(a)
This division does not apply to a franchise loan made by a franchisor to a franchisee or a subfranchisor or by a subfranchisor to a franchisee.
(b)
For purposes of this section:
(1)
“Franchise” means “franchise,” as defined in Section 31005 of the Corporations Code.
(2)
“Franchisee” means “franchisee,” as defined in Section 31006 of the
Corporations Code.
(3)
“Franchisor” means “franchisor,” as defined in Section 31007 of the Corporations Code.
(4)
“Area franchise” means “area franchise,” as defined in Section 31008 of the Corporations Code.
(5)
“Subfranchise” means “subfranchise,” as defined in Section 31008.5 of the Corporations Code.
(6)
“Subfranchisor” means “subfranchisor,” as defined in Section 31009 of the Corporations Code.
(7)
“Franchised business” means a business operated pursuant to a franchise or area franchise by a franchisee or pursuant to a franchise, area franchise or subfranchise by a subfranchisor.
(8)
“Franchise loan” means a commercial
loan, as defined in Section 22502, made by a franchisor to a current or prospective franchisee or subfranchisor or a commercial loan by a subfranchisor to a current or prospective franchisee for the acquisition, construction, operation, development, equipping, expansion, contraction, consolidation, merger, recapitalization, reorganization, or termination of a franchised business provided that the following conditions are satisfied:
(A)
The franchisor or subfranchisor making the franchise loan shall comply with all applicable federal and state franchise disclosure and registration laws, regulations, rules and orders, including, but not limited to, the California Franchise Investment Law (Division 5 (commencing with Section 31000) of Title 4 of the Corporations Code) and the Federal Trade Commission Franchise Rule: Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures (Code of Federal Regulations, Title
16, Chapter 1, Subchapter D, Part 436 (16 CFR 436), as amended) in connection with the offer or sale of any franchise, area franchise, or subfranchise to which the franchise loan relates.
(B)
The proceeds of the franchise loan are intended by the borrowing franchisee or subfranchisor for use primarily for other than personal, family, or household purposes.
(C)
The loan, if secured, is secured solely by the assets of the franchised business to which the franchise loan relates. Property used by the borrower primarily for personal, family, or household purposes, including the borrower’s personal residence, shall not be taken as security for the loan.
(D)
The loan is subject to the implied covenant of good faith and fair dealing under Section 1655 of the Civil Code.
(E)
The lender shall fully and clearly disclose to the borrower, at or before the time the loan is made, the rates of interest, charges, and costs of the loan.
(c)
For purposes of subparagraph (B) of paragraph (8) of subdivision (b), a lending franchisor or subfranchisor may rely on any written statement of intended purposes by the borrowing franchisee or subfranchisor. The statement may be a separate statement signed by the borrowing franchisee or subfranchisor or may be contained in another document signed by the borrowing franchisee or subfranchisor. The lending franchisor or subfranchisor may not be required to ascertain that the proceeds of a franchise loan are used in accordance with the statement of intended purposes.
(d)
Nothing in this section is intended to abrogate or diminish the application of any other laws that are designed to protect borrowers,
including, but not limited to, laws pertaining to licensing, unfair competition, usury and conflicts of interest.