EXHIBIT 10.12
CERTIFICATE PURCHASE AGREEMENT
Dated as of August 1, 1998
between
XXXXXXXX INTERMEDIATE FUNDING 1998-A INC.,
as Depositor
and
XXXXXXXX FRANCHISEE LOAN FUNDING 1998-A LLC,
as Issuer
TABLE OF CONTENTS
1. Definitions.............................................................. 1
2. Agreement to Sell and Purchase........................................... 2
3. Conveyance of Assets and Payment of Purchase Price....................... 2
4. Representations, Warranties and Covenants................................ 2
5. UCC Filings.............................................................. 3
6. Depositor's Acknowledgment............................................... 3
7. Intent to Effect Irrevocable, Absolute Sale and not a Transfer as
Collateral or Security................................................... 3
8. Receipt.................................................................. 4
9. GOVERNING LAW............................................................ 4
10. Counterparts............................................................. 4
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This CERTIFICATE PURCHASE AGREEMENT, dated as of August 1, 1998 (this
"AGREEMENT"), is entered into by and between XXXXXXXX INTERMEDIATE FUNDING 1998-
A INC., a Delaware corporation (the "DEPOSITOR"), and XXXXXXXX FRANCHISEE LOAN
FUNDING 1998-A LLC, a limited liability company organized under the laws of the
state of Delaware (the "ISSUER").
W I T N E S S E T H:
WHEREAS, the Depositor is a corporation duly organized and existing
under and by virtue of the laws of the State of Delaware and has full power and
authority to enter into this Agreement and to undertake the obligations
undertaken by it herein;
WHEREAS, the Issuer is a limited liability company duly organized and
existing under and by virtue of the laws of the State of Delaware and has full
power and authority to enter into this Agreement and to undertake the
obligations undertaken by it herein;
WHEREAS, the Depositor is the Holder of a Certificate of Beneficial
Ownership (the "CERTIFICATE OF BENEFICIAL OWNERSHIP") evidencing a 100%
beneficial interest in the Xxxxxxxx Intermediate Funding 1998-A Grantor Trust
(the "GRANTOR TRUST"), the assets of which consist of a pool of franchise loans
(the "LOANS") and certain other assets (collectively, the "TRUST ESTATE");
WHEREAS, the Depositor desires to sell, and the Issuer desires to
purchase, the Certificate of Beneficial Ownership, subject to the terms and
conditions of this Agreement;
WHEREAS, the Issuer intends to pledge the Certificate of Beneficial
Ownership as security for the Issuer's Notes issued pursuant to the terms of an
Indenture of Trust, dated as of August 1, 1998 (the "INDENTURE"), between the
Issuer and Bankers Trust Company, as indenture trustee (the "INDENTURE TRUSTEE")
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions
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(a) For all purposes of this Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires, capitalized
terms not otherwise defined herein shall have the meanings ascribed to such
terms in Appendix A to the Indenture which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
(b) All terms defined in this Agreement shall have the defined
meanings ascribed to such terms herein when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any
such certificate or other document, and accounting terms partly defined in this
Agreement or in any such certificate or other document to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
consistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
2. Agreement to Sell and Purchase. The Depositor agrees to
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sell, and the Issuer agrees to purchase, on the date hereof, the Certificate of
Beneficial Ownership in consideration of $ *** /1/ (the "CERTIFICATE PURCHASE
PRICE") to be paid by the Issuer. On the date hereof, the Issuer will Grant to
the Indenture Trustee, pursuant to the Indenture, all of the Issuer's right,
title and interest in, to and under the Certificate of Beneficial Ownership and
this Agreement.
3. Conveyance of Assets and Payment of Purchase Price. In
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consideration of the payment and delivery by the Issuer to the Depositor of the
Purchase Price, the Depositor does hereby (a) transfer, grant, bargain, sell,
assign, convey, set over and deliver to the Issuer, absolutely and not as
collateral security, without recourse except as expressly provided herein, and
the Issuer does hereby purchase, accept and receive, all of the Depositor's
right title and interest in, to and under the Certificate of Beneficial
Ownership and (b) agree to protect and defend the Issuer's interest in the
Certificate of Beneficial Ownership.
4. Representations, Warranties and Covenants
-----------------------------------------
(a) The Issuer hereby expressly assumes and agrees and undertakes
to pay, perform and otherwise discharge as the same shall become due in
accordance with their
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/1/ Certain information has been deleted from this document where
denoted by asterisks, and has been filed separately with the Commission. The
Company has requested confidential treatment for such omitted information.
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respective terms, all duties, responsibilities and obligations of the Holder of
the Certificate of Beneficial Ownership under the Pooling Agreement;
(b) Each of the Depositor and the Issuer hereby agrees, at any time
and from time to time, to obtain, procure, execute, deliver, affix and file all
such further agreements, bills of sale and assignments, instruments, documents,
receipts, notices, statements, powers, writings and information, and to do and
cause to be done all such further acts and things as the other party may
reasonably request in connection herewith;
(c) Each of the Depositor and the Issuer represents and warrants to
the other that, effective as of the Closing Date, (i) it is duly organized,
validly existing and in good standing in the jurisdiction of its organization
and that its principal place of business and chief executive office is in the
State of California, (ii) it has full power and authority to enter into this
Agreement and to perform its obligations hereunder, (iii) neither the execution
and delivery of this Agreement, nor the performance of its obligations
hereunder, will conflict with or result in a breach or default under any of its
organizational documents, any law, rule, regulation, judgment, order or decree
to which it is subject or any agreement or instrument to which it is a party,
and (iv) this Agreement, and its execution, delivery and performance hereof have
been duly authorized by it, and this Agreement has been duly executed and
delivered by it and constitutes its valid and binding obligation enforceable
against it in accordance with the terms hereof;
5. UCC Filings. The Depositor hereby covenants and agrees to
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file, or cause to be filed, at the Depositor's sole cost and expense such
financing statements on Form UCC-1 as the Issuer shall reasonably request in
connection with the sale and conveyance of the Certificate of Beneficial
Ownership, and the Depositor shall deliver file-stamped copies of all documents
filed pursuant to this Section 5 to the Issuer and the Indenture Trustee as soon
as available following such filing.
6. Depositor's Acknowledgment. The Depositor hereby agrees
--------------------------
and acknowledges that the Issuer intends to Grant its rights hereunder and its
rights to the Certificate of Beneficial Ownership to the Indenture Trust Estate
and to the Indenture Trustee pursuant to the terms of the Indenture. The
Depositor further agrees and acknowledges that the Indenture Trustee and the
Noteholders have relied and will continue to rely upon each of the foregoing
representations and warranties, and further agrees that such Persons are
entitled so to rely thereon. Each of the above representations and warranties
shall survive the Grant of the Certificate of Beneficial Ownership to the
Indenture Trustee and shall continue in full force and effect, notwithstanding
subsequent termination of this Agreement. The above representations and
warranties shall inure to the benefit of any permitted transferee of the
Indenture Trustee, and title to such Certificate of Beneficial Ownership shall
not be a part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Depositor under any bankruptcy law.
7. Intent to Effect Irrevocable, Absolute Sale and not a
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Transfer as Collateral or Security. The Depositor and the Issuer hereby confirm
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their intent and agree that the Depositor is irrevocably transferring, granting,
bargaining, selling, assigning, conveying and delivering to the Issuer the
Certificate of Beneficial Ownership absolutely and not as collateral security.
If, notwithstanding the parties' intent to effect a sale, the transactions
contemplated hereby are
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characterized as a financing, the Depositor hereby grants to the Issuer a
security interest in the Certificate of Beneficial Ownership, and this Agreement
shall be deemed a security agreement within the meaning of the UCC.
8. Receipt. By their respective signatures below, the
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Depositor hereby acknowledges receipt of the Certificate Purchase Price, and the
Issuer hereby acknowledges receipt of the Certificate of Beneficial Ownership.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
10. Counterparts. This Agreement may be executed by the
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parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which shall together
constitute but one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Depositor and the Issuer have caused this
Agreement to be duly executed as of the date first written above.
XXXXXXXX INTERMEDIATE FUNDING 1998-A, INC.,
as Depositor
By: /s/ Xxxx X. XxXxxxxx
---------------------------------
Name: Xxxx X. XxXxxxxx
Title: Treasurer
XXXXXXXX FRANCHISEE LOAN FUNDING 1998-A LLC
By: Xxxxxxxx Intermediate Funding 1998-A,
Inc., its Managing Member
By: /s/ Xxxx X. XxXxxxxx
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Name: Xxxx X. XxXxxxxx
Title: Treasurer
