Exhibit 10.1
SUBSEQUENT PURCHASE AGREEMENT
This SUBSEQUENT PURCHASE AGREEMENT (this "Agreement") is dated as of July
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, July 1, 2002.
"Subsequent Closing Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, July 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 $37,513,308.43 (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:
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(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
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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
$37,513,308.43.
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
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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
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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.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President/CEO
FRANKLIN CAPITAL CORPORATION,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President/CEO
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SCHEDULE A
to Subsequent Purchase Agreement
SCHEDULE OF SUBSEQUENT RECEIVABLES