 (the
"Servicing Agreement"), among the Owner Trust, the Servicer, the Indenture
Trustee and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), (i) to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act and (ii) in offshore transactions in
reliance on Regulation S under the Securities Act ("Regulation S").
In connection with the sale of the Securities, the Company has prepared
a preliminary private placement memorandum (the "Preliminary Memorandum") and
will prepare a final private placement memorandum (the "Final Memorandum"
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and with the Preliminary Memorandum, each a "Memorandum") including a
description of the terms of the Securities, the terms of the offering and a
description of the Company, the Bonds, the Servicer, the Secured Loans, the Loan
Pool, applicable federal income tax consequences to purchasers and other
relevant information. As used herein, the term "Memorandum" shall include in
each case any documents incorporated by reference therein.
1. Representations and Warranties. The Company and FFCA represent and
warrant to, and agree with, you that:
(a) The Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Initial Purchasers to confirm sales
and on the Closing Date (as defined in Section 4), will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not
apply to statements or omissions in either Memorandum based upon
information relating to any Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through you expressly for use
therein.
(b) As of the date hereof, FFCA is, and, as of the Closing
Date, will be, duly incorporated and validly existing as a corporation
in good standing under the laws of the State of Delaware, with full
power and authority (corporate and other) to own its properties and
conduct its business as described in the Memorandum and to enter into
and perform its obligations under the Loan Sale Agreement, the
Servicing Agreement, this Agreement and the Management Agreement, dated
as of April 1, 1998 (the "Management Agreement"), among the Owner
Trust, the Owner Trustee and FFCA, as manager (except where the failure
to have such power and authority would not have a material adverse
effect on its ability to own its properties or to conduct its business
or to enter into or perform its obligations under the Loan Sale
Agreement, the Servicing Agreement, this Agreement and the Management
Agreement).
(c) As of the Closing Date, no material adverse change in the
condition (financial or otherwise) or the earnings, business affairs or
business prospects (a "Material Adverse Change") of FFCA will have
occurred since the date hereof.
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(d) As of the date of the Final Memorandum and as of the
Closing Date, the Company will have been duly incorporated and will be
validly existing as a corporation in good standing under the laws of
the State of Delaware, with full power and authority (corporate and
other) to own its properties and conduct its business as described in
the Memorandum and to enter into and perform its obligations under the
Owner Trust Agreement, the Grantor Trust Agreement, the Loan Sale
Agreement, this Agreement and the Management Agreement (except where
the failure to have such power and authority would not have a material
adverse effect on its ability to own its properties or to conduct its
business or to enter into or perform its obligations under the Owner
Trust Agreement, the Grantor Trust Agreement, the Loan Sale Agreement,
the Servicing Agreement, this Agreement and the Management Agreement).
(e) As of the date of the Final Memorandum and as of the
Closing Date, the Owner Trust will have been duly organized and will be
validly existing as a business trust in good standing under the laws of
the State of Delaware, with full power and authority to own its
properties and conduct its business as described in the Memorandum, to
issue the Bonds and to enter into and perform its obligations under the
Servicing Agreement, the Indenture and the Bonds (except where the
failure to have such power and authority would not have a material
adverse effect on its ability to own its properties or to conduct its
business or to enter into or perform its obligations under the
Servicing Agreement, the Indenture and the Bonds).
(f) As of the date of the Final Memorandum and as of the
Closing Date, the Seller will have been duly incorporated and will be
validly existing as a corporation in good standing under the laws of
the State of Delaware, with full power and authority (corporate and
other) to own its properties and conduct its business as described in
the Memorandum and to enter into and perform its obligations under the
Loan Sale Agreement (except where the failure to have such power and
authority would not have a material adverse effect on its ability to
own its properties or to conduct its business or to enter into or
perform its obligations under the Loan Sale Agreement).
(g) This Agreement has been duly authorized, executed and
delivered by FFCA and the Company.
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(h) As of the Closing Date, the Owner Trust Agreement and the
Grantor Trust Agreement will have been duly authorized, executed and
delivered by the Company and will constitute valid and binding
agreements of the Company, enforceable against the Company in
accordance with their respective terms.
(i) As of the Closing Date, the Securities, when duly and
validly authenticated and delivered pursuant to the Grantor Trust
Agreement, will have been duly and validly issued and will be entitled
to the benefits of the Grantor Trust Agreement.
(j) As of the Closing Date, the Indenture, the Servicing
Agreement and the Management Agreement, when duly and validly executed
and delivered by the Owner Trustee, will have been duly authorized,
executed and delivered by the Owner Trust and will constitute valid and
binding agreements of the Owner Trust, enforceable against the Owner
Trust in accordance with their respective terms.
(k) As of the Closing Date, the Bonds, when duly and validly
executed by the Owner Trustee and authenticated and delivered by the
Trustee pursuant to the Indenture, will have been duly executed,
authenticated, issued and delivered by the Owner Trust, will constitute
valid and binding obligations of the Owner Trust, enforceable against
the Owner Trust in accordance with their terms and will be entitled to
the benefits of the Indenture.
(l) As of the Closing Date, the Owner Trust Agreement will
have been duly authorized, executed and delivered by the Company and
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(m) As of the Closing Date, the Loan Sale Agreement will have
been duly authorized, executed and delivered by FFCA, the Company and
the Seller and will constitute a valid and binding agreement of FFCA,
the Company and the Seller, enforceable against FFCA, the Company and
the Seller in accordance with its terms.
(n) As of the Closing Date, the Servicing Agreement will have
been duly authorized, executed and delivered by the Servicer and the
Owner Trust, when duly and validly executed and delivered by Servicer
and the Owner
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Trustee, and will constitute a valid and binding agreement of the
Servicer and the Owner Trust, enforceable against the Servicer and the
Owner Trust in accordance with its terms.
(o) As of the Closing Date, the Management Agreement will have
been duly authorized, executed and delivered by FFCA and will
constitute a valid and binding agreement of FFCA, enforceable against
FFCA in accordance with its terms.
(p) As of the Closing Date, the Grantor Trust Agreement, the
Securities, the Indenture, the Bonds, the Servicing Agreement, the
Owner Trust Agreement, the Loan Sale Agreement and the Management
Agreement will conform in all material respects to the descriptions
thereof contained in the Memorandum.
(q) As of the date hereof, there is, and, as of the Closing
Date, there will be, no action, suit or proceeding, inquiry or
investigation pending against or, to the knowledge of FFCA or the
Company, threatened against or affecting, FFCA, the Owner Trust or the
Company before any court or arbitrator or any governmental body, agency
or official which could reasonably be expected to result in a Material
Adverse Change in respect of FFCA, the Owner Trust or the Company, or
which in any manner challenges the validity of the Grantor Trust
Agreement, the Loan Sale Agreement, the Securities, the Indenture, the
Bonds, the Owner Trust Agreement, the Servicing Agreement, the
Management Agreement or this Agreement.
(r) As of the Closing Date, the execution and delivery of, and
the performance by FFCA of all of its obligations under, the Loan Sale
Agreement, the Management Agreement, the Servicing Agreement and this
Agreement and the consummation of the transactions herein and therein
contemplated will not contravene or conflict with the certificate of
incorporation or by-laws of FFCA and will not conflict with or result
in a breach of any terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject, or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over it or its properties or assets, except where such
conflicts, breaches and defaults in the aggregate would not result in a
Material Adverse Change in respect of FFCA.
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(s) As of the Closing Date, the execution and delivery of, and
the performance by the Company of all of its obligations under the
Grantor Trust Agreement, the Loan Sale Agreement, the Owner Trust
Agreement and this Agreement and the consummation of the transactions
herein and therein contemplated will not contravene or conflict with
the certificate of incorporation or by-laws of the Company and will not
conflict with or result in a breach of any terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its property or assets,
including the Secured Loans, is subject, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over it or its properties or assets, except where such
conflicts, breaches and defaults in the aggregate would not result in a
Material Adverse Change in respect of the Company.
(t) As of the Closing Date, the execution and delivery of, and
the performance by the Owner Trust of, all of its obligations under the
Bonds, the Indenture, the Servicing Agreement and the Management
Agreement and the consummation of the transactions herein and therein
contemplated will not contravene or conflict with the Owner Trust
Agreement and will not conflict with or result in a breach of any terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its property or assets, including the Secured Loans, is subject,
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over it or its properties or assets, except
where such conflicts, breaches and defaults in the aggregate would not
result in a Material Adverse Change in respect of the Owner Trust.
(u) Neither FFCA nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an "Affiliate") of FFCA has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the
sale of the Securities in a manner that would require the registration
under the Securities Act of the Securities or (ii) engaged in any form
of general solicitation or general advertising in connection with the
offering of the Securities, (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act.
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(v) None of FFCA, its Affiliates or any person acting on its
or their behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Securities, and FFCA and its Affiliates and any person acting on its or
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S.
(w) Neither the Grantor Trust Fund created by the Grantor
Trust Agreement nor the Owner Trust is an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(x) It is not necessary in connection with the offer, sale and
delivery of the Securities in the manner contemplated by this Agreement
and the Memorandum to register the Securities under the Securities Act.
(y) No qualification of the Indenture or the Grantor Trust
Agreement under the Trust Indenture Act of 1939, as amended (the "1939
Act"), is required.
(z) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(aa) As of the Closing Date, Xxxxxxx & Xxxxxxx L.L.P., which
will deliver the letters required by Section 5(a)(ix) of this
Agreement, are independent public accountants with respect to the
Company and FFCA as required by the Securities Act and the rules and
regulations promulgated thereunder.
(bb) At the time of execution and delivery of the Loan Sale
Agreement, the Seller will be the sole owner and holder of the Secured
Loans free and clear of all monetary liens, pledges, charges or
security interests of any nature encumbering its right, title and
interest therein, except as otherwise described in the Memorandum
("Liens"), the Seller will have the power and authority to enter into
the Loan Sale Agreement and to transfer the Secured Loans to the
Company and the Loan Sale Agreement will be effective to transfer the
Secured Loans to the Company free and clear of all Liens.
(cc) Immediately prior to the sale and assignment of the
Secured Loans to the Owner Trust by the Company, the Company will own
each of the Secured Loans free and clear of all Liens and will have the
power and au-
9
thority to transfer the Secured Loans to the Owner Trust in exchange
for the Bonds and the Owner Trust Certificates, and the Owner Trust
Agreement will be effective to transfer the Secured Loans and the
rights of the Company in the Loan Sale Agreement to the Owner Trust
free and clear of all Liens.
(dd) At the time of the execution and delivery of the Grantor
Trust Agreement, the Company will own each of the Underlying Bonds free
and clear of all Liens and will have the power and authority to
transfer the Underlying Bonds to the Grantor Trust Fund, and the
Grantor Trust Agreement will be effective to transfer the Underlying
Bonds to the Grantor Trust Fund free and clear of all Liens.
(ee) Upon the execution and delivery of the Grantor Trust
Agreement, payment by the purchasers for the Securities and delivery to
such purchasers of the Securities, the Grantor Trust Fund will own the
Underlying Bonds and the purchasers will acquire title to the
Securities, in each case free of Liens except such Liens as may be
created or granted by the purchasers of the Securities.
(ff) All consents, approvals and authorizations of any
governmental body, subdivision, agency, board or authority
(collectively, "Governmental Authorities"), if any, required on the
part of the Company in connection with the execution and delivery by it
of the Grantor Trust Agreement, the Owner Trust Agreement, the Loan
Sale Agreement and this Agreement or the carrying out by it of the
transactions contemplated hereby or thereby have been obtained and are
in full force and effect except such as may be required in connection
with the documents to be recorded or filed, as the case may be, with
respect to the transfer of the Secured Loans and such as may be
required under state securities or blue sky laws.
(gg) All consents, approvals and authorizations of any
Governmental Authority, if any, required on the part of FFCA in
connection with the execution and delivery by it of the Loan Sale
Agreement, the Servicing Agreement, the Management Agreement and this
Agreement or the carrying out by it of the transactions contemplated
hereby or thereby have been obtained and are in full force and effect
except such as may be required in connection with the documents to be
recorded or filed, as the case may be, with respect to the transfer of
the Secured Loans and such as may be required under state securities or
blue sky laws.
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(hh) All consents, approvals and authorizations of any
Governmental Authority, if any, required on the part of the Owner Trust
in connection with the execution and delivery by it of the Bonds, the
Indenture, the Servicing Agreement and the Management Agreement or the
carrying out by it of the transactions contemplated thereby have been
obtained and are in full force and effect except such as may be
required in connection with the documents to be recorded or filed, as
the case may be, with respect to the transfer of the Secured Loans and
such as may be required under state securities or blue sky laws.
(ii) All consents, approvals and authorizations of any
Governmental Authority, if any, required on the part of the Seller in
connection with the execution and delivery by it of the Loan Sale
Agreement or the carrying out by it of the transactions contemplated
thereby have been obtained and are in full force and effect except such
as have been obtained, such as may be required in connection with the
documents to be recorded or filed, as the case may be, with respect to
the transfer of the Secured Loans and such as may be required under
state securities or blue sky laws.
(jj) At the date thereof and as of Closing Date, the
description of the Secured Loans appearing in the Final Memorandum will
be true and correct in all material respects.
(kk) As of the Closing Date, each of the representations and
warranties of FFCA set forth in the Loan Sale Agreement will be true
and correct in all material respects.
(ll) As of the Closing Date, each of the representations and
warranties of the Company set forth in the Grantor Trust Agreement will
be true and correct in all material respects.
(mm) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the Grantor Trust Agreement, the Loan Sale Agreement, the Owner Trust
Agreement, the Underlying Bonds and the Securities have been or will be
paid by the Company or FFCA prior to the Closing Date.
(nn) As of the Closing Date, the Servicer (or a Sub-Servicer)
will be licensed, qualified and in good standing in each state in which
a Site (as de-
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fined in the Memorandum) is located if the laws of such state require
licensing or qualification in order to perform its obligations as
Servicer under the Servicing Agreement.
(oo) Each Originator was licensed, qualified and in good
standing in each state in which a Site is located if the laws of such
state require licensing or qualification in order to originate the
Secured Loans originated by it, except where the failure of an
Originator to be so licensed would not have a material adverse effect
on the enforceability or validity of a Secured Loan.
(pp) With respect to each Mortgage Loan and, to the extent
applicable, Corporate Secured Loans, either (A) such Secured Loan is
insured under the Environmental Policy (as defined in the Loan Sale
Agreement) or (B) (x) a Phase I environmental assessment was conducted
with respect to the related Mortgaged Property (as defined in the Loan
Sale Agreement) that concluded that no further investigation of the
related Mortgaged Property was necessary or (y) if such Phase I
environmental assessment concluded that further investigation of such
Mortgaged Property was necessary, a Phase II environmental assessment
was conducted with respect to the related Mortgaged Property, and such
Phase II environmental assessment concluded that no remediation or
further action was required with respect to the related Mortgaged
Property.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal or notional amounts of Securities set
forth in Schedule I hereto opposite its name at the purchase prices set forth in
Schedule II (the "Purchase Prices") plus accrued interest, if any, to the
Closing Date.
FFCA and the Company hereby agree that, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial
Purchasers, it will not, during the period beginning on the date hereof and
continuing to and including the Closing Date, offer, sell, contract to sell or
otherwise dispose of any certificates or other securities substantially similar
to the Securities (other than the sale of the Securities under this Agreement).
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3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on May 14, 1998, or at
such other time on the same or such other date, not later than May 28, 1998, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
several Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the Purchase Price therefor plus accrued interest, if any, to the
date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded FFCA or any of FFCA's securities or in
the rating outlook for FFCA, or in the rating accorded any
securities for which the Company has acted as depositor, by
any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
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(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, of any of the Secured Loans from that
set forth in the Final Memorandum (exclusive of any amendments
or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the
Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i) and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of FFCA, to the effect set forth in Section 5(a)(i) and to the
effect that the representations and warranties of FFCA contained in
this Agreement are true and correct as of the Closing Date and that
FFCA has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxx Xxxx, outside counsel for FFCA, the Company
and the Seller, dated the Closing Date, to the effect set forth in
Exhibit A. Such opinion shall be rendered to the Initial Purchasers at
the request of FFCA and the Company and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxx Xxxxxxxx & Xxxx, outside counsel for FFCA,
the
14
Company and the Seller, dated the Closing Date, to the effect set forth
in Exhibit B. Such opinion shall be rendered to the Initial Purchasers
at the request of FFCA and the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxx & Xxxxxx, outside counsel for Owner Trust,
dated the Closing Date, to the effect set forth in Exhibit C. Such
opinion shall be rendered to the Initial Purchasers at the request of
FFCA and the Company and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxxx Xxxxxx & Finger, outside counsel for the
Owner Trustee, dated the Closing Date, to the effect set forth in
Exhibit D. Such opinion shall be rendered to the Initial Purchasers at
the request of FFCA and the Company and shall so state therein.
(h) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxx & Austin, outside federal and Illinois tax
counsel for FFCA, the Company and the Seller, dated the Closing Date,
to the effect set forth in Exhibit E. Such opinion shall be rendered to
the Initial Purchasers at the request of FFCA and the Company and shall
so state therein.
(i) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxx Xxxx, outside Arizona tax counsel for FFCA,
dated the Closing Date, to the effect set forth in Exhibit F. Such
opinion shall be rendered to the Initial Purchasers at the request of
FFCA and the Company and shall so state therein.
(j) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxx X. Xxxxxxxx, Esq., in-house counsel for the
Trustee and the Fiscal Agent, dated the Closing Date, to the effect set
forth in Exhibit G. Such opinion shall be rendered to the Initial
Purchasers at the request of FFCA and the Company and shall so state
therein.
(k) The Initial Purchasers shall have received on the Closing
Date an opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Initial Purchasers, dated the Closing Date, to the effect set
forth in Exhibit H.
15
(l) If any counsel named in this Section 5 is required to
deliver an opinion to Xxxx & Xxxxxx Credit Rating Co. ("DCR"), Fitch
IBCA, Inc. ("Fitch") or Xxxxx'x Investors Service, Inc. ("Moody's") in
connection with their ratings of the Securities, such opinion, dated
the Closing Date and addressed to the Initial Purchasers, or a letter,
dated the Closing Date, from each counsel delivering such opinions
stating that the Initial Purchasers are authorized to rely on such
opinions as though they were addressed to the Initial Purchasers.
(m) Copies of letters dated the Closing Date from DCR, Fitch
and Moody's to the Company to the effect that the Securities have been
definitively assigned the ratings set forth below the name of such
rating agency on the cover page of the Preliminary Memorandum.
(n) The Initial Purchasers shall have received on the date
hereof a letter, dated the date hereof, in form and substance
satisfactory to the Initial Purchasers, from Coopers & Xxxxxxx L.L.P.,
independent public accountants, to the effect that they have performed
certain specified procedures as a result of which they have determined
that such information as the Initial Purchasers may reasonably request
of an accounting, financial or statistical nature contained in the
Final Memorandum agrees with the accounting records of FFCA, the
Company and the Seller and the files of FFCA, the Company and the
Seller relating to the Secured Loans.
6. Covenants of the Company. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants
with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the business day next succeeding
the date of this Agreement and during the period mentioned in Section
6(c), as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
16
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Initial Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum
to comply with applicable law, forthwith to prepare and furnish, at its
own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as amended or supplemented,
will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request; provided, however, that the Company shall not
be required to qualify to do business in any jurisdiction in which it
is not now qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's, FFCA's, the Owner Trust's
and the Seller's counsel and the Company's accountants in connection
with the issuance and sale of the Securities and all other fees or
expenses in connection with the preparation of each Memorandum and all
amendments and supplements thereto, including all printing costs
associated therewith, and the delivering of copies thereof to the
Initial Purchasers, in the quantities herein above specified, (ii) all
costs and expenses related to the transfer and delivery of the
Securities to the Initial Purchasers, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or legal investment memorandum in connection with the offer and
sale of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale
under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Initial
17
Purchasers in connection with such qualification and in connection with
the Blue Sky or legal investment memorandum, (iv) any fees charged by
rating agencies for the rating of the Securities, (v) all document
production charges and expenses of counsel to the Initial Purchasers in
connection with the preparation of this Agreement, (vi) the fees and
expenses, if any, incurred in connection with the admission of the
Securities for trading in PORTAL or any appropriate market system,
(vii) the costs and charges of the Trustee and the Owner Trustee and
any transfer agent, registrar or depositary, (viii) the cost of the
preparation, issuance and delivery of the Securities, (ix) the costs
and expenses of the Company and FFCA relating to investor presentations
on any "road show" undertaken in connection with the marketing of the
offering of the Securities, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of FFCA, travel and lodging
expenses of the representatives and officers of the Company and FFCA
and any such consultants, and the cost of any aircraft chartered in
connection with the road show, and (x) all other cost and expenses
incident to the performance of the obligations of the Company and FFCA
hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section,
Section 8, and the last paragraph of Section 10, the Initial Purchasers
will pay all of their costs and expenses (other than reasonable fees
and disbursements of their counsel), including transfer taxes payable
on resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.
(f) Neither the Company, FFCA nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which could
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
18
(h) While any of the Securities remain "restricted securities"
within the meaning of the Securities Act, to make available, upon
request, to any seller of such Securities the information specified in
Rule 144A(d)(4) under the Securities Act, unless the Company or the
Owner Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of FFCA, its Affiliates or any person acting on its
or their behalf (other than the Initial Purchasers) will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Securities, and FFCA and its Affiliates and each person
acting on its or their behalf (other than the Initial Purchasers) will
comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date,
neither FFCA nor the Company will, or will permit any of their
respective affiliates (as defined in Rule 144A under the Securities
Act) to resell any of the Securities which constitute "restricted
securities" under Rule 144A that have been reacquired by any of them.
(7) Offering of Securities; Restrictions on Transfer. Each Initial
Purchaser, severally and not jointly, represents and warrants that such Initial
Purchaser is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly,
agrees with the Company and FFCA that (i) it will not solicit offers for, or
offer or sell, such Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (ii) it will solicit offers for such Securities only
from, and will offer such Securities only to, persons that it reasonably
believes to be (A) in the case of offers inside the United States, QIBs, and (B)
in the case of offers outside the United States, to persons other than U.S.
persons ("foreign purchasers," which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)) in reliance upon
Regulation S under the Securities Act that, in the case of (A) or (B), in
purchasing such Securi-
19
ties, are deemed to have represented and agreed as provided in the Final
Memorandum under the caption "Notice to Investors".
(b) Each Initial Purchaser, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales
outside the United States that:
(i) such Initial Purchaser understands that no action
has been or will be taken in any jurisdiction by FFCA or the
Company that would permit a public offering of the Securities,
or possession or distribution of either Memorandum or any
other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for
that purpose is required;
(ii) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which
it acquires, offers, sells or delivers Securities or has in
its possession or distributes either Memorandum or any such
other material, in all cases at its own expense;
(iii) the Securities have not been registered under
the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S.
persons except in accordance with Rule 144A or Regulation S
under the Securities Act or pursuant to another exemption from
the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the
Securities and will offer and sell the Securities (A) as part
of their distribution at any time and (B) otherwise until 40
days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of
Regulation S or as otherwise permitted in Section 7(a);
accordingly, neither such Initial Purchaser, its Affiliates
nor any persons acting on its or their behalf have engaged or
will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Securities, and
any such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering
restrictions requirement of Regulation S;
20
(v) such Initial Purchaser has (A) not offered or
sold and, prior to the date six months after the Closing Date,
will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (B) complied and will comply with
all applicable provisions of the Financial Services Act 1986
with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom,
and (C) only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is
of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be
issued or passed on;
(vi) such Initial Purchaser understands that the
Securities have not been and will not be registered under the
Securities and Exchange Law of Japan, and represents that it
has not offered or sold, and agrees not to offer or sell,
directly or indirectly, any Securities in Japan or for the
account of any resident thereof except pursuant to any
exemption from the registration requirements of the Securities
and Exchange Law of Japan and otherwise in compliance with
applicable provisions of Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior
to confirmation of sales of the Securities, it will have sent
to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been
registered under the U.S. Securities Act of 1933 (the
"Securities Act") and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days
21
after the later of the commencement of the offering and the
Closing Date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meaning given to them by
Regulation S."
Terms used in this Section 7(b) have the meanings given to them by
Regulation S.
8. Indemnity and Contribution. (a) The Company and FFCA agree to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Memorandum (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use therein (it
being understood that the only information relating to any Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through you
expressly for use therein is (x) the last two paragraphs on the cover of each of
the Preliminary Memorandum and the Final Memorandum, (y) the second sentence of
the last paragraph on page (iv) of each of the Preliminary Memorandum and the
Final Memorandum, and (z) the first, second, fourth and seventh paragraphs, and
the second sentence in the sixth paragraph, under "Plan of Distribution" in each
of the Preliminary Memorandum and the Final Memorandum).
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company and FFCA, their respective directors,
their respective officers and each person, if any, who controls the Company or
FFCA within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company and FFCA to such
22
Initial Purchaser, but only with reference to information relating to such
Initial Purchaser furnished to the Company in writing by such Initial Purchaser
through you expressly for use in either Memorandum or any amendments or
supplements thereto (it being understood that the only information relating to
any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through you expressly for use therein is (x) the last two paragraphs
on the cover of each of the Preliminary Memorandum and the Final Memorandum, (y)
the second sentence of the last paragraph on page (iv) of each of the
Preliminary Memorandum and the Final Memorandum, and (z) the first, second,
fourth and seventh paragraphs, and the second sentence in the sixth paragraph,
under "Plan of Distribution" in each of the Preliminary Memorandum and the Final
Memorandum).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 8(a), and by FFCA, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party 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
23
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, 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.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Initial Purchasers on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company on the
one hand and of the Initial Purchasers on the other hand in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and FFCA
on the one hand and the Initial Purchasers on the other hand in
connection with the offering of the Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering
of the Securities (before deducting expenses) received by the Company
and the total discounts and commissions received by the Initial
Purchasers bear to the aggregate offering price of the Securities. The
relative fault of the Company and FFCA on the one hand and of the
Initial Purchasers on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or
24
alleged omission to state a material fact relates to information
supplied by the Company and FFCA or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Initial Purchasers' respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective principal
amount of Securities they have purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would
not be just or equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities resold by it in the initial
placement of such Securities were offered to investors exceeds the
amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser or any person controlling any Initial Purchaser or by or on
behalf of the Company or FFCA, their respective officers or directors
or any person controlling the Company or FFCA and (iii) acceptance of
and payment for any of the Securities.
25
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company and FFCA, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of FFCA shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Final
Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in Schedule I
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased
26
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or of the Company or FFCA. In any such case
either you or the Company shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Final Memorandum or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Initial Purchaser from liability in respect of any default of such Initial
Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company or FFCA to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or FFCA shall be unable to perform their
respective obligations under this Agreement, the Company and FFCA will reimburse
the Initial Purchasers or such Initial Purchasers as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Initial Purchasers in connection with this Agreement or the offering
contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
27
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
FFCA SECURED LENDING
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
FRANCHISE FINANCE
CORPORATION OF
AMERICA
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Acting severally on behalf of themselves and
the several Initial Purchasers named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
28
SCHEDULE I
Principal Amount
or Notional Amount
of Securities to be
Initial Purchaser Purchased
----------------- -------------------
Class A-1a
----------
Xxxxxx Xxxxxxx & Co. Incorporated $ 25,500,000
Salomon Brothers Inc 20,400,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 5,100,000
------------
Total: $ 51,000,000
============
Class A-1b
----------
Xxxxxx Xxxxxxx & Co. Incorporated $ 75,948,000
Salomon Brothers Inc 60,758,400
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 15,189,600
------------
Total: $151,896,000
============
Class A-2a
----------
Xxxxxx Xxxxxxx & Co. Incorporated $ 16,000,000
Salomon Brothers Inc 12,800,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 3,200,000
------------
Total: $ 32,000,000
============
Class A-2b
----------
Xxxxxx Xxxxxxx & Co. Incorporated $ 9,978,500
Salomon Brothers Inc 7,982,800
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 1,995,700
------------
Total: $ 19,957,000
============
29
Class B-1
---------
Xxxxxx Xxxxxxx & Co. Incorporated $ 8,009,000
Salomon Brothers Inc 6,407,200
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 1,601,800
------------
Total: $ 16,018,000
============
Class B-2
---------
Xxxxxx Xxxxxxx & Co. Incorporated $ 2,051,000
Salomon Brothers Inc 1,640,800
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 410,200
------------
Total: $ 4,102,000
============
Class C-1
---------
Xxxxxx Xxxxxxx & Co. Incorporated $ 4,672,000
Salomon Brothers Inc 3,737,600
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 934,400
------------
Total: $ 9,344,000
============
Class C-2
---------
Xxxxxx Xxxxxxx & Co. Incorporated $ 1,196,000
Salomon Brothers Inc 956,800
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 239,200
------------
Total: $ 2,392,000
============
Class D-1
---------
Xxxxxx Xxxxxxx & Co. Incorporated $ 7,341,500
Salomon Brothers Inc 5,873,200
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 1,468,300
------------
Total: $ 14,683,000
============
30
Class D-2
---------
Xxxxxx Xxxxxxx & Co. Incorporated $ 1,880,000
Salomon Brothers Inc 1,504,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 376,000
------------
Total: $ 3,760,000
============
Class IO
--------
Xxxxxx Xxxxxxx & Co. Incorporated $ 10,869,666
Salomon Brothers Inc 8,695,733
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 2,173,933
------------
Total: $ 21,739,332
============
31
SCHEDULE I
Purchase Price
as a Percentage of
Principal Amount
or Notional Amount
Class of Securities
----- ------------------
Class A-1a 99.4788%
Class A-1b 99.4321%
Class A-2a 99.1679%
Class A-2b 99.1762%
Class B-1 99.2420%
Class B-2 98.9046%
Class C-1 98.9360%
Class C-2 98.6504%
Class D-1 98.6788%
Class D-2 98.3983%
Class IO 5.57837%
32
EXHIBIT A
OPINION OF XXXXX XXXX, AS COUNSEL
FOR THE COMPANY, FFCA AND THE SELLER
The opinion of Xxxxx Xxxx, as counsel for the Company, FFCA and the
Seller, to be delivered pursuant to Section 5(d) of the Purchase Agreement shall
be to the effect that:
(a) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware with corporate power and authority to own its
properties, including the Secured Loans, to conduct its business as
described in the Memorandum, to enter into and perform all of its
obligations under this Agreement, the Owner Trust Agreement and the
Loan Sale Agreement, to purchase the Secured Loans from the Seller and
to transfer such Secured Loans to the Owner Trust in exchange for the
Bonds and the Owner Trust Certificates and to transfer the Underlying
Bonds to the Grantor Trust Fund in exchange for the Securities.
(b) FFCA has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Delaware with corporate power and authority to own its properties,
including the Secured Loans, to enter into and perform all of its
obligations under this Agreement, the Loan Sale Agreement, the
Servicing Agreement and the Management Agreement, to act as Servicer in
respect of the Secured Loans and to conduct its business as described
in the Memorandum.
(c) The Seller has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware with corporate power and authority to own its
properties, including the Secured Loans, to conduct its business as
described in the Memorandum, to enter into and perform all of its
obligations under the Loan Sale Agreement, to originate or acquire the
Secured Loans and to sell and transfer the Secured Loans to the
Company.
(d) Except as set forth or contemplated in the Memorandum,
there
33
is no action, suit or proceeding pending against, or to the best of
such counsel's knowledge, threatened against or affecting, the Company,
FFCA or the Seller before any court or arbitrator or any governmental
body, agency or official, with respect to which there is a reasonable
possibility of a Material Adverse Change as to the Company, FFCA or the
Seller, as the case may be, or which in any manner challenges the
validity of the Indenture, the Bonds, the Owner Trust Agreement, the
Servicing Agreement, the Management Agreement, the Grantor Trust
Agreement, the Loan Sale Agreement, the Securities or this Agreement.
(e) Neither the execution or delivery by the Company of, nor
the performance by the Company of all of its obligations under, the
Grantor Trust Agreement, the Owner Trust Agreement, the Loan Sale
Agreement and this Agreement and the consummation of the transactions
herein and therein contemplated will violate or conflict with any
provision of the certificate of incorporation or by-laws of the Company
or conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under any of the following of
which such counsel has knowledge: any indenture, mortgage, deed of
trust, loan agreement or other agreement to which the Company is a
party or by which it is bound or to which any of its property or
assets, including the Secured Loans, is subject, or any applicable law
or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or any of its
properties or assets, except where such conflicts, breaches and
defaults in the aggregate would not have a material adverse effect on
the Company or the ability of the Company to perform its obligations
hereunder or under the Grantor Trust Agreement, the Owner Trust
Agreement or the Loan Sale Agreement.
(f) Neither the execution or delivery by FFCA of, nor the
performance by FFCA of all of its obligations under, the Servicing
Agreement, the Management Agreement, the Loan Sale Agreement and this
Agreement and the consummation of the transactions herein and therein
contemplated will violate or conflict with any provision of the
certificate of incorporation or by-laws of FFCA or conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under any of the following of which such counsel has
knowledge: any indenture, mortgage, deed of trust, loan agreement or
other agreement to which FFCA is a party or by which it is bound or to
which any of its property or assets is subject, or any applicable law
or statute or any order, rule or regulation of any court or
governmental agency or
34
body having jurisdiction over it or any of its properties or assets,
except where such conflicts, breaches and defaults in the aggregate
would not have a material adverse effect on FFCA or the ability of FFCA
to perform its obligations hereunder or under the Servicing Agreement,
the Management Agreement or the Loan Sale Agreement.
(g) Neither the execution or delivery by the Seller of, or the
performance by the Seller of all of its obligations under, the Loan
Sale Agreement and the consummation of the transactions therein
contemplated will violate or conflict with any provision of their
respective certificates of incorporation or by-laws or conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under any of the following of which such counsel has
knowledge: any indenture, mortgage, deed of trust, loan agreement or
other agreement to which the Seller is a party or by which it is bound
or to which any of its property or assets, including the Secured Loans,
is subject, or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over them or any of their respective properties or assets,
except where such conflicts breaches and defaults in the aggregate
would not have a material adverse effect on the Seller or the ability
of the Seller to perform its obligations under the Loan Sale Agreement.
(h) Neither the execution or delivery by the Owner Trustee on
behalf of the Owner Trust of , nor the performance by the Owner Trust
of all of its obligations under, the Indenture, the Bonds, the
Servicing Agreement and the Management Agreement and the consummation
of the transactions therein contemplated will violate or conflict with
any provision of the Owner Trust Agreement or conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under any of the following of which such counsel has knowledge:
any indenture, mortgage, deed of trust, loan agreement or other
agreement to which the Owner Trust is a party or by which it is bound
or to which any of its property or assets, including the Secured Loans,
is subject, or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over it or any of its properties or assets, except where
such conflicts, breaches and defaults in the aggregate would not have a
material adverse effect on the Owner Trust or the ability of the Owner
Trust to perform its obligations under the Indenture, the Bonds, the
Servicing Agreement or the Management Agreement.
35
(i) This Agreement has been duly authorized, executed and
delivered by the Company and FFCA.
(j) The Grantor Trust Agreement has been duly authorized,
executed and delivered by the Company.
(k) The Loan Sale Agreement has been duly authorized, executed
and delivered by the Company, the Seller and FFCA.
(l) The Owner Trust Agreement has been duly authorized,
executed and delivered by the Company.
(m) The Servicing Agreement has been duly authorized, executed
and delivered by FFCA.
(n) The Management Agreement has been duly authorized,
executed and delivered by FFCA.
(o) No consent, approval, order, qualification or
authorization of or registration, declaration or filing with any court
or governmental agency or body is required by the Company for the
performance of the Grantor Trust Agreement, the Loan Sale Agreement,
the Owner Trust Agreement or this Agreement or the consummation of the
other transactions contemplated by the Grantor Trust Agreement, the
Loan Sale Agreement, the Owner Trust Agreement, this Agreement except
such as have been obtained, such as may be required in connection with
the documents to be recorded or filed, as the case may be, with respect
to the transfer of the Secured Loans and such as may be required under
state securities or blue sky laws (as to which such counsel need
express no opinion).
(p) No consent, approval, order, qualification or
authorization of or registration, declaration or filing with any court
or governmental agency or body is required by FFCA for the performance
of the Servicing Agreement, the Loan Sale Agreement, the Management
Agreement, this Agreement or the consummation of the other transactions
contemplated by the Servicing Agreement, the Loan Sale Agreement, the
Management Agreement, this Agreement except such as have been obtained,
such as may be required in connection with the documents to be recorded
or filed, as the case may be, with respect to the transfer of the
Secured Loans and such as may be required
36
under state securities or blue sky laws (as to which such counsel need
express no opinion).
(q) No consent, approval, order, qualification or
authorization of or registration; declaration or filing with any court
or governmental agency or body is required by the Seller for the
performance of the Loan Sale Agreement or the consummation of the other
transactions contemplated by the Loan Sale Agreement except such as
have been obtained, such as may be required in connection with the
documents to be recorded or filed, as the case may be, with respect to
the transfer of the Secured Loans and such as may be required under
state securities or blue sky laws (as to which such counsel need
express no opinion).
Such counsel may rely with respect to matters of law of any state other
than the States of Delaware and Arizona upon opinions of local counsel.
37
EXHIBIT B
OPINION OF XXXXXXX XXXXXXXX & XXXX, AS COUNSEL
FOR THE COMPANY, FFCA AND THE SELLER
The opinion of Xxxxxxx Xxxxxxxx & Xxxx, as counsel for the Company,
FFCA and the Seller, to be delivered pursuant to Section 5(e) of the Purchase
Agreement shall be to the effect that:
(a) The Securities, when duly and validly executed by the
Grantor Trust Trustee pursuant to the Grantor Trust Agreement and
authenticated by the Grantor Trust Trustee in the manner contemplated
by the Grantor Trust Agreement and delivered to and paid for by the
Initial Purchasers pursuant to this Agreement, will be validly issued
and outstanding and entitled to the benefits of the Grantor Trust
Agreement.
(b) Assuming the due authorization, execution and delivery
thereof by the Company and the Grantor Trust Trustee, the Grantor Trust
Agreement constitutes a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
subject to (1) applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance and other similar laws relating to and affecting
creditors' rights generally and court decisions with respect thereto,
and (2) the understanding that such counsel need express no opinion
with respect to the application of equitable principles in any
proceeding, whether at law or in equity.
(c) Assuming the due authorization, execution and delivery
thereof by the Company, the Seller and FFCA, the Loan Sale Agreement
constitutes a legal, valid and binding agreement of the Company, the
Seller and FFCA enforceable against the Company, the Seller and FFCA in
accordance with its terms, subject to (1) applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar laws
relating to and affecting creditors' rights generally and court
decisions with respect thereto and (2) the understanding that such
counsel need express no opinion with respect to the application of
equitable principles in any proceeding, whether at law or in equity.
38
(d) Assuming the due authorization, execution and delivery
thereof by the Company and the Owner Trust Trustee, the Owner Trust
Agreement constitutes a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
subject to (1) applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance and other similar laws relating to and affecting
creditors' rights generally and court decisions with respect thereto,
and (2) the understanding that such counsel need express no opinion
with respect to the application of equitable principles in any
proceeding, whether at law or in equity.
(e) Assuming the due authorization, execution and delivery
thereof by FFCA and the other parties thereto, the Servicing Agreement
constitutes a legal, valid and binding agreement of FFCA enforceable
against FFCA in accordance with its terms, subject to (1) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and other
similar laws relating to and affecting creditors' rights generally and
court decisions with respect thereto and (2) the understanding that
such counsel need express no opinion with respect to the application of
equitable principles in any proceeding, whether at law or in equity.
(f) Assuming the due authorization, execution and delivery
thereof by FFCA and the other parties thereto, the Management Agreement
constitutes a legal, valid and binding agreement of FFCA enforceable
against FFCA in accordance with its terms, subject to (1) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and other
similar laws relating to and affecting creditors' rights generally and
court decisions with respect thereto and (2) the understanding that
such counsel need express no opinion with respect to the application of
equitable principles in any proceeding, whether at law or in equity.
(g) Assuming the due execution and delivery thereof by the
Owner Trustee on behalf of the Owner Trust in accordance with the Owner
Trust Agreement, the Indenture, the Management Agreement and the
Servicing Agreement constitute legal, valid and binding agreements of
the Owner Trust enforceable against the Owner Trust in accordance with
their respective terms, subject to (1) applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar laws
relating to and affecting creditors' rights generally and court
decisions with respect thereto and (2) the understanding that such
counsel need express no opinion with respect to the
39
application of equitable principles in any proceeding, whether at law
or in equity.
(h) Assuming the due execution and delivery thereof by the
Owner Trustee on behalf of the Owner Trust in accordance with the Owner
Trust Agreement and the due authentication thereof by the Indenture
Trustee in accordance with the Indenture, the Bonds will have been duly
issued and are entitled to the benefits of the Indenture and will
constitute valid and binding obligations of the Owner Trust enforceable
against the Owner Trust in accordance with their respective terms,
subject to (1) applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance and other similar laws relating to and affecting
creditors' rights generally and court decisions with respect thereto
and (2) the understanding that such counsel need express no opinion
with respect to the application of equitable principles in any
proceeding, whether at law or in equity.
(i) The statements in the Memorandum under "Summary - ERISA
Considerations", "Summary - Legal Investment Status", in the second,
third and fourth paragraphs under "Special Considerations - The Secured
Loans - Environmental Risks", in the first sentence of the second
paragraph under "Special Considerations - The Secured Loans -
Limitations on Enforceability of Cross-Collateralization", "Special
Considerations - The Grantor Trust Certificates - Bankruptcy or
Insolvency of the Owner Trust", "ERISA Considerations", "Certain Legal
Aspects of Secured Loans" and "Legal Investment", to the extent they
constitute matters of law or legal conclusions with respect thereto,
while not purporting to discuss all ramifications of the issuance of
the Securities, have been prepared or reviewed by such counsel and in
all material respects fairly and accurately summarize those legal
matters which are discussed.
(j) The statements in the Memorandum under the heading
"Assignment of the Secured Loans", "Servicing of the Secured Loans",
"The Depositor", "The Owner Trust" and "Description of the Grantor
Trust Certificates", insofar as such statements purport to summarize
certain provisions of the Securities, the Bonds, the Loan Sale
Agreement, the Indenture, the Servicing Agreement, the Management
Agreement, the Owner Trust Agreement and the Grantor Trust Agreement,
constitute a fair summary of such provisions.
(k) Registration of the Securities under the Securities Act is
not re-
40
quired in connection with the offer, sale and delivery of the
Securities by the Initial Purchasers in the manner contemplated by the
Memorandum and this Agreement to "qualified institutional buyers" as
such term is defined in Rule 144A of the Securities Act, it being
understood that in rendering this opinion such counsel may assume that
the offer, sale and delivery of the Securities have been made as
contemplated by the Memorandum and this Agreement. Furthermore, such
counsel may express no opinion on the question whether, in the context
of any particular transfer of the Securities, registration of the
Securities under the Securities Act will be required.
(l) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(m) Neither the Grantor Trust Fund created by the Grantor
Trust Agreement nor the Owner Trust is an "investment company" or an
entity "controlled" by an "investment company" within the meaning of
such terms set forth in the 1940 Act.
(n) Neither the Grantor Trust Agreement nor the Indenture is
required to be qualified under the 1939 Act.
In addition, such counsel shall state that they have participated in
conferences with representatives of the Depositor, the Seller and FFCA, the
accountants of and other counsel to FFCA, the Seller and the Depositor and
representatives of the Trustee, the Initial Purchasers and their respective
counsel at which the contents of the Memorandum and related matters were
discussed and, although such counsel need not pass upon, or assume
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Final Memorandum (except those portions of the Final Memorandum
specified in clauses (i) and (j) above), such counsel shall state that, on the
basis of the foregoing (relying as to materiality upon the statements and
opinions of officers and other representatives of the Seller, FFCA and the
Depositor), no facts have come to their attention that have led them to believe
that the Final Memorandum (except for the financial statements and schedules and
other financial, statistical or tabular data included in the Final Memorandum,
as to which such counsel need express no view), as of its date or as of the
Closing Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
41
Such counsel may rely with respect to matters of law of any state other
than the State of New York upon opinions of local counsel.
42
EXHIBIT C
OPINION OF XXXXXX & XXXXXX, AS COUNSEL
FOR THE OWNER TRUST
The opinion of Xxxxxx & Xxxxxx, as counsel for the Owner Trust, to be
delivered pursuant to Section 5(f) of the Purchase Agreement shall be to the
effect that the security interest of the Indenture Trustee in the Secured Loans
and proceeds thereof was perfected in each applicable jurisdiction and will
constitute a first perfected security interest therein.
43
EXHIBIT D
OPINION OF XXXXXXXX XXXXXX & FINGER,
AS COUNSEL FOR THE OWNER TRUSTEE
The opinion of Xxxxxxxx Xxxxxx & Finger, as counsel for the Owner
Trustee, to be delivered pursuant to Section 5(g) of the Purchase Agreement
shall be to the effect that:
(a) The Owner Trust Agreement has been duly authorized,
executed and delivered by Wilmington Trust Company ("WTC") and is a
valid and binding agreement of WTC.
(b) The Indenture, the Servicing Agreement and the Management
Agreement have been duly authorized, executed and delivered by the
Owner Trustee on behalf of the Owner Trust and are the valid and
binding agreements of the Owner Trust acting through the Owner Trustee.
(c) The Owner Trust has been duly organized and is validly
existing and in good standing as a business trust under the laws of the
State of Delaware and has the power and authority to issue the Bonds,
to pledge the Secured Loans as collateral for the Bonds and to conduct
its business as contemplated by the Indenture, the Owner Trust
Agreement, the Servicing Agreement and the Management Agreement.
(d) The Bonds have been duly authorized and executed by the
Owner Trust acting through the Owner Trustee.
(e) The Owner Trustee and WTC, as the case may be, have full
power, authority and legal right to execute and deliver and to perform
and observe the provisions of the Indenture, the Servicing Agreement,
the Management Agreement and the Owner Trust Agreement, and the Owner
Trustee has full power, authority and legal right to acquire, hold and
pledge the Secured Loans as collateral for the Bonds and to carry out
the transactions contemplated in the Indenture and the Owner Trust
Agreement.
(f) To the best of the knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened against or
affect-
44
ing WTC before or by any court, arbitrator, administrative agency or
other governmental authority which, if adversely decided, would
materially and adversely affect the ability of the Owner Trustee or
WTC, as the case may be, to carry out the transactions contemplated in
the Bonds, the Indenture, the Servicing Agreement and the Management
Agreement.
(g) The execution, delivery and performance of the Bonds, the
Indenture, the Servicing Agreement, the Management Agreement and the
Owner Trust Agreement by the Owner Trustee or WTC, as the case may be,
will not conflict with or constitute a breach of or default under the
certificate of incorporation or by-laws of WTC or, to the best of the
knowledge of such counsel, any agreement, indenture or other instrument
to which WTC is a party or by which it or any of its properties may be
bound, or any law, administrative regulation or court decree applicable
to WTC.
(h) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of
the State of Delaware is required for the execution, delivery or
performance by WTC or the Owner Trustee, as the case may be, of the
Bonds, the Indenture, the Servicing Agreement, the Management Agreement
or the Owner Trust Agreement, except such as have been obtained, such
as may be required in connection with the documents to be recorded or
filed, as the case may be, with respect to the transfer of the Secured
Loans and such as may be required under state securities or blue sky
laws (as to which such counsel need express no opinion).
(i) The holders of the Owner Trust Certificates issued
pursuant to the Owner Trust Agreement have no legal or equitable right
to obtain possession of the Secured Loans and other collateral for the
Bonds prior to the payment of all principal of and interest on the
Bonds and the termination of the Indenture. A creditor of any such
holder would have no greater rights to reach the Secured Loans and
other collateral for the Bonds to satisfy the debts of such holder than
the holder itself.
45
EXHIBIT E
OPINION OF SIDLEY & AUSTIN, AS FEDERAL
AND ILLINOIS TAX COUNSEL
FOR THE COMPANY, FFCA AND THE SELLER
The opinion of Sidley & Austin, as federal and Illinois tax counsel for
the Company, FFCA and the Seller, to be delivered pursuant to Section 5(h) of
the Purchase Agreement shall be to the effect that:
(a) The Underlying Bonds will be characterized as debt
instruments for federal income tax purposes.
(b) For federal income tax purposes, the Grantor Trust Fund
will be characterized as a grantor trust under subpart E of subchapter
J of the Code.
(c) For federal income tax purposes, the Securities will be
treated as evidencing the ownership of "stripped bonds" (or, in the
case of the Class IO Securities, "stripped coupons") within the meaning
of Section 1286 of the Code.
(d) The Owner Trust will be treated as a qualified REIT
subsidiary as described in Section 856(i) of the Code for federal
income tax purposes.
(e) The statements in the Memorandum under the headings
"Summary of Memorandum--Certain Federal Income Tax Consequences" and
"Certain Federal Income Tax Consequences", to the extent they
constitute matters of law or legal conclusions with respect thereto
have been prepared or reviewed by such counsel and in all material
respects fairly and accurately summarize those legal matters which are
discussed.
(f) The performance by the Trustee of its duties under the
Indenture and the Grantor Trust Agreement, and the holding of the
Grantor Trust Fund and the Secured Loans that secure the Bonds, in the
State of Illinois will not result in the imposition of an Illinois
state tax imposed on or measured by the net taxable income or the gross
receipts of the Grantor Trust Fund.
46
EXHIBIT F
OPINION OF XXXXX XXXX, AS ARIZONA
TAX COUNSEL FOR FFCA
The opinion of Xxxxx Xxxx, as Arizona tax counsel for FFCA, to be
delivered pursuant to Section 5(i) of the Purchase Agreement shall be to the
effect that the servicing of the Secured Loans by FFCA pursuant to the Servicing
Agreement will not result in the imposition of an Arizona state tax imposed on
or measured by the net taxable income or the gross receipts of the Grantor Trust
Fund or the Owner Trust.
47
EXHIBIT G
OPINION OF XXXXXX X. XXXXXXXX, ESQ., AS COUNSEL
FOR THE TRUSTEE AND THE FISCAL AGENT
The opinion of Xxxxxx X. Xxxxxxxx, Esq., as counsel for the Trustee and
the Fiscal Agent, to be delivered pursuant to Section 5(j) of the Purchase
Agreement shall be to the effect that:
(a) The Trustee has been duly incorporated and is validly
existing as a national banking association in good standing under the
laws of the United States and the Fiscal Agent is a foreign banking
organization authorized by the Commissioner of Banks and Trust
Companies, State of Illinois, to do business in Illinois and the Fiscal
Agent is in good standing in Illinois.
(b) The Trustee has the requisite power and authority to enter
into the Grantor Trust Agreement, the Indenture and the Servicing
Agreement (the "Trustee Agreements").
(c) The Fiscal Agent has requisite power and authority to
enter into the Servicing Agreement.
(d) No action, corporate or otherwise, is necessary on the
part of the Trustee or the Fiscal Agent to authorize the performance by
the Trustee or the Fiscal Agent of their respective obligations under
such Trustee Agreements or to authorize the execution and delivery of
such Trustee Agreements, other than such action as has been taken and
is in full force and effect.
(e) The execution, delivery and performance by the Trustee and
the Fiscal Agent of their respective obligations and duties under the
Trustee Agreements to which they are parties, and as enumerated above,
do not in any materially adverse manner (i) breach or conflict with or
violate the express provisions of the charter or by-laws or other
organizational documents of the Trustee or the Fiscal Agent, (ii)
violate any applicable laws, rule or regulation of the United States,
the State of Illinois or any of their agencies, (iii) violate any
order, writ, injunction or decree of any court or governmental
authority or agency of the United States or the State of Illinois or
any arbitral award of
48
which such counsel has knowledge or (iv) result in a breach of,
conflict with or constitute a default under, require any consent under,
or result in the acceleration or required prepayment of any
indebtedness pursuant to the terms of, any agreement or instrument of
which such counsel has knowledge to which the Trustee or the Fiscal
Agent is party or by which it is bound or to which it is subject.
(f) No authorizations, consents, approvals, licenses, filings,
or registration with any governmental or regulatory authority or agency
of the United States or the State of Illinois, except for those that
have been obtained and are in full force and effect or those that would
not have a materially adverse effect on either the Trustee's or Fiscal
Agent's ability to perform each of their obligations under such Trustee
Agreements, are required in connection with the execution, delivery or
performance by the Trustee or the Fiscal Agent of the Trustee
Agreements to which they are a party or in connection with the
consummation of the transactions contemplated by such Trustee
Agreements.
(g) When executed, authenticated and delivered on behalf of
the Trustee in accordance with the Grantor Trust Agreement by the
person named in such opinion on behalf of the Trustee the Securities
will have been duly executed, authenticated and delivered by the
Trustee.
(h) When authenticated and delivered on behalf of the Trustee
in accordance with the Indenture by the person named in such opinion on
behalf of the Trustee the Bonds will have been duly executed,
authenticated and delivered by the Trustee.
(i) The Grantor Trust Agreement, the Indenture and the
Servicing Agreement, in the case of the Trustee, and the Servicing
Agreement, in the case of the Fiscal Agent, have been duly authorized,
executed and delivered by the Trustee or the Fiscal Agent, as the case
may be, and constitute the valid and binding obligations of the Trustee
and the Fiscal Agent, as the case may be, enforceable against the
Trustee and the Fiscal Agent, as the case may be, in accordance with
their respective terms, except to the extent that enforceability
thereof may be subject to (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting the rights or remedies of creditors; (b) general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law,
49
and the discretion of the court before which any proceeding therefor
may be brought; (c) the unenforceability under certain circumstances
under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a
liability where such indemnification or contribution is contrary to
public policy; and (d) possible limitations arising from applicable
laws other than those referred to in the preceding clause (a) upon the
remedial provisions contained in the Agreements, but such limitations
do not in the opinion of such counsel in and of themselves make the
remedies afforded inadequate for the practical realization of the
benefits purported to be provided thereby.
50
EXHIBIT H
OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP,
AS COUNSEL FOR THE INITIAL PURCHASERS
The opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, as counsel for
the Initial Purchasers, to be delivered pursuant to Section 5(k) of the Purchase
Agreement shall be to the effect that:
(a) This Agreement has been duly authorized, executed and
delivered by the Company and FFCA.
(b) The Company is validly existing and in good standing as a
corporation under the General Corporation Law of the State of Delaware.
(c) FFCA is validly existing and in good standing as a
corporation under the General Corporation Law of the State of Delaware.
(d) The Grantor Trust Agreement has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee and the Fiscal Agent,
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization moratorium or other similar laws now or hereafter in
effect relating to creditor's rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in equity or at law).
(e) When executed, authenticated and delivered by the Trustee
in accordance with the terms of the Grantor Trust Agreement and upon
payment and delivery thereof in accordance with the Purchase Agreement,
the Securities will be validly issued and outstanding and entitled to
the benefits of the Grantor Trust Agreement.
(f) The Grantor Trust Fund created by the Grantor Trust
Agreement is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of such terms set forth in
the 1940 Act.
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(g) Registration of the Securities under the Securities Act is
not required in connection with the offer, sale and delivery of the
Securities by the Initial Purchasers in the manner contemplated by the
Memorandum and this Agreement to "qualified institutional buyers" as
such term is defined in Rule 144A of the Securities Act and the Grantor
Trust Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, it being understood that in
rendering this opinion such counsel may assume that the offer, sale and
delivery of the Securities have been made as contemplated by the
Memorandum and this Agreement. Furthermore, such counsel need express
no opinion on the question whether, in the context of any particular
transfer of the Securities, registration of the Securities under the
Securities Act will be required.
We have participated in conferences with your representatives and with
representatives of the Company, FFCA, the Owner Trustee and the Trustee
concerning the Final Memorandum and have considered the matters required to be
stated therein and the statements contained therein, although we have not
independently verified the accuracy, completeness or fairness of such
statements. Based upon and subject to the foregoing, nothing has come to our
attention that would lead us to believe that the Final Memorandum, except for
the financial statements, financial schedules, and other financial and
statistical data included therein, as to which such counsel need express no
opinion, contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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