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LOAN PURCHASE AGREEMENT
between
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor,
and
FFCA ACQUISITION CORPORATION,
as Loan Originator,
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Dated as of August 14, 1998
TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
Section 1.1 Definitions..................................................1
ARTICLE II.
SALE OF LOANS; PAYMENT OF PURCHASE PRICE
Section 2.1 Sale of Loans to Depositor...................................1
Section 2.2 Obligations of Loan Originator...............................3
Section 2.3 Securitizations; Transfer Obligation.........................5
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Loan Originator Representations and Warranties...............7
ARTICLE IV.
LOAN ORIGINATOR'S COVENANTS
Section 4.1 Covenants of the Loan Originator.............................8
ARTICLE V.
INDEMNIFICATION BY THE LOAN ORIGINATOR
Section 5.1 Indemnification..............................................8
Section 5.2 Limitation on Liability of the Loan Originator...............9
Section 5.3 Indemnification..............................................9
Section 5.4 Procedure....................................................9
Section 5.5 Defense of Claims............................................9
ARTICLE VI.
TERMINATION
Section 6.1 Termination.................................................10
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment...................................................10
Section 7.2 Governing Law...............................................10
Section 7.3 Notices.....................................................10
Section 7.4 Severability of Provisions..................................11
Section 7.5 Counterparts................................................11
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Section 7.6 Further Agreements..........................................11
Section 7.7 Intention of the Parties....................................11
Section 7.8 Successors and Assigns; Assignment of Purchase Agreement....12
Section 7.9 Survival....................................................12
Section 7.10 Successors and Assigns......................................12
EXHIBIT
Exhibit A Form of LPA Assignment
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LOAN PURCHASE AGREEMENT (the "PURCHASE AGREEMENT"), dated as
of August 14, 1998, between FFCA ACQUISITION CORPORATION("FFCA ACQUISITION
CORP." or the "LOAN ORIGINATOR"), and FFCA LOAN WAREHOUSE CORPORATION (the
"DEPOSITOR").
W I T N E S S E T H
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WHEREAS, the Loan Originator owns and from time to time
originates Loans secured primarily by mortgages, deeds of trust and security
deeds on certain Loan Collateral and the Loan Documents related thereto;
WHEREAS, the parties hereto desire that on each Transfer Date
the Loan Originator sell all its right, title and interest in and to the Loans
and the related Loan Documents to Depositor pursuant to the terms of this
Purchase Agreement; and
WHEREAS, pursuant to the terms of a Sale and Servicing
Agreement, dated as of August 14, 1998 (the "SALE AND SERVICING AGREEMENT"),
among FFCA Franchise Loan Owner Trust 1998-1, as issuer (the "ISSUER"), the
Depositor, FFCA Acquisition Corp., as Loan Originator, Franchise Finance
Corporation of America, as Servicer and LaSalle National Bank, as indenture
trustee (the "INDENTURE TRUSTEE"), the Depositor will sell, transfer, assign and
otherwise convey to the Issuer all of its right, title and interest in and to
the Loans and related Loan Documents and this Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used but not
defined herein have the meanings assigned thereto in the Sale and Servicing
Agreement.
ARTICLE II.
SALE OF LOANS; PAYMENT OF PURCHASE PRICE
Section 2.1 SALE OF LOANS TO DEPOSITOR. (a) On the terms and
conditions of this Purchase Agreement, on each Transfer Date, the Loan
Originator agrees to offer for sale and sell Loans and deliver the related Loan
Documents to or at the direction of the Depositor. To the extent the Depositor
has or is able to obtain sufficient funds for the purchase thereof, the
Depositor agrees to purchase such Loans offered for sale by the Loan Originator.
(b) The price paid by the Depositor for the Loans sold on each
Transfer Date (the "SALE Price") shall be the lesser of (i) the product of (x)
an amount equal to the average of the Advance Factors with respect to the Loans
conveyed on such date, weighted by Transfer Cut-off Date Principal Balances
multiplied by (y) the sum of the Transfer Cut-off Date Principal Balances of the
Loans conveyed as of such Transfer Date, and (ii) the product of (x) the average
Maximum Advance Factors of the Loans conveyed on such date weighted by Transfer
Cut-off Date Principal Balances multiplied by (y) the sum of the Market Value of
all Loans conveyed on such date, in either case subtracting from the product any
Overcollateralization Shortfall as of such date.
(c) On each Transfer Date, the Loan Originator shall convey to
the Depositor the Loans and the other property and rights related thereto
described in the related LPA Assignment, the Depositor shall cause the deposit
of cash in the amount of the Sale Price in the Advance Account, and the Servicer
shall, promptly after such deposit, withdraw the Sale Price deposited in respect
of applicable Additional Note Principal Balance from the Advance Account, and
distribute such amount to or at the direction of the Loan Originator, only upon
the satisfaction of each of the following conditions on or prior to such
Transfer Date:
(i) the Loan Originator shall have delivered to the Issuer,
the Depositor and the Initial Noteholder duly executed Assignments,
which shall have attached thereto a Loan Schedule setting forth the
appropriate information with respect to all Loans conveyed on such
Transfer Date and shall have delivered to the Initial Noteholder a
computer readable transmission of such Loan Schedule;
(ii) the Loan Originator shall have deposited in the
Collection Account, all collections received with respect to each of
the Loans after but not including the applicable Transfer Cutoff Date;
(iii) as of such date, neither the Loan Originator nor the
Depositor shall (a) be insolvent, (b) be made insolvent by its
respective sale of Loans or (c) have reason to believe that its
insolvency is imminent;
(iv) the Revolving Period shall not have terminated;
(v) the Loan Originator shall have delivered to the Initial
Noteholder the Due Diligence Packages for such Loans as are to be
transferred on such Transfer Date at least five Business Days prior to
such Transfer Date, and the Initial Noteholder shall have completed its
due diligence investigation of such Loans and shall have approved, in
its sole discretion, each such Loan;
(vi) the Loan Originator shall have delivered the Indenture
Trustee's Loan File to the Custodian in accordance with the Custodial
Agreement and the Initial Noteholder shall have received a copy of the
Loan Schedule and Exceptions Report;
(vii) each of the representations and warranties made by the
Loan Originator pursuant to SECTION 3.04 of the Sale and Servicing
Agreement with respect to the Loans shall be true and correct as of the
related Transfer Date with the same effect as if then made, and the
Loan Originator shall have performed all obligations to be performed by
it under each of the Basic Documents on and prior to such Transfer
Date;
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(viii) the Loan Originator shall, at its own expense, on or
prior to the Transfer Date, indicate in its computer files that the
Loans identified in the related LPA Assignment have been sold to the
Depositor pursuant to this Purchase Agreement;
(ix) the Loan Originator shall have taken any action required
to maintain the ownership interest of the Depositor in the Trust Estate
and the first perfected security interest therein of the Indenture
Trustee;
(x) no selection procedures believed by the Loan Originator to
be adverse to the interests of the Noteholders shall have been utilized
in selecting the Loans to be conveyed on such Transfer Date;
(xi) the Loan Originator shall have provided the Depositor,
the Issuer, the Indenture Trustee and the Initial Noteholder no later
than two Business Days prior to the issuance of Additional Note
Principal Balance, a Notice of Additional Note Principal Balance;
(xii) after giving effect to the Additional Note Principal
Balance purchased on such date, the Note Principal Balance will not
exceed the Maximum Note Principal Balance; and
(xiii) all conditions precedent to the Initial Noteholder's
purchase of Additional Note Principal Balance pursuant to the Note
Purchase Agreement shall have been fulfilled as of such date.
(d) Subject to Section 7.7 hereof, the parties hereto intend
that each of the conveyances contemplated hereby be sales from the Loan
Originator to the Depositor of all of the Loan Originator's right, title and
interest in and to the Loans and other property described above. In the event
the transactions set forth herein are deemed not to be a sale, the Loan
Originator hereby grants to the Depositor a security interest in all of the Loan
Originator's right, title and interest in, to and under the Loans and other
property described above, whether now existing or hereafter created, to secure
all of the Loan Originator's obligations hereunder; and this Purchase Agreement
shall constitute a security agreement under applicable law.
Section 2.2 OBLIGATIONS OF LOAN ORIGINATOR.
(a) On or prior to the Closing Date and each Transfer Date,
the Initial Noteholder shall have received evidence satisfactory to it of (i)
the completion of all recordings, registrations and filings as may be necessary
or, in the opinion of the Initial Noteholder, desirable to perfect or evidence
the assignment by the Loan Originator to the Depositor of the Loan Originator's
ownership interest in the Trust Estate including, without limitation, the Loans
and related property and the proceeds thereof, (ii) the completion of all
recordings, registrations and filings as may be necessary or, in the opinion of
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the Initial Noteholder, desirable to perfect or evidence the assignment by the
Depositor to the Issuer of the Depositor's ownership interest in the Trust
Estate including, without limitation, the Loans and the proceeds thereof and
(iii) the completion of all recordings, registrations and filings as may be
necessary or, in the opinion of the Initial Noteholder, desirable to perfect or
evidence the grant of a first priority perfected security interest in the
Trust's ownership interest in the Trust Estate including, without limitation,
the Loans and the proceeds thereof in favor of the Indenture Trustee. The Loan
Originator agrees to file all necessary continuation statements and any
amendments to the UCC-1 financing statements required to reflect a change in the
name or corporate structure of the Loan Originator, Depositor or Issuer and to
file any additional UCC-1 financing statements required due to a change in the
principal office of the Loan Originator, Depositor or Issuer as are necessary to
perfect the interest of the Depositor, the Trust and the Indenture Trustee in
and to the Trust Estate and to take such other action as may be necessary or, in
the opinion of the Depositor or the Initial Noteholder, desirable to perfect or
evidence the Depositor's, Trust's and Indenture Trustee's interest in the Loans
and Loan Documents conveyed under the Basic Documents.
(b) In connection with each sale of a Loan hereunder, the Loan
Originator shall deliver to, and deposit with the Custodian, on behalf of the
Indenture Trustee, as assignee of the Depositor, on or before the related
Transfer Date the Indenture Trustee's Loan File with respect to each Loan
conveyed on such Transfer Date.
It is understood and agreed that the obligations set forth in
this Section 2.2(b) shall survive delivery of the respective Indenture Trustee's
Loan Files to the Custodian (as the agent of the Indenture Trustee) and shall
inure to the benefit of the Securityholders, the Depositor, the Servicer, the
Indenture Trustee and the Owner Trustee, for the benefit of the Issuer.
With respect to any Loans which are set forth as exceptions in
the Loan Schedule and Exceptions Report, the Loan Originator shall cure such
exception, repurchase such Loan or provide a Qualified Substitute Loan in
accordance with Sections 2.05 and 3.05 of the Sale and Servicing Agreement. The
obligations of the Loan Originator set forth in Sections 2.05 and 3.05 of the
Sale and Servicing Agreement to cure any breach or to substitute for or
repurchase an affected Loan shall constitute the sole remedies available
hereunder to the Depositor respecting a breach of the Loan Originator's
obligations contained in this Section 2.2(b).
(c) In connection with each sale of a Loan hereunder, the Loan
Originator shall deliver to, and deposit with the Servicer, as the designated
agent of the Indenture Trustee, as assignee of the Depositor, on or before the
related Transfer Date the Servicer's Loan File with respect to each Loan
conveyed on such Transfer Date.
(d) The Loan Originator hereby further confirms to the
Depositor that, on or prior to each Transfer Date it shall cause the portions of
the Loan Originator's electronic ledger relating to the Loans to be clearly and
unambiguously marked to indicate that the Loans have been sold to the Depositor.
(e) On and after each Transfer Date, the Depositor shall own
the Loans which have been identified as being sold to the Depositor under
Section 2.1 hereof and the Loan Originator shall not take any action
inconsistent with such ownership and shall not claim any ownership interest in
any such conveyed Loan.
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Section 2.3 SECURITIZATIONS; TRANSFER OBLIGATION.
(a) SECURITIZATIONS. (i) In consideration of the consideration
received from the Depositor under this Purchase Agreement, the Loan Originator
hereby agrees and covenants that in connection with each Securitization it shall
effect the following at the direction of the Majority Noteholders:
(A) make such representations and warranties concerning the
Loans as of the "cutoff date" of the related Securitization to the
Securitization Participants as may be necessary to effect the
Securitization and such additional representations and warranties as
may be necessary, in the reasonable opinion of any of the
Securitization Participants, to effect such Securitization; provided,
that neither the Loan Originator nor the Depositor shall be required to
make any representation or warranty beyond the scope or substance of
the representations and warranties delineated in the Sale and Servicing
Agreement;
(B) supply such information, opinions of counsel, letters from
law and/or accounting firms and other documentation and certificates
regarding the origination and servicing of the Loans as any
Securitization Participant shall reasonably request to effect a
Securitization and enter into such indemnification agreements relating
to or in connection with the Securitization as the Majority Noteholders
may reasonably require;
(C) make itself available for and engage in good faith
consultation with the Securitization Participants concerning
information to be contained in any document, agreement, private
placement memorandum, or filing with the Securities and Exchange
Commission relating to the Loan Originator or the Loans in connection
with a Securitization and shall use reasonable efforts to compile any
information and prepare any reports and certificates, into a form,
whether written or electronic, suitable for inclusion in such
documentation;
(D) to implement the foregoing and to otherwise effect a
Securitization, enter into insurance and indemnity agreements,
underwriting or placement agreements, servicing agreements, purchase
agreements and any other documentation which may be required of or
deemed appropriate by the Securitization Participants in order to
effect a Securitization; and
(E) take such further actions as may be reasonably necessary
to effect the foregoing.
PROVIDED, that notwithstanding anything in this Purchase
Agreement to the contrary, (a) the Loan Originator shall have no
liability for the Loans arising from or relating to the ongoing ability
of the related Borrowers to pay under the Loans; (b) none of the
indemnities hereunder shall constitute an unconditional guarantee by
the Loan Originator of collectibility of the Loans; (c) the Loan
Originator shall have no obligation with respect to the financial
inability of any Borrower to pay principal, interest or other amount
owing by such Borrower under a Loan and (d) the Loan Originator shall
only be
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required to enter into documentation in connection with Securitizations
that is consistent with industry practice with respect to
Securitizations among similarly situated parties.
(ii) In connection with Securitizations, the Loan Originator
shall retain such underwriters as shall be agreed in writing between
the Loan Originator and the Initial Noteholder.
(iii) CONDITIONS TO SECURITIZATIONS. The following conditions
shall apply to all Securitizations:
(A) As long as no Event of Default or Default shall have
occurred and be continuing under the Sale and Servicing Agreement or
the Indenture, the Servicer shall continue to service the Loans
included in any Securitization.
(B) The Loan Originator shall, in connection with a
Securitization, cause FFCA to obtain an Opinion of Counsel to the
effect that the securities issued shall be treated as the issuance of
debt instruments by FFCA or a wholly-owned Affiliate thereof.
(b) TRANSFER OBLIGATION. In consideration of the consideration
received from the Depositor under this Purchase Agreement and the other Basic
Documents, the Loan Originator hereby agrees and covenants that:
(i) In connection with each Securitization it shall fund, or
cause to be funded, reserve funds, pay credit enhancer fees, pay, or
cause to be paid, underwriting fees, fund any difference between the
cash Securitization Proceeds and the aggregate Note Principal Balance
at the time of such Securitization, and make, or cause to be made, such
other payments as may be, in the reasonable opinion of the
Securitization Participants, necessary to effect Securitizations as
required by the Majority Noteholders;
(ii) In connection with Hedging Instruments, on the Business
Day prior to each Payment Date, it shall deliver to the Indenture
Trustee for deposit into the Transfer Obligation Account any Hedge
Funding Requirement (to the extent amounts available on the related
Payment Date pursuant to Section 5.01(c)(2)(ii) of the Sale and
Servicing Agreement are insufficient to make such payment), when as and
if due to any Hedging Counterparty;
(iii) If any Interest Carry-Forward Amount shall occur, it
shall deposit into the Transfer Obligation Account any such Interest
Carry-Forward Amount on or before the related Payment Date;
(iv) If on any Business Day, the Overcollateralization
Shortfall exceeds the greater of (x) 1% of the aggregate Principal
Balance of all Loans in the Loan Pool as of the prior Business Day and
(y) $250,000, it shall, on such Business Day, deposit into the Transfer
Obligation Account the full amount of the Overcollateralization
Shortfall as of such date; and
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(v) Notwithstanding anything to the contrary herein, in the
event of the occurrence of an Event of Default under the Indenture, the
Loan Originator shall promptly deposit into the Transfer Obligation
Account the entire amount of the Unfunded Transfer Obligation or the
Postsecuritization Unfunded Transfer Obligation, as applicable;
provided, that if such Event of Default is waived by the Majority
Noteholders, all such deposited funds shall be returned to the Loan
Originator by the Indenture Trustee in accordance with Section 5.05(j)
of the Sale and Servicing Agreement;
PROVIDED, that notwithstanding anything to the contrary contained herein, the
Loan Originator's cumulative payments under or in respect of the Transfer
Obligations (after subtracting therefrom any amounts returned to the Loan
Originator pursuant to clause (v) above), together with (i) the aggregate amount
of reductions to the Sale Price in respect of Overcollateralization Shortfalls
and (ii) the Servicer's payments in respect of any Servicer Puts, shall not in
the aggregate exceed the Unfunded Transfer Obligation or the Postsecuritization
Unfunded Transfer Obligation, as applicable.
(c) The Loan Originator agrees that the Noteholders, as
ultimate assignee of the rights of the Depositor under this Purchase Agreement
and the other Basic Documents, may enforce the rights of the Depositor directly
against the Loan Originator.
ARTICLE III.
REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
Section 3.1 LOAN ORIGINATOR REPRESENTATIONS AND WARRANTIES.
(a) The Loan Originator makes each of the representations and warranties to the
Depositor as of the Closing Date and as of each Transfer Date as are set forth
in Section 3.02 of the Sale and Servicing Agreement.
(b) The Loan Originator further makes each of the
representations and warranties to the Depositor as of each Transfer Date as are
set forth in Section 3.04 of the Sale and Servicing Agreement with respect to
the Loans conveyed on such Transfer Date.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
respective Indenture Trustee's Loan Files to the Custodian (as the agent of the
Indenture Trustee) and shall inure to the benefit of the Securityholders, the
Depositor, the Servicer, the Indenture Trustee and the Issuer. Upon the
discovery by either of the Loan Originator or the Depositor that any of the
representations and warranties of the Loan Originator in Sections 3.02 and 3.04
of the Sale and Servicing Agreement are determined to be untrue in a manner that
materially and adversely affects the value of the Loans, or the interests of the
Securityholders in, any Loan with respect to which such representation or
warranty is made and the Loan Originator shall fail to cure such breach within
the time period specified in Section 3.05 of the Sale and Servicing Agreement,
the Loan Originator shall be obligated to repurchase or substitute the affected
Loan(s) in accordance with the provisions of Sections 2.05 and 3.05 of the Sale
and Servicing Agreement promptly upon receipt of written instructions from the
Majority Noteholders. The obligations of the Loan
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Originator set forth in Sections 2.05 and 3.05 of the Sale and Servicing
Agreement to cure any breach or to substitute for or repurchase an affected Loan
shall constitute the sole remedies available hereunder to the Depositor
respecting a breach of the representations and warranties contained in this
Section 3.1(b).
ARTICLE IV.
LOAN ORIGINATOR'S COVENANTS
Section 4.1 COVENANTS OF THE LOAN ORIGINATOR. The Loan
Originator hereby covenants that except for the sales hereunder, the Loan
Originator will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any lien on, any Loan, or any
interest therein; and the Loan Originator will defend the right, title and
interest of the Trust, as assignee of the Depositor, in, to and under the Loans,
against all claims of third parties claiming through or under the Loan
Originator.
Whenever and so often as requested by the Depositor or the
Loan Originator or the Lender, the other party promptly will execute and deliver
or cause to be executed and delivered all such other and further instruments,
documents, or assurances, and promptly do or cause to be done all such other
things, as may be necessary and reasonably required to vest more fully in the
requesting party all rights, interests, powers, benefits, privileges and
advantages conferred or intended to be conferred upon it by this Purchase
Agreement.
ARTICLE V.
INDEMNIFICATION BY THE LOAN ORIGINATOR
Section 5.1 INDEMNIFICATION. The Loan Originator agrees to
indemnify and hold harmless the Depositor and the Noteholders, as the ultimate
assignees from the Depositor, from and against any loss, liability, expense,
damage, claim or injury arising out of or based on any breach of any
representation, warranty or covenant of the Loan Originator in this Purchase
Agreement or any other Basic Document, including, without limitation, in
connection with the origination or prior servicing of the Loans by reason of any
acts, omissions, or alleged acts or omissions arising out of activities of the
Loan Originator, including reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; PROVIDED that the Loan Originator shall not
indemnify the Depositor if such loss, liability, expense, damage or injury is
due to either the Depositor's willful misfeasance, bad faith or negligence or by
reason of the Depositor's reckless disregard of its obligations hereunder;
provided, further, that the Loan Originator shall not be so required to
indemnify the Depositor or any Noteholder or to otherwise be liable to the
Depositor or any Noteholder for any losses in respect of the performance of the
Loans, the creditworthiness of the Borrowers under the Loans, changes in the
market value of the Loans or other, similar investment risks associated with the
Loans arising from a breach of any representation or warranty set forth in
Section 3.1(a) or (b) hereof, a remedy for the breach of which is provided in
Section 3.1(c) hereof. The provisions of this indemnity shall run directly to
and be enforceable by an injured party subject to the limitations hereof.
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Section 5.2 LIMITATION ON LIABILITY OF THE LOAN ORIGINATOR.
None of the directors or trustees or officers or employees or agents of the Loan
Originator shall be under any liability to the Depositor or the Noteholders, it
being expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Purchase Agreement; PROVIDED, HOWEVER, that this provision shall not protect any
such Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder. Except as expressly provided herein and in the other Basic Documents,
the Loan Originator shall not be under any liability to the Trust, the Trustee
or the Securityholders. The Loan Originator and any director or officer or
employee or agent of the Loan Originator may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder.
Section 5.3 INDEMNIFICATION. The Loan Originator hereby agrees
to indemnify and hold harmless the Depositor and the Noteholders as the
Depositor's ultimate assignees, and their respective officers, directors and
Affiliates (each, an "INDEMNIFIED PARTY") against any and all losses, claims,
damages, liabilities or expenses (including legal and accounting fees)
(collectively, "LOSSES"), as incurred (payable promptly upon written request),
for or on account of or arising from or in connection with any untrue statement
by the Loan Originator of any material fact or the Loan Originator's failure to
state a material fact necessary to make such statements not misleading with
respect to any Referenced Documents (as defined in Section 3.02(h) of the Sale
and Servicing Agreement); provided, however, that the Loan Originator shall not
be so required to indemnify the Depositor or any Noteholder or to otherwise be
liable to the Depositor or any Noteholder hereunder for any such losses arising
from a breach of any representation or warranty set forth in Section 3.1(a) or
3.1(b) hereof, a remedy for the breach of which is provided in Section 3.1(c)
hereof.
Section 5.4 PROCEDURE. With respect to a claim subject to
indemnity hereunder made by any Person against an Indemnified Party (a "THIRD
PARTY CLAIM"), such Indemnified Party shall notify the Loan Originator in
writing of the Third Party Claim within a reasonable time after receipt by such
Indemnified Party of written notice of the Third Party Claim unless the Loan
Originator shall have previously obtained actual knowledge thereof. Thereafter,
the Indemnified Party shall deliver to the Loan Originator, within a reasonable
time after the Indemnified Party's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnified Party relating to
the Third Party Claim. No failure to give such notice or deliver such documents
shall effect the rights to indemnity hereunder.
Section 5.5 DEFENSE OF CLAIMS. If a Third Party Claim is made
against an Indemnified Party, (a) the Loan Originator will be entitled to
participate in the defense thereof and, (b) if it so chooses, to assume the
defense thereof with counsel selected by the Loan Originator, provided that in
connection with such assumption (i) such counsel is not reasonably objected to
by the Indemnified Party and (ii) the Loan Originator first admits in writing
its liability to indemnify the Indemnified Party with respect to all elements of
such claim in full. Should the Loan Originator so elect to assume the defense of
a Third Party Claim, the Loan Originator will not be liable to the Indemnified
Party for any legal expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof. If the Loan Originator
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elects to assume the defense of a Third Party Claim, the Indemnified Party will
(i) cooperate in all reasonable respects with the Loan Originator in connection
with such defense and (ii) not admit any liability with respect to, or settle,
compromise or discharge, such Third Party Claim without the Loan Originator's
prior written consent, as the case may be. If the Loan Originator shall assume
the defense of any Third Party Claim, the Indemnified Party shall be entitled to
participate in (but not control) such defense with its own counsel at its own
expense. If the Loan Originator does not assume the defense of any such Third
Party Claim, the Indemnified Party may defend the same in such manner as it may
deem appropriate, including settling such claim or litigation after giving
notice to the Loan Originator of such terms and the Loan Originator will
promptly reimburse the Indemnified Party upon written request. Anything
contained in this Note Purchase Agreement to the contrary notwithstanding, the
Loan Originator shall not be entitled to assume the defense of any part of a
Third Party Claim that seeks an order, injunction or other equitable relief or
relief for other than money damages against an Indemnified Party unless the Loan
Originator has demonstrated to such Indemnified Party reasonable financial
capacity to meet its obligations with respect to such Third Party Claim.
ARTICLE VI.
TERMINATION
Section 6.1 TERMINATION. The respective obligations and
responsibilities of the Loan Originator and Depositor created hereby shall
terminate, except for the Loan Originator's and Depositor's indemnity
obligations as provided herein, upon the termination of the Trust as provided in
Article XI of the Sale and Servicing Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.1 AMENDMENT. This Purchase Agreement may be amended
from time to time with the prior written consent of the Majority Noteholders, in
their sole discretion, by a written agreement signed by the Loan Originator and
the Depositor.
Section 7.2 GOVERNING LAW. This Purchase Agreement shall be
governed by and construed in accordance with the laws of the State of New York
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 7.3 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt thereof if (i) personally delivered or mailed by registered mail,
postage prepaid, or (ii) transmitted by facsimile (with a copy delivered by
overnight courier) upon telephone confirmation of receipt of such transmission,
as follows:
(a) if to the Loan Originator:
FFCA Acquisition Corporation
The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
or, such other addresses, facsimile numbers and confirmation numbers as may
hereafter be furnished to the Depositor in writing by the Loan Originator.
(b) if to the Depositor:
FFCA Loan Warehouse Corporation
The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
or such other addresses, facsimile numbers and confirmation numbers as may
hereafter be furnished to the Loan Originator in writing by the Depositor.
Section 7.4 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions of terms of this Purchase Agreement shall
be held invalid for any reason whatsoever, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Purchase Agreement and shall in no way
affect the validity of enforceability of the other provisions of this Purchase
Agreement.
Section 7.5 COUNTERPARTS. This Purchase Agreement may be
executed in one or more counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original and such counterparts, together, shall constitute one and the same
agreement.
Section 7.6 FURTHER AGREEMENTS. The Loan Originator and the
Depositor each agree to execute and deliver to the other such amendments to
documents and such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Purchase Agreement
or in connection with the offering of securities representing interests in the
Loans.
Section 7.7 INTENTION OF THE PARTIES. It is the intention of
the parties, other than for federal, state and local income and franchise tax
purposes, that the Depositor is purchasing, and the Loan Originator is selling,
the Loans rather than pledging the Loans to secure a loan by the Depositor to
the Loan Originator. The parties hereto each intend to treat the transaction for
accounting purposes as a sale by the Loan Originator, and a purchase by the
Depositor, of the Loans. The Depositor will have the right to review the Loans
and the related Loan Files to determine the characteristics of the Loans which
will affect the federal income tax consequences
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of owning the Loans and the Loan Originator will cooperate with all reasonable
requests made by the Depositor in the course of such review.
Section 7.8 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT. The Agreement shall bind and inure to the benefit of and be
enforceable by the Loan Originator, the Depositor, the Indenture Trustee and the
Noteholders. The obligations of the Loan Originator under this Purchase
Agreement cannot be assigned or delegated to a third party without the consent
of the Depositor, which consent shall be at the Depositor's sole discretion,
except that the Depositor acknowledges and agrees that the Loan Originator may
assign its obligations hereunder to any Person into which the Loan Originator is
merged or any corporation resulting from any merger, conversion or consolidation
to which the Loan Originator is a party or any Person succeeding to the business
of the Loan Originator. The parties hereto acknowledge that the Depositor is
acquiring the Loans for the purpose of contributing them to the Trust that will
issue (i) the Trust Certificates representing undivided interests in such Loans
and (ii) the Notes which will be secured by such Loans. As an inducement to the
Depositor to purchase the Loans, the Loan Originator acknowledges and consents
to the assignment by the Depositor to the Trust of all of the Depositor's rights
against the Loan Originator pursuant to this Purchase Agreement and to the
enforcement or exercise of any right or remedy against the Loan Originator
pursuant to this Purchase Agreement by the Owner Trustee, for the benefit of the
Issuer, under the Sale and Servicing Agreement. Such enforcement of a right or
remedy by the Owner Trustee, for the benefit of the Issuer, shall have the same
force and effect as if the right or remedy had been enforced or exercised by the
Depositor directly.
Section 7.9 SURVIVAL. The representations and warranties set
forth in Article III and the provisions of Article V shall survive the purchase
of the Loans hereunder.
Section 7.10 SUCCESSORS AND ASSIGNS . This Purchase Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
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IN WITNESS WHEREOF, the Loan Originator and the Depositor have
caused this Loan Purchase Agreement to be duly executed on their behalf by their
respective officers thereunto duly authorized as of the day and year first above
written.
FFCA LOAN WAREHOUSE CORPORATION,
as Depositor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
FFCA ACQUISITION CORPORATION,
as Loan Originator
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
STATE OF ARIZONA )
) ss.:
COUNTY OF MARICOPA )
On the 12th day of August, 1998 before me, a Notary Public in
and for said State, personally appeared Xxxxxx X. Xxxxx, known to me to be an
Executive Vice President of FFCA LOAN WAREHOUSE CORPORATION, the corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
----------------------------------------------
Notary Public
STATE OF ARIZONA )
) ss.:
COUNTY OF MARICOPA )
On the 12th day of August, 1998 before me, a Notary Public in
and for said State, personally appeared Xxxxxx X. Xxxxx, known to me to be an
Executive Vice President of FFCA ACQUISITION CORPORATION, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxx
----------------------------------------------
Notary Public
EXHIBIT A
FORM OF LPA ASSIGNMENT
----------------------
