FORM OF RECEIVABLES PURCHASE AGREEMENT
EXHIBIT 10.1.2
===============================================================================
FORM OF RECEIVABLES PURCHASE AGREEMENT
Dated as of [ ],
[ ] CARD ACCOUNT MASTER TRUST
SERIES [ ]
ACE SECURITIES CORP.,
and
[SELLER NAME],
===============================================================================
RECEIVABLES PURCHASE AGREEMENT, dated as of [_______], by and between
[SELLER NAME], a [_________] corporation (the "Seller"), and ACE SECURITIES
CORP., a Delaware corporation ("ACE").
W I T N E S S E T H:
WHEREAS, ACE 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 ACE upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder
will be transferred by ACE 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 ACE 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:
"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 ACE by the Seller on the Closing Date (b) each
Additional Account (but only from and after the Addition Date with respect
thereto), (c) each Related Account, and (d) each account into which an Account
shall be transferred (a "Transferred Account") provided that (i) such transfer
was made in accordance with the Credit Card Guidelines and (ii) such account can
be traced or identified as an account into which an Account has been
transferred, but shall exclude (g) any Account that (x) after the Removal Date,
the newly generated Receivables in which are reassigned to the Seller pursuant
to Section 2.06, (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.
"ACE" shall mean ACE Securities Corp., a Delaware Corporation. ---
"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 ACE 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 [ ].
"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.
"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 [ ].
"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 ACE 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 [ ], , among [Servicer Name], as Servicer, ACE, as
Depositor and the Trustee, and all amendments and supplements thereto.
"PORTFOLIO REASSIGNMENT PRICE" shall mean the portion of the amount
payable by ACE 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.
"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.
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 ACE (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 ACE, (ii) that such financing statements
shall name the Seller, as seller, and ACE, 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 ACE 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 ACE in accordance with this Agreement and have been
conveyed by ACE 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 ACE a computer file or microfiche list
containing a true and complete list of all such Accounts specifying for each
such Account, as of the Initial Cut-Off Date, in the case of the Initial
Accounts, the applicable Additional Cut-off Date, in the case of Additional
Accounts, the applicable Removal Date, and in the case of Removed Accounts, (A)
its account number, (B) the aggregate amount outstanding in such Account. Each
such file or list, as supplemented from time to time to reflect Additional
Accounts or Removed Accounts, shall be marked as Schedule I to this Agreement,
shall be delivered to ACE, 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 ACE. 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 ACE 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 ACE hereunder and the Obligations of the Seller
hereunder.
SECTION 2.02. ADDITION OF AGGREGATE ADDITION ACCOUNTS.
(a) If, from time to time, ACE 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 ACE 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 ACE 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 ACE 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, ACE 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;
(ii) the Seller shall have delivered to ACE copies of UCC-1
financing statements covering such Aggregate Addition Accounts, if necessary to
perfect ACE's undivided interest in the Receivables arising therein;
(iii) to the extent required of ACE 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 ACE 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 ACE 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 ACE and by ACE to the Trust will not result in an Adverse
Effect and, in the case of Aggregate Addition Accounts, the Seller shall have
delivered to ACE 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 ACE and by ACE to the Trust will not have an
Adverse Effect.
SECTION 2.03. ADDITION OF NEW ACCOUNTS.
(a) Upon the mutual agreement of ACE and the Seller, subject to
compliance by ACE 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 ACE to comply, with the requirements of Section 2.09 of
the Pooling and Servicing Agreement and shall cooperate with ACE 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, ACE shall
purchase the Seller's right, title and interest in, to and under the Receivables
in New Accounts (and such New Accounts shall be deemed to be Accounts for
purposes of this Agreement) as of the close of business on the applicable
Additional Cut-Off Date, subject to the satisfaction of the following
conditions:
(i) the New Accounts shall all be Eligible Accounts;
(ii) the Seller shall have delivered to ACE copies of UCC-1
financing statements covering such New Accounts, if necessary to perfect ACE's
interest in the Receivables arising therein;
(iii) to the extent required of ACE 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 ACE have
been made in contemplation of the occurrence thereof; and
(v) the transfer of the Receivables arising in the New Accounts
to ACE and by ACE 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 ACE 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 ACE (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 ACE),
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 ACE 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.
(a) The "Purchase Price" for the Receivables which came into existence
on or prior to the Closing Date conveyed to ACE 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 ACE 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 ACE 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 ACE 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 ACE 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 ACE on the
Closing Date and on each Distribution Date following a Monthly Period during
which New Principal Receivables are conveyed to ACE 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 ACE 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 ACE, 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, ACE
as of the Closing Date and on each Addition Date, that:
(a) ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized and validly existing in good standing under the laws of the State of
[______________] and has, in all material respects, full power and authority to
own its properties and conduct its business as such properties are presently
owned and such business is presently conducted,and to execute, deliver and
perform its obligations under this Agreement.
(b) DUE QUALIFICATION. The Seller is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements) and has obtained all necessary licenses and approvals, in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would (i) render any Credit Card Agreement relating to an Account, or
any Receivable unenforceable by the Seller, ACE or the Trust and (ii) have a
material adverse effect on the Investor Certificateholders.
(c) DUE AUTHORIZATION. The execution, delivery and performance of this
Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance (such other documents or instruments,
collectively, the "Conveyance Papers"), and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by the Seller by all necessary corporate action on the part of the
Seller.
(d) NO CONFLICT. The execution and delivery of this Agreement and the
Conveyance Papers by the Seller, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the fulfillment of
the terms of this Agreement and the Conveyance Papers applicable to the Seller
will not conflict with, violate or result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Seller is a party or by which it
or any of its properties are bound.
(e) NO VIOLATION. The execution, delivery and performance of this
Agreement and the Conveyance Papers by the Seller and the fulfillment of the
terms contemplated herein and therein applicable to the Seller will not conflict
with or violate any Requirements of Law applicable to the Seller.
(f) NO PROCEEDINGS. There are no proceedings or investigations pending
or, to the best knowledge of the Seller, threatened against the Seller, before
any Governmental Authority (i) asserting the invalidity of this Agreement or the
Conveyance Papers, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment of the
Seller, would materially and adversely affect the performance by the Seller of
its obligations under this Agreement or the Conveyance Papers, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or the attributes of the Trust under United
States Federal or [________________] income tax systems.
(g) ALL CONSENTS. All authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required to be
obtained, effected or given by the Seller in connection with the execution and
delivery by the Seller of this Agreement and the Conveyance Papers and the
performance of the transactions contemplated by this Agreement or the Conveyance
Papers by the Seller have been duly obtained, effected or given and are in full
force and effect.
The representations and warranties set forth in this Section 4.01
shall survive the transfer and assignment of the Receivables to ACE. Upon
discovery by the Seller or ACE 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 ACE 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 ACE 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 ACE 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 ACE of all right, title and interest of the Seller in the
Receivables and the proceeds thereof and the Interchange payable pursuant to
this Agreement and the Recoveries payable pursuant to this Agreement;
(vi) on the Initial Cut-Off Date, each Account is an Eligible
Account and, in the case of Additional Accounts, on the Additional Cut-Off Date,
each related Additional Account is an Eligible Account;
(vii) on the Initial Cut-Off Date, each Receivable then existing
is an Eligible Receivable, and in the case of Additional Accounts, on the
applicable Additional Cut-Off Date, each Receivable generated thereunder is an
Eligible Receivable;
(viii) as of the date of the creation of any new Receivable, such
Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by the Seller to be
materially adverse to the interests of ACE 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 ACE. Upon discovery by either the Seller or ACE 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 ACE intends to rely on the
representations hereunder in connection with representations made by ACE to
secured parties, assignees or subsequent transferees including but not limited
to transfers made by ACE to the Trust pursuant to the Pooling and Servicing
Agreement.
SECTION 4.03. REPRESENTATIONS AND WARRANTIES OF ACE. As of the Closing
Date, ACE hereby represents and warrants to, and agrees with, the Seller that:
(a) ORGANIZATION AND GOOD STANDING. ACE 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 ACE by
all necessary corporate action on the part of ACE.
(c) NO CONFLICT. The execution and delivery of this Agreement and the
Conveyance Papers by ACE, 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 ACE, 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 ACE 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 ACE and the fulfillment of the terms
contemplated herein and therein applicable to ACE will not conflict with or
violate any Requirements of Law applicable to ACE.
(e) NO PROCEEDINGS. There are no proceedings or investigations pending
or, to the best knowledge of ACE, threatened against ACE, 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 ACE, would
materially and adversely affect the performance by ACE 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 ACE in connection with the execution and delivery
by ACE 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 ACE. Upon discovery by ACE 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 ACE as follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. Except in
connection with its enforcement or collection of an Account, the Seller will
take no action to cause any Receivable to be evidenced by any instrument (as
defined in the UCC) and if any Receivable is so evidenced as a result of any
action by the Seller it shall be deemed to be an ineligible Receivable in
accordance with Section 6.01(a) and shall be reassigned to the Seller in
accordance with Section 6.01(b).
(b) SECURITY INTERESTS. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or take
any other action inconsistent with ACE'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 ACE 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 ACE 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 ACE, after the date of such inability, all amounts
in the manner by which ACE will allocate and pay to the Trust after such
inability by ACE 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 ACE (or
to the Servicer if ACE so directs) all such Collections and Recoveries to the
extent such amounts are payable to ACE as soon as practicable after receipt
thereof.
(e) NOTICE OF LIENS. The Seller shall notify ACE 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 ACE.
(h) PERIODIC RATE FINANCE CHARGES. (i) Except (x) as otherwise
required by any Requirements of Law or (y) as is deemed by the Seller [or other
Account Owner, as the case may be], to be necessary in order for it to maintain
its credit card business or a program operated by such credit card business on a
competitive basis based on a good faith assessment by it of the nature of the
competition with respect to the credit card business or such program, it shall
not at any time take any action which would have the effect of reducing the
Portfolio Yield to a level that could be reasonably expected to cause any Series
to experience any Pay Out Event 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 ACE or the Investor Certificateholders.
ACE 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 ACE is required to accept
reassignment of Ineligible Receivables previously sold by the Seller to ACE
pursuant to Section 2.05(a) of the Pooling and Servicing Agreement, the Seller
shall accept reassignment of ACE'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 ACE from ACE on or prior to the end of the
Monthly Period in which such reassignment obligation arises, [and shall pay for
such reassigned Ineligible Receivables by treating such Ineligible Receivables
as if they were subject to a reversal of the entire unpaid principal balance
thereof plus accrued and unpaid finance charges at the annual percentage rate
applicable to such Receivables from the last date billed through the end of such
Monthly Period and by adjusting the purchase price of future Receivables
purchased as provided in Section 3.02 (the "Repurchase Price")]. Upon
reassignment of such Ineligible Receivables, ACE 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 ACE 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 ACE as collected in
full as of the date on which they were transferred. ACE 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 ACE is required to accept a
reassignment of the Certificateholders' Interest in the Receivables previously
sold by the Seller to ACE pursuant to Section 2.06 of the Pooling and Servicing
Agreement, the Seller shall be obligated to accept a reassignment of ACE's
interest in such Receivables on the terms set forth below.
The Seller shall pay to ACE 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 ACE'S OBLIGATIONS REGARDING INITIAL
RECEIVABLES. The obligations of ACE 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 ACE
shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) The Seller shall have (i) delivered to ACE a computer file or
microfiche list containing a true and complete list of all Initial Accounts
identified by account number and by the Receivables balance as of the Initial
Cut-Off Date and (ii) substantially performed all other obligations required to
be performed by the provisions of this Agreement;
(d) The Seller shall have recorded and filed, at its expense, any
financing statement with respect to the Receivables (other than Receivables in
Additional Accounts) now existing and hereafter created for the transfer of
accounts and general intangibles (each as defined in Section 9-106 of the UCC)
meeting the requirements of applicable state law in such manner and in such
jurisdiction as would be necessary to perfect the sale of and security interest
in the Receivables from the Seller to ACE, and shall deliver a file-stamped copy
of such financing statements or other evidence of such filings to ACE;
(e) On or before the closing Date, ACE 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 ACE, and ACE shall have received from the
Seller copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as ACE
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 ACE 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 ACE copies of all documents (including, without limitation,
records for corporate proceedings) relevant to the transactions herein
contemplated as the Seller may reasonably have requested.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
SECTION 8.01. TERM. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the termination of the
Trust as provided in Article XII of the Pooling and Servicing Agreement.
SECTION 8.02. PURCHASE TERMINATION. If the Seller shall fail generally
to, or admit in writing its inability to, pay its debts as they become due; or
if a proceeding shall have been instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect of the Seller in an
involuntary case under any Debtors Relief law, or for the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of the Seller or for any substantial part of the Seller's
property, or for the winding-up or liquidation of the Seller's affairs and, if
instituted against the Seller, any such proceeding shall continue undismissed or
unstayed and in effect, for a period of 60 consecutive days, or any of the
actions sought in such proceeding shall occur; or if the Seller shall commence a
voluntary case under any debtor Relief Law, or if the Seller shall consent to
the entry of an order for relief in an involuntary case under any Debtor Relief
Law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator, conservator or other
similar official of, or for, any substantial part of its property, or any
general assignment for the benefit of its creditors; or the Seller or any
subsidiary of the Seller shall have taken any corporate action in furtherance of
any of the foregoing actions (each an "Insolvency Event"); then the Seller shall
immediately cease to transfer Principal Receivables to ACE and shall promptly
give notice to ACE and the Trustee of such Insolvency Event. Notwithstanding any
cessation of the transfer to ACE of additional Principal Receivables, Principal
Receivables transferred to ACE 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 ACE available for transfer by ACE 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 ACE and the Seller in accordance
with this Section 9.01. This Agreement and any Conveyance Papers may be amended
from time to time by ACE 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 ACE; provided, however, that no amendment pursuant to clause
(v) of this Section 9.01 shall be effective unless the Seller and ACE have been
notified in writing that the Rating Agency Condition has been satisfied;
provided, further, that such action shall not (as evidenced by an Opinion of
Counsel delivered to the Trustee) adversely affect in any material respect the
interests of the Trustee or the Investor Certificateholders, unless the Trustee
shall consent thereto. Any reconveyance executed in accordance with the
provisions hereof shall not be considered to be an amendment to this Agreement.
A copy of any amendment to this Agreement shall be sent to the Rating Agency.
SECTION 9.02. GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE PAPERS
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 9.03. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to
(a) in the case of the Seller:
-------------------------------------
-------------------------------------
-------------------------------------
Attention:
-------------------------------------
Facsimile No.:
(b) in the case of ACE:
ACE Securities Corp.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [ ]
Facsimile No.: [ ]
(c) in the case of the Trustee:
---------------------------------------
---------------------------------------
---------------------------------------
Attention:
---------------------------------------
Facsimile No.:
or, as to each party, at such other address as shall be designated by such party
in written notice to each other party.
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 ACE'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
ACE which assumes the obligations of this Agreement or (iii) to any entity
provided that the Rating Agency has advised ACE 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 ACE's right,
title, and interest in, to, and under this Agreement, including, without
limitation, all of ACE's right, title, and interest in and to the Receivables
purchased pursuant to this Agreement, shall be assigned by ACE 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 ACE, due to a breach by ACE of this Agreement
or for any other reason, and notwithstanding the bankruptcy of ACE or any other
event whatsoever, the Seller's sole remedy shall be a claim against ACE for
money damages and, then only to the extent of funds received by ACE 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 ACE hereunder which are
to be paid by ACE to the Trustee for the benefit of the Certificateholders shall
be paid by the Seller, on behalf of ACE, directly to the Trustee.
SECTION 9.07. FURTHER ASSURANCES. ACE and the Seller agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party or the Trustee
more fully to effect the purposes of this Agreement and the Conveyance Papers,
including, without limitation, the execution of any financing statements or
continuation statements or equivalent documents relating to the Receivables for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
SECTION 9.08. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of ACE 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 ACE 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 ACE to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against ACE under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of ACE or any substantial part of its property or
ordering the winding-up or liquidation or the affairs of ACE.
IN WITNESS WHEREOF, ACE 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: ____________________________
ACE SECURITIES CORP.
By: _______________________________
Title: ____________________________
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.05 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. ___ dated as of ____________, by and
between [SELLER NAME], as Seller ("the Seller"), and ACE SECURITIES CORP.
("ACE") pursuant to the Receivables Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, the Seller and ACE are parties to a Receivables Purchase
Agreement, dated as of [ ], (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 ACE pursuant
to the Receivables Purchase Agreement (as each such term is defined in the
Receivables Purchase Agreement); and
WHEREAS, ACE is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, the Seller and ACE 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, [ ].
"Additional Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, [ ].
2. DESIGNATION OF ADDITIONAL ACCOUNTS. the Seller delivers herewith a
computer file or microfiche list containing a true and complete schedule
identifying all such Additional Accounts and specifying for each such Account,
as of the Additional Cut-Off Date, its account number, the aggregate amount
outstanding in such Account and the aggregate amount of Principal Receivables in
such Account. Such computer file, microfiche list or other documentation shall
be as of the date of this Supplemental conveyance incorporated into and made
part of this Supplemental Conveyance and is marked as Schedule I to this
Supplemental Conveyance.
3. CONVEYANCE OF RECEIVABLES.
(a) The Seller does hereby sell, transfer, assign, set over and
otherwise convey to ACE, 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 ACE
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 ACE.
(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 ACE pursuant to this Supplemental conveyance.
4. ACCEPTANCE BY ACE. Subject to the satisfaction of the conditions
set forth in Section 6 of this Supplemental Conveyance, ACE hereby acknowledges
its acceptance of all right, title and interest to the property, now existing
and hereafter created, conveyed to ACE pursuant to Section 3(a) of this
Supplemental Conveyance, and declares that it shall maintain such right, title
and interest. ACE further acknowledges that, prior to or simultaneously with the
execution and delivery of this Supplemental Conveyance, the Seller delivered to
ACE the computer file or microfiche list described in Section 2 of this
Supplemental Conveyance.
5. REPRESENTATION AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to ACE 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 ACE 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 ACE 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 ACE 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;
(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.
1. 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.
2. COUNTERPARTS. This Supplemental Conveyance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
ACE SECURITIES CORP.
By: __________________________
Name: ________________________
Title: _______________________
[SELLER NAME]
By: _______________________
Name: _______________________
Title: _______________________
Schedule I to Supplemental Conveyance
ADDITIONAL ACCOUNTS
SCHEDULE I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
