Exhibit 4.1
SUBSEQUENT TRANSFER AGREEMENT
THIS SUBSEQUENT TRANSFER AGREEMENT is dated as of August 8, 2002, (as
amended, this "Agreement") among FRANKLIN AUTO TRUST 2002-1, a Delaware business
trust (the "Issuer"), FRANKLIN RECEIVABLES LLC, a Delaware limited liability
company (the "Seller"), FRANKLIN CAPITAL CORPORATION, a Utah corporation (the
"Servicer" or "Franklin Capital"), and FRANKLIN RESOURCES, INC., a Delaware
corporation ("Franklin Resources" or the "Representative"), and is made pursuant
to the Sale and Servicing Agreement referred to below.
W I T N E S E T H:
WHEREAS the Issuer, the Seller, the Servicer and Franklin Resources are
parties to the Sale and Servicing Agreement, dated as of June 1, 2002 (as
amended, modified or supplemented, the "Sale and Servicing Agreement");
WHEREAS pursuant to the Sale and Servicing Agreement, the Seller wishes
to convey the Subsequent Receivables referred to on Section 2 below to the
Issuer; and
WHEREAS, the Issuer is willing to accept such conveyance subject to the
terms and conditions hereof.
NOW, THEREFORE, the Issuer, the Seller and the Servicer hereby agree as
follows:
SECTION l. Defined Terms. Capitalized terms used herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement unless otherwise
defined herein.
"Subsequent Cutoff Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, August 1, 2002.
"Subsequent Transfer Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, August 8, 2002.
SECTION 2. Schedule of Receivables. Annexed hereto as Schedule A is a
supplement to Schedule A to the Sale and Servicing Agreement listing the
Receivables that constitute the Subsequent Receivables to be conveyed pursuant
to this Agreement on the Subsequent Transfer Date.
SECTION 3. Conveyance of Subsequent Receivables. In consideration of
the Issuer's delivery to or upon the order of the Seller of $21,236,691.73, the
Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Issuer, without recourse (except as expressly provided in the Sale and Servicing
Agreement), all right, title and interest of the Seller in and to:
(a) the Subsequent Receivables, and all moneys due thereon, on or after
the related Subsequent Cutoff Date;
(b) an assignment of the security interests in the Financed Vehicles
granted by Obligors pursuant to the Subsequent Receivables and any other
interest of the Seller in such Financed Vehicles;
(c) any proceeds with respect to the Subsequent Receivables from claims
on any physical damage, credit life or disability insurance policies covering
Financed Vehicles or Obligors and any proceeds from the liquidation of such
Subsequent Receivables;
(d) any proceeds from any Subsequent Receivables repurchased by a
Dealer, pursuant to a Dealer Agreement, as a result of a breach of a
representation or warranty in the related Dealer Agreement;
(e) all of the Seller's rights under any extended warranty service
contracts on the related Financed Vehicles;
(f) the related Receivables Files;
(g) all of the Seller's right, title and interest in its rights and
benefits, but none of its obligations or burdens, under the related Subsequent
Purchase Agreement, including the delivery requirements, representations and
warranties and the cure and repurchase obligations of Franklin Capital under
such Subsequent Purchase Agreement; and
(h) the proceeds of any and all of the foregoing.
SECTION 4. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Issuer as of the date of this Agreement
and as of the Subsequent Transfer Date that:
(a) Organization and Good Standing. The Seller is duly
organized and validly existing as a Delaware limited liability company
with 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.
(b) Due Qualification. The Seller is duly qualified to do
business as a limited liability company in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property, including the Receivables, or
the conduct of its business shall require such qualifications.
(c) Power and Authority of the Seller. The Seller has the
power and authority to execute and deliver this Agreement and to
perform its obligations under each of the Basic Documents to which the
Seller is a party; the Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Issuer and the Seller has duly authorized such sale and assignment to
the Issuer by all necessary
action; and the execution, delivery and performance of each of the
Basic Documents to which the Seller is a party has been duly authorized
by the Seller by all necessary action.
(d) Binding Obligation. This Agreement and each of the Basic
Documents to which the Seller is a party constitute legal, valid and
binding obligations of the Seller, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws now or hereafter
in effect relating to creditors' rights generally and subject to
general principles of equity (whether applied in a proceeding at law or
in equity).
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
and thereof do not 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 certificate of formation or limited
liability company agreement 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 pursuant to the Basic Documents); nor
violate any law or, to the best of its 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. There are no proceedings or investigations
pending against the Seller or, to its best knowledge, threatened
against the Seller, before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Seller or its properties: (i) asserting the invalidity of this
Agreement or any of the Basic Documents, the Notes or the Certificates,
(ii) seeking to prevent the issuance of the Notes or the Certificates
or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iii) seeking any
determination or ruling that could reasonably be expected to have a
material and adverse effect on the performance by the Seller of its
obligations under, or the validity or enforceability of, the Basic
Documents, the Notes or the Certificates or (iv) that might adversely
affect the federal income tax attributes of the Issuer, the Notes or
the Certificates.
(g) Principal Balance. The aggregate Principal Balance of the
Subsequent Receivables listed on Schedule A annexed hereto, which
Schedule A shall supplement Schedule A to the Sale and Servicing
Agreement, and conveyed to the Issuer pursuant to this Agreement and
the Sale and Servicing Agreement as of the Subsequent Cutoff Date is
$21,236,691.73.
SECTION 5. Conditions Precedent. The obligation of the Issuer to
acquire the Receivables hereunder is subject to the satisfaction, on or prior to
the Subsequent Transfer 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 Section 3.1
of the
Sale and Servicing Agreement shall be true and correct as of the date
of this Agreement and as of the Subsequent Transfer Date.
(b) Sale and Servicing Agreement Conditions. Each of the
conditions set forth in Section 2.2(b) of the Sale and Servicing
Agreement shall have been satisfied.
(c) Additional Information. The Seller shall have delivered to
the Issuer such information as was reasonably requested by the Issuer
and the Security Insurer to satisfy themselves as to (i) the accuracy
of the representations and warranties set forth in Section 4 of this
Agreement and in Section 3.1 of the Sale and Servicing Agreement and
(ii) the satisfaction of the conditions set forth in this Section 5.
SECTION 6. Ratification of Agreement. As supplemented by this
Agreement, the Sale and Servicing Agreement is in all respects ratified and
confirmed and the Sale and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
SECTION 7. 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.
SECTION 8. 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 PRACTICE LAWS AND RULES, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 9. Third Party Beneficiary. The Security Insurer is an express
third party beneficiary of this Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto 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 AUTO TRUST 2002-1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as Owner Trustee on behalf of the Trust,
By: /s/ Xxxxx Barstock
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Name: Xxxxx Barstock
Title: Vice President
FRANKLIN RECEIVABLES LLC,
Seller
By: FRANKLIN CAPITAL CORPORATION,
as managing member
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and CEO
FRANKLIN CAPITAL CORPORATION,
Servicer,
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and CEO
FRANKLIN RESOURCES, INC.,
Representative,
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Acknowledged and Accepted:
THE BANK OF NEW YORK, not
in its individual capacity
but solely as Trustee,
By:/s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
Acknowledged and Accepted:
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity
but solely as Owner Trustee,
By:/s/ Xxxxx Barstock
-----------------------------------------
Name: Xxxxx Barstock
Title: Vice President
Acknowledged and Accepted:
THE BANK OF NEW YORK, not
in its individual capacity
but solely as Indenture Collateral
Agent
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
Acknowledged and Accepted:
MBIA INSURANCE CORPORATION
By:/s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Director
Schedule A
to Subsequent Transfer Agreement
List of Subsequent Receivables
