Exhibit 4.1
SUBSEQUENT TRANSFER AGREEMENT
THIS SUBSEQUENT TRANSFER AGREEMENT is dated as of July 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, July 1, 2002.
"Subsequent Transfer Date" shall mean, with respect to the Subsequent
Receivables conveyed hereby, July 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 $37,513,308.43, 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 $37,513,308.43.
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 Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Attorney-in-fact
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/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Acknowledged and Accepted:
THE BANK OF NEW YORK, not
in its individual capacity
but solely as Trustee,
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
Acknowledged and Accepted:
DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity
but solely as Owner Trustee,
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Attorney-in-fact
Acknowledged and Accepted:
THE BANK OF NEW YORK, not
in its individual capacity
but solely as Indenture Collateral
Agent
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
Acknowledged and Accepted:
MBIA INSURANCE CORPORATION
By: /s/ Xxx Xxxxx-Xxxxx
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Name: Xxx Xxxxx-Xxxxx
Title: Managing Director
Schedule A
to Subsequent Transfer Agreement
List of Subsequent Receivables
