EXHIBIT 10.8
LOAN SALE AND PURCHASE AGREEMENT
Loan Sale and Purchase Agreement ("Agreement"), dated as of March 14, 1997,
between Orinda Management Company (the "Seller") and Xxxxxxxx Franchisee Loan
Funding 1997-A LLC (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase certain
loans made to owners or lessees of franchised restaurant concepts identified on
the schedule (the "List of Loans") annexed hereto as Exhibit 1 (the "Loans") as
described herein. The Loan Documents will be held and the Loans will be
serviced pursuant to a Servicing and Custodial Agreement (the "Servicing
Agreement") to be dated as of March 14, 1997, by and among the Purchaser,
Bankers Trust Company (in its capacity as servicer thereunder, the "Servicer",
and in its capacity as custodian thereunder, the "Custodian"), Xxxxxxxx Capital
Incorporated ("Xxxxxxxx") and First Bank National Association, as indenture
trustee (the "Indenture Trustee") under the Indenture (as defined below).
The Purchaser will pledge, among other things, the Loans and the Loan
Collateral to the Indenture Trustee pursuant to an Indenture of Trust (the
"Indenture") to be dated as of March 14, 1997. The Purchaser will issue its
Xxxxxxxx Franchisee Loan Notes, Series 1997-A, pursuant to the Indenture.
Pursuant to the Master Custodial Agreement to be dated as of March 1, 1997
between Bankers Trust Company, as note custodian, and the Seller, as depositor,
the Seller will exchange the Class A Notes for Class A Custody Receipts and
Class A-IO Custody Receipts (together, the "Custody Receipts").
The Seller intends to sell the Class B Notes and the Class C Notes to
certain qualified institutional buyers. Pursuant to a Placement Agent Agreement
dated March 14, 1997 (the "Placement Agent Agreement") with Xxxxxx Brothers Inc.
(the "Placement Agent"), the Placement Agent will offer the Class B Notes and
Class C Notes, as well as the Custody Receipts to be sold by the Seller, for
sale to certain qualified institutional buyers in transactions exempt from the
registration requirements of the Securities Act of 1933. Such securities are
described in a Private Placement Memorandum dated as of March 14, 1997 (the
"Memorandum").
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Indenture.
In consideration of the mutual agreements contained herein, the Seller
and the Purchaser hereby agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
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Purchaser agrees to purchase, on the date hereof and on a servicing released
basis, the Loans. The Loans have an aggregate principal balance as of the close
of business on the Cut Off Date, after giving effect to any payments due before
such date, whether or not received, of $97,276,237.82. The consideration paid
by the Purchaser for the Loans is $48,698,000 principal amount of Class A-1
Notes, $35,931,000 principal amount of Class A-2 Notes, 100% of each of the
Class A
Membership Interests and Class C Membership Interests in the Purchaser, and
$7,128,893.66 in immediately available funds.
On the date hereof, the Purchaser will pledge and assign to the Indenture
Trustee pursuant to the Indenture, all of its right, title and interest in and
to the Loans and its rights under this Agreement, and the Indenture Trustee
shall succeed to such right, title and interest in and to the Loans and the
Purchaser's rights under this Agreement.
SECTION 2. Conveyance of Loans; Assignment and Assumption. The Seller does
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hereby transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Loans,
the Loan Files and other Loan Documents, together with all escrow deposits
related thereto. In connection with such transfer and assignment, except for
certain UCC financing statements, Mortgages and Leasehold Mortgages dispatched
for filing or recordation, as described in Section 2 of the Xxxxxxxx Loan Sale
and Purchase Agreement (defined below), the Seller has caused to be delivered to
the Custodian, on behalf of the Purchaser, on or prior to the date hereof, all
of the Loan Files.
The Seller hereby transfers and assigns to the Purchaser all of the right,
title and interest of the Seller under that certain Loan Sale and Purchase
Agreement (the "Xxxxxxxx Loan Sale and Purchase Agreement") dated as of March
14, 1997, between the Seller, as purchaser, and Xxxxxxxx, as seller, and
attached hereto as Exhibit 2. Xxxxxxxx will deliver the original Promissory
Notes to the Custodian, on behalf of the Purchaser, endorsed in blank, to effect
the transfer to the Purchaser of the Promissory Notes and all related Mortgages
and other Loan Documents. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages and assignments of UCC financing statements, Xxxxxxxx
has executed and recorded or filed assignments of mortgages and assignments of
UCC financing statements naming the Indenture Trustee on behalf of the
Noteholders as assignee. Notwithstanding the fact that the assignments of
mortgages and the assignments of UCC financing statements name the Indenture
Trustee on behalf of the Noteholders as assignee, the parties hereto acknowledge
and agree that the Loans shall for all purposes be deemed to have been
transferred from Xxxxxxxx to the Seller, from the Seller to the Purchaser and
from the Purchaser to the Indenture Trustee on behalf of the Noteholders.
The Indenture Trustee, as assignee or pledgee of the Purchaser for the
benefit of the holders of the Notes, shall be entitled to all scheduled payments
of principal due after the Cut Off Date, all other payments of principal
collected after the Cut Off Date (other than scheduled payments of principal due
on or before the Cut Off Date) and all payments of interest on the Loans
allocable to the period commencing on the Cut Off Date.
Upon the sale of the Loans by the Seller to the Purchaser pursuant to this
Agreement, the ownership of each Promissory Note, Mortgage, Leasehold Mortgage
and the other contents of the related Loan File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Loan prepared by or which come into the possession of the Seller
shall immediately vest in the Purchaser and its assigns, and shall be delivered
promptly by the Seller to the Custodian. The Seller's records shall reflect the
transfer of each Loan to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance of the
Loans and related property to the Purchaser, by the Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Loans and related
property. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Loans and related property by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Loans or any related
property is held to be the property of the Seller, or if for any other reason
this Agreement is held or deemed to create a security interest in the Loans or
any related property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed to
be a grant by the Seller to the Purchaser, of a security interest in all of
the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit, investment
property and uncertificated securities consisting of, arising from or
relating to any of the following property: the Loans including the
Promissory Notes, the related Leasehold Mortgages, the related
Mortgages, the related Security Agreements, and title, hazard and
other insurance policies, all distributions with respect thereto
payable on and after the Cut Off Date, and the Loan Files;
(B) All accounts, contract rights, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, uncertificated securities,
investment property, and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance proceeds
payable with respect to, or claims against other Persons with respect to,
all or any part of the collateral described in clause (A) above (including
any accrued discount realized on liquidation of any investment purchased
at a discount); and
(C) All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above and all products, rents and profits of such
property.
The possession by the Purchaser or its designee of the Promissory Notes,
the Leasehold Mortgages, the Mortgages and such other goods, letters of credit,
advises of credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be "possession by the secured party," or
possession by a purchaser or a person designated by him or her, for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-305, 8-313 or 8-321 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as
applicable) of the Purchaser or its designee for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Seller shall file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect such security interest in such
property. In connection herewith, the Purchaser shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
SECTION 3. Examination of Loan Files and Due Diligence Review. On or
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prior to the date hereof, the Seller shall have caused to be delivered to the
Custodian, Loan Files with respect to the Loans. The fact that the Custodian
has conducted or has failed to conduct any partial or complete examination of
the Loan Files for the Loans shall not affect the right of the Purchaser or the
Indenture Trustee to cause the Seller to enforce Xxxxxxxx'x obligation to cure
any Material Document Defect or Material Breach (each as defined in the Xxxxxxxx
Loan Sale and Purchase Agreement), or to repurchase or replace the defective
Loans pursuant to Section 5 of the Xxxxxxxx Loan Sale and Purchase Agreement.
SECTION 4. Representations and Warranties of the Seller and the Purchaser.
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(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby represents and warrants to the Seller as of the date hereof:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Seller has the
requisite power and authority and legal right to own the Loans and to transfer
and convey the Loans to the Purchaser and has the requisite power and authority
and legal right to execute and deliver, engage in the transactions contemplated
by, and perform and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) this Agreement constitutes the valid, legal
and binding agreement of the Seller, enforceable in accordance with its terms,
except as such enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws relating
to or affecting the rights of creditors generally or (C) general equity
principles (regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is required,
under federal or state law, for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by the Seller
of any transaction contemplated hereby.
(iv) Neither the transfer of the Loans to the Purchaser, nor the
execution, delivery or performance of this Agreement by the Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of the Seller's
certificate of incorporation or by-laws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller is a
party or which may be applicable to the Seller or any of its assets, or (C) any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Seller or its assets.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened against the
Seller before any court, administrative agency or other tribunal.
(vi) The form of this Agreement and the related instruments of
transfer are in form sufficient to transfer all rights, title and interest in
and to the Loans to the Purchaser. The Seller has given or caused to be given
all notices legally necessary to be given by the Seller to effect the sale of
the Loans. The sale of the Loans pursuant to this Agreement will effect a
transfer by the Seller of all of its right, title and interest in and to the
Loans to the Purchaser.
(vii) The transfer of the Loans to the Purchaser will be treated by the
Seller for financial accounting and reporting purposes as a sale of assets.
(viii) The Seller's principal place of business and chief executive
office is in the State of New York.
(ix) The Seller is not insolvent and will not be rendered insolvent as
a result of the transactions contemplated hereby and it has not entered into
this Agreement with any intent to hinder, delay or defraud any of its creditors.
(x) The Seller has not caused or permitted any impairment of its
title to, or beneficial ownership of, any Loan or the related Loan Documents, or
granted any security interests, options, encumbrances or rights of others in or
to any Loan or the related Loan Documents.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Promissory Notes.
(b) To induce the Seller to enter into this Agreement, the Purchaser
hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently conducted by
it.
(ii) The Purchaser has full power and authority to acquire the Loans,
to execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. The Purchaser has duly authorized
the execution, delivery and
performance of this Agreement and has duly executed and delivered this
Agreement. This Agreement, assuming due authorization, execution and delivery by
the Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Purchaser
and its performance of and compliance with the terms of this Agreement will not
violate the Purchaser's certificate of formation or limited liability company
agreement or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or result in a breach of, any
material agreement or instrument to which the Purchaser is a party or which may
be applicable to the Purchaser or its assets.
(iv) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court, or any order or regulation of any federal, state or municipal
government agency having jurisdiction over the Purchaser or its assets, which
violation could materially and adversely affect the condition (financial or
otherwise) or the operation of the Purchaser or its assets or could materially
and adversely affect its ability to perform its obligations and duties
hereunder.
(v) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened against
the Purchaser before any court, administrative agency or other tribunal.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Loans.
SECTION 5. Closing. The closing of the sale of the Loans shall be held at
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the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 a.m. (New York time) on the date hereof.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller
specified in Section 4 of this Agreement shall be true and correct as
of the date hereof.
(b) All Closing Documents specified in Section 6 of this
Agreement, in such forms as are agreed upon and acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and
delivered by all signatories as required pursuant to the respective
terms thereof.
(c) All other terms and conditions of this Agreement required to
be complied with on or before the date hereof shall have been complied
with and the Seller and the Purchaser shall have the ability to comply
with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the date hereof.
(d) The Notes and the Custody Receipts shall have been assigned
ratings by the Rating Agencies that are at least as high as those
specified in the Memorandum.
(e) The Placement Agent shall not have terminated the Placement
Agent Agreement.
The Seller and the Purchaser agree to use their best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Loans on the date hereof. If any of the foregoing
conditions is not satisfied by the Seller, other than as a result of bad faith
nonperformance on the part of the Purchaser, the Purchaser shall be entitled to
terminate this Agreement (exclusive of any payment or reimbursement obligations
of the Seller hereunder).
SECTION 6. Closing Documents. The Closing Documents shall consist of the
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following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the date hereof, and upon which the
Purchaser and its successor and assigns may rely, to the effect that
the Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
date hereof.
(c) True, complete and correct copies of the Seller's certificate
of incorporation and by-laws;
(d) A good standing certificate of the Seller from the Secretary
of State of Delaware, dated not earlier than 30 days prior to the date
hereof.
(e) A certificate of the Secretary of the Seller, dated the date
hereof, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed
this Agreement or any other document or certificate delivered on or
before the date hereof in connection with the transactions
contemplated herein, was at the respective times of such signing and
delivery, and is as of the date hereof, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and
certificates are their genuine signatures.
(f) An opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special
counsel to the Seller, dated the date hereof and in the form attached
hereto as Exhibit 3.
(g) Such other opinions of counsel as the Rating Agencies or the
Credit Enhancer may request in connection with the sale of the Loans
by the
Seller to the Purchaser or the Seller's execution and delivery of, or
performance under, this Agreement.
(h) A letter from KPMG Peat Marwick LLP, certified public
accountants, dated the date hereof, to the effect that they have
performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature set forth in the Memorandum under the caption "The
Pool" agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Notices. All communications provided for or permitted hereunder
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shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to the Purchaser, care of
Orinda Management Company at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Managing Member (or such other address as may hereafter be furnished
in writing by the Purchaser); (ii) if to the Seller, addressed to the Seller at
Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx (or to such
other address as the Seller may designate in writing); or (iii) if to the
Indenture Trustee or the Credit Enhancer, at their respective addresses set
forth in the Indenture (or to such other address as the Indenture Trustee or the
Credit Enhancer may designate in writing).
SECTION 8. Severability of Provisions. Any part, provision, representation,
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warranty or covenant of this Agreement that is prohibited or which is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 9. Further Assurances. The Seller and the Purchaser each agree to
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execute and deliver such instruments and take such actions as the other may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
SECTION 10. Survival. The Seller agrees that the representations,
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warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
Purchaser, notwithstanding any investigation heretofore or hereafter made by the
Purchaser or on its behalf, and that the representations, warranties and
agreements made by the Seller herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Loans and shall
continue in full force and effect until the Seller ceases to exist pursuant to
the terms of its certificate of incorporation and by-laws, notwithstanding any
restrictive or qualified endorsement on the Promissory Notes and notwithstanding
subsequent termination of this Agreement.
SECTION 11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
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OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK AND THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL AND
CONSENT TO THE JURISDICTION OF ANY NEW YORK STATE COURT OF COMPETENT
JURISDICTION. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 12. Benefits of Loan and Sale Purchase Agreement. This Agreement
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shall inure to the benefit of and shall be binding upon the Seller, the
Purchaser and their respective successors, legal representatives, and permitted
assigns.
SECTION 13. No Petition. Neither the Seller nor the Purchaser shall
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file a bankruptcy petition against the other in connection with any obligations
arising from this Agreement.
SECTION 14. Credit Enhancer as Third-Party Beneficiary. The Credit
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Enhancer is a third-party beneficiary of this Agreement entitled to enforce its
rights hereunder as if actually a party hereto. Any right conferred upon the
Credit Enhancer shall be suspended during any period in which the Credit
Enhancer is in default (as defined in Section 11.3 of the Indenture). During
any period of suspension, the Credit Enhancer's rights hereunder shall vest in
the Noteholders and shall be exercisable by the Majority-in-Interest (unless
specified otherwise in a particular provision of the Indenture). At such time
as the Class A Notes are no longer Outstanding under the Indenture and the
Credit Enhancer has been paid all Credit Enhancement Premiums, reimbursable
expenses and Credit Enhancement Reimbursement Amounts, the Credit Enhancer's
rights hereunder shall terminate.
Unless the Class A Notes are no longer Outstanding under the Indenture
and the Credit Enhancer has been paid all Credit Enhancement Premiums,
reimbursable expenses and Credit Enhancement Reimbursement Amounts, or the
Credit Enhancer is in default (as defined in Section 11.3 of the Indenture), (i)
this Agreement shall not be amended without the consent of the Credit Enhancer,
and (ii) any notices to be sent pursuant to this Agreement also shall be sent to
the Credit Enhancer at the address provided in the Indenture.
SECTION 15. Miscellaneous. This Agreement may be executed in two or more
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counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of the Seller under this Agreement shall not be assigned by the
Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to the
entire business of the Seller shall be the successor to the Seller hereunder.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed by their respective duly authorized officers as of the date
first above written.
ORINDA MANAGEMENT COMPANY
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
XXXXXXXX FRANCHISEE LOAN FUNDING
1997-A LLC
By: ORINDA MANAGEMENT COMPANY,
as Managing Member
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
