EXHIBIT 4.2.11
FORM OF POOLING AND SERVICING AGREEMENT
(DEALER FLOORPLAN SECURITIES)
POOLING AND SERVICING AGREEMENT
BETWEEN
[ ]
SELLER AND SERVICER
AND
[GS Mortgage Securities Corp.]
PURCHASER
DATED AS OF _____________
__________________ TRUST __
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01 Definitions.................................................................................1
ARTICLE II PURCHASE AND SALE OF ELIGIBLE RECEIVABLES..............................................................2
Section 2.01 Purchase and Sale of Eligible Receivables...................................................2
Section 2.02 Purchase Price..............................................................................2
Section 2.03 Addition of Accounts........................................................................3
Section 2.04 Optional Removal of Accounts................................................................4
Section 2.05 Removal of Ineligible Accounts..............................................................4
Section 2.06 Custody of Documentation....................................................................4
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES...........................................................5
Section 3.01 Appointment of Servicer and Acceptance of Appointment.......................................5
Section 3.02 Rights and Duties of the Servicer...........................................................5
Section 3.03 Servicing Compensation; Payment of Certain Expenses by the Servicer.........................7
Section 3.04 Representations, Warranties and Covenants of the Servicer...................................7
Section 3.05 Servicer's Accounting and Reports..........................................................10
Section 3.06 Pre-Closing Collections....................................................................11
Section 3.07 Collections Received by the Original Seller................................................11
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS.............................................................11
Section 4.01 Representations and Warranties of the Original Seller Relating
to the Accounts and the Receivables........................................................11
Section 4.02 Representations and Warranties of the Original Seller Relating
to the Original Seller and the Agreement...................................................12
Section 4.03 Representations and Warranties of the Purchaser............................................14
Section 4.04 Covenants of the Original Seller...........................................................15
ARTICLE V CERTAIN MATTERS RELATING TO ORIGINAL SELLER............................................................16
Section 5.01 Merger or Consolidation of, or Assumption of the Obligations of, the Original Seller.......16
Section 5.02 The Original Seller Indemnification of the Purchaser.......................................16
Section 5.03 The Original Seller Acknowledgment of Transfers to the Issuer..............................17
ARTICLE VI ADDITIONAL AGREEMENTS.................................................................................17
Section 6.01 Additional Obligations of the Original Seller and the Purchaser............................17
Section 6.02 Effect of Involuntary Case Involving the Original Seller...................................17
Section 6.03 Intercreditor Agreements...................................................................18
ARTICLE VII MISCELLANEOUS PROVISIONS.............................................................................19
Section 7.01 Amendment..................................................................................19
Section 7.02 Protection of Right, Title and Interest in and to Receivables..............................19
Section 7.03 Costs and Expenses.........................................................................20
Section 7.04 GOVERNING LAW..............................................................................20
Section 7.05 Notices....................................................................................20
Section 7.06 Severability of Provisions.................................................................21
Section 7.07 Assignment.................................................................................21
Section 7.08 Further Assurances.........................................................................21
Section 7.09 No Waiver; Cumulative Remedies.............................................................21
Section 7.10 Counterparts...............................................................................21
Section 7.11 Third-Party Beneficiaries..................................................................21
Section 7.12 Merger and Integration.....................................................................21
Section 7.13 Confidential Information...................................................................22
Section 7.14 Headings...................................................................................22
Section 7.15 Termination................................................................................22
Section 7.16 No Petition Covenants......................................................................22
Section 7.17 Jurisdiction...............................................................................22
EXHIBIT A List of Locations of the Schedule of Accounts
EXHIBIT B Form of Assignment for the Initial Closing Date
EXHIBIT C Form of Assignment for Each Addition Date
EXHIBIT D Form of Opinion of Counsel With Respect to Addition of Accounts
APPENDIX A Definitions and Rules of Construction
THIS POOLING AND SERVICING AGREEMENT is made as of ___________,
between _____________________________________, a ____________ corporation
(referred to herein as the "Original Seller" in its capacity as seller of
the Receivables specified herein and as the "Servicer" in its capacity as
servicer of the Receivables), and [GS Mortgage Securities Corp.], a
Delaware corporation (the "Purchaser").
WHEREAS, the Original Seller, in the ordinary course of its business,
generates certain payment obligations by financing the floor plan inventory
of motor vehicle dealers;
WHEREAS, the Original Seller desires to sell and assign to the
Purchaser, and the Purchaser desires to purchase from the Original Seller,
certain of such existing and future payment obligations arising or acquired
from time to time;
WHEREAS, the Purchaser desires to transfer and assign its interest in
such payment obligations to __________________ Trust __ (the "Issuer")
pursuant to the Trust Sale and Servicing Agreement;
WHEREAS, the Issuer desires to issue the Initial Securities to fund
its acquisition of such payment obligations;
WHEREAS, the Purchaser, the Issuer and the Original Seller (as the
holder of such payment obligations not sold to the Purchaser hereunder)
desire that the Servicer shall service such payment obligations; and
WHEREAS, the Servicer is willing to service such payment obligations
and related payment obligations in accordance with the terms hereof and of
the Trust Sale and Servicing Agreement for the benefit of the Purchaser,
the Original Seller, the Issuer and each other party identified or
described herein or in the Trust Sale and Servicing Agreement as having an
interest therein as owner, trustee, secured party or holder of the
Securities (all such parties being collectively referred to herein as
"Interested Parties").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Certain capitalized terms used in the above
recitals and in this Agreement are defined in and shall have the respective
meanings assigned them in Part I of Appendix A to this Agreement. All
references herein to "the Agreement" or "this Agreement" are to this
Pooling and Servicing Agreement as it may be amended, supplemented or
modified from time to time, and all references herein to Articles, Sections
and subsections are to Articles, Sections or subsections of this Agreement
unless otherwise specified. The rules of construction set forth in Part II
of such Appendix A shall be applicable to this Agreement.
ARTICLE II
PURCHASE AND SALE OF ELIGIBLE RECEIVABLES
Section 2.01 Purchase and Sale of Eligible Receivables.
(a) By execution of this Agreement, on the Initial Closing Date, the
Original Seller does hereby sell, transfer, assign and otherwise convey to
the Purchaser, without recourse, all of its right, title and interest in,
to and under all of the Eligible Receivables existing in the Accounts
listed on the Schedule of Accounts (which is kept at locations listed in
Exhibit A) as of the close of business on the Initial Cut-Off Date and all
monies due or to become due thereon after the Initial Cut-Off Date, all
Collateral Security with respect thereto and all amounts received with
respect thereto (including all Interest Collections received in the
calendar month in which the Initial Cut-Off Date occurs, whether or not
received prior to the Initial Cut-Off Date) and all proceeds thereof
(including "proceeds" as defined in Section 9-102 of the UCC and
Recoveries)
(b) Subject to Section 6.02, as of each Receivables Purchase Date, the
Original Seller does hereby sell, transfer, assign and otherwise convey to
the Purchaser, without recourse, all of its right, title and interest in,
to and under all Eligible Receivables created or deemed created in the
Accounts in the Pool of Accounts on such date and all monies due or to
become due thereon after such date, all Collateral Security with respect
thereto and all amounts received with respect thereto and all proceeds
thereof (including "proceeds" as defined in Section 9-102 of the UCC and
Recoveries).
(c) It is the intention of the Original Seller and the Purchaser that
the transfers and assignments contemplated by this Agreement shall
constitute sales of the property described in Sections 2.01(a) and (b) from
the Original Seller to the Purchaser and that the beneficial interest in
and title to such property shall not be part of the Original Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Original Seller under any Insolvency Law. The foregoing sales,
transfers, assignments and conveyances and any subsequent sales, transfers,
assignments and conveyances contemplated hereby do not constitute, and are
not intended to result in, the creation or an assumption by the Purchaser
of any obligation of the Servicer, the Original Seller (if the Original
Seller is not the Servicer), _______________ or any other Person in
connection with the Receivables described above or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
(d) Subject to Section 2.06 and Article III hereof, the Original
Seller shall retain all right, title and interest in, to and under the
Receivables in the Accounts in the Pool of Accounts that the Original
Seller has not transferred to the Purchaser hereunder. Such Receivables,
together with any Receivables repurchased by the Original Seller or (so
long as the Original Seller is the Servicer) the Servicer from the
Purchaser or the Trust pursuant to this Agreement or the Trust Sale and
Servicing Agreement, all monies due or to become due on such Receivables,
all amounts received with respect thereto and all proceeds thereof
(including "proceeds" as defined in Section 9-102 of the UCC and
Recoveries) are collectively referred to herein as the "Retained Property".
Section 2.02 Purchase Price. On the Initial Closing Date, in
consideration for the sale of the property described in Section 2.01(a) to
the Purchaser, the Purchaser shall pay to the Original Seller
$_____________ (representing the aggregate principal balance of the
Eligible Receivables as of the close of business on the Initial Cut-Off
Date so sold on the Initial Closing Date) in immediately available funds,
and the Original Seller shall deliver to the Purchaser an executed
assignment substantially in the form of Exhibit B hereto. The Purchaser
shall pay, subject to Section 6.02, for property described in Section 2.03
sold by the Original Seller to the Purchaser on each Addition Date and
property described in Section 2.01(b) sold by the Original Seller to the
Purchaser on each Receivables Purchase Date, a price equal to the principal
balance of the Eligible Receivables to be purchased on each such date. Such
purchase price shall be payable by the Purchaser on each such date in
immediately available funds.
Section 2.03 Addition of Accounts.
(a) Offers to Designate Additional Accounts. From time to time, the
Original Seller may, at its option, offer to designate and the Purchaser
may, at its option, request the designation of, one or more Accounts (each,
an "Additional Account") to be included as Accounts in the Pool of
Accounts, subject to the conditions specified in Section 2.03(b) below. If
the Purchaser, at its option, elects to accept any such offer by the
Original Seller or if the Original Seller, at its option, agrees to any
such request of the Purchaser, the Original Seller shall sell and assign to
the Purchaser, and the Purchaser shall purchase from the Original Seller,
all of the Original Seller's right, title and interest in, to and under all
of the Eligible Receivables in each such Additional Account as of the
related Additional Cut-Off Date and all monies due or to become due thereon
after such date, all Collateral Security with respect thereto, all amounts
received with respect thereto and all proceeds thereof (including
"proceeds" as defined in Section 9-102 of the UCC and Recoveries),
effective as of the Addition Date specified in a written notice provided by
the Servicer, on behalf of the Original Seller, to the Purchaser (the "the
Original Seller Addition Notice"). Effective as of each such Addition Date,
such Additional Account shall be included in the Pool of Accounts and
Eligible Receivables arising therein from and after the Additional Cut-Off
Date shall be subject to purchase under Section 2.01(b) above. Each the
Original Seller Addition Notice shall specify the related Additional
Cut-Off Date and shall be given (with a copy to the Rating Agencies) on or
before the fifth Business Day but not more than 30 days prior to the
related Addition Date.
(b) Conditions. the Original Seller shall be permitted to designate,
and the Purchaser shall be permitted to accept the designation of,
Additional Accounts, in accordance with Section 2.03(a) only upon
satisfaction of each of the following conditions on or prior to the related
Addition Date:
(i) the Original Seller shall represent that as of the related
Additional Cut-Off Date each such Additional Account is an Eligible Account
and that each Receivable arising thereunder identified as an Eligible
Receivable and conveyed to the Purchaser on such Addition Date is an
Eligible Receivable;
(ii) the Original Seller shall have delivered to the Purchaser a duly
executed written assignment in substantially the form of Exhibit C and the
list required to be delivered pursuant to Section 7.02(d);
(iii) the Original Seller shall have agreed to deliver to the
Purchaser, for deposit in the Collection Account, to the extent required by
the Trust Sale and Servicing Agreement, all Collections with respect to the
Eligible Receivables arising in such Additional Accounts since the
Additional Cut-Off Date within two Business Days after such Addition Date;
(iv) as of the Addition Date, neither the Original Seller nor the
Purchaser is insolvent nor shall any of them have been made insolvent by
such transfer nor is either of them aware of any pending insolvency;
(v) the Schedule of Accounts shall have been amended to reflect such
Additional Accounts and the Schedule of Accounts as so amended shall be
true and correct as of the Addition Date;
(vi) the Original Seller shall have delivered to the Purchaser a
certificate of an Authorized Officer of the Original Seller confirming the
items set forth in clauses (i) through (v) above;
(vii) the conditions set forth in Section 2.7(b) of the Trust Sale and
Servicing Agreement shall have been satisfied; and
(viii) the Original Seller shall have delivered to the Purchaser an
Opinion of Counsel of the Original Seller substantially in the form of
Exhibit D.
Section 2.04 Optional Removal of Accounts. From time to time, the
Original Seller may, at its option, request from the Purchaser, and the
Purchaser may, at its option, offer to the Original Seller, the right to
designate an Account for removal from the Pool of Accounts. Subject to the
satisfaction by the Purchaser of the conditions set forth in Section 2.8 of
the Trust Sale and Servicing Agreement, the Original Seller, at its option,
may accept offers to designate an Account for removal or request from the
Purchaser the right to designate an Account for removal by furnishing a
written notice (the "the Original Seller Removal Notice") to the Purchaser
not less than five Business Days but not more than 30 days prior to the
Removal Commencement Date. On and after the Removal Commencement Date with
respect to a Selected Account, the Original Seller shall not transfer
Receivables with respect to such Selected Account to the Purchaser. The
Schedule of Accounts shall be amended to reflect such designation as of the
Removal Commencement Date and to reflect such Account becoming a Removed
Account as of the Removal Date. At any time after the Removal Date, at the
written request of the Original Seller, the Purchaser shall assign to the
Original Seller, without recourse, representation or warranty, effective as
of the Removal Date, all of the Purchaser's right, title and interest in,
to and under the Receivables arising in such Account and related Collateral
Security.
Section 2.05 Removal of Ineligible Accounts. If at any time an Account
shall be deemed a Selected Account as described in Section 2.9 of the Trust
Sale and Servicing Agreement, the Purchaser shall give notice thereof to
the Original Seller at the time it gives notice to the parties identified
in such Section 2.9. From and after the Removal Commencement Date with
respect to a Selected Account pursuant to such Section 2.9, the Original
Seller shall not transfer Receivables with respect to such Selected Account
to the Purchaser. The Schedule of Accounts shall be amended to reflect such
designation as of the Removal Commencement Date and to reflect such Account
becoming a Removed Account as of the Removal Date. At any time after such
removal, at the written request of the Original Seller, the Purchaser shall
assign to the Original Seller, without recourse, representation or
warranty, effective as of the Removal Date, all of the Purchaser's right,
title and interest in, to and under the Receivables in such Account and
related Collateral Security.
Section 2.06 Custody of Documentation. In connection with the sale,
transfer, assignment and conveyance of the Receivables and related
Collateral Security in the Accounts in the Pool of Accounts to the
Purchaser hereunder, the Purchaser is executing simultaneously herewith the
Custodian Agreement with the Custodian, pursuant to which the Purchaser
shall revocably appoint the Custodian to act as agent of the Purchaser to
maintain custody of the documents and instruments (as more fully described
in the Custodian Agreement) associated with such Receivables, which shall
be constructively delivered to the Purchaser. the Original Seller, as the
holder of the Retained Property, hereby consents to the appointment of the
Custodian to act as agent of the Original Seller to maintain custody of the
documents and contracts (as more fully described in the Custodian
Agreement) associated with the Receivables included therein and is
simultaneously herewith executing the Custodian Agreement. The Custodian
has accepted such appointment by the Purchaser and the Original Seller
under the Custodian Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01 Appointment of Servicer and Acceptance of Appointment.
The Purchaser and the Original Seller hereby appoint the Servicer to act as
Servicer with respect to the Eligible Receivables and the Receivables
included in the Retained Property, existing in or arising under the
Accounts included in the Pool of Accounts from time to time and authorize
the Servicer to perform the duties of Servicer under this Agreement and
under the Trust Sale and Servicing Agreement. The Servicer by execution of
this Agreement and by execution of the Trust Sale and Servicing Agreement
hereby accepts such appointment and the terms hereof and thereof.
Section 3.02 Rights and Duties of the Servicer.
(a) The Servicer shall manage, service and administer the Receivables
described in Section 3.01, including, without limitation, collecting
payments due under the Receivables and providing for charge-offs of
uncollectible Receivables, with reasonable care and all in accordance with
the Servicer's customary and usual servicing procedures for servicing
wholesale receivables comparable to the Receivables which the Servicer
services for its own account, including the Floor Plan Financing
Guidelines, except insofar as any failure to do so would not have a
material adverse effect on the interests of Securityholders. The Servicer
shall have full power and authority, acting alone or through any party
properly designated by it hereunder or under the Trust Sale and Servicing
Agreement, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable, including
monitoring the insurance maintained by Dealers. The Servicer is hereby
authorized to commence, in its own name or in the name of any Interested
Party, a Proceeding to enforce any Receivable subject hereto, to enforce
all obligations of the Original Seller and the Purchaser under this
Agreement and under the Trust Sale and Servicing Agreement or to commence
or participate in a Proceeding (including without limitation a bankruptcy
proceeding) relating to or involving any such Receivable. If in any
Proceeding it is held that the Servicer may not enforce a Receivable
arising under an Account in the Pool of Accounts on the ground that it is
not a real party in interest or a holder entitled to enforce such
Receivable, the Purchaser, the Original Seller and each other Interested
Party shall, at the Servicer's expense, take such steps as the Servicer
reasonably deems necessary or appropriate to enforce the Receivable,
including bringing suit in the name of such Person. If the Servicer
commences or participates in such a Proceeding in its own name, each
Interested Party shall thereupon be deemed to have automatically assigned
such Receivable to the Servicer for purposes of commencing or participating
in any such Proceeding as a party or claimant, and the Servicer is hereby
authorized and empowered to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such Proceeding. Each
Interested Party shall furnish the Servicer with any powers of attorney and
other documents and take any other steps which the Servicer may reasonably
deem necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement and the Trust Sale
and Servicing Agreement. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Servicer in this Section
3.02 shall be nonexclusive and shall not be construed to be in derogation
of the retention by any Interested Party (to the extent of its rights in a
Receivable) of equivalent authority and rights. Without limiting the
generality of the foregoing and subject to any Servicing Default, the
Servicer is hereby authorized and empowered, unless such power and
authority is revoked by any Interested Party on account of the occurrence
of such a Servicing Default, to:
(i) instruct the Issuer to make allocations, withdrawals and
payments to or from the Collection Account, the Distribution Accounts,
the Reserve Fund, the Cash Accumulation Reserve Funds and any other
related bank accounts or funds as set forth in the Trust Sale and
Servicing Agreement;
(ii) instruct the Issuer or any Interested Party to take any
action required or permitted under any Specified Support Arrangement;
(iii) execute and deliver, on behalf of the Issuer for the
benefit of any related Securityholders, any and all instruments of
satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the
Receivables and, after the delinquency of any Receivable and to the
extent permitted under and in compliance with applicable requirements
of law, to commence enforcement proceedings with respect to any such
Receivable; and
(iv) make any filings, reports, notices, applications,
registrations with, and seek any consents or authorizations from, the
U.S. Securities and Exchange Commission and any State securities
authority on behalf of the Issuer as may be necessary or advisable to
comply with any U.S. federal or State securities law or reporting
requirement.
(b) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables in
the Accounts in the Pool of Accounts from the procedures, offices,
employees and accounts used by the Servicer in connection with servicing
other receivables. The Servicer shall, at its own expense, on or prior to
the Initial Closing Date, in the case of the Initial Accounts, and on or
prior to the applicable Addition Date, in the case of Additional Accounts,
indicate in its computer files that the Eligible Receivables in the
Accounts in the Pool of Accounts have been sold and transferred by the
Original Seller to the Purchaser hereunder and by the Purchaser to the
Trust under the Trust Sale and Servicing Agreement.
(c) Except as otherwise required to comply with all Requirements of
Law, the Servicer may change the terms and provisions of the Floor Plan
Financing Agreements or the Floor Plan Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and
the rate of the finance charge assessed thereon), only if:
(i) in the reasonable belief of the Servicer, no Early
Amortization Event shall occur as a result of such change;
(ii) such change is made applicable to the comparable segment of
any similar portfolio of accounts serviced by the Servicer and not
only to the Accounts in the Pool of Accounts; and
(iii) in the case of a reduction in the rate of such finance
charges, the Servicer (and, if the Original Seller is not then the
Servicer, the Original Seller) does not reasonably expect any such
reduction, after considering amounts due and amounts payable under any
Specified Support Agreements and Investment Proceeds for the related
period, to result in the Net Receivables Rate for any Collection
Period being less than the sum of: (A) the weighted average of the
rates of interest payable to all holders of Securities and (B) the
Monthly Servicing Fee for the related period; provided, however, that
nothing herein shall prevent the Servicer from modifying the terms of
the Floor Plan Financing Agreement with any dealer on a case-by-case
basis in a manner consistent with the Floor Plan Financing Guidelines.
Section 3.03 Servicing Compensation; Payment of Certain Expenses by
the Servicer. The Servicer is entitled to receive the Monthly Servicing Fee
as described in the Trust Sale and Servicing Agreement. The Monthly
Servicing Fee shall be payable to the Servicer solely to the extent amounts
are available for payment in accordance with the terms of the Trust Sale
and Servicing Agreement. Subject to any limitations on the Servicer's
liability under the Trust Sale and Servicing Agreement, the Servicer shall
be required to pay all expenses incurred by it in connection with its
activities under this Agreement and the Trust Sale and Servicing Agreement
(including disbursements of the Issuer, fees and disbursements of any
trustees, accountants and outside auditors, taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports to
Securityholders and all other fees and expenses not expressly stated under
this Agreement or the Trust Sale and Servicing Agreement to be for the
account of the Securityholders, but in no event including federal, State
and local income and franchise taxes, if any, of the Issuer or any holder
of the Securities).
Section 3.04 Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby makes, and any successor Servicer by its
appointment under this Agreement and under the Trust Sale and Servicing
Agreement shall make, on each Closing Date (and on the date of any such
appointment) the following representations, warranties and covenants on
which the Purchaser relies in accepting and holding the Receivables and the
related Collateral Security hereunder and the Issuer shall rely in
acquiring and holding such Receivables and the related Collateral Security
under the Trust Sale and Servicing Agreement and in issuing the Securities:
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of [Delaware] (or, in the case of a
Servicer other than the Original Seller, other applicable law of its
jurisdiction of incorporation), with power and authority to own its
properties and to conduct its businesses as such properties are
presently owned and such businesses are presently conducted.
(ii) Due Qualification. The Servicer is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its businesses requires such qualification, except where
the failure to so qualify or obtain licenses or approvals would not
have material adverse effect on its ability to perform its obligations
under this Agreement.
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and the Trust Sale and
Servicing Agreement, to carry out the terms of each such agreement and
to service the Accounts in the Pool of Accounts and the Receivables
arising therein as provided herein and in the Trust Sale and Servicing
Agreement, and the execution, delivery and performance of this
Agreement and the Trust Sale and Servicing Agreement have been duly
authorized by the Servicer by all necessary corporate action on the
part of the Servicer.
(iv) Binding Obligation. This Agreement constitutes, and the
Trust Sale and Servicing Agreement, when duly executed and delivered
by the Servicer, shall constitute, the legal, valid and binding
obligation of the Servicer enforceable in accordance with their
respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the enforcement of
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.
(v) No Violation. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement and
the Trust Sale and Servicing Agreement by the Servicer and the
fulfillment of the terms of this Agreement and the Trust Sale and
Servicing Agreement by the Servicer, shall 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 by-laws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Servicer 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, mortgage, deed
of trust or other instrument (other than pursuant to the Basic
Documents), or violate any law or, to the best of the Servicer's
knowledge, any order, rule or regulation applicable to the Servicer of
any Governmental Authority having jurisdiction over the Servicer or
any of its properties, except where any such conflict or violation
would not have a material adverse effect on its ability to perform its
obligations under this Agreement or the Trust Sale and Servicing
Agreement.
(vi) No Proceedings. To the Servicer's knowledge, there are no
Proceedings or investigations pending, or threatened, against the
Servicer before any Governmental Authority having jurisdiction over
the Servicer or its properties: (A) asserting the invalidity of this
Agreement or the Trust Sale and Servicing Agreement or any Securities
issued thereunder, (B) seeking to prevent the issuance of the such
Securities, the execution of this Agreement or the consummation of any
of the transactions contemplated by this Agreement or the Trust Sale
and Servicing Agreement or (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity and enforceability
of, this Agreement or the Trust Sale and Servicing Agreement.
(vii) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with the Receivables and the Accounts to be serviced under
this Agreement and the Trust Sale and Servicing Agreement, shall
maintain in effect all qualifications required under Requirements of
Law in order to service properly such Receivables and such Accounts
and shall comply in all material respects with all Requirements of Law
in connection with servicing such Receivables and such Accounts,
except, in each case, where a failure to do so would not have a
material adverse effect on the interests of the Securityholders.
(viii) No Rescission or Cancellation. Except pursuant to the
Floor Plan Financing Guidelines, the Servicer shall not permit any
rescission or cancellation of any Receivable sold and assigned to the
Purchaser hereunder that the Servicer services under this Agreement
and the Trust Sale and Servicing Agreement, except as ordered by a
court of competent jurisdiction or other Governmental Authority.
(ix) Protection of Interested Party Rights. The Servicer shall
take no action, nor omit to take any action, which would impair the
rights or interests of Interested Parties in the Receivables sold and
assigned to the Purchaser hereunder that the Servicer services under
this Agreement and the Trust Sale and Servicing Agreement or in the
related Vehicle Collateral Security nor shall it reschedule, revise or
defer payments due on any such Receivable except, in each case, in a
manner consistent with the Floor Plan Financing Guidelines or as
otherwise contemplated herein or in the Trust Sale and Servicing
Agreement. The Servicer shall not permit any such Receivable to become
subject to any right of set-off or any offsetting balance.
(x) Negative Pledge. Except for the conveyances hereunder to the
Issuer pursuant to the Trust Sale and Servicing Agreement and the
pledge of the Trust Estate to the Indenture Trustee pursuant to the
Indenture, and as provided in Section 6.03, the Servicer shall not
sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist, any Lien on any Receivable
sold and assigned to the Purchaser hereunder (and any related
Collateral Security), whether now existing or hereafter created, or
any interest therein, and the Servicer shall defend the right, title
and interest of the Purchaser, the Issuer and any Interested Party in,
to and under such property, whether now existing or hereafter created,
against all claims of third parties claiming through or under the
Purchaser or the Servicer. The Servicer shall notify the Purchaser
promptly after becoming aware of any Lien on such property other than
the conveyances hereunder or under the Trust Sale and Servicing
Agreement or the Indenture.
(b) Notice of Breach. Upon discovery by the Purchaser or the Servicer
of a breach of any of the representations, warranties and covenants set
forth in this Section 3.04, the party discovering such breach shall give
prompt written notice to the other party.
(c) Purchase of Receivables. If any covenants of the Servicer under
Section 3.04(a)(viii), (ix) or (x) has not been complied with in all
material respects with respect to any Eligible Receivable or Account in the
Pool of Accounts and such noncompliance has a material adverse effect on
the interests of Securityholders or any other Interested Parties in such
Receivable or such Account, the Servicer shall purchase such Receivable
(or, in the case of a breach affecting less than the entire principal
amount of a Receivable, to the extent of the breach) or all Eligible
Receivables under such Account (each, an "Administrative Receivable") from
the Issuer, on the terms and conditions set forth in this Section 3.04.
(d) Payment of Purchase Price. The Servicer shall purchase each
Administrative Receivable no later than two Business Days (or such other
period as may be agreed by the Applicable Trustee) following discovery by
the Servicer (including through the receipt of notice thereof) of the event
giving rise to such Administrative Receivable by depositing in the
Collection Account, on the date on which such purchase is deemed to occur,
an amount (in immediately available funds) equal to the principal amount of
such Receivable plus accrued and unpaid interest thereon through the date
of purchase. The amount so deposited with respect to a Receivable (an
"Administrative Purchase Payment") shall be included in Trust Principal
Collections (to the extent of the principal amount of such Receivable) and
Interest Collections (as to the remainder of such amount) on such date and
shall be applied in accordance with the terms of this Agreement and the
Trust Sale and Servicing Agreement.
(e) Sole Remedy. The obligation of the Servicer to purchase
Receivables as described in this Section 3.04, and to make the deposits
required to be made to the Collection Account as provided in the preceding
paragraph, shall constitute the sole remedy respecting the event giving
rise to such obligation available to any Securityholders, the Purchaser,
the Owner Trustee, the Indenture Trustee or the Issuer.
Section 3.05 Servicer's Accounting and Reports.
(a) On or before each Determination Date, the Servicer shall deliver
to the Purchaser, the Owner Trustee, the Indenture Trustee and the Rating
Agencies a Servicer's Accounting with respect to the immediately preceding
Collection Period executed by an Authorized Officer of the Servicer
containing all information necessary for making the allocations, deposits
and distributions required by the Trust Sale and Servicing Agreement, the
Trust Agreement and the Indenture on the related Distribution Date, and all
information necessary to each such party for sending any statements
required to be sent to Securityholders with respect to such Distribution
Date under the Trust Sale and Servicing Agreement.
(b) On each Business Day, the Servicer shall deliver to the Indenture
Trustee a Servicer's Accounting executed by an Authorized Officer of the
Servicer: (i) containing the Daily Trust Balance, the Daily Trust Invested
Amount and all related amounts to the extent necessary to determine the
Cash Collateral Amount for such date as described in Section 4.5(d) of the
Trust Sale and Servicing Agreement and (ii) if any series or class of
Securities is then in a Payment Period, Cash Accumulation Period or Rapid
Amortization Period, or if the Trust is then in an Early Amortization
Period or a Wind-Down period, containing such instructions and computations
as are necessary to effect the allocation and application of Principal
Collections and other Available Trust Principal on such day.
(c) At any time that the Original Seller does not have a long-term
rating of at least BBB- from Standard & Poor's and at least Baa3 from
Moody's, the Servicer shall identify on a daily basis all Eligible
Receivables and, on or before each Determination Date, the Servicer shall
deliver to the Owner Trustee a list identifying all Eligible Receivables as
of the last day of the related Collection Period.
Section 3.06 Pre-Closing Collections. Within two Business Days after
the Initial Closing Date, the Original Seller shall deliver to the
Purchaser all collections on the Receivables in the Accounts in the Pool of
Accounts held by the Original Seller on the Initial Closing Date to the
extent such collections would be required to be on deposit on such date if
this Agreement and the Trust Sale and Servicing Agreement had been in
effect from and after the Initial Cut-Off Date and the Revolving Period had
commenced on such date. The Purchaser hereby directs the Original Seller to
deposit such amount on its behalf into the Collection Account.
Section 3.07 Collections Received by the Original Seller. The Original
Seller hereby agrees to deliver all Collections on the Receivables in the
Accounts in the Pool of Accounts received by the Original Seller from or on
behalf of Dealers to the Servicer and consents to the application,
allocation and distribution thereof in accordance with the terms and
provisions of this Agreement and the Trust Sale and Servicing Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.01 Representations and Warranties of the Original Seller
Relating to the Accounts and the Receivables.
(a) Representations and Warranties. As of the dates set forth below,
the Original Seller makes the following representations and warranties to
the Purchaser as to the Accounts in the Pool of Accounts and the
Receivables sold to the Purchaser hereunder, on which the Purchaser relies
in accepting such Receivables:
(i) as of the Initial Cut-Off Date, each Account included in the
Pool of Accounts is an Eligible Account;
(ii) as of the Initial Cut-Off Date, each Receivable that is
identified as an Eligible Receivable and conveyed to the Purchaser on
the Initial Closing Date is an Eligible Receivable;
(iii) as of each Additional Cut-Off Date, each related Additional
Account is an Eligible Account and each Receivable arising thereunder
that is identified as an Eligible Receivable and conveyed to the
Purchaser on the related Addition Date is an Eligible Receivable; and
(iv) as of each date that Receivables are sold and transferred
hereunder pursuant to Section 2.01(b), each Receivable that is
identified as an Eligible Receivable and so conveyed to the Purchaser
on such date is an Eligible Receivable.
(b) Survival; Notice of Breach. The representations and warranties set
forth in this Section 4.01 shall survive the transfer and assignment of the
Eligible Receivables in the Accounts in the Pool of Accounts and related
items to the Purchaser from time to time and the subsequent assignment and
transfer of its interests therein to the Issuer pursuant to the Trust Sale
and Servicing Agreement. Upon discovery by the Original Seller or the
Purchaser of a breach of any of the representations and warranties set
forth in this Section 4.01, the party discovering such breach shall give
prompt written notice to the other party.
(c) Repurchase. The Original Seller acknowledges that the Purchaser
shall assign its rights and remedies hereunder with respect to the Eligible
Receivables arising in the Accounts in the Pool of Accounts to the Issuer
under the Trust Sale and Servicing Agreement. The Original Seller hereby
covenants and agrees with the Purchaser that: (i) in the event of a breach
of any of the Original Seller's representations and warranties contained in
Section 4.01(a) with respect to any Receivable or with respect to any
Account that materially and adversely affects the interests of the
Purchaser or the Trust in any Receivable or (ii) in the event that the
payment of all or a portion of the principal amount of any Receivable held
by the Purchaser or the Trust is deferred pursuant to [ ] or any other
installment sales program or similar arrangement, unless and to the extent
such breach or deferral shall have been cured in all material respects, the
Original Seller shall repurchase the interest of the Issuer in such
Receivable (to the extent of such breach or deferral) on the date and for
the amount specified in Section 2.5 of the Trust Sale and Servicing
Agreement, without further notice from the Purchaser hereunder and without
any representation, warranty or recourse from the Purchaser or the Issuer.
Without limiting the generality of the foregoing, a Receivable shall not be
an Eligible Receivable, and thus shall be subject to repurchase, if and to
the extent that: (A) the Servicer adjusts downward the principal amount of
such Receivable because of a rebate, refund, credit adjustment or billing
error to the related Dealer or (B) such Receivable was created in respect
of a Vehicle which was refused or returned by the related Dealer.
(d) Sole Remedy. The obligation of the Original Seller to repurchase
any Receivable shall constitute the sole remedy respecting the event giving
rise to such obligation available to the Purchaser and to any Interested
Party.
Section 4.02 Representations and Warranties of the Original Seller
Relating to the Original Seller and the Agreement.
(a) Representations and Warranties. The Original Seller, in its
capacity as seller, hereby makes as of each Closing Date the following
representations and warranties on which the Purchaser relies. The following
representations and warranties shall survive the sale, transfer and
assignment of the Receivables hereunder:
(i) Organization and Good Standing. The Original Seller has been
duly organized and is validly existing as a [ ] in good standing under
the laws of the State of [ ], with power and authority to own its
properties and to conduct its businesses as such properties are
presently owned and such businesses are presently conducted;
(ii) Due Qualification. The Original Seller is duly qualified to
do business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction in which the
conduct of its businesses requires such qualification, except where
the failure to so qualify or obtain licenses or approvals would not
have a material adverse effect on its ability to perform its
obligations under this Agreement;
(iii) Power and Authority. The Original Seller has the power and
authority to execute and deliver this Agreement, to carry out its
terms, and to consummate the transactions contemplated herein, and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been duly
authorized by the Original Seller by all necessary corporate action on
the part of the Original Seller;
(iv) No Violation. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms of this Agreement by the Original Seller
shall 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 by-laws of the
Original Seller, or any indenture, agreement, mortgage, deed of trust
or other instrument to which the Original 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, mortgage, deed of trust or other instrument
(other than pursuant to the Basic Documents) or violate any law or, to
the best of the Original Seller knowledge, any order, rule or
regulation applicable to the Original Seller of any Governmental
Authority having jurisdiction over the Original Seller or any of its
properties, except where any such conflict or violation would not have
a material adverse effect on its ability to perform its obligations
with respect to the Purchaser or any Interested Party under this
Agreement or the Trust Sale and Servicing Agreement;
(v) No Proceedings. To the Original Seller knowledge, there are
no Proceedings or investigations pending, or threatened, against the
Original Seller before any Governmental Authority having jurisdiction
over the Original Seller or its properties: (A) asserting the
invalidity of this Agreement, the Trust Sale and Servicing Agreement,
the Custodian Agreement or the Administration Agreement, (B) seeking
to prevent the execution of this Agreement or the consummation of any
of the transactions contemplated by this Agreement, the Trust Sale and
Servicing Agreement, the Custodian Agreement or the Administration
Agreement or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Original Seller
of its obligations under, or the validity or enforceability of, this
Agreement, the Trust Sale and Servicing Agreement, the Custodian
Agreement or the Administration Agreement;
(vi) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Original Seller, enforceable
against the Original Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of 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;
(vii) Record of Accounts. The Schedule of Accounts is an accurate
and complete listing in all material respects of all of the Accounts
in the Pool of Accounts as of the Initial Cut-Off Date or the
applicable Additional Cut-Off Date, as the case may be, and the
information contained therein with respect to the identity of such
Accounts is true and correct in all material respects; and
(viii) Valid Sale. With respect to the Initial Accounts, this
Agreement and the related assignment to be delivered on the Initial
Closing Date or, in the case of Additional Accounts, the related
assignment as described in Section 2.03(b), when duly executed and
delivered, shall constitute a valid sale, transfer and assignment to
the Purchaser of all right, title and interest of the Original Seller
in, to and under the Eligible Receivables thereunder and the related
Vehicle Collateral Security, whether then existing or thereafter
created, and the proceeds thereof, enforceable against creditors of
and purchasers from the Original Seller. To the extent such filings
are required therefor, upon the filing of the financing statements
described in Section 7.02(a) (and, in the case of Eligible Receivables
hereafter created in the Accounts in the Pool of Accounts and the
proceeds thereof, upon the creation thereof) the Purchaser shall have
a first priority perfected ownership interest in such property, except
for Liens permitted under Section 4.04(a). Except as otherwise
provided in the Trust Sale and Servicing Agreement or this Agreement,
neither the Original Seller nor any Person claiming through or under
the Original Seller has any claim to or interest in the Trust Estate.
(b) Survival; Notice of Breach. The representations and warranties set
forth in this Section 4.02 shall survive the transfer and assignment of the
Receivables and related items to the Purchaser hereunder and the subsequent
assignment and transfer of its interests therein to the Issuer pursuant to
the Trust Sale and Servicing Agreement. Upon discovery by the Original
Seller or the Purchaser 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.
(c) Repurchase. If: (i) the Purchaser is required to purchase
Receivables and related Collateral Security pursuant to Section 3.1(c) of
the Trust Sale and Servicing Agreement and (ii) the condition giving rise
to such purchase obligation shall also constitute a breach of a
representation or warranty pursuant to Section 4.02(a), the Original Seller
shall repurchase such Receivables and such Collateral Security and shall
pay to the Purchaser, prior to the time the Purchaser is required to pay
such amount pursuant to the Trust Sale and Servicing Agreement, an amount
equal to the Reassignment Amount.
(d) Sole Remedy. The obligation of the Original Seller to purchase
such Receivables and such Collateral Security pursuant to this Section 4.02
shall constitute the sole remedy available to the Purchaser and to any
Interested Party against the Original Seller respecting the event giving
rise to such obligation.
Section 4.03 Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Original Seller as of each
Closing Date that:
(a) Organization and Good Standing. The Purchaser has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of [ ], with power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted, and had at all relevant
times, and now has, power, authority and legal right to acquire and own the
Eligible Receivables arising in the Accounts in the Pool of Accounts and
the Collateral Security related thereto;
(b) Due Qualification. The Purchaser is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) 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 requires such qualification, except where
the failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations under
this Agreement;
(c) Power and Authority. The Purchaser has the power and authority to
execute and deliver this Agreement, to carry out its terms and to
consummate the transactions contemplated herein, and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by the Purchaser
by all necessary corporate action on the part of the Purchaser;
(d) No Violation. The execution of this Agreement and the consummation
of the transactions contemplated by this Agreement by the Purchaser and the
fulfillment of the terms of this Agreement by the Purchaser shall 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 certificate of incorporation or by-laws of the Purchaser, or any
indenture, agreement, mortgage, deed of trust or other instrument to which
the Purchaser 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, mortgage, deed of trust or other
instrument (other than pursuant to the Basic Documents), or violate any law
or, to the best of the Purchaser's knowledge, any order, rule or regulation
applicable to the Purchaser of any Governmental Authority having
jurisdiction over the Purchaser or any of its properties, except where any
such conflict or violation would not have a material adverse effect on its
ability to perform its obligations with respect to the Original Seller or
any Interested Party under this Agreement or the Trust Sale and Servicing
Agreement;
(e) No Proceedings. To the Purchaser's knowledge, there are no
Proceedings or investigations pending, or threatened, against the Purchaser
before any Governmental Authority having jurisdiction over the Purchaser or
its properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the execution of this Agreement or the consummation of
any of the transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement; and
(f) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and by general principles or equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
Section 4.04 Covenants of the Original Seller. The Original Seller
hereby covenants that:
(a) Negative Pledge. Except for the conveyances hereunder and under
the Trust Sale and Servicing Agreement and the pledge of the Trust Estate
to the Indenture Trustee under the Indenture and as provided in Section
6.03, the Original Seller shall not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist, any Lien
on any Eligible Receivable in any Account in the Pool of Accounts (and any
related Vehicle Collateral Security), whether now existing or hereafter
created, or any interest therein, and the Original Seller shall defend the
right, title and interest of the Purchaser and any Interested Party in, to
and under such property, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Original Seller.
The Original Seller shall notify the Purchaser and the Issuer promptly
after becoming aware of any Lien on any such property other than the
conveyances hereunder or under the Trust Sale and Servicing Agreement or
the Indenture. Nothing herein shall prohibit the Original Seller from
granting, creating, incurring or suffering to exist any Lien on all or any
portion of the Retained Property.
(b) Delivery of Collections. All payments received by the Original
Seller from or on behalf of a Dealer in respect of Receivables in any
Accounts in the Pool of Accounts or any Collateral Security (except as
contemplated in Section 6.03 with respect to any property constituting
Common Collateral that is not Vehicle Collateral Security in connection
with any Other Indebtedness) shall be received by the Original Seller in
its capacity as Servicer, unless the Original Seller is no longer the
Servicer, in which case the Original Seller shall deliver all such payments
to the Servicer as soon as practicable after receipt thereof, but in no
event later than two Business Days after receipt thereof.
(c) Compliance with Requirements of Law. The Original Seller shall
comply in all material respects with all Requirements of Law applicable to
the Original Seller, except where any such failure to comply would not have
a material adverse effect on its ability to perform its obligations under
this Agreement.
(d) No Petition. Neither the Servicer nor the Original Seller shall at
any time institute against the Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or State bankruptcy or similar law.
ARTICLE V
CERTAIN MATTERS RELATING TO ORIGINAL SELLER
Section 5.01 Merger or Consolidation of, or Assumption of the
Obligations of, the Original Seller.
(a) Notwithstanding anything to the contrary in this Agreement, any
Person: (i) into which the Original Seller may be merged or consolidated,
(ii) resulting from any merger, conversion or consolidation to which the
Original Seller shall be a party, (iii) succeeding to the business of the
Original Seller or (iv) more than 50% of the voting interests of which is
owned, directly or indirectly, by _________________ and which is otherwise
originating receivables, which Person in any of the foregoing cases (other
than the Original Seller as the surviving entity of such merger or
consolidation) executes an agreement of assumption to perform every
obligation of the Original Seller, as seller, under this Agreement and the
Trust Sale and Servicing Agreement, shall be the successor to the Original
Seller under this Agreement, as seller, without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement or the Trust Sale and Servicing Agreement, anything in this
Agreement to the contrary notwithstanding.
(b) The Original Seller shall provide notice of any merger,
consolidation or succession pursuant to this Section 5.01 to the Rating
Agencies.
Section 5.02 The Original Seller Indemnification of the Purchaser. The
Original Seller shall indemnify the Purchaser for any liability as a result
of the failure of an Eligible Receivable sold hereunder to be originated in
compliance with all Requirements of Law. This indemnity obligation shall be
in addition to any obligation that the Original Seller may otherwise have.
Section 5.03 The Original Seller Acknowledgment of Transfers to the
Issuer. By its execution of the Trust Sale and Servicing Agreement, the
Original Seller acknowledges that the Purchaser shall, pursuant to the
Trust Sale and Servicing Agreement, transfer the Receivables purchased
hereunder and related Collateral Security to the Issuer and assign its
rights associated therewith under this Agreement to the Issuer, subject to
the terms and conditions of the Trust Sale and Servicing Agreement, and
that the Issuer shall in turn further pledge, assign or transfer its rights
in such property and this Agreement to the Indenture Trustee under the
Indenture. The Original Seller further acknowledges that the Purchaser
shall assign its rights under the Custodian Agreement to the Issuer.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.01 Additional Obligations of the Original Seller and the
Purchaser.
(a) Supplemental Principal Allocations. On or before the Business Day
prior to each Monthly Distribution Date for the Wind Down Period or an
Early Amortization Period or the Payment Period for the ______ Term Notes,
the Original Seller shall deposit into the Collection Account, on behalf of
the Purchaser, an amount equal to the Supplemental Principal Allocation for
such Monthly Distribution Date. Such amount shall be recorded as an advance
under the Intercompany Advance Agreement and shall bear interest and be
payable as provided therein.
(b) Removed Accounts. With respect to each Removed Account, if and to
the extent that any related Receivable held by the Trust on the related
Removal Commencement Date (determined without giving effect to the special
allocation of Principal Collections pursuant to Section 2.8(c) or Section
2.9(b), as applicable, of the Trust Sale and Servicing Agreement) is
charged-off as uncollectible at any time following the related Removal
Date, the Purchaser shall pay the amount so charged-off to the Original
Seller.
Section 6.02 Effect of Involuntary Case Involving the Original Seller.
(a) Suspension of Purchases. The Purchaser shall suspend the purchase
(and the Original Seller shall suspend the sale) of Receivables hereunder
if either party shall receive notice at its principal corporate office that
the Original Seller has become an involuntary party to (or has been made
the subject of) any proceeding provided for by any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Original Seller or relating to all or substantially all of
its property (an "Involuntary Case").
(b) Resumption of Purchases. Notwithstanding any cessation or
suspension of purchases pursuant to Section 6.02(a), if the Original Seller
or the Purchaser has obtained an order from the court having jurisdiction
over an Involuntary Case approving the continuation of the sale of
Receivables by the Original Seller to the Purchaser and/or approving the
sale of Receivables originating in the Accounts in the Pool of Accounts
since the date of the suspension of such sales on the same terms (including
Section 6.03 hereof) as, or on terms that do not have a material adverse
effect on Securityholders as compared to, the terms in effect prior to the
commencement of such Involuntary Case, and further providing that the
Purchaser and any of its transferees (including the Issuer) may rely on
such order for the validity and nonavoidance of such transfer (the
"Order"), the Purchaser may resume the purchase (and the Original Seller
may resume the sale) of Receivables pursuant to the terms hereof; provided,
however, that so long as such Involuntary Case shall continue,
notwithstanding anything in this Agreement to the contrary, the purchase
price of such Receivables (which shall not be less than reasonably
equivalent value therefor or greater than the principal balance thereof)
shall be paid by the Purchaser to the Original Seller in cash not later
than the same Business Day of any such sale, and such Receivables shall be
considered transferred to the Purchaser only to the extent that the
purchase price therefor has been paid in cash on the same Business Day.
(c) Cessation of Purchases. If an Order is obtained but subsequently
is reversed or rescinded or expires, the Purchaser shall immediately cease
to purchase (and the Original Seller shall immediately cease to sell)
Receivables hereunder. Notwithstanding anything contained in Section
6.02(b), if an Involuntary Case has not been dismissed by the first
Business Day following the 60 day period beginning on the day on which
notice of an Involuntary Case was received by either party, whether or not
an Order was obtained, the Purchaser shall not thereafter purchase
Receivables from the Original Seller hereunder and the Original Seller
shall not thereafter designate Additional Accounts for transfer to the
Purchaser or sell Receivables hereunder.
Section 6.03 Intercreditor Agreements.
(a) Common Collateral. In connection with loans or advances made or to
be made by the Original Seller to a Dealer from time to time other than
pursuant to an Account (collectively, "Other Indebtedness"), the Original
Seller may have a security interest in property constituting Collateral
Security (the "Common Collateral").
(b) Agreements of the Original Seller with respect to Common
Collateral. The Original Seller agrees that with respect to the Receivables
of each Dealer:
(i) the Original Seller security interest in any Common
Collateral that is Vehicle Collateral Security (and the proceeds
thereof) in connection with any Other Indebtedness is subordinate to
the security interest therein in connection with such Receivables and
assigned to the Purchaser hereunder;
(ii) the Original Seller shall not apply the proceeds of any such
Common Collateral that is Vehicle Collateral Security in connection
with any Other Indebtedness in any manner that is materially adverse
to the Purchaser or the Issuer and the Securityholders until all
required payments in respect of such Receivable have been made; and
(iii) in realizing upon any such Common Collateral that is
Vehicle Collateral Security in connection with any such Receivables,
neither the Purchaser nor the Issuer (nor the Servicer on behalf of
either) shall be obligated to protect or preserve the rights of the
Original Seller in such Common Collateral.
(c) Agreements of the Purchaser with respect to Common
Collateral. The Purchaser agrees that with respect to the Receivables
of each Dealer:
(i) the Purchaser's security interest in any Common Collateral
that is not Vehicle Collateral Security (and the proceeds thereof) in
connection with such Receivables assigned to the Purchaser hereunder
is subordinate to the security interest therein in connection with any
Other Indebtedness;
(ii) the Purchaser (or the Servicer on its behalf) shall not
apply the proceeds of any such Common Collateral that is not Vehicle
Collateral Security in connection with any such Receivables in any
manner that is materially adverse to the Original Seller until all
required payments in respect of such Other Indebtedness have been
made; and
(iii) in realizing upon any such Common Collateral that is not
Vehicle Collateral Security in connection with such Other
Indebtedness, the Original Seller shall not be obligated to protect or
preserve the rights of the Purchaser or the Issuer in such Collateral
Security.
(d) Obligations of Issuer. The Trust Sale and Servicing Agreement
shall provide that the Issuer is subject to this Section 6.03.
(e) Obligations of Assignees and Transferees. If, other than pursuant
hereto, the Original Seller in any manner assigns or transfers any right or
obligation with respect to any Other Indebtedness or any property
constituting Common Collateral, the Original Seller shall make such
assignment or transfer subject to the provisions of this Section 6.03 and
shall require such assignee or transferee to acknowledge that it takes such
assignment or transfer subject to the provisions of this Section 6.03 and
to agree that it shall require the same acknowledgment from any subsequent
assignee or transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Agreement may be amended from time to
time (subject to Section 10.1(g) of the Trust Sale and Servicing Agreement)
by a written amendment duly executed and delivered by the Original Seller
and the Purchaser.
Section 7.02 Protection of Right, Title and Interest in and to
Receivables.
(a) The Original Seller or the Purchaser or both shall execute and
file such financing statements and cause to be executed and filed such
continuation statements or other statements, all in such manner and in such
places as may be required by law fully to evidence, preserve, maintain and
protect the interest of the Purchaser hereunder in the Eligible Receivables
arising in the Accounts in the Pool of Accounts and the related Collateral
Security and in the proceeds thereof (including, without limitation, UCC-1
financing statements on or prior to the Initial Closing Date). The Original
Seller shall deliver (or cause to be delivered) to the Purchaser
file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Within 60 days after the Original Seller makes any change in its
name, identity or corporate structure that would make any financing
statement or continuation statement filed in accordance with Section
7.02(a) seriously misleading within the meaning of Section 9-507 of the
UCC, the Original Seller shall give the Purchaser notice of any such
change.
(c) The Original Seller shall give the Purchaser at least 60 days
prior written notice of any relocation of its principal executive office
if, as a result of such relocation, 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. The Original
Seller shall at all times maintain its principal executive office within
the United States of America.
(d) In connection with the sale and transfer hereunder of the
Receivables in the Accounts in the Pool of Accounts and the related
Collateral Security from the Original Seller to the Purchaser, the Original
Seller shall, at its own expense, on or prior to the Initial Closing Date,
in the case of the Initial Accounts, and on or prior to the applicable
Addition Date, in the case of Additional Accounts: (i) indicate in its
computer files that the Eligible Receivables in the Accounts in the Pool of
Accounts have been sold and transferred, and the Collateral Security
assigned, to the Purchaser pursuant to this Agreement and that such
property has been sold and transferred to the Issuer pursuant to the Trust
Sale and Servicing Agreement and (ii) deliver to the Purchaser 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, and as of
the applicable Additional Cut-Off Date, in the case of Additional Accounts,
its account number and the outstanding principal balance of Eligible
Receivables in such Account. Such list, as supplemented from time to time
to reflect Additional Accounts, Selected Accounts and Removed Accounts
(including Accounts removed as described in Section 2.05), shall be the
Schedule of Accounts and is hereby incorporated into and made a part of
this Agreement.
(e) The Servicer shall furnish to the Purchaser at any time upon
request a list of all Accounts then included in the Pool of Accounts,
together with a reconciliation of such list to the Schedule of Accounts as
initially furnished pursuant to the Trust Sale and Servicing Agreement and
to each notice furnished before such request indicating removal from or
addition to the Accounts in the Pool of Accounts.
Section 7.03 Costs and Expenses. The Original Seller agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser, including
fees and expenses of counsel, in connection with the perfection as against
third parties of the Purchaser's right, title and interest in, to and under
the Receivables sold hereunder and the enforcement of any obligation of the
Original Seller hereunder.
Section 7.04 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.05 Notices. All demands, notices and communications upon or
to the Original Seller, the Purchaser, or any other Person identified in
Section 10.3 of the Trust Sale and Servicing Agreement under this Agreement
shall be delivered as specified in Appendix B to the Trust Sale and
Servicing Agreement.
Section 7.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed enforceable to the fullest extent
permitted, and if not so permitted, 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 any Securities or rights of any
Interested Parties.
Section 7.07 Assignment. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by the Original Seller
without the prior written consent of the Purchaser and the Issuer. The
Purchaser may assign all or a portion of its rights, remedies, powers and
privileges under this Agreement to the Issuer pursuant to the Trust Sale
and Servicing Agreement.
Section 7.08 Further Assurances. The Original Seller and the Purchaser
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 to more fully effect the purposes of this Agreement, including
the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the Uniform
Commercial Code of any applicable jurisdiction and to evidence the
repurchase of any interest in any Receivable by the Original Seller or the
Servicer.
Section 7.09 No Waiver; Cumulative Remedies. No failure or delay on
the part of the Purchaser in exercising any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
Section 7.10 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 7.11 Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, the Interested
Parties and their respective successors and permitted assigns. Except as
otherwise expressly provided in this Agreement, no other Person shall have
any right or obligation hereunder.
Section 7.12 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets 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. This
Agreement may not be modified, amended, waived, or supplemented except as
provided herein.
Section 7.13 Confidential Information. The Purchaser agrees that it
shall neither use nor disclose to any Person the names and addresses of
Dealers, except in connection with the enforcement of the Purchaser's
rights hereunder, under the Trust Sale and Servicing Agreement, under the
Receivables or as required by law.
Section 7.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 7.15 Termination. This Agreement (except for Section 5.02)
shall terminate immediately after the termination of the Trust Sale and
Servicing Agreement; provided, that if at the time of the termination of
the Trust Sale and Servicing Agreement, the Purchaser has not made all
payments to the Original Seller required to be made under Section 6.01,
this Agreement (except for Section 5.02) shall not terminate until
immediately after all such payments have been made.
Section 7.16 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Original Seller shall not, prior to the
date which is one year and one day after the final distribution with
respect to the Securities to the Note Distribution Account, the Revolver
Distribution Account or the Certificate Distribution Account, as
applicable, acquiesce, petition or otherwise invoke or cause the Purchaser
to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Purchaser under any
federal or State bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Purchaser or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Purchaser.
Section 7.17 Jurisdiction. Any action or proceeding arising out of or
relating to this Agreement shall be submitted to the exclusive jurisdiction
of any United States Federal or New York State Court sitting in the County
of New York in the State of New York.
IN WITNESS WHEREOF, the parties hereby have caused this Pooling and
Servicing Agreement to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
[ ],
Seller and Servicer
By: ___________________________________
Name:
Title:
[GS Mortgage Securities Corp.],
Purchaser
By: ___________________________________
Name:
Title:
EXHIBIT A
LIST OF LOCATIONS OF THE
SCHEDULE OF ACCOUNTS
The Schedule of Accounts is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. The Original Seller
4. ______________________________________
EXHIBIT B
FORM OF ASSIGNMENT FOR INITIAL CLOSING DATE
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of _____________ (the "Pooling and Servicing
Agreement"), between ____________________, a _____________ corporation
("the Original Seller"), and ______________________________, a
_____________ corporation (the "Purchaser"), the Original Seller does
hereby sell, assign, transfer and otherwise convey unto the Purchaser,
without recourse, all of its right, title and interest in, to and under all
of the Eligible Receivables existing in the Accounts listed in the Schedule
of Accounts as of the close of business on the Initial Cut-Off Date and, so
long as each such Account is included in the Pool of Accounts, all Eligible
Receivables created or deemed created thereunder on each Receivables
Purchase Date and all monies due or to become due thereon after the Initial
Cut-Off Date or such Receivables Purchase Date, as appropriate, all
Collateral Security with respect thereto and all amounts received with
respect thereto and all proceeds thereof (including "proceeds" as defined
in Section 9-102 of the UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance and any sales,
transfers, assignments and conveyances subsequent to the date hereof do not
constitute, and are not intended to result in, the creation or an
assumption by the Purchaser of any obligation of the Servicer, the Original
Seller (if the Original Seller is not the Servicer), ______________ or any
other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation to any
Dealers.
It is the intention of the Original Seller and the Purchaser that the
transfers and assignments contemplated by this Assignment, including
transfers and assignments subsequent to the date hereof, shall constitute a
sale of the property described herein and in the Pooling and Servicing
Agreement from the Original Seller to the Purchaser and the beneficial
interest in and title to such property shall not be part of the Original
Seller's estate in the event of the filing of a bankruptcy petition by or
against the Original Seller under any bankruptcy law.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of _____________.
By: ___________________________________
Name:
Title:
EXHIBIT C
FORM OF ASSIGNMENT FOR EACH ADDITION DATE
For value received, in accordance with the Pooling and Servicing
Agreement, dated as of _____________ (the "Pooling and Servicing
Agreement"), between ____________________, a _____________ corporation
("the Original Seller"), and ____________________________, a _____________
corporation (the "Purchaser"), the Original Seller does hereby sell,
assign, transfer and otherwise convey unto the Purchaser, without recourse,
with respect to the Additional Accounts to which this Assignment relates,
all of its right, title and interest in, to and under all of the Eligible
Receivables as of the close of business on the related Additional Cut-Off
Date in such Additional Accounts and, so long as each such Account is
included in the Pool of Accounts, all Eligible Receivables created or
deemed created thereunder on each Receivables Purchase Date and all monies
due or to become due thereon after such Additional Cut-Off Date or such
Receivables Purchase Date, as appropriate, all Collateral Security with
respect thereto and all amounts received with respect thereto and all
proceeds thereof (including "proceeds" as defined in Section 9-102 of the
UCC and Recoveries).
The foregoing sale, transfer, assignment and conveyance and any sales,
transfers, assignments and conveyances subsequent to the date hereof do not
constitute, and are not intended to result in, the creation or an
assumption by the Purchaser of any obligation of the Servicer, the Original
Seller (if the Original Seller is not the Servicer), ______________ or any
other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation to any
Dealers.
It is the intention of the Original Seller and the Purchaser that the
transfers and assignments contemplated by this Assignment, including
transfers and assignments subsequent to the date hereof, shall constitute a
sale of the property described herein and in the Pooling and Servicing
Agreement from the Original Seller to the Purchaser and the beneficial
interest in and title to such property shall not be part of the Original
Seller's estate in the event of the filing of a bankruptcy petition by or
against the Original Seller under any bankruptcy law.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of _____________.
By: ___________________________________
Name:
Title:
EXHIBIT D
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ADDITION OF ACCOUNTS
Provision to be Included in Opinion of Counsel Delivered Pursuant to
Section 2.03(b)(viii) of the Pooling and Servicing Agreement
The opinion set forth below may be subject to standard qualifications,
assumptions, limitations and exceptions.
The Assignment delivered on the Addition Date has been duly
authorized, executed and delivered by ____, and constitutes the valid and
legally binding obligation of ____, enforceable against ____ in accordance
with its terms.
PART I
For ease of reference, capitalized terms defined herein have been
consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among the Original Seller,
______________________________ and ____________________.
PART II
For ease of reference, the rules of construction have been
consolidated with and are contained in Part II of Appendix A to the Trust
Sale and Servicing Agreement of even date herewith among the Original
Seller, __________________________ and _________________.
PART III
For ease of reference, the notice address and procedures have been
consolidated with and are contained in Part II of Appendix B to the Trust
Sale and Servicing Agreement of even date herewith among the Original
Seller, _______________________ and ________________.