EXHIBIT 10.1.1
FORM OF RECEIVABLES PURCHASE AGREEMENT (VEHICLE LOAN RECEIVABLES)
FORM OF RECEIVABLES PURCHASE AGREEMENT
Dated as of [ ], 200[ ]
between
[GS Mortgage 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 GS
Mortgage Securities Corp., a Delaware corporation the ("Company").
W I T N E S S E T H:
WHEREAS, the Company desires to purchase the Receivables
(hereinafter defined) from Seller;
WHEREAS, the Seller desires to sell and assign the Receivables to
the Company upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder will be transferred by the Company to the Trust (hereinafter
defined) in connection with the issuance of certain Certificates [and
certain Notes]; and
WHEREAS, the Seller agrees that all covenants and agreements made
by the Seller herein with respect to the Receivables shall also be for the
benefit of the Trustee (hereinafter defined) and all beneficiaries of the
Trust, including the holders of the Certificates [and the Notes].
NOW, THEREFORE, it is hereby agreed by and between the Company and
the Seller as follows:
ARTICLE I.
DEFINITIONS
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SECTION 1.01 Definitions. All capitalized terms used herein or in
any certificate, document, or Conveyance Paper made or delivered pursuant
hereto, and not defined herein or therein, shall have the meaning ascribed
thereto in the [Pooling][Sale] and Servicing Agreement; in addition, the
following words and phrases shall have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Closing Date" shall mean _____________ __, 200__.
"Company" shall mean [!!!!!], 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].
SECTION 1.02 Other Definitional Provisions.
(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.
ARTICLE II.
PURCHASE AND CONVEYANCE OF RECEIVABLES
---------------------------------------
SECTION 2.01 Purchase.
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(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.
ARTICLE III.
CONSIDERATION AND PAYMENT
------------------------
SECTION 3.01 Purchase Price. The "Purchase Price" for the
Receivables conveyed to the Company under this Agreement shall be payable
on the Closing Date and shall be an amount equal to [100% of the aggregate
balance of Receivables so conveyed, adjusted to reflect such factors as the
Seller and the Company mutually agree will result in a Purchase Price
determined to be the fair market value of such Receivables].
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01 Representations and Warranties of the Seller Relating
to the Seller. The Seller hereby represents and warrants to, and agrees
with the Company as of the Closing Date that:
(a) Organization and Good Standing. The Seller is duly
organized and validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, 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 corporate power, authority and legal right to
acquire, own and sell the Receivables.
(b) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications.
(c) Power and Authority. The Seller has the corporate
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 to be sold and assigned to the Company and deposited with the
Trustee as part of the Trust, and the Seller shall have duly authorized
such sale and assignment to the Seller by all necessary corporate action;
and the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(d) Binding Obligation. This Agreement when executed and
delivered by the Seller shall constitute a legal, valid and binding
obligation of the Seller enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization and similar laws now
or hereafter in effect relating to or affecting creditors' rights generally
and 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 do
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Seller or any
material term of any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound; or 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
this Agreement); or 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. There are no proceedings or
investigations pending or, to the Seller's best knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller 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
Seller of its obligations under, or the validity or enforceability of, this
Agreement; or (4) relating to the Seller and that might materially and
adversely affect the federal income tax attributes of the Certificates [or
the Notes].
(g) Corporate Existence. During the term of this
Agreement, the Seller will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction
of its incorporation and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary or appropriate to the proper administration of this Agreement and
the transactions contemplated hereby.
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.
SECTION 4.02 Representations and Warranties of the Seller Relating
to the Agreement and the Receivables.
(a) Representations and Warranties. The Seller hereby
represents and warrants to the Company as of the date of this Agreement and
as of the Closing Date that:
(i) Characteristics of Receivables. Each
Receivable (1) was originated by the Seller or acquired from a
motor vehicle dealer or another financial institution by the
Seller in the ordinary course of the Seller's business, (2) has
created a valid, subsisting and enforceable first priority
security interest in favor of the Seller in the Financed Vehicle,
which security interest is assignable by the Seller and the
Company, (3) contains customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be
adequate for realization against the collateral of the benefits of
the security, (4) provides for level monthly payments (provided
that the payment in the first or last month in the life of the
Receivable may be minimally different from the level payments)
that fully amortize the Amount Financed by maturity and yield
interest at the Annual Percentage Rate, and (5) in the case of a
Precomputed Receivable, in the event that such contract is
prepaid, provides for a prepayment that fully pays the Principal
Balance and includes accrued but unpaid interest through the date
of prepayment at the Annual Percentage Rate.
(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.
(iii) Compliance with Law. Each Receivable and
the sale of the Financed Vehicle complied in all material respects
at the time it was originated or made and at the execution of this
Agreement with all requirements of applicable federal, state and
local laws and regulations thereunder, including, without
limitation, usury laws, the Federal Truth- in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal Trade Commission
Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z, and State adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other
consumer credit laws and equal credit opportunity and disclosure
laws.
(iv) Binding Obligation. Each Receivable
represents the genuine, legal, valid and binding payment
obligation in writing of the Obligor, enforceable by the holder
thereof in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and to general principles of equity (whether applied in
a proceeding at law or in equity).
(v) No Government Obligor. None of the
Receivables is due from the United States of America or any State
or from any agency, department or instrumentality of the United
States of America or any State.
(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.
(viii) No Waiver. No provision of a Receivable
has been waived in such a manner that the Receivable fails to meet
any other representation or warranty of the Seller with respect
thereto.
(ix) No Amendments. No Receivable shall have
been amended such that the amount of the Obligor's Scheduled
Payments shall have been increased except for increases resulting
from the inclusion of any premiums for forced placed physical
damage insurance covering the Financed Vehicle.
(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.
(xi) No Liens. To the best of the Seller's
knowledge, no liens or claims have been filed for work, labor or
materials relating to a Financed Vehicle that are prior to, or
equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable.
(xii) No Default. No Receivable has a payment
that is more than 90 days overdue as of the related Cutoff Date
and, except as permitted in this paragraph, no default, breach,
violation or event permitting acceleration under the terms of any
Receivable has occurred; no continuing condition that with notice
or the lapse of time would constitute a default, breach, violation
or event permitting acceleration under the terms of any Receivable
has arisen; and the Seller has not waived and shall not waive any
of the foregoing.
(xiii) Insurance. The Seller, in accordance with
its customary procedures, has determined that the Obligor has
obtained physical damage insurance covering the Financed Vehicle
and under the terms of the Receivable the Obligor is required to
maintain such insurance.
(xiv) Title. It is the intention of the Seller
that the transfer and assignment herein contemplated constitute a
sale of the Receivables from the Seller to the Company and that
the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a
petition of receivership by or against the Seller. No Receivable
has been sold, transferred, assigned or pledged by the Seller to
any Person other than the Seller. Immediately prior to the
transfer and assignment herein contemplated, the Seller had good
and marketable title to each Receivable conveyed by it hereunder
to the Seller, free and clear of all Liens and rights of others
and, immediately upon the transfer thereof, the Company shall have
good and marketable title to each such Receivable, free and clear
of all Liens and rights of others; and the transfer of the
Receivables to the Company has been perfected under the UCC.
(xv) Lawful Assignment. No Receivable was
originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable
under this Agreement shall be unlawful, void or voidable.
(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.
(xvii) One Original. There shall be only one
original executed copy of each Receivable.
(xviii) Scheduled Payments. (1) No Receivable
has a payment that is more than 90 days overdue as of the related
Cutoff Date and (2) no Receivable has a final scheduled payment
date that is later than the Final Scheduled Maturity Date.
(xix) Location of Receivable Files. The
Receivable Files are kept at one or more of the locations listed
in Schedule II.
(xx) No Bankruptcies. No Obligor on any
Receivable as of the Cutoff Date was noted in the related
Receivable File as having filed for bankruptcy.
(xxi) No Repossessions. No Financed Vehicle
securing any Receivable is in repossession status.
(xxii) Maturity of Receivables. The weighted
average remaining term of the Initial Receivables as of the
Initial Cutoff Date is _______ months.
(xxiii) Financing. Approximately ___% of the
aggregate principal balance of the Receivables, constituting ___%
of the number of Receivables as of the Cutoff Date, represents
financing of new vehicles and the remainder of the Receivables
represents financing of used vehicles; and approximately ___% of
the aggregate principal balance of the Receivables as of the
Cutoff Date represent Precomputed Receivables and the remainder of
the Receivables represent Simple Interest Receivables. The
aggregate Principal Balance of the Receivables as of the Cutoff
Date is $-------------.
(xxiv) Chattel Paper. Each Receivable
constitutes "chattel paper" under the UCC.
(xxv) APR. The weighted average Annual
Percentage Rate of the Receivables as of the Cutoff Date is
approximately ___%.
(b) Notice of Breach. The representations and warranties
set forth in this Section 4.02 shall survive the transfer and assignment of
the Receivables to the Company. Upon discovery by either the Seller or the
Company of a breach of any of the representations and warranties set forth
in this Section 4.02, the party discovering such breach shall give written
notice to the other party and the Trustee promptly upon such discovery. The
Seller hereby acknowledges that the Company intends to rely on the
representations hereunder in connection with representations made by the
Company to secured parties, assignees or subsequent transferees including
but not limited to transfers made by the Company to the Trust pursuant to
the [Pooling] [Sale] and Servicing Agreement.
SECTION 4.03 Representations and Warranties of the Company. As of
the Closing Date, the Company hereby represents and warrants to, and agrees
with, the Seller that:
(a) Organization and Good Standing. The Company is duly
organized and validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, 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 corporate power, authority and legal right to
purchase, acquire and own the Receivables.
(b) Due Qualification. The Company is duly qualified to
do business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications.
(c) Power and Authority. The Company has the corporate
power and authority to execute and deliver this Agreement and to carry out
its terms; and the execution, delivery and performance of this Agreement
shall have been duly authorized by the Company by all necessary corporate
action.
(d) Binding Obligation. This Agreement when executed and
delivered by the Company shall constitute a legal, valid and binding
obligation of the Company enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization and similar laws now
or hereafter in effect relating to or affecting creditors' rights generally
and 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 do
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Company or any
material term of any indenture, agreement or other instrument to which the
Company is a party or by which it is bound; or 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
this Agreement); or violate any law or, to the best of the Company's
knowledge, any order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Company or
its properties.
(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.
(g) Corporate Existence. During the term of this
Agreement, the Company will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction
of its incorporation and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary or appropriate to the proper administration of this Agreement and
the transactions contemplated hereby.
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.
ARTICLE V.
COVENANTS
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SECTION 5.01 Covenants of the Seller. The Seller hereby covenants
and agrees with the Company as follows:
(a) Security Interests. Except for the conveyances
hereunder, the Seller will not sell, pledge, assign or transfer to any
other Person, or take any other action inconsistent with the Company's
ownership of the Receivables or grant, create, incur, assume or suffer to
exist any Lien on, any Receivable, whether now existing or hereafter
created, or any interest therein, and the Seller shall not claim any
ownership interest in the Receivables and shall defend the right, title and
interest of the Company in, to and under the Receivables, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller.
(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.
(c) Notice of Liens. The Seller shall notify the Company
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder under the [Pooling] [Sale] and Servicing Agreement.
(d) Documentation of Transfer. The Seller shall undertake
to file the documents which would be necessary to perfect and maintain the
transfer of the Purchased Assets to the Company.
ARTICLE VI.
REPURCHASE OBLIGATION
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SECTION 6.01 Repurchase Upon Breach. In the event any
representation or warranty under Section 4.02(a) is not true and correct in
any material respect as of the date specified therein with respect to any
Receivable, unless any such breach is cured in all material respects by the
last day of the second Collection Period following the discovery thereof,
the Seller shall be obligated to repurchase, as of such last day (or, at
the Company's option, the last day of the first Collection Period following
such discovery), any Receivable conveyed by it to the Company if (in the
reasonable opinion of the Company) the interest of the Trust in such
Receivable is materially and adversely affected by such breach. In
consideration of the repurchase of any such Receivable, the Seller shall
remit the Repurchase Amount to or upon the order of the Company. The
Company shall execute such documents and instruments of transfer or
assignment and take such other action as shall reasonably be requested by
the Seller to effect the conveyance of Receivables pursuant to this
section.
ARTICLE VII.
CONDITIONS PRECEDENT
--------------------
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.
SECTION 7.02 Conditions Precedent to the Seller's Obligations. The
obligations of the Seller to sell the Receivables on the Closing Date shall
be subject to the satisfaction of the following conditions:
(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.
ARTICLE VIII.
TERM AND PURCHASE TERMINATION
-----------------------------
SECTION 8.01 Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the termination of
the Trust as provided in the [Pooling and Servicing] [Trust] Agreement.
SECTION 8.02 Termination. If the Seller shall fail generally to,
or admit in writing its inability to, pay its debts as they become due; or
if a proceeding shall have been instituted in a court having jurisdiction
in the premises seeking a decree or order for relief in respect of the
Seller in an involuntary case under any Debtors Relief law, or for the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of the Seller or for
any substantial part of the Seller's property, or for the winding-up or
liquidation of the Seller's affairs and, if instituted against the Seller,
any such proceeding shall continue undismissed or unstayed and in effect,
for a period of 60 consecutive days, or any of the actions sought in such
proceeding shall occur; or if the Seller shall commence a voluntary case
under any Debtor Relief Law, or if the Seller shall consent to the entry of
an order for relief in an involuntary case under any Debtor Relief Law, or
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of, or for, any substantial part of its property, or
any general assignment for the benefit of its creditors; or the Seller or
any subsidiary of the Seller shall have taken any corporate action in
furtherance of any of the foregoing actions (each an "Insolvency Event");
then the Seller shall give notice to the Company and the Trustee of such
Insolvency Event. Notwithstanding any such notice, Receivables transferred
to the Company prior to the occurrence of such event and collections in
respect of such Receivables and accrued in respect of such Receivables,
shall continue to be the property of the Company available for transfer by
the Company to the Trust pursuant to the [Pooling] [Sale] and Servicing
Agreement.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
------------------------
SECTION 9.01 Amendment. This Agreement and any Conveyance Papers
and the rights and obligations of the parties hereunder may not be changed
orally, but only by an instrument in writing signed by the Company and the
Seller in accordance with this Section 9.01. This Agreement and any
Conveyance Papers may be amended from time to time by the Company and the
Seller (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein or in any such other Conveyance Papers, (iii) to add any other
provisions with respect to matters or questions arising under this
Agreement or any Conveyance Papers which shall not be inconsistent with the
provisions of this Agreement or any Conveyance Papers, (iv) to change or
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.
SECTION 9.03 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered at or mailed by registered mail, return receipt
requested, to
(a) in the case of the Seller:
Attention: _________________________
Facsimile No.: _________________________;
(b) in the case of the Company:
[!!!!!]
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.
SECTION 9.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any
Conveyance Paper shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions, or terms shall be deemed severable from
the remaining covenants, agreements, provisions, and terms of this
Agreement or any Conveyance Paper and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of any
Conveyance Paper.
SECTION 9.05 Assignment. Notwithstanding anything to the contrary
contained herein, other than the Company's assignment of its rights, title,
and interest in, to, and under this Agreement to the Trustee for the
benefit of the beneficiaries of the Trust, including the Certificateholders
[and the Noteholders] as contemplated by the [Pooling and Servicing
Agreement] [Trust Agreement and the Indenture] and Section 9.06 hereof,
this Agreement and all other Conveyance Papers may not be assigned by the
parties hereto; provided, however, that the Seller shall have the right to
assign its rights, title and interests, in, to and under this Agreement to
(i) any successor by merger assuming this Agreement (ii) to any affiliate
owned directly or indirectly by the Company which assumes the obligations
of this Agreement or (iii) to any entity that assumes this Agreement
provided that the Rating Agency has advised the Company and the Seller that
the Rating Agency Condition has been satisfied.
SECTION 9.06 Acknowledgment and Agreement of the Seller. By
execution below, the Seller expressly acknowledges and agrees that all of
the Company's right, title, and interest in, to, and under this Agreement,
including, without limitation, all of the Company's right, title, and
interest in and to the Receivables purchased pursuant to this Agreement,
shall be assigned by the Company to the Trustee for the benefit of the
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.
SECTION 9.07 Further Assurances. The Company and the Seller agree
to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the other
party or the Trustee more fully to effect the purposes of this Agreement
and the Conveyance Papers, including, without limitation, the execution of
any financing statements or continuation statements or equivalent documents
relating to the Receivables for filing under the provisions of the UCC or
other law of any applicable jurisdiction.
SECTION 9.08 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Company or the
Seller, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, powers or privilege.
Subject to Section 9.06, the rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers
and privileges provided by law.
SECTION 9.09 Counterparts. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same instrument.
SECTION 9.10 Binding; Third-Party Beneficiaries. This Agreement
and the Conveyance Papers will inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
The Trustee shall be considered a third-party beneficiary of this
Agreement.
SECTION 9.11 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Conveyance Papers set forth the
entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this
Agreement and Conveyance Papers. This Agreement and the Conveyance Papers
may not be modified, amended, waived or supplemented except as provided
herein.
SECTION 9.12 Headings. The headings are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 9.13 Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
SECTION 9.14 Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance, shall remain operative and in
full force and effect and shall survive conveyance of the Receivables by
the Company to the Trustee pursuant to the [Pooling] [Sale] and Servicing
Agreement.
SECTION 9.15 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Seller shall not, prior to the date
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:
GS Mortgage Securities Corp. , as
Company
By: _______________________________
Name:
Title:
Schedule I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
