UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1999
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to ____________
Commission file number
1-13116
FRANCHISE FINANCE CORPORATION OF AMERICA
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 86-0736091
- ------------------------ ----------------------
(State of Incorporation) (I.R.S. Employer
Identification Number)
The Perimeter Center
17207 North Perimeter Drive
Scottsdale, Arizona 85255
----------------------------------------
(Address of principal executive offices)
Registrants' telephone number including area code (480) 585-4500
--------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Number of shares outstanding of each of the issuer's classes of common stock as
of April 21, 1999:
Common Stock, $0.01 par value 55,864,988
----------------------------- ----------------
Class Number of Shares
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PART I - FINANCIAL INFORMATION
Item l.Financial Statements.
FRANCHISE FINANCE CORPORATION OF AMERICA
CONSOLIDATED BALANCE SHEETS - MARCH 31, 1999 AND DECEMBER 31, 1998
(Amounts in thousands except share data)
(Unaudited)
March 31, December 31,
1999 1998
----------- -----------
ASSETS
Investments:
Investments in Real Estate, at cost:
Land $ 515,834 $ 496,286
Buildings and Improvements 805,376 759,444
Equipment 21,095 18,870
----------- -----------
1,342,305 1,274,600
Less-Accumulated Depreciation 190,025 185,580
----------- -----------
Net Real Estate Investments 1,152,280 1,089,020
Mortgage Loans Held for Sale 342,880 163,172
Mortgage Loans Receivable, net of allowances
of $3,570 in 1999 and $3,600 in 1998 44,552 43,343
Real Estate Investment Securities 137,273 113,692
Other Investments 12,707 14,231
----------- -----------
Total Investments 1,689,692 1,423,458
Cash and Cash Equivalents 3,660 3,881
Accounts Receivable, net of allowances
of $410 in 1999 and $720 in 1998 11,249 9,491
Other Assets 23,171 23,599
----------- -----------
Total Assets $ 1,727,772 $ 1,460,429
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Dividends Payable $ 27,372 $ 24,041
Notes Payable 500,590 500,168
Borrowings Under Line of Credit 304,000 188,000
Mortgage Payable to Affiliate 8,500 8,500
Accrued Expenses and Other 28,153 23,286
----------- -----------
Total Liabilities 868,615 743,995
----------- -----------
Shareholders' Equity:
Preferred Stock, par value $.01 per share,
10 million shares authorized, none issued
or outstanding -- --
Common Stock, par value $.01 per share,
authorized 200 million shares, issued and
outstanding 55,861,831 shares in 1999
and 49,063,133 shares in 1998 559 491
Capital in Excess of Par Value 921,564 773,708
Cumulative Net Income 323,282 297,823
Cumulative Dividends (386,248) (355,588)
----------- -----------
Total Shareholders' Equity 859,157 716,434
----------- -----------
Total Liabilities and Shareholders' Equity $ 1,727,772 $ 1,460,429
=========== ===========
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FRANCHISE FINANCE CORPORATION OF AMERICA
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
(Amounts in thousands except per share data)
(Unaudited)
1999 1998
------- -------
REVENUES:
Rental $35,714 $26,868
Mortgage Loan Interest 4,933 8,872
Real Estate Investment Securities Income 6,331 2,332
Investment Income and Other 1,542 1,318
------- -------
48,520 39,390
------- -------
EXPENSES:
Depreciation and Amortization 7,245 5,483
Operating, General and Administrative 3,090 3,379
Property Costs 594 296
Interest 12,503 11,510
Interest (Related Party) 254 250
------- -------
23,686 20,918
------- -------
Income Before Gain on Sale of Property 24,834 18,472
Gain on Sale of Property 625 102
------- -------
Net Income $25,459 $18,574
======= =======
Basic Net Income Per Share $ .48 $ .43
======= =======
Diluted Net Income Per Share $ .48 $ .42
======= =======
Number of Common Shares Used in
Basic Net Income Per Share 53,384 43,588
Incremental Shares from Assumed
Conversion of Options 149 472
------- -------
Number of Common Shares Used in
Diluted Net Income Per Share 53,533 44,060
======= =======
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FRANCHISE FINANCE CORPORATION OF AMERICA
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE THREE MONTHS ENDED MARCH 31, 1999
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Common Stock Issued Capital in
------------------- Excess of Cumulative Cumulative
Shares Amount Par Value Net Income Dividends Total
------ ------ --------- ---------- --------- -----
<S> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 1998 49,063 $491 $773,708 $297,823 $(355,588) $ 716,434
Capital contributions -
Issuance of common stock 6,710 67 145,905 -- -- 145,972
Dividend reinvestment plan 88 1 1,929 -- -- 1,930
Exercise of stock options 1 -- 22 -- -- 22
Net income -- -- -- 25,459 -- 25,459
Dividends declared -
$.49 per share -- -- -- -- (30,660) (30,660)
------ ---- -------- -------- --------- ---------
BALANCE, March 31, 1999 55,862 $559 $921,564 $323,282 $(386,248) $ 859,157
====== ==== ======== ======== ========= =========
</TABLE>
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FRANCHISE FINANCE CORPORATION OF AMERICA
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
(Amounts in thousands)
(Unaudited)
1999 1998
--------- ---------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 25,459 $ 18,574
Adjustments to net income:
Depreciation and amortization 7,245 5,483
Gain on sale of property (625) (102)
Other 3,666 3,494
--------- ---------
Net cash provided by operating activities 35,745 27,449
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property (72,467) (46,089)
Investment in mortgage loans (319,615) (135,390)
Investment in notes receivable -- (5,983)
Proceeds from securitization transactions 109,288 --
Proceeds from sale of property 5,744 3,301
Receipt of mortgage loan and note payoffs and
collection of mortgage and note principal 3,392 6,928
Collection of investment security principal 1,097 746
--------- ---------
Net cash used in investing activities (272,561) (176,487)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends paid (27,329) (19,640)
Net proceeds from issuance of common stock 147,924 160,464
Proceeds from bank borrowings 318,000 123,000
Proceeds from issuance of notes -- 17,000
Payment of bank borrowings (202,000) (136,000)
--------- ---------
Net cash provided by financing activities 236,595 144,824
--------- ---------
NET DECREASE IN CASH AND CASH EQUIVALENTS (221) (4,214)
CASH AND CASH EQUIVALENTS, beginning of period 3,881 7,130
--------- ---------
CASH AND CASH EQUIVALENTS, end of period $ 3,660 $ 2,916
========= =========
Noncash Investing Activities:
Investment in securities resulting from
securitization transactions $ 23,798 $ --
========= =========
Conversion of mortgage loans to property
and equipment subject to operating lease $ 2,828 $ --
========= =========
Mortgage loan obtained as part of property
sale proceeds, net of deferred gain $ -- $ 1,447
========= =========
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
Franchise Finance Corporation of America ("FFCA") is a self-administered real
estate investment trust ("REIT") which provides real estate financing to
multi-unit operators of chain restaurants, convenience stores and automotive
services and parts outlets. FFCA offers financing through various products,
including long-term real estate leases, mortgage loans, equipment loans and
construction financing. At March 31, 1999, FFCA had interests in 3,923
properties representing approximately $1.9 billion in gross investments in chain
store properties located throughout the United States and in Canada (although
investments in Canada are not significant). In addition to this geographic
diversification, the portfolio is also represented by more than 450 different
operators in approximately 100 retail chains. No single operator represented 10%
or more of FFCA's total portfolio revenues during the quarter ended March 31,
1999. FFCA's portfolio included 2,361 chain store properties consisting of
investments in real estate mortgage loans and properties subject to leases and
1,562 properties consisting of securitized mortgage loans in which FFCA holds a
residual interest.
LIQUIDITY AND CAPITAL RESOURCES
During the first quarter of 1999, FFCA originated $391 million in new
sale-leaseback and mortgage loan investments, which is more than double the
investment volume achieved in the first quarter of the prior year. Originations
in 1999 are represented by $318 million in mortgage loans and $73 million in
property subject to operating leases. Approximately $85 million was invested in
chain restaurant properties, $279 million in convenience stores and $27 million
in automotive services and parts stores.
FFCA's investment activities are funded initially by draws on FFCA's revolving
credit facilities and cash generated from operations. During the first quarter
of 1999, FFCA increased its liquidity to ensure the availability of capital for
the funding of new investments. FFCA successfully completed an equity offering
in January, raising net proceeds of approximately $146 million through the
issuance of 6.7 million shares of FFCA common stock. Then in February 1999, FFCA
entered into a new $75 million revolving loan facility with a bank on
substantially the same terms and conditions as the existing $350 million
revolving loan facility. As of March 31, 1999, FFCA had $121 million available
on $425 million of bank revolving loan facilities and $269 million available on
its $600 million loan sale facility described below. FFCA's $425 million
unsecured revolving loan facilities are used as a warehousing line until a
sufficiently large pool of portfolio investments is accumulated to warrant the
sale of loans through a securitization transaction or the issuance of additional
debt or equity securities of FFCA.
FFCA has available a loan sale facility with a third party, under which the
third party is currently committed to advance FFCA up to $600 million. This
facility permits FFCA to sell loans on a regular basis to a trust at an agreed
upon advance rate. FFCA acts as servicer for such loans following the sale to
the trust. During the quarter ended March 31, 1999, FFCA sold 95 loans with an
aggregate principal balance of $133 million through the loan sale facility,
resulting in no material gain. Cash proceeds from the sale amounted to 82% of
the mortgage loan balance with the remaining sale proceeds represented by trust
certificates. These retained subordinated investment securities, totaling $24
million, were accounted for as the sale of mortgage loans and the purchase of
trust certificates. The net cash proceeds approximated $109 million and were
used to reduce FFCA's revolving loan facility.
On April 28, 1999, certain mortgage loans originated and held by FFCA together
with loans that FFCA sold through its loan sale facility during 1998 and 1999,
aggregating approximately $415 million, were securitized and Secured Franchise
Loan Trust Certificates were sold to investors through a trust. The majority of
the securitized loan pool was sold to third parties, while FFCA retained
subordinated investment securities approximating 10% of the total mortgage loan
pool balance. The subordinated investment securities held by FFCA are the last
of the securities to be repaid from the loan pool, so that if any of the
underlying mortgage loans default, these securities take the first loss. Any
future credit losses in the securitized loan pool would be concentrated in these
subordinated investment securities retained by FFCA; however, FFCA originates
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and services mortgage loans and has the infrastructure and resources to deal
with potential defaults on the securitized portfolio (as it does with the
mortgage loans it holds for investment). To date, there have been no losses from
defaults in any of the securitized loan pools. FFCA also retained the servicing
rights on the mortgage loans it has sold. FFCA expects to recognize a gain on
the transaction.
Operations during the quarter ended March 31, 1999 provided net cash of $36
million as compared to $27 million for the first quarter of 1998. The increase
in cash provided by operations is primarily due to increased revenues from the
growth in the size of the portfolio. Cash generated from operations provides
distributions to the shareholders in the form of quarterly dividends.
FFCA has a dividend reinvestment plan that allows shareholders to acquire
additional shares of FFCA stock by automatically reinvesting their quarterly
dividends. As of March 31, 1999, shareholders owning approximately 7% of the
outstanding shares of FFCA common stock participate in the dividend reinvestment
plan and dividends reinvested during the quarter ended March 31, 1999 totaled
approximately $1.9 million. FFCA declared a first quarter 1999 dividend of $0.49
per share, or $1.96 per share on an annualized basis, payable on May 20, 1999 to
shareholders of record on May 10, 1999. Management anticipates that cash
generated from operations will be sufficient to meet operating requirements and
provide the level of shareholder dividends required to maintain FFCA's status as
a REIT.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
FFCA invests in certain financial instruments that are subject to various forms
of market risk such as interest rate fluctuations, credit risk and prepayment
risk. FFCA's primary exposure is the risk of loss that may result from the
potential change in the value of its mortgage loans and investments held for
sale as a result of changes in interest rates.
Generally, from the time the fixed-rate mortgage loans are originated until the
time they are sold through a securitization transaction, FFCA hedges against
fluctuations in interest rates through the use of derivative financial
instruments. FFCA intends to terminate these contracts upon securitization of
the related fixed-rate mortgage loans and, at that time, both the gain or loss
on the sale of the loans and the gain or loss on the termination of the interest
rate swap contracts will be measured and recognized in the statement of
operations. At March 31, 1999, FFCA had outstanding interest rate swap contracts
aggregating $155 million in notional amount. Based on the level of interest
rates prevailing, FFCA would have received approximately $1.4 million if it had
terminated the swap contracts at March 31, 1999.
FFCA estimates that a hypothetical one percentage point increase or decrease in
long-term interest rates at March 31, 1999 would impact the financial
instruments described above and result in a change to net income of
approximately $4.5 million. This sensitivity analysis contains certain
simplifying assumptions (for example, it does not consider the impact of
prepayment risk or credit spread risk). Therefore, although it gives an
indication of FFCA's exposure to interest rate changes at March 31, 1999, it is
not intended to predict future results and FFCA's actual results will likely
vary.
RESULTS OF OPERATIONS
FFCA's operations for the first quarter of 1999 resulted in net income of $25.5
million ($.48 per share diluted) as compared to net income of $18.6 million
($.42 per share diluted) in 1998. The increase in net income between 1998 and
1999 resulted from increased revenues due to the continued growth in FFCA's real
estate investment portfolio.
Total revenues rose 23% to $48.5 million during the quarter from $39.4 million
in the comparable quarter of 1998 primarily due to the growth of FFCA's
investment portfolio. FFCA's primary source of revenue growth is rental revenues
generated by new investments in chain store properties. Since the first quarter
of 1998, FFCA made new investments in property subject to operating leases of
approximately $390 million, including $73 million in the first quarter of 1999.
The average base lease rate on new investments in 1999 was slightly lower than
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the average rate for the comparable quarter in 1998. Partially offsetting the
rental revenue increases generated by new investments were decreases in rent
related to properties sold.
Certain of the leases in FFCA's portfolio also provide for contingent rentals
based on a percentage of the gross sales of the related chain store properties.
Such contingent rentals totaled $2 million in the first quarter of 1999 as
compared to $1.3 million in the first quarter of 1998.
Mortgage interest income generated by FFCA's loan portfolio totaled $4.9 million
for the quarter ended March 31, 1999. The majority of the mortgage interest
income is generated by mortgage loans that are held for sale. The average rate
achieved on the loans originated during the first quarter of 1999 was slightly
higher than the average rate achieved during the first quarter of 1998.
Increases and decreases in mortgage interest income between quarters has been,
and will continue to be, impacted by the amount of loans held for sale and the
timing of the sale of these loans through securitization transactions. Although
FFCA no longer receives mortgage interest income from the mortgages it has sold,
it retains certain interests through the purchase of subordinated investment
securities. These securities generate revenues that are included in "Real Estate
Investment Securities Income" in the accompanying financial statements. The
increase in real estate investment securities income between 1998 and 1999 is
due to the addition of $85 million in subordinated investment securities related
to the securitization transaction that closed in May 1998 and to the loan sale
facility transactions that occurred since the first quarter of 1999.
Expenses increased to $23.7 million during the quarter from $20.9 million in the
comparable quarter of 1998. This increase was primarily due to higher interest
expense and depreciation and amortization expense related to property purchases.
For the quarter, interest expense rose $1 million due primarily to increased
borrowing rates offset somewhat by a decrease in the average borrowings
outstanding during the quarter. FFCA's outstanding borrowings averaged $634
million in the first quarter of 1999 as compared to $641 million in 1998,
despite the increase in investment originations, due to the use of equity
proceeds to fund new investments in 1999. Operating, general and administrative
expenses in the first quarter of 1999 decreased by $289,000 as compared to the
same quarter in 1998 due to increased bad debt recoveries.
During the quarter, FFCA sold 12 properties (as compared to 10 properties sold
in the first quarter of 1998) and recorded net gains totaling $625,000 on these
sales, as compared to net gains of $102,000 recorded in the first quarter of
1998. Prepayments received in 1999 on securitized mortgage loans represented
another 15 properties removed from the portfolio. Cash proceeds from the sale of
property and from mortgage loan and note payoffs during the quarter, totaling
$7.1 million, were used to fund new investments.
YEAR 2000 READINESS
FFCA'S STATE OF READINESS. FFCA successfully implemented its new accounting and
servicing information system in January 1998 and its new property management
system was deployed in July 1998. The design and implementation of these new
systems, including related upgrades in computer hardware, was necessary to
develop a more efficient portfolio servicing system that would permit a high
level of growth in the FFCA portfolio while containing operating costs. The new
systems are also "Year 2000" compliant which means that the systems will
appropriately address any dates that refer to the 21st century. FFCA has taken a
proactive approach in dealing with the issues associated with the Year 2000 and
a five-phase process to address this challenge was approved by FFCA's computer
steering committee. This plan includes: (1) an inventory and assessment of the
systems and electronic devices that may be at risk; (2) the identification of
potential solutions; (3) the implementation of upgrades or replacements to
affected systems or devices; (4) the verification of compliance and testing of
the revised systems; and (5) the training of users on the new systems. To date,
FFCA has completed a review of its software and hardware and determined, through
a combination of internal testing and vendor representations that their products
have been tested and are compliant, that all mission-critical systems (those
systems that are necessary to conduct FFCA's business activities) are Year 2000
compliant. Non-mission critical software and hardware have also been reviewed
and FFCA is currently upgrading or replacing a few third-party products as part
of its ongoing maintenance of information system technology.
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THE COSTS TO ADDRESS FFCA'S YEAR 2000 ISSUES. Based on current estimates and
plans, FFCA believes the costs of addressing Year 2000 issues will not be
material.
THE RISKS OF FFCA'S YEAR 2000 ISSUES. FFCA believes the most reasonably likely
worst case scenario will be indirect in nature involving third parties such as
clients, vendors and suppliers which may not have successfully dealt with their
Year 2000 issues. FFCA continues to assess the key third parties that it relies
upon; however, FFCA has not yet been assured that all of the computer systems of
its clients, vendors and suppliers will be Year 2000 compliant. For example, if
suppliers of FFCA's energy or telecommunications fail to become Year 2000
compliant, such failure possibly could have an adverse effect on FFCA's ability
to conduct daily operations or to communicate with its clients and vendors.
While FFCA continues to analyze these risks, it is possible that information
relevant to such analysis will not be made available to FFCA, or that potential
solutions will not be within FFCA's control. In addition, there can be no
guarantee that FFCA's efforts will prevent a material adverse impact on its
results of operations, financial condition and cash flows. FFCA believes that
its readiness program, including the contingency plans discussed below, should
significantly reduce the adverse effect any disruptions may have.
FFCA'S CONTINGENCY PLANS. FFCA will continue to monitor and evaluate its key
clients, vendors and suppliers to determine the extent that FFCA is vulnerable
to those third parties' possible failure to become Year 2000 compliant. FFCA
expects to develop contingency plans throughout 1999, on an as needed basis to
address these concerns, where reasonable to do so. These plans may include
identifying and securing alternate suppliers of services and other measures
considered appropriate by management. Once developed, the contingency plans will
be continually refined, as additional information becomes available.
In the opinion of management, the financial information included in this report
reflects all adjustments necessary for fair presentation. All adjustments are of
a normal recurring nature.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
This item is incorporated by reference from Item 2. "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Quantitative and
Qualitative Disclosures About Market Risk".
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
On April 7, 1999, the Board of Directors of FFCA declared a dividend of one
preferred share purchase right (a "Right") for each outstanding share of FFCA's
common stock, par value $0.01 per share (the "Common Stock"). The dividend is
payable to the stockholders of record at the close of business on April 19, 1999
(the "Record Date"). Each Right entitles the registered holder to purchase from
FFCA one one-thousandth of a share of FFCA's Series A Junior Participating
Preferred Stock, par value $.01 per share (the "Preferred Stock"), at a price of
$90.00 per one one-thousandth of a share of Preferred Stock (the "Purchase
Price"), subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement dated as of April 7, 1999, as the same may be
amended from time to time (the "Rights Agreement"), between FFCA and Gemisys
Corporation, as Rights Agent.
Until the earlier to occur of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (with certain exceptions, an
"Acquiring Person") has acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock or (ii) 10 business days (or such later date
as may be determined by action of FFCA's Board of Directors prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the "Distribution Date"),
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the Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Stock certificate
together with a copy of the Summary of Rights which is attached as an exhibit to
the Rights Agreement.
The Rights Agreement provides that, until the Distribution Date (or earlier
expiration of the Rights), the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier expiration of the Rights),
new Common Stock certificates issued after the Record Date upon transfer or new
issuances of Common Stock will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier expiration of
the Rights), the surrender for transfer of any certificates for shares of Common
Stock outstanding as of the Record Date, even without such notation or a copy of
the Summary of Rights, will also constitute the transfer of the Rights
associated with the shares of Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Stock as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on April 7, 2009 (the "Final Expiration Date"), unless the Final
Expiration Date is advanced or extended or unless the Rights are earlier
redeemed or exchanged by the Company.
Shares of Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled, when, as and if
declared, to a minimum preferential quarterly dividend payment of the greater of
(a) $10.00 per share, and (b) an amount equal to 1000 times the dividend
declared per share of Common Stock. In the event of liquidation, dissolution or
winding up of FFCA, the holders of the Preferred Stock will be entitled
to a minimum preferential payment of the greater of (a) $10.00 per share (plus
any accrued but unpaid dividends), and (b) an amount equal to 1000 times the
payment made per share of Common Stock. Each share of Preferred Stock will have
one vote, voting together with the Common Stock. Finally, in the event of any
merger, consolidation or other transaction in which outstanding shares of Common
Stock are converted or exchanged, each share of Preferred Stock will be entitled
to receive 1000 times the amount received per share of Common Stock. These
rights are protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend and liquidation rights,
the value of the one one-thousandth interest in a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock, unless a discount results from the fact that such
interest carries one one-thousandth of a vote as a result of restrictions
contained in FFCA's Certificate of Incorporation.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereupon become void),
will thereafter have the right to receive upon exercise of a Right that number
of shares of Common Stock (or, in certain circumstances, other securities or
assets of FFCA) having a market value of two times the exercise price of the
Right.
In the event that, after a person or group has become an Acquiring Person, FFCA
is acquired in a merger or other business combination transaction or 50% or more
of its consolidated assets or earning power are sold, proper provisions will be
made so that each holder of a Right (other than Rights beneficially owned by an
Acquiring Person which will have become void) will thereafter have the right to
receive upon the exercise of a Right that number of shares of common stock of
the person with whom FFCA has engaged in the foregoing transaction (or its
parent) that at the time of such transaction have a market value of two times
the exercise price of the Right.
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At any time after any person or group becomes an Acquiring Person and prior to
the earlier of one of the events described in the previous paragraph or the
acquisition by such Acquiring Person of 50% or more of the outstanding shares of
Common Stock, the Board of Directors of FFCA may exchange the Rights
(other than Rights owned by such Acquiring Person which will have become void),
in whole or in part, for shares of Common Stock or Preferred Stock (or, in
certain circumstances, other securities or assets of FFCA) at an exchange
ratio of one share of Common Stock, or such amount of other securities or assets
equivalent in value thereto, per Right.
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such
Purchase Price. No fractional shares of Preferred Stock or Common Stock will be
issued (other than fractions of Preferred Stock which are integral multiples of
one one-thousandth of a share of Preferred Stock, which may, at the election of
FFCA, be evidenced by depositary receipts), and in lieu thereof an
adjustment in cash will be made based on the current market price of the
Preferred Stock or the Common Stock.
At any time prior to the time an Acquiring Person becomes such, the Board of
Directors of FFCA may redeem the Rights in whole, but not in part, at a price of
$.01 per Right (the "Redemption Price") payable, at the option of FFCA, in cash,
shares of Common Stock or such other form of consideration as the Board of
Directors of FFCA shall determine. The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish. Immediately upon any redemption
of the Rights, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
Until a Right is exercised or exchanged, the holder thereof, as such, will have
no rights as a stockholder of FFCA, including, without limitation, the right to
vote or to receive dividends.
A copy of the Rights Agreement and the Certificate of Designation classifying
and designating the Series A Junior Participating Preferred Stock are attached
as exhibits to, and are incorporated herein by reference from, FFCA's Current
Report of Form 8-K dated April 7, 1999 as filed with the Securities and Exchange
Commission.
ITEM 6.EXHIBITS AND REPORTS ON FORM 8-K.
(a) The following is a complete list of exhibits filed as part of this
Form 10-Q. For electronic filing purposes only, this report contains
Exhibit 27, Financial Data Schedule. Exhibit numbers correspond to the
numbers in the Exhibit Table of Item 601 of Regulation S-K.
Exhibit 3.01 Certificate of Designation of Franchise Finance
Corporation, classifying and designating the Series A
Junior Participating Preferred Stock.*
Exhibit 4.01 Rights Agreement, dated as of April 7, 1999, between
Franchise Finance Corporation and Gemisys Corporation,
as Rights Agent.*
Exhibit 99.01 Purchase Agreement dated April 22, 1999 between FFCA
Secured Lending Corporation, and Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc. and Prudential
Securities Incorporated, as initial purchasers of
$371,908,000 aggregate principal or notional amount of
Secured Franchise Loan Trust Certificates, Series
1999-1, Class A-1a, Class A-1b, Class A-2, Class B-1,
Class B-2, Class C-1, Class C-2, Class D-1, Class D-2
and Class IO.
- ----------
* Incorporated by reference from the Registrant's Current Report on Form 8-K
dated April 7, 1999, as filed with the Securities and Exchange Commission.
(b) During the quarter ended March 31, 1999, FFCA filed the following
report on Form 8-K:
Form 8-K dated January 27, 1999, filed January 29, 1999, reporting the
Purchase Agreement with respect to the issue and sale by FFCA of
6,000,000 shares of its common stock, and an option to purchase an
additional 900,000 shares of common stock to cover over-allotments if
any, under Item 5, Other Events, and Item 7, Financial Statements and
Exhibits.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FRANCHISE FINANCE CORPORATION OF AMERICA
Date: April 30, 1999 By /s/ John Barravecchia
--------------------------------------------
John Barravecchia, Executive Vice President,
Chief Financial Officer and Treasurer
Date: April 30, 1999 By /s/ Catherine F. Long
--------------------------------------------
Catherine F. Long, Senior Vice President
Finance and Principal Accounting Officer
12
<PAGE>
EXHIBIT INDEX
The following is a complete list of exhibits filed as part of this
Form 10-Q. For electronic filing purposes only, this report contains
Exhibit 27, Financial Data Schedule. Exhibit numbers correspond to the
numbers in the Exhibit Table of Item 601 of Regulation S-K.
Exhibit 3.01 Certificate of Designation of Franchise Finance
Corporation, classifying and designating the Series A
Junior Participating Preferred Stock.*
Exhibit 4.01 Rights Agreement, dated as of April 7, 1999, between
Franchise Finance Corporation and Gemisys Corporation,
as Rights Agent.*
Exhibit 99.01 Purchase Agreement dated April 22, 1999 between FFCA
Secured Lending Corporation, and Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc. and Prudential
Securities Incorporated, as initial purchasers of
$371,908,000 aggregate principal or notional amount of
Secured Franchise Loan Trust Certificates, Series
1999-1, Class A-1a, Class A-1b, Class A-2, Class B-1,
Class B-2, Class C-1, Class C-2, Class D-1, Class D-2
and Class IO.
- ----------
* Incorporated by reference from the Registrant's Current Report on Form 8-K
dated April 7, 1999, as filed with the Securities and Exchange Commission.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF MARCH 31, 1999 AND THE CONSOLIDATED STATEMENT
OF INCOME FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<EXCHANGE-RATE> 1
<CASH> 3,660
<SECURITIES> 0
<RECEIVABLES> 11,659
<ALLOWANCES> 410
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,342,305
<DEPRECIATION> 190,025
<TOTAL-ASSETS> 1,727,772
<CURRENT-LIABILITIES> 0
<BONDS> 813,090
0
0
<COMMON> 559
<OTHER-SE> 858,598
<TOTAL-LIABILITY-AND-EQUITY> 1,727,772
<SALES> 0
<TOTAL-REVENUES> 48,520
<CGS> 0
<TOTAL-COSTS> 594
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,757
<INCOME-PRETAX> 25,459
<INCOME-TAX> 0
<INCOME-CONTINUING> 25,459
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 25,459
<EPS-PRIMARY> 0.48
<EPS-DILUTED> 0.48
</TABLE>
$371,908,000
FFCA SECURED LENDING CORPORATION
SECURED FRANCHISE LOAN
TRUST CERTIFICATES, SERIES 1999-1
PURCHASE AGREEMENT
April 22, 1999
<PAGE>
April 22, 1999
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Prudential Securities Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
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") $371,908,000 aggregate principal or notional amount of
FFCA Secured Lending Corporation Secured Franchise Loan Trust Certificates,
Series 1999-1, Class A-1a, Class A-1b, Class A-2, 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, 1999, 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 1999-1 Secured Franchise Loan-Backed Bonds (the "BONDS")
designated as Class A-1a, Class A-1b, Class A-2, 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 1999-1 (the "OWNER TRUST"), a
Delaware business trust to be established by the Company pursuant to an Owner
Trust Agreement, dated as of April 1, 1999 (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,
1999 (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) 515 fixed and
adjustable rate, monthly pay, first 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
2
<PAGE>
gasoline store, gasoline station or automotive parts and/or service facility
(collectively, the "CHAIN STORE FACILITIES"), (ii) 83 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, 1999, the Secured Loans
had an aggregate principal amount of approximately $414,855,117. 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), each of FFCA Acquisition Corporation (the
"CORPORATE SELLER") and FFCA Franchise Loan Owner Trust 1998-1 (the "TRUST
SELLER," and collectively with the Corporate Seller, the "SELLERS") 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, 1999, among FFCA,
the Sellers 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, 1999 (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 the
credit write-ups presented to the credit committee of FFCA with respect to the
five largest Borrower Groups and the concepts related thereto (the "ADDITIONAL
INFORMATION") and will prepare a final private placement memorandum (the "FINAL
MEMORANDUM" 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.
3
<PAGE>
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, 1999 (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.
4
<PAGE>
(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,
(a) the Corporate 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), and
(b) the Trust Seller will have been duly organized and will be validly
existing and in good standing as a business trust 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 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.
5
<PAGE>
(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 each of
the Sellers and will constitute a valid and binding agreement of FFCA, the
Company and the Sellers, enforceable against FFCA, the Company and the
Sellers 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
6
<PAGE>
Owner 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.
7
<PAGE>
(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.
8
<PAGE>
(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, PricewaterhouseCoopers 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) Immediately prior to the transfer to the Company, each of the
Sellers will be the sole owner and holder of the related 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"), each 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 authority to
9
<PAGE>
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.
10
<PAGE>
(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 each 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 to the extent required by
applicable law.
(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
11
<PAGE>
defined 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,
each Corporate Secured Loan, 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 Morgan Stanley & 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).
3. TERMS OF OFFERING. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
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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 a.m., New York City time, on April 28, 1999, or at such other
time on the same or such other date, not later than May 5, 1999, 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
(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
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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 Kutak Rock, outside counsel for FFCA, the Company and the
Sellers, 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 Thacher Proffitt & Wood, outside counsel for FFCA, the Company
and the Sellers, 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.
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(f) The Initial Purchasers shall have received on the Closing Date an
opinion of Sidley & Austin, 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 Richards Layton & 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 Sidley & 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 Kutak Rock, 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 Thomas A. Rosiello, 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 Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Initial Purchasers, dated the Closing Date, to the effect set forth in
Exhibit H.
(l) If any counsel named in this Section 5 is required to deliver an
opinion to Duff & Phelps Credit Rating Co. ("DCR"), Fitch IBCA, Inc.
("FITCH") or Moody's 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,
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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 PricewaterhouseCoopers 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 Sellers and the
files of FFCA, the Company and the Sellers 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.
(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
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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 Sellers' 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 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
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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.
(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
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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 Securities, are deemed to have represented and agreed as
provided in the Final Memorandum under the caption "Notice to Investors" and as
otherwise provided in the Grantor Trust Agreement.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United
States that:
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(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;
(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
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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 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.
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8. INDEMNITY AND CONTRIBUTION. 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 or in the Additional
Information (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 ninth
paragraphs, and the second sentence in the eighth 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 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,
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second, fourth and ninth paragraphs, and the second sentence in the eighth
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 Morgan Stanley & 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 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
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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 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
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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.
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.
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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 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.
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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.
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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/ Dennis L. Ruben
-----------------------------------
Name: Dennis L. Ruben
Title: Executive Vice President,
General Counsel and
Assistant Secretary
FRANCHISE FINANCE
CORPORATION OF AMERICA
By: /s/ Dennis L. Ruben
-----------------------------------
Name: Dennis L. Ruben
Title: Executive Vice President,
General Counsel and
Assistant Secretary
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Prudential Securities Incorporated
Acting severally on behalf of themselves and
the several Initial Purchasers named
in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By: /s/ R. H. Hoffman
--------------------------------------
Name: R. H. Hoffman
Title: Vice President
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<PAGE>
SCHEDULE I
PRINCIPAL AMOUNT
OR NOTIONAL AMOUNT
OF SECURITIES TO BE
INITIAL PURCHASER PURCHASED
- ----------------- -------------------
CLASS A-1A
Morgan Stanley & Co. Incorporated $117,005,850
Salomon Smith Barney Inc. 40,944,150
Prudential Securities Incorporated 17,550,000
------------
Total: $175,500,000
============
CLASS A-1B
Morgan Stanley & Co. Incorporated $ 93,338,000
Salomon Smith Barney Inc. 32,662,000
Prudential Securities Incorporated 14,000,000
------------
Total: $140,000,000
CLASS A-2
Morgan Stanley & Co. Incorporated $ 10,922,546
Salomon Smith Barney Inc. 3,822,154
Prudential Securities Incorporated 1,638,300
------------
Total: $ 16,383,000
CLASS B-1
Morgan Stanley & Co. Incorporated $ 13,146,657
Salomon Smith Barney Inc. 4,600,443
Prudential Securities Incorporated 1,971,900
------------
Total: $ 19,719,000
<PAGE>
CLASS B-2
Morgan Stanley & Co. Incorporated $ 682,701
Salomon Smith Barney Inc. 238,899
Prudential Securities Incorporated 102,400
------------
Total: $ 1,024,000
CLASS C-1
Morgan Stanley & Co. Incorporated $ 7,887,728
Salomon Smith Barney Inc. 2,760,172
Prudential Securities Incorporated 1,183,100
------------
Total: $ 11,831,000
CLASS C-2
Morgan Stanley & Co. Incorporated $ 409,354
Salomon Smith Barney Inc. 143,246
Prudential Securities Incorporated 61,400
------------
Total: $ 614,000
CLASS D-1
Morgan Stanley & Co. Incorporated $ 4,333,550
Salomon Smith Barney Inc. 1,516,450
Prudential Securities Incorporated 650,000
------------
Total: $ 6,500,000
CLASS D-2
Morgan Stanley & Co. Incorporated $ 224,678
Salomon Smith Barney Inc. 78,622
Prudential Securities Incorporated 33,700
------------
Total: $ 337,000
<PAGE>
CLASS IO
Morgan Stanley & Co. Incorporated $231,378,235
Salomon Smith Barney Inc. 80,966,765
Prudential Securities Incorporated 34,705,000
------------
Total: $347,050,000
<PAGE>
SCHEDULE I
PURCHASE PRICE
AS A PERCENTAGE OF
PRINCIPAL AMOUNT
OR NOTIONAL AMOUNT
CLASS OF SECURITIES
- ----- -------------
Class A-1a 99.0205%
Class A-1b 98.9965
Class A-2 99.0000
Class B-1 99.0295
Class B-2 99.0000
Class C-1 98.9490
Class C-2 99.0000
Class D-1 96.9495
Class D-2 99.0000
Class IO 8.3426
<PAGE>
EXHIBIT A
OPINION OF KUTAK ROCK, AS COUNSEL
FOR THE COMPANY, FFCA AND THE SELLERS
The opinion of Kutak Rock, as counsel for the Company, FFCA and the
Sellers, 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 Sellers 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 Corporate 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 is no
action, suit or proceeding pending against, or to the best of such
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counsel's knowledge, threatened against or affecting, the Company, FFCA or
the Sellers 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 Sellers, 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 body having jurisdiction over it or any of its
properties or assets, except where such conflicts, breaches and defaults in
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<PAGE>
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 Corporate Seller of, nor
the performance by the Corporate 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 its certificate
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 Corporate
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 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 Corporate Seller or the
ability of the Corporate Seller to perform its obligations under the Loan
Sale Agreement.
(h) Neither the execution or delivery by Wilmington Trust Company
("WTC"), as owner trustee of the Trust Seller (the "TRUST SELLER OWNER
TRUSTEE"), on behalf of the Trust Seller of, nor the performance by the
Trust 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 the Owner Trust Agreement establishing the
Trust Seller (the "TRUST SELLER 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 Trust 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 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 Trust Seller
or the ability of the Trust Seller to perform its obligations under the
Loan Sale Agreement
(i) 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
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<PAGE>
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.
(j) This Agreement has been duly authorized, executed and delivered by
the Company and FFCA.
(k) The Grantor Trust Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Loan Sale Agreement has been duly authorized, executed and
delivered by the Company, the Corporate Seller and FFCA.
(m) The Owner Trust Agreement has been duly authorized, executed and
delivered by the Company.
(n) The Servicing Agreement has been duly authorized, executed and
delivered by FFCA.
(o) The Management Agreement has been duly authorized, executed and
delivered by FFCA.
(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 the Company for the performance of the Grantor Trust
Agreement, the Loan Sale Agreement, the Owner Trust Agreement or this
36
<PAGE>
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).
(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 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 under state securities or blue sky laws (as to which such counsel
need express no opinion).
(r) 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 Sellers 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
<PAGE>
EXHIBIT B
OPINION OF THACHER PROFFITT & WOOD, AS COUNSEL
FOR THE COMPANY, FFCA AND THE SELLER
The opinion of Thacher Proffitt & Wood, 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 Sellers and FFCA, the Loan Sale Agreement constitutes a
legal, valid and binding agreement of the Company, the Sellers and FFCA
enforceable against the Company, the Sellers 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.
(d) Assuming the due authorization, execution and delivery thereof by
38
<PAGE>
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 application of equitable principles in any proceeding,
whether at law or in equity.
39
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(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
required in connection with the offer, sale and delivery of the Securities
by the Initial Purchasers in the manner contemplated by the Memorandum and
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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.
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.
41
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EXHIBIT C
OPINION OF SIDLEY & AUSTIN, AS COUNSEL
FOR THE OWNER TRUST
The opinion of Sidley & Austin, 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.
42
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EXHIBIT D
OPINION OF RICHARDS LAYTON & FINGER,
AS COUNSEL FOR THE OWNER TRUSTEE
The opinion of Richards Layton & 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) Each of the Owner Trust Agreement and the Trust Seller Owner Trust
Agreement has been duly authorized, executed and delivered by 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 Loan Sale Agreement has been duly authorized, executed and
delivered by the Trust SellerOwner Trustee on behalf of the Trust Seller
and is the valid and binding agreement of the Trust Seller acting through
the Trust Seller Owner Trustee.
(d) 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.
(e) The Trust Seller 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 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.
(f) The Bonds have been duly authorized and executed by the Owner
Trust acting through the Owner Trustee.
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(g) 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.
(h) The Trust Seller 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 Loan Sale Agreement and the Trust Seller
Owner Trust Agreement, and the Trust Seller Owner Trustee has full power,
authority and legal right to acquire, hold and sell the Secured Loans and
to carry out the transactions contemplated in the Loan Sale Agreement and
the Trust Seller Owner Trust Agreement.
(i) To the best of the knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened against or
affecting 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 (i) 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 or (ii) the
Trust Seller Owner Trustee or WTC, as the case may be, to carry out the
transactions contemplated in the Loan Sale Agreement.
(j) 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.
(k) The execution, delivery and performance of the Loan Sale Agreement
and the Trust Seller Owner Trust Agreement by the Trust Seller Owner
Trustee or WTC, as the case may be, will not conflict with or constitute a
44
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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.
(l) 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).
(m) 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 Trust Seller Owner Trustee, as the case may be, of the Loan Sale
Agreement or the Trust Seller 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).
(n) 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.
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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.
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EXHIBIT F
OPINION OF KUTAK ROCK, AS ARIZONA
TAX COUNSEL FOR FFCA
The opinion of Kutak Rock, 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.
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EXHIBIT G
OPINION OF THOMAS A. ROSIELLO, ESQ., AS COUNSEL
FOR THE TRUSTEE AND THE FISCAL AGENT
The opinion of Thomas A. Rosiello, 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 which such counsel has knowledge
or (iv) result in a breach of, conflict with or constitute a default under,
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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, 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
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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.
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EXHIBIT H
OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP,
AS COUNSEL FOR THE INITIAL PURCHASERS
The opinion of Skadden, Arps, Slate, Meagher & Flom 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.
