EXHIBIT 10.1.2
================================================================================
FORM OF RECEIVABLES PURCHASE AGREEMENT
Dated as of [ ], 199[ ]
CSFB CARD ACCOUNT MASTER TRUST
SERIES 199[ ]-[ ]
ASSET BACKED SECURITIES CORPORATION,
and
[SELLER NAME],
================================================================================
RECEIVABLES PURCHASE AGREEMENT, dated as of _______, 199[ ], by and
between [SELLER NAME], a _________ corporation (the "Seller"), and ASSET BACKED
SECURITIES CORPORATION, a Delaware corporation ("ABSC").
W I T N E S S E T H:
WHEREAS, ABSC desires to purchase, from time to time, certain Receivables
(hereinafter defined) due or to become due under certain credit card accounts of
the Seller;
WHEREAS, the Seller desires to sell from time to time and assign certain
Receivables to ABSC upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder will
be transferred by ABSC to the Trust (hereinafter defined) in connection with the
issuance of certain Certificates (hereinafter defined); and
WHEREAS, the Seller agrees that all covenants and agreements made by the
Seller herein with respect to the Accounts (hereinafter defined) and Receivables
shall also be for the benefit of the Trustee (hereinafter defined) and all
beneficiaries of the Trust, including the holders of the Certificates.
NOW, THEREFORE, it is hereby agreed by and between ABSC and the Seller as
follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.01. Definitions. All capitalized terms used herein or in any
-----------
certificate, document, or Conveyance Paper made or delivered pursuant hereto,
and not defined herein or therein, shall have the meaning ascribed thereto in
the Pooling and Servicing Agreement; in addition, the following words and
phrases shall have the following meanings:
"ABSC" shall mean Asset Backed Securities Corporation, a Delaware
----
Corporation.
"Account" shall mean (a) each account established pursuant to a Credit
-------
Card Agreement between the Seller and any Person, which account is identified by
account number and by the receivables balance in the computer file, microfiche
list or printed list delivered to ABSC by the Seller on the Closing Date (b)
each Additional Account (but only from and after the Addition Date with respect
thereto), (c) each Related Account, and (d) each account into which an Account
shall be transferred (a "Transferred Account") provided that (i) such transfer
was made in accordance with the Credit Card Guidelines and (ii) such account can
be traced or identified as an account into which an Account has been
transferred, but shall exclude (g) any Account that (x)
-1-
after the Removal Date, the newly generated Receivables in which are reassigned
to the Seller pursuant to Section 2.06, (y) all the Receivables in which are
reassigned to the Seller pursuant to Section 6.01 or (z) all the Receivables in
which are assigned and transferred to the Servicer pursuant to Section 3.03 of
the Pooling and Servicing Agreement.
"Additional Account" shall mean each New Account and each Aggregate
------------------
Additional Account.
"Additional Cut-Off Date" shall mean (i) with respect to Aggregate Addition
-----------------------
Accounts, the date specified as such in the notice delivered with respect
thereto pursuant to Section 2.02, and (ii) with respect to New Accounts, the
later of the dates on which such New Accounts are originated or designated
pursuant to Section 2.03.
"Addition Date" shall mean (a) with respect to Aggregate Addition Accounts,
-------------
the date from and after which such Aggregate Addition Accounts are to be
included as Accounts pursuant to Section 2.02 and (b) with respect to New
Accounts, the first Distribution Date following the calendar month in which such
New Accounts are originated.
"Addition Notice Date" shall have the meaning specified in Section 2.02 of
--------------------
this Agreement.
"Aggregate Addition Account" shall mean each Eligible Account that is
--------------------------
designated pursuant to Section 2.02 to be included as an Account and is
identified in the computer file or microfiche list delivered to ABSC by the
Seller pursuant to Sections 2.01 and 2.05.
"Agreement" shall mean this Receivables Purchase Agreement and all
---------
amendments hereof and supplements hereto.
"Closing Date" shall mean _____________ __, 1995.
------------
"Conveyance" shall have the meaning specified in subsection 2.01(a).
----------
"Conveyance Papers" shall have the meaning specified in subsection 4.01(c).
-----------------
"Credit Adjustment" shall have the meaning specified in subsection 3.02.
-----------------
"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.
-2-
"Finance Charge Receivables" shall mean all Receivables in the Accounts
--------------------------
which would be treated as "Finance Charge Receivables" in accordance with the
definition for such term in the Pooling and Servicing Agreement.
"Initial Account" shall mean any Account designated as an "Account"
---------------
hereunder and as an "Account" under the Pooling and Servicing Agreement on the
Closing Date.
"Initial Cut-Off Date" shall mean the close of business on [ ], 199[ ].
--------------------
"Insolvency Event" shall have the meaning specified in Section 8.02.
----------------
"Interchange" shall mean interchange fees payable to the Seller in its
-----------
capacity as credit card issuer, through VISA or MasterCard [or any similar
entity or organization with respect to any other type of revolving credit card
accounts included as Accounts, except as otherwise provided in the initial
Assignment with respect to any such other type of Accounts, in connection with
cardholder charges for goods and services with respect to the Accounts.
"New Account" shall mean each MasterCard and VISA consumer revolving credit
-----------
card account established pursuant to a Credit Card Agreement, which account is
designated pursuant to Section 2.03 to be included as an Account and is
identified in the computer file or microfiche list delivered to ABSC by the
Seller pursuant to Sections 2.01 and 2.05.
"New Principal Receivables" shall have the meaning set forth in Section
-------------------------
3.01.
"Obligor" shall mean, with respect to each Account, each person that would
-------
be treated as an "Obligor" in accordance with the definition for such term in
the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
-------------------------------
Agreement, dated as of [ ], 199[ ], among [Servicer Name], as Servicer,
ABSC, as Depositor and the Trustee, and all amendments and supplements thereto.
"Portfolio Reassignment Price" shall mean the portion of the amount payable
----------------------------
by ABSC to the Trustee pursuant to Section 2.06 of the Pooling and Servicing
Agreement with respect to the Receivables.
"Principal Receivables" shall mean all Receivables in the Accounts that
---------------------
would be treated as "Principal Receivables" in accordance with the definition
for such term in the Pooling and Servicing Agreement.
"Purchase Price" shall have the meaning set forth in Section 3.01.
--------------
"Purchased Assets" shall have the meaning set forth in Section 2.01.
----------------
-3-
"Receivables" shall mean Receivables as defined in the Pooling and
-----------
Servicing Agreement, existing or created after the Initial Cut Off Date in
respect of the Initial Accounts or the Additional Cut Off Date in respect of
Additional Accounts.
"Removed Account" shall mean an Account hereunder that is a "Removed
---------------
Account" (as such term is defined in the Pooling and Servicing Agreement) that
is designated for removal pursuant to Section 2.10 of the Pooling and Servicing
Agreement.
"Repurchase Price" shall have the meaning set forth in Section 6.01(b).
----------------
"Seller" shall mean [Seller Name], a [______________] and its successors
------
and permitted assigns.
"Supplemental Conveyance" shall have the meaning set forth in Section 2.02.
-----------------------
"Trust" shall mean the trust created by the Pooling and Servicing
-----
Agreement.
"Trustee" shall mean [Trustee Name], a [_____________] banking corporation,
-------
the institution executing the Pooling and Servicing Agreement as, and acting in
the capacity of Trustee thereunder, or its successor in interest, or any
successor trustee appointed as provided in the Pooling and Servicing Agreement.
SECTION 1.02. Other Definitional Provisions.
-----------------------------
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate, other document, or Conveyance Paper made or
delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement or any Conveyance Paper shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, Subsection, Schedule and Exhibit references contained in this Agreement
are references to Sections, Subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge balance of
Receivables, and of any collections thereof, shall be made in accordance with
the Pooling and Servicing Agreement and all applicable Supplements.
-4-
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
--------------------------------------
SECTION 2.01. Purchase.
--------
(a) By execution of this Agreement, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to ABSC (collectively, the
"Conveyance"), without recourse except as provided herein, all its right, title
and interest in, to and under (i) the Receivables existing at the close of
business on the Closing Date, in the case of Receivables arising in the Initial
Accounts, and on each Additional Date, in the case of Receivables arising in the
Additional Accounts, and in each case thereafter created from time to time until
the termination of this Agreement pursuant to Article VIII hereof and all monies
due and or to become due and all amounts received with respect thereto and all
proceeds (including, without limitation, "proceeds" as defined in the UCC)
thereof and (ii) the right to receive Interchange and Recoveries with respect to
such Receivables that are allocable to the Trust as provided in the Pooling and
Servicing Agreement (the "Purchased Assets").
(b) In connection with such Conveyance, the Seller agrees (i) to
record and file, at its own expense, any financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables now existing and hereafter created, meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect, and maintain perfection of, the Conveyance of such
Purchased Assets from the Seller to ABSC, (ii) that such financing statements
shall name the Seller, as seller, and ABSC, 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 ABSC as soon as is practicable after filing.
(c) In connection with such Conveyance, the Seller further agrees that
it will, at its own expense, (i) on or prior to (x) the Closing Date, in the
case of Initial Accounts, (y) the applicable Addition Date, in the case of
Additional Accounts, and (z) the applicable Removal Date, in the case of Removed
Accounts, to indicate in its computer files that Receivables created (or
reassigned, in the case of Removed Accounts) in connection with the Accounts
have been conveyed to ABSC in accordance with this Agreement and have been
conveyed by ABSC to the Trustee pursuant to the Pooling and Servicing Agreement
for the benefit of the Certificateholders (or conveyed to the Seller or its
designee in accordance with Section 2.06, in the case of Removed Accounts) by
including (or deleting, in the case of newly originated Receivables in Removed
Accounts) in such computer files the code identifying each such Account and (ii)
on or prior to (w) the Closing Date, in the case of the Initial Accounts, (x)
the date that is five Business Days after the applicable Addition Date, in the
case of designation of Aggregate Addition Accounts, (y) the date that is 90 days
after the applicable Addition Date, in the case of New Accounts, and (z) the
date that is five business Days after the applicable Removal Date, in the case
of Removed Accounts, to deliver to ABSC a computer file or microfiche list
containing a true and complete list of all such Accounts specifying for each
such Account, as of the Initial Cut-
-5-
Off Date, in the case of the Initial Accounts, the applicable Additional Cut-off
Date, in the case of Additional Accounts, the applicable Removal Date, and in
the case of Removed Accounts, (A) its account number, (B) the aggregate amount
outstanding in such Account. Each such file or list, as supplemented from time
to time to reflect Additional Accounts or Removed Accounts, shall be marked as
Schedule I to this Agreement, shall be delivered to ABSC, and is hereby
incorporated into and made a part of this Agreement. The Seller further agrees
not to alter the code referenced in clause (i) of this paragraph with respect to
any Account during the term of this Agreement unless and until such Account
becomes a Removed Account.
(d) The parties hereto intend that the conveyance of the Seller's
right, title and interest in and to the Receivables shall constitute an absolute
sale, conveying good title free and clear of any liens, claims, encumbrances or
rights of others from the Seller to ABSC. 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 ABSC 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 ABSC hereunder and the Obligations of the Seller
hereunder.
SECTION 2.02. Addition of Aggregate Addition Accounts.
---------------------------------------
(a) If, from time to time, ABSC becomes obligated to designate
Aggregate Addition Accounts (as such term is defined in the Pooling and
Servicing Agreement) pursuant to subsection 2.09(a) of the Pooling and Servicing
Agreement, then ABSC may, at its option, give the Seller written notice thereof
on or before the eighth Business Day (the "Addition Notice Date") prior to the
Addition Date therefor, and upon receipt of such notice the Seller shall on or
before the Addition Date, designate sufficient Eligible Accounts to be included
as Additional Accounts so that after the inclusion thereof ABSC will be in
compliance with the requirements of said subsection 2.09(a). Additionally,
subject to subsections 2.09(b) and (c) of the Pooling and Servicing Agreement
and subsection 2.02(b), from time to time Eligible Accounts may be designated to
be included as Aggregate Addition Accounts, upon the mutual agreement of ABSC
and the Seller. In either event, the Seller shall have sole responsibility for
selecting the Aggregate Addition Accounts.
(b) On the Addition Date with respect to any designation of Aggregate
Addition Accounts, ABSC shall purchase the Seller's right, title and interest
in, to and under the Receivables in Aggregate Addition Accounts (and such
Aggregate Addition Accounts shall be deemed to be Accounts for purposes of this
Agreement), subject to the satisfaction of the following conditions:
(i) any Aggregate Addition Accounts shall all be Eligible Accounts;
-6-
(ii) the Seller shall have delivered to ABSC copies of UCC-1 financing
statements covering such Aggregate Addition Accounts, if necessary to perfect
ABSC's undivided interest in the Receivables arising therein;
(iii) to the extent required of ABSC by Section 4.03 of the Pooling
and Servicing Agreement, the Seller shall have deposited in the Collection
Account all Collections with respect to such Aggregate Addition Accounts since
the Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date and the Addition Date,
no Insolvency Event with respect to the Seller or other Account Owner, as
applicable shall have occurred nor shall the transfer of the Receivables arising
in the Aggregate Addition Accounts to ABSC have been made in contemplation of
the occurrence thereof;
(v) solely with respect to Aggregate Addition Accounts designated
pursuant to the second sentence of subsection 2.02(a), the Rating Agency
Condition shall have been satisfied;
(vi) the Seller shall have delivered to ABSC an Officer's Certificate,
dated the Addition Date, confirming, to the extent applicable, the items set
forth in clauses (i) through (v) above; and
(vii) the transfer of the Receivables arising in the Aggregate
Addition Accounts to ABSC and by ABSC to the Trust will not result in an Adverse
Effect and, in the case of Aggregate Addition Accounts, the Seller shall have
delivered to ABSC an Officer's Certificate, dated the Addition Date, stating
that the Seller reasonably believes that the addition of the Receivables arising
in the Aggregate Addition Accounts to ABSC and by ABSC to the Trust will not
have an Adverse Effect.
SECTION 2.03. Addition of New Accounts.
------------------------
(a) Upon the mutual agreement of ABSC and the Seller, subject to
compliance by ABSC with the conditions specified in subsections 2.09(d) and (e)
of the Pooling and Servicing Agreement and compliance by the Seller with
subsection 2.03(b), the Seller may designate newly originated Eligible Accounts
to be included as New Accounts. Upon such designation, such New Accounts shall
be deemed to be Accounts hereunder. The Seller shall take all actions necessary
to comply, or to enable ABSC to comply, with the requirements of Section 2.09 of
the Pooling and Servicing Agreement and shall cooperate with ABSC to enable it
to perform with respect to the Receivables in such New Accounts all actions
specified in subsections 2.09(d) and (e) of the Pooling and Servicing Agreement.
(b) On the Addition Date with respect to any New Accounts, ABSC shall
purchase the Seller's right, title and interest in, to and under the Receivables
in New Accounts
-7-
(and such New Accounts shall be deemed to be Accounts for purposes of this
Agreement) as of the close of business on the applicable Additional Cut-Off
Date, subject to the satisfaction of the following conditions:
(i) the New Accounts shall all be Eligible Accounts;
(ii) the Seller shall have delivered to ABSC copies of UCC-1
financing statements covering such New Accounts, if necessary to perfect ABSC's
interest in the Receivables arising therein;
(iii) to the extent required of ABSC by Section 4.03 of the Pooling
and Servicing Agreement, the Seller shall have deposited in the Collection
Account all Collections with respect to such New Accounts since the Additional
Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date and the Addition Date,
no Insolvency Event with respect to the Seller shall have occurred nor shall the
transfer of the Receivables arising in the New Accounts to ABSC have been made
in contemplation of the occurrence thereof; and
(v) the transfer of the Receivables arising in the New Accounts to
ABSC and by ABSC to the Trust will not result in the occurrence of a Pay Out
Event or a Reinvestment Event.
SECTION 2.04. Representations and Warranties. The Seller hereby
------------------------------
represents and warrants to ABSC as of the related Addition Date as to the
matters set forth in Section 2.01(b) (iv) and (viii) above and that, in the case
of Additional Accounts, the list delivered pursuant to Section 2.05 below is, as
of the applicable Additional Cut-Off Date, true and complete in all material
respects.
SECTION 2.05. Delivery of Documents. In the case of the designation
---------------------
of Additional Accounts, the Seller shall deliver to ABSC (i) the computer file
or microfiche list required to be delivered pursuant to Section 2.01 with
respect to such Additional Accounts on the date such file or list is required to
be delivered pursuant to Section 2.01 (the "Document Delivery Date") and (ii) a
duly executed, written assignment (including an acceptance by ABSC),
substantially in the form of Exhibit A (the "Supplemental Conveyance"), on the
Document Delivery Date. In addition, in the case of the designation of New
Accounts, the Seller shall deliver to ABSC on the Document Delivery Date an
Officer's Certificate confirming, to the extent applicable, the items set forth
in clause (i) through (v) of subsection 2.03(b) above.
ARTICLE III
CONSIDERATION AND PAYMENT
-------------------------
SECTION 3.01. Purchase Price.
--------------
-8-
(a) The "Purchase Price" for the Receivables which came into existence
on or prior to the Closing Date conveyed to ABSC under this Agreement shall be
payable on the Closing Date and shall be an amount equal to [100% of the
aggregate balance of Principal Receivables so conveyed, adjusted to reflect such
factors as the Seller and ABSC mutually agree will result in a Purchase Price
determined to be the fair market value of such Receivables]. This computation
of initial purchase price should assume no reinvestment in the new Receivables.
The Purchase Price for the Receivables (including Receivables in Additional
Accounts) to be conveyed to ABSC under this Agreement which come into existence
after the Closing Date, [shall be payable on the date on which such Receivables
are conveyed by the Seller to ABSC in an amount equal to 100% of the aggregate
balance of the Principal Receivables so conveyed (the "New Principal
Receivables"), adjusted to reflect such factors as the Seller and ABSC mutually
agree will result in a Purchase Price determined to be at the fair market value
of such New Principal Receivables]. The Purchase Price to be paid by ABSC on
the Closing Date and on each Distribution Date following a Monthly Period during
which New Principal Receivables are conveyed to ABSC shall be paid in cash.
SECTION 3.02. Adjustments to Purchase Price. The Purchase Price
-----------------------------
shall be adjusted on each Distribution Date (a "Credit Adjustment") with respect
to any Receivable previously conveyed to ABSC by the Seller which has since been
reversed by the Seller or the Servicer because of a rebate, refund, unauthorized
charge or billing error to a cardholder because such Receivable was created in
respect of merchandise with was refused or returned by a cardholder or due to
the occurrence of any other event referred to in Section 3.09 of the Pooling and
Servicing Agreement. The amount of such adjustment shall equal [(x) the
reduction in the principal balance of such Receivable resulting from the
occurrence of such event multiplied by (y) the quotient (expressed as a
percentage) of (i) the purchase Price payable on such Distribution Date computed
in accordance with Section 3.01 divided by (ii) the Principal Receivables paid
for on such date pursuant to such Section]. In the event that an adjustment
pursuant to this Section 3.02 causes the Purchase Price to be a negative number,
the Seller agrees that, not later than 1:00 P.M. New York City time on such
Distribution Date, the Seller shall pay to ABSC, an amount equal to the amount
by which the Purchase Price minus the Credit Adjustment would be reduced below
zero.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01. Representations and Warranties of the Seller Relating
-----------------------------------------------------
to the Seller. The Seller hereby represents and warrants to, and agrees with,
-------------
ABSC as of the Closing Date and on each Addition Date, that:
(a) Organization and Good Standing. The Seller is a corporation duly
------------------------------
organized and validly existing in good standing under the laws of the State of
[______________] and has, in all material respects, full power and authority to
own its properties and conduct its business as
-9-
such properties are presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do business
-----------------
and is in good standing as a foreign corporation (or is exempt from such
requirements) and has obtained all necessary licenses and approvals, in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would (i) render any Credit Card Agreement relating to an Account, or
any Receivable unenforceable by the Seller, ABSC or the Trust and (ii) have a
material adverse effect on the Investor Certificateholders.
(c) Due Authorization. The execution, delivery and performance of
-----------------
this Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance (such other documents or instruments,
collectively, the "Conveyance Papers"), and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by the Seller by all necessary corporate action on the part of the
Seller.
(d) No Conflict. The execution and delivery of this Agreement and
-----------
the Conveyance Papers by the Seller, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the fulfillment
of the terms of this Agreement and the Conveyance Papers applicable to the
Seller will not conflict with, violate or result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is a party or
by which it or any of its properties are bound.
(e) No Violation. The execution, delivery and performance of this
------------
Agreement and the Conveyance Papers by the Seller and the fulfillment of the
terms contemplated herein and therein applicable to the Seller will not conflict
with or violate any Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending or, to the best knowledge of the Seller, threatened against the Seller,
before any Governmental Authority (i) asserting the invalidity of this Agreement
or the Conveyance Papers, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment of the
Seller, would materially and adversely affect the performance by the Seller of
its obligations under this Agreement or the Conveyance Papers, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or the attributes of the Trust under United
States Federal or [________________] income tax systems.
(g) All Consents. All authorizations, consents, orders or approvals
------------
of or registrations or declarations with any Governmental Authority required to
be obtained, effected or given by the Seller in connection with the execution
and delivery by the Seller of this Agreement
-10-
and the Conveyance Papers and the performance of the transactions contemplated
by this Agreement or the Conveyance Papers by the Seller have been duly
obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section 4.01
shall survive the transfer and assignment of the Receivables to ABSC. Upon
discovery by the Seller or ABSC 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 ABSC as of the date of this Agreement, as of the Closing Date
and, with respect to Additional Accounts, as of the related Addition Date that:
(i) this Agreement and, in the case of Additional Accounts, the
related Supplemental Conveyance, each constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect or general principles of
equity;
(ii) as of the Initial Cut-Off Date, and as of the related Additional
Cut-Off Date with respect to Additional Accounts, Schedule I to this Agreement,
as supplemented to such date, is an accurate and complete listing in all
material respects of all the Accounts as of the Initial Cut-Off Date or such
Additional Cut-Off Date, as the case may be, and the information contained
therein supplied by the Seller with respect to the identity of such Accounts and
the Receivables existing thereunder is true and correct in all material respects
as of the Initial Cut-Off Date or such applicable Additional Cut-Off Date, as
the case may be and as of the Initial Cut-Off Date, the aggregate amount of
Receivables in all the Initial Accounts was $_______, of which $________ were
Principal Receivables;
(iii) each Receivable has been conveyed to ABSC free and clear of any
Lien;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected or given by the Seller in connection with the conveyance of
Receivables to ABSC have been duly obtained, effected or given and are in full
force and effect;
(v) this Agreement or, in the case of Additional Accounts, the
related Supplemental Conveyance constitutes a valid sale, transfer and
assignment to ABSC of all right, title and interest of the Seller in the
Receivables and the proceeds thereof and the
-11-
Interchange payable pursuant to this Agreement and the Recoveries payable
pursuant to this Agreement;
(vi) on the Initial Cut-Off Date, each Account is an Eligible
Account and, in the case of Additional Accounts, on the Additional Cut-Off Date,
each related Additional Account is an Eligible Account;
(vii) on the Initial Cut-Off Date, each Receivable then existing is
an Eligible Receivable, and in the case of Additional Accounts, on the
applicable Additional Cut-Off Date, each Receivable generated thereunder is an
Eligible Receivable;
(viii) as of the date of the creation of any new Receivable, such
Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by the Seller to be materially
adverse to the interests of ABSC or the Investor Certificateholders have been
used in selecting such Accounts.
(b) Notice of Breach. The representations and warranties set forth
----------------
in this Section 4.02 shall survive the transfer and assignment of the
Receivables to ABSC. Upon discovery by either the Seller or ABSC of a breach of
any of the representations and warranties set forth in this Section 4.02, the
party discovering such breach shall give written notice to the other party and
the Trustee within three Business Days following such discovery; provided that
--------
the failure to give notice within three Business Days does not preclude
subsequent notice. The Seller hereby acknowledges that ABSC intends to rely on
the representations hereunder in connection with representations made by ABSC to
secured parties, assignees or subsequent transferees including but not limited
to transfers made by ABSC to the Trust pursuant to the Pooling and Servicing
Agreement.
SECTION 4.03. Representations and Warranties of ABSC. As of the
--------------------------------------
Closing Date, ABSC hereby represents and warrants to, and agrees with, the
Seller that:
(a) Organization and Good Standing. ABSC is a corporation duly
------------------------------
organized and validly existing under the laws of the State of Delaware and has,
in all material respects, full power and authority to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement.
(b) Due Authorization. The execution and delivery of this Agreement
-----------------
and the Conveyance Papers and the consummation of the transactions provided for
in this Agreement and the Conveyance Papers have been duly authorized by ABSC by
all necessary corporate action on the part of ABSC.
-12-
(c) No Conflict. The execution and delivery of this Agreement and
-----------
the Conveyance Papers by ABSC, the performance of the transactions contemplated
by this Agreement and the Conveyance Papers, and the fulfillment of the terms of
this Agreement and the Conveyance Papers applicable to ABSC, will not conflict
with, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which ABSC is a party or by which it or any of its properties are
bound.
(d) No Violation. The execution, delivery and performance of this
------------
Agreement and the Conveyance Papers by ABSC and the fulfillment of the terms
contemplated herein and therein applicable to ABSC will not conflict with or
violate any Requirements of Law applicable to ABSC.
(e) No Proceedings. There are no proceedings or investigations
--------------
pending or, to the best knowledge of ABSC, threatened against ABSC, before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of ABSC, would
materially and adversely affect the performance by ABSC of its obligations under
this Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or approvals
------------
of or registrations or declarations with any Governmental Authority required to
be obtained, effected or given by ABSC in connection with the execution and
delivery by ABSC of this Agreement and the Conveyance Papers and the performance
of the transactions contemplated by this Agreement and the Conveyance Papers
have been duly obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section 4.03
shall survive the Conveyance of the Receivables to ABSC. Upon discovery by ABSC
or the Seller of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other party.
ARTICLE V
COVENANTS
---------
SECTION 5.01. Covenants of the Seller. The Seller hereby covenants and
-----------------------
agrees with ABSC as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes. Except in
---------------------------------------------------
connection with its enforcement or collection of an Account, the Seller will
take no action to
-13-
cause any Receivable to be evidenced by any instrument (as defined in the UCC)
and if any Receivable is so evidenced as a result of any action by the Seller it
shall be deemed to be an ineligible Receivable in accordance with Section
6.01(a) and shall be reassigned to the Seller in accordance with Section
6.01(b).
(b) Security Interests. Except for the conveyances hereunder, the
------------------
Seller will not sell, pledge, assign or transfer to any other Person, or take
any other action inconsistent with ABSC's ownership of the Receivables or grant,
create, incur, assume or suffer to exist any Lien on, any Receivable, whether
now existing or hereafter created, or any interest therein, and the Seller shall
not claim any ownership interest in the Receivables and shall defend the right,
title and interest of ABSC in, to and under the Receivables, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller.
(c) Accounting Allocations. In the event that the Seller is unable
----------------------
for any reason to transfer Receivables to ABSC in accordance with the provisions
of this Agreement (including, without limitation, by reason of the application
of the provisions of Section 8.02 or any order of any Governmental Authority),
then, in any such event, the Seller agrees (except as prohibited by any such
order) to allocate and pay to ABSC, after the date of such inability, all
amounts in the manner by which ABSC will allocate and pay to the Trust after
such inability by ABSC pursuant to Section 2.11 of the Pooling and Servicing
Agreement.
(d) Delivery of Collections or Recoveries. In the event that the
-------------------------------------
Seller receives Collections or Recoveries, the Seller agrees to pay to ABSC (or
to the Servicer if ABSC so directs) all such Collections and Recoveries to the
extent such amounts are payable to ABSC as soon as practicable after receipt
thereof.
(e) Notice of Liens. The Seller shall notify ABSC promptly after
---------------
becoming aware of any Lien on any Receivable other than the conveyances
hereunder under the Pooling and Servicing Agreement.
(f) Interchange. Not later than 1:00 p.m., New York City time, on
-----------
each Transfer Date, the Seller shall deposit into the Collection Account, in
immediately available funds, (i) the amount of Interchange to be included as
Collections of Finance Charge Receivables with respect to the preceding Monthly
Period or (ii) if at any time the Servicer cannot identify the amount of such
Interchange, the amount reasonably estimated and notified to the Seller by the
Servicer as the amount of such Interchange.
(g) Documentation of Transfer. the Seller shall undertake to file
-------------------------
the documents which would be necessary to perfect and maintain the transfer of
the Purchased Assets to ABSC.
(h) Periodic Rate Finance Charges. (i) Except (x) as otherwise
-----------------------------
required by any Requirements of Law or (y) as is deemed by the Seller [or other
Account Owner, as the case may be], to be necessary in order for it to maintain
its credit card business or a program operated by
-14-
such credit card business on a competitive basis based on a good faith
assessment by it of the nature of the competition with respect to the credit
card business or such program, it shall not at any time take any action which
would have the effect of reducing the Portfolio Yield to a level that could be
reasonably expected to cause any Series to experience any Pay Out Event or
Reinvestment Event based on the insufficiency of the Portfolio Yield or any
similar test and (ii) except as otherwise required by any Requirements of Law,
it shall not take any action which would have the effect of reducing the
Portfolio Yield to be less than the highest Average Rate for any Group.
(i) Credit Card Agreements and Guidelines. Subject to compliance
-------------------------------------
with all Requirements of Law and paragraph (h) above, the Seller [or other
Account Owner, as the case may be], may change the terms and provisions of the
applicable Credit Card Agreements or the applicable Credit Card Guidelines in
any respect (including the calculation of the amount or the timing of charge-
offs and the Periodic Rate Finance Charges to be assessed thereon).
Notwithstanding the above, unless required by Requirements of Law or as
permitted by Section 5.02(a), the Seller [or other Account Owner, as the case
may be], will take no action with respect to the applicable Credit Card
Agreements or the applicable Credit Card Guidelines, which, at the time of such
action [or other Account Owner, as the case may be,] reasonably believes will
have a material adverse effect on ABSC or the Investor Certificateholders.
ABSC covenants that, at any time that the Seller is not the Servicer
under the Pooling and Servicing Agreement, it will provide the Seller with such
information as the Seller may reasonably request to enable the Seller to
determine compliance with the covenants contained in Section 5.02(b).
ARTICLE VI
REPURCHASE OBLIGATION
---------------------
SECTION 6.01. Reassignment of Ineligible Receivables.
--------------------------------------
(a) In the event any representation or warranty under Section
4.02(a)(ii), (iii), (iv), (vi), (vii) or (viii) is not true and correct in any
material respect as of the date specified therein with respect to any Receivable
or the related Account and as a result of such breach ABSC is required to accept
reassignment of Ineligible Receivables previously sold by the Seller to ABSC
pursuant to Section 2.05(a) of the Pooling and Servicing Agreement, the Seller
shall accept reassignment of ABSC's interest in such Ineligible Receivables on
the terms and conditions set forth in Section 6.01(b).
(b) The Seller shall accept reassignment of any Ineligible
Receivables previously sold by the Seller to ABSC from ABSC on or prior to the
end of the Monthly Period in which such reassignment obligation arises, [and
shall pay for such reassigned Ineligible Receivables by treating such Ineligible
Receivables as if they were subject to a reversal of the
-15-
entire unpaid principal balance thereof plus accrued and unpaid finance charges
at the annual percentage rate applicable to such Receivables from the last date
billed through the end of such Monthly Period and by adjusting the purchase
price of future Receivables purchased as provided in Section 3.02 (the
"Repurchase Price")]. Upon reassignment of such Ineligible Receivables, ABSC
shall automatically and without further action be deemed to sell, transfer,
assign, set-over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of ABSC in and to
such Ineligible Receivables, all monies due or to become due with respect
thereto and all proceeds thereof; and such reassigned Ineligible Receivables
shall be treated by ABSC as collected in full as of the date on which they were
transferred. ABSC shall execute such documents and instruments of transfer or
assignment and take such other action as shall reasonably be requested by the
Seller to effect the conveyance of such Ineligible Receivables pursuant to this
subsection.
SECTION 6.02. Reassignment of Certificateholders' Interest in Trust
-----------------------------------------------------
Portfolio. In the event any representation or warranty set forth in Section
---------
4.01(a) or (c) or Section 4.02(a)(i) or (a)(v) is not true and correct in any
material respect and as a result of such breach ABSC is required to accept a
reassignment of the Certificateholders' Interest in the Receivables previously
sold by the Seller to ABSC pursuant to Section 2.06 of the Pooling and Servicing
Agreement, the Seller shall be obligated to accept a reassignment of ABSC's
interest in such Receivables on the terms set forth below.
The Seller shall pay to ABSC by depositing in the Collection Account
in immediately available funds, not later than 1:00 P.M. New York City time, on
the first Transfer Date following the Monthly Period in which such reassignment
obligation arises, in payment for such reassignment, an amount equal to the
Portfolio Reassignment Price.
ARTICLE VII
CONDITIONS PRECEDENT
--------------------
SECTION 7.01. Conditions to ABSC's Obligations Regarding Initial
--------------------------------------------------
Receivables. The obligations of ABSC to purchase the Receivables in the Initial
-----------
Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Seller contained in
this Agreement shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on such date;
(b) All information concerning the Initial Accounts provided to ABSC
shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) The Seller shall have (i) delivered to ABSC a computer file or
microfiche list containing a true and complete list of all Initial Accounts
identified by account number and by
-16-
the Receivables balance as of the Initial Cut-Off Date and (ii) substantially
performed all other obligations required to be performed by the provisions of
this Agreement;
(d) The Seller shall have recorded and filed, at its expense, any
financing statement with respect to the Receivables (other than Receivables in
Additional Accounts) now existing and hereafter created for the transfer of
accounts and general intangibles (each as defined in Section 9-106 of the UCC)
meeting the requirements of applicable state law in such manner and in such
jurisdiction as would be necessary to perfect the sale of and security interest
in the Receivables from the Seller to ABSC, and shall deliver a file-stamped
copy of such financing statements or other evidence of such filings to ABSC;
(e) On or before the closing Date, ABSC and the Trustee shall have
entered into the Pooling and Servicing Agreement and the closing under the
Pooling and Servicing Agreement shall take place simultaneously with the initial
closing hereunder; and
(f) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to ABSC, and ABSC shall have received from
the Seller copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as ABSC
may reasonably have requested.
SECTION 7.02. Conditions Precedent to the Seller's Obligations. The
------------------------------------------------
obligations of the Seller to sell Receivables in the Initial Accounts on the
Closing Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of ABSC contained in this
Agreement shall be true and correct with the same effect as though such
representations and warranties had been made on such date;
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of Section 3.01 hereof shall have been made; and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Seller, and the Seller shall have
received from ABSC copies of all documents (including, without limitation,
records for corporate proceedings) relevant to the transactions herein
contemplated as the Seller may reasonably have requested.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
-----------------------------
-17-
SECTION 8.01. Term. This Agreement shall commence as of the date of
----
execution and delivery hereof and shall continue until the termination of the
Trust as provided in Article XII of the Pooling and Servicing Agreement.
SECTION 8.02. Purchase Termination. If the Seller shall fail
--------------------
generally to, or admit in writing its inability to, pay its debts as they become
due; or if a proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
the Seller in an involuntary case under any Debtors Relief law, or for the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of the Seller or for any
substantial part of the Seller's property, or for the winding-up or liquidation
of the Seller's affairs and, if instituted against the Seller, any such
proceeding shall continue undismissed or unstayed and in effect, for a period of
60 consecutive days, or any of the actions sought in such proceeding shall
occur; or if the Seller shall commence a voluntary case under any debtor Relief
Law, or if the Seller shall consent to the entry of an order for relief in an
involuntary case under any Debtor Relief Law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of, or for, any substantial
part of its property, or any general assignment for the benefit of its
creditors; or the Seller or any subsidiary of the Seller shall have taken any
corporate action in furtherance of any of the foregoing actions (each an
"Insolvency Event"); then the Seller shall immediately cease to transfer
-----------------
Principal Receivables to ABSC and shall promptly give notice to ABSC and the
Trustee of such Insolvency Event. Notwithstanding any cessation of the transfer
to ABSC of additional Principal Receivables, Principal Receivables transferred
to ABSC prior to the occurrence of such Dissolution Event and Collections in
respect of such Principal Receivables and Finance Charge Receivables whenever
created, accrued in respect of such Principal Receivables, shall continue to be
properly of ABSC available for transfer by ABSC to the Trust pursuant to the
Pooling and Servicing Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
------------------------
SECTION 9.01. Amendment. This Agreement and any Conveyance Papers
---------
and the rights and obligations of the parties hereunder may not be changed
orally, but only by an instrument in writing signed by ABSC and the Seller in
accordance with this Section 9.01. This Agreement and any Conveyance Papers may
be amended from time to time by ABSC and the Seller (i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein which may be inconsistent
with any other provisions herein or in any such other Conveyance Papers, (iii)
to add any other provisions with respect to matters or questions arising under
this Agreement or any Conveyance Papers which shall not be inconsistent with the
provisions of this Agreement or any Conveyance Papers, (iv) to change or modify
the Purchase Price and (v) to change, modify, delete or add any other obligation
of the Seller or ABSC; provided, however, that no amendment pursuant to clause
-------- -------
(v) of this Section 9.01 shall be effective unless the Seller and ABSC have
been notified in writing that the Rating Agency Condition has been satisfied;
provided, further,
-------- -------
-18-
that such action shall not (as evidenced by an Opinion of Counsel delivered to
the Trustee) adversely affect in any material respect the interests of the
Trustee or the Investor Certificateholders, unless the Trustee shall consent
thereto. Any reconveyance executed in accordance with the provisions hereof
shall not be considered to be an amendment to this Agreement. A copy of any
amendment to this Agreement shall be sent to the Rating Agency.
SECTION 9.02. Governing Law. THIS AGREEMENT AND THE CONVEYANCE
-------------
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 9.03. Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to
(a) in the case of the Seller:
-------------------------------------
-------------------------------------
-------------------------------------
Attention:
___________________________
Facsimile No.:
_______________________
(b) in the case of ABSC:
Asset Backed Securities Corporation
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇,
Director and Vice President
Facsimile No.:
_________________________
(c) in the case of the Trustee:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
_____________________________
Facsimile No.:
________________________;
-19-
or, as to each party, at such other address as shall be designated by such party
in written notice to each other party.
SECTION 9.04. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement or any Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
SECTION 9.05. Assignment. Notwithstanding anything to the contrary
----------
contained herein, other than ABSC's assignment of its rights, title, and
interest in, to, and under this Agreement to the Trustee for the benefit of the
beneficiaries of the Trust, including the Certificateholders as contemplated by
the Pooling and Servicing Agreement and Section 9.06 hereof, this Agreement and
all other Conveyance Papers may not be assigned by the parties hereto; provided,
--------
however, that the Seller shall have the right to assign its rights, title and
-------
interests, in to and under this Agreement to (i) any successor by merger
assuming this Agreement (ii) to any affiliate owned directly or indirectly by
ABSC which assumes the obligations of this Agreement or (iii) to any entity
provided that the Rating Agency has advised ABSC and the Seller that the Rating
Agency Condition has been satisfied.
SECTION 9.06. Acknowledgment and Agreement of the Seller. By
------------------------------------------
execution below, the Seller expressly acknowledges and agrees that all of ABSC's
right, title, and interest in, to, and under this Agreement, including, without
limitation, all of ABSC's right, title, and interest in and to the Receivables
purchased pursuant to this Agreement, shall be assigned by ABSC to the Trustee
for the benefit of the beneficiaries of the Trust, including the
Certificateholders, and the Seller consents to such assignment. The Seller
further agrees that notwithstanding any claim, counterclaim, right or setoff or
defense which it may have against ABSC, due to a breach by ABSC of this
Agreement or for any other reason, and notwithstanding the bankruptcy of ABSC or
any other event whatsoever, the Seller's sole remedy shall be a claim against
ABSC for money damages and, then only to the extent of funds received by ABSC
pursuant to the Pooling and Servicing Agreement, and in no event shall the
Seller assert any claim on or any interest in the Receivables or any proceeds
thereof or take any action which would reduce or delay receipt by
Certificateholders of collections with respect to the Receivables.
Additionally, the Seller agrees for the benefit of the Trustee that any amounts
payable by the Seller to ABSC hereunder which are to be paid by ABSC to the
Trustee for the benefit of the Certificateholders shall be paid by the Seller,
on behalf of ABSC, directly to the Trustee.
SECTION 9.07. Further Assurances. ABSC and the Seller agree to do
------------------
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party or the
Trustee more fully to effect the purposes of this Agreement and the Conveyance
Papers, including, without limitation, the execution of any financing statements
or continuation statements or equivalent documents relating
-20-
to the Receivables for filing under the provisions of the UCC or other law of
any applicable jurisdiction.
SECTION 9.08. No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of ABSC or the Seller, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, powers or privilege. Subject to Section 9.06, the rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 9.09. Counterparts. This Agreement and all Conveyance Papers
------------
may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
SECTION 9.10. Binding; Third-Party Beneficiaries. This Agreement and
----------------------------------
the Conveyance Papers will inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
Trustee shall be considered a third-party beneficiary of this Agreement.
SECTION 9.11. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement and the Conveyance Papers set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and
Conveyance Papers. This Agreement and the Conveyance Papers may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 9.12. Headings. The headings are for purposes of reference
--------
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 9.13. Schedules and Exhibits. The schedules and exhibits
----------------------
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
SECTION 9.14. Survival of Representations and Warranties. All
------------------------------------------
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance, shall remain operative and in full
force and effect and shall survive conveyance of the Receivables by ABSC to the
Trustee pursuant to the Pooling and Servicing Agreement.
SECTION 9.15. Nonpetition Covenant. Notwithstanding any prior
--------------------
termination of this Agreement, the Seller shall not, prior to the date which is
one year and one day after the termination of this Agreement, acquiesce,
petition or otherwise invoke or cause ABSC to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against ABSC under any Federal or state bankruptcy, insolvency or similar law or
appointing a
-21-
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of ABSC or any substantial part of its property or ordering the
winding-up or liquidation or the affairs of ABSC.
-22-
IN WITNESS WHEREOF, ABSC and the Seller have caused this Receivables
Purchase Agreement to be duly executed by their respective officers as of the
day and year first above written.
[SELLER NAME]
By: _______________________________
Title: ____________________________
ASSET BACKED SECURITIES CORPORATION
By: _______________________________
Title: ____________________________
-23-
EXHIBIT A
---------
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.05 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. ___ dated as of ________, 19__, by and
between [SELLER NAME], as Seller ("the Seller"), and ASSET BACKED SECURITIES
CORPORATION ("ABSC") pursuant to the Receivables Purchase Agreement referred to
below.
WITNESSETH:
----------
WHEREAS, the Seller and ABSC are parties to a Receivables Purchase
Agreement, dated as of [ ], 199[ ] (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts to be included as Accounts and the
Seller wishes to convey its right, title and interest in the Receivables of such
Additional Accounts, whether now existing or hereafter created, to ABSC pursuant
to the Receivables Purchase Agreement (as each such term is defined in the
Receivables Purchase Agreement); and
WHEREAS, ABSC is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, the Seller and ABSC hereby agree as follows:
1. Defined Terms. all capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
-------------
designated hereby, [ ], 199[ ].
"Additional Cut-Off Date" shall mean, with respect to the Additional
-----------------------
Accounts designated hereby, [ ], 199[ ].
2. Designation of Additional Accounts. the Seller delivers herewith
----------------------------------
a computer file or microfiche list containing a true and complete schedule
identifying all such Additional Accounts and specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount
outstanding in such Account and the aggregate amount of
A-1
Principal Receivables in such Account. Such computer file, microfiche list or
other documentation shall be as of the date of this Supplemental conveyance
incorporated into and made part of this Supplemental Conveyance and is marked as
Schedule I to this Supplemental Conveyance.
3. Conveyance of Receivables.
-------------------------
(a) The Seller does hereby sell, transfer, assign, set over and
otherwise convey to ABSC, without recourse except as provided in the Receivables
Purchase Agreement, all its right, title and interest in, to and under (i) the
Receivables generated by such Additional Accounts, now existing at the close of
business on the Additional Cut-Off Date and hereafter created until termination
of the Receivables Purchase Agreement, all monies due or to become due and all
amounts received with respect thereto and all "proceeds" (including, without
limitation, "Proceeds" as defined in Article 9 of the UCC) thereof and (ii) the
right to receive Interchange and Recoveries with respect to such Receivables
allocable to the Trust as provided in the Pooling and Servicing Agreement. The
foregoing sale, transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in a creation of an assumption by ABSC
of any obligation of the Servicer, the Seller or any other Person in connection
with the Accounts, the Receivables or under any agreement or instrument relating
thereto, including, without limitation, any obligation to any Obligor, merchant
banks, merchants clearance systems, VISA USA, Inc., MasterCard International
Incorporated or insurers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, one or more financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables, now existing and hereafter created, for the transfer
of accounts and general intangibles meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
sale and assignment of and to deliver a file-stamped copy of such financing
statement or other evidence of such filing to ABSC.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the date of this Supplemental Conveyance, to
indicate in the appropriate computer files or microfiche list that all
Receivables created in connection with the Additional Accounts designated hereby
have been conveyed to ABSC pursuant to this Supplemental conveyance.
4. Acceptance by ABSC. Subject to the satisfaction of the conditions
------------------
set forth in Section 6 of this Supplemental Conveyance, ABSC hereby acknowledges
its acceptance of all right, title and interest to the property, now existing
and hereafter created, conveyed to ABSC pursuant to Section 3(a) of this
Supplemental Conveyance, and declares that it shall maintain such right, title
and interest. ABSC further acknowledges that, prior to or simultaneously with
the execution and delivery of this Supplemental Conveyance, the Seller delivered
to ABSC the computer file or microfiche list described in Section 2 of this
Supplemental Conveyance.
A-2
5. Representation and Warranties of the Seller. The Seller hereby
-------------------------------------------
represents and warrants to ABSC as of the date of this Supplemental Conveyance
and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental Conveyance
-----------------------------------
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally from time to time in
effect or general principles of equity;
(b) Eligibility of Accounts. On the Additional Cut-Off Date, each
-----------------------
Additional Account designated hereby is an Eligible Account;
(c) No Liens. Each Receivable in an Additional account designated
--------
hereby has been conveyed to ABSC free and clear of any Lien;
(d) Eligibility of Receivables. On the Additional Cut-Off Date, each
--------------------------
Receivable existing in an Additional Account designate hereby is an Eligible
Receivable and as of the date of creation of any Receivables in an Additional
Account designated hereby, such Receivable is an Eligible Receivable;
(e) Selection Procedures. No selection procedure believed by the
--------------------
Seller to be adverse to the interests of ABSC or the Investor Certificateholders
was utilized in selecting the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance constitutes
-----------------------
a valid sale, transfer and assignment to ABSC of all right, title and interest
of the Seller in the Receivables arising in the Additional Accounts designated
hereby now existing or hereafter created, all monies due or to become due and
all amounts received with respect thereto and the "proceeds" (including, without
limitation, "proceeds" as defined in Article 9 of the UCC) thereof and the
Interchange and the Recoveries with respect thereto payable pursuant to the
Receivables Purchase Agreement;
(g) No Conflict. The execution and delivery of this Supplemental
-----------
Conveyance, the performance of the transactions contemplated by this
Supplemental conveyance and the fulfillment of the terms hereof, will not
conflict with, result in any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or by which it or its properties
are bound;
(h) No Violation. The execution and delivery of this Supplemental
------------
Conveyance by the Seller, the performance of the transactions contemplated by
this Supplemental Conveyance and the fulfillment of the terms hereof applicable
to the Seller will not conflict with or violate any Requirements of Law
applicable to the Seller;
A-3
(i) No Proceedings. There are no proceedings or investigations,
--------------
pending or, to the best knowledge of the Seller, threatened against the Seller
before any Governmental Authority (i) asserting the invalidity of this
Supplemental Conveyance, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Supplemental Conveyance, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller, would
materially and adversely affect the performance by the Seller of its obligations
under this Supplemental Conveyance or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of
this Supplemental Conveyance; and
(j) All Consents. All authorizations, consents, orders or approval of
------------
any court or other governmental authority required to be obtained by the Seller
in connection with the execution and delivery of this Supplemental Conveyance by
the Seller and the performance of the transactions contemplated by this
Supplemental Conveyance by the Seller, have been obtained.
6. Ratification of the Receivables Purchase Agreement. The
--------------------------------------------------
Receivables Purchase Agreement is hereby ratified, and all references to the
"Receivables Purchase Agreement", to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Purchase Agreement as supplemented by this Supplemental Conveyance. Except as
expressly amended hereby, all the representations, warranties, terms, covenants
and conditions of the Receivables Purchase Agreement shall remain unamended and
shall continue to be, and shall, remain, in full force and effect in accordance
with its terms and except as expressly provided herein shall not constitute or
be deemed to constitute a waiver of compliance with or consent to non-compliance
with any term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed in
------------
any number of counterparts, all of which taken together shall constitute one and
the same instrument.
A-4
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
ASSET BACKED SECURITIES
CORPORATION
By: __________________________
Name: ________________________
Title: _______________________
[SELLER NAME]
By: _______________________
Name: _______________________
Title: __________________________
A-5
Schedule I to Supplemental Conveyance
Additional Accounts
-------------------
A-6
Schedule I
----------
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
I-1