FORM OF RECEIVABLES PURCHASE AGREEMENT Dated as of [ ], 200[ ] between [Goldman Sachs Asset Backed Securities Corp.], as Company and [SELLER NAME], as Seller [ ] VEHICLE RECEIVABLES TRUST 200[ ]-[ ]
EXHIBIT 10.1
FORM OF RECEIVABLES PURCHASE AGREEMENT (VEHICLE LOAN RECEIVABLES)
FORM OF RECEIVABLES PURCHASE AGREEMENT (VEHICLE LOAN RECEIVABLES)
FORM OF RECEIVABLES PURCHASE AGREEMENT
Dated as of [ ], 200[ ]
between
[Xxxxxxx Xxxxx Asset Backed Securities Corp.],
as Company
and
[SELLER NAME],
as Seller
[ ] VEHICLE RECEIVABLES TRUST 200[ ]-[ ]
Dated as of [ ], 200[ ]
between
[Xxxxxxx Xxxxx Asset Backed Securities Corp.],
as Company
and
[SELLER NAME],
as Seller
[ ] VEHICLE RECEIVABLES TRUST 200[ ]-[ ]
RECEIVABLES PURCHASE AGREEMENT, dated as of , 200[ ], by and
between [SELLER NAME], a corporation (the “Seller”), and Xxxxxxx
Sachs Asset Backed Securities Corp., a Delaware corporation the (“Company”).
“Agreement” shall mean this Receivables Purchase Agreement and all amendments hereof and supplements hereto.
“Closing Date” shall mean , 200 .
“Company” shall mean Xxxxxxx Xxxxx Asset Backed Securities Corp., a Delaware corporation.
“Conveyance” shall have the meaning specified in subsection 2.01(a).
“Conveyance Papers” shall have the meaning specified in subsection 4.01(c).
“Cutoff Date” means .
“Debtor Relief Laws” shall mean (i) the Bankruptcy Code in the
United States of America and (ii) all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments, readjustment of debt,
marshaling of assets or similar debtor relief laws of the United States,
any state or any foreign country from time to time in effect affecting the
rights of creditors generally.
[“Indenture” shall mean the Indenture dated as of [ ],200[ ], between the Trust, as Issuer, and the Indenture Trustee.]
“Insolvency Event” shall have the meaning specified in Section 8.02.
[“Indenture Trustee” shall have the meaning set forth in the Indenture.]
“Obligor” shall mean, with respect to each Receivable, the purchaser or co-purchasers of the Financed Vehicle and any other Person who
owes payments under the Receivable.
[“Pooling and Servicing Agreement” shall mean the Pooling and Servicing Agreement, dated as of [ ], 200[ ], among [Servicer Name], as
servicer, the Company, as depositor and the Trustee, and all amendments and
supplements thereto.]
“Purchase Price” shall have the meaning set forth in Section 3.01.
“Purchased Assets” shall have the meaning set forth in Section 2.01.
“Receivables” shall mean Receivables as defined in the [Pooling][Sale] and Servicing Agreement, existing or created after the Cut Off Date.
“Repurchase Price” means the amount, as of the close of business on the last day of a Collection Period, required to prepay a Receivable in
full under the terms thereof, including interest to the end of the month of
purchase.
“Sale and Servicing Agreement” shall mean the Sale and Servicing
Agreement, dated as of [ ], 200[ ], among the Trust, as issuer, the Company
and , as Servicer.
“Seller” shall mean [Seller Name], a [ ] corporation
and its successors and permitted assigns.
“Trust” shall mean the trust created by [the Pooling and Servicing
Agreement] [Trust Agreement].
“Trust Agreement” shall mean the Trust Agreement, dated as of [ ],
200[ ], between the Company and the Trustee.
“Trustee” shall mean [Trustee Name], a [ ] banking
corporation, the institution executing the [Pooling and Servicing
Agreement][Trust Agreement] as, and acting in the capacity of Trustee
thereunder, or its successor in interest, or any successor trustee
appointed as provided in the [Pooling and Servicing Agreement] [Trust
Agreement].
(a) All terms defined in this Agreement shall have the defined meanings when used in any certificate, other document, or
Conveyance Paper made or delivered pursuant hereto unless otherwise defined
therein.
(b) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement or any Conveyance Paper
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; and Section, Subsection, Schedule and Exhibit
references contained in this Agreement are references to Sections,
Subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(c) All determinations of the principal balance of
Receivables, and of any collections thereof, shall be made in accordance
with the [Pooling] [Sale] and Servicing Agreement.
(a) By execution of this Agreement, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Company
(collectively, the “Conveyance”), without recourse except as provided
herein, all its right, title and interest in, to and under the following
(the “Purchased Assets”):
(i) the Receivables and all moneys due thereon
on or after the Cutoff Date, in the case of Precomputed
Receivables, or all moneys received thereon on and after the
Cutoff Date, in the case of Simple Interest Receivables;
(ii) the security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Seller in such Financed Vehicles;
(iii) any proceeds with respect to the Receivables from claims on any physical damage, theft, credit life or disability insurance policies covering Financed Vehicles or Obligors;
(iv) any Financed Vehicle that shall have
secured any such Initial Receivable and shall have been acquired
by or on behalf of the Seller, the Servicer or the Trust;
(v) all other assets comprising the estate of
the Trust; and
(vi) the proceeds of any and all of the foregoing.
(b) In connection with such Conveyance, the Seller agrees (i) to record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables meeting the requirements of
applicable state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain perfection of, the Conveyance of such
Purchased Assets from the Seller to the Company, (ii) that such financing
statements shall name the Seller, as seller, and the Company, as purchaser,
of the Receivables and (iii) to deliver a file-stamped copy of such
financing statements or other evidence of such filings (excluding such
continuation statements, which shall be delivered as filed) to the Company
as soon as is practicable after filing.
(c) In connection with such Conveyance, the Seller further agrees that it will, at its own expense, (i) on or prior to the
Closing Date indicate in its computer files that the Receivables have been
conveyed to the Company in accordance with this Agreement and have been
conveyed by the Company to the Trustee pursuant to the [Pooling and
Servicing] [Trust] Agreement for the benefit of the Certificateholders [and
the Noteholders] and (ii) on or prior to the Closing Date deliver to the
Company a computer file or microfiche list containing a true and complete
list of the Receivables specifying for each Receivable, as of the Cutoff
Date, (A) its account number, (B) the aggregate amount outstanding on such
Receivable. Such file or list shall be marked as Schedule I to this
Agreement, shall be delivered to the Company, and is hereby incorporated
into and made a part of this Agreement. The Seller further agrees not to
alter the indication referenced in clause (i) of this paragraph with
respect to any Receivable during the term of this Agreement.
(d) The parties hereto intend that the conveyance of the Seller’s right, title and interest in and to the Receivables shall
constitute an absolute sale, conveying good title free and clear of any
liens, claims, encumbrances or rights of others from the Seller to the
Company. It is the intention of the parties hereto that the arrangements
with respect to the Receivables shall constitute a purchase and sale of
such Receivables and not a loan. In the event, however, that a court of
competent jurisdiction were to hold that the transactions evidenced hereby
constitute a loan and not a purchase and sale, it is the intention of the
parties hereto that this Agreement shall constitute a security agreement
under applicable law, and that the Seller shall be deemed to have granted
and does hereby grant to the Company a first priority perfected security
interest, whether now owned or hereafter acquired, in all of the Seller’s
right, title and interest in, to and under the Receivables and other
Purchased Assets to secure the rights of the Company hereunder and the
obligations of the Seller hereunder.
to the Seller. The Seller hereby represents and warrants to, and agrees
with the Company as of the Closing Date that:
The representations and warranties set forth in this Section 4.01 shall
survive the transfer and assignment of the Receivables to the Company. Upon
discovery by the Seller or the Company of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give written notice to the other party and the Trustee within three
Business Days following such discovery.
(ii) Schedule of Receivables. The information
set forth in Schedule I to this Agreement is true and correct in
all material respects as of the opening of business on the Cutoff
Date, and no selection procedures believed to be adverse to the
Certificateholders were utilized in selecting the Receivables. The
computer tape or other listing regarding the Receivables made
available to the Trustee is true and correct in all material
respects as of the Cutoff Date.
(vi) Security Interest in Financed Vehicle.
Immediately prior to the sale, assignment and transfer thereof to
the Trustee, each Receivable shall be secured by a validly
perfected first security interest in the Financed Vehicle in favor
of the Seller as secured party or all necessary and appropriate
actions have been commenced that would result in the valid
perfection of a first security interest in the Financed Vehicle in
favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has
been satisfied, subordinated or rescinded, nor has any Financed
Vehicle been released from the lien granted by the related
Receivable in whole or in part.
(x) No Defenses. No facts are known to the
Seller that would give rise to any right of rescission, setoff,
counterclaim or defense, nor shall the same have been asserted or
threatened, with respect to any Receivable.
(xvi) All Filings Made. All filings (including
UCC filings) necessary in any jurisdictions to give the Trustee a
first perfected ownership interest in the Receivables shall have
been made.
(xix) Location of Receivable Files. The
Receivable Files are kept at one or more of the locations listed
in Schedule II.
(xxii) Maturity of Receivables. The weighted
average remaining term of the Initial Receivables as of the
Initial Cutoff Date is months.
shall have been duly authorized by the Company by all necessary corporate
action.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the Company’s best knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Company or its
properties: (1) asserting the invalidity of this Agreement; (2) seeking to
prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement; (3) seeking any determination
or ruling that might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of,
this Agreement; or (4) relating to the Company and that might materially
and adversely affect the federal income tax attributes of the Certificates.
The representations and warranties set forth in this Section 4.03
shall survive the Conveyance of the Receivables to the Company. Upon
discovery by the Company or the Seller of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give prompt written notice to the other party.
(b) Delivery of Collections or Recoveries. In the event
that the Seller receives any collections or recoveries relating to the
Receivables, the Seller agrees to pay to the Company (or to the Servicer if
the Company so directs) all such amounts as soon as practicable after
receipt thereof.
SECTION 7.01 Conditions to the Company’s Obligations. The
obligations of the Company to purchase the Receivables on the Closing Date
shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Seller
contained in this Agreement shall be true and correct on the Closing Date
with the same effect as though such representations and warranties had been
made on such date;
(b) All information concerning the Receivables provided
to the Company shall be true and correct as of the Cutoff Date in all
material respects;
(c) The Seller shall have (i) delivered to the Company a
computer file or microfiche list containing a true and complete list of all
Receivables identified by account number and by balance as of the Cutoff
Date and (ii) performed all other obligations required to be performed by
the provisions of this Agreement;
(d) The Seller shall have recorded and filed, at its
expense, any financing statement with respect to the Receivables for the
transfer of accounts and general intangibles (each as defined in Section
9-102 of the UCC) meeting the requirements of applicable state law in such
manner and in such jurisdiction as would be necessary to perfect the sale
of and security interest in the Receivables from the Seller to the Company,
and shall deliver a file-stamped copy of such financing statements or other
evidence of such filings to the Company;
(e) On or before the Closing Date, the Company and the
Trustee shall have entered into the [Pooling and Servicing Agreement] [Sale
and Servicing Agreement and Trust Agreement] and the closing under such
agreement[s] shall take place simultaneously with the closing hereunder; and
(f) All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Company, and
the Company shall have received from the Seller copies of all documents
(including, without limitation, records of corporate proceedings) relevant
to the transactions herein contemplated as the Company may reasonably have
requested.
(a) All representations and warranties of the Company
contained in this Agreement shall be true and correct with the same effect
as though such representations and warranties had been made on such date;
(b) Payment or provision for payment of the Purchase
Price in accordance with Section 3.01 hereof shall have been made; and
(c) All corporate and legal proceedings and all
instruments in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Seller, and
the Seller shall have received from the Company copies of all documents
(including, without limitation, records of corporate proceedings) relevant
to the transactions herein contemplated as the Seller may reasonably have
requested.
modify the Purchase Price and (v) to change, modify, delete or add any
other obligation of the Seller or the Company; provided, however, that no
amendment pursuant to clause (v) of this Section 9.01 shall be effective
unless the Seller and the Company have been notified in writing that the
Rating Agency Condition has been satisfied; provided, further, that such
action shall not (as evidenced by an Opinion of Counsel delivered to the
Trustee) adversely affect in any material respect the interests of the
Trustee [or] [,] the Certificateholders [or the Noteholders], unless the
Trustee shall consent thereto. Any reconveyance executed in accordance with
the provisions hereof shall not be considered to be an amendment to this
Agreement. A copy of any amendment to this Agreement shall be sent to the
Rating Agency.
SECTION 9.02 Governing Law. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(a) in the case of the Seller: | ||||||
Attention: | ||||||
Facsimile No.: | ; | |||||
(b) in the case of the Company: | ||||||
[Xxxxxxx Xxxxx Asset Backed Securities Corp.] | ||||||
00 Xxxxx Xxxxxx | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Attention: [ ] | ||||||
Facsimile No.: | ; | |||||
(c) in the case of the Trustee: | ||||||
Attention: | ||||||
Facsimile No.: | ; | |||||
or, as to each party, at such other address as shall be designated by such
party in written notice to each other party.
beneficiaries of the Trust, including the Certificateholders [and the
Noteholders], and the Seller consents to such assignment. The Seller
further agrees that notwithstanding any claim, counterclaim, right or
setoff or defense which it may have against the Company, due to a breach by
the Company of this Agreement or for any other reason, and notwithstanding
the bankruptcy of the Company or any other event whatsoever, the Seller’s
sole remedy shall be a claim against the Company for money damages and,
then only to the extent of funds received by the Company pursuant to the
[Pooling] [Sale] and Servicing Agreement, and in no event shall the Seller
assert any claim on or any interest in the Receivables or any proceeds
thereof or take any action which would reduce or delay receipt by
Certificateholders of collections with respect to the Receivables.
Additionally, the Seller agrees for the benefit of the Trustee
that any amounts payable by the Seller to the Company hereunder which are
to be paid by the Company to the Trustee for the benefit of the
Certificateholders [and the Noteholders] shall be paid by the Seller, on
behalf of the Company, directly to the Trustee.
which is one year and one day after the termination of this Agreement,
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case against the Company under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Company or any substantial part of its property or ordering the winding-up
or liquidation or the affairs of the Company.
IN WITNESS WHEREOF, the Company and the Seller have caused this
Receivables Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
[SELLER NAME] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Xxxxxxx Xxxxx Asset Backed | ||||||
Securities Corp., as Company | ||||||
By: | ||||||
Name: | ||||||
Title: |
Schedule I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE