Exhibit 10.5
FORM OF RECEIVABLES PURCHASE AGREEMENT
between
[funding trust],
as Seller
and
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Purchaser
Dated [ ]
TABLE OF CONTENTS
Page
1. DEFINITIONS................................................................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER...............................................................1
3. CONVEYANCE OF THE RECEIVABLES..............................................................................1
4. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER.............................................................2
5. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS................................................................2
6. NOTICES....................................................................................................2
7. SUCCESSORS.................................................................................................3
8. COUNTERPARTS...............................................................................................3
9. APPLICABLE LAW.............................................................................................3
EXHIBIT A......................................................................................................A-1
Appendix A....................................................................................................A-A-1
i
This RECEIVABLES PURCHASE AGREEMENT, dated as of [ ], between [ ], a [ ]
(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 Purchaser may sell the
Receivables to [ISSUER] a Delaware statutory trust (the "Issuer"). Following
such sale, the Receivables Servicer will continue to service the Receivables,
acting as a subservicer of the Servicer, pursuant to the [Receivables]
Servicing Agreement.
The Receivables are the motor vehicles retail installment sale contacts
described in Exhibit A hereto.
---------
The parties hereto agree as follows:
1. Definitions.
-----------
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in Appendix A hereto.
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.
3. Conveyance of the Receivables.
-----------------------------
In consideration of the Purchaser's payment to the Seller of $[ ], the
Seller does hereby irrevocably sell, transfer, assign and otherwise convey to
the Purchaser (i) without recourse (subject to the obligations herein) all
right, title and interest of the Seller in and to the Receivables, all
payments collected thereon on or after [ ] and all other proceeds of the
Receivables and (ii) all rights of the Seller under the Receivables Purchase
Agreement dated [ ] between [ ], as seller, and the Seller, as purchaser
(including without limitation the representations and warranties of the [ ]
under such Receivables Purchase Agreement). The sale, transfer, assignment and
conveyance made hereunder shall not constitute and is not
1
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 Receivables
or any agreement, document or instrument related thereto. The Seller and the
Purchaser intend that the sale, transfer, assignment and conveyance of the
Receivables and other rights and property pursuant to this Section 3 shall be
a sale 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 Receivables and all proceeds thereof
and all other rights and property transferred hereunder to secure a loan in an
amount equal to the purchase price, and in such event, this Agreement shall
constitute a security agreement under applicable law.
4. Conditions to the Obligations of the Purchaser.
----------------------------------------------
The obligation of the Purchaser to pay for the Receivables will be
subject to the accuracy of the representations and warranties on the part of
the Seller herein, to the accuracy of the statements of the Seller made
pursuant to the provisions hereof, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(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 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.
(b) The Purchaser shall have received evidence satisfactory to it that,
on or before 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 Receivables 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 Receivables.
6. 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: [ ];
and if sent to the Seller, will be mailed, delivered or telegraphed, and
confirmed to it at [ ]. Any such notice will take effect
2
at the time of receipt.
7. Successors.
----------
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and their officers and
directors and controlling persons, and no other person will have any right or
obligations hereunder.
8. 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.
9. 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
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
3
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to be
duly executed and delivered as of the day and year first above written.
[SELLER]
By:
---------------------------------
Name:
Title:
BEAR XXXXXXX ASSET BACKED
FUNDING II INC.
By:
---------------------------------
Name:
Title:
EXHIBIT A
Information as to the Receivables as of [ ]. This information may be provided
in the form of a computer tape or disk.
A-1
Identification No. Interest Rate Principal Balance Maturity Date
----------------- ------------- ----------------- -------------
[other information]
APPENDIX A
Definitions and Usage
[Form of Appendix A attached to the Form of Indenture (Exhibit 4.3)]
Appendix X-0
X-X-0
