EXHIBIT 10.3(c)
SECOND AMENDMENT
TO THE
WAREHOUSE CREDIT AGREEMENT
between
XXXXXXXX CAPITAL INCORPORATED
and
FRANCHISE FINANCE CORP.
This Second Amendment to the Warehouse Credit Agreement (this "Second
Amendment") between Xxxxxxxx Capital Incorporated, a Delaware corporation,
successor-in-interest to Xxxxxxxx Capital Partners, L.P. ("Borrower"), and
Franchise Finance Corp., a Delaware corporation ("FFC"), is dated as of 6th day
of April, 1998.
WHEREAS, Borrower and FFC have entered into that certain Warehouse Credit
Agreement dated as of January 8, 1997, and as amended from time to time (the
"Original Agreement");
WHEREAS, Borrower desires to increase the Maximum Commitment Amount
(defined in the Original Agreement) from $250,000,000 to $300,000,000 for a
period of approximately six (6) months.; and
WHEREAS, Borrower desires to amend the Original Agreement to implement the
terms and conditions agreed upon by Borrower and FFC regarding the increase in
the Maximum Commitment Amount.
NOW THEREFORE, for and in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
1. DEFINED TERMS. Terms not otherwise defined herein shall have the
respective meanings assigned to such terms in the Original Agreement.
2. AMENDMENTS TO THE ORIGINAL AGREEMENT. The parties hereto do hereby
agree to amend the Original Agreement as follows:
(a) Section 2.06(a)(i) is hereby amended to read "(i) in the principal
amount of three hundred million dollars ($300,000,000),"
(b) Section 6.01(k)(ii) is hereby amended to read "(ii) three hundred
million dollars ($300,000,000)."
3. AMENDMENT OF SCHEDULE I, "DEFINITIONS." The parties hereto do hereby
agree to amend Schedule I, Definitions, of the Original Agreement as follows:
(a) The definition of "Maximum Commitment Amount" is hereby amended by
deleting the words "two hundred and fifty million dollars
($250,000,000)" on lines 6, 7, 8 and 9 and replacing such words with
"three hundred million dollars ($300,000,000)."
4. AMENDMENT OF EXHIBIT B, "NOTE." The parties hereto do hereby agree to
amend Exhibit B, Note, of the Original Agreement as follows:
(a) Paragraph one is hereby amended by deleting the words "TWO HUNDRED AND
FIFTY MILLION DOLLARS ($250,000,000)" on lines 4 and 5 and replacing
such words with "THREE HUNDRED MILLION DOLLARS ($300,000,000)."
5. TERM. The terms and conditions of this Second Amendment shall be in
full force and effect until October 1, 1998, at which time this Second Amendment
shall be null and void and the Maximum Commitment Amount shall return to
$250,000,00 as stated in the Original Agreement unless otherwise amended.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the date first above written.
XXXXXXXX CAPITAL INCORPORATED
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, CEO
FRANCHISE FINANCE CORP.
By:
------------------------------------
Xxxxxxx X. Xxxxxxxx, President
AMENDED AND RESTATED NOTE
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$300,000,000.00 San Bruno, California
Dated as of April 6, 1998
FOR VALUE RECEIVED, XXXXXXXX CAPITAL INCORPORATED, a Delaware corporation
("Borrower"), hereby promises to pay to the order of Franchise Finance Corp., a
Delaware corporation ("FFC"), the principal sum of THREE HUNDRED MILLION DOLLARS
($300,000,000) or such lesser amount as shall equal the aggregate outstanding
principal balance of the Revolving Loans made by FFC to the borrower pursuant to
the Warehouse Credit Agreement, dated as of January 8,1997, between the
Borrower, as successor in interest to Xxxxxxxx Capital Partners, L.P., a
California limited partnership, and FFC, as amended from time to time (the
"Warehouse Credit Agreement"), on or before the Facility Termination Date
specified in the Warehouse Credit Agreement; and to pay interest on said sum, or
such lesser amount, at the rates and on the dates provided in the Warehouse
Credit Agreement.
The Borrower shall make all payments hereunder to FFC as indicated in the
Warehouse Credit Agreement, in lawful money of the United States and in same day
or immediately available funds.
The Borrower hereby authorizes FFC to record on the schedule(s) annexed to
this Note the date and amount of each Revolving Loan and of each payment or
prepayment of principal made by the Borrower and agrees that all such notations
shall constitute prima facie evidence of the matters noted; provided, however,
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that the failure of FFC to make any such notation shall not affect the
Borrower's obligations.
This Note is an amendment and complete restatement of, and not an addition
to, the Note made by Xxxxxxxx Capital Incorporated referred to in the Warehouse
Credit Agreement. This Note is subject to the terms of the Warehouse Credit
Agreement, including the rights of acceleration of maturity. Terms used herein
have the meanings assigned to those terms in the Warehouse Credit Agreement,
unless otherwise defined herein.
This Note is made in connection with, and is secured by, among other
instruments, the provisions of that certain Security Agreement dated as of
January 8, 1997 between the Borrower and FFC. Reference is hereby made to the
Warehouse Credit Agreement and Security Agreement, for the provisions, among
others, with respect to the custody and applications of collateral, the nature
and extent of the security provided thereunder, the rights, duties and
obligations of the Borrower and the rights of the holder of this Note.
The Borrower shall pay all costs of collection, including reasonable
attorney's fees and legal expenses, if this Note is not paid when due, whether
or not proceedings are commenced. Borrower shall also pay such fees and expenses
of FFC as provided in the Warehouse Credit Agreement. This Note shall be
governed by and construed in accordance with the laws of the State of Kansas.
Upon the occurrence of any one or more Events of Default, all amounts then
remaining unpaid on this Note may become or be declared to be immediately due
and payable as provided in the Warehouse Capital Agreement and other Credit
Documents, and except as otherwise expressly provided therein, without notice of
nonpayment or dishonor, or notices or demands of any kind, all of which are
expressly waived by the Borrower.
Nothing contained in this Note or the Warehouse Credit Agreement shall be
deemed to require the payment of interest or other charges by the Borrower or
any other Person in excess of the amount which FFC may lawfully charge under any
applicable usury laws. In the event that FFC shall collect moneys under this
Note or the Warehouse Credit Agreement or any other Credit document which are
deemed to constitute interest which would increase the effective interest rate
to a rate in excess of that permitted to be charged by applicable law, all such
sums deemed to constitute interest in excess of the legal rate shall, upon such
determination, at the option of FFC, be returned to the Borrower or credited
against the outstanding principal balance of this Note.
The principal balance of this Note may be prepaid, in whole or in part, on
any Business Day. Such prepayment shall be without premium or penalty.
XXXXXXXX CAPITAL INCORPORATED
By: /s/ Xxxxx X. Xxxxx
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Name: XXXXX X. XXXXX
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Title: CEO
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