EXHIBIT 99.2
RECEIVABLES PURCHASE AGREEMENT
between
AUTO LOAN FUNDING TRUST II,
as Seller
and
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Purchaser
Dated as of November 9, 2004
TABLE OF CONTENTS
Page
1. Definitions............................................................2
2. Representations and Warranties of the Seller...........................4
3. Conveyance of the Receivables..........................................4
4. Seller Covenants.......................................................6
5. Survival of Representations and Obligations............................6
6. Protection of Title to the Purchaser...................................6
7. Notices................................................................7
8. Successors.............................................................7
9. Counterparts...........................................................7
10. Applicable Law.........................................................7
11. Limitation of Liability of Owner Trustee...............................8
EXHIBIT A.................................................................A-1
EXHIBIT B.................................................................B-1
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This RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of
November 9, 2004, between AUTO LOAN FUNDING TRUST II, a Delaware statutory
trust (the "Seller"), and BEAR XXXXXXX ASSET BACKED FUNDING II INC., a
Delaware corporation (the "Purchaser").
PRELIMINARY STATEMENT
Subject to the terms and conditions of this Agreement, the Seller is
selling the Receivables to the Purchaser. The Seller acquired the Receivables
from the Purchaser pursuant to (i) the receivables purchase agreement dated
as of September 9, 2003 (as amended, restated, modified or otherwise
supplemented from time to time, the "First Receivables Purchase Agreement"),
between the Purchaser and the Seller and (ii) the receivables purchase
agreement dated as of October 25, 2004 (as amended, restated, modified or
otherwise supplemented from time to time, the "Second Receivables Purchase
Agreement" and together with the First Receivables Purchase Agreement, the
"Receivables Purchase Agreements"), between the Purchaser and the Seller. The
Purchaser acquired the Receivables from Capital Auto Receivables, Inc.
("XXXX") pursuant to (i) the purchase and sale agreement dated as of
September 9, 2003 (as amended, restated, modified or otherwise supplemented
from time to time, the "First Purchase and Sale Agreement"), between XXXX and
the Purchaser and (ii) the purchase and sale agreement dated as of October
25, 2004 (as amended, restated, modified or otherwise supplemented from time
to time, the "Second Purchase and Sale Agreement" and together with the First
Purchase and Sale Agreement, the "Purchase and Sale Agreements"), between
XXXX and the Purchaser. XXXX acquired the Receivables from General Motors
Acceptance Corporation ("GMAC") pursuant to (i) the sale agreement dated as
of September 9, 2003 (as amended, restated, modified or otherwise
supplemented from time to time, the "First Sale Agreement"), between GMAC and
XXXX and (ii) the sale agreement dated as of October 25, 2004 (as amended,
restated, modified or otherwise supplemented from time to time, the "Second
Sale Agreement" and together with the First Sale Agreement, the "Sale
Agreements"), between GMAC and XXXX. The Purchaser may sell the Receivables
to Whole Auto Loan Trust 2004-1, a Delaware statutory trust. The Seller and
the Purchaser each agree that following such sale, GMAC will continue to
service the Receivables pursuant to either (i) the receivables servicing
agreement dated as of September 9, 2003 (as amended, restated, modified or
otherwise supplemented from time to time, the "First Receivables Servicing
Agreement"), between GMAC, as receivables servicer (in such capacity, the
"Receivables Servicer"), and the Purchaser and the acknowledgment and
agreement dated as of September 9, 2003 (the "First Acknowledgment"),
executed by the Receivables Servicer or (ii) the receivables servicing
agreement dated as of October 25, 2004 (as amended, restated, modified or
otherwise supplemented from time to time, the "Second Receivables Servicing
Agreement" and together with the First Receivables Servicing Agreement, the
"Receivables Servicing Agreements"), between GMAC, as receivables servicer
(in such capacity, the "Receivables Servicer") and as custodian (in such
capacity, the "Custodian"), and the Purchaser and the acknowledgment and
agreement dated as of October 25, 2004 (the "Second Acknowledgment" and
together with the First Acknowledgement, the "Acknowledgements"), executed by
the Receivables Servicer.
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
For all purposes of this Agreement, the following terms shall have
the meanings set forth below:
"Administrative Purchase Payment" means a payment equal to the
Amount Financed on the related date of repurchase.
"Amount Financed" means, with respect to a Receivable and as of any
date, the Original Amount Financed, less:
(i) payments received from or on behalf of the related Obligor prior
to such date allocable to principal;
(ii) any amount allocable to the premium for physical damage
insurance covering the Financed Vehicle force-placed by the Receivables
Servicer;
(iii) any refunded portion of extended warranty protection plans
costs, physical damage, credit life or disability, warranties, debt
cancellation and other insurance premiums included in the Original Amount
Financed and allocable to principal;
(iv) any Administrative Purchase Payment or Warranty Payment to the
extent allocable to principal; and
(v) any Liquidation Proceeds previously received on or prior to the
last day of the related Collection Period allocable to principal with respect
to such Receivable.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of finance charges stated in the Receivable.
"Base Rate" of an Ohio Receivable means the rate that is applied on
a daily basis to the unpaid balance of the Amount Financed.
"Cut-off Date" means with respect to the Receivables, the opening of
business on October 1, 2004.
"Dealer" means the seller of automobiles or light trucks that
originated one or more of the Receivables and assigned the respective
Receivables, directly or indirectly, to GMAC under an existing agreement
between such seller and GMAC or between such seller and GMAC, as applicable.
"Deposit Account" means the account established and maintained
pursuant to Section 4.1 of each Receivables Servicing Agreement.
"Financed Vehicle" means a new or used automobile or light truck,
together with all accessions thereto, securing an Obligor's indebtedness
under a Receivable.
"First Step Receivables Assignment" means the document of assignment
attached as
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Exhibit A to each Sale Agreement.
"Lien" means any security interest, lien, charge, pledge, equity,
encumbrance or adverse claim of any kind other than tax liens, mechanics'
liens, and any liens that attach by operation of law.
"Liquidating Receivable" means a Receivable as to which the
Receivables Servicer (i) has reasonably determined, in accordance with its
customary servicing procedures, that eventual payment of amounts owing on
such Receivable is unlikely, or (ii) has repossessed and disposed of the
Financed Vehicle.
"Ohio Receivable" has the meaning set forth in Section 1.1 of the
First Sale Agreement.
"Obligor" means the purchaser or co-purchasers of the Financed
Vehicle or any other Person who owes payments under a Receivable.
"Original Amount Financed" means, with respect to a Receivable and
as of the date on which such Receivable was originated, the aggregate amount
advanced under the Receivable toward the purchase price of the Financed
Vehicle, including accessories, insurance premiums, service and warranty
contracts and other items customarily financed as part of retail automobile
installment sale contracts or direct purchase money loans and related costs.
"Person" means any legal person, including any individual,
corporation, partnership, joint venture, association, limited liability
company, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Receivable" means a retail installment sale contract or direct
purchase money loan for a Financed Vehicle and any amendments, modifications
or supplements to such retail installment sale contract or direct purchase
money loan that is included in the schedule of receivables attached as
Exhibit A and Exhibit B hereto (collectively, the "Schedule of Receivables").
"Receivable Files" means the documents specified in Section 2.1 of
each Receivables Servicing Agreement, but only to the extent they relate to
the Receivables.
"Second Step Receivables Assignment" means the document of
assignment attached as Exhibit A to each Purchase and Sale Agreement.
"Simple Interest Method" means the method of allocating each monthly
payment on a Simple Interest Receivable to principal and interest, pursuant
to which the portion of such payment that is allocated to interest is equal
to the outstanding Amount Financed thereon multiplied by the fixed rate of
interest applicable to such Receivable multiplied by the period of time
elapsed (expressed as a fraction of a calendar year) since the preceding
payment of interest with respect to such Amount Financed was made.
"Simple Interest Receivable" means any Receivable under which the
portion of each monthly payment allocable to earned interest and the portion
allocable to the principal is determined in accordance with the Simple
Interest Method. For purposes hereof, all payments with respect to a Simple
Interest Receivable shall be allocated to principal and interest in
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accordance with the Simple Interest Method.
"Warranty Payment" means, with respect to a Distribution Date and to
a Warranty Receivable to be repurchased, a payment equal to the Amount
Financed on the related date of repurchase.
Capitalized terms used and not otherwise defined herein (including
the Preliminary Statement) shall have the meanings assigned thereto in the
amended and restated trust agreement dated as of November 9, 2004 between
Bear Xxxxxxx Asset Backed Funding II Inc. and Chase Manhattan Bank USA,
National Association, as owner trustee (the "Trust Agreement").
2. Representations and Warranties of the Seller.
The Seller represents and warrants to, and agrees with, the
Purchaser that:
(a) This Agreement has been duly authorized, executed and delivered
by the Seller and constitutes a legal, valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, subject,
as to enforceability, to bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) The Seller's assignment and delivery of the Receivables to the
Purchaser will transfer to the Purchaser all of the Seller's right, title and
interest therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance created by the Seller.
(c) With respect to the Receivables set forth on Exhibit A, XXXX
has made the representations and warranties set forth in Exhibit C hereto.
With respect to the Receivables set forth on Exhibit B, XXXX has made the
representations and warranties set forth in Exhibit D hereto.
3. Conveyance of the Receivables.
Subject to the terms and conditions of this Agreement, the Seller
hereby sells, transfers and otherwise conveys to the Purchaser all of the
Seller's right, title and interest in, to and under the following property
whether now owned or existing or hereafter acquired or arising (collectively,
the "Purchased Property"):
(i) the Receivables listed on Exhibit A and Exhibit B hereto and
all monies received thereon, on and after October 1, 2004, exclusive of any
amounts allocable to the premium for physical damage insurance force-placed
by the Receivables Servicer covering any related Financed Vehicle;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and, to the extent permitted by law, any
accessions thereto;
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(iii) any proceeds from claims on any physical damage, credit life,
credit disability, warranties, debt cancellation agreements or other
insurance policies covering Financed Vehicles or Obligors;
(iv) any proceeds from recourse against Dealers on the Receivables;
(v) the Receivable Files (but only to the extent that they relate
to the Receivables);
(vi) each Sale Agreement (but only to the extent that it relates to
the Receivables) and each First Step Receivables Assignment (but only to the
extent that it relates to the Receivables);
(vii) each Purchase and Sale Agreement (but only to the extent that
it relates to the Receivables) and each Second Step Receivables Assignment
(but only to the extent that it relates to the Receivables), including the
right of the Seller to cause the Receivables Servicer to repurchase
Receivables under certain circumstances;
(viii) any proceeds of the property described in clauses (i) and
(ii) above;
(ix) each Deposit Account to the extent it relates to the
Receivables and all funds to the extent they relate to the Receivables on
deposit from time to time in such account and all investments and proceeds
thereof (including all income thereon); and
(x) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect
of any or all of the foregoing, including all proceeds of the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing.
In consideration of the Purchaser's payment to the Seller of
$717,828,582.21 (the "Purchase Price"), the Seller does hereby irrevocably
sell, transfer, assign and otherwise convey to the Purchaser, without
recourse (subject to the obligations herein), all right, title and interest
of the Seller in, to and under the Purchased Property.
The sale, transfer, assignment and conveyance made hereunder shall
not constitute and is not intended to result in an assumption by the
Purchaser of any obligation of the Seller to the Obligors or any other Person
in connection with the Purchased Property or any agreement, document or
instrument related thereto. The Seller and the Purchaser intend that the
sale, transfer, assignment and conveyance of the Purchased Property and other
rights and property pursuant to this Section 3 shall be a sale and not a
secured borrowing. However, in the event that such transfer is deemed to be a
transfer for security, the Seller hereby grants to the Purchaser a first
priority security interest in all of the Seller's right, title and interest
in, to and under the Purchased Property whether now owned or existing or
hereafter acquired or arising and all proceeds thereof (including, without
limitation, "proceeds" as defined in the Uniform Commercial Code as in effect
from time to time in the State of New York) and all other rights and property
transferred hereunder to secure a loan in an amount equal to the Purchase
Price, and
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in such event, this Agreement shall constitute a security agreement under
applicable law. The Seller hereby authorizes the Purchaser or its agents to
file such financing statements and continuation statements as the Purchaser
may deem advisable in connection with the security interest granted by the
Seller pursuant to the preceding sentence.
4. Seller Covenants.
The Seller shall cause the following to occur:
(a) The Purchaser shall have received an opinion of Sidley Xxxxxx
Xxxxx & Xxxx LLP, in its capacity as counsel to the Purchaser, addressed to
the Purchaser and dated November 9, 2004, with respect to such matters as the
Purchaser requires, and the Seller shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(b) The Purchaser shall have received copies of the Receivables
Purchase Agreements, the Sale Agreements, the Purchase and Sale Agreements,
the Receivables Servicing Agreements and the Acknowledgments.
(c) The Purchaser shall have received an opinion of Xxxxxxxx, Xxxxxx
& Finger, P.A., in its capacity as counsel to the Seller, addressed to the
Purchaser and dated the Closing Date, with respect to such matters as the
Purchaser requires, and the Seller shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(d) The Purchaser shall have received evidence satisfactory to it
that, within ten days of the date hereof, UCC-1 financing statements have
been or are being filed in the office of the Secretary of State of the State
of Delaware reflecting the transfer of the interest of the Seller in the
Purchased Property and the proceeds thereof to the Purchaser.
The Seller will provide or cause to be provided to the Purchaser
such conformed copies of such opinions and documents as the Purchaser may
reasonably request.
5. Survival of Representations and Obligations.
The respective agreements, representations, warranties and other
statements of the Seller and the Purchaser set forth in or made pursuant to
this Agreement or contained in certificates of the Seller submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof made by or on behalf of
the Purchaser or the Seller or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Purchased Property.
6. Protection of Title to the Purchaser.
(a) The Seller shall file such financing statements and cause to be
filed such continuation statements, all in such manner and in such places as
may be required by law fully to preserve, maintain and protect the interest
of the Purchaser in the Purchased Property and in the proceeds thereof. The
Seller shall deliver (or cause to be delivered) to the Purchaser file-stamped
copies of, or filing receipts for, any document filed as provided above, as
soon as
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available following such filing. The Seller hereby authorizes the filing of
such financing statements and continuation statements.
(b) The Seller shall not change its name, identity or
organizational structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-506(c)
or ss. 9-508(b) of the UCC, unless it shall have given the Purchaser at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller shall have an obligation to give the Purchaser at
least 60 days' prior written notice of any change in the jurisdiction in
which it is organized if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing
statement.
7. Notices.
All communications hereunder will be in writing and, if sent to the
Purchaser, will be mailed, delivered or telegraphed and confirmed to Bear
Xxxxxxx Asset Backed Funding II Inc., c/o Bear Xxxxxxx & Co. Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000,
Attention: Xxxxx Xxxxxx; and if sent to the Seller, will be mailed, delivered
or telegraphed, and confirmed to it at Auto Loan Funding Trust II, c/o Chase
Manhattan Bank USA, National Association, c/o JPMorgan Chase, 000 Xxxxxxx
Xxxxxxxxxx Xxxx, XX0/XXX0, Xxxxxx, Xxxxxxxx 00000, facsimile: (000) 000-0000,
Attention: Institutional Trust Services, with a copy to Bear Xxxxxxx
Investment Products Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile: (000) 000-0000, Attention: Xxxxxxxx Xxxxx. Any such notice will
take effect at the time of receipt.
8. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns and their officers
and directors and controlling persons, and no other person will have any
right or obligations hereunder.
9. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
10. Applicable Law.
THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS THAT WOULD APPLY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE
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DETERMINED IN ACCORDANCE WITH SUCH LAWS.
11. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank USA, National
Association not in its individual capacity but solely in its capacity as
owner trustee of the Seller (the "Owner Trustee") and in no event shall Chase
Manhattan Bank USA, National Association in its individual capacity or any
beneficial owner of the Seller have any liability for the representations,
warranties, covenants, agreements or other obligations of the Seller
hereunder, as to all of which recourse shall be had solely to the assets of
the Seller. For all purposes of this Agreement, in the performance of any
duties or obligations of the Seller hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AUTO LOAN FUNDING TRUST II
By Chase Manhattan Bank USA, National
Association, not in its individual
capacity, but solely as Owner Trustee
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BEAR XXXXXXX ASSET BACKED FUNDING II INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A
Information as to the Receivables as of October 1, 2004. This information may
be provided in the form of a computer tape or disk.
Loan ID Principal Balance Contract APR Maturity Date
------- ----------------- ------------ -------------
(on file with Sidley Xxxxxx Xxxxx & Xxxx LLP)
A-1
EXHIBIT B
Information as to the Receivables as of October 1, 2004. This information may
be provided in the form of a computer tape or disk.
Loan ID Principal Balance Contract APR Maturity Date
------- ----------------- ------------ -------------
(on file with Sidley Xxxxxx Xxxxx & Xxxx LLP)
B-1
EXHIBIT C
Representations and Warranties of Capital Auto Receivables, Inc. ("XXXX")
with respect to the Receivables Identified on Exhibit A
Characteristics of Receivables. Each Receivable:
(i) is secured by a Financed Vehicle, was originated in the United
States (x) by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business, was fully and properly executed by
the parties thereto, was purchased by General Motors Acceptance Corporation
("GMAC") from such Dealer under an existing Dealer Agreement, and was validly
assigned by such Dealer to GMAC in accordance with its terms, or (y) by
General Motors Acceptance Corporation, North America ("GMACNA") to finance
the retail sale of a Financed Vehicle in the ordinary course of GMACNA's
business, was fully and properly executed by the parties thereto, was
purchased by GMAC from GMACNA under the sale agreement dated as of September
9, 2003 between GMACNA and GMAC (the "GMACNA Sale Agreement"), and was
validly assigned by GMACNA to GMAC in accordance with its terms,
(ii) has created or will create a valid, binding and enforceable
first priority perfected security interest in favor of XXXX in the Financed
Vehicle, which security interest is assignable by XXXX to Bear Xxxxxxx Asset
Backed Funding II Inc. ("BSABF II"),
(iii) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for realization
against the collateral of the benefits of the security,
(iv) is a Simple Interest Receivable,
(v) provides for level monthly payments (provided that the payment
in the first month and the final month of the life of the Receivable may be
different from the level payment by no more than $5) that shall amortize the
Original Amount Financed by maturity and shall yield interest at the Annual
Percentage Rate and the Base Rate, as applicable,
(vi) (a) that is not an Ohio Receivable has been acquired by GMAC
under one of its "special incentive rate financing programs," as such term is
defined by the Receivables Servicer, designed to encourage purchases of new
cars and light trucks manufactured by General Motors, in effect on the date
such Receivable was originated; and (b) that is an Ohio Receivable has been
originated by GMACNA under one of its "special incentive rate financing
programs,"
(vii) was originated on or after November 1, 1998,
(viii) as of August 1, 2003, was not considered past due, that is,
the payments due on that Receivable in excess of $25.00 have been received
within 30 days of the scheduled payment date, and such Receivable was not a
Liquidating Receivable, and
(ix) has an original term of not less than 6 and not greater than
72 months and a remaining term of not less than 6 months.
C-1
Creation, Perfection and Priority of Security Interests. The following
representations and warranties regarding creation, perfection and priority of
security interests in the Purchased Property are true and correct:
(i) While it is the intention of XXXX and BSABF II that the
transfer and assignment contemplated by the Purchase and Sale Agreement shall
constitute sales of the Purchased Property from XXXX to BSABF II, the
Purchase and Sale Agreement shall create a valid and continuing security
interest (as defined in the applicable UCC) in the Purchased Property in
favor of BSABF II, which security interest is prior to all other Liens, and
is enforceable as such as against creditors of and purchasers from XXXX.
(ii) All steps necessary to perfect CARI's security interest
against each Obligor in the property securing the Purchased Property have
been taken.
(iii) Prior to the sale of the Purchased Property to BSABF II under
the Purchase and Sale Agreement, the Receivables constitute "tangible chattel
paper" within the meaning of the applicable UCC.
(iv) XXXX has caused or will have caused, within ten days after
September 9, 2003, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Purchased Property sold to
BSABF II under the Purchase and Sale Agreement.
(v) Other than the security interest granted to BSABF II pursuant
to the Purchase and Sale Agreement, XXXX has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Purchased
Property. XXXX has not authorized the filing of, and is not aware of, any
financing statements against XXXX that include a description of collateral
covering the Purchased Property other than the financing statements relating
to the security interests granted to BSABF II under the Purchase and Sale
Agreement. XXXX is not aware of any judgment or tax lien filings against
XXXX.
(vi) GMAC, as Receivables Servicer, has in its possession at one of
its offices listed in Exhibit C to the Purchase and Sale Agreement, all
original copies of the Receivables Files and other documents that constitute
or evidence the Receivables and the Purchased Property. The Receivables Files
and other documents that constitute or evidence the Purchased Property do not
have any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than Purchaser.
(vii) Schedule of Receivables. The information set forth in the
Schedule of Receivables is true and correct in all material respects, and no
selection procedures believed to be adverse to BSABF II were utilized in
selecting the Receivables from those receivables of XXXX which meet the
selection criteria set forth in the Purchase and Sale Agreement.
(viii) Compliance With Law. All requirements of applicable federal,
state and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z", the Soldiers' and Sailors' Civil Relief Act of 1940, the Texas Consumer
Credit Code, and state
C-2
adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code and other consumer credit laws and equal credit opportunity and
disclosure laws, in respect of any of the Receivables and other Purchased
Property, have been complied with in all material respects, and each
Receivable and the sale of the Financed Vehicle evidenced thereby complied at
the time it was originated or made and now complies in all material respects
with all legal requirements of the jurisdiction in which it was originated or
made.
(ix) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor
thereon, enforceable by the holder thereof in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
in general and by equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(x) Security Interest in Financed Vehicle. Immediately prior to the
sale, transfer and assignment thereof pursuant hereto, each Receivable was
secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of XXXX as secured party or all necessary and
appropriate action had been commenced that would result in the valid
perfection of a first priority security interest in the Financed Vehicle in
favor of XXXX as secured party.
(xi) Receivables In Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part.
(xii) No Waiver. Since August 1, 2003, no provision of a Receivable
has been, or will be, waived, altered or modified in any respect.
(xiii) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable.
(xiv) No Liens. To the best of CARI's knowledge: (1) there are no
liens or claims that have been filed for work, labor or materials affecting
any Financed Vehicle securing any Receivable that are or may be liens prior
to, or equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable; (2) no contribution failure has occurred
with respect to any Benefit Plan which is sufficient to give rise to a lien
under Section 302 (f) of ERISA with respect to any Receivable; and (3) no tax
lien has been filed and no claim related thereto is being asserted with
respect to any Receivable.
(xv) Insurance. Each Obligor (or, in the case of Ohio Receivables,
GMACNA) is required to maintain a physical damage insurance policy of the
type that GMAC (or, in the case of Ohio Receivables, GMACNA) requires in
accordance with its customary underwriting standards for the purchase (or, in
the case of GMACNA, origination) of automotive receivables.
(xvi) Good Title. No Receivable has been sold, transferred,
assigned or pledged by XXXX to any Person other than BSABF II; immediately
prior to the conveyance of the Receivables pursuant to the Purchase and Sale
Agreement, XXXX had good and marketable title thereto, free of any Lien; and,
upon execution and delivery the Purchase and Sale Agreement by
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XXXX, BSABF II shall have all of the right, title and interest of XXXX in and
to the Receivables, the unpaid indebtedness evidenced thereby and the
collateral security therefor, free of any Lien.
(xvii) Lawful Assignment. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make
unlawful the sale, transfer and assignment of such Receivable under the
Purchase and Sale Agreement.
(xviii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give BSABF II a
first priority perfected ownership interest in the Receivables shall have
been made.
(xix) One Original. There is only one original executed copy of
each Receivable.
(xx) No Documents or Instruments. No Receivable, or constituent
part thereof, constitutes a "negotiable instrument" or "negotiable document
of title" (as such terms are used in the UCC).
(xxi) No Amendment. No Receivable has been amended or otherwise
modified such that the number of originally scheduled due dates is increased
or such that the Original Amount Financed is increased.
(xxii) No Bankruptcy. To CARI's actual knowledge, without
independent investigation, as of August 1, 2003 no Obligor on any Receivable
is a debtor in a bankruptcy proceeding.
(xxiii) Accounts and Receivables Analysis. The information set
forth in the Accounts and Receivables Analysis provided on Attachment A to
the Purchase and Sale Agreement is true and correct in all material respects.
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EXHIBIT D
Representations and Warranties of Capital Auto Receivables, Inc. ("XXXX")
with respect to the Receivables Identified on Exhibit B
Characteristics of Receivables. Each Receivable:
(i) is secured by a Financed Vehicle and was originated in the
United States (x) by a Dealer for the retail sale of a Financed Vehicle in
the ordinary course of such Dealer's business, was fully and properly
executed by the parties thereto, was purchased by General Motors Acceptance
Corporation ("GMAC") from such Dealer under an existing Dealer Agreement, and
was validly assigned by such Dealer to GMAC in accordance with its terms, or
(y) by a subsidiary of GMAC to finance the retail sale of a Financed Vehicle
in the ordinary course of such subsidiary's business, was fully and properly
executed by the parties thereto, was purchased by GMAC from such subsidiary,
and was validly assigned by such subsidiary to GMAC in accordance with its
terms,
(ii) has created or will create a valid, binding and enforceable
first priority perfected security interest in favor of XXXX in the Financed
Vehicle, which security interest is assignable by XXXX to Bear Xxxxxxx Asset
Backed Funding II Inc. ("BSABF II"),
(iii) contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for realization
against the collateral of the benefits of the security,
(iv) is a Simple Interest Receivable,
(v) provides for level monthly payments (provided that the payment
in the first month and the final month of the life of the Receivable may be
different from the level payment by no more than $5) that shall amortize the
Original Amount Financed by maturity and shall yield interest at the APR,
(vi) was originated or acquired by GMAC or one of its subsidiaries
under one of its "special incentive rate financing programs" which provide
incentive financing rates that are below market for the relevant risk
category at the time granted and are designed to encourage purchases of new
cars and light trucks manufactured by General Motors, in effect on the date
such Receivable was originated,
(vii) was originated on or after June 1, 1999,
(viii) is payable in U.S. dollars by an Obligor that is resident of
the United States,
(ix) as of October 1, 2004, was not considered past due, that is,
the payments due on that Receivable in excess of $25.00 have been received
within 30 days of the scheduled payment date, and such Receivable was not a
Liquidating Receivable, and
(x) has an original term to maturity of not less than 6 and not
greater than 72 months and, as of October 1, 2004, a remaining term of not
less than 6 months.
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Creation, Perfection and Priority of Security Interests. The following
representations and warranties regarding creation, perfection and priority of
security interests in the Purchased Property are true and correct:
(xi) While it is the intention of XXXX and BSABF II that the
transfer and assignment contemplated by the Purchase and Sale Agreement shall
constitute sales of the Purchased Property from XXXX to BSABF II, the
Purchase and Sale Agreement shall create a valid and continuing security
interest (as defined in the applicable UCC) in the Purchased Property in
favor of BSABF II, which security interest is prior to all other Liens, and
is enforceable as such as against creditors of and purchasers from XXXX.
(xii) All steps necessary to perfect CARI's security interest
against each Obligor in the property securing the Purchased Property have
been taken.
(xiii) Prior to the sale of the Purchased Property to BSABF II
under the Purchase and Sale Agreement, the Receivables constitute "tangible
chattel paper" within the meaning of the applicable UCC.
(xiv) XXXX has caused or will have caused, within ten days after
October 25, 2004, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Purchased Property sold to
BSABF II under the Purchase and Sale Agreement.
(xv) Other than the security interest granted to BSABF II pursuant
to the Purchase and Sale Agreement, XXXX has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Purchased
Property. XXXX has not authorized the filing of, and is not aware of, any
financing statements against XXXX that include a description of collateral
covering the Purchased Property other than the financing statements relating
to the security interests granted to BSABF II under the Purchase and Sale
Agreement. XXXX is not aware of any judgment or tax lien filings against
XXXX.
(xvi) GMAC, as Custodian, has in its possession at one of its
offices listed in Exhibit C to the Purchase and Sale Agreement, all original
copies of the Receivables Files and other documents that constitute or
evidence the Receivables and the Purchased Property. The Receivables Files
and other documents that constitute or evidence the Purchased Property do not
have any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than Purchaser.
(xvii) Schedule of Receivables. The information set forth in the
Schedule of Receivables is true and correct in all material respects, and no
selection procedures believed to be adverse to BSABF II were utilized in
selecting the Receivables from those receivables of XXXX which meet the
selection criteria set forth in the Purchase and Sale Agreement.
(xviii) Compliance With Law. All requirements of applicable
federal, state and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z", the Servicemembers Civil Relief Act of 2003, the Texas Consumer Credit
Code, and state
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adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code and other consumer credit laws and equal credit opportunity and
disclosure laws, in respect of any of the Receivables and other Purchased
Property, have been complied with in all material respects, and each
Receivable and the sale of the Financed Vehicle evidenced thereby complied at
the time it was originated or made and now complies in all material respects
with all legal requirements of the jurisdiction in which it was originated or
made.
(xix) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor
thereon, enforceable by the holder thereof in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
in general and by equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(xx) Security Interest in Financed Vehicle. Immediately prior to
the sale, transfer and assignment thereof pursuant to the Purchase and Sale
Agreement and pursuant to the related Second Step Receivables Assignment,
each Receivable was secured by a validly perfected first priority security
interest in the Financed Vehicle in favor of XXXX as secured party or all
necessary and appropriate action had been commenced that would result in the
valid perfection of a first priority security interest in the Financed
Vehicle in favor of XXXX as secured party.
(xxi) Receivables In Force. As of October 1, 2004, no Receivable
has been satisfied, subordinated or rescinded, and the Financed Vehicle
securing each such Receivable has not been released from the lien of the
related Receivable in whole or in part.
(xxii) No Waiver. Since October 1, 2004, no provision of a
Receivable has been, or will be, waived, altered or modified in any respect.
(xxiii) No Defenses. No right of rescission, setoff, counterclaim
or defense has been asserted or threatened with respect to any Receivable.
(xxiv) No Liens. To the best of CARI's knowledge: (1) there are no
liens or claims that have been filed for work, labor or materials affecting
any Financed Vehicle securing any Receivable that are or may be liens prior
to, or equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable; (2) no contribution failure has occurred
with respect to any Benefit Plan which is sufficient to give rise to a lien
under Section 302 (f) of ERISA with respect to any Receivable; and (3) no tax
lien has been filed and no claim related thereto is being asserted with
respect to any Receivable.
(xxv) Insurance. Each Obligor is required to maintain a physical
damage insurance policy of the type that GMAC or its subsidiaries require in
accordance with their customary underwriting standards for the purchase or
origination of automotive receivables.
(xxvi) Good Title. No Receivable has been sold, transferred,
assigned or pledged by XXXX to any Person other than BSABF II; immediately
prior to the conveyance of the Receivables pursuant to the Purchase and Sale
Agreement and the related Second Step Receivables Assignment, XXXX had good
and marketable title thereto, free of any Lien; and, upon execution and
delivery the Purchase and Sale Agreement by XXXX, BSABF II shall have
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all of the right, title and interest of XXXX in and to the Receivables, the
unpaid indebtedness evidenced thereby and the collateral security therefor,
free of any Lien.
(xxvii) Lawful Assignment. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make
unlawful the sale, transfer and assignment of such Receivable under the
Purchase and Sale Agreement.
(xxviii) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give BSABF II a
first priority perfected ownership interest in the Receivables shall have
been made.
(xxix) One Original. There is only one original executed copy of
each Receivable.
(xxx) No Documents or Instruments. No Receivable, or constituent
part thereof, constitutes a "negotiable instrument" or "negotiable document
of title" (as such terms are used in the UCC).
(xxxi) No Amendment. No Receivable has been amended or otherwise
modified such that the number of originally scheduled due dates is increased
or such that the Original Amount Financed is increased.
(xxxii) No Bankruptcy. To CARI's actual knowledge, without
independent investigation, as of October 1, 2004 no Obligor on any Receivable
is a debtor in a bankruptcy proceeding.
(xxxiii) Accounts and Receivables Analysis. The information set
forth in the Accounts and Receivables Analysis provided on Attachment A to
the Purchase and Sale Agreement is true and correct in all material respects.
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