EXHIBIT 99.6
RECEIVABLES PURCHASE AGREEMENT
between
AUTO LOAN FUNDING TRUST II,
as Seller
and
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Purchaser
Dated as of October 7, 2003
TABLE OF CONTENTS
Page
----
1. DEFINITIONS.........................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER........................3
3. CONVEYANCE OF THE RECEIVABLES.......................................4
4. SELLER COVENANTS....................................................5
5. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS.........................6
6. PROTECTION OF TITLE TO THE PURCHASER................................6
7. NOTICES.............................................................6
8. SUCCESSORS..........................................................7
9. COUNTERPARTS........................................................7
10. APPLICABLE LAW......................................................7
11. LIMITATION OF LIABILITY OF OWNER TRUSTEE............................7
EXHIBIT A.................................................................A-1
EXHIBIT B.................................................................B-1
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This RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of
October 7, 2003, 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 the receivables purchase agreement dated as of
September 9, 2003 (as amended, restated, modified or otherwise supplemented
from time to time, the "Receivables Purchase Agreement"), between the
Purchaser and the Seller. The Purchaser acquired the Receivables from Capital
Auto Receivables, Inc. ("XXXX") pursuant to the purchase and sale agreement
dated as of September 9, 2003 (as amended, restated, modified or otherwise
supplemented from time to time, the "Purchase and Sale Agreement"), between
XXXX and the Purchaser. XXXX acquired the Receivables from General Motors
Acceptance Corporation ("GMAC") pursuant to the sale agreement dated as of
September 9, 2003 (as amended, restated, modified or otherwise supplemented
from time to time, the "Sale Agreement"), between GMAC and XXXX. The Purchaser
may sell the Receivables to Whole Auto Loan Trust 2003-1, a Delaware statutory
trust. The Seller and the Purchaser each agree that following such sale, GMAC
will continue to service the Receivables pursuant to the receivables servicing
agreement dated as of September 9, 2003 (as amended, restated, modified or
otherwise supplemented from time to time, the "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 "Acknowledgment"), 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.
"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 the 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 Exhibit A to the 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 Sale
Agreement dated as of September 9, 2003 between GMAC and General Motors
Acceptance Corporation, North America.
"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
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instalment 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 instalment sale contract or direct
purchase money loan for a Financed Vehicle and any amendments, modifications
or supplements to such retail instalment sale contract or direct purchase
money loan that is included in the schedule of receivables attached as Exhibit
A hereto (the "Schedule of Receivables").
"Receivable Files" means the documents specified in Section 2.1 of the
Receivables Servicing Agreement.
"Second Step Receivables Assignment" means the document of assignment
attached as Exhibit A to the 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 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 September 9, 2003 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
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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, XXXX has made the representations
and warranties set forth in Exhibit B 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 hereto and all monies received
thereon, on and after September 1, 2003, 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;
(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;
(vi) the Sale Agreement and the First Step Receivables Assignment;
(vii) the Purchase and Sale Agreement and the Second Step Receivables
Assignment, 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) the 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
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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
$1,000,000,365.63 (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 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 October 7, 2003, 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 Agreement, the Sale Agreement, the Purchase and Sale Agreement, the
Receivables Servicing Agreement and the Acknowledgment.
(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
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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 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,
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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 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 September 1, 2003. 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
Representations and Warranties of Capital Auto Receivables, Inc. ("XXXX")
with respect to the Receivables
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.
B-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
B-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
B-3
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.
B-4
