EXHIBIT 10.1.2
FORM OF MASTER SELLER'S WARRANTY AND SERVICING AGREEMENT
(MORTGAGE LOANS)
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FORM OF RECEIVABLES PURCHASE AGREEMENT
Dated as of [ ], 200[ ]
[ ] CARD ACCOUNT MASTER TRUST
SERIES 200[ ]-[ ]
[GS Mortgage Securities Corp.],
and
[SELLER NAME],
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TABLE OF CONTENTS
Page
[To Come]
RECEIVABLES PURCHASE AGREEMENT, dated as of _______, 200[ ], by
and between [SELLER NAME], a [ ] [corporation] [banking association] (the
"Seller"), and GS Mortgage Securities Corp. , a Delaware corporation ("[
]").
W I T N E S S E T H:
WHEREAS, [ ] desires to purchase, from time to time, certain
Receivables (hereinafter defined) due or to become due under certain credit
card accounts of the Seller;
WHEREAS, the Seller desires to sell from time to time and assign
certain Receivables to [ ] upon the terms and conditions hereinafter set
forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder will be transferred by [ ] to the Trust (hereinafter defined) in
connection with the issuance of certain Certificates (hereinafter defined);
and
WHEREAS, the Seller agrees that all covenants and agreements made
by the Seller herein with respect to the Accounts (hereinafter defined) and
Receivables shall also be for the benefit of the Trustee (hereinafter
defined) and all beneficiaries of the Trust, including the holders of the
Certificates.
NOW, THEREFORE, it is hereby agreed by and between [ ] 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 and Servicing Agreement (hereinafter defined); in
addition, the following words and phrases shall have the following
meanings:
"[ ]" shall mean [ ], a [ ].
"Account" shall mean (a) each account established pursuant to a
Credit Card Agreement between the Seller and any Person, which account is
identified by account number and by the receivables balance in the computer
file, microfiche list or printed list delivered to [ ] by the Seller on the
Closing Date (b) each Additional Account (but only from and after the
Addition Date with respect thereto), (c) each Related Account, and (d) each
account into which an Account shall be transferred (a "Transferred
Account") provided that (i) such transfer was made in accordance with the
Credit Card Guidelines and (ii) such account can be traced or identified as
an account into which an Account has been transferred, but shall exclude
(g) any Account that (x) after the Removal Date, the newly generated
Receivables in which are reassigned to the Seller pursuant to Section 2.06
hereof, (y) all the Receivables in which are reassigned to the Seller
pursuant to Section 6.01 or (z) all the Receivables in which are assigned
and transferred to the Servicer pursuant to Section 3.03 of the Pooling and
Servicing Agreement.
"Additional Account" shall mean each New Account and each
Aggregate Additional Account.
"Additional Cut-Off Date" shall mean (i) with respect to Aggregate
Addition Accounts, the date specified as such in the notice delivered with
respect thereto pursuant to Section 2.02 hereof, and (ii) with respect to
New Accounts, the later of the dates on which such New Accounts are
originated or designated pursuant to Section 2.03 hereof.
"Addition Date" shall mean (i) with respect to Aggregate Addition
Accounts, the date from and after which such Aggregate Addition Accounts
are to be included as Accounts pursuant to Section 2.02 hereof and (ii)
with respect to New Accounts, the first Distribution Date following the
calendar month in which such New Accounts are originated.
"Addition Notice Date" shall have the meaning specified in Section
2.02 hereof of this Agreement.
"Aggregate Addition Account" shall mean each Eligible Account that
is designated pursuant to Section 2.02 to be included as an Account and is
identified in the computer file or microfiche list delivered to [ ] by the
Seller pursuant to Sections 2.01 and 2.05 hereof.
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Certificates" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Closing Date" shall mean [ ], 200[ ].
"Conveyance" shall have the meaning specified in subsection
2.01(a) hereof.
"Conveyance Papers" shall have the meaning specified in subsection
4.01(c) hereof.
"Credit Adjustment" shall have the meaning specified in subsection
3.02 hereof.
"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.
"Finance Charge Receivables" shall mean all Receivables in the
Accounts which would be treated as "Finance Charge Receivables" in
accordance with the definition for such term in the Pooling and Servicing
Agreement.
"Initial Account" shall mean any Account designated as an
"Account" hereunder and as an "Account" under the Pooling and Servicing
Agreement on the Closing Date.
"Initial Cut-Off Date" shall mean the close of business on
[ ], 200[].
"Insolvency Event" shall have the meaning specified in Section
8.02.
"Interchange" shall mean interchange fees payable to the Seller in
its capacity as credit card issuer, through VISA or MasterCard [or any
similar entity or organization with respect to any other type of revolving
credit card accounts included as Accounts, except as otherwise provided in
the initial Assignment with respect to any such other type of Accounts, in
connection with cardholder charges for goods and services with respect to
the Accounts.
"New Account" shall mean each MasterCard and VISA consumer
revolving credit card account established pursuant to a Credit Card
Agreement, which account is designated pursuant to Section 2.03 hereof to
be included as an Account and is identified in the computer file or
microfiche list delivered to [ ] by the Seller pursuant to Sections 2.01
and 2.05 hereof.
"New Principal Receivables" shall have the meaning specified in
Section 3.01.
"Obligor" shall mean, with respect to each Account, each person
that would be treated as an "Obligor" in accordance with the definition for
such term in the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement, dated as of [ ], 200[ ], among [Servicer Name], as
Servicer, [ ], as Depositor and [Trustee Name] , as Trustee, and all
amendments and supplements thereto.
"Portfolio Reassignment Price" shall mean the portion of the
amount payable by [ ] to the Trustee pursuant to Section 2.06 of the
Pooling and Servicing Agreement with respect to the Receivables.
"Principal Receivables" shall mean all Receivables in the Accounts
that would be treated as "Principal Receivables" in accordance with the
definition for such term in the Pooling and Servicing Agreement.
"Purchase Price" shall have the meaning specified in Section 3.01
hereof.
"Purchased Assets" shall have the meaning specified in Section
2.01 hereof.
"Receivables" shall mean Receivables as defined in the Pooling and
Servicing Agreement, existing or created after the Initial Cut Off Date in
respect of the Initial Accounts or the Additional Cut Off Date in respect
of Additional Accounts.
"Removed Account" shall mean an Account hereunder that is a
"Removed Account" (as such term is defined in the Pooling and Servicing
Agreement) that is designated for removal pursuant to Section 2.10 of the
Pooling and Servicing Agreement.
"Repurchase Price" shall have the meaning specified in Section
6.01(b) hereof.
"Seller" shall mean [Seller Name], a [______________] and its
successors and permitted assigns.
"Supplemental Conveyance" shall have the meaning specified in
Section 2.02 hereof.
"Trust" shall mean the trust created by the Pooling and Servicing
Agreement.
"Trustee" shall mean [Trustee Name], a [_____________] banking
corporation, the institution executing the Pooling and Servicing 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.
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 or finance charge
balance of Receivables, and of any collections thereof, shall be made in
accordance with the Pooling and Servicing Agreement and all applicable
Supplements.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
SECTION 2.01 Purchase.
(a) By execution of this Agreement, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to [ ]
(collectively, the "Conveyance"), without recourse except as provided
herein, all its right, title and interest in, to and under (i) the
Receivables existing at the close of business on the Closing Date, in the
case of Receivables arising in the Initial Accounts, and on each Additional
Date, in the case of Receivables arising in the Additional Accounts, and in
each case thereafter created from time to time until the termination of
this Agreement pursuant to Article VIII hereof and all monies due and or to
become due and all amounts received with respect thereto and all proceeds
(including, without limitation, "proceeds" as defined in the UCC) thereof
and (ii) the right to receive Interchange and Recoveries with respect to
such Receivables that are allocable to the Trust as provided in the Pooling
and Servicing Agreement (the "Purchased Assets").
(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 now existing and hereafter
created, 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 [
], (ii) that such financing statements shall name the Seller, as seller,
and [ ], 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 [ ] 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 (x) the
Closing Date, in the case of Initial Accounts, (y) the applicable Addition
Date, in the case of Additional Accounts, and (z) the applicable Removal
Date, in the case of Removed Accounts, to indicate in its computer files
that Receivables created (or reassigned, in the case of Removed Accounts)
in connection with the Accounts have been conveyed to [ ] in accordance
with this Agreement and have been conveyed by [ ] to the Trustee pursuant
to the Pooling and Servicing Agreement for the benefit of the
Certificateholders (or conveyed to the Seller or its designee in accordance
with Section 2.06 hereof, in the case of Removed Accounts) by including (or
deleting, in the case of newly originated Receivables in Removed Accounts)
in such computer files the code identifying each such Account and (ii) on
or prior to (w) the Closing Date, in the case of the Initial Accounts, (x)
the date that is five Business Days after the applicable Addition Date, in
the case of designation of Aggregate Addition Accounts, (y) the date that
is 90 days after the applicable Addition Date, in the case of New Accounts,
and (z) the date that is five business Days after the applicable Removal
Date, in the case of Removed Accounts, to deliver to [ ] a computer file or
microfiche list containing a true and complete list of all such Accounts
specifying for each such Account, as of the Initial Cut-Off Date, in the
case of the Initial Accounts, the applicable Additional Cut-off Date, in
the case of Additional Accounts, the applicable Removal Date, and in the
case of Removed Accounts, (A) its account number, (B) the aggregate amount
outstanding in such Account. Each such file or list, as supplemented from
time to time to reflect Additional Accounts or Removed Accounts, shall be
marked as Schedule I to this Agreement, shall be delivered to [ ], and is
hereby incorporated into and made a part of this Agreement. The Seller
further agrees not to alter the code referenced in clause (i) of this
paragraph with respect to any Account during the term of this Agreement
unless and until such Account becomes a Removed Account.
(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 [ ]. 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 [ ] 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 [ ] hereunder and the Obligations of the
Seller hereunder.
SECTION 2.02 Addition of Aggregate Addition Accounts.
(a) If, from time to time, [ ] becomes obligated to
designate Aggregate Addition Accounts (as such term is defined in the
Pooling and Servicing Agreement) pursuant to subsection 2.09(a) of the
Pooling and Servicing Agreement, then [ ] may, at its option, give the
Seller written notice thereof on or before the eighth Business Day (the
"Addition Notice Date") prior to the Addition Date therefor, and upon
receipt of such notice the Seller shall on or before the Addition Date,
designate sufficient Eligible Accounts to be included as Additional
Accounts so that after the inclusion thereof [ ] will be in compliance with
the requirements of said subsection 2.09(a). Additionally, subject to
subsections 2.09(b) and (c) of the Pooling and Servicing Agreement and
subsection 2.02(b) hereof, from time to time Eligible Accounts may be
designated to be included as Aggregate Addition Accounts, upon the mutual
agreement of [ ] and the Seller. In either event, the Seller shall have
sole responsibility for selecting the Aggregate Addition Accounts. The
Seller shall take all actions necessary to comply, or to enable [ ] to
comply with the requirements of Section 2.09 of the Pooling and Servicing
Agreement and shall perform with respects to the Receivables in such
Aggregate Addition Accounts all actions specified in Section 2.09(c) of the
Pooling and Servicing Agreement required to be performed by [ ], as
Depositor under the Pooling and Servicing Agreement.
(b) On the Addition Date with respect to any designation
of Aggregate Addition Accounts, [ ] shall purchase the Seller's right,
title and interest in, to and under the Receivables in such Aggregate
Addition Accounts (and such Aggregate Addition Accounts shall be deemed to
be Accounts for purposes of this Agreement), subject to the satisfaction of
the following conditions:
(i) any Aggregate Addition Accounts shall all be
Eligible Accounts;
(ii) the Seller shall have delivered to [ ]
copies of UCC-1 financing statements covering such Aggregate
Addition Accounts, if necessary to perfect [ ]'s undivided
interest in the Receivables arising therein;
(iii) to the extent required of [ ] by Section
4.03 of the Pooling and Servicing Agreement, the Seller shall have
deposited in the Collection Account all Collections with respect
to such Aggregate Addition Accounts since the Additional Cut-Off
Date;
(iv) as of each of the Additional Cut-Off Date
and the Addition Date, no Insolvency Event with respect to the
Seller or other Account Owner, as applicable shall have occurred
nor shall the transfer of the Receivables arising in the Aggregate
Addition Accounts to [ ] have been made in contemplation of the
occurrence thereof;
(v) solely with respect to Aggregate Addition
Accounts designated pursuant to the second sentence of subsection
2.02(a) hereof, the Rating Agency Condition shall have been
satisfied;
(vi) the Seller shall have delivered to [ ] an
Officer's Certificate, dated the Addition Date, confirming, to the
extent applicable, the items set forth in clauses (i) through (v)
above; and
(vii) the transfer of the Receivables arising in
the Aggregate Addition Accounts to [ ] and by [ ] to the Trust
will not result in an Adverse Effect and, in the case of Aggregate
Addition Accounts, the Seller shall have delivered to [ ] an
Officer's Certificate, dated the Addition Date, stating that the
Seller reasonably believes that the addition of the Receivables
arising in the Aggregate Addition Accounts to [ ] and by [ ] to
the Trust will not have an Adverse Effect.
SECTION 2.03 Addition of New Accounts.
(a) Upon the mutual agreement of [ ] and the Seller,
subject to compliance by [ ] with the conditions specified in subsections
2.09(d) and (e) of the Pooling and Servicing Agreement and compliance by
the Seller with subsection 2.03(b) hereof, the Seller may designate newly
originated Eligible Accounts to be included as New Accounts. Upon such
designation, such New Accounts shall be deemed to be Accounts hereunder.
The Seller shall take all actions necessary to comply, or to enable [ ] to
comply, with the requirements of Section 2.09 of the Pooling and Servicing
Agreement and shall perform with respect to the Receivables in such New
Accounts all actions specified in subsections 2.09(d) and (e) of the
Pooling and Servicing Agreement required to be performed by [ ], as
Depositor, under the Pooling and Servicing Agreement.
(b) On the Addition Date with respect to any New
Accounts, [ ] shall purchase the Seller's right, title and interest in, to
and under the Receivables in New Accounts (and such New Accounts shall be
deemed to be Accounts for purposes of this Agreement) as of the close of
business on the applicable Additional Cut-Off Date, subject to the
satisfaction of the following conditions:
(i) the New Accounts shall all be Eligible
Accounts;
(ii) the Seller shall have delivered to [ ]
copies of UCC-1 financing statements covering such New Accounts,
if necessary to perfect [ ]'s interest in the Receivables arising
therein;
(iii) to the extent required of [ ] by Section
4.03 of the Pooling and Servicing Agreement, the Seller shall have
deposited in the Collection Account all Collections with respect
to such New Accounts since the Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date
and the Addition Date, no Insolvency Event with respect to the
Seller shall have occurred nor shall the transfer of the
Receivables arising in the New Accounts to [ ] have been made in
contemplation of the occurrence thereof; and
(v) the transfer of the Receivables arising in
the New Accounts to [ ] and by [ ] to the Trust will not result in
the occurrence of a Pay Out Event.
SECTION 2.04 Representations and Warranties. The Seller hereby
represents and warrants to [ ] as of the related Addition Date as to the
matters set forth in Section 2.01(b) (iv) and (viii) herein above and that,
in the case of Additional Accounts, the list delivered pursuant to Section
2.05 herein below is, as of the applicable Additional Cut-Off Date, true
and complete in all material respects.
SECTION 2.05 Delivery of Documents. In the case of the designation
of Additional Accounts, the Seller shall deliver to [ ] (i) the computer
file or microfiche list required to be delivered pursuant to Section 2.01
hereof with respect to such Additional Accounts on the date such file or
list is required to be delivered pursuant to Section 2.01 hereof (the
"Document Delivery Date") and (ii) a duly executed, written assignment
(including an acceptance by [ ]), substantially in the form of Exhibit A
(the "Supplemental Conveyance"), on the Document Delivery Date. In
addition, in the case of the designation of New Accounts, the Seller shall
deliver to [ ] on the Document Delivery Date an Officer's Certificate
confirming, to the extent applicable, the items set forth in clause (i)
through (v) of subsection 2.03(b) herein above.
ARTICLE III
CONSIDERATION AND PAYMENT
SECTION 3.01 Purchase Price.
(a) The "Purchase Price" for the Receivables which came
into existence on or prior to the Closing Date conveyed to [ ] under this
Agreement shall be payable on the Closing Date and shall be an amount equal
to [100% of the aggregate balance of Principal Receivables so conveyed,
adjusted to reflect such factors as the Seller and [ ] mutually agree will
result in a Purchase Price determined to be the fair market value of such
Receivables]. This computation of initial purchase price should assume no
reinvestment in the new Receivables. The Purchase Price for the Receivables
(including Receivables in Additional Accounts) to be conveyed to [ ] under
this Agreement which come into existence after the Closing Date, [shall be
payable on the date on which such Receivables are conveyed by the Seller to
[ ] in an amount equal to 100% of the aggregate balance of the Principal
Receivables so conveyed (the "New Principal Receivables"), adjusted to
reflect such factors as the Seller and [ ] mutually agree will result in a
Purchase Price determined to be at the fair market value of such New
Principal Receivables]. The Purchase Price to be paid by [ ] on the Closing
Date and on each Distribution Date following a Monthly Period during which
New Principal Receivables are conveyed to [ ] shall be paid in cash.
SECTION 3.02 Adjustments to Purchase Price. The Purchase Price
shall be adjusted on each Distribution Date (a "Credit Adjustment") with
respect to any Receivable previously conveyed to [ ] by the Seller which
has since been reversed by the Seller or the Servicer because of a rebate,
refund, unauthorized charge or billing error to a cardholder because such
Receivable was created in respect of merchandise which was refused or
returned by a cardholder or due to the occurrence of any other event
referred to in Section 3.09 of the Pooling and Servicing Agreement. The
amount of such adjustment shall equal [(x) the reduction in the principal
balance of such Receivable resulting from the occurrence of such event
multiplied by (y) the quotient (expressed as a percentage) of (i) the
purchase Price payable on such Distribution Date computed in accordance
with Section 3.01 hereof divided by (ii) the Principal Receivables paid for
on such date pursuant to such Section]. In the event that an adjustment
pursuant to this Section 3.02 causes the Purchase Price to be a negative
number, the Seller agrees that, not later than 1:00 P.M. New York City time
on such Distribution Date, the Seller shall pay to [ ], an amount equal to
the amount by which the Purchase Price minus the Credit Adjustment would be
reduced below zero.
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, [ ] as of the Closing Date and on each Addition Date, that:
(a) Organization and Good Standing. The Seller is a
corporation duly organized and validly existing in good standing under the
laws of the State of [______________] and has, in all material respects,
full power and authority to own its properties and conduct its business as
such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement.
(b) Due Qualification. The Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements) and has obtained all necessary licenses and
approvals, in each jurisdiction in which failure to so qualify or to obtain
such licenses and approvals would (i) render any Credit Card Agreement
relating to an Account, or any Receivable unenforceable by the Seller, [ ]
or the Trust and (ii) have a material adverse effect on the Investor
Certificateholders.
(c) Due Authorization. The execution, delivery and
performance of this Agreement and any other document or instrument
delivered pursuant hereto, including any Supplemental Conveyance (such
other documents or instruments, collectively, the "Conveyance Papers"), and
the consummation of the transactions provided for in this Agreement and the
Conveyance Papers have been duly authorized by the Seller by all necessary
corporate action on the part of the Seller.
(d) No Conflict. The execution and delivery of this
Agreement and the Conveyance Papers by the Seller, the performance of the
transactions contemplated by this Agreement and the Conveyance Papers, and
the fulfillment of the terms of this Agreement and the Conveyance Papers
applicable to the Seller will not conflict with, violate or result in any
breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which it or any of its
properties are bound.
(e) No Violation. The execution, delivery and performance
of this Agreement and the Conveyance Papers by the Seller and the
fulfillment of the terms contemplated herein and therein applicable to the
Seller will not conflict with or violate any Requirements of Law applicable
to the Seller.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Seller, threatened
against the Seller, before any Governmental Authority (i) asserting the
invalidity of this Agreement or the Conveyance Papers, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or the Conveyance Papers, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under
this Agreement or the Conveyance Papers, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the attributes of the Trust under
United States Federal or [________________] income tax systems.
(g) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Seller in
connection with the execution and delivery by the Seller of this Agreement
and the Conveyance Papers and the performance of the transactions
contemplated by this Agreement or the Conveyance Papers by the Seller have
been duly obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section 4.01
shall survive the transfer and assignment of the Receivables to [ ]. Upon
discovery by the Seller or [ ] 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 [ ] as of the date of this Agreement, as of the
Closing Date and, with respect to Additional Accounts, as of the related
Addition Date that:
(i) this Agreement and, in the case of
Additional Accounts, the related Supplemental Conveyance, each
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 affecting creditors' rights generally from time to
time in effect or general principles of equity;
(ii) as of the Initial Cut-Off Date, and as of
the related Additional Cut-Off Date with respect to Additional
Accounts, Schedule I to this Agreement, as supplemented to such
date, is an accurate and complete listing in all material respects
of all the Accounts as of the Initial Cut-Off Date or such
Additional Cut-Off Date, as the case may be, and the information
contained therein supplied by the Seller with respect to the
identity of such Accounts and the Receivables existing thereunder
is true and correct in all material respects as of the Initial
Cut-Off Date or such applicable Additional Cut-Off Date, as the
case may be and as of the Initial Cut-Off Date, the aggregate
amount of Receivables in all the Initial Accounts was $_______, of
which $________ were Principal Receivables;
(iii) each Receivable has been conveyed to [ ]
free and clear of any Lien;
(iv) all authorizations, consents, orders or
approvals of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given
by the Seller in connection with the conveyance of Receivables to
[ ] have been duly obtained, effected or given and are in full
force and effect;
(v) this Agreement or, in the case of Additional
Accounts, the related Supplemental Conveyance constitutes a valid
sale, transfer and assignment to [ ] of all right, title and
interest of the Seller in the Receivables and the proceeds thereof
and the Interchange payable pursuant to this Agreement and the
Recoveries payable pursuant to this Agreement;
(vi) on the Initial Cut-Off Date, each Account
is an Eligible Account and, in the case of Additional Accounts, on
the Additional Cut-Off Date, each related Additional Account is an
Eligible Account;
(vii) on the Initial Cut-Off Date, each
Receivable then existing is an Eligible Receivable, and in the
case of Additional Accounts, on the applicable Additional Cut-Off
Date, each Receivable generated thereunder is an Eligible
Receivable;
(viii) as of the date of the creation of any new
Receivable, such Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by the
Seller to be materially adverse to the interests of [ ] or the
Investor Certificateholders have been used in selecting such
Accounts.
(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 [ ]. Upon discovery by either the Seller or [ ] 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 within three Business Days following
such discovery; provided that the failure to give notice within three
Business Days does not preclude subsequent notice. The Seller hereby
acknowledges that [ ] intends to rely on the representations hereunder in
connection with representations made by [ ] to secured parties, assignees
or subsequent transferees including but not limited to transfers made by [
] to the Trust pursuant to the Pooling and Servicing Agreement.
SECTION 4.03 Representations and Warranties of [ ]. As of the
Closing Date, [ ] hereby represents and warrants to, and agrees with, the
Seller that:
(a) Organization and Good Standing. [ ] is a corporation
duly organized and validly existing under the laws of the State of Delaware
and has, in all material respects, full power and authority to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Authorization. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the
transactions provided for in this Agreement and the Conveyance Papers have
been duly authorized by [ ] by all necessary corporate action on the part
of [ ].
(c) No Conflict. The execution and delivery of this
Agreement and the Conveyance Papers by [ ], the performance of the
transactions contemplated by this Agreement and the Conveyance Papers, and
the fulfillment of the terms of this Agreement and the Conveyance Papers
applicable to [ ], will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which [
] is a party or by which it or any of its properties are bound.
(d) No Violation. The execution, delivery and performance
of this Agreement and the Conveyance Papers by [ ] and the fulfillment of
the terms contemplated herein and therein applicable to [ ] will not
conflict with or violate any Requirements of Law applicable to [ ].
(e) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of [ ], threatened against
[ ], before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of
this Agreement or the Conveyance Papers, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
the Conveyance Papers, (iii) seeking any determination or ruling that, in
the reasonable judgment of [ ], would materially and adversely affect the
performance by [ ] of its obligations under this Agreement or the
Conveyance Papers or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by [ ] in connection
with the execution and delivery by [ ] of this Agreement and the Conveyance
Papers and the performance of the transactions contemplated by this
Agreement and the Conveyance Papers have been duly obtained, effected or
given and are in full force and effect.
The representations and warranties set forth in this Section 4.03
shall survive the Conveyance of the Receivables to [ ]. Upon discovery by [
] 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
SECTION 5.01 Covenants of the Seller. The Seller hereby covenants
and agrees with [ ] as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account, the
Seller will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC) and if any Receivable is so evidenced as
a result of any action by the Seller it shall be deemed to be an ineligible
Receivable in accordance with Section 6.01(a) and shall be reassigned to
the Seller in accordance with Section 6.01(b).
(b) 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 [ ]'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 [ ] in,
to and under the Receivables, whether now existing or hereafter created,
against all claims of third parties claiming through or under the Seller.
(c) Accounting Allocations. In the event that the Seller
is unable for any reason to transfer Receivables to [ ] in accordance with
the provisions of this Agreement (including, without limitation, by reason
of the application of the provisions of Section 8.02 or any order of any
Governmental Authority), then, in any such event, the Seller agrees (except
as prohibited by any such order) to allocate and pay to [ ], after the date
of such inability, all amounts in the manner by which [ ] will allocate and
pay to the Trust after such inability by [ ] pursuant to Section 2.11 of
the Pooling and Servicing Agreement.
(d) Delivery of Collections or Recoveries. In the event
that the Seller receives Collections or Recoveries, the Seller agrees to
pay to [ ] (or to the Servicer if [ ] so directs) all such Collections and
Recoveries to the extent such amounts are payable to [ ] as soon as
practicable after receipt thereof.
(e) Notice of Liens. The Seller shall notify [ ] promptly
after becoming aware of any Lien on any Receivable other than the
conveyances hereunder under the Pooling and Servicing Agreement.
(f) Interchange. Not later than 1:00 p.m., New York City
time, on each Transfer Date, the Seller shall deposit into the Collection
Account, in immediately available funds, (i) the amount of Interchange to
be included as Collections of Finance Charge Receivables with respect to
the preceding Monthly Period or (ii) if at any time the Servicer cannot
identify the amount of such Interchange, the amount reasonably estimated
and notified to the Seller by the Servicer as the amount of such
Interchange.
(g) 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 [ ].
(h) Periodic Rate Finance Charges. (i) Except (x) as
otherwise required by any Requirements of Law or (y) as is deemed by the
Seller [or other Account Owner, as the case may be], to be necessary in
order for it to maintain its credit card business or a program operated by
such credit card business on a competitive basis based on a good faith
assessment by it of the nature of the competition with respect to the
credit card business or such program, it shall not at any time take any
action which would have the effect of reducing the Portfolio Yield to a
level that could be reasonably expected to cause any Series to experience
any Pay Out Event based on the insufficiency of the Portfolio Yield or any
similar test and (ii) except as otherwise required by any Requirements of
Law, it shall not take any action which would have the effect of reducing
the Portfolio Yield to be less than the highest Average Rate for any Group.
(i) Credit Card Agreements and Guidelines. Subject to
compliance with all Requirements of Law and paragraph (h) above, the Seller
[or other Account Owner, as the case may be], may change the terms and
provisions of the applicable Credit Card Agreements or the applicable
Credit Card Guidelines in any respect (including the calculation of the
amount or the timing of charge- offs and the Periodic Rate Finance Charges
to be assessed thereon). Notwithstanding the above, unless required by
Requirements of Law or as permitted by Section 5.02(a), the Seller [or
other Account Owner, as the case may be], will take no action with respect
to the applicable Credit Card Agreements or the applicable Credit Card
Guidelines, which, at the time of such action, the Seller [or other Account
Owner, as the case may be,] reasonably believes will have a material
adverse effect on [ ] or the Investor Certificateholders.
[ ] covenants that, at any time that the Seller is not the
Servicer under the Pooling and Servicing Agreement, it will provide the
Seller with such information as the Seller may reasonably request to enable
the Seller to determine compliance with the covenants contained in Section
5.02(b).
ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.01 Reassignment of Ineligible Receivables.
(a) In the event any representation or warranty under
Section 4.02(a)(ii), (iii), (iv), (vi), (vii) or (viii) is not true and
correct in any material respect as of the date specified therein with
respect to any Receivable or the related Account and as a result of such
breach [ ] is required to accept reassignment of Ineligible Receivables
previously sold by the Seller to [ ] pursuant to Section 2.05(a) of the
Pooling and Servicing Agreement, the Seller shall accept reassignment of [
]'s interest in such Ineligible Receivables on the terms and conditions set
forth in Section 6.01(b).
(b) The Seller shall accept reassignment of any
Ineligible Receivables previously sold by the Seller to [ ] from [ ] on or
prior to the end of the Monthly Period in which such reassignment
obligation arises, [and shall pay for such reassigned Ineligible
Receivables by treating such Ineligible Receivables as if they were subject
to a reversal of the entire unpaid principal balance thereof plus accrued
and unpaid finance charges at the annual percentage rate applicable to such
Receivables from the last date billed through the end of such Monthly
Period and by adjusting the purchase price of future Receivables purchased
as provided in Section 3.02 (the "Repurchase Price")]. Upon reassignment of
such Ineligible Receivables, [ ] shall automatically and without further
action be deemed to sell, transfer, assign, set-over and otherwise convey
to the Seller, without recourse, representation or warranty, all the right,
title and interest of [ ] in and to such Ineligible Receivables, all monies
due or to become due with respect thereto and all proceeds thereof; and
such reassigned Ineligible Receivables shall be treated by [ ] as collected
in full as of the date on which they were transferred. [ ] 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 such Ineligible Receivables pursuant to this subsection.
SECTION 6.02 Reassignment of Certificateholders' Interest in Trust
Portfolio. In the event any representation or warranty set forth in Section
4.01(a) or (c) or Section 4.02(a)(i) or (a)(v) is not true and correct in
any material respect and as a result of such breach [ ] is required to
accept a reassignment of the Certificateholders' Interest in the
Receivables previously sold by the Seller to [ ] pursuant to Section 2.06
of the Pooling and Servicing Agreement, the Seller shall be obligated to
accept a reassignment of [ ]'s interest in such Receivables on the terms
set forth below.
The Seller shall pay to [ ] by depositing in the Collection
Account in immediately available funds, not later than 1:00 P.M. New York
City time, on the first Transfer Date following the Monthly Period in which
such reassignment obligation arises, in payment for such reassignment, an
amount equal to the Portfolio Reassignment Price.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01 Conditions to [ ]'s Obligations Regarding Initial
Receivables. The obligations of [ ] to purchase the Receivables in the
Initial Accounts 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 Initial Accounts
provided to [ ] shall be true and correct as of the Initial Cut-Off Date in
all material respects;
(c) The Seller shall have (i) delivered to [ ] a computer
file or microfiche list containing a true and complete list of all Initial
Accounts identified by account number and by the Receivables balance as of
the Initial Cut-Off Date and (ii) substantially 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 (other
than Receivables in Additional Accounts) now existing and hereafter created
for the transfer of accounts and general intangibles (each as defined in
Section 9-106 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 [
], and shall deliver a file-stamped copy of such financing statements or
other evidence of such filings to [ ];
(e) On or before the closing Date, [ ] and the Trustee
shall have entered into the Pooling and Servicing Agreement and the closing
under the Pooling and Servicing Agreement shall take place simultaneously
with the initial 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 [ ], and [ ] shall
have received from the Seller copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as [ ] may reasonably have requested.
SECTION 7.02 Conditions Precedent to the Seller's Obligations. The
obligations of the Seller to sell Receivables in the Initial Accounts on
the Closing Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of [ ] 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 the provision of 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 [ ] copies of all documents (including,
without limitation, records for 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 Article XII of the Pooling and Servicing
Agreement.
SECTION 8.02 Purchase 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 immediately cease to
transfer Principal Receivables to [ ] and shall promptly give notice to [ ]
and the Trustee of such Insolvency Event. Notwithstanding any cessation of
the transfer to [ ] of additional Principal Receivables, Principal
Receivables transferred to [ ] prior to the occurrence of such Dissolution
Event and Collections in respect of such Principal Receivables and Finance
Charge Receivables whenever created, accrued in respect of such Principal
Receivables, shall continue to be properly of [ ] available for transfer by
[ ] to the Trust pursuant to the Pooling and Servicing Agreement.
RIDER 18A
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 [ ] and the Seller
in accordance with this Section 9.01. This Agreement and any Conveyance
Papers may be amended from time to time by [ ] 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 [ ];
provided, however, that no amendment pursuant to clause (v) of this Section
9.01 shall be effective unless the Seller and [ ] 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 Investor Certificateholders, 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 [ ]:
[ ]
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx,
Director and Vice President
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.
. 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.
. Assignment. Notwithstanding anything to the contrary contained
herein, other than [ ]'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 as
contemplated by the Pooling and Servicing Agreement 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 [ ] which assumes the
obligations of this Agreement or (iii) to any entity provided that the
Rating Agency has advised [ ] and the Seller that the Rating Agency
Condition has been satisfied.
. Acknowledgment and Agreement of the Seller. By execution below,
the Seller expressly acknowledges and agrees that all of [ ]'s right,
title, and interest in, to, and under this Agreement, including, without
limitation, all of [ ]'s right, title, and interest in and to the
Receivables purchased pursuant to this Agreement, shall be assigned by [ ]
to the Trustee for the benefit of the beneficiaries of the Trust, including
the Certificateholders, 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 [ ], due to a breach by [ ]
of this Agreement or for any other reason, and notwithstanding the
bankruptcy of [ ] or any other event whatsoever, the Seller's sole remedy
shall be a claim against [ ] for money damages and, then only to the extent
of funds received by [ ] pursuant to the Pooling 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 [ ] hereunder which are to be
paid by [ ] to the Trustee for the benefit of the Certificateholders shall
be paid by the Seller, on behalf of [ ], directly to the Trustee.
. Further Assurances. [ ] 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.
. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of [ ] 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.
. 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.
. 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.
. 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.
. Headings. The headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
. 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.
. 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 [ ] to the
Trustee pursuant to the Pooling and Servicing Agreement.
. 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 [ ] to invoke the process of any Governmental
Authority for the purpose of commencing or sustaining a case against [ ]
under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of [ ] or any substantial part of
its property or ordering the winding-up or liquidation or the affairs of [ ].
IN WITNESS WHEREOF, [ ] 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: ______________________
[ ]
By: _________________________
Name: ______________________
Title: ______________________
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.05 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. ___ dated as of ________, 200_, by and
between [SELLER NAME], as Seller ("the Seller"), and [ ] ("[ ]") pursuant
to the Receivables Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, the Seller and [ ] are parties to a Receivables Purchase
Agreement, dated as of [ ], 200[ ] (hereinafter as such agreement may have
been, or may from time to time be, amended, supplemented or otherwise
modified, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the
Seller wishes to designate Additional Accounts to be included as Accounts
and the Seller wishes to convey its right, title and interest in the
Receivables of such Additional Accounts, whether now existing or hereafter
created, to [ ] pursuant to the Receivables Purchase Agreement (as each
such term is defined in the Receivables Purchase Agreement); and
WHEREAS, [ ] is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, the Seller and [ ] hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional
Accounts designated hereby, [ ], 200[ ].
"Additional Cut-Off Date" shall mean, with respect to the
Additional Accounts designated hereby, [ ], 200[ ].
2. Designation of Additional Accounts. The Seller delivers
herewith a computer file or microfiche list containing a true and complete
schedule identifying all such Additional Accounts and specifying for each
such Account, as of the Additional Cut-Off Date, its account number, the
aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables in such Account. Such computer file, microfiche list
or other documentation shall be as of the date of this Supplemental
Conveyance incorporated into and made part of this Supplemental Conveyance
and is marked as Schedule I to this Supplemental Conveyance.
3. Conveyance of Receivables.
(a) The Seller does hereby sell, transfer, assign, set over and
otherwise convey to [ ], without recourse, except as provided in the
Receivables Purchase Agreement, all its right, title and interest in, to
and under (i) the Receivables generated by such Additional Accounts, now
existing at the close of business on the Additional Cut-Off Date and
hereafter created until termination of the Receivables Purchase Agreement,
all monies due or to become due and all amounts received with respect
thereto and all "proceeds" (including, without limitation, "Proceeds" as
defined in Article 9 of the UCC) thereof and (ii) the right to receive
Interchange and Recoveries with respect to such Receivables allocable to
the Trust as provided in the Pooling and Servicing Agreement. The foregoing
sale, transfer, assignment, set-over and conveyance does not constitute and
is not intended to result in a creation of an assumption by [ ] of any
obligation of the Servicer, the Seller or any other Person in connection
with the Accounts, the Receivables or under any agreement or instrument
relating thereto, including, without limitation, any obligation to any
Obligor, merchant banks, merchants clearance systems, VISA USA, Inc.,
MasterCard International Incorporated or insurers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, one or more financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables, now existing and hereafter
created, for the transfer of accounts and general intangibles meeting the
requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of and to
deliver a file-stamped copy of such financing statement or other evidence
of such filing to [ ].
(c) In connection with such sale, the Seller further agrees, at
its own expense, on or prior to the date of this Supplemental Conveyance,
to indicate in the appropriate computer files or microfiche list that all
Receivables created in connection with the Additional Accounts designated
hereby have been conveyed to [ ] pursuant to this Supplemental conveyance.
4. Acceptance by [ ]. Subject to the satisfaction of the
conditions set forth in Section 6 of this Supplemental Conveyance, [ ]
hereby acknowledges its acceptance of all right, title and interest in and
to the property, now existing and hereafter created, conveyed to [ ]
pursuant to Section 3(a) of this Supplemental Conveyance, and declares that
it shall maintain such right, title and interest. [ ] further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Supplemental Conveyance, the Seller delivered to [ ] the computer file or
microfiche list described in Section 2 of this Supplemental Conveyance.
5. Representation and Warranties of the Seller. The Seller hereby
represents and warrants to [ ] as of the date of this Supplemental
Conveyance and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental
Conveyance 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 affecting creditors'
rights generally from time to time in effect or general principles of
equity;
(b) Eligibility of Accounts. On the Additional Cut-Off Date, each
Additional Account designated hereby is an Eligible Account;
(c) No Liens. Each Receivable in an Additional account designated
hereby has been conveyed to [ ] free and clear of any Lien;
(d) Eligibility of Receivables. On the Additional Cut-Off Date,
each Receivable existing in an Additional Account designate hereby is an
Eligible Receivable and as of the date of creation of any Receivables in an
Additional Account designated hereby, such Receivable is an Eligible
Receivable;
(e) Selection Procedures. No selection procedure believed by the
Seller to be adverse to the interests of [ ] or the Investor
Certificateholders was utilized in selecting the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance
constitutes a valid sale, transfer and assignment to [ ] of all right,
title and interest of the Seller in and to the Receivables arising in the
Additional Accounts designated hereby, now existing or hereafter created,
all monies due or to become due and all amounts received with respect
thereto and the "proceeds" (including, without limitation, "proceeds" as
defined in Article 9 of the UCC) thereof and the Interchange and the
Recoveries with respect thereto payable pursuant to the Receivables
Purchase Agreement;
(g) No Conflict. The execution and delivery of this Supplemental
Conveyance, the performance of the transactions contemplated by this
Supplemental Conveyance and the fulfillment of the terms hereof, will not
conflict with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Seller is a party
or by which it or its properties are bound;
(h) No Violation. The execution and delivery of this Supplemental
Conveyance by the Seller, the performance of the transactions contemplated
by this Supplemental Conveyance and the fulfillment of the terms hereof
applicable to the Seller will not conflict with or violate any Requirements
of Law applicable to the Seller;
(i) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of the Seller, threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of
this Supplemental Conveyance, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Supplemental Conveyance, (iii)
seeking any determination or ruling that, in the reasonable judgment of the
Seller, would materially and adversely affect the performance by the Seller
of its obligations under this Supplemental Conveyance or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Supplemental Conveyance; and
(j) All Consents. All authorizations, consents, orders or approval
of any court or other governmental authority required to be obtained by the
Seller in connection with the execution and delivery of this Supplemental
Conveyance by the Seller and the performance of the transactions
contemplated by this Supplemental Conveyance by the Seller, have been
obtained.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to
the "Receivables Purchase Agreement", to "this Agreement" and "herein"
shall be deemed from and after the Addition Date to be a reference to the
Receivables Purchase Agreement as supplemented by this Supplemental
Conveyance. Except as expressly amended hereby, all the representations,
warranties, terms, covenants and conditions of the Receivables Purchase
Agreement shall remain unamended and shall continue to be, and shall,
remain, in full force and effect in accordance with its terms and except as
expressly provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or consent to non-compliance with any term or
provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed in
any number of counterparts, all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly
authorized officers on the day and the year first above written.
[GS MORTGAGE SECURITIES CORPORATION]
By: _________________________
Name: ______________________
Title: ______________________
[SELLER NAME]
By: _________________________
Name: ______________________
Title: ______________________
Schedule I to Supplemental Conveyance
Additional Accounts
Schedule I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
