EXHIBIT 10.1
FORM OF RECEIVABLES PURCHASE AGREEMENT (VEHICLE LOAN
RECEIVABLES)
FORM OF RECEIVABLES PURCHASE
AGREEMENT
Dated as of [ ], 200[ ]
between
[Goldman Sachs Asset Backed Securities Corp.],
as Company
and
[SELLER NAME],
as Seller
[ ] VEHICLE RECEIVABLES TRUST 200[ ]-[ ]
RECEIVABLES
PURCHASE AGREEMENT, dated as of
, 200[ ], by and between [SELLER NAME], a
corporation (the “Seller”), and Goldman Sachs Asset
Backed Securities Corp., a Delaware corporation the
(“Company”).
WHEREAS, the
Company desires to purchase the Receivables (hereinafter defined)
from Seller;
WHEREAS, the
Seller desires to sell and assign the Receivables to the Company
upon the terms and conditions hereinafter set forth;
WHEREAS, it is
contemplated that the Receivables purchased hereunder will be
transferred by the Company to the Trust (hereinafter defined) in
connection with the issuance of certain Certificates [and certain
Notes]; and
WHEREAS, the
Seller agrees that all covenants and agreements made by the Seller
herein with respect to the Receivables shall also be for the
benefit of the Trustee (hereinafter defined) and all beneficiaries
of the Trust, including the holders of the Certificates [and the
Notes].
NOW, THEREFORE, it
is hereby agreed by and between the Company and the Seller as
follows:
SECTION 1.01
Definitions. All capitalized terms used herein or in any
certificate, document, or Conveyance Paper made or delivered
pursuant hereto, and not defined herein or therein, shall have the
meaning ascribed thereto in the [Pooling][Sale] and Servicing
Agreement; in addition, the following words and phrases shall have
the following meanings:
“Agreement”
shall mean this Receivables Purchase Agreement and all amendments
hereof and supplements hereto.
“Closing
Date” shall mean
, 200 .
“Company”
shall mean Goldman Sachs Asset Backed Securities Corp., a Delaware
corporation.
“Conveyance”
shall have the meaning specified in subsection 2.01(a).
“Conveyance Papers” shall have the meaning specified in
subsection 4.01(c).
“Debtor
Relief Laws” shall mean (i) the Bankruptcy Code in the
United States of America and (ii) all other applicable
liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension
of payments, readjustment of debt, marshaling of assets or similar
debtor relief laws of the United States, any state or any foreign
country from time to time in effect affecting the rights of
creditors generally.
[“Indenture”
shall mean the Indenture dated as of [
],200[ ], between the Trust, as Issuer, and the Indenture
Trustee.]
“Insolvency
Event” shall have the meaning specified in
Section 8.02.
[“Indenture
Trustee” shall have the meaning set forth in the
Indenture.]
“Obligor”
shall mean, with respect to each Receivable, the purchaser or
co-purchasers of the Financed Vehicle and any other Person who owes
payments under the Receivable.
[“Pooling
and Servicing Agreement” shall mean the Pooling and Servicing
Agreement, dated as of [ ], 200[ ], among [Servicer
Name], as servicer, the Company, as depositor and the Trustee, and
all amendments and supplements thereto.]
“Purchase
Price” shall have the meaning set forth in
Section 3.01.
“Purchased
Assets” shall have the meaning set forth in
Section 2.01.
“Receivables”
shall mean Receivables as defined in the [Pooling][Sale] and
Servicing Agreement, existing or created after the Cut Off
Date.
“Repurchase
Price” means the amount, as of the close of business on the
last day of a Collection Period, required to prepay a Receivable in
full under the terms thereof, including interest to the end of the
month of purchase.
“Sale and
Servicing Agreement” shall mean the Sale and Servicing
Agreement, dated as of [ ], 200[ ], among the Trust, as
issuer, the Company and
, as Servicer.
“Seller”
shall mean [Seller Name], a [
] corporation and its successors and permitted assigns.
“Trust”
shall mean the trust created by [the Pooling and Servicing
Agreement] [Trust Agreement].
“Trust
Agreement” shall mean the Trust Agreement, dated as of
[ ], 200[ ], between the Company and the
Trustee.
“Trustee”
shall mean [Trustee Name], a [
] banking corporation, the institution executing the [Pooling and
Servicing Agreement][Trust Agreement] as, and acting in the
capacity of Trustee thereunder, or its successor in interest, or
any successor trustee appointed as provided in the [Pooling and
Servicing Agreement] [Trust Agreement].
SECTION 1.02 Other
Definitional Provisions.
(a) All
terms defined in this Agreement shall have the defined meanings
when used in any certificate, other document, or Conveyance Paper
made or delivered pursuant hereto unless otherwise defined
therein.
(b) The
words “hereof”, “herein” and
“hereunder” and words of similar import when used in
this Agreement or any Conveyance Paper shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; and Section, Subsection, Schedule and Exhibit references
contained in this Agreement are references to Sections,
Subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(c) All
determinations of the principal balance of Receivables, and of any
collections thereof, shall be made in accordance with the [Pooling]
[Sale] and Servicing Agreement.
ARTICLE II.
PURCHASE AND CONVEYANCE OF RECEIVABLES
(a) By
execution of this Agreement, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Company (collectively,
the “Conveyance”), without recourse except as provided
herein, all its right, title and interest in, to and under the
following (the “Purchased Assets”):
(i)
the Receivables and all moneys due thereon on or after the Cutoff
Date, in the case of Precomputed Receivables, or all moneys
received thereon on and after the Cutoff Date, in the case of
Simple Interest Receivables;
(ii)
the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Seller in
such Financed Vehicles;
(iii)
any proceeds with respect to the Receivables from claims on any
physical damage, theft, credit life or disability insurance
policies covering Financed Vehicles or Obligors;
(iv)
any Financed Vehicle that shall have secured any such Initial
Receivable and shall have been acquired by or on behalf of the
Seller, the Servicer or the Trust;
(v)
all other assets comprising the estate of the Trust; and
(vi)
the proceeds of any and all of the foregoing.
(b) In
connection with such Conveyance, the Seller agrees (i) to
record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements
when applicable) with respect to the Receivables meeting the
requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect, and maintain perfection
of, the Conveyance of such Purchased Assets from the Seller to the
Company, (ii) that such financing statements shall name the
Seller, as seller, and the Company, as purchaser, of the
Receivables and (iii) to deliver a file-stamped copy of such
financing statements or other evidence of such filings (excluding
such continuation statements, which shall be delivered as filed) to
the Company as soon as is practicable after filing.
(c) In
connection with such Conveyance, the Seller further agrees that it
will, at its own expense, (i) on or prior to the Closing Date
indicate in its computer files that the Receivables have been
conveyed to the Company in accordance with this Agreement and have
been conveyed by the Company to the Trustee pursuant to the
[Pooling and Servicing] [Trust] Agreement for the benefit of the
Certificateholders [and the Noteholders] and (ii) on or prior
to the Closing Date deliver to the Company a computer file or
microfiche list containing a true and complete list of the
Receivables specifying for each Receivable, as of the Cutoff Date,
(A) its account number, (B) the aggregate amount
outstanding on such Receivable. Such file or list shall be marked
as Schedule I to this Agreement, shall be delivered to the
Company, and is hereby incorporated into and made a part of this
Agreement. The Seller further agrees not to alter the indication
referenced in clause (i) of this paragraph with respect to any
Receivable during the term of this Agreement.
(d) The
parties hereto intend that the conveyance of the Seller’s
right, title and interest in and to the Receivables shall
constitute an absolute sale, conveying good title free and clear of
any liens, claims, encumbrances or rights of others from the Seller
to the Company. It is the intention of the parties hereto that the
arrangements with respect to the Receivables shall constitute a
purchase and sale of such Receivables and not a loan. In the event,
however, that a court of competent jurisdiction were to hold that
the transactions evidenced hereby constitute a loan and not a
purchase and sale, it is the intention of the parties hereto that
this Agreement shall constitute a security agreement under
applicable law, and that the Seller shall be deemed to have granted
and does hereby grant to the Company a first priority perfected
security interest, whether now owned or hereafter acquired, in all
of the Seller’s right, title and interest in, to and under
the Receivables and other Purchased Assets to secure the rights of
the Company hereunder and the obligations of the Seller
hereunder.
ARTICLE III.
CONSIDERATION AND PAYMENT
SECTION 3.01
Purchase Price. The “Purchase Price” for the
Receivables conveyed to the Company under this Agreement shall be
payable on the Closing Date and shall be an amount equal to [100%
of the aggregate balance of Receivables so conveyed, adjusted to
reflect such factors as the Seller and the Company mutually agree
will result in a Purchase Price determined to be the fair market
value of such Receivables].
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01
Representations and Warranties of the Seller Relating
to the Seller.
The Seller hereby represents and warrants to, and agrees with the
Company as of the Closing Date that:
(a) Organization
and Good Standing. The Seller is duly organized and validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had
at all relevant times, and has, the corporate power, authority and
legal right to acquire, own and sell the Receivables.
(b) Due
Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) Power
and Authority. The Seller has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the
Seller has full power and authority to sell and assign the property
to be sold and assigned to the Company and deposited with the
Trustee as part of the Trust, and the Seller shall have duly
authorized such sale and assignment to the Seller by all necessary
corporate action; and the execution, delivery and performance of
this Agreement shall have been duly authorized by the Seller by all
necessary corporate action.
(d) Binding
Obligation. This Agreement when executed and delivered by the
Seller shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and similar laws
now or hereafter in effect relating to or affecting
creditors’ rights generally and to general principles of
equity (whether applied in a proceeding at law or in
equity).
(e) No
Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or bylaws of
the Seller or any material term of any indenture, agreement or
other instrument to which the Seller is a party or by which it is
bound; or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to this
Agreement); or violate any law or, to the best of the
Seller’s knowledge, any order, rule or regulation applicable
to the Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties.
(f) No
Proceedings. There are no proceedings or investigations pending or,
to the Seller’s best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties: (1) asserting the invalidity of this Agreement;
(2) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement; (3) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, this
Agreement; or (4) relating to the Seller and that might
materially and adversely affect the federal income tax attributes
of the Certificates [or the Notes].
(g) Corporate
Existence. During the term of this Agreement, the Seller will keep
in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation
and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be
necessary or appropriate to the proper administration of this
Agreement and the transactions contemplated hereby.
The
representations and warranties set forth in this Section 4.01
shall
survive the
transfer and assignment of the Receivables to the Company. Upon
discovery by the Seller or the Company of a breach of any of the
foregoing representations and warranties, the party discovering
such breach shall give written notice to the other party and the
Trustee within three Business Days following such
discovery.
SECTION 4.02
Representations and Warranties of the Seller Relating to the
Agreement and the Receivables.
(a) Representations
and Warranties. The Seller hereby represents and warrants to the
Company as of the date of this Agreement and as of the Closing Date
that:
(i)
Characteristics of Receivables. Each Receivable (1) was
originated by the Seller or acquired from a motor vehicle dealer or
another financial institution by the Seller in the ordinary course
of the Seller’s business, (2) has created a valid,
subsisting and enforceable first priority security interest in
favor of the Seller in the Financed Vehicle, which security
interest is assignable by the Seller and the Company,
(3) contains customary and enforceable provisions such that
the rights and remedies of the holder thereof shall be adequate for
realization against the collateral of the benefits of the security,
(4) provides for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable
may be minimally different from the level payments) that fully
amortize the Amount Financed by maturity and yield interest at the
Annual Percentage Rate, and (5) in the case of a Precomputed
Receivable, in the event that such contract is prepaid, provides
for a prepayment that fully pays the Principal Balance and includes
accrued but unpaid interest through the date of prepayment at the
Annual Percentage Rate.
(ii)
Schedule of Receivables. The information set forth in
Schedule I to this Agreement is true and correct in all
material respects as of the opening of business on the Cutoff Date,
and no selection procedures believed to be adverse to the
Certificateholders were utilized in selecting the Receivables. The
computer tape or other listing regarding the Receivables made
available to the Trustee is true and correct in all material
respects as of the Cutoff Date.
(iii)
Compliance with Law. Each Receivable and the sale of the Financed
Vehicle complied in all material respects at the time it was
originated or made and at the execution of this Agreement with all
requirements of applicable federal, state and local laws and
regulations thereunder, including, without limitation, usury laws,
the Federal Truth- in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss
Warranty Act, the Federal Reserve Board’s Regulations B and
Z, and State adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and
equal credit opportunity and disclosure laws.
(iv)
Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and
similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally and to general principles of
equity (whether applied in a proceeding at law or in
equity).
(v)
No Government Obligor. None of the Receivables is due from the
United States of America or any State or from any agency,
department or instrumentality of the United States of America or
any State.
(vi)
Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment and transfer thereof to
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