EXHIBIT 99.2
EXECUTION VERSION
RECEIVABLES PURCHASE AGREEMENT
between
WHOLE AUTO LOAN TRUST,
as Seller
and
BEAR XXXXXXX ASSET BACKED FUNDING INC.,
as Purchaser
Dated as of December 12, 2002
TABLE OF CONTENTS
Page
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1. DEFINITIONS...................................................................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER...................................................................1
3. CONVEYANCE OF THE .RECEIVABLES.................................................................................2
4. SELLER COVENANTS...............................................................................................2
5. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS....................................................................3
6. PROTECTION OF TITLE TO THE PURCHASER...........................................................................3
7. NOTICES........................................................................................................3
8. SUCCESSORS.....................................................................................................4
9. COUNTERPARTS...................................................................................................4
10. APPLICABLE LAW................................................................................................4
EXHIBIT A.......................................................................................................A-1
EXHIBIT B.......................................................................................................B-1
Appendix A.....................................................................................................A-A-1
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This RECEIVABLES PURCHASE AGREEMENT, dated as of December 12, 2002,
between WHOLE AUTO LOAN TRUST, a Delaware statutory trust (the "Seller"), and
BEAR XXXXXXX ASSET BACKED FUNDING 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 Whole Auto Loan Trust 2002-1, a Delaware statutory trust (the
"Issuer"). Following such sale, DaimlerChrysler Services North America LLC
("DCS") will continue to service the Receivables pursuant to the Servicing and
Administration Agreement dated as of October 26, 2001 (the "Receivables
Servicing Agreement") between DCS, as servicer (the "Receivables Servicer"),
the Seller and Bear Xxxxxxx Investment Products, Inc. DCS will act as a
subservicer for the Servicer pursuant to the Agreement to Subservice and
Acknowledgment dated as of December 12, 2002, between DCS, Bear Xxxxxxx Asset
Receivables Corp., as servicer (the "Servicer"), and the Purchaser.
The Receivables are the motor vehicle retail installment sale contacts
described in Exhibit A hereto.
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein (including the
Preliminary Statement) 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.
(c) With respect to the Receivables, DCS has made the representations and
warranties set forth in Exhibit B hereto.
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 without recourse (subject to the obligations herein) (x) all
right, title and interest of the Seller in and to (i) the Receivables; (ii)
monies received thereunder on or after the Cut-off Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Seller in the Financed Vehicles;
(iv) rights to receive proceeds with respect to the Receivables from claims on
any theft, physical damage, credit life, credit disability, or other insurance
policies covering Financed Vehicles or Obligors; (v) the Receivable Files
relating to the Receivables; (vi) payments and proceeds with respect to the
Receivables held by the Servicer; (vii) all property (including the right to
receive Liquidation Proceeds) securing a Receivable; (viii) rebates of
premiums and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cut-off Date; and (ix) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing and (y) all rights of the
Seller under (A) the Purchase Agreement dated as of October 29, 2001 between
Chrysler Financial Company L.L.C., as seller, and Bear, Xxxxxxx International
Limited, as purchaser, and (B) the Receivables Servicing Agreement (including
without limitation the representations and warranties of DCS thereunder), but
in the case of (A) and (B), only to the extent such rights relate to the
Receivables. 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 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 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
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. 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 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.
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(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. Protection of Title to the Purchaser.
(a) The Seller shall hereby authorizes the filing and agrees to file such
financing statements and 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 Receivables 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.
(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 Section 9-506(c) or Section
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 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 Whole Auto Loan Trust, c/o Chase Manhattan Bank USA,
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
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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.
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.
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.
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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.
WHOLE AUTO LOAN TRUST
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 INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A
Information as to the Receivables as of November 1, 2002. This information may
be provided in the form of a computer tape or disk.
Current
Issuer Loan ID Current Balance Group Coupon
------ ------- --------------- ------------
A-1
EXHIBIT B
DCS has made the following representations and warranties with respect to
the Receivables (capitalized terms used and not defined in this Exhibit B
shall have the meaning(s) ascribed thereto in the Servicing and Administration
Agreement dated as of October 26, 2001 (the "Receivables Servicing Agreement")
between DaimlerChrysler Services North America LLC, as servicer, Whole Auto
Loan Trust and Bear Xxxxxxx Investment Products, Inc.):
(a) no selection procedures believed by CFC to be adverse to the
Issuer were or will be used in selecting the Receivables for purchase
hereunder,
(b) each Receivable is an Eligible Receivable,
(c) there has been no material change in any Credit and Collection
Policy that would have a material adverse effect on the performance of
the Receivables,
(d) the Receivable Files are kept at one or more of the locations
listed in Schedule A to the Receivables Servicing Agreement,
(e) the latest scheduled maturity of any Receivable shall be no
later than the Final Scheduled Maturity Date,
(f) as of the Cut-Off Date, approximately 83.73% of the aggregate
principal balance of the Receivables, constituting approximately 76.42%
of the number of Receivables, represents new vehicles; all of the
Receivables are Simple Interest Receivables; and none of the Receivables
are Fixed Value Receivables or OSMC Receivables,
(g) as of the related Cut-off Date, no Obligor on a Receivable is
shown on the Receivable Files as the subject of a bankruptcy proceeding,
and
(h) the Seller's underwriting criteria with respect to the
Receivables was not materially different than CFC's underwriting criteria
with respect to its public retail receivable securitization transactions.
"Eligible Receivable" means, as of the Cut-Off Date, any Receivable:
(i) the Obligor of which (a) is a resident of the United States and (b)
is not an affiliate of the originating Dealer or any of the parties
hereto,
(ii) the Obligor of which is not the subject of any bankruptcy, insolvency
or reorganization proceeding or any other proceeding seeking the
entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of
its property,
(iii) which is not a Delinquent Receivable,
(iv) which is "chattel paper" within the meaning of Section 9-105 of the
UCC of all applicable jurisdictions,
(v) which is denominated and payable only in United States dollars in the
United States,
(vi) which (a) has been originated in the United States by a Dealer for
the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, (b) was fully and properly executed by the parties
thereto, (c) was purchased by the Seller from such Dealer under an
existing dealer agreement, (d) satisfies all applicable requirements
of the Credit and Collection Policy, and (e) which is assignable by
the Seller to the Issuer,
(vii) which is neither an OMSC Receivable nor a Fixed Value Receivable,
(viii) which does not have forced-placed physical damage insurance,
(ix) which arises under a Contract (a) which, together with such
Receivable, is in full force and effect and constitutes the genuine,
legal, valid and binding payment obligation in writing of the related
Obligor, enforceable against such Obligor in accordance with its
terms and (b) with respect to which (1) no default, breach,
violation, or event permitting acceleration under the terms thereof
has occurred and (2) there has not arisen any condition that, with
notice or lapse of time or both, would constitute a default, breach,
violation or event permitting acceleration under the terms thereof,
and the Seller has not waived and shall not waive any of the
foregoing,
(x) which, together with the related Contract, (a) is secured by a
perfected, valid, subsisting and enforceable first priority security
interest in favor of CFC in the related Financed Vehicle, (b)
contains customary and enforceable provisions such that the rights
and remedies of the holder of such security interest are adequate for
realization against the collateral of the benefits of the security,
and (c) was originated and transferred to the Seller without any
conduct constituting fraud or misrepresentation on the part of the
applicable Dealer or the Seller,
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(xi) which, together with the related Contract, immediately following the
execution of such Contract, was purchased by (and the originating
Dealer has validly assigned all of its right, title and interest
therein to) the Seller, and such purchase and assignment of such
Receivable, such Contract and the Related Security to the Seller is
expressly contemplated in such Contract,
(xii) which, together with the Contract related thereto, and the sale of
the Financed Vehicle complied at the time it was originated or made
and, at the execution of this Agreement, complies with all
requirements of, and does not contravene any, federal, state or local
laws and regulations, including usury laws, the federal
Truth-in-Lending Act, the Equal Credit Opportunity 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 Texas Consumer
Credit Code and State 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,
(xiii) the Financed Vehicle securing which (a) is free and clear of any
Adverse Claim other than the security interest therein then being
assigned by the Seller to the Issuer, and no enforcement action,
whether by repossession or otherwise, has been taken with respect to
such Financed Vehicle, and (b) is covered by the Required Insurance
in respect of such Financed Vehicle, and such Required Insurance is
in full force and effect, and the proceeds of the Required Insurance
have been assigned to the Seller and such proceeds are fully
assignable to the Issuer,
(xiv) with respect to the outstanding balance thereof, such outstanding
balance is scheduled to be paid in equal consecutive monthly
installments that fully amortize the Amount Financed by maturity,
(xv) which Receivable bears interest at the per annum rate stated on the
face of the related Contract, which per annum rate remains fixed
during the term of such Receivable and accrued interest on such
Receivable is payable monthly, in arrears,
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(xvi) which Receivable is not due from the United States of America or any
State or from any agency, department or instrumentality of the United
States of America or any State,
(xvii) which Receivable has not been satisfied, subordinated or rescinded,
nor has any Financed Vehicle been released from the lien granted by
the related Receivable in whole or in part,
(xviii) which Receivable has not been amended such that the amount of the
Obligor's scheduled payments has been increased,
(xix) as to which no provision of such Receivable or the related Contract
has been waived,
(xx) as to which Receivable and the related Contract, no right of
rescission, setoff, counterclaim or defense has been asserted or
threatened,
(xxi) which Receivable has not been originated in, and is not subject to
the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable or any Receivable under this Agreement
is unlawful, void or voidable,
(xxii) as to which Receivable, all filings (including UCC filings) necessary
in any jurisdiction to give the Issuer a first perfected ownership
interest in such Receivable shall have been made,
(xxiii) as to which Receivable, there is only one original executed copy of
the related Contract,
(xxiv) which Receivable has a final maturity date before September 30, 2008.
(xxv) (A) which Receivable has a first scheduled due date on or prior to
the end of the month following the related Cut-Off Date and (B)
which Receivable does not have a payment that is more than 30 days
overdue as of the related Cut-Off Date, and
(xxvi) which Receivable has an outstanding principal balance of at least
$1,000.00.
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