Exhibit 99.02
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FIFTH AMENDED AND RESTATED INDENTURE SUPPLEMENT
dated as of January 1, 2001
between
FFCA FRANCHISE LOAN OWNER TRUST 1998-1,
as Issuer
and
LASALLE BANK NATIONAL ASSOCIATION f/k/a LASALLE NATIONAL BANK,
as Indenture Trustee
FFCA FRANCHISE LOAN OWNER TRUST 1998-1
FRANCHISE LOAN BACKED NOTES SERIES 1998-1
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This Fifth Amended and Restated Indenture Supplement ("INDENTURE
SUPPLEMENT NO. 5") is entered into effect as of January 1, 2001, between FFCA
Franchise Loan Owner Trust 1998-1, a Delaware business trust, as Issuer (the
"ISSUER"), and LaSalle Bank National Association f/k/a LaSalle National Bank, as
Indenture Trustee (the "INDENTURE TRUSTEE"), which amends and restates in its
entirety the Fourth Amended and Restated Indenture Supplement ("INDENTURE
SUPPLEMENT NO. 4"), as entered into effect on January 1, 2000, between the
Issuer and the Indenture Trustee, which amends and restates in its entirety the
Third Amended and Restated Indenture Supplement ("INDENTURE SUPPLEMENT NO. 3"),
as entered into effect on August 27, 1999, between the Issuer and the Indenture
Trustee, which amends and restates in its entirety the Second Amended and
Restated Indenture Supplement ("INDENTURE SUPPLEMENT NO. 2"), as entered into
effect on March 18, 1999, between the Issuer and the Indenture Trustee, which
amends and restates in its entirety the Amended and Restated Indenture
Supplement ("INDENTURE SUPPLEMENT NO. 1"), as entered into effect on October 30,
1998, between the Issuer and the Indenture Trustee, which amends and restates in
its entirety the Series 0000-0 Xxxxxxxxx Supplement (the "ORIGINAL INDENTURE
SUPPLEMENT"), as entered into effect on August 14, 1998, between the Issuer and
the Indenture Trustee, which supplements and amends that certain Indenture (the
"INDENTURE") dated as of August 14, 1998, between the Issuer and the Indenture
Trustee.
PRELIMINARY STATEMENT
The Issuer was created by a trust agreement dated as of August 14,
1998 (the "TRUST AGREEMENT"), among FFCA Loan Warehouse Corporation, as
Depositor, Franchise Finance Corporation of America, as the Company and as
Paying Agent, and Wilmington Trust Company, as Owner Trustee. The Issuer duly
authorized the execution and delivery of the Original Indenture Supplement,
Indenture Supplement Xx. 0, Xxxxxxxxx Xxxxxxxxxx Xx. 0, Xxxxxxxxx Supplement No.
3, Indenture Supplement No. 4 and this Indenture Supplement No. 5 to provide for
the issuance of its Franchise Loan Backed Notes, Series 1998-1 (the "NOTES").
The Notes are issuable as provided in this Indenture Supplement No. 5 and in the
Indenture.
Section 2.01 of the Indenture provides, among other things, that the
Issuer may enter into an Indenture Supplement for the purposes of authorizing a
Series of Notes and to specify certain terms of such Series of Notes. Section
9.02 of the Indenture provides, among other things, that the Issuer may enter
into an Indenture Supplement for purposes of amending the Indenture. This
Indenture Supplement No. 5 is an Indenture Supplement as described in the
Indenture. All terms used in this Indenture Supplement No. 5 which are defined
in the Indenture, either directly or by reference therein, have the meanings
assigned to them therein, except to the extent that such terms are defined in
this Indenture Supplement No. 5 or unless the context clearly requires.
The parties hereto wish to amend and restate Indenture Supplement No.
4 in its entirety and amend Section 10.01 of the Indenture in accordance with
the terms of this Indenture Supplement No. 5.
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NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the Issuer and the Indenture Trustee,
intending to be legally bound, hereby agree as follows:
SECTION 1. CERTAIN DEFINED TERMS. Section 2.01 of the Indenture
provides that the meaning of certain defined terms used in the Indenture shall,
when applied to a particular Series, be as defined in the Indenture Supplement
with respect to such Series. Accordingly, the following definitions shall apply
with respect to the Notes:
(a) SERIES DESIGNATION. The Notes shall be designated as the Issuer's
Franchise Loan Backed Notes, Series 1998-1.
(b) CLOSING DATE. The Closing Date with respect to the Notes shall be
August 14, 1998.
(c) MATURITY DATE. The Maturity Date with respect to the Notes shall
be December 31, 2001.
(d) MAXIMUM NOTE PRINCIPAL BALANCE. The Maximum Note Principal Balance
with respect to the Notes shall be $600,000,000.
SECTION 2. TERMINATION OF THE REVOLVING PERIOD. The Revolving Period
shall terminate on the earlier of (i) such date as provided in Section 2.07 of
the Sale and Servicing Agreement and (ii) December 31, 2001.
SECTION 3. AMENDMENT TO SECTION 10.01 OF THE INDENTURE. Section 10.01
of the Indenture is hereby amended by deleting Section 10.02 in its entirety and
replacing such Section 10.02 with the following:
SECTION 10.01. REDEMPTION.
The Servicer may, at its option, effect an early redemption of the
Notes on any Payment Date on or after the Clean-up Call Date. The Servicer shall
effect such early termination in the manner specified in and subject to the
provisions of SECTION 11.02 of the Sale and Servicing Agreement.
The Servicer or the Issuer shall furnish the Indenture Trustee with
notice of any such redemption in order to facilitate the Indenture Trustee's
compliance with its obligation to notify the Noteholders of such redemption in
accordance with SECTION 10.02 hereof.
SECTION 4. RATIFICATION OF THE INDENTURE. As supplemented and amended
by this Indenture Supplement No. 5, the Indenture is in all respects ratified
and confirmed and the Indenture as so supplemented and amended by this Indenture
Supplement No. 5 shall be read, taken and construed as one and the same
document.
SECTION 5. SUPPLEMENT TO GOVERN. Notwithstanding anything to the
contrary in this Indenture Supplement No. 5, to the extent that the terms of
this Indenture Supplement No. 5 conflict with the terms of the Indenture, the
terms of this Indenture Supplement No. 5 shall govern.
SECTION 6. ALL REQUISITE ACTION TAKEN. All things necessary to make
this Indenture Supplement No. 5 a valid agreement of the Issuer and the
Indenture Trustee in accordance with its terms have been done.
SECTION 7. GOVERNING LAW. THIS INDENTURE SUPPLEMENT NO. 5 SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 8. COUNTERPARTS. This Indenture Supplement No. 5 may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture Supplement No. 5 to be duly executed by their respective
officers, thereunto duly authorized and duly attested, all as of the day and
year first above written.
FFCA FRANCHISE LOAN OWNER TRUST 1998-1
By: Wilmington Trust Company
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Senior Financial Services Officer
LASALLE BANK NATIONAL ASSOCIATION f/k/a
LASALLE NATIONAL BANK,
as Indenture Trustee
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
[FIFTH AMENDED AND RESTATED INDENTURE SUPPLEMENT]
STATE OF Delaware
COUNTY OF New Castle
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Xxxxxxxx Xxxxxxx, known to me
to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity, but solely as Owner Trustee on behalf of FFCA FRANCHISE LOAN OWNER
TRUST 1998-1, a Delaware business trust, and that such person executed the same
as the act of said business trust for the purpose and consideration therein
expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 28 day of December 2000.
/s/ Xxxxxx X. Xxxxx
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Notary Public in and for the State of Delaware
Xxxxxx X. Xxxxx
Notary Public - Delaware
My Commission Expires February 16, 2003
[FIFTH AMENDED AND RESTATED INDENTURE SUPPLEMENT]
STATE OF Illinois
COUNTY OF Xxxx
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Xxxxx X. Xxxx, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of LASALLE BANK NATIONAL
ASSOCIATION f/k/a LASALLE NATIONAL BANK, a national banking association, and
that such person executed the same as the act of said corporation for the
purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 1st day of January, 2001.
/s/ Xxxxxxxx Xxxxxxx
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Notary Public in and for the State of Illinois
(Seal)
My commission expires:
5/19/04
[FIFTH AMENDED AND RESTATED INDENTURE SUPPLEMENT]
