EXHIBIT 10
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this _____ day of __________,
_____, between BAY VIEW DEPOSIT CORPORATION, a Delaware corporation (the
"Purchaser"), and BAY VIEW ACCEPTANCE CORPORATION, a Nevada corporation
("Seller" or "BVAC").
WHEREAS, the Purchaser desires to purchase certain Receivables from the
Seller and the Seller desires to sell such Receivables to the Purchaser; and
BVAC shall service the Receivables on behalf of Purchaser and expects to service
the Receivables on behalf of the Bay View _____ Owner Trust and to receive the
benefits of acting as servicer in such capacities.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms of the terms defined):
"Agreement" means this Purchase Agreement and all amendments hereof and
supplements hereto.
"Assignment" means the document of assignment attached to this
Agreement as Annex A.
"Closing Date" means the date specified as such in the Trust and
Servicing Agreement.
"Cutoff Date" means the date specified as such in the Trust and
Servicing Agreement.
"Dealer" means the seller of a Financed Vehicle, who originated and
assigned the related Receivable to BVAC under an existing agreement with BVAC or
who arranged for a loan from BVAC to the purchaser of a Financed Vehicle under
an existing agreement with BVAC.
"Indenture" means the Indenture, dated as of __________________ between
Bay View _______ Owner Trust, as Issuer, and ___________________, as Indenture
Trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens, and any liens
which attach to the respective Receivable or related Financed Vehicle by
operation of law.
FORM OF PURCHASE AGREEMENT
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Purchaser, which counsel shall be acceptable to the Trustee and
the Insurer.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related contract as an add-on finance charge) and the portion allocable to the
Amount Financed is determined according to the sum of periodic balances, the sum
of monthly balances, the rule of 78's or any equivalent method.
"Purchase Amount" of any Receivable, as of the close of business on the
last day of any Collection Period, means the amount equal to the sum of the
Principal Balance of such Receivable plus any unpaid interest accrued and due
during or prior to such Collection Period on such Receivable.
"Receivable" means any simple or precomputed interest installment sales
contract or installment loan and security agreement which shall appear on
Schedule A to this Agreement.
"Receivable Files" means the following documents or instruments with
respect to each Receivable:
(i) The fully executed original of the Receivable.
(ii) The original credit application fully executed by the
Obligor.
(iii) The original certificate of title (or the application
for such) or such documents evidencing title to a
Financed Vehicle as may be issued in the applicable
jurisdiction.
(iv) Evidence of physical damage insurance coverage at the
time of origination of the related Receivable.
(v) Any and all other documents that the Seller shall
keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor, or
a Financed Vehicle.
"Servicer" means initially BVAC and thereafter any Person appointed as
the successor Servicer as provided in Section 13.02 of the Trust and Servicing
Agreement.
"Trust" means the trust created by the Trust and Servicing Agreement.
"Trust and Servicing Agreement" means the Trust and Servicing Agreement
dated as of _____________, by and among the Purchaser, as Transferor and the
Servicer, [______________], as Standby Servicer, [_____________], as Back-up
Servicer, [__________________], as Indenture Trustee and [______________], as
Owner Trustee, as the same may be amended, modified or supplemented from time to
time.
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"Trustee" means [_______________], a banking corporation organized
under the laws of the State of New York and its successors or any corporation
resulting from or surviving any merger or consolidation to which it or its
successors may be a party or any successor trustee at the time serving as
successor trustee hereunder.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
Capitalized terms used herein but not defined herein have the meanings
assigned to them in the Trust and Servicing Agreement or the Indenture.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 PURCHASE AND SALE OF RECEIVABLES.
(a) Purchase and Sale of Receivables. Simultaneously with
the transactions occurring on the Closing Date
pursuant to the Trust and Servicing Agreement, the
Seller shall sell, transfer, assign and otherwise
convey to the Purchaser, without recourse
(collectively, the "Transferred Property");
(i) all right, title, and interest of the Seller in and
to the Receivables listed in Schedule A hereto;
(ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables;
(iii) any Liquidation Proceeds and any proceeds from claims
or refunds of premiums on any physical damage,
lender's collateral protection, credit life,
disability and hospitalization insurance policies
covering Financed Vehicles or Obligors;
(iv) all property (including the right to receive future
Liquidation Proceeds) that secures a Receivable and
that has been or may be acquired pursuant to the
liquidation of the Receivable;
(v) the interest of the Seller in any proceeds from
recourse to Dealers relating to the Receivables;
(vi) all documents contained in the Receivable Files;
(vii) all monies paid thereon, and all monies due thereon,
including Accrued Interest after the Cutoff Date (but
excluding interest paid prior to the Closing Date),
with respect to the Receivables held by the Servicer;
and
(viii) all proceeds of the foregoing.
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The Seller does not convey to the Purchaser any interest in
any contracts with Dealers related to any "dealer reserve" or any
rights to the recapture of any dealer reserve.
(b) Receivables Purchase Price. In consideration for the
Receivables, the Purchaser shall on the Closing Date pay to the Seller
the purchase price for such Receivables, equal to the Principal Balance
of such Receivables at the Cutoff Date in the amount of $__________.
SECTION 2.02 CLOSING THE PURCHASE AND SALE.
(a) The Closing. The closing of the sale of Receivables
(the "Closing") shall take place at the offices of Xxxxxx Xxxxx LLP,
0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, on the Closing Date,
simultaneously with the closing under the Trust and Servicing Agreement
and the Indenture.
(b) Documents to be Delivered at the Closing.
(i) The Assignment. On or prior to the Closing, the
Seller will execute and deliver the Assignment. The
Assignment shall be in substantially the form of
Annex A hereto.
(ii) Evidence of UCC Filing. The Seller shall record and
file, at its own expense, one or more financing
statements with respect to the Receivables in such
manner and in such places as required by law fully to
preserve, maintain and protect the interest of the
Purchaser in the Receivables and other property
conveyed to the Purchaser hereunder, and shall
deliver a file-stamped copy of such financing
statements or other evidence of such filings to the
Purchaser on or prior to the Closing Date.
(iii) Schedule of Receivables. The Seller shall at its own
expense, on or prior to the Closing Date, indicate in
its computer files those Receivables that have been
sold or otherwise conveyed to the Purchaser pursuant
to this Agreement and deliver to the Purchaser (or to
the Trustee on the Purchaser's behalf) a computer
file, hard copy or microfiche list containing a true
and complete list of all such Receivables.
(iv) The Seller shall deliver such other documents as the
Purchaser, the Indenture Trustee or the Insurer may
reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER.
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(a) The Seller hereby represents and warrants to the
Purchaser as of the date hereof and as of the Closing Date;
(i) Organization and Good Standing. The Seller has been
duly incorporated and is validly existing as a
corporation and in good standing under the laws of
the State of Nevada, and has full corporate power,
authority and legal right to execute and deliver this
Agreement and to perform the terms and provisions
hereof.
(ii) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing,
and has obtained all necessary licenses and
approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of
its business (including, without limitation, the
purchase of motor vehicle retail installment sale
contracts and motor vehicle retail installment loan
and security agreements, the sale of the Receivables
to the Purchaser hereunder, the servicing of the
Receivables as required by the Trust and Servicing
Agreement and its other obligations hereunder and
under the Trust and Servicing Agreement) shall
require such qualifications, licenses and/or
approvals, other than where the failure to obtain
such license, qualification or approval would not
have a material adverse effect on the ability of the
Purchaser to perform its obligations under this
Agreement and the Trust and Servicing Agreement or on
any Receivables or the interest therein of the
Purchaser, the Issuer, the Noteholders or the
Insurer.
(iii) Power and Authority. The Seller has the corporate
power and authority to execute and deliver this
Agreement; the Seller has full corporate power and
authority to sell and assign the property sold and
assigned by it to the Purchaser hereunder and has
duly authorized such sale and assignment by it to the
Purchaser by all necessary corporate action; and the
execution, delivery and performance of this Agreement
has been duly authorized by the Seller by all
necessary corporate action.
(iv) Accuracy of Information. All information heretofore
furnished by the Seller in writing to the Purchaser
for purposes of or in connection with this Agreement
or any transaction contemplated hereby is true and
accurate in every material respect or based on
reasonable estimates on the date as of which such
information is stated or certified.
(v) No Proceedings. There are no proceedings or
investigations pending, or, to the best knowledge of
the Seller, threatened against the Seller before any
court, regulatory body, administrative agency or
other tribunal or governmental instrumentality
seeking any determination or ruling that, in the
reasonable judgment of the Seller, would have a
material adverse effect on the performance by the
Seller of its obligations under this Agreement.
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(vi) Valid Sale; Binding Obligation. This Agreement
effects a valid sale, transfer and assignment of the
Receivables and the other Transferred Property
conveyed to the Purchaser pursuant to Section 2.01
hereof, enforceable against creditors of and
purchasers from the Seller; and this Agreement
constitutes a legal, valid and binding obligation of
the Seller, enforceable in accordance with its terms,
except only as such enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(vii) No Violation. The execution, delivery and performance
by the Seller of this Agreement and the consummation
of the transactions contemplated hereby and the
fulfillment of the terms hereof do not and will not
conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the
charter documents of the Seller, or any indenture,
agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which
it is bound or to which any of its properties are
subject; or result in the creation or imposition of
any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage,
deed of trust, or other instrument; or violate any
law, order, rule or regulation applicable to the
Seller of any court or of any federal or state
regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over
the Seller or its properties, in each case other than
any such Lien, conflict, breach, default or violation
which would not have a material adverse effect on the
interest of the Noteholders, the Purchaser, and
Issuer or the Insurer, in any Receivable or on the
ability of the Seller to perform its obligations
under this Purchase Agreement or the Trust and
Servicing Agreement.
(viii) Fraudulent Conveyance. The Seller is not selling the
Receivables sold by it to the Purchaser with any
intent to hinder, delay or defraud any of its
creditors; the Seller will not be rendered insolvent
as a result of such sale of the Receivables to the
Purchaser.
(ix) Certificate, Statements and Reports. The officers
certificates, statements, reports and other documents
prepared by the Seller and furnished by the Seller to
the Purchaser or the Insurer pursuant to this
Agreement and in connection with the transactions
contemplated hereby, when taken as a whole, do not
contain any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements contained herein or therein not
misleading.
(x) Seller's Intention. The Receivables and the other
Transferred Property will be transferred by the
Seller, with the intention of removing them from the
Seller's estate pursuant to Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code, as the same may be amended
from time to time.
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(xi) Seller's Legal Name. The Seller's exact legal name
is, and for the preceding four months has been, Bay
View Acceptance Corporation.
(xii) Seller's Jurisdiction of Organization. The Seller is,
and for the preceding one year has been, organized
exclusively under the laws of the State of Nevada.
(xiii) Seller's Chief Executive Office. The Seller's chief
executive office is located in Covina, California.
(b) The Purchaser hereby represents and warrants to the
Seller as of the date hereof and on the Closing Date, on which the
Seller relies in selling the Receivables and the other Transferred
Property, on which the Issuer relies in pledging the Receivables and
the other Pledges Assets to the Indenture Trustee under the Indenture
and on which the Insurer will rely in issuing the Policy:
(i) Organization and Good Standing. The Purchaser is duly
organized and validly existing as a corporation in
good standing under the laws of the State of
Delaware, with the corporate power and authority to
own its properties and to conduct its business as
such properties are currently owned and such business
is presently conducted, and had at all relevant
times, and has, the corporate power, authority and
legal right to acquire and own the Receivables and
the other Transferred Property and to convey the
Receivables and the other Transferred Property to the
Issuer pursuant to the Trust and Servicing Agreement,
and to perform its other obligations under this
Agreement and the Trust and Servicing Agreement.
(ii) Due Qualification. The Purchaser is duly qualified to
do business as a foreign corporation in good
standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of
its business (including, without limitation, the
purchase of the Receivables from the Seller
hereunder, the conveyance of the Receivables by the
Purchaser pursuant to the Trust and Servicing
Agreement, and the performance of its other
obligations under this Agreement and the Trust and
Servicing Agreement) shall require such
qualifications, licenses and/or approvals, other than
where the failure to obtain such qualification,
license or approval would not have a material adverse
effect on the ability of the Purchaser to perform its
obligations under this Agreement or the Trust and
Servicing Agreement, on any Receivable or on the
interest therein of the Issuer, the Noteholders or
the Insurer.
(iii) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and
the execution, delivery and performance of this
Agreement has been duly authorized by the Purchaser
by all necessary corporation action.
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(iv) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Purchaser
enforceable in accordance with its terms; except only
as such enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement
of creditors' rights generally.
(v) No Violation. The execution, delivery and performance
by the Purchaser of this Agreement and the
consummation of the transactions contemplated hereby
and the fulfillment of the terms hereof do not
conflict with, result in a breach of any of the terms
and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the charter
documents of the Purchaser, or any indenture,
agreement, mortgage, deed of trust, or other
instrument to which the Purchaser is a party or by
which it is bound or to which any of its properties
are subject; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to
the terms of any indenture, agreement, mortgage, deed
of trust, or other instrument; nor violate any law,
order, rule or regulation applicable to the Purchaser
of any court or of any federal or state regulatory
body, administrative agency or other governmental
instrumentality having jurisdiction over the
Purchaser or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to the Purchaser's best
knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental
instrumentality having jurisdiction over the
Purchaser or its properties: (A) asserting the
invalidity of this Agreement, the Trust and Servicing
Agreement, the Notes or the Certificate; (B) seeking
to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated
by this Agreement or the Trust and Servicing
Agreement; (C) seeking any determination or ruling
that might materially and adversely affect the
performance by the Purchaser of its obligations
under, or the validity or enforceability of, this
Agreement, the Trust and Servicing Agreement or the
Notes; or (D) relating to the Purchaser and which
might adversely affect the Federal or State income,
excise, franchise or similar tax attributes of the
Notes.
(vii) No Consents. No consent, approval, authorization or
order of or declaration or filing with any
governmental authority is required to be obtained by
the Purchaser for the issuance or sale of the Notes
or the consummation of the other transactions
contemplated by this Agreement or the Trust and
Servicing Agreement, except such as have been duly
made or obtained or where the failure to obtain such
consent, approval, authorization, order or
declaration, or to make such filing, would not have a
material adverse effect on the ability of the
Purchaser to perform its obligations under this
Agreement or the Trust and Servicing Agreement or on
any Receivable or the interest therein of the Issuer,
the Noteholders or the Insurer.
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(viii) Valid Assignment. Each Receivable has been validly
assigned by the Purchaser to the Issuer on the
Closing Date pursuant to the Trust and Servicing
Agreement and no Receivable has been sold,
transferred, assigned or pledged by the Purchaser to
any Person other than the Issuer.
SECTION 3.02 REPRESENTATIONS AND WARRANTIES REGARDING THE
RECEIVABLES.The Seller makes the following representations and warranties as to
the Receivables on which the Purchaser relies in purchasing the Receivables and
the other Transferred Property and in conveying the Receivables and the other
Trust Property to the Issuer under the Trust and Servicing Agreement, on which
the Issuer relies in pledging the Pledged Assets to the Indenture Trustee under
the Indenture and on which the Insurer will rely in issuing the Policy. Such
representations and warranties speak as of the execution and delivery of the
Agreement, but shall survive the sale, transfer, and assignment of the
Receivables by the Seller to the Purchaser hereunder and by the Purchaser to the
Issuer under the Trust and Servicing Agreement and the pledge of the Receivables
to the Indenture Trustee under the Indenture.
(a) Characteristics of Receivables. Each Receivable (1)
shall have been either (A) originated in the United States of America
by a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business, shall have been purchased by BVAC
from such Dealer and shall have been validly assigned by such Dealer to
BVAC in accordance with its terms and, pursuant to this Agreement, by
the Seller to the Purchaser or (B) shall have been originated in the
United States of America by BVAC and is validly sold and assigned, and,
pursuant to this Agreement, by the Seller to the Purchaser (2) shall
have been fully and properly executed by the parties thereto, (3) shall
have created or shall create a valid, subsisting, and enforceable first
priority perfected security interest in favor of BVAC in the Financed
Vehicle, which security interest shall be assignable and shall have
been validly assigned by the Seller to the Purchaser, (4) shall contain
customary and enforceable provisions such that the rights and remedies
of the holder thereof shall be adequate for realization against the
collateral of the benefits of the security, (5) shall bear a fixed rate
of interest, (6) provides for level monthly payments, (7) provides for,
in the event that such Receivable is prepaid in full, a prepayment that
fully pays the Principal Balance, and (8) was originated by a Dealer to
an Obligor and was originated and sold by the Dealer to the Seller,
without any fraud or misrepresentation on the part of such Dealer or on
the part of the Obligor. Immediately after the sale, transfer and
assignment of the Receivables to the Trust under the Trust and
Servicing Agreement and the subsequent pledge by the Issuer to the
Indenture Trustee under the Indenture, each Receivable will be secured
by an enforceable and perfected first priority security interest in the
Financed Vehicle in favor of the Indenture Trustee as secured party,
which security interest is prior to all other liens upon and security
interests in such Financed Vehicle which now exist or may hereafter
arise or be created (except, as to priority, for any lien for taxes,
labor or materials affecting a Financed Vehicle).
(b) Schedule of Receivables. The information set forth in
Schedule A to the Agreement shall be true and correct in all material
respects as of the closing of business on the Cutoff Date, and no
selection procedures believed to be adverse to the Noteholders shall
have been utilized in selecting the Receivables.
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(c) Compliance with Law. Each Receivable and each sale of
the related Financed Vehicle shall have complied at the time it was
originated or made and at the execution of the Agreement shall comply
in all material respects with all requirements of applicable federal,
State, and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit 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, and State adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code, and
other applicable consumer credit laws and equal credit opportunity and
disclosure laws.
(d) Binding Obligation. Each Receivable shall represent
the genuine, legal, valid, and binding payment obligation in writing of
the Obligor, enforceable by the holder thereof in accordance with its
terms.
(e) No Government Obligor. None of the Receivables shall
be due from the United States of America or any State or from any
agency, department, or instrumentality of the United States of America,
any State or any local government.
(f) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment, and transfer thereof, each Receivable
shall be secured by a validly perfected first priority security
interest in the Financed Vehicle in favor of BVAC as secured party or
all necessary and appropriate actions with respect to such Receivable
shall have been taken to perfect a first priority security interest in
the Financed Vehicle in favor of BVAC as secured party.
(g) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle
have been released from the lien granted by the related Receivable in
whole or in part.
(h) No Waiver. No provision of a Receivable has been
waived, altered, amended or modified in any respect since its
origination, except by instruments or documents contained in the
related Receivable File on the Closing Date. No Receivable has been
modified as a result of application of the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended.
(i) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened with
respect to any Receivable.
(j) No Liens. No liens or claims shall have been filed,
including liens for work, labor, or materials relating to a Financed
Vehicle that shall be liens prior to, or equal or coordinate with, the
security interest in the Financed Vehicle granted by the Receivable.
(k) No Default. Except for payment defaults continuing
for a period of not more than 30 days as of the Cutoff Date, no
default, breach, violation, or event permitting acceleration under the
terms of any Receivable shall have occurred; and no continuing
condition that with notice or the lapse of time would constitute a
default, breach,
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violation, or event permitting acceleration under the terms of any
Receivable shall have arisen; and neither the Purchaser nor the Seller
shall have waived any of the foregoing.
(l) Insurance. Each Obligor has agreed to obtain physical
damage insurance covering the Financed Vehicle.
(m) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Purchaser
and that the beneficial interest in and title to the Receivables not be
part of the receivership estate in the event of the appointment of a
receiver for the Seller. No Receivable has been sold, transferred,
assigned, or pledged by the Seller to any Person other than the
Purchaser, except for pledges as shall have been duly and fully
released. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all liens, and, immediately upon the
transfer thereof, the Purchaser shall have good and marketable title to
each Receivable, free and clear of all liens and rights of others and
the transfer and assignment herein contemplated has been perfected
under the UCC.
(n) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer, and assignment of such Receivable under
the Agreement would be unlawful, void, or voidable.
(o) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Purchaser a first priority perfected security interest in the
Receivables shall have been made.
(p) One Original. There shall be only one original
executed copy of each Receivable.
(q) Original Number of Scheduled Payments. Each
Receivable shall have not less than _____ nor greater than _____
monthly payments scheduled at origination.
(r) Remaining Maturity of Receivables. Each Receivable
shall have a remaining maturity of not more than _____ months.
(s) Minimum Note Rate. Each Receivable shall have a
contract rate of interest (the "Note Rate") (exclusive of prepaid
finance charges) equal to or greater than _____% and less than or equal
to _____%.
(t) Scheduled Payments. Each Receivable shall be not more
than 30 days overdue as of the Cutoff Date.
(u) Interest Method. Each Receivable shall provide for
accrual of interest according to the simple interest method or shall be
a Precomputed Receivable and shall provide for monthly payments of
principal and interest that fully amortize the Amount Financed by
maturity and for a finance charge or yield interest at its Note Rate.
The Principal Balance of Precomputed Receivables (on an actuarial
basis) as of the Cutoff Date represents _____% of the Original Pool
Balance.
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(v) Latest First Payment Date. No Receivable shall have
had a first payment due after __________, ___.
(w) Location of Receivable Files. The Receivable Files
shall be kept at one or more of the locations listed in Annex B hereto.
(x) Composition of Receivables. Each and every Receivable
listed on Schedule A hereto shall arise from loans originated only on
automobiles, light trucks, motorcycles, vans or van conversions, at
least _____% of which (securing at least _____% of the Receivables by
principal balance) are new vehicles.
(y) Marking Records. By the Closing Date, the Seller and
BVAC will have caused the portions of the electronic ledger or similar
computer records relating to the Receivables conveyed to the Purchaser
hereunder to be clearly and unambiguously marked to show that such
Receivables constitute property of the Purchaser and/or have been
conveyed by Purchaser to the Trust and constitute part of the Trust in
accordance with the terms of the Trust created under the Trust and
Servicing Agreement.
(z) Precomputed Receivables. Each Precomputed Receivable
shall provide for, in the event that such a Receivable is prepaid, a
prepayment that fully pays the Principal Balance and includes accrued
but unpaid interest in an amount calculated using an interest rate at
least equal to its Note Rate.
SECTION 3.03 REPURCHASE UPON BREACH. The Purchaser or BVAC, as the
case may be, shall inform the other parties promptly, in writing, upon the
discovery of any breach of the representations and warranties under Section
3.02. Unless the breach shall have been cured by the last day of the first full
Collection Period, following the discovery, BVAC shall repurchase from the
Purchaser any such Receivable if such Receivable or the interest therein of the
Purchaser, the Issuer, the Noteholders, the Certificateholder or the Insurer is
materially and adversely affected by any such breach or failure to perfect as of
the last day of the first full Collection Period. In consideration of the
purchase of the Receivable, BVAC shall remit the Purchase Amount to or for the
account of the Purchaser. The sole remedy of the Purchaser shall be to require
BVAC to repurchase Receivables pursuant to this Section 3.03; provided, however,
that the Seller shall indemnify the Owner Trustee, the Issuer, the Indenture
Trustee, the Insurer, the Backup Servicer, the Standby Servicer, the Servicer,
the Noteholders, the Certificateholder and their respective officers, directors
and employees against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them, as a result of third party claims
arising out of the events or facts giving rise to such repurchase. BVAC hereby
consents to the assignment by the Purchaser of its rights under this Agreement
to the Trust in the Trust and Servicing Agreement and the subsequent pledge by
the Trust to the Indenture Trustee under the Indenture. The provisions of this
Section 3.03 are intended to grant the Indenture Trustee a direct right against
the Seller acting at the direction or with the consent of the Insurer or
Noteholders, as applicable, to demand performance hereunder, and in connection
therewith the Seller waives any requirement of prior demand against the
Purchaser and waives any defaults it would have against the Purchaser with
respect to such repurchase obligation. In addition to the foregoing, the Seller
shall be under an obligation to promptly purchase from the Purchaser (in its
FORM OF PURCHASE AGREEMENT
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capacity as Servicer under the Trust and Servicing Agreement) any Receivable
required to be repurchased by the Purchaser pursuant to a breach of its
obligations in the Trust and Servicing Agreement, including, without limitation,
the Purchaser's repurchase obligations set forth therein. Moreover, BVAC hereby
authorizes the Purchaser and its assignee on behalf of BVAC, to execute and
deliver certificates of title for any Financed Vehicle securing a Receivable
naming BVAC as secured party, and such other documents or certificates as may be
necessary in connection therewith, in order to identify the Purchaser or its
assignee, as appropriate, as the secured party with respect to such Financed
Vehicle.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
The obligation of the Purchaser to purchase Receivables on the Closing
Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of BVAC hereunder shall be true and
correct on the Closing Date with the same effect as if then made.
(b) Documents, Other Obligations. BVAC have delivered the
documents and performed all other obligations to be performed by it
hereunder.
ARTICLE V
ADDITIONAL AGREEMENTS
The Seller agrees with the Purchaser as follows:
SECTION 5.01 CONFLICTS WITH TRUST AND SERVICING AGREEMENT. To the
extent that any provision of Sections 5.02 and 5.03 of this Agreement conflicts
with any provision of the Trust and Servicing Agreement, the Trust and Servicing
Agreement shall govern.
SECTION 5.02 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) The Seller shall execute and file such financing
statements and cause to be executed and 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 and/or the Noteholders, the Insurer, the Indenture Trustee
and the Indenture Trustee under the Trust and Servicing Agreement in
the Receivables and in the proceeds thereof. The Seller shall deliver
(or cause to be delivered) to the Purchaser and/or the Trustee
file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) The Seller shall not change its name, identity, or
corporate structure in any manner that would, could, or might make any
financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading
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within the meaning of 9-506 of the UCC, unless it shall have given the
Purchaser at least 60 days' prior written notice thereof and no later
than five days after the effective date thereof, files appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller shall give the Purchaser, the Indenture
Trustee and the Insurer at least 60 days' prior written notice of any
relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement (in which case
the Seller shall file or cause to be filed such amendment or
continuation statement or new financing statement).
(d) The Seller shall cause its computer systems to be
maintained so that, from and after the time of sale under this
Agreement of the Receivables to be maintained such that the master
computer records (including any back-up archives) that refer to a
Receivable has been conveyed to the Purchaser, subsequently conveyed by
the Purchaser to the Issuer and pledged by the Issuer to the Indenture
Trustee. Indication of the Purchaser's, the Trust's and the Indenture
Trustee's respective interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the
Receivable shall have been paid in full or repurchased.
(e) If at any time the Seller shall propose to sell,
grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender, or other
transferee, the Seller shall give to such prospective purchaser,
lender, or other transferee computer tapes, records, or print-outs
(including any restored from back-up archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has been conveyed to the Purchaser,
subsequently conveyed by the Purchaser to the Issuer and pledged by the
Issuer to the Indenture Trustee.
(f) The Seller shall permit the Purchaser and its agents
at any time during normal business hours to inspect, audit, and make
copies of and abstracts from the Seller's records regarding any
Receivable.
(g) Upon request, the Seller shall furnish to the
Purchaser, the Indenture Trustee and/or the Insurer, as applicable,
within five Business Days, a list of all Receivables (by contract
number and name of Obligor) repurchased under this Agreement by the
Seller.
(h) The Seller shall from time to time, at its expense,
promptly execute and deliver all further instruments and documents
(including, without limitation, powers of attorney for the benefit of
the Servicer) and take all further action that may be necessary or
desirable to permit the Servicer to perform its obligations under the
Trust and Servicing Agreement, including without limitation, the
Servicer's obligation to preserve and maintain the perfected security
interest of the Indenture Trustee in the Receivables and the Financed
Vehicles.
FORM OF PURCHASE AGREEMENT
14
SECTION 5.03 SECURITY INTERESTS. The Seller shall defend the
right, title and interest of the Purchaser in, to and under the Receivables,
against all claims of third parties claiming through or under the Seller.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01 OBLIGATIONS OF THE SELLER. The obligations of the
Seller to the Purchaser under this Agreement shall not be affected by reason of
any invalidity, illegality or irregularity of any Receivable.
SECTION 6.02 AMENDMENT. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties hereto.
SECTION 6.03 TERMINATION. This Agreement shall terminate upon the
termination of the Trust pursuant to the Trust and Servicing Agreement.
SECTION 6.04 WAIVERS. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.05 NOTICES. All communications and notices pursuant
hereto to either party shall be in writing or by telegraph or telex and
addressed or delivered to it at its address (or in case of telex, at its telex
number at such address) shown below or at such other address as may be
designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex. Such notice shall be sent to (a) in
the case of the Seller, Bay View Acceptance Corporation, 000 Xxx Xxxx Xxxx,
Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx (b) in the case of the
Purchaser, Bay View Deposit Corporation, 0000 Xxxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Secretary, or at such other address as shall be
designated by Purchaser in a written notice to Seller.
SECTION 6.06 HEADINGS AND CROSS-REFERENCES. The various headings
in this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such sections of this Agreement
unless otherwise specified.
SECTION 6.07 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS (EXCEPT WITH RESPECT TO THE UCC).
SECTION 6.08 NON-PETITION COVENANT. Seller shall not, prior to the
date which is one year and one day after the termination of this Agreement,
acquiesce, petition or
FORM OF PURCHASE AGREEMENT
15
otherwise invoke or cause the Trust or the Purchaser to invoke the process of
any court or government authority for the purpose of commencing or sustaining a
case against the Trust or the Purchaser under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or the
Purchaser or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust or the Purchaser.
SECTION 6.09 CONVEYANCE OF RECEIVABLES. BVAC acknowledges that the
Purchaser intends, pursuant to the Trust and Servicing Agreement, to convey the
Receivables and the other Transferred Property, together with its rights under
this Agreement, to the Trust on the date hereof and that the Trust intends,
pursuant to the Indenture, to pledge the Receivables and the other Transferred
Property to the Indenture Trustee for the benefit of the Noteholders and the
Insurer. BVAC acknowledges and consents to such conveyance and pledge and waives
any further notice thereof and covenants and agrees that the representations and
warranties of BVAC contained in this Agreement and the rights of the Purchaser
hereunder are intended to benefit the Insurer, the Indenture Trustee, the Trust
and the Noteholders. In furtherance of the foregoing, BVAC covenants and agrees
to perform its duties and obligations hereunder, in accordance with the terms
hereof for the benefit of the Insurer, the Indenture Trustee, the Trust and the
Noteholders and that notwithstanding anything to the contrary in this Agreement,
BVAC shall be directly liable to the Indenture Trustee and the Trust
(notwithstanding any failure by the Servicer or the Purchaser to perform its
duties and obligations hereunder or under the Trust and Servicing Agreement) and
that the Indenture Trustee may enforce the duties and obligations of BVAC under
this Agreement against BVAC for the benefit of the Insurer, the Trust and the
Noteholders.
SECTION 6.10 MATERIAL ADVERSE EFFECT. Whenever a determination is
to be made under this Agreement as to whether a given event, action, course of
conduct or set of facts or circumstances could or would have a material adverse
effect on the Issuer or the Noteholders (or any similar or analogous
determination), such determination shall be made without taking into account the
funds available from claims under the Policy. Whenever a determination is to be
made under this Agreement whether a breach of a representation, warranty or
covenant has or could have a material adverse effect on a Receivable or the
interest therein of the Issuer, the Noteholders or the Insurer (or any similar
or analogous determination), such determination shall be made by the Insurer in
its sole discretion so long as no Insurer Default shall have occurred and be
continuing.
SECTION 6.11 CONVEYANCE AS SALE OF RECEIVABLES NOT FINANCING. The
parties hereto intend that the conveyance hereunder and under the Assignments be
a sale of the Receivables and the other Transferred Property from the Seller to
the Purchaser and not a financing secured by such assets; and the beneficial
interest in and title to such Receivables and the other Transferred Property
shall not be part of the Seller's respective estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law. In
the event that any conveyance hereunder or under any Assignment is for any
reason not considered a sale, the parties intend that this Agreement or such
Assignment constitute a security agreement under the UCC (as defined in the UCC
as in effect in the State of New York) and applicable law, and the Seller hereby
grants to the Purchaser a continuing first priority security interest in, to and
under the Receivables and the other Transferred Property being delivered to the
Purchaser on the Closing Date and other property conveyed hereunder and
FORM OF PURCHASE AGREEMENT
16
all proceeds of any of the foregoing for the purpose of securing payment and
performance of the Notes and the Certificates and the repayment of amounts owed
to the Purchaser from the Seller. For purposes of such grant (i) this Agreement
shall constitute a security agreement under applicable law and (ii) possession
by the Purchaser or its assigns, or their respective agents, of the Receivables
and the other Transferred Property or other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"taking possession" by the secured party for purposes of perfecting the security
interest pursuant to Section 9-313 of the applicable UCC.
SECTION 6.12 THIRD PARTY BENEFICIARIES. The parties hereto hereby
expressly agree that each of the Indenture Trustee for the benefit of the
Noteholders and the Insurer, shall be third party beneficiaries with respect to
this Agreement the Assignment; provided, however, that no third party other than
the Indenture Trustee for the benefit of the Noteholders and the Insurer, is a
third party beneficiary of this Agreement and the Assignment, and each such
party may rely on the representations, warranties, covenants and agreements of
the Seller herein and therein as if they were addressed to each of them. As a
third party beneficiary to the provisions of this Agreement and the Assignment,
the Insurer and its successors and assigns shall be entitled to rely upon and
directly enforce the provisions of this Agreement and the Assignment so long as
no Insurer Default shall have occurred and be continuing. Except as expressly
stated otherwise herein or in the Trust and Servicing Agreement, any right of
the Insurer to direct, appoint, consent to, approve of, or take any action under
this Agreement, shall be a right exercised by the Insurer in its sole and
absolute discretion. The Insurer may disclaim any of its rights and powers under
this Agreement (but not its duties and obligations under the Policy) upon
delivery of a written notice to the Indenture Trustee.
SECTION 6.13 EFFECT OF POLICY EXPIRATION DATE. Notwithstanding
anything to the contrary set forth herein, all references to any right of the
Insurer to direct, appoint, consent to, accept, approve of, take or omit to take
any action under this Agreement, shall be inapplicable at all times after the
expiration of the Policy, and (i) if such reference provides for another party
or parties to take or omit to take such action following an Insurer Default,
such party or parties shall also be entitled to take or omit to take such action
following the expiration of the Policy and (ii) if such reference does not
provide for another party or parties to take or omit to take such action
following an Insurer Default, then the Indenture Trustee acting at the direction
of the Majority Noteholders shall have the right to take or omit to take any
such action following the expiration of the Policy. In addition, any other
provision of this Agreement which is operative based in whole or in part on
whether an Insurer Default has or has not occurred shall, at all times on or
after the expiration of the Policy, be deemed to refer to whether or not the
expiration of the Policy has occurred.
SECTION 6.14 COUNTERPARTS. This Agreement may be executed in two
or more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument
FORM OF PURCHASE AGREEMENT
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
BAY VIEW ACCEPTANCE CORPORATION,
Seller
By:__________________________________________
Name:________________________________________
Title:_______________________________________
BAY VIEW DEPOSIT CORPORATION,
Purchaser
By:__________________________________________
Name:________________________________________
Title:_______________________________________
FORM OF PURCHASE AGREEMENT
18
ANNEX A
ASSIGNMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency are
hereby acknowledged, Bay View Acceptance Corporation, a Nevada corporation (the
"Seller") does hereby sell, transfer, assign and otherwise convey to Bay View
Deposit Corporation, a Delaware corporation (the "Purchaser"), without recourse:
(i) all right, title, and interest of the Seller in and
to the Receivables listed in Schedule A hereto;
(ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables;
(iii) any Liquidation Proceeds and any proceeds from claims
or refunds of premiums on any physical damage,
lender's collateral protection, credit life,
disability and hospitalization insurance policies
covering Financed Vehicles or Obligors;
(iv) all property (including the right to receive future
Liquidation Proceeds) that secures a Receivable and
that has been or may be acquired pursuant to the
liquidation of the Receivable;
(v) the interest of the Seller in any proceeds from
recourse to Dealers relating to the Receivables;
(vi) all documents contained in the Receivable Files;
(vii) all monies paid thereon, and all monies due thereon,
including Accrued Interest after the Cutoff Date,
(but excluding interest paid or due prior to the
Closing Date) with respect to the Receivables held by
the Servicer; and
(viii) all proceeds of the foregoing.
The Seller does not convey to the Purchaser any interest in any
contracts with Dealers related to any "dealer reserve" or any rights to the
recapture of any dealer reserve.
Capitalized terms used but not defined in this Assignment have the
meanings assigned to them in the Purchase Agreement dated as of _______________
between the Purchaser and the Seller.
FORM OF PURCHASE AGREEMENT
A-1
IN WITNESS WHEREOF, the undersigned has executed this Assignment as of
the _____ day of _________, _____.
BAY VIEW ACCEPTANCE CORPORATION
By:__________________________________________
Name:________________________________________
Title:_______________________________________
FORM OF PURCHASE AGREEMENT
A-2
SCHEDULE A
LIST OF RECEIVABLES
The Receivables consisting of motor vehicle retail installment sale
contracts originated and booked on or before ____________, aggregating
$__________ in remaining principal amount as of the Cutoff Date are listed on
the attached pages.
FORM OF PURCHASE AGREEMENT
ANNEX B
LOCATION OF RECEIVABLES FILES
The Receivables will be held at the following Bay View Acceptance Corporation
locations:
FORM OF PURCHASE AGREEMENT
B-1
