Exhibit 10.2
FORM OF RECEIVABLES PURCHASE AGREEMENT
between
[ ]
as Seller
and
BEAR ▇▇▇▇▇▇▇ ASSET BACKED FUNDING II INC.
as Depositor
Dated as of [ ]
-------------------------
Table of Contents
Page
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Article I
Interpretation
Section 1.01. Definitions and Usage.................................1
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.............................2
Section 2.02. The Closing...........................................2
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor.......3
Section 3.02. Representations and Warranties of the Seller..........4
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor.............9
Section 4.02. Conditions to Obligation of the Seller...............10
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and Interest..............11
Section 5.02. Other Liens or Interests.............................12
Section 5.03. Costs and Expenses...................................12
Section 5.04. Hold Harmless........................................12
Article VI
Indemnification
Section 6.01. Indemnification......................................12
Section 6.02. Contribution.........................................14
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Article VII
Miscellaneous Provisions
Section 7.01. Obligations of Seller................................15
Section 7.02. Repurchase Events....................................15
Section 7.03. Depositor Assignment of Repurchased Receivables......15
Section 7.04. Transfer to the Issuer...............................15
Section 7.05. Amendment............................................16
Section 7.06. Waivers..............................................16
Section 7.07. Notices..............................................16
Section 7.08. Costs and Expenses...................................17
Section 7.09. Representations of the Seller and the Depositor......17
Section 7.10. Confidential Information.............................17
Section 7.11. Headings and Cross-References........................17
Section 7.12. GOVERNING LAW........................................17
Section 7.13. Counterparts.........................................17
Section 7.14. Third Party Beneficiary..............................17
Section 7.15. No Proceedings.......................................17
Schedule A Schedule of Receivables
Schedule B Location of Receivable Files
Appendix A Definitions and Usage
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RECEIVABLES PURCHASE AGREEMENT dated as of [Closing Date] (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), between [SELLER], a [ ], as seller (in such capacity, together
with its permitted successors and permitted assigns in such capacity, the
"Seller") and BEAR ▇▇▇▇▇▇▇ ASSET BACKED FUNDING II INC., a Delaware
corporation, as depositor (together with its successors and permitted assigns,
the "Depositor").
RECITALS
WHEREAS, the Depositor desires to purchase a portfolio of receivables
and related property consisting of motor vehicle installment loan contracts
originated by the Seller in the ordinary course of its business;
WHEREAS, the Seller and the Depositor wish to set forth the terms
pursuant to which such portfolio of receivables and related property are to be
sold by the Seller to the Depositor; and
WHEREAS, the Depositor intends, concurrently with its purchase
hereunder, to convey all of its right, title and interest in and to all of
such portfolio of receivables and related property to [ISSUER], a Delaware
statutory trust (the "Issuer") pursuant to a Sale and Servicing Agreement
dated as of [Closing Date] (the "Sale and Servicing Agreement"), by and among
the Issuer, the Depositor, [SERVICER], as servicer (the "Servicer") [list if
multiple servicers], and the Issuer intends to pledge all of its right, title
and interest in and to such portfolio of receivables and related property to
the Indenture Trustee pursuant to the Indenture dated as of [ ] (the
"Indenture"), by and between the Issuer and the Indenture Trustee.
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
Interpretation
Section 1.01. Definitions and Usage. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
Article II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon the order of
the Seller on the Closing Date of $[ ] (the "Purchase Price"), the Seller
does hereby irrevocably sell, transfer, assign, set over and otherwise convey
to the Depositor, without recourse (subject to the obligations of the Seller
set forth herein) all right, title, and interest of the Seller, whether now or
hereinafter acquired, in and to the Receivables Property.
(b) The transfer, assignment and conveyance made hereunder shall not
constitute and is not intended to result in an assumption by the Depositor of
any obligation of the Seller to the Obligors or any other Person in connection
with the Receivables and the other Receivables Property or any agreement,
document or instrument related thereto.
(c) The Seller and the Depositor intend that the transfer of assets by
the Seller to the Depositor pursuant to this Agreement be a sale of the
ownership interest in such assets to the Depositor, rather than the mere
granting of a security interest to secure a borrowing. In the event, however,
that such transfer is deemed not to be a sale but to be of a mere security
interest to secure a borrowing, the Seller shall be deemed to have hereby
granted to the Depositor a security interest in all accounts, money, chattel
paper, securities, instruments, documents, deposit accounts, certificates of
deposit, letters of credit, advices of credit, banker's acceptances,
uncertificated securities, general intangibles, contract rights, goods and
other property consisting of, arising from or relating to such Receivables
Property, which security interest shall be perfected and of first priority,
and this Agreement shall constitute a security agreement under applicable law.
Pursuant to [the Sale and Servicing Agreement and] Section 7.04 hereof, the
Depositor may sell, transfer and assign to the Issuer (i) all or any portion
of the assets assigned to the Depositor hereunder, (ii) all or any portion of
the Depositor's rights against the Seller under this Agreement and (iii) all
proceeds thereof. Such assignment may be made by the Depositor with or without
an assignment by the Depositor of its rights under this Agreement, and without
further notice to or acknowledgement from the Seller. The Seller waives, to
the extent permitted under applicable law, all claims, causes of action and
remedies, whether legal or equitable (including any right of setoff), against
the Depositor or any assignee of the Depositor relating to such action by the
Depositor [in connection with the transactions contemplated by the Sale and
Servicing Agreement].
Section 2.02. The Closing. The sale and purchase of the Receivables
Property shall take place at a closing at [ ] on the Closing Date[,
simultaneously with the closing under (a) the Sale and Servicing Agreement,
(b) the Indenture and (c) the Trust Agreement.]
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Article III
Representations and Warranties
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Seller and the
Indenture Trustee as of the date hereof and the Closing Date:
(a) Organization and Good Standing. The Depositor is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware, with all requisite power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is currently conducted.
(b) Due Qualification. The Depositor is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do so would
materially and adversely affect the Depositor's ability to acquire the
Receivables or the other Receivables Property or the validity or
enforceability of the Receivables or the other Receivables Property.
(c) Power and Authority. The Depositor has all corporate power and
authority to execute, deliver and perform this Agreement and the other Basic
Documents to which it is a party and to carry out their respective terms; the
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Issuer, and the Depositor shall
have duly authorized such sale and assignment to the Issuer by all necessary
corporate action; and the execution, delivery and performance of this
Agreement and the other Basic Documents to which the Depositor is a party have
been duly authorized by the Depositor by all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic Documents to
which the Depositor is a party, when duly executed and delivered by the other
parties hereto and thereto, shall constitute legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
to general principles of equity (whether applied in a proceeding at law or in
equity).
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do 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 or both) a default under, the
certificate of incorporation or the by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a party or
by which it is bound, or violate any law, rules or regulation applicable to
the Depositor of any court or federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Depositor.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Depositor's knowledge, threatened against the Depositor before any
court, regulatory body,
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administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity
of this Agreement or any other Basic Document to which the Depositor is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document to which the
Depositor is a party or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement or any
other Basic Document to which the Depositor is a party.
(g) No Consents. The Depositor is not required to obtain the consent of
any other party or any consent, approval, registration, authorization, or
declaration of or with any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity, or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
Section 3.02. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants as follows to the Depositor
and the Indenture Trustee as of the date hereof and as of the Closing Date:
(i) Organization and Good Standing. The Seller is a [ ] duly
organized and validly existing under the laws of [the State of ] and
continues to hold a valid certificate to do business as such, and has the
power to own its assets and to transact the business in which it is
currently engaged. The Seller is duly authorized to transact business and
has obtained all necessary licenses and approvals, and is in good
standing in each jurisdiction in which the character of the business
transacted by it or any properties owned or leased by it requires such
authorization.
(ii) Power and Authority. The Seller has the power and authority to
make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement and the other Basic
Documents to which the Seller is a party, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement and the other Basic Documents to which the Seller is a party.
When executed and delivered, this Agreement and the other Basic Documents
to which the Seller is a party will constitute legal, valid and binding
obligations of the Seller enforceable in accordance with their respective
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(iii) No Violation. The execution, delivery and performance by the
Seller of this Agreement and the other Basic Documents to which the
Seller is a party will not violate any provision of any existing state,
federal or, to the best knowledge of the Seller, local law or regulation
or any order or decree of any court applicable to the Seller or any
provision of the articles of association or incorporation or the bylaws
of the Seller, or constitute a breach of any mortgage, indenture,
contract or other agreement to which the Seller is a party or by which
the Seller may be bound or result in the creation or imposition of any
lien upon any of the Seller's properties pursuant to any such mortgage,
indenture, contract or other agreement (other than this Agreement).
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(iv) No Proceedings. There are no proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any other
Basic Document to which the Seller is a party, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement or any other Basic Document to which the Seller is a party or
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations under,
or the validity or enforceability of, this Agreement or any other Basic
Document to which the Seller is a party.
(v) Chief Executive Office. The chief executive office of the Seller
is located at [ ].
(vi) No Consents. The Seller is not required to obtain the consent
of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority,
bureau or agency in connection with the execution, delivery, performance,
validity, or enforceability of this Agreement or any other Basic Document
to which it is a party that has not already been obtained.
(vii) No Notice. The Seller represents and warrants that it acquired
title to the Receivables and the other Receivables Property in good
faith, without notice of any adverse claim.
(viii) Bulk Transfer. The Seller represents and warrants that the
transfer, assignment and conveyance of the Receivables and the other
Receivables Property by the Seller pursuant to this Agreement are not
subject to the bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction.
(ix) Seller Information. No certificate of an officer, statement or
document furnished in writing or report delivered pursuant to the terms
hereof by the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate,
statement, document or report not misleading.
(x) Ordinary Course. The transactions contemplated by this Agreement
and the other Basic Documents to which the Seller is a party are in the
ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the Seller be
made insolvent by the transfer of the Receivables Property, nor does the
Seller anticipate any pending insolvency.
(xii) Legal Compliance. The Seller is not in violation of, and the
execution and delivery by the Seller of this Agreement and the other
Basic Documents to which the Seller is a party and its performance and
compliance with the terms of this Agreement and the other Basic Documents
to which the Seller is a party will not constitute a violation with
respect to, any order or decree of any court or any order or
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regulation of any federal, state, municipal or governmental agency having
jurisdiction, which violation would materially and adversely affect the
Seller's condition (financial or otherwise) or operations or any of the
Seller's properties or materially and adversely affect the performance of
any of its duties under the Basic Documents.
(xiii) Creditors. The Seller did not sell the Receivables or the
other Receivables Property to the Depositor with any intent to hinder,
delay or defraud any of its creditors.
(b) The Seller makes the following representations and warranties with
respect to the Receivables, on which the Depositor relies in accepting the
Receivables and in transferring the Receivables to the Issuer under the Sale
and Servicing Agreement, and on which the Issuer relies in pledging the same
to the Indenture Trustee. Such representations and warranties speak as of the
execution and delivery of this Agreement and as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to the Depositor,
the [concurrent] [subsequent] sale, transfer and assignment of the Receivables
by the Depositor to the Issuer pursuant to the Sale and Servicing Agreement
and the pledge of the Receivables by the Issuer to the Indenture Trustee
pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (A) was
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, was fully and properly executed by the parties thereto, was
purchased by the Seller from such Dealer under an existing dealer
agreement, (B) has created or shall create a valid, subsisting and
enforceable first priority security interest in favor of the Seller and
is assignable by the Seller to the Issuer and by the Issuer to the
Indenture Trustee, (C) contains customary and enforceable provisions such
that the rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security, and
(D) generally provides for level monthly payments (provided, that the
payment in the first or last month in ________ the life of the Receivable
may be minimally different from the level payments). No Receivable
conveyed to the Issuer on the Closing Date has forced-placed physical
damage insurance.
(ii) Schedule of Receivables. The information set forth in Schedule
A to this Agreement is true and correct in all material respects as of
the opening of business on the applicable Cut-off Date, and no selection
procedures believed to be adverse to the Purchaser or the Trust were
utilized in selecting the Receivables. The computer tape or other listing
regarding the Receivables made available to the Purchaser and its assigns
(which computer tape or other listing is required to be delivered as
specified herein) is true and correct in all respects.
(iii) Compliance with Law. Each Receivable and the sale of the
Financed Vehicle complied at the time it was originated or made and, at
the execution of this Agreement, complies in all material respects with
all requirements of applicable federal, state and local laws and
regulations thereunder, 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
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▇▇▇▇▇▇▇▇-▇▇▇▇ 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.
(iv) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms.
(v) No Government Obligor. None of the Receivables is 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.
(vi) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment and transfer thereof, each Receivable shall be secured
by a validly perfected first security interest in the Financed Vehicle in
favor of the Seller as secured party or all necessary and appropriate
actions have been commenced that would result in the valid perfection of
a first security interest in the Financed Vehicle in favor of the Seller
as secured party.
(vii) Receivables in Force. No Receivable has 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.
(viii) No Amendments. No Receivable has been amended such that the
amount of the Obligor's scheduled payments has been increased.
(ix) No Waiver. No provision of a Receivable has been waived.
(x) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable.
(xi) No Liens. To the best of the Seller's knowledge, no liens or
claims have been filed for work, labor or materials relating to a
Financed Vehicle that are liens prior to, or equal to or coordinate with,
the security interest in the Financed Vehicle granted by any Receivable.
(xii) No Default. No Receivable has a payment that is more than [ ]
days overdue as of the related Cut-off Date, and, except as permitted in
this paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred; and no
continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable has arisen; and the Seller has not
waived and shall not waive any of the foregoing.
(xiii) Insurance. The Seller, in accordance with its customary
procedures, has determined that, at the origination of the Receivable,
the Obligor had
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obtained physical damage insurance covering the Financed
Vehicle and under the terms of the Receivable the Obligor is required to
maintain such insurance.
(xiv) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated 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 debtor's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned or
pledged by the Seller to any Person other than the Purchaser. 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,
encumbrances, security interests and rights of others and, immediately
upon the transfer thereof, the Purchaser shall have good and marketable
title to each Receivable, free and clear of all Liens, encumbrances,
security interests and rights of others; and the transfer has been
perfected under the UCC.
(xv) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer
and assignment of such Receivable or any Receivable under this Agreement,
the Sale and Servicing Agreement or the Indenture is unlawful, void or
voidable.
(xvi) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Issuer a first perfected
ownership interest in the Receivables, and to give the Indenture Trustee
a first perfected security interest therein, shall have been made.
(xvii) One Original. There is only one original executed copy of
each Receivable.
(xviii) Maturity of Receivables. Each Receivable has a final
maturity date before [ ].
(xix) Scheduled Payments. (A) Each Receivable has a first scheduled
due date on or prior to the end of the month following the related
Cut-off Date and (B) no Receivable has a payment that is more than 30
days overdue as of the related Cut-off Date, and has a final scheduled
payment date no later than [ ] [the Final Scheduled Payment Date].
(xx) Location of Receivable Files. The Receivable Files are kept at
one or more of the locations listed in Schedule B.
(xxi) Remaining Maturity. The latest scheduled maturity of any
Receivable shall be no later than [ ] [the Final Scheduled Payment Date].
(xxii) Outstanding Principal Balance. Each Receivable has an
outstanding principal balance of at least $[1,000.00].
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(xxiii) No Bankruptcies. No Obligor on any Receivable as of the
related Cut-off Date was noted in the related Receivable File as the
subject of a bankruptcy proceeding.
(xxiv) No Repossessions. No Financed Vehicle securing any Receivable
is in repossession status.
(xxv) Chattel Paper. Each Receivable constitutes "chattel paper" as
defined in the UCC.
(xxvi) Agreement. The representations of the Seller in Section
3.02(a) are true and correct.
(xxvii) Financing. As of the Cut-off Date, approximately [ ]% of the
aggregate principal balance of the Receivables, constituting [ ]% of the
number of Receivables, represents new vehicles; and approximately [100%]
of the Receivables calculate interest based upon the Simple Interest
Method. The aggregate principal balance of the Receivables, as of the
Cut-off Date is $[ ].
Article IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor. The obligation
of the Depositor to purchase the Receivables is subject to the satisfaction
of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Closing Date, indicate in its computer files that the Receivables
have been sold to the Depositor pursuant to this Agreement and deliver to the
Depositor the Schedule of Receivables, certified by the Seller's President,
Vice President or Treasurer to be true, correct and complete.
(c) Documents to be Delivered by the Seller on the Closing Date:
(i) Evidence of UCC Filing. On or prior to the Closing Date,
the Seller shall record and file, at its own expense, a UCC-1 financing
statement in the State of [ ] naming the Seller, as seller/debtor, and
naming the Depositor, as buyer/secured party, describing the Receivables
and the other assets assigned to the Depositor pursuant to Section 2.01,
meeting the requirements of the laws of such jurisdiction and in such
manner as is necessary to perfect the sale, transfer, assignment and
conveyance of the Receivables and such other assets to the Depositor. The
Seller shall deliver to the Depositor a file-stamped copy or other
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evidence satisfactory to the Depositor of such filing on or prior to the
Closing Date. In the event that the Seller fails to perform its
obligations under this clause (i), the Depositor may perform, or cause to
be performed, such obligations, at the Seller's expense.
(ii) Opinions of Seller's Counsel. On or prior to the Closing
Date, the Depositor shall have received the opinions of counsel to the
Seller, in form and substance satisfactory to the Depositor, as to the
matters the Depositor has heretofore requested or may reasonably request.
(iii) Other Documents. Such other documents as the Depositor
may reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Closing Date shall be consummated on such date.
Section 4.02. Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Depositor shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Depositor shall
have delivered to the Seller the purchase price specified in Section 2.01
hereof.
(c) Opinion of Counsel. The Depositor shall have furnished to the Seller
an Opinion of Counsel, dated the Closing Date, to the effect that:
(i) the Depositor is a corporation and has been duly organized, is
validly existing and is in good standing under the laws of the State of
Delaware, with all corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) this Agreement, the Sale and Servicing Agreement and the Trust
Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms
except as limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, receivership, conservatorship or similar laws
relating to or affecting creditors' rights generally, except that such
counsel need express no opinion as to the availability of equitable
remedies or the enforceability of rights of indemnification for
violations of federal securities laws;
(iii) no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation by the Depositor
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of the transactions contemplated herein, except for the filing of the
UCC-1 financing statements relating to the conveyance of the Receivables
and the other Receivables Property by the Seller to the Depositor and
such other approvals (which shall be specified in such opinion) as have
been obtained and such filings as have been made or are in the process of
being made; and
(iv) none of the execution and delivery of this Agreement, the Sale
and Servicing Agreement or the Trust Agreement, the consummation of any
other of the transactions herein or therein contemplated or the
fulfillment of the terms hereof or thereof will conflict with, result in
a breach or violation of, or constitute a default under, the certificate
of incorporation or by-laws of the Depositor or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Depositor is a party or by which it is bound, or any judgment,
order or decree known to such counsel to be applicable to the Depositor
of any court, regulatory body, administrative agency, governmental body,
or arbitrator having jurisdiction over the Depositor.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated
on the Closing Date shall be consummated on such date.
Article V
Covenants of the Seller
The Seller agrees with the Depositor and the Indenture Trustee as
follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause at its own expense all financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Seller, the Depositor, the Trust
and the Indenture Trustee, respectively, in and to the Receivables and the
other property included in the Trust Estate to be promptly filed and at all
times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Depositor hereunder, the Trust under the Sale and
Servicing Agreement and the Indenture Trustee under the Indenture in and to
the Receivables and the other property included in the Trust Estate. The
Seller shall deliver to the Depositor and the Indenture Trustee file stamped
copies of, or filing receipts for, any document recorded, registered or filed
as provided above, as soon as available following such recordation,
registration or filing. The Depositor shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this paragraph.
(b) Name Change. If the Seller makes any change in its name, identity or
corporate structure that would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute or if the
Seller changes the jurisdiction under whose laws it is formed,
11
the Seller shall give the Depositor, the Indenture Trustee and the Owner
Trustee written notice thereof at least 45 days prior to such change and shall
promptly file such financing statements or amendments as may be necessary to
continue the perfection of the Depositor's interest in the property conveyed
pursuant to Section 2.01. In the event that the Seller fails to perform its
obligations under this subsection (b), the Depositor may perform, or cause to
be performed, such obligations, at the Seller's expense.
Section 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Seller shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Seller shall defend the right, title and interest of the Depositor,
the Trust and the Indenture Trustee in, to and under the Receivables against
all claims of third parties claiming through or under the Seller.
Section 5.03. Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all
third parties claiming through or under the Seller, of the Depositor's, the
Issuer's and the Indenture Trustee's right, title and interest in and to the
Receivables and the other property included in the Trust Estate.
Section 5.04. Hold Harmless. The Seller shall protect, defend, indemnify
and hold the Depositor, the Issuer and their respective assigns and their
employees, officers, directors and agents harmless from and against all
losses, liabilities, claims and damages of every kind and character, including
any legal or other expenses reasonably incurred, as incurred, resulting from
or relating to or arising out of (i) the inaccuracy, nonfulfillment or breach
of any representation, warranty, covenant or agreement made by the Seller in
this Agreement, (ii) any legal action, including, without limitation, any
counterclaim, that has either been settled by the litigants or has proceeded
to judgment by a court of competent jurisdiction, in either case to the extent
it is based upon alleged facts that, if true, would constitute a breach of any
representation, warranty, covenant or agreement made by the Seller in this
Agreement, (iii) any actions or omissions of the Seller occurring prior to the
Closing Date with respect to any of the Receivables or Financed Vehicles or
(iv) any failure of a Receivable to be originated in compliance with all
applicable requirements of law. These indemnity obligations shall be in
addition to any obligation that the Seller may otherwise have.
Article VI
Indemnification
Section 6.01. Indemnification.
(a)[The Seller agrees to indemnify and hold harmless the Depositor, each
of its respective directors, each officer of the Depositor who signed the
Registration Statement, and each person or entity who controls the Depositor
or any such person, within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint and several,
to which the Depositor, or any such person or entity may become subject, under
the Securities Act or otherwise, and will reimburse the Depositor, and each
such controlling person
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for any legal or other expenses reasonably incurred by the Depositor or such
controlling person in connection with investigating or defending any such
loss, claims, damages or liabilities insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact made by
the Seller contained in the Prospectus Supplement or any amendment or
supplement to the Prospectus Supplement or the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements in the Prospectus Supplement or any amendment or supplement to the
Prospectus Supplement, in the light of the circumstance under which they were
made, not misleading, but, in each case, only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission relates
to the information contained in the Prospectus Supplement under the captions:
[ ]; and in the Base Prospectus under the caption [ ] (such information, the
"Seller Information"). This indemnity agreement will be in addition to any
liability which the Seller may otherwise have to the Depositor or any
affiliate thereof pursuant to Section 5.04 of this Agreement or otherwise.]
(b) The Depositor agrees to indemnify and hold harmless the Seller and
each Person who controls the Seller within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities,
joint and several, to which the Seller, or any such person or entity may
become subject, under the Securities Act or otherwise, and will reimburse the
Seller and each such controlling Person for any legal or other expenses
reasonably incurred by the Seller or such controlling Person in connection
with investigating or defending any such losses, claims, damages or
liabilities insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of material fact contained in the Registration
Statement or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or the Prospectus or any amendment or supplement to the
Prospectus Supplement or the Prospectus or the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements in the Prospectus Supplement or the Prospectus or any amendment or
supplement to the Prospectus Supplement, in the light of the circumstances
under which they were made, not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to the information contained in the Prospectus Supplement or the
Prospectus other than the Seller Information. This indemnity agreement will be
in addition to any liability which the Depositor may otherwise have.
(c) Promptly after receipt by any indemnified party under this Article VI
of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Article VI, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article VI except to the extent it has
been materially prejudiced by such failure; provided, further, that the
failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Article VI.
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If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Article VI for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
appropriate for such indemnified party to employ separate counsel; or (iii)
the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party, it being understood,
however, the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties, which firm shall be designated in writing by the Depositor, if the
indemnified parties under this Article VI consist of the Depositor, or by the
Seller, if the indemnified parties under this Article VI consist of the
Seller.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 6.01(a) and (b), shall use its commercially reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding.
Section 6.02. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Article VI is for any reason held to be unenforceable although applicable
in accordance with its terms, the Seller, on the one hand, and the Depositor,
on the other, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Seller and the Depositor [in such proportions as shall be
appropriate to reflect the relative
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benefits received by the Seller on the one hand and the Depositor on the other
from the sale of the Receivables such that the Depositor is responsible for
that portion represented by the underwriting discount set forth on the cover
page of the Prospectus Supplement, and the Seller shall be responsible for the
balance] [in such proportions as shall be appropriate to reflect the relative
fault on the part of the Seller on the one hand and the Depositor on the
other]; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6.02, each Person,
if any, who controls the Depositor within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the Depositor and
each Person, if any, who controls the Seller within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the
Seller. Notwithstanding anything in this Section 6.02 to the contrary, the
Depositor shall not be required to contribute an amount in excess of the
amount of the underwriting discount appearing on the cover page of the
Prospectus Supplement.
Article VII
Miscellaneous Provisions
Section 7.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Receivable.
Section 7.02. Repurchase Events. The Seller hereby covenants and agrees
with the Depositor for the benefit of the Depositor, the Indenture Trustee,
the Issuer, the Owner Trustee, the Certificateholders and the Noteholders that
the occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.02(b) that materially and adversely affects
the interests of the Issuer, the Indenture Trustee, the Owner Trustee, the
Certificateholders or the Noteholders in any Receivable, without regard to any
limitation set forth in such representation or warranty concerning the
knowledge of the Seller as to the facts stated therein, shall constitute an
event obligating the Seller to repurchase the Receivables to which such
failure or breach is applicable (each, a "Repurchase Event"), at the Purchase
Amount, from the Depositor, unless any such failure or breach shall have been
cured by the last day of the first Collection Period commencing after the
discovery or notice thereof by or to the Seller or the Servicer.
Section 7.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Seller all of the Depositor's right, title and interest in
and to such Receivables and all security and documents relating thereto.
Section 7.04. Transfer to the Issuer. The Seller acknowledges and agrees
that (1) the Depositor will, pursuant to the Sale and Servicing Agreement,
transfer and assign the Receivables and assign its rights under this Agreement
with respect thereto to the Issuer and, pursuant to the Indenture, the Issuer
will pledge the Receivables to the Indenture Trustee, and (2) the
representations and warranties contained in this Agreement and the rights of
the Depositor under this Agreement, including under Section 7.02, are intended
to benefit the Issuer, the Indenture Trustee, the Noteholders and the
Certificateholder. The Seller hereby consents to
15
such transfers and assignments and agree that enforcement of a right or remedy
hereunder by the Indenture Trustee, the Owner Trustee or the Issuer shall have
the same force and effect as if the right or remedy had been enforced or
executed by the Depositor.
Section 7.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, but without the consent of
the Noteholders or the Certificateholders, by a written amendment duly
executed and delivered by the Seller and the Depositor, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or Certificateholders; provided that such amendment shall not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or Certificateholder; provided, further, that such
action shall be deemed not to adversely affect in any material respect the
interests of any Noteholder or Certificateholder and no Opinion of Counsel to
that effect shall be required if the person requesting the amendment obtains a
letter from the Rating Agencies stating that the amendment would not result in
the downgrading or withdrawal of the ratings of then assigned to the Notes and
the Certificates. This Agreement may also be amended by the Seller and the
Depositor, with prior written notice to the Rating Agencies and the prior
written consent of [Holders of Notes evidencing at least a majority of the
Outstanding Amount of the Class [ ] Notes, Holders of Class [ ] Notes
evidencing at least a majority of the Class [ ] Note Balance and Holders of
Class [ ] Certificates evidencing at least a majority of the Class [ ]
Certificate Balance (excluding, for purposes of this Section 7.05,
Certificates held by the Seller or any of its affiliates)], for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of Noteholders or
Certificateholders or (ii) reduce the aforesaid percentage of [the Class [ ]
Notes, the Class [ ] Notes or the Class [ ] Certificates] that is required to
consent to any such amendment, without the consent of the Holders of all the
outstanding Notes and Certificates.
Section 7.06. Waivers. No failure or delay on the part of the Depositor,
the Issuer or the Indenture Trustee in exercising any power, right or remedy
under this Agreement 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 7.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, faxed and followed by
first class mail, or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Depositor, to Bear ▇▇▇▇▇▇▇ Asset Backed Funding II Inc., c/o Bear, ▇▇▇▇▇▇▇ &
Co. Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile: (212)
272-0979, Attention: [ ]; (b) in the case of the Servicer, Administrator and
Custodian, to [ ] Attention: [ ], (c) in the case of the Seller, [ ],
Attention: [ ]; (d) in the case of the Issuer or the Owner Trustee, at the
Corporate Trust Administration Department (as defined in the Trust Agreement);
(e) in the case of [RATING AGENCY], to [ADDRESS], Attention: [___], and (f) in
the case of [RATING AGENCY], to [ADDRESS], Attention: [___];
16
or, as to each of the foregoing, at such other address as shall be designated
by written notice to the other parties.
Section 7.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, in connection with the perfection of the Depositor's, the Issuer's
and the Indenture Trustee's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder as
contemplated by the Basic Documents.
Section 7.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section
2.02 and the transfers and assignments referred to in Section 7.04.
Section 7.10. Confidential Information. The Depositor agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors
or any other personally identifiable information of an Obligor, except in
connection with the enforcement of the Depositor's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement or any other Basic
Document, or as required by any of the foregoing or by law.
Section 7.11. 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 and to appendices, exhibits or schedules
are to such Sections, Appendices, Exhibits or Schedules, as applicable, of
this Agreement.
Section 7.12. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
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 OR THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 7.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 7.14. Third Party Beneficiary. The Indenture Trustee is an
express third party beneficiary of this Agreement and shall be entitled to
enforce the provisions of this Agreement as if it were a party hereto.
Section 7.15. No Proceedings. So long as this Agreement is in effect, and
for one year plus one day following its termination, each of the Seller and
the Depositor agrees that it will not file any involuntary petition or
otherwise institute any bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy law or similar law against the Trust.
17
IN WITNESS WHEREOF, the parties hereto have caused this Receivables
Purchase Agreement to be executed by their respective duly authorized officers
as of the date and year first above written.
[SELLER], as Seller
By:
---------------------------------------
Name:
Title:
BEAR ▇▇▇▇▇▇▇ ASSET BACKED FUNDING II INC.,
as Depositor
By:
----------------------------------------
Name:
Title:
SCHEDULE A
Schedule of Receivables
-----------------------
[On file with the Indenture Trustee]
SCHEDULE B
Location of Receivable Files
----------------------------
[ ]
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APPENDIX A
Definitions and Usage
---------------------
[Form of Appendix A attached to the Form of Indenture (Exhibit 4.3)]