EXHIBIT 10.2
EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
between
GS WHOLE LOAN TRUST II,
as Seller,
and
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.,
as Purchaser
Dated as of August 2, 2006
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND USAGE ...................................... 1
ARTICLE II PURCHASED PROPERTY ......................................... 1
SECTION 2.1 Conveyance of Purchased Property; Intent of the
Parties ........................................... 1
SECTION 2.2 Representations and Warranties of the Seller
regarding the Receivables ......................... 1
SECTION 2.3 Repurchase upon Breach .............................. 2
SECTION 2.4 Representations and Warranties as to the Security
Interest of the Purchaser in the Receivables ...... 3
ARTICLE III THE SELLER 4
SECTION 3.1 Representations, Warranties and Covenants of the
Seller ............................................ 4
ARTICLE IV MISCELLANEOUS PROVISIONS ................................... 5
SECTION 4.1 Amendment ........................................... 5
SECTION 4.2 Protection of Title to Trust Property ............... 6
SECTION 4.3 Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial .............................. 7
SECTION 4.4 Notices ............................................. 7
SECTION 4.5 Severability of Provisions .......................... 8
SECTION 4.6 No Waiver; Cumulative Remedies ...................... 8
SECTION 4.7 Third-Party Beneficiaries ........................... 8
SECTION 4.8 Limitation of Liability of Owner Trustee ............ 8
SECTION 4.9 Transfers Intended as Sale; Security Interest ....... 8
SECTION 4.10 No Petition ......................................... 9
SECTION 4.11 Execution in Counterparts ........................... 10
SECTION 4.12 Headings ............................................ 10
ii
This RECEIVABLES PURCHASE AGREEMENT, dated as of August 2, 2006 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and between GS WHOLE LOAN TRUST II (the "Seller"), a
Delaware statutory trust and XXXXXXX SACHS ASSET BACKED SECURITIES CORP., a
Delaware corporation (the "Purchaser").
WHEREAS, the Seller desires to sell and the Purchaser desires to purchase
a portfolio of receivables and related property consisting of motor vehicle
retail installment sale contracts and loans;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix A to the Sale and Servicing Agreement, dated as of the date hereof, by
and among GS Auto Loan Trust 2006-1 (the "Issuer"), the Purchaser, as Depositor,
JPMorgan Chase Bank, National Association, as Indenture Trustee (the "Indenture
Trustee"), and Xxxxxxx Xxxxx Mortgage Company, as Servicer (the "Servicer").
ARTICLE II
PURCHASED PROPERTY
SECTION 2.1 CONVEYANCE OF PURCHASED PROPERTY; INTENT OF THE PARTIES. The
Seller does hereby irrevocably sell, transfer, assign and otherwise convey to
the Purchaser without recourse (subject to the obligations herein) all right,
title and interest of the Seller, whether now owned or hereafter acquired, in
and to the Purchased Property. In consideration of the sale of the Purchased
Property to the Purchaser on the Closing Date, the Purchaser shall pay to the
Seller on the Closing Date an agreed price, representing the fair market value
of the Purchased Property on the Closing Date. The sale, transfer, assignment
and conveyance made hereunder shall not constitute and is not intended to result
in an assumption by the Purchaser of any obligation of the Seller or any other
Person to the Obligors or any other Person in connection with the Receivables
and the other Purchased Property or any agreement, document or instrument
related thereto. The Seller and the Purchaser intend that the sale, transfer,
assignment and conveyance of the Purchased Property pursuant to this Section 2.1
shall be a sale and not a secured borrowing.
SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER REGARDING THE
RECEIVABLES. The Seller makes the following representations and warranties with
respect to the Receivables, on which the Purchaser relies in purchasing the
Receivables. Such representations and warranties speak as of the Closing Date,
but shall survive the sale, transfer and assignment of the Receivables by the
Seller to the Purchaser pursuant to this Agreement, the sale, transfer and
TRUST II RECEIVABLES PURCHASE AGREEMENT
assignment of the Receivables by the Purchaser to the Issuer pursuant to the
Sale and Servicing Agreement and the pledge of the Receivables by the Issuer to
the Indenture Trustee pursuant to the Indenture.
(i) Schedule of Receivables. No selection procedures adverse
to the Securityholders have been used by the Seller in selecting the
Receivables from all receivables owned by the Seller which meet the
selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other
than the Purchaser.
(iii) Good Title. Immediately prior to the transfer and
assignment of the Receivables to the Purchaser herein contemplated,
each Receivable was free and clear of all Liens created by the
Seller; and, immediately upon the transfer thereof, the Purchaser
has either (i) good and marketable title to each Receivable, free
and clear of all of all Liens and rights of others to the extent
created by the Seller and the transfer has been perfected under
applicable law or (ii) a first priority perfected security interest
in the Seller's rights in each Receivable.
SECTION 2.3 REPURCHASE UPON BREACH. (a) Each of the Seller and the
Purchaser shall inform the other promptly, in writing, upon the discovery by it
of any breach of the Seller's representations and warranties pursuant to Section
2.2 which materially and adversely affects the interest of the Issuer in any
Receivable. Unless the breach shall have been cured by the last day of the
second Collection Period following discovery by or written notice to the Seller
of such breach, the Seller shall repurchase any Receivable for which the
interest of the Issuer is materially and adversely affected by such breach as of
such last day (or, at the Purchaser's option, the last day of the first
Collection Period following the discovery). Any such breach shall not be deemed
to have a material and adverse effect on the interests of the Issuer if such
breach does not affect the ability of the Issuer to receive and retain timely
payment in full on the related Receivable. The Seller shall remit the related
Purchase Amount (less any Liquidation Proceeds deposited, or to be deposited, in
the Collection Account with respect to such Receivable pursuant to Section 3.3
of the Sale and Servicing Agreement), to or at the direction of the Purchaser.
(b) In addition to the foregoing repurchase obligations, if the
interest of the Purchaser in any Receivable is materially and adversely affected
by a breach by an Originator of a representation or warranty relating to such
Receivable in an Originator Purchase Agreement, the Seller shall repurchase such
Receivable from the Issuer but only if the Originator shall in fact repurchase
such Receivable. The Seller shall remit the purchase price paid by the
Originator with respect to such Receivable pursuant to Section 3.3 of the Sale
and Servicing Agreement to or at the direction of the Purchaser.
(c) The sole remedy of the Purchaser with respect to a breach of
any of the representations and warranties referred to in Sections 2.2 shall be
the repurchase of the related Receivables pursuant to Section 2.3.
(d) With respect to all Receivables purchased pursuant to this
Section 2.3, the Purchaser shall assign to the Seller, without recourse,
representation or warranty, all of the
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2 AGREEMENT
Purchaser's right, title and interest in and to such Receivables and all
security and documents relating thereto.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES AS TO THE SECURITY INTEREST OF
THE PURCHASER IN THE RECEIVABLES. The Seller makes the following representations
and warranties to the Purchaser. The representations and warranties speak as of
the execution and delivery of this Agreement and as of the Closing Date, but
shall survive the sale, transfer and assignment of the Receivables by the Seller
to the Purchaser pursuant to this Agreement, the sale, transfer and assignment
of the Receivables by the Purchaser to the Issuer pursuant to the Sale and
Servicing Agreement and the pledge of the Receivables by the Issuer to the
Indenture Trustee pursuant to the Indenture.
(a) This Agreement creates a valid and continuing security
interest (as defined in the UCC) in the Receivables in favor of the Purchaser,
which security interest is prior to all other Liens, and is enforceable as such
as against creditors of and purchasers from the Seller.
(b) The Receivables constitute "tangible chattel paper" within the
meaning of Article 9 of the UCC.
(c) Immediately prior to its transfer to the Issuer, each
Receivable was free and clear of any Lien created by the Seller.
(d) The Seller has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Receivables granted to the Purchaser hereunder. Each
such financing statement will contain a statement to the following effect "A
purchase of or security interest in any collateral described in this financing
statement will violate the rights of the Secured Party."
(e) Other than the security interest granted to the Purchaser
pursuant to this Agreement, the Seller has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Receivables. The Seller
has not authorized the filing of and is not aware of any financing statements
against the Seller that include a description of collateral covering the
Receivables other than any financing statement relating to the security interest
granted to the Issuer hereunder or that has been terminated. The Seller is not
aware of any judgment or tax lien filings against it.
(f) The contracts that constitute or evidence the Receivables do
not have any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than the Seller or the Issuer.
Each of the parties hereto agrees that it shall not, without satisfaction
of the Rating Agency Condition, waive any of the representations and warranties
in this Section 2.4.
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3 AGREEMENT
ARTICLE III
THE SELLER
SECTION 3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER. The
Seller makes the following representations and warranties on which the Purchaser
is deemed to have relied in acquiring the Purchased Property. The
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables by the Seller to the Purchaser pursuant to this
Agreement, the sale, transfer and assignment of the Receivables by the Purchaser
to the Issuer pursuant to the Sale and Servicing Agreement and the pledge of the
Receivables by the Issuer to the Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Seller is duly organized
and validly existing as a statutory trust in good standing under the laws of the
State of Delaware, with the trust power and authority to own its properties and
to conduct its business as such properties are currently owned and such business
is presently conducted.
(b) POWER AND AUTHORITY. The Seller has the power and authority to
execute and deliver this Agreement and the other Basic Documents to which it is
a party and to carry out their respective terms; the Seller has full power and
authority to sell and assign the property to be sold, and assigned to the
Purchaser, and the Seller shall have duly authorized such sale and assignment to
the Purchaser by all necessary trust action; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to which the Seller
is a party have been duly authorized, executed and delivered by the Seller by
all necessary trust action.
(c) BINDING OBLIGATIONS. This Agreement, when duly executed and
delivered by the Purchaser, constitutes a legal, valid, and binding obligation
of the Seller enforceable against the Seller in accordance with its terms,
except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, or other similar laws now or hereafter in effect relating to or
affecting creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(d) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the Seller
is a party and the fulfillment of the terms hereof and thereof do not (i)
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
organizational documents of the Seller, or conflict with or breach any of the
material terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement, or other instrument to which
the Seller is a party or by which it is bound, (ii) 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 the Liens created by
this Agreement or any other Basic Document, or (iii) 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.
TRUST II RECEIVABLES PURCHASE
4 AGREEMENT
(e) NO PROCEEDINGS. There are no legal or governmental proceedings
pending, or, to the best of the Seller's knowledge, threatened, before any
court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement or any of the other Basic Documents,
(ii) seeking to prevent the issuance of the Securities or the consummation of
any of the transactions contemplated by this Agreement or the other Basic
Documents, (iii) seeking any determination or ruling that would reasonably be
expected to materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement, any of
the other Basic Documents or the Securities or (iv) relating to the Seller and
which would reasonably be expected to adversely affect the federal income tax
attributes of the Securities.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1 AMENDMENT. (a) Any term or provision of this Agreement may be
amended by the Seller and the Purchaser without the consent of the Indenture
Trustee, the Owner Trustee, any Noteholder, any Certificateholder, the Issuer or
any other Person; provided that such amendment shall not, as evidenced by an
Opinion of Counsel delivered to the Indenture Trustee and to that effect,
materially and adversely affect the interests of the Noteholders or the
Certificateholders. An amendment shall be deemed not to materially and adversely
affect the interests of the Noteholders or the Certificateholders and no Opinion
of Counsel to that effect shall be required if the Rating Agency Condition is
satisfied with respect to such amendment.
(b) Any term or provision of this Agreement may be amended by the
Seller and the Purchaser but without the consent of the Indenture Trustee, the
Owner Trustee, any Noteholder, any Certificateholder, the Issuer or any other
Person to add, modify or eliminate any provisions as may be necessary or
advisable in order to enable the Seller, the Purchaser or any of their
Affiliates to comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle, it being a condition to any such
amendment that the Rating Agency Condition shall have been satisfied.
(c) Any term or provision of this Agreement may also be amended
from time to time by the Seller and the Purchaser, with the consent of (i) the
Noteholders of Notes evidencing not less than a majority of the principal amount
of each Class of Notes, and (ii) the Certificateholders of Certificates
evidencing not less than a majority of the Percentage Interests (which consent
of any holder of a Note or holder of a Certificate given pursuant to this
Section 4.1 or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Note or Certificate, as the case may be, and on
all future holders of such Note or holders of such Certificate, as the case may
be, and of any Note or Certificate, as applicable, issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon such Note or the Certificate), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such amendment
shall (A) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, or change the allocation or priority of, collections of payments
on Receivables or
TRUST II RECEIVABLES PURCHASE
5 AGREEMENT
distributions that shall be required to be made on any Note or Certificate or
change any Note Interest Rate, without the consent of all Noteholders or
Certificateholders or (B) reduce the aforesaid percentage required to consent to
any such amendment, without the consent of the holders of all Notes affected
thereby and holders of all Certificates affected thereby. It shall not be
necessary for the consent of Noteholders or the Certificateholders pursuant to
this Section 4.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Noteholders and Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Noteholders and
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee and the Indenture Trustee may prescribe, including, with respect to the
Noteholders, the establishment of record dates pursuant to the Note Depository
Agreement.
(d) Prior to the execution of any such amendment the Owner Trustee
shall provide written notification of the substance of such amendment to each
Rating Agency.
(e) Promptly after the execution of any such amendment, the Owner
Trustee shall furnish written notification of the substance of such amendment to
the Indenture Trustee, each Rating Agency.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee and the Indenture Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and, if applicable, the Opinion of
Counsel referred to in Section 4.1(a). The Owner Trustee or the Indenture
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such Owner Trustee's or Indenture Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 4.2 PROTECTION OF TITLE TO TRUST PROPERTY. (a) The Seller shall
file such financing statements and the Issuer shall cause to be filed such
continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the interest of the
Purchaser in the Receivables and in the proceeds thereof. The Owner Trustee
shall deliver (or cause to be delivered) to the Purchaser and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. The Seller hereby
authorizes the Issuer and the Owner Trustee to file such continuation statements
on its behalf.
(b) Neither the Seller nor the Purchaser shall change its name,
identity, or organizational structure in any manner that would, could, or might
make any financing statement or continuation statement filed by the Owner
Trustee in accordance with paragraph (a) above seriously misleading within the
meaning of Sections 9-506, 9-507 or 9-508 of the UCC, unless it shall have given
the Owner Trustee and the Indenture Trustee at least 5 days' prior written
notice thereof and shall have promptly filed appropriate amendments to all
previously filed financing statements or continuation statements.
(c) The Seller and the Purchaser shall give the Owner Trustee and
the Indenture Trustee at least ten (10) days' prior written notice of any
relocation of its principal
TRUST II RECEIVABLES PURCHASE
6 AGREEMENT
executive office or change in the jurisdiction under whose laws it is formed if,
as a result of such relocation or change, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement.
SECTION 4.3 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THAT
WOULD APPLY THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND
THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement or any documents executed
and delivered in connection herewith, or for recognition and
enforcement of any judgment in respect thereof, to the nonexclusive
general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of such action or proceeding in any such
court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to such Person at its address determined in
accordance with Section 9.4; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER BASIC DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY.
SECTION 4.4 NOTICES. All demands, notices, and communications under this
Agreement shall be in writing, personally delivered, sent by fax, overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt at such address designated in
Section 9.4 of the Sale and Servicing Agreement in a written notice
TRUST II RECEIVABLES PURCHASE
7 AGREEMENT
to the other parties hereto. Any notice required or permitted to be mailed to a
Noteholder or Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Person as shown in the Note Register or the
Certificate Register, as applicable. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder or Certificateholder shall receive such
notice.
SECTION 4.5 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the Notes, the
Certificates or the rights of the holders thereof.
SECTION 4.6 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the parties hereto, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders, 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, power or privilege. The rights, remedies, powers and privileges
therein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
SECTION 4.7 THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Indenture Trustee, the
Owner Trustee and the Issuer and their respective successors and permitted
assigns and each of the Indenture Trustee, Owner Trustee and the Issuer may
enforce the provisions hereof as if they were parties thereto. Except as
otherwise provided in this Article IV, no other Person will have any right or
obligation hereunder. The parties hereto hereby acknowledge and consent to the
assignment of this Agreement by the Purchaser to the Issuer pursuant to the Sale
and Servicing Agreement.
SECTION 4.8 LIMITATION OF LIABILITY OF OWNER TRUSTEE. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall Wilmington Trust
Company, in its individual capacity or, except as expressly provided in the
Trust Agreement, as Owner Trustee of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI and VII of
the Trust Agreement.
SECTION 4.9 TRANSFERS INTENDED AS SALE; SECURITY INTEREST. (a) Each of the
parties hereto expressly intends and agrees that the transfer of the Purchased
Property contemplated and effected under this Agreement is a complete and
absolute sale and transfer of the Purchased Property rather than a pledge or
assignment of only a security interest and shall be given effect as
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8 AGREEMENT
such for all purposes. It is further the intention of the parties hereto that
the Receivables and other Purchased Property shall not be part of the Seller's
estate in the event of a bankruptcy or insolvency of the Seller. The sale and
transfer by the Seller of Receivables and other Purchased Property hereunder is
and shall be without recourse to, or representation or warranty (express or
implied) by, the Seller, except as otherwise specifically provided herein. The
limited rights of recourse specified herein against the Seller are intended to
provide a remedy for breach of representations and warranties relating to the
condition of the property sold, rather than to the collectibility of the
Receivables.
(b) Notwithstanding the foregoing, in the event that the
Receivables and other Purchased Property are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create indebtedness or
a security interest in the Receivables and other Purchased Property, then it is
intended that:
(i) This Agreement shall be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction;
(ii) The conveyance provided for in SECTION 2.1 shall be
deemed to be a grant by the Seller, and the Seller hereby grants, to
the Purchaser of a security interest in all of its right (including
the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the Receivables and other
Purchased Property, to secure such indebtedness and the performance
of the obligations of the Seller hereunder;
(iii) The possession by the Purchaser or its agent of the
Receivables Files and any other property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by the purchaser or
a person designated by such purchaser, for purposes of perfecting
the security interest pursuant to the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable
jurisdiction; and
(iv) Notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, bailees or agents
(as applicable) of the Purchaser for the purpose of perfecting such
security interest under applicable law.
SECTION 4.10 NO PETITION. Each party hereto agrees that, prior to the date
which is one year and one day after payment in full of all obligations of each
Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy
Remote Party (i) such party shall not authorize any Bankruptcy Remote Party to
commence a voluntary winding-up or other voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to such
Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the
appointment of an administrator, a trustee, receiver, liquidator, custodian or
other similar official with respect to such Bankruptcy Remote
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9 AGREEMENT
Party or any substantial part of its property or to consent to any such relief
or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against such Bankruptcy Remote
Party, or to make a general assignment for the benefit of, its creditors
generally, any party hereto or any other creditor of such Bankruptcy Remote
Party, and (ii) none of the parties hereto shall commence or join with any other
Person in commencing any proceeding against such Bankruptcy Remote Party under
any bankruptcy, reorganization, liquidation or insolvency law or statute now or
hereafter in effect in any jurisdiction. This Section shall survive the
termination of this Agreement.
SECTION 4.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 4.12 HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
[SIGNATURES FOLLOW]
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10 AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Receivables Purchase
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
GS WHOLE LOAN TRUST II,
as Seller
By: Xxxxxxx Xxxxx Mortgage Company, its
depositor and administrator
By: Xxxxxxx Sachs Real Estate Funding Corp.,
as general partner of Xxxxxxx Xxxxx Mortgage
Company
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
XXXXXXX SACHS ASSET BACKED SECURITIES CORP.,
as Purchaser
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
TRUST II RECEIVABLES XXXXXXXX
X-0 AGREEMENT
WILMINGTON TRUST COMPANY, not
in its individual capacity, but solely as Owner Trustee,
for the purpose of accepting its duties under Sections 4.1 and 4.2
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Financial Services Officer
TRUST II RECEIVABLES XXXXXXXX
X-0 AGREEMENT
