EXHIBIT 2
INVESTOR'S AGREEMENT
This Investor's Agreement (the "Agreement") is entered into on
March 13, 1998, by and between Franchise Finance Corporation of America, a
real estate investment trust and a Delaware corporation (the "Company"),
and Colony Investors III, L.P., a Delaware limited partnership (the
"Purchaser").
RECITALS
The Purchaser has, upon the terms and subject to the conditions
of a Stock Purchase Agreement, dated February 13, 1998 (the "Stock Purchase
Agreement"), by and between the Company and the Purchaser, agreed to
acquire 3,792,112 shares of Common Stock, $0.01 par value per share, of the
Company ("Common Stock"), and warrants (the "Warrants") to purchase an
additional 1,476,908 shares of Common Stock.
The Purchaser and the Company each desire to enter into this
Agreement for the purpose of regulating certain aspects of their
relationship with regard to the Company.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Purchaser and
the Company agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the terms below shall have the following meanings.
Any such term, unless the context otherwise requires, may be used in the
singular or plural, depending upon reference.
"Affiliate" shall mean, with respect to any Person, (i) any Person
or entity directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person, (ii) any spouse or
non-adult child (including by adoption), (iii) any relative other than a
spouse or non-adult child (including by adoption) who has the same
principal residence of any natural person described in clause (i) above,
(iv) any trust in which any such Persons described in clause (i), (ii) or
(iii) above has a beneficial interest and (v) any corporation, partnership,
limited liability company or other organization of which any such Persons
described in clause (i), (ii) or (iii) above collectively own more than
fifty percent (50%) of the equity of such entity. For purposes of this
definition, beneficial ownership of more than ten percent (10%) of the
voting common equity of a Person shall be deemed to be control of such
Person.
"Fully Diluted Common Stock" shall mean all of the Common Stock of
the Company, assuming conversion, exercise or exchange of all outstanding
convertible or exchangeable securities, options, rights, warrants and
similar instruments into or for Common Stock (regardless of whether such
convertible securities, options, warrants or similar securities are then
convertible or exercisable), except for compensatory stock options which
shall not be deemed outstanding unless they have vested. As provided in
Section 4.4, all such calculations shall be appropriately adjusted for
stock splits, stock dividends and other similar events as described
therein.
"Person" shall mean an individual, partnership, limited liability
company, joint venture, corporation, trust or unincorporated organization
or any other similar entity.
"Related Party" shall mean with respect to any Person: (i) any
parent, controlling shareholder, fifty percent (50%) (or more) owned
subsidiary, or spouse or ex-spouse or immediate family member (in the case
of an individual) of such Person; (ii) a trust, corporation, partnership,
limited liability company or other entity, the beneficiaries, shareholders,
partners, owners or persons holding a fifty percent (50%) (or more)
controlling interest of which consist of such Person and/or such other
persons or entities referred to in the immediately preceding clause (i); or
(iii) the equity owners of any Person.
"Restricted Securities" shall mean any securities of the Company
issued and sold to the Purchaser pursuant to the Stock Purchase Agreement.
ARTICLE II
CORPORATE GOVERNANCE
2.1 Board of Directors. Upon the execution of this Agreement, and
until such time as the Purchaser and its Affiliates no longer collectively
beneficially own Common Stock representing at least 50% of the number of
shares of Common Stock issued and sold to the Purchaser pursuant to the
Stock Purchase Agreement (exclusive of shares issuable upon exercise of the
Warrants), the Company hereby agrees (a) to take all action necessary such
that from and after the date hereof until the next regularly scheduled
meeting of the Company's stockholders, the Board of Directors of the
Company (the "Board") shall include one director designated by the
Purchaser, and (b) thereafter to use its best efforts to cause a person
designated by the Purchaser to be included in each slate of proposed
directors put forth by the Company to its stockholders and recommended for
election in any proxy solicitation materials disseminated by the Company;
provided, however, that the identity of any nominee so designated by the
Purchaser other than Xxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx shall be
reasonably acceptable to the Company; and provided, further, that if at any
time the nominee so designated by the Purchaser shall not be serving on the
Board, (i) the Purchaser shall have the continuing right to receive copies
of all materials distributed to members of the Board, (ii) the nominee
designated by the Purchaser shall have the right to participate
substantially in all meetings of the Board on a non-voting basis, and (iii)
the Company shall grant the Purchaser such other rights as may be
reasonably necessary for the Purchaser's investment in the Restricted
Securities to continue to qualify as a "venture capital investment" within
the meaning of 29 C.F.R. Section 2510.3-101(d). The Company agrees to provide
such information as the Purchaser may reasonably request in connection with
the Purchaser's desire to ascertain the Company's continuing status as an
"operating company" or a "real estate operating company" within the
meaning of 29 C.F.R. Section 2510.3-101, and to consult routinely with the
Purchaser as to the Company's activities, giving due consideration to the
views expressed by the Purchaser in the course of conducting the business
of the Company. The Company further agrees to cause the nominee designated
by the Purchaser in accordance with the foregoing to serve on the Board of
Directors of such subsidiaries of the Company as the Purchaser may
reasonably request from time to time. Upon the death, resignation or
removal of a nominee designated by the Purchaser, the Company will use its
best efforts to have the vacancy filled by a person designated by the
Purchaser. Board members designated by the Purchaser shall be fully
covered by any directors' and officers' liability insurance maintained from
time to time on the same terms as the other members, shall be entitled to
the benefit of any indemnification arrangements applicable to the other
members and shall have the right to receive all fees paid and options and
other awards granted and expenses reimbursed to non-employee directors
generally.
2.2 Acquisitions Task Force. The Company shall promptly form a
Corporate Acquisitions Task Force consisting of three members (the "Company
Nominees") appointed by the chairman of the Board and two persons (the
"Purchaser Nominees") appointed by the person designated by the Purchaser
under Section 2.01 (which appointees shall be reasonably acceptable to the
chairman of the Board). Such Purchaser appointees may include the person
designated by the Purchaser under Section 2.01 (and such person shall be
deemed reasonably acceptable to the chairman of the Board). The Corporate
Acquisitions Task Force will exist for an initial term of two years
(subject to extension by mutual agreement of the Company and the Purchaser)
and will provide non-binding advice to the Company and the Board with
respect to corporate acquisitions. The meeting, quorum, voting and other
procedures of the Corporate Acquisitions Task Force will be established by
mutual agreement of the Company Nominees and the Purchaser Nominees. The
Purchaser will be reimbursed for its reasonable expenses allocable to (a)
consummated transactions reviewed as aforementioned or (b) such other
assistance provided by Purchaser or its Affiliates to the Company as may be
agreed upon from time to time.
ARTICLE III
CERTAIN PURCHASE RIGHTS AND RESTRICTIONS
3.1 General. If, at any time when the Purchaser and its
Affiliates collectively own in excess of 5% of the Fully Diluted Common
Stock, the Company proposes to issue for cash any of its Common Stock or
other securities exercisable for, or convertible or exchangeable into,
Common Stock (collectively, "Securities"), other than as provided in
Section 3.2, then the Company shall, no later than 30 days prior to the
consummation of such issuance, give written notice to the Purchaser of such
proposed issuance. Such notice shall describe the proposed issuance, and
contain an offer to sell to the Purchaser, at the same price and for the
same consideration to be paid by the proposed purchasers (but net of any
underwriting or similar fees, discounts or commissions), up to the
Purchaser's pro rata portion (which shall be a percentage equal to the
percentage of the Fully Diluted Common Stock held by the Purchaser and its
Affiliates) of the Securities to be sold. Subject to the foregoing, if
Common Stock is being issued with other Securities as a unit and such
Common Stock may only be purchased in connection therewith as a part of
such unit, the Purchaser must purchase such unit in order for such
acceptance to be valid. If the Purchaser fails to accept such offer by
written notice within 20 days after its receipt of the Company's notice,
the Company may proceed with such proposed issuance, free of any right on
the part of the Purchaser under this Section 3.1 in respect thereof.
3.2 Exceptions. The purchase right granted by Section 3.1 shall
not apply to: (i) compensatory issuances to employees, directors or
consultants or pursuant to related employee benefit, 401(k), employee stock
purchase or stock option plans approved by the Board of Directors; (ii)
Securities distributed or set aside to all holders of Common Stock on a per
share equivalent basis; (iii) derivative securities (e.g., warrants) issued
as customary "yield enhancement" in connection with (a) the arrangement of
bank credit or (b) the issuance of debt securities (including trust
receipts or similar obligations treated as debt of the Company for United
States federal income tax purposes) or redeemable, non-convertible
preferred stock; (iv) any issuance of Securities upon the conversion,
exercise or exchange of derivative equity securities issued in accordance
with Section 3.1 of this Agreement; (v) the issuance of Securities to unit
investment trusts in accordance with reasonable commercial practices; and
(vi) the issuance of Securities pursuant to the Company's dividend
reinvestment plan. In the case of any issuance pursuant to clause (v) of
this Section 3.2, the Company shall, no later than 5 business days
following the consummation of each such issuance, give written notice to
the Purchaser of such prior issuance on substantially the same terms
provided for notices under Section 3.1 and thereby offer to sell to the
Purchaser, at the same price and for the same consideration paid in such
prior issuance (but net of any underwriting or similar fees, discounts or
commissions), up to that number of Securities that will permit the
percentage of the Fully Diluted Common Stock held by the Purchaser and its
Affiliates to be restored to the percentage so held immediately before such
prior issuance. If the Purchaser fails to accept such offer by written
notice within 10 business days after its receipt of the Company's notice,
the purchase right on the part of the Purchaser under this Section 3.2 in
respect of such prior issuance shall terminate.
3.3 Standstill Agreement. Except as otherwise permitted in this
Agreement, the Purchaser covenants that, for a period of five years after
the date hereof, without the prior written consent of the Company, the
Purchaser will not, and will cause each of its Affiliates not to, singly or
as part of a "partnership, limited partnership, syndicate or other group"
(as those terms are used within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
meanings shall apply for all purposes of this Agreement), directly or
indirectly, through one or more intermediaries or otherwise:
(a) acquire, offer or propose to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise (other than as may be
otherwise permitted in this Section 3.3), any Securities, except (i)
pursuant to the Warrants, (ii) pursuant to the Company's dividend
reinvestment plan, (iii) if (after giving effect to such purchase) the
Purchaser and its Affiliates collectively own less than 5% of the Fully
Diluted Common Stock or (iv) by way of stock dividends, stock splits,
reorganization, recapitalization, merger, consolidation or like
distributions made available to holders of the Common Stock generally;
(b) make, or in any way participate, directly or indirectly, in,
any "solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Exchange Act) by Persons other than the Company with
respect to Securities (including by the execution of actions by written
consent), become a "participant" in any "election contest" (as such terms
are defined or used in Rule 14a-11 of the Exchange Act) with respect to the
Company other than in concurrence with actions initiated or supported by
the Board;
(c) initiate, propose or otherwise solicit, or participate in the
solicitation of, stockholders for the approval of one or more stockholder
proposals with respect to the Company as described in Rule 14a-8 under the
Exchange Act or induce any other individual or entity to initiate any
stockholder proposal relating to the Company;
(d) directly or indirectly participate in or encourage the
formation of any group that seeks control of the Company (other than as
may be otherwise permitted in this Section 3.3) or for the purpose of
circumventing any provision of this Agreement;
(e) other than in connection with a competing proposal in respect
of any such action taken by a third party without the direct or indirect
assistance of the Purchaser or its Affiliates, solicit, seek or offer to
effect with any third party, or make any statement or proposal, whether
written or oral, either alone or in concert with others, with respect to
any form of business combination or transaction involving the Company or
any subsidiary thereof, including, without limitation, a merger, exchange
offer or liquidation of the Company's assets, or instigate or encourage any
third party to do any of the foregoing;
(f) deposit any Securities into a trust or subject any Securities
to any arrangement or agreement with respect to the voting thereof or take
any action by written consent in lieu of a meeting, in any such case that
seeks control of the Company (except as may be otherwise permitted in this
Section 3.3) or for the purpose of circumventing any provision of this
Agreement; or
(g) other than in connection with a competing proposal in respect
of any such action taken by a third party without the direct or indirect
assistance of the Purchaser or its Affiliates, otherwise act, directly or
indirectly, alone or in concert with others (including by providing
financing for another party) to seek or offer to acquire control of the
Company.
3.4 Certain Dispositions of Securities. Without the prior written
consent of the Company, the Purchaser agrees and covenants that until six
months from the date hereof it will not sell or transfer any of the
Securities beneficially owned by the Purchaser, except to an Affiliate or a
Related Party of the Purchaser or as may be reasonably necessary or
advisable in order to avoid rents to be derived by the Company from a
tenant failing to qualify as rents from real property as described in
section 856(d)(2) of the Internal Revenue Code of 1986, as amended (the
"Code"). The Purchaser further agrees and covenants that on or after six
months from the date hereof, without the consent of the Company, it will
not sell or transfer any of the Securities beneficially owned by the
Purchaser, except to an Affiliate or a Related Party of the Purchaser, if
the Securities to be included in any such disposition to any one Person or
group of related Persons by the Purchaser represent in excess of 5% of the
Fully Diluted Common Stock. Sales and transfers to a Related Party or
Affiliate of Securities representing in excess of 5% of the Fully Diluted
Common Stock shall be permitted hereunder only so long as any such Related
Party or Affiliate agrees in writing to be bound by the terms of this
Agreement as if such Related Party or Affiliate were a signatory to this
Agreement. The Purchaser shall, and shall cause its Affiliates to, give
the Company prompt notice upon the sale or transfer hereunder of any
Securities beneficially owned by the Purchaser. Securities acquired by any
person in violation of this Section 3.4 shall remain subject to this
Agreement as though such Securities were still owned by the Purchaser.
3.5 Voting and Dissenter's Rights. The Purchaser agrees that so
long as the Purchaser and its Affiliates collectively own in excess of 5%
of the Fully Diluted Common Stock, it will use reasonable best efforts to,
and to cause each of its Affiliates to, (a) be present, in person or
represented by proxy, at all stockholder meetings of the Company so that
all of the Common Stock beneficially owned by the Purchaser and its
Affiliates may be counted for the purpose of determining the presence of a
quorum at such meetings and (b) not exercise any statutory dissenter's
rights in connection with any merger, consolidation, reorganization or sale
of all or substantially all of the assets of the Company to the extent the
exercise of such rights would materially and adversely affect the
transaction's qualifying as a pooling of interests for accounting and
financial reporting purposes.
3.6 Public Offering Lock-Up. The Purchaser agrees and covenants
that in connection with an underwritten public offering of Securities by
the Company, it will agree if requested by the underwriter(s) to not offer,
sell or otherwise dispose of its Securities for a period not to exceed 90
days after the date of the underwriting agreement, without the prior
consent of the underwriter(s).
3.7 Certain Ownership Adjustments. In the event that the Company
proposes to take an action (an "Action") which would result in the
Purchaser or its Affiliates acquiring ownership of equity securities of
another Person that is or is reasonably expected within the first 30 days
following the Action to become a tenant of real property owned by the
Company (a "Tenant"), and (solely as a consequence of such ownership upon
consummation of such Action by the Company) the rents to be derived by the
Company from such Tenant would fail to qualify as rents from real property
as described in section 856(d)(2) of the Code, then the Company and the
Purchaser agree to cooperate in good faith to enable the Purchaser (i) to
participate to 98% of the maximum extent in the distribution of equity
securities in the Action so that immediately after the consummation of the
Action, the Purchaser's ownership of equity securities of the Company and
the Tenant will not cause the rents to be derived by the Company from such
Tenant to fail to qualify as rents from real property pursuant to section
856(d)(2)(B) of the Code, and (ii) to the extent that the Purchaser must
forego equity securities pursuant to clause (i) of this sentence ("Foregone
Securities"), the Purchaser will be entitled to receive Common Stock having
a value equal to the aggregate value of all Foregone Securities (each such
value to be determined pursuant to reasonable procedures to be agreed upon
by the parties in good faith at the time of the Action; provided that if no
such agreement can be reached, then the Company and the initial Holder
shall mutually select a nationally recognized investment bank to determine
such terms and procedures, which determination shall be binding on the
parties). As a condition precedent to the Company's consummating such
Action, the Company shall use its reasonable best efforts to cause the
Tenant to, and the Purchaser shall, enter into all agreements necessary to
provide that the Purchaser and the Tenant shall substantially replicate, to
the extent practicable under the circumstances, the same rights and
responsibilities as are provided hereunder in respect of the Company,
except (i) as may otherwise be mutually agreed by the Company and the
Purchaser, (ii) as would create an incident of tax for the Company in a
material amount, which tax would not otherwise have been due, or (iii) as
would adversely impact the Company's qualification as a real estate
investment trust under the Code.
3.8 Purchaser Member Limitations. The Purchaser agrees and
covenants that no member of the Purchaser may own directly or indirectly
25% or more of the Purchaser as determined under section 856(d)(5) of the
Code.
ARTICLE IV
MISCELLANEOUS
4.1 Confidentiality. (a) As used herein, "Confidential Material"
means, with respect to either party hereto (the "Providing Party"), all
information, whether oral, written, or otherwise, furnished to the other
party hereto (the "Receiving Party") or such Receiving Party's directors,
officers, partners, Affiliates, employees, agents or representatives
(collectively, "Representatives"), and all reports, analyses, compilations,
studies and other materials prepared by the Receiving Party or its
Representatives (in whatever form maintained, whether documentary, computer
storage or otherwise) containing, reflecting or based upon, in whole or in
party, any such information. The term "Confidential Material" does not
include information which (i) is or becomes generally available to the
public other than a result of a disclosure by the Receiving Party, its
Representatives or anyone to whom the Receiving Party or any of its
Representatives transmit any Confidential Material in violation of this
Agreement, or (ii) is or becomes known or available to the Receiving Party
on a non-confidential basis from a source (other than the Providing Party
or one of its Representatives) who is not, to the knowledge of the
Receiving Party after reasonable inquiries, prohibited from transmitting
the information to the Receiving Party or its Representatives by
contractual legal, fiduciary or other obligation.
(b) Subject to paragraph (c) below or except as required by law,
the Confidential Material will be kept confidential and will not, without
prior written consent of the Providing Party, be disclosed by the Receiving
Party or its Representatives, in whole or in part, and will not be used by
the Receiving Party or its Representatives, directly or indirectly, for any
purpose other than in connection with the Stock Purchase Agreement, this
Agreement or with respect to the matters contemplated therein. Moreover,
each Receiving Party agrees to transmit Confidential Material to its
Representatives only if and to the extent that such Representatives need to
know the Confidential Material for purposes of such transaction and are
informed by such Receiving Party of the confidential nature of the
Confidential Material and of the terms of this Section 4.1. In any event,
each Receiving Party will be responsible for any actions by its
Representatives which are not in accordance with the provisions hereof.
(c) In the event that Receiving Party, its Representatives or
anyone to whom such Receiving Party or its Representatives supply
Confidential Material is requested or required (by oral questionnaires,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, any informal or formal investigation by any
government or governmental agency authority or otherwise in connection
with legal processes) to disclose any Confidential Material, such Receiving
Party agrees (i) to immediately notify the Providing Party of the
existence, terms and circumstances surrounding such request, (ii) to
consult with the Providing Party on the advisability of taking legally
available steps to resist or narrow such request and (iii) if disclosure
of such information is required, to furnish only that portion of the
Confidential Material which, in the opinion of such Receiving Party's
counsel, such Receiving Party is legally compelled to disclose and to
cooperate with any action by the Providing Party to obtain an appropriate
protective order or other reliable assurance that confidential treatment
will be accorded the Confidential Material (it being agreed that the
Providing Party shall reimburse the Receiving Party for all reasonable
out-of-pocket expenses incurred by the Receiving Party in connection
with such cooperation.)
(d) In the event of the termination of this Agreement in accordance
with its terms, promptly upon request from either Providing Party, the
Receiving Party shall, except to the extent prevented by law, redeliver to
the Providing Party or destroy all tangible Confidential Material and will
not retain any copies, extracts or other reproductions thereof in whole or
in part. Any such destruction shall be certified in writing to the
Providing Party by an authorized officer of the Receiving Party supervising
the same. Notwithstanding the foregoing, each Receiving Party and one
Representative designated by each Receiving Party shall be permitted to
retain one permanent file copy of each document constituting Confidential
Material.
4.2 Successors, Assigns and Transferees. This Agreement shall be
binding upon and all rights hereto shall inure to the benefit of the
parties hereto and their respective legal representatives, heirs, legatees,
successors and permitted assigns subject to the terms of this Agreement.
4.3 Notices. Any notice, request, instruction or other document
to be given hereunder by any party hereto to another party hereto shall be
in writing, shall be deemed to have been duly given or delivered when
delivered personally or telecopied (receipt confirmed, with a copy sent by
reputable overnight courier), or one business day after delivery to a
reputable overnight courier, postage prepaid, to the address of the party
set forth below such person's signature on this Agreement or to such
address as the party to whom notice is to be given may provide in a written
notice to each of the other parties to this Agreement, a copy of which
written notice shall be on file with the Secretary of the Company.
4.4 Recapitalizations, etc. The provisions of this Agreement
(including any calculation of share ownership) shall apply, except to the
extent specifically set forth herein with respect to the Restricted
Securities, to any and all shares of capital stock of the Company or any
capital stock, partnership units or any other security evidencing ownership
interests in any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) that may be issued in respect
of, in exchange for, or in substitution of the Common Stock by reason of
any stock dividend, split, reverse split, combination, recapitalization,
liquidation, reclassification, merger, consolidation or otherwise.
4.5 Inspection and Compliance with Law. Copies of this Agreement
will be available for inspection or copying by any holder of Restricted
Securities at the offices of the Company through the Secretary of the
Company. The Company shall take all reasonable action to insure that the
provisions of Delaware law relating to agreements similar to this Agreement
are promptly complied with.
4.6 Choice of Law. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED
AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF).
4.7 Entire Agreement; Amendments and Waivers. This Agreement
embodies the entire agreement and understanding of the parties hereto
pertaining to the subject matter hereof, and supercedes that certain
Confidentiality Agreement among the parties. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
4.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.9 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms to the fullest extent permitted by law.
4.10 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.11 Cumulative Remedies. All rights and remedies of either party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have at law or in equity, and the exercise of one or
more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
4.12 Term. Unless earlier terminated by an instrument in writing
amending this Agreement pursuant to Section 4.7, this Agreement shall
terminate upon the tenth anniversary of the effective date of this
Agreement. Notwithstanding the foregoing, this Agreement shall in any
event terminate with respect to the Purchaser when the Purchaser and its
Affiliates no longer own any shares of Restricted Securities.
4.13 Specific Performance. The Company and the Purchaser
acknowledge and agree that in the event of any breach of this Agreement,
the non-breaching party would be irreparably and immediately harmed and
could not be made whole by monetary damages. It is accordingly agreed that
the non-breaching party, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and/or
to compel specific performance of this Agreement in any action, provided
that any such action shall take place in a state court of Delaware (a
"Delaware Court").
4.14 Jurisdiction. The Company and the Purchaser hereby agree
that any suit, claim, action or proceeding relating to or arising under
this Agreement shall be brought in a Delaware Court. The Company and the
Purchaser hereby consent to personal jurisdiction in any such action
brought in any such Delaware Court, consent to service of process upon it,
and waive any objection it may have to venue in any such Delaware Court or
to any claim that any such Delaware Court is an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have caused this Investor's
Agreement to be duly executed as of the date first above written.
FRANCHISE FINANCE CORPORATION OF AMERICA
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive
Officer
Address: The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
COLONY INVESTORS III, L.P.
By: Colony Capital III, L.P.
By: ColonyGP III, Inc.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
Address: c/o Colony Capital, Inc.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
