Exhibit 10.1
SUBSEQUENT PURCHASE AGREEMENT
This SUBSEQUENT PURCHASE AGREEMENT (this "Agreement") is dated as of
August 8, 2002, and by and between FRANKLIN CAPITAL CORPORATION, a Utah
corporation (the "Seller"), and FRANKLIN RECEIVABLES LLC, a Delaware limited
liability company (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller and the Purchaser are parties to the Purchase
Agreement, dated as of June 1, 2002 (as amended or supplemented from time to
time, the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement and this Agreement, the
Seller wishes to convey the Subsequent Receivables to the Purchaser; and
WHEREAS, the Purchaser is willing to accept such conveyance subject to
the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the meanings
ascribed to them in the Purchase Agreement, unless otherwise defined herein.
"Subsequent Cutoff Date" shall mean, with respect to the
Subsequent Receivables conveyed hereby, August 1, 2002.
"Subsequent Closing Date" shall mean, with respect to the
Subsequent Receivables conveyed hereby, August 8, 2002.
2. Subsequent Schedule of Receivables. Annexed hereto as Schedule A is
a supplement to Schedule A to the Purchase Agreement listing the Receivables
that constitute the Subsequent Receivables to be conveyed pursuant to this
Agreement on the Subsequent Closing Date.
3. Conveyance of Subsequent Receivables. In consideration of the
Purchaser's delivery to or upon the order of the Seller of $21,236,691.73 (the
"Subsequent Receivables Purchase Price"), the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as provided in the Purchase Agreement), all right title and interest of the
Seller in and to:
1
(i) the Subsequent Receivables listed on
Schedule A hereto, and all moneys due
thereon on or after the related Subsequent
Cutoff Date;
(ii) an assignment of the security interests in
the Financed Vehicles granted by Obligors
pursuant to such Subsequent Receivables and
any other interest of the Seller in such
Financed Vehicles;
(iii) any proceeds with respect to such Subsequent
Receivables from claims on any physical
damage, credit life or disability insurance
policies covering the related Financed
Vehicles or Obligors and any proceeds from
the liquidation of such Subsequent
Receivables;
(iv) any proceeds from any Subsequent Receivable
repurchased by a Dealer, pursuant to a
Dealer Agreement, as a result of a breach of
representation or warranty in the related
Dealer Agreement;
(v) all of the Seller's rights under any
extended warranty service contracts on the
related Financed Vehicles;
(vi) the related Receivables Files; and
(vii) the proceeds of any and all of the
foregoing.
4. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser as of the date of this Agreement and as
of the Subsequent Closing Date that:
(a) Legal, Valid and Binding Obligation. This Agreement
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or equity).
(b) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Utah, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at
all relevant times, and has, the power, authority and legal right to
acquire and own the Receivables.
(c) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation and is in good standing, and has
obtained all necessary licenses and
2
approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications.
(d) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full power and authority to sell and assign the
property sold and assigned to the Purchaser hereby and has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Seller by all necessary
corporate action.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time)
or both a default under, the articles of incorporation or by-laws of the
Seller, or any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the Seller of any
court or of any Federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Seller or its properties.
(f) No Proceedings. To the Seller's best knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Agreement, (B) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement.
(g) Insolvency. As of the Subsequent Cutoff Date and the
Subsequent Closing Date, the Seller is not insolvent nor will it be made
insolvent after giving effect to the conveyance set forth in Section 3
of this Agreement, nor is it aware of any pending insolvency with
respect to the Seller.
(h) Principal Balance. The aggregate Principal Balance of the
Subsequent Receivables listed on Schedule A annexed hereto and conveyed
to the Purchaser pursuant this Agreement as of the Subsequent Cutoff
Date is $21,236,691.73.
5. Seller's Conditions Precedent. The obligation of the Purchaser to
acquire the Subsequent Receivables hereunder is subject to the satisfaction, on
or prior to the Subsequent Purchase Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section 4 of this
Agreement and in the Purchase
3
Agreement shall be true and correct as of the date of this Agreement
and as of the Subsequent Purchase Date;
(b) Purchase Agreement Conditions. Each of the conditions set
forth in Sections 2.02(b) and 4.01 of the Purchase Agreement applicable
to the conveyance of Subsequent Receivables shall have been satisfied;
(c) Collections. The Seller shall have delivered to the
Purchaser for deposit to the Collection Account all collections in
respect of Subsequent Receivables required to be deposited by the
Purchaser to the Collection Account pursuant to Section 5.2(b) of the
Sale and Servicing Agreement;
(d) Delivery of Assignment. The Seller shall have delivered an
Assignment substantially in the form of Exhibit A to the Purchase
Agreement; and
(e) Additional Information. The Seller shall have delivered to
the Purchaser such information as was reasonably requested by the
Purchaser to satisfy itself as to (i) the accuracy of the
representations and warranties set forth in Section 4 of this Agreement
and in the Purchase Agreement and (ii) the satisfaction of the
conditions set forth in this Section 5.
6. Purchaser's Conditions Precedent. The obligation of the Seller to
sell the Subsequent Receivables hereunder is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Purchaser in Section 3.01 of
the Purchase Agreement shall be true and correct as of the date of this
Agreement and as of the Subsequent Purchase Date;
(b) Subsequent Receivables Purchase Price. On the Subsequent
Closing Date, the Purchaser shall have delivered to the Seller the
purchase price specified in Section 3 of this Agreement.
7. Ratification of Agreement. As supplemented by this Agreement, the
Purchase Agreement is in all respects ratified and confirmed and the Purchase
Agreement as so supplemented by this Agreement shall be read, taken and
construed as one and the same instrument.
8. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(B) OF THE NEW
YORK CIVIL
4
PRACTICE LAWS AND RULES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER OR THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Third Party Beneficiary. The Security Insurer is an express third
party beneficiary of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
FRANKLIN RECEIVABLES LLC,
as Purchaser
By: Franklin Capital Corporation,
its managing member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President/CEO
FRANKLIN CAPITAL CORPORATION,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President/CEO
6
SCHEDULE A
to Subsequent Purchase Agreement
SCHEDULE OF SUBSEQUENT RECEIVABLES
7