EXHIBIT 10.2
EXECUTION COPY
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CONTRIBUTION AGREEMENT
by and between
BAY VIEW ACCEPTANCE CORPORATION,
as Contributor,
and
BAY VIEW WAREHOUSE CORPORATION,
as Depositor
________________________________________
Dated as of June 20, 2005
________________________________________
UP TO $450,000,000
WAREHOUSE FUNDING FACILITY
________________________________________
TABLE OF CONTENTS
SECTION HEADING PAGE
CONTRIBUTION AGREEMENT............................................................................................ 1
ARTICLE I CERTAIN DEFINITIONS........................................................................ 1
ARTICLE II TRANSFER AND ACQUISITION OF RECEIVABLES.................................................... 2
Section 2.01. Transfer and Acquisition of Receivables.................................................... 2
Section 2.02. The Closing................................................................................ 4
Section 2.03. Funding Dates.............................................................................. 4
ARTICLE III REPRESENTATIONS AND WARRANTIES............................................................. 4
Section 3.01. Representations, Warranties and Covenants of the Depositor................................ 4
Section 3.02. Representations, Warranties and Covenants of the Contributor............................... 6
Section 3.03. Repurchase of Receivables.................................................................. 19
Section 3.04. Depositor's Assignment of Repurchased Receivables.......................................... 21
Section 3.05. Survival of Representations and Warranties................................................. 21
ARTICLE IV CONDITIONS................................................................................. 21
Section 4.01. Conditions to Obligation of the Depositor.................................................. 21
Section 4.02. Conditions to Obligation of the Contributor................................................ 23
ARTICLE V COVENANTS OF THE CONTRIBUTOR............................................................... 25
Section 5.01. Protection of Right, Title and Interest.................................................... 25
Section 5.02. Other Liens or Interest.................................................................... 26
Section 5.03. Principal Executive Office; Jurisdiction of Organization................................... 26
Section 5.04. Costs and Expenses......................................................................... 26
Section 5.05. No Waiver.................................................................................. 27
Section 5.06. Contributor's Records...................................................................... 27
Section 5.07. Cooperation by Contributor................................................................. 27
Section 5.08. Notice of Breach........................................................................... 27
ARTICLE VI INDEMNIFICATION............................................................................ 28
Section 6.01. Indemnification ........................................................................... 28
ARTICLE VII MISCELLANEOUS.............................................................................. 29
Section 7.01. Obligations of Contributor................................................................. 29
Section 7.02. Subsequent Transfer and Pledge............................................................. 29
Section 7.03. Amendment.................................................................................. 29
Section 7.04. Waivers.................................................................................... 29
Section 7.05. Notices.................................................................................... 30
Section 7.06. Representations............................................................................ 30
Section 7.07. Headings and Cross-References.............................................................. ▇▇
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▇▇▇▇▇▇▇ 7.08. Governing Law.............................................................................. 30
Section 7.09. Counterparts............................................................................... 30
Section 7.10. No Bankruptcy Petition Against the Depositor or the Issuer or Any Noteholder............... 30
Section 7.11. Third Party Beneficiaries.................................................................. 30
Section 7.12. Material Adverse Effect.................................................................... 31
Section 7.13. TRIAL BY JURY WAIVED....................................................................... 31
Section 7.14. CONSENTS TO JURISDICTION................................................................... 31
Section 7.15. Severability of Provisions................................................................. 32
Section 7.16. Rights Cumulative.......................................................................... 32
Section 7.17. No Offset.................................................................................. 32
Section 7.18. Assignment and Binding Effect.............................................................. 32
Section 7.19. Captions................................................................................... 32
Section 7.20. Legal Holidays............................................................................. 32
Section 7.21. Relationship of the Parties................................................................ 33
Section 7.22. Reports to Holders......................................................................... 33
Section 7.23. Integration; Binding Effect; Survival of Terms............................................. 33
EXHIBIT A - FORM OF CONTRIBUTOR ASSIGNMENT...................................................................... A-1
EXHIBIT B - FORM OF CONTRACT.................................................................................... B-1
EXHIBIT C - CONTRIBUTOR'S UNDERWRITING GUIDELINES............................................................... C-1
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") is made as of this 20th day
of June, 2005, by and between BAY VIEW ACCEPTANCE CORPORATION, a Nevada
corporation (the "Contributor"), and BAY VIEW WAREHOUSE CORPORATION, a
corporation established under the laws of the State of Delaware (the
"Depositor"), having its principal place of business in San Mateo, California.
WHEREAS, the Contributor has acquired and will acquire in the ordinary
course of business, certain Receivables, secured by a security interest granted
by the related Obligors in the related Financed Vehicles; and
WHEREAS, the Contributor and the Depositor wish to set forth the terms and
provisions pursuant to which the Receivables are to be transferred by the
Contributor to the Depositor on the Closing Date and on each Funding Date, which
Receivables will then be transferred from the Depositor to Bay View 2005
Warehouse Trust (the "Issuer") and then granted by the Issuer to JPMorgan Chase
Bank, N.A., as indenture trustee (the "Indenture Trustee") for the benefit of
the Noteholders (the "Noteholders"), pursuant to the terms of that certain
Indenture dated of even date herewith (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture") by and between the Issuer
and the Indenture Trustee.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Agreement shall have the
meanings set forth in the Indenture or, if not defined therein, in the Sale and
Servicing Agreement. As used in this Agreement, the following terms shall,
unless the context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural forms of such terms
and to the masculine, feminine and neuter genders of such terms):
"Assignments" mean, collectively, the Contributor Assignment and the
Depositor Assignment, or either one.
"Contributed Assets" means, with respect to each Receivable all right,
title and interest of the Contributor in, to and under (i) the security interest
in the related Financed Vehicle Granted by the related Obligor pursuant to such
Receivable and any accessions thereto, and other interests of the Contributor in
the Financed Vehicles and accessions including, without limitation, the related
Certificate of Title; (ii) any service warranties and service contracts and any
physical damage, credit life, risk default, disability, gap or other insurance
policies covering the related Financed Vehicle or the related Obligor or refunds
in connection therewith relating to
Receivables (including, without limitation, state tax refunds) and any proceeds
from liquidation of the Receivables or Financed Vehicles received after the
related Cutoff Date; (iii) all property (including the right to receive future
Recoveries) that shall secure a Receivable; (iv) the rights that relate to a
Receivable under each Dealer Agreement, including, but not limited to, any
recourse against any Dealer; (v) rebates or refunds of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables or otherwise covering an Obligor or a Financed Vehicle; (vi) the
original retail installment contract and security agreement and any amendments
thereof evidencing the Receivables; (vii) all documentation in the Custodian
File and other documents maintained by the Contributor according to its
customary procedures with respect to Receivables, Financed Vehicles or Obligors;
and (viii) the proceeds of any and all of the foregoing including all proceeds
of the conversion, voluntary or involuntary, of any of the foregoing into cash
or other property whether now or hereafter arising.
"Contributor Address " means ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Contributor Assignment" means the document of assignment substantially in
the form attached to this Agreement as Exhibit A.
"Custodian File" shall have the meaning assigned to it in Section 4.01(d).
"Depositor Address" means ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Initial Receivable" means each Receivable listed on Schedule I hereto,
each of which was contributed to the Depositor by the Contributor and then
transferred from the Depositor to the Issuer and a security interest in which
was simultaneously granted by the Issuer to the Indenture Trustee on the Closing
Date.
"Receivables Purchase Price" means the amount paid to the Contributor
under this Agreement or to the Depositor under the Sale and Servicing Agreement,
which amount shall be equal to the Receivables Advance Amount paid to the Issuer
under the Indenture.
"Subsequent Receivable" means, with respect to each Funding Date, each
Receivable listed on Schedule I to the related Contributor Assignment, each of
which was contributed to the Depositor by the Contributor and then transferred
from the Depositor to the Issuer on such Funding Date.
ARTICLE II
TRANSFER AND ACQUISITION OF RECEIVABLES
Section 2.01. Transfer and Acquisition of Receivables. On the Closing Date
and on each Funding Date, subject to the terms and conditions of this Agreement,
the Contributor agrees to transfer to the Depositor, and the Depositor agrees to
acquire from the Contributor, the Initial Receivables and the related Subsequent
Receivables, respectively, and the Contributed Assets relating thereto.
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(a) Initial Transfer of Receivables. On the Closing Date, simultaneously
with the transactions set forth in the Indenture and the Sale and Servicing
Agreement, the Contributor shall transfer to the Depositor, without recourse
except as set forth herein (i) the Initial Receivables, and all moneys received
thereon on or after the Initial Cutoff Date; and (ii) the related Contributed
Assets.
(b) Consideration for Initial Receivables. In consideration of the
Receivables and the related Contributed Assets described in Section 2.01(a), the
Contributor shall, on the Closing Date, receive (i) an amount equal to the
Receivables Purchase Price in immediately available funds to the extent of the
net proceeds received from the Noteholders from the sale of the Notes under the
Note Purchase Agreement, and (ii) to the extent that the value of such
Contributed Assets exceeds such Receivables Purchase Price, an increase in the
value of the stock of the Depositor, which is a wholly-owned subsidiary of the
Contributor.
(c) Transfer of Subsequent Receivables. On each Funding Date, the
Contributor shall transfer to the Depositor, without recourse except as set
forth herein (i) the related Subsequent Receivables, and all moneys received
thereon on or after the applicable Cutoff Date and (ii) the related Contributed
Assets; provided, however, that Subsequent Receivables may not be transferred by
the Contributor to the Depositor and then transferred from the Depositor to the
Issuer, or a security interest granted by the Issuer to the Indenture Trustee
unless each of the conditions precedent in Section 2.12 of the Indenture has
been satisfied.
(d) Consideration for Subsequent Receivables. Upon two (2) Business Days'
prior written notice given by the Depositor to the Issuer and then from the
Issuer to the Indenture Trustee, the Depositor shall cause the Issuer to cause
the Indenture Trustee, on the applicable Funding Date, to pay to the Issuer
which will pay the Depositor which will pay the Contributor an amount equal to
the Receivables Purchase Price with respect to the related Subsequent
Receivables in immediately available funds to the extent of the net proceeds
received from the Noteholders from the sale of Additional Note Principal
Balances. To the extent that the value of any such Subsequent Receivables
exceeds the Receivables Purchase Price with respect thereto, the Depositor shall
receive an increase in the value of its ownership interest in the Issuer, and
the Contributor shall receive an increase in the value of the stock of the
Depositor, which is a wholly-owned subsidiary of the Contributor.
(e) Transfer. It is the intention of the Contributor and the Depositor
that each transfer hereunder constitute an absolute transfer of the Receivables
and the related Contributed Assets from the Contributor to the Depositor with
the intention of removing them from the Contributor's estate pursuant to ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, as the same may be amended from time
to time, or any successor provision thereto. If, notwithstanding the express
intention of the parties, this Agreement is deemed not to constitute an absolute
transfer of the Receivables and the Contributed Assets from the Contributor to
the Depositor, this Agreement shall be deemed to be a security agreement within
the meaning of Article 8 and Article 9 of the Uniform
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Commercial Code as in effect in the State of New York, and the conveyance
provided for in this Section 2.01 shall be deemed to be a grant by the
Contributor to the Depositor of a valid first priority perfected security
interest in all of the Contributor's right, title and interest in and to
the Receivables and the Contributed Assets.
Section 2.02. The Closing. The transfer of the Initial Receivables from
the Contributor to the Depositor shall take place at a closing (the "Closing")
on the Closing Date, simultaneously with the transfer of such Initial
Receivables from the Depositor to the Issuer and the grant by the Issuer of all
of its right, title and interest in and to the Initial Receivables and related
Contributed Assets to the Indenture Trustee for the benefit of the Noteholders,
and the issuance of the Notes pursuant to the Indenture.
Section 2.03. Funding Dates. The transfer of Subsequent Receivables on a
Funding Date shall take place at such location as the Contributor, the
Depositor, the Issuer and the Indenture Trustee may reasonably agree. The
transfer of Subsequent Receivables shall be made in accordance with Sections
2.12 through 2.14 of the Indenture pursuant to which (a) the Contributor will
transfer all of its right, title and interest in and to the Subsequent
Receivables and the related Contributed Assets to the Depositor, (b) the
Depositor will transfer all of its right, title and interest in and to the
Subsequent Receivables and the related Deposited Assets to the Issuer, and (c)
the Issuer will confirm the grant of all of its right, title and interest in and
to such Subsequent Receivables and the related Contributed Assets to the
Indenture Trustee for the benefit of the Noteholders, the Agent and the
Financial Institutions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations, Warranties and Covenants of the Depositor.
The Depositor hereby represents and warrants to the Contributor, and in the case
of (g) below, makes the following covenants for the benefit of the Contributor,
as of the Closing Date and each Funding Date:
(a) Organization, Etc. The Depositor is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware with full power and authority to execute and deliver
this Agreement and to perform the terms and provisions hereof; the
Depositor is duly qualified to do business as a foreign business entity in
good standing, and has obtained all required licenses and approvals, if
any, in all jurisdictions in which the ownership or lease of property or
the conduct of its business (including, without limitation, the purchase
of the Receivables from the Contributor hereunder and under each
Contributor Assignment, the conveyance of the Receivables by the Depositor
pursuant to the Sale and Servicing Agreement and each Depositor
Assignment, and the performance of its other obligations under this
Contribution Agreement, the Sale and Servicing Agreement, each Assignment
and the other Transaction Documents to which it is a party) requires such
qualifications except those jurisdictions in which failure to be so
qualified would not have a material adverse effect on the business or
operations of the Depositor, on the ability of the Depositor to perform
its obligations under the Transaction
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Documents or on the Noteholders, the Issuer, the Receivables or any other
part of the Trust Estate.
(b) Due Authorization. The execution, delivery and performance by
the Depositor of this Agreement have been duly authorized by all necessary
corporate or other action, do not require any approval or consent of any
Person, do not and will not conflict with any provision of the Certificate
of Incorporation or By-laws of the Depositor, and do not and will not
conflict with or result in a breach which would constitute (with or
without notice or lapse of time) a default under any agreement, indenture,
mortgage, deed of trust, or other instrument binding upon or applicable to
it or its property or any law or governmental regulation or court decree
applicable to it or its property, do not and will not result in the
creation or imposition of any Lien upon any of its properties pursuant to
the terms of any indenture, agreement, mortgage, deed of trust, or other
instrument (other than as expressly provided in the Transaction
Documents), and this Agreement is the legal, valid and binding obligation
of the Depositor enforceable in accordance with its terms except as the
same may be limited by insolvency, bankruptcy, reorganization or other
laws relating to or affecting the enforcement of creditors' rights or by
general equity principles.
(c) No Proceedings. There are no proceedings or investigations
pending, or to the Depositor's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties:
(A) asserting the invalidity of this Contribution Agreement, any
Assignment, the Sale and Servicing Agreement, the Notes, or any other
Transaction Document; (B) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this
Contribution Agreement, any Assignment, the Sale and Servicing Agreement
or any other Transaction Document to which it is a party; (C) 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 Contribution Agreement, any Assignment, the Sale
and Servicing Agreement, the Notes or any other Transaction Document to
which it is a party; (D) which might adversely affect the federal or state
income, excise, franchise or similar tax attributes of the Notes; or (E)
that could reasonably be expected to have a material adverse effect on the
Receivables.
(d) Business Purpose. The Depositor will acquire the Receivables for
a bona fide business purpose and has undertaken the transactions
contemplated herein as principal rather than as agent for the Contributor
or any other person.
(e) Depositor's Records. The books and records of the Depositor will
disclose that the Contributor made a valid assignment of the Receivables
to the Depositor; provided, however, the Depositor acknowledges that,
solely for the purposes of generally accepted accounting principles, the
Receivables will appear as assets of the Contributor and its consolidated
subsidiaries in the consolidated financial statements of such Persons
(which financial statements will include a footnote stating that the
Receivables are not available to satisfy the Contributor's creditors).
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(f) Depositor's Address. The Depositor Address is, and has been
since its date of incorporation, the chief place of business and the
office where the Depositor keeps its records concerning the Receivables
and the Contributed Assets. The Depositor's chief executive office is and
has been since its date of incorporation ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Depositor's jurisdiction of incorporation
is, and has been since its date of incorporation, Delaware.
(g) Taxes. All tax returns or extensions required to be filed by the
Depositor in any jurisdiction (other than jurisdictions in which the
failure to file would not have a material adverse effect on the Depositor,
the Depositor's ability to perform its obligations under the Transaction
Documents, any Noteholder or any Receivable or any other part of the Trust
Estate) have in fact been filed, and all taxes, assessments, fees and
other governmental charges upon the Depositor, or upon any of the
properties, income or franchises shown to be due and payable on such
returns have been, or will be, paid or are being contested in good faith
by appropriate proceedings with respect to which the Agent has received
written notice. To the knowledge of the Depositor, all such tax returns
are true and correct and the Depositor has no knowledge of any proposed
additional tax assessment against it in any material amount nor of any
basis therefor.
(h) Accuracy of Information. All information heretofore furnished by
the Depositor for purposes of or in connection with any of the Transaction
Documents or any transaction contemplated hereby or thereby is, and all
such information hereafter furnished by the Depositor will be, true and
accurate in every material respect on the date such information is stated
or certified and does not and will not contain any material misstatement
of fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading.
(i) Material Adverse Change. Since December 31, 2004, no event has
occurred that would have a material adverse effect on (i) the financial
condition or operations of Depositor, (ii) the ability of Depositor to
perform its obligations under the Transaction Documents, or (iii) the
collectibility of the Receivables generally or any material portion of the
Receivables.
(j) Compliance with Laws. The Depositor has complied in all respects
with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject ,except where
the failure to so comply could not reasonably be expected to have a
material adverse effect on the Depositor, any Noteholder, any Receivable
or other part of the Trust Estate.
Section 3.02. Representations, Warranties and Covenants of the
Contributor. The Contributor hereby represents and warrants to the Depositor as
of the Closing Date and each Funding Date (except as otherwise provided):
(a) On the Closing Date, with respect to the Initial Receivables,
and on the related Funding Date, with respect to the Subsequent
Receivables:
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(i) Characteristics of Receivables. Each Receivable (A) was
originated by the Contributor or a Dealer for the retail sale or
refinancing of a Financed Vehicle in the ordinary course of the
Contributor's or such Dealer's business, and the Contributor or such
Dealer had all necessary licenses and permits to originate Receivables in
the State where the Contributor or such Dealer was located (except for any
Ineligible Receivable), was fully and properly executed by the parties
thereto, and, in the case of Receivables originated by a Dealer, was
purchased by the Contributor from such Dealer under an existing Dealer
Agreement with the Contributor and was validly assigned by such Dealer to
the Contributor, (B) contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for
realization against the collateral security, (C) is not a Rule of 78s
Receivable or a pre-computed interest Receivable, but is a fully
amortizing simple interest receivable which provides for level monthly
payments (provided that the payment or payments in the first Collection
Period and the final Collection Period of the life of the Receivable may
be different from the level payment) which, if made when due, shall fully
amortize the Amount Financed over the original term, (D) provides that, in
the event such Receivable is prepaid, such prepayment fully pays the
principal balance and all accrued and unpaid interest through the date of
such prepayment at an interest rate equal to or greater than the APR, (E)
has not been amended, rewritten, modified or deferred, nor any provision
thereof waived, except in accordance with the Collection Policy and the
provisions of the Transaction Documents, (F) is payable in United States
dollars and (G) does not entitle the Contributor to reduce, nor has the
Contributor reduced, the APR under such Receivable to below 4%. No
Subsequent Receivable will be a Chapter 13 Receivable, an Ultra Receivable
or a Lendco Receivable, as of its transfer date.
(ii) No Fraud or Misrepresentation. Each Receivable was originated
by a Dealer and sold by such Dealer to the Contributor, or was originated
by the Contributor, without any fraud or material misrepresentation on the
part of such Dealer or on the part of the related Obligor.
(iii) Compliance with Law. Each Receivable and each sale of Financed
Vehicles complied all material respects at the time such Receivable or
sale was originated or made and now complies in all material respects with
all requirements of applicable federal, State and local laws, and
regulations thereunder (including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Federal
Trade Commission Credit Practice Rules, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z," the Servicemembers'
Civil Relief Act of 2003, Division 3 of the California Vehicle Code, state
unfair and deceptive trade practice laws 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) Origination. Each Receivable was originated in the United
States and each Receivable (other than the Lendco Receivables and the
Ultra Receivables), at the time of origination, conformed to requirements
of the Contributor's then current
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"Underwriting Guidelines" (the most recent copy of which is attached
hereto as Exhibit C) and credit policies applicable to such Receivable.
(v) 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 (A) as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered
in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the related Cut-off Date of the
Servicemembers' Civil Relief Act of 2003 as amended; and all parties to
each Receivable had full legal capacity to execute and deliver such
Receivable and all other documents related thereto and to grant the
security interest purported to be granted thereby.
(vi) Obligors. Each Obligor is domiciled in the United States. None
of the Obligors is an Affiliate of Bay View Acceptance or is employed by
Bay View Acceptance. None of the Obligors is the United States of America
or any State or local government or any agency, department, subdivision or
instrumentality thereof. No Receivable has been included in a "fleet" sale
(i.e., a sale to any single obligor of more than five (5) Financed
Vehicles.
(vii) Obligor Bankruptcy. At the related Cutoff Date, no Obligor has
been identified on the Contributor's records as being the subject of a
current bankruptcy proceeding as a debtor, except for Obligors under
Chapter 13 Receivables.
(viii) Schedule of Receivables. The information pertaining to each
Receivable set forth in the Schedule of Receivables has been produced from
the Contributor's electronic ledger and was true and correct in all
material respects as of the close of business on the related Cutoff Date
and at the Closing Date or the related Funding Date, as applicable.
(ix) Marked Records. By the Closing Date or the related Funding
Date, as applicable, each of the Contributor and the Depositor will have
caused the portions of its records relating to the Receivables to be
clearly and unambiguously marked to show that the Receivables have been
transferred by the Contributor to the Depositor hereunder, and have been
transferred by the Depositor to the Issuer and constitute part of the
Trust Estate pledged to the Indenture Trustee.
(x) Computer Tape or Listing. The computer tape made available by
the Contributor to the Backup Servicer on the Closing Date or the related
Funding Date was complete and accurate (excluding any typographical or
clerical errors that do not affect the outstanding balance of Receivables
listed on such computer tape) as of the related Cutoff Date and includes a
description of the same Receivables that are described in the Schedule of
Receivables.
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(xi) Chattel Paper. The Receivables constitute electronic or
tangible chattel paper within the meaning of the UCC.
(xii) One Original. There is only one original executed copy of each
Receivable.
(xiii) Custodian Files Complete. There exists a Custodian File
pertaining to each Receivable, and such Custodian File contains: (A) a
fully executed original of the related retail installment contract, and an
acknowledgment of the Custodian that it holds such Receivable for the
benefit of the Noteholders, (B) evidence of either (1) a certificate of
insurance, (2) an application form for insurance signed by the Obligor or
(3) a signed representation letter from the Obligor named in the
Receivable pursuant to which the Obligor has agreed to obtain physical
damage insurance for the related Financed Vehicle, (C) the original or
electronic equivalent of the Certificate of Title or, with respect to a
Certificate of Title filed electronically, a report prepared by a third
party service that shows such service maintains perfection related to such
Certificate of Title on behalf of the Servicer; or, if the Certificate of
Title has not yet been received, and in the case of each electronic
Certificate of Title, an application therefor, or a copy of such
Certificate of Title with a copy of the application filed to amend the
Certificate of Title to indicate the security interest of the Contributor
in the related Financed Vehicle, (D) the original executed copy or
electronic equivalent of an original credit application signed by the
Obligor; (E) the originals of all assumption, consolidation, extension,
modification or waiver agreements, if any, relating to such Receivable
except for any such item listed above which has been preserved by
electronic means; (F) any other documents that the Servicer shall keep on
file, in accordance with its customary procedures, or reasonably required
by the Issuer, from time to time to be kept on file, relating to a
Receivable, the related Obligor or the related Financed Vehicle; and (G)
any additional original loan documents evidencing any assumption,
consolidation, extension, modification or waiver of a Receivable approved
by the Servicer. Each of such documents which is required to be signed by
the Obligor has been signed by the Obligor in the appropriate spaces. All
blanks on any form have been properly filled in and each form has
otherwise been correctly prepared in all material respects. The complete
Custodian File for each Receivable is currently in the possession of the
Custodian.
(xiv) 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. No provisions of any Receivable have been waived,
altered or modified in any respect since its origination, except by
instruments or documents identified in the Custodian File held by the
Custodian and in accordance with the Collection Policy in all material
respects. Any modification to any Receivable necessary to comply with the
Servicemembers' Civil Relief Act of 2003, as amended, has been made in
compliance with the Act and any laws related thereto.
-9-
(xv) Lawful Assignment. No Receivable was originated in, or is
subject to the laws of any jurisdiction, the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement, the Sale and Servicing Agreement or the
Indenture. The Contributor has not entered into any agreement with any
account debtor that prohibits, restricts or conditions the assignment of
any portion of the Receivables. Each Receivable, by its terms, is
assignable.
(xvi) Good Title. No Receivable has been sold, transferred, assigned
or pledged by the Contributor to any Person other than the Depositor.
Immediately prior to the conveyance of the Receivables to the Depositor
pursuant to this Agreement, the Contributor was the sole owner thereof and
had good and indefeasible title thereto, free of any Lien, and, upon
execution and delivery of this Agreement and the applicable Contributor
Assignment by the Contributor, the Depositor shall have good and
indefeasible title to and will be the sole owner of such Receivables, free
of any Lien. No Dealer has a participation in, or other right to receive,
proceeds of any Receivable. The Contributor has not taken any action to
convey any right to any Person that would result in such Person having a
right to payments received under the related Insurance Policies or the
related Dealer Agreements or to payments due under such Receivables.
(xvii) Security Interest in Financed Vehicle. Each Receivable from
each respective Obligor is secured by a valid, binding and enforceable
first priority perfected security interest in favor of the Contributor in
the Financed Vehicle. The Certificate of Title for each Financed Vehicle
shows (or, if a new or replacement Certificate of Title is being applied
for with respect to such Financed Vehicle, the Certificate of Title will
be received within one hundred eighty (180) days of the Closing Date or
the related Funding Date, as applicable, and will show) the Contributor
named as the original secured party under each Receivable as the holder of
a first priority perfected security interest in such Financed Vehicle.
With respect to each Receivable for which the Certificate of Title has not
yet been returned from the applicable governmental authority, the Servicer
has received written evidence from the related Dealer that such
Certificate of Title showing the Contributor as first lienholder has been
applied for. If the Receivable was originated in a State in which the
filing or recording of a financing statement under the UCC is required to
perfect a security interest in motor vehicles, such filings or recordings
have been duly made and show the Contributor named as the original secured
party under the related Receivable. As of the Initial Cutoff Date or the
related Subsequent Cutoff Date, as applicable, there were no Liens or
claims for taxes, work, labor, storage or materials affecting a Financed
Vehicle which are or may be Liens prior or equal to the lien of the
related Receivable. Each security interest in the Financed Vehicles has
been or, with respect to Subsequent Receivables, will be as of the related
Funding Date, validly assigned by the Contributor to the Depositor
pursuant to this Agreement and the related Contributor Assignment.
(xviii) All Filings Made. On the Closing Date or the related Funding
Date, as applicable, filings (including, without limitation, UCC filings)
required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Depositor a first
priority perfected ownership interest in the Initial
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Receivables and the Subsequent Receivables, respectively, and the proceeds
thereof have been made, taken or performed or will be made, taken or
performed on or prior to the Closing Date or the related Funding Date, as
applicable, and as of the Closing Date or the related Funding Date, as
applicable, the Depositor has or will have, as applicable, such a first
priority perfected ownership interest.
(xix) No Impairment. The Contributor has not done anything to convey
any right to any Person that would result in such Person having a right to
payments due under the Receivables or otherwise to impair the rights of
the Depositor, the Issuer, the Indenture Trustee and the Noteholders in
any Receivable or the proceeds thereof.
(xx) Receivable Not Assumable. No Receivable is assumable by another
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to the Contributor with respect to such Receivable.
(xxi) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense and no such right has been
asserted or threatened with respect to any Receivable. The operation of
the terms of any Receivable or the exercise of any right thereunder will
not render such Receivable unenforceable in whole or in part or subject to
any such right of rescission, setoff, counterclaim or defense.
(xxii) No Default. There has been no uncured default, breach,
violation or event permitting acceleration under the terms of any
Receivable (other than payment delinquencies of not more than sixty (60)
days as of the Initial Cutoff Date or the related Funding Date, as
applicable, or payment delinquencies of sixty (60) days or more that have
been cured on or prior to the Closing Date or related Funding Date, as
applicable), and no condition exists or event has occurred and is
continuing that with notice, the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration under the
terms of any Receivable, and there has been no waiver of any of the
foregoing. As of the Initial Cutoff Date and the Subsequent Cutoff Date,
as applicable, no related Financed Vehicle funded on such date had been
repossessed from the related Obligor or repossessed by the Servicer from
any other Person.
(xxiii) Insurance. At the time of the origination of each Receivable
with a Receivable Balance of $50,000 or greater, the related Financed
Vehicle was covered by a comprehensive and collision insurance policy (A)
in an amount at least equal to the lesser of (i) its maximum insurable
value or (ii) the principal amount due from the Obligor under the related
Receivable, (B) naming the Contributor and its successors and assigns as
loss payee and (C) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage. Each Receivable that finances the
cost of premiums for gap, credit life and credit accident and health
insurance is covered by such an Insurance Policy. The Financed Vehicle
relating to each Receivable that finances the cost of an extended service
contract is covered by such a service contract. Each Receivable requires
the Obligor to maintain physical loss and damage insurance, naming the
Contributor and its successors and assigns as additional insured parties,
and each Receivable permits the holder thereof to
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obtain physical loss and damage insurance at the expense of the Obligor if
the Obligor fails to do so.
(xxiv) Receivables. (A) Each Receivable had an original maturity of
not less than eighteen (18) and not more than ninety-seven (97) months;
(B) each Receivable has an Annual Percentage Rate (exclusive of prepaid
finance charges) of at least 4%; (C) no Receivable was a Defaulted
Receivable or a Delinquent Receivable as of the Cutoff Date; (D) no funds
have been advanced by the Depositor, the Contributor, the Servicer, the
Issuer, any Dealer, or anyone acting on behalf of any of them in order to
cause any Receivable to qualify under subclause (B) of this clause (xxiv);
(E) none of the Receivables have been re-aged (except for Receivables
extended in compliance with Section 7.01(c)); (F) the Receivable Balance
of each Receivable set forth in the Schedule of Receivables is true and
accurate in all material respects as of the related Cutoff Date; (G) no
more than five percent (5%) of the Aggregate Receivable Balance may be
Receivables with individual principal balances in excess of $100,000.00
(after giving effect to acquisitions on such Funding Date) and (H) the
application with respect to the Certificate of Title for each Receivable
has been applied for.
(xxv) Subsequent Receivables. The addition of Subsequent Receivables
on any Funding Date shall not occur unless each of the funding conditions
set forth in Section 2.12 of the Indenture have been satisfied and unless
each of the following representations and warranties are true and correct
on the related Cutoff Date (with each Receivable Balance or APR for any
Receivable measured as of its related Cutoff Date):
(A) no more than (i) 35% (determined by the Aggregate
Receivable Balance) of all of the Receivables pledged to the
Indenture Trustee, after taking into consideration the Subsequent
Receivables pledged to the Indenture Trustee on such Funding Date,
shall have been originated in each of California, Florida and
Tennessee;
(B) no more than 25% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have been
originated in each Core State other than California or Florida or
Tennessee;
(C) no more than 10% (determined by the Aggregate Receivable
Balance) of all Receivables pledged to the Indenture Trustee, after
taking into consideration the Subsequent Receivables pledged to the
Indenture Trustee on such Funding Date, shall have been originated
in each Non-Core State;
(D) no more than 40% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have had a FICO
Score at the time of origination thereof equal to or below 700;
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(E) no more than 15% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have had a FICO
Score at the time of origination thereof equal to or below 660;
(F) no more than 5% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have had a FICO
Score at the time of origination thereof below 640;
(G) no more than 35% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have an
original term of more than 84 months;
(H) no more than 85% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have an
original term of more than 72 months;
(I) no more than 75% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have been, at
the time of origination thereof, associated with a Financed Vehicle
which is a used vehicle;
(J) no more than 20% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall be associated
with a Financed Vehicle which has a model year greater than 5 years
prior to the calendar year in which such Funding Date occurs;
(K) at least 95% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivables pledged
to the Indenture Trustee on such Funding Date, shall have been, at
the time of origination thereof, associated with a Financed Vehicle
which is a passenger car, sport utility vehicle or light- duty
truck;
(L) no more than $50,000 of all of the Receivables pledged to
the Indenture Trustee, after taking into consideration the
Subsequent Receivables pledged to the Indenture Trustee on such
Funding Date, shall be Lendco Receivables or Ultra Receivables; and
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(M) no more than 0.50% (determined by the Aggregate Receivable
Balance) of all of the Receivables pledged to the Indenture Trustee,
after taking into consideration the Subsequent Receivable pledged to
the Indenture Trustee on such Funding Date, shall be Chapter 13
Receivables.
(xxvi) No Adverse Selection. No selection procedures adverse to the
Noteholders have been utilized in selecting such Receivable from all other
similar receivables originated or acquired by the Contributor.
(xxvii) Form of Contract. For any State wherein 10% or more,
determined by the Aggregate Receivable Balance, of all Receivables have
been pledged to the Indenture Trustee, each such Receivable contains
provisions that give the obligee substantially the same benefits as
provided in one of the form contracts attached as Exhibit B hereto, except
for such immaterial modifications or deviations from such form contracts
which appear in certain Receivables or which may appear in the future form
contracts of the Contributor or which the Contributor acquires; any such
modifications or deviations from the form loan contracts will not have a
material adverse effect on the Noteholders.
(xxviii) Loss or Destruction. As of the related Cutoff Date, no
Financed Vehicle related to a Receivable has been the subject of a total
loss or destruction.
(xxix) No Obligation to Dealers. The Depositor and its assignees
will assume no obligation to Dealers or other holders of the Receivables
as a result of its acquisition of the Receivables.
(xxx) No Future Obligation. The full Amount Financed of each
Receivable has been advanced to or on behalf of each Obligor, and there
are no requirements for future advances thereunder. The Obligor with
respect to each Receivable does not have any option under such Receivable
to borrow from the Contributor or any Affiliate additional funds secured
by the Financed Vehicle.
(xxxi) Prior Servicing. The servicing of each Receivable and the
collection practices relating thereto have been lawful and in accordance
with the standards set forth in the Collection Policy in all material
respects; other than the Servicer and any backup servicer arrangement that
has been entered into in accordance with the provisions of the Transaction
Documents, no other person has the right to service any Receivable.
(xxxii) Licenses. The Contributor, at the time of origination of
each Receivable and as of Closing Date, with respect to the Initial
Receivables, and as of the applicable Funding Date, with respect to the
Subsequent Receivables, was in possession of all State and local licenses
(including all debt collection licenses) required for it to acquire and
own such Receivable and service such Receivable in accordance with the
Contributor's Collection Policy in effect on such date and to perform its
services as Servicer under the Sale and Servicing Agreement, and none of
such licenses has been suspended, revoked or terminated, except where the
failure of the Contributor to obtain and maintain any such license could
not have a material adverse effect on the Issuer, any Noteholder or any
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Receivable or other part of the Trust Estate or the Contributor's ability
to perform its obligations as Contributor, Custodian or Servicer under the
Transaction Documents.
(xxxiii) Payment Instructions. No Person has provided any payment
instructions to any Obligor that are inconsistent with the provisions of
Section 7.01(d) of the Sale and Servicing Agreement.
Notwithstanding anything to the contrary herein, within thirty (30) days after
the Closing Date, the Contributor shall provide the forms of contracts for each
such Receivable required pursuant to Section 3.02(a)(xxvii) hereof and the
representations and warranties made by the Contributor, prior to such delivery,
pursuant to Section 3.02(a)(xxvii) hereof , shall be deemed to be true and
correct in all respects.
(b) Organization and Good Standing. The Contributor has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Nevada, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted. The Contributor is not
organized under the laws of any jurisdiction other than Nevada.
(c) Due Qualification. The Contributor is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
required licenses and approvals, if any, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
(including, without limitation, the purchase of the Receivables from the
Dealers under the applicable Dealer Agreement, the conveyance of the
Receivables by the Contributor pursuant to this Agreement and each
Contributor Assignment, and the performance of its other obligations under
this Agreement, the applicable Dealer Agreement, each Contributor
Assignment and the other Transaction Documents to which it is a party)
requires such qualification except those jurisdictions in which failure to
be so qualified would not have a material adverse effect on the business
or operations of the Contributor, on the ability of the Contributor, on
the ability of the Contributor to perform its obligations under the
Transaction Documents or on the Issuer, any Noteholder, the Receivables or
other part of the Trust Estate.
(d) Power and Authority. The Contributor has the power and authority
to execute and deliver this Agreement and the other Transaction Documents
to which it is a party and to carry out its terms and their terms,
respectively; Contributor has, all power, authority and legal right to
acquire, own and transfer the Receivables and Contributed Assets to the
Depositor; and the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party have been duly
authorized by the Contributor by all necessary corporate action.
(e) Binding Obligations. This Agreement and the other Transaction
Documents to which the Contributor is a party, when duly executed and
delivered by the other parties hereto and thereto, shall constitute legal,
valid and binding obligations of the Contributor enforceable in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar
-15-
laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless
of whether such enforceability is considered in a proceeding in equity or
at law.
(f) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Transaction Documents to which it is a
party and the fulfillment of the terms of this Agreement and the other
Transaction Documents to which it is a party shall not conflict with,
result in any breach of any of the terms and provisions of or constitute
(with or without notice, lapse of time or both) a default under, the
articles of incorporation or by-laws of the Contributor, or any material
indenture, agreement, mortgage, deed of trust or other material to which
the Contributor is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, or violate any material law, order, rule or regulation
applicable to the Contributor of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Contributor or any of its
properties, or in any way materially adversely affect the interests of the
Noteholders or the Indenture Trustee in any Receivable or other part of
the Trust Estate, or affect the Contributor's ability to perform its
obligations under this Agreement or any other Transaction Document.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the Contributor's knowledge, threatened against the
Contributor, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction over
the Contributor or its properties (i) asserting the invalidity of this
Agreement or any of the other Transaction Documents, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the other
Transaction Documents, (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Contributor
of its obligations under, or the validity or enforceability of, this
Agreement or any of the other Transaction Documents, (iv) seeking to
adversely affect the federal income tax or other federal, State or local
tax attributes of the Notes or (v) that could reasonably be expected to
have a material adverse effect on the Receivables.
(h) Approvals. All approvals, authorizations, consents, orders or
other actions of any person, corporation or other organization, or of any
court, governmental agency or body or official, required in connection
with the execution and delivery by the Contributor of this Agreement and
the Transaction Documents have been or will be taken or obtained on or
prior to the Closing Date.
(i) Contributor Address. The Contributor Address is, and has been
for the five year period immediately preceding the Closing Date, the chief
place of business and the office where the Contributor keeps its records
concerning the Receivables and the Contributed Assets. The Contributor's
chief executive office is, and has been for the five-year period
immediately preceding the Closing Date, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
-▇▇-
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Contributor's jurisdiction of incorporation
is, and has been for the 5-year-period immediately preceding the Closing
Date, Nevada.
(j) Change in Name; Jurisdiction of Incorporation; Form of
Organization. The Contributor shall not change its corporate name or the
name under or by which it does business or change its jurisdiction of
incorporation or its form of organization except in accordance with
Section 5.01(b) hereof.
(k) Solvency of the Contributor :
i. The Contributor does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and every
covenant contained in this Agreement.
ii. The transactions contemplated by the Transaction Documents
are being consummated by the Contributor in furtherance of its
ordinary business purposes, with no contemplation of insolvency and
with no intent to hinder, delay or defraud any of its present or
future creditors.
iii. Neither on the date of the transactions contemplated by
the Transaction Documents or immediately before or after such
transactions, nor as a result of the transactions, will the
Contributor:
(A) be insolvent such that the sum of its debts is
greater than all of its respective property, at a fair
valuation;
(B) be engaged in or about to engage in, business or a
transaction for which any property remaining with the
Contributor will be an unreasonably small capital or the
remaining assets of the Contributor will be unreasonably small
in relation to its respective business or the transaction; and
(C) have intended to incur or believed it would incur,
debts that would be beyond its respective ability to pay as
such debts mature or become due. The Contributor's assets and
cash flow enable it to meet its present obligations in the
ordinary course of business as they become due.
iv. Both immediately before and after the transactions
contemplated by the Transaction Documents (a) the present fair
salable value of the Contributor's assets was or will be in excess
of the amount that will be required to pay its probable liabilities
as they then exist and as they become absolute and matured; and (b)
the sum of the Contributor's assets was or will be greater than the
sum of its debts, valuing its assets at a fair salable value.
v. There are no proceedings or investigations pending, or to
the knowledge of the Contributor, threatened, against or affecting
the Contributor in
-17-
or before any court, governmental authority or agency or arbitration
board or tribunal (including, but not limited to any such proceeding
or investigation with respect to any environmental or other
liability resulting from the ownership of the Receivables) which,
individually or in the aggregate, involve the possibility of
materially and adversely affecting the properties, business,
prospects, profits or condition (financial or otherwise) of the
Contributor, or the ability of the Contributor to perform its
obligations under this Agreement. The Contributor is not in default
with respect to any order of any court, governmental authority or
agency or arbitration board or tribunal.
(l) Taxes. All tax returns or extensions required to be filed by the
Contributor in any jurisdiction (other than jurisdictions in which the
failure to file would not have a material adverse effect on the Issuer,
any Noteholder, any Receivable or any other part of the Trust Estate or
the Contributor and the performance of its obligations under this
Agreement, each Dealer Agreement and the other Transaction Documents to
which it is a party) have in fact been filed, and all taxes, assessments,
fees and other governmental charges upon the Contributor, or upon any of
the properties, income or franchises shown to be due and payable on such
returns have been, or will be, paid or is being contested in good faith by
appropriate proceedings with respect to which the Agent has received
written notice. To the knowledge of the Contributor, all such tax returns
are true and correct in all material respects and the Contributor has no
knowledge of any proposed additional tax assessment against it in any
material amount nor of any basis therefor. The provisions for taxes on the
books of the Contributor are in accordance with generally accepted
accounting principles.
(m) Consolidated Returns. The Contributor, the Issuer and the
Depositor are members of an affiliated group within the meaning of Section
1504 of the Internal Revenue Code which will file a consolidated federal
income tax return at all times until termination of the Transaction
Documents.
(n) Intent of Transactions. It is the intention of the Contributor
and the Depositor that the Receivables and the Contributed Assets are
owned by the Issuer as of the Closing Date or the related Funding Date, as
applicable, and that the beneficial interest in and title to the
Receivables and the Contributed Assets are not part of the Contributor's
estate in the event of the filing of a bankruptcy petition by or against
the Contributor under any bankruptcy law.
(o) Stock of Depositor. The Contributor is the registered owner of
all of the shares of common stock of the Depositor, all of which are fully
paid and nonassessable and owned of record, free and clear of all
mortgages, assignments, pledges, security interests, warrants, options and
rights to purchase other than those (if any) granted pursuant to the
Transaction Documents.
(p) Notes as Debt. Each of the Contributor, the Depositor and their
shareholders and stockholders shall treat the Receivables and the
Contributed Assets as owned by the Issuer for legal purposes and owned by
the Contributor and its consolidated
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subsidiaries for federal, state and local income tax purposes, shall
include in the computation of the gross income of the Contributor and its
consolidated subsidiaries for such purposes the income from the
Receivables and the Contributed Assets, shall treat the Notes as debt of
the Contributor and its consolidated subsidiaries for financial statement
purposes and as debt of the Depositor for federal, State and local income
tax purposes, and shall cause the Contributor and its consolidated
subsidiaries to deduct the interest paid or accrued with respect to the
Notes in accordance with its applicable method of accounting for such
purposes.
(q) ERISA. The Contributor is in compliance with the Employee
Retirement Income Security Act of 1974, as amended.
(r) Certificate, Statements and Reports. The officers certificates,
statements, reports and other documents prepared by the Contributor and
furnished to the Depositor pursuant to this Agreement or any other
Transaction Document to which the Contributor is a party, and in
connection with the transactions contemplated hereby or thereby, when
taken as a whole, do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
(s) Accuracy of Information. All information heretofore furnished by
the Depositor for purposes of or in connection with any of the Transaction
Documents or any transaction contemplated hereby or thereby is, and all
such information hereafter furnished by the Depositor will be, true and
accurate in every material respect on the date such information is stated
or certified and does not and will not contain any material misstatement
of fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading.
(t) Material Adverse Change. Since December 31, 2004, no event has
occurred that would have a material adverse effect on (i) the financial
condition or operations of Depositor, (ii) the ability of the Depositor to
perform its obligations under the Transaction Documents, or (iii) the
collectibility of the Receivables generally or any material portion of the
Receivables.
(u) Compliance with Laws. The Depositor has complied in all respects
with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject ,except where
the failure to so comply could not reasonably be expected to have a
material adverse effect on the Issuer, any Noteholder, any Receivable or
other part of the Trust Estate.
Section 3.03. Repurchase of Receivables. (a) The Contributor hereby
covenants and agrees to deliver to the Depositor, the Indenture Trustee and the
Agent prompt written notice of the occurrence of a breach of any of the
representations and warranties of the Contributor contained or deemed to be
contained in Section 3.02(a) hereof with respect to a Receivable transferred
hereunder. Upon discovery by the Contributor, the Depositor, the Issuer, the
Indenture Trustee, the Agent or the Servicer of (a) a Nonconforming Receivable,
or (b) the failure to deliver any document required to be included in any
Custodian File, or to file any UCC
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Financing Statement required to be filed pursuant to the Transaction Documents,
the party discovering such breach or failure to deliver shall give prompt
written notice to each of the other foregoing parties. Except as specifically
provided in the Sale and Servicing Agreement or the Indenture, the Indenture
Trustee has no obligation to review or monitor the Receivables or the
Contributed Assets for compliance with representations and warranties or
delivery requirements. If (i) the breach of representations or warranties
causing such Receivable to be a Nonconforming Receivable has a material adverse
effect on the Noteholders or such Receivable or its collectibility and shall not
have been (A) cured within thirty (30) days following notice thereof or (B)
waived by the Majority Holders following notice thereof or (ii) the failure to
deliver to the Custodian such Custodian File documents or UCC Financing
Statements within the time period required herein or in the Sale and Servicing
Agreement (other than the Certificates of Title, with respect to which the
Contributor shall have three (3) Business Days after the one hundred eighty
(180) day period set forth in Section 3.02(a)(xvii)), the Contributor shall
deposit or cause to be deposited the Repurchase Price with respect to such
Receivable in the Collection Account within two (2) Business Days following the
applicable cure period, if any; provided, that a breach of a representation and
warranty set forth in paragraphs (ii), (iii), (v), (vii), (ix), (xiv), (xv),
(xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxviii), (xxx) and (xxxii)
of Section 3.02(a) automatically shall be deemed to have a material adverse
effect on the applicable Receivable or the Noteholders. The Depositor shall
transfer to the Contributor the Receivable and the Contributed Assets relating
solely to such Receivable affected by such breach or failure to deliver;
provided, that such transfer and assignment shall only be made upon receipt by
the Depositor of notice from the Servicer that the Repurchase Price has been
remitted to the Servicer and deposited into the Collection Account. The
Depositor shall be entitled to enforce the obligations of the Contributor and
each applicable Dealer under this Agreement and the applicable Dealer Agreement,
respectively, and to remit the Repurchase Price to the Servicer for deposit into
the Collection Account. The Indenture Trustee and the Agent are authorized to
take action on behalf of the Depositor to enforce the obligations of the
Contributor to repurchase such Receivable under this Agreement and to enforce
the obligation of a Dealer to repurchase such Receivable under the applicable
Dealer Agreement.
(b) The obligations of the Contributor, the Depositor and the Issuer
to remove any Receivable and the Contributed Assets relating solely to such
Receivable and to remit the Repurchase Price with respect to a Nonconforming
Receivable which has a material adverse affect on the Noteholders or on such
Receivable or its collectibility or as to which a failure to deliver has
occurred and is continuing shall constitute the sole remedy, except for the
indemnification provisions expressly set forth in the Indenture, the Sale and
Servicing Agreement and this Agreement, against the Contributor, the Depositor
and the Issuer for such breach or failure to deliver or pay available to the
Indenture Trustee or the Noteholders. Notwithstanding the foregoing, the
Contributor shall indemnify the Owner Trustee (as such and in its individual
capacity), the Issuer, the Indenture Trustee, the Backup Servicer, the
Noteholders, and their respective officers, directors and employees against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them, as a result of third party claims arising out of the events or facts
giving rise to a repurchase event set forth in Section 3.03(a).
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Section 3.04. Depositor's Assignment of Repurchased Receivables. With
respect to any Receivable reacquired by the Contributor pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Contributor all the Depositor's right, title and interest in
and to such Receivable, and all security and documents relating thereto.
Section 3.05. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement are made as of the
date specified herein and in each case shall survive the sale, transfer and
assignment of the related Receivables and the other related Contributed Assets
hereunder, the conveyance thereof by the Depositor to the Issuer under the Sale
and Servicing Agreement and the related Assignment, as applicable, and the
pledge thereof by the Issuer to the Indenture Trustee under the Indenture. The
Contributor and the Depositor agree that the Depositor will assign to the Issuer
all of the Depositor's rights under this Contribution Agreement and each
Contributor Assignment, the Issuer will assign to the Indenture Trustee all of
the Issuer's rights under this Contribution Agreement and each Contributor
Assignment and that the Indenture Trustee shall thereafter be entitled to
enforce this Contribution Agreement and each Contributor Assignment directly
against the Contributor in the Indenture Trustee's own name on behalf of the
Noteholders; provided, however, that the representations and warranties of the
Contributor in this Contribution Agreement shall not be construed as a warranty
or guaranty by the Contributor as to the future payments by any Obligor.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligation of the Depositor. The obligation of
the Depositor to accept any transfer of Receivables hereunder is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Contributor hereunder
shall be true and correct on the Closing Date and each Funding Date, as
the case may be, with the same effect as if then made, and the Contributor
shall have performed all obligations to be performed by it hereunder on or
prior to the Closing Date or Funding Date, as the case may be.
(b) The Contributor shall, at its own expense, on or prior to the
Closing Date and each Funding Date, as applicable, indicate in its files
that the Initial Receivables and the related Subsequent Receivables,
respectively, have been transferred to the Depositor pursuant to this
Agreement, then transferred from the Depositor to the Issuer pursuant to
the Sale and Servicing Agreement and simultaneously pledged by the Issuer
to the Indenture Trustee pursuant to the Indenture, and the Contributor
shall deliver to the Depositor a Schedule of Receivables certified by an
Authorized Officer of the Contributor to be true, correct and complete.
Further, the Contributor hereby agrees that the computer files and other
physical records of the Receivables maintained by the Contributor will
bear an indication reflecting that the Receivables were transferred and
pledged as described above.
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(c) The following documents must be delivered by the Contributor on
or in connection with the Closing Date and each Funding Date, as
applicable.
(i) Contributor Assignment. As of the Closing Date and each
Funding Date, the Contributor shall execute a Contributor
Assignment, substantially in the form of Exhibit A hereto, with
respect to the Receivables and the related Contributed Assets being
transferred by the Contributor on such date (as identified on the
Schedule of Receivables attached to such Contributor Assignment).
(ii) Evidence of UCC Filings. On or prior to the Closing Date
and each Funding Date, as applicable, the Contributor shall provide
the Depositor evidence that the Contributor has obtained, at the
expense of the Contributor, (A) executed releases, termination
statements and UCC-3 releases or terminations in each jurisdiction
in which required by applicable law, if any, to release any prior
security interests in the Receivables and the related Contributed
Assets granted by the Contributor and (B) UCC-1 financing statements
in each jurisdiction in which required by applicable law, executed
by the Contributor, as contributor or debtor, and naming the
Depositor, as purchaser or secured party, identifying the
Receivables and the related Contributed Assets as collateral,
meeting the requirements of the laws of each such jurisdiction and
in such manner as is necessary to perfect the transfer of such
Receivables to the Depositor.
(iii) Other Documents. The Contributor must deliver such other
documents and legal opinions as the Depositor or the Agent may
reasonably request.
(d) Documents to be Delivered by the Contributor In Connection with
the Closing Date and each Funding Date. On or prior to the Closing Date or
a Funding Date, as applicable, the Contributor shall deliver to the
Custodian the following documents with respect to each Receivable
transferred on such date (with respect to such Receivable, a "Custodian
File"): (a) a fully executed original of the related retail installment
contract, and an acknowledgment of the Custodian that it holds such
Receivable for the benefit of the Noteholders, (b) evidence of either (1)
a certificate of insurance, (2) an application form for insurance signed
by the Obligor, or (3) a signed representation letter from the Obligor
named in the Receivable pursuant to which the Obligor has agreed to obtain
physical damage insurance for the related Financed Vehicle, (c) the
original or electronic equivalent of the Certificate of Title or, with
respect to a Certificate of Title filed electronically, a report prepared
by a third party service that shows such service maintains perfection
related to such Certificate of Title on behalf of the Servicer; or, if the
Certificate of Title has not yet been received, and in the case of each
electronic Certificate of Title, an application therefor, or a copy of
such Certificate of Title with a copy of the application filed to amend
the Certificate of Title to indicate the security interest of the
Contributor in the related Financed Vehicle, (d) an electronic or hard
copy of an original credit application signed by the Obligor; (e) the
originals of all assumption, consolidation, extension, modification or
waiver agreements, if any,
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relating to such Receivable except for any such item listed above which
has been preserved by electronic means; (f) any other documents that the
Servicer shall keep on file, in accordance with its customary procedures,
or reasonably required by the Issuer, from time to time to be kept on
file, relating to a Receivable, the related Obligor or the related
Financed Vehicle; and (g) any additional original loan documents
evidencing any assumption, consolidation, extension, modification or
waiver of a Receivable approved by the Servicer.
On or prior to the Closing Date or a Funding Date, as applicable,
the Contributor shall deliver to the Custodian the original Certificate of
Title or copies of correspondence to the appropriate governmental
authority, and all enclosures thereto, for issuance of the original
Certificate of Title for the related Financed Vehicles.
If any original Certificate of Title is not delivered to the
Servicer due to the fact that such Certificate of Title has not yet been
issued by the applicable governmental authority and delivered to or on
behalf of the Contributor, such Certificate of Title shall be delivered by
the Contributor to the Servicer promptly following receipt thereof by the
Contributor but in no event later than one hundred eighty (180) days
following the Closing Date or the related Funding Date, as applicable;
provided, however, that for any original Certificate of Title not so
delivered to the Custodian prior to the expiration of such 180 day period,
or if any other item of the Custodian File is not included therein, the
Contributor shall be deemed to be in breach of its representations and
warranties contained in Section 3.02(a) hereof, and the related Receivable
shall be repurchased by the Contributor pursuant to Section 3.03(a)
hereof.
(e) Other Transactions. The transactions contemplated by the
Indenture, the Sale and Servicing Agreement and the other Transaction
Documents shall be consummated on the Closing Date or with respect to a
Subsequent Transfer shall have been consummated on the related Funding
Date.
Section 4.02. Conditions to Obligation of the Contributor. The obligation
of the Contributor to transfer the Receivables to the Depositor on the Closing
Date or each Funding Date, as the case may be, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Depositor hereunder
shall be true and correct on the Closing Date or such Funding Date, as the
case may be, 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 or such Funding Date, as the case may be.
(b) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Contribution
Agreement shall be satisfactory in form and substance to the Contributor
and the Agent, and the Contributor and the Agent shall have received from
the Depositor copies of all documents (including, without limitation,
records of Contributor proceedings) relevant to the transactions herein
contemplated as the Agent or the Contributor may have requested.
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(c) The Contributor's receipt of the consideration set forth in
Section 2.01(b) and Section 2.01(d) hereof with respect to the Closing
Date and each Funding Date respectively.
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ARTICLE V
COVENANTS OF THE CONTRIBUTOR
The Contributor agrees with the Depositor as follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Contributor shall cause all financing statements
and continuation statements and any other necessary documents covering the
right, title and interest of the Depositor in and to the Receivables and
the related Contributed Assets 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 to fully preserve and protect the right,
title and interest of the Depositor hereunder, the Issuer under the Sale
and Servicing Agreement and the Indenture Trustee under the Indenture to
the Receivables and the other property of the Trust Estate. The
Contributor shall deliver or cause to be delivered to or at the direction
of the Depositor (with copies to the Agent), 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
Contributor in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill the intent of
this Section 5.01(a). In the event the Contributor fails to perform its
obligations under this subsection, the Depositor or the Indenture Trustee
may do so at the expense of the Contributor.
(b) Name and Other Changes. At least thirty (30) days prior to the
Contributor making any change in its name, identity, jurisdiction of
organization or structure which 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, the Contributor shall give the Depositor, the Issuer, the
Agent and the Indenture Trustee written notice of any such change, and no
later than five (5) days after the effective date thereof the Contributor
shall file such financing statements or amendments as may be necessary to
continue the perfection of the Depositor's interest in the Receivables and
the Contributed Assets. At least sixty (60) days prior to the date of any
relocation of its principal executive office or state of incorporation,
the Contributor shall give the Indenture Trustee, the Agent and the
Depositor written notice thereof, and the Contributor shall within five
(5) days after the effective date thereof, file any such amendment or new
financing statement 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 to continue the perfection of the Depositor's interest
in the Receivables and the Contributed Assets. The Contributor shall at
all times maintain each office from which it shall service the Receivables
and maintain possession of the Custodian Files, and its principal
executive office, within the United States of America.
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The Contributor shall not become or seek to become organized under the
laws of more than one jurisdiction.
(c) Accounts and Records. The Contributor shall maintain accounts
and records as to each Receivable accurately and in sufficient detail to
permit the reader thereof to know at any time the status of such
Receivable, including payments and recoveries made and payments owing (and
the nature of each).
(d) Sale of Other Receivables. If at any time the Contributor shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in any new or used automobile, van or light-duty truck
installment sale contracts (other than the Receivables) to any prospective
purchaser, lender, or other transferee, such Contributor shall give to
such prospective purchaser, lender or other transferee computer tapes,
records, or print- outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable or Financed Vehicle has been
pledged to the Indenture Trustee unless such Receivable or Financed
Vehicle has been paid in full or repurchased.
(e) Access to Records. The Contributor shall, upon reasonable
notice, permit the Agent, the Depositor, the Noteholders, the Indenture
Trustee, the Servicer and their respective agents at any time during
normal business hours to inspect, audit, and make copies of and abstracts
from the Contributor's records regarding any Receivable.
(f) Other Actions. The Contributor shall from time to time, at its
expense, promptly execute and deliver all further instruments and
documents (including, without limitation, powers of attorney for the
benefit of the Servicer) and take all further action that may be necessary
or desirable to permit the Servicer to perform its obligations under the
Sale and Servicing Agreement, including, without limitation, the
Servicer's obligation to preserve and maintain the perfected security
interest of the Indenture Trustee in the Receivables, the Financed
Vehicles and the other Contributed Assets.
Section 5.02. Other Liens or Interest. Except for the transfers hereunder,
the Contributor will not sell, pledge, assign or transfer to any other person,
or grant, create, incur, assume or suffer to exist any Lien on, any interest in,
and the Contributor shall defend the right, title, and interest of the Depositor
in, to and under the Initial and Subsequent Receivables and other Contributed
Assets against all claims of third parties claiming through or under the
Contributor; provided, however, that the Contributor's obligations under this
Section 5.02 shall terminate upon the termination of the Indenture in accordance
with its terms.
Section 5.03. Principal Executive Office; Jurisdiction of Organization.
The Contributor shall maintain its principal executive office, principal place
of business, location of all books and records relating to the Receivables and
other Contributed Assets and sole jurisdiction of organization at the locations
and in the jurisdiction, respectively, set forth in Section 3.02(i).
Section 5.04. Costs and Expenses. The Contributor agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the transfer to
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the Depositor of the Contributor's right, title and interest in and to the
Receivables and the Contributed Assets, the transfer thereof to the Issuer and
the pledge thereof to the Indenture Trustee.
Section 5.05. No Waiver. The Contributor shall not waive any default,
breach, violation or event permitting acceleration under the terms of any
Receivable; provided, however, nothing in this Section 5.05 shall affect the
rights of and the restrictions on the Servicer with respect to such matters as
set forth in the Sale and Servicing Agreement.
Section 5.06. Contributor's Records. The books and records of the
Contributor will disclose that the Contributor absolutely transferred the
Receivables to the Depositor; provided, however, the Contributor may show the
Receivables as assets of the consolidated companies that include the Contributor
and the Depositor as long as such financial statements indicate the transfers
hereunder, under the Sale and Servicing Agreement, under each Assignment and the
Indenture and indicate that such assets will not be available to satisfy the
claims of any creditor of the Contributor or the Depositor. The Contributor will
file all tax returns and reports in a manner consistent with the transfer to the
Depositor of the Receivables for federal income tax purposes.
Section 5.07. Cooperation by Contributor. (a) The Contributor will
cooperate fully and in a timely manner with the Depositor, the Issuer, the
Servicer, the Agent, and the Indenture Trustee in connection with (i) the filing
of any claims with an insurer or any agent of any insurer under any insurance
policy affecting an Obligor or any of the Financed Vehicles; (ii) supplying any
additional information as may be requested by the Depositor, the Issuer, the
Servicer, the Agent, the Indenture Trustee or any such agent or insurer in
connection with the processing of any such claim; and (iii) the execution or
endorsement of any check or draft made payable to the Contributor representing
proceeds from any such claim. The Contributor shall take all such actions as may
be requested by the Depositor, the Agent, the Issuer, the Servicer or the
Indenture Trustee to protect the rights of the Depositor, the Agent, the Issuer
or the Indenture Trustee on behalf of the Noteholders in and to any proceeds
under any and all of the foregoing insurance policies. The Contributor shall not
take or cause to be taken any action which would impair the rights of the
Depositor, the Issuer or the Indenture Trustee on behalf of the Noteholders in
and to any proceeds under any of the foregoing insurance policies.
(b) The Contributor shall, within one (1) Business Day of receipt
thereof, endorse any check or draft payable to the Contributor
representing insurance proceeds and in the event there are no other payees
on such check or draft, forward, via hand delivery, such endorsed check or
draft to the Servicer for deposit into the Local Bank Account (or if the
Backup Servicer is acting as successor Servicer, for deposit to the Backup
Servicer Account). The Contributor will hold in trust and remit to the
Local Bank Account (or if the Backup Servicer is acting as successor
Servicer, for deposit to the Backup Servicer Account), within one (1)
Business Day of receipt thereof, any funds received with respect to the
Receivables after the related Cutoff Date.
Section 5.08. Notice of Breach. The Contributor shall notify the Indenture
Trustee, the Agent, the Depositor and the Issuer promptly upon becoming aware in
writing, of any breach of
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the representations and warranties or covenants of the Contributor or the
Depositor contained herein or in any other Transaction Document.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Indemnification. The Contributor shall defend, indemnify and
hold harmless the Depositor, the Indenture Trustee, the Backup Servicer, the
Owner Trustee (as such and in its individual capacity), the Agent, the Issuer
and the Noteholders:
(a) for any liability as a result of the failure of a Receivable to
be originated in compliance with all requirements of law and for any
breach of any of its representations and warranties contained herein or in
the related Assignment;
(b) from and against any and all costs, expenses, losses, damages,
claims, and liabilities, arising out of or resulting from the use,
ownership, or operation by the Contributor or any Affiliate thereof of a
Financed Vehicle;
(c) against any and all costs, expenses, losses damages, claims and
liabilities, arising out of or resulting from any action taken, or failed
to be taken, by the Contributor in respect of any portion of the Trust
Estate other than in accordance with this Contribution Agreement or any
other Transaction Document;
(d) from and against any and all taxes, except for taxes on the net
income of the Depositor, the Indenture Trustee, the Backup Servicer, the
Owner Trustee (as such or in its individual capacity), the Issuer, or the
Noteholders, as the case may be, that may at any time be asserted against
the Depositor with respect to the transactions contemplated herein and in
each Assignment and in each other Transaction Document, including, without
limitation, any sales, general corporation, tangible personal property,
privilege, or license taxes and costs and expenses in defending against
the same;
(e) from and against any and all costs, expenses, losses, damages,
claims and liabilities to the extent that such cost, expense, loss,
damage, claim or liability arose out of, or was imposed upon the
Depositor, the Indenture Trustee, the Back-up Servicer, the Owner Trustee
(as such or in its individual capacity), the Agent, the Issuer and the
Noteholders, as the case may be, through the negligence, willful
misfeasance, or bad faith of the Contributor in the performance of its
duties under this Contribution Agreement or any other Transaction Document
to which it is a party, or by reason of reckless disregard of the
Contributor's covenants, obligations and duties under this Contribution
Agreement or any other Transaction Document to which it is a party except
to the extent that such cost, expense, loss, damage, claim or liability or
portion thereof shall be due to the willful misfeasance, bad faith or
gross negligence of the Depositor, the Indenture Trustee, the Backup
Servicer, the Collateral Agent, the Spread Account Depositor, the Owner
Trustee (as such or in its individual capacity), the Agent, the Issuer or
the Noteholders as the case may be;
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(f) from and against all costs, expenses, losses, damages, claims
and liabilities arising out of or incurred in connection with the
acceptance or performance of the Contributor's duties under this
Contribution Agreement and the other Transaction Documents to which it is
a party, including the trusts and duties as Servicer under the Sale and
Servicing Agreement and as Custodian under the Custodian Agreement, except
to the extent that such cost, expense, loss, damage, claim or liability
shall be due to the willful misfeasance, bad faith or gross negligence of
the Depositor, the Indenture Trustee, the Backup Servicer, the Owner
Trustee, the Agent, the Issuer or the Noteholders, as the case may be; and
(g) against any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from the failure of any Receivable
or the sale of the related Financed Vehicle to comply with all
requirements of applicable law.
Indemnification under this Section shall include reasonable fees and expenses of
litigation and shall survive termination of this Agreement. These indemnity
obligations shall be in addition to any obligation that the Contributor may
otherwise have.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Obligations of Contributor. The obligations of the
Contributor under this Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
Section 7.02. Subsequent Transfer and Pledge. The Contributor acknowledges
that (i) the Depositor will transfer the Receivables and related Contributed
Assets to the Issuer and the Issuer will grant a security interest in the same
along with the Issuer's rights and benefits under the Sale and Servicing
Agreement to the Indenture Trustee pursuant to the terms of the Indenture and
(ii) the terms and provisions hereof are intended to benefit the Noteholders.
The Contributor acknowledges that the Indenture Trustee on behalf of the
Noteholders, as assignee of the Depositor's rights hereunder may directly
enforce, without making any prior demand on the Depositor, all the rights of the
Depositor hereunder, including, without limitation, the rights under Section
3.03(a) hereof. The Contributor hereby consents to such transfer and grant.
Section 7.03. Amendment. This Agreement may be amended, restated or
supplemented from time to time by a written agreement duly executed and
delivered by the Contributor and the Depositor, but only with the prior written
consent of the Majority Holders; provided that, that no such amendment shall
amend or modify any provision of Section 3.02(a) hereof without the consent of
the Supermajority Holders. The Contributor shall deliver to the Noteholders and
the Agent a copy of any amendment to this Agreement.
Section 7.04. Waivers. No failure or delay on the part of the Depositor,
the Issuer, the Indenture Trustee, the Agent 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
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or remedy preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. Any waiver of the terms and provisions hereof must
be in writing and must be consented to in writing by the Majority Holders.
Section 7.05. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, to any party at its address set forth in Article I hereof or at such
other address as may be designated by it by notice to the other party and shall
be deemed given when so delivered, or if mailed. Any notice to the Indenture
Trustee, the Agent, any Noteholder or the Issuer shall be given in accordance
with the terms of the Indenture.
Section 7.06. Representations. The respective agreements, representations,
warranties and other statements by the Contributor and the Depositor set forth
in or made pursuant to this Agreement are intended to benefit the Noteholders
and shall remain in full force and effect and will survive the Closing Date
under Section 2.02 hereof and each Funding Date.
Section 7.07. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
Section 7.08. Governing Law. This Agreement and each Assignment shall be
governed by and construed in accordance with the internal laws of the State of
New York including New York General Obligations Law Sections 5-1401 and 5-1402,
but otherwise without regard to the conflict of laws principles thereof.
Section 7.09. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 7.10. No Bankruptcy Petition Against the Depositor or the Issuer
or Any Noteholder. The Contributor agrees that, prior to the date that is one
year and one day after the payment in full of all amounts payable with respect
to the Notes, it will not institute against the Depositor or the Issuer or any
Noteholder, or join any other Person in instituting against the Depositor or the
Issuer or any Noteholder, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under the laws of the
United States or any state of the United States. This Section 7.10 shall survive
the termination of this Agreement and the Indenture.
Section 7.11. Third Party Beneficiaries. This Agreement shall inure to the
benefit of the Issuer, the Agent, the Noteholders, the Indenture Trustee on
behalf of the Noteholders and their respective successors and assigns. Without
limiting the generality of the foregoing, all representations, covenants and
agreements in this Agreement which expressly confer rights upon the Depositor,
the Noteholders, the Issuer, the Agent or the Indenture Trustee shall be for the
benefit of and run directly to the Noteholders, the Depositor, the Issuer, the
Indenture Trustee
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and the Agent. The Indenture Trustee, the Noteholders, the Agent and the Issuer
shall be entitled to rely on and enforce such representations, covenants and
agreements to the same extent as if it or they were a party hereto. Except as
expressly stated otherwise herein or in the other Transaction Documents, any
right of the Majority Holders to direct, appoint, consent to, approve of, or
take any action under this Agreement, shall be a right exercised by the Majority
Holders in their sole and absolute discretion.
Section 7.12. Material Adverse Effect. Whenever a determination is to be
made under this Agreement whether a breach of a representation, warranty or
covenant has or could have a material adverse effect on a Receivable or any part
of the Trust Estate or the interest therein of the Issuer, the Noteholders (or
any similar or analogous determination), such determination shall be made by the
Majority Holders in their sole discretion.
Section 7.13. TRIAL BY JURY WAIVED. EACH OF THE PARTIES HERETO WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER TRANSACTION DOCUMENTS OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER. EACH OF THE PARTIES
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER THINGS, THIS
WAIVER.
Section 7.14. CONSENTS TO JURISDICTION. EACH OF THE PARTIES HERETO
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, ANY COURT IN THE STATE OF NEW YORK LOCATED IN
THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT OR ACTION OR
PROCEEDING MAY BE HEARD OR DETERMINED IN SUCH NEW YORK COURT OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE
PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT,
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ACTION OR PROCEEDING BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. THE CONTRIBUTOR AND THE DEPOSITOR EACH HEREBY
DESIGNATES CT CORPORATION SYSTEM LOCATED AT ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, AS ITS TRUE AND LAWFUL ATTORNEY AND DULY AUTHORIZED AGENT FOR ACCEPTANCE
OF SERVICE OF LEGAL PROCESS. EACH OF THE CONTRIBUTOR AND THE DEPOSITOR AGREES
THAT SERVICE OF SUCH PROCESS UPON SUCH PERSON SHALL CONSTITUTE PERSONAL SERVICE
OF SUCH PROCESS UPON IT.
Section 7.15. Severability of Provisions. If one or more of the provisions
of this Agreement shall be held invalid for any reason, such provisions shall be
deemed severable from the remaining provisions of this Agreement and shall in no
way affect the validity or enforceability of such remaining provisions. To the
extent permitted by law, the parties hereto hereby waive any law which renders
any provision of this Agreement prohibited or unenforceable.
Section 7.16. Rights Cumulative. All rights and remedies under this
Agreement are cumulative, and none is intended to be exclusive of another. No
delay or omission in insisting upon the strict observance or performance of any
provision of this Agreement, or in exercising any right or remedy, shall be
construed as a waiver or relinquishment of such provision, nor shall it impair
such right or remedy. Every right and remedy may be exercised from time to time
and as often as deemed expedient.
Section 7.17. No Offset. Prior to the termination of this Agreement, the
obligations of the Contributor and the Depositor under this Agreement shall not
be subject to any defense, counterclaim or right of offset which the such Person
may have against the Issuer, the Contributor, the Depositor, the Servicer, any
Noteholder, the Collateral Agent, the Agent or the Indenture Trustee, whether in
respect of this Agreement, any Receivable or otherwise.
Section 7.18. Assignment and Binding Effect. Except with respect to the
grant of this Agreement by the Issuer to the Indenture Trustee under the
Indenture and as expressly provided herein, this Agreement may be assigned only
with the written consent of the parties hereto and the Majority Holders;
however, in the event of an assignment, all provisions of this Agreement shall
be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 7.19. Captions. The article, paragraph and other headings
contained in this Agreement are for reference purposes only, and shall not limit
or otherwise affect the meaning hereof.
Section 7.20. Legal Holidays. In the case where the date on which any
action required to be taken, document required to be delivered or payment
required to be made is not a Business Day, such action, delivery or payment need
not be made on that date, but may be made on the next succeeding Business Day.
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Section 7.21. Relationship of the Parties. The relationship of the parties
to this Agreement is that of independent contractors. Neither this Agreement nor
any of the activities contemplated hereby shall be deemed to create any
partnership, joint venture, agency or employer/employee relationship among the
Servicer and the Issuer.
Section 7.22. Reports to Holders. Any report, notice or financial
statement delivered pursuant to this Agreement by the Servicer to the
Noteholders shall be provided by such Persons to each Noteholder at the address
last provided to the Servicer by the Indenture Trustee or such Noteholder.
Section 7.23. Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain
the final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with
respect to the subject matter hereof superseding all prior oral or
written understandings.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns (including any trustee in bankruptcy). This
Agreement shall create and constitute the continuing obligations of
the parties hereto in accordance with its terms and shall remain in
full force and effect until terminated in accordance with its terms;
provided, however, that the rights and remedies with respect to (i)
any breach of any representation and warranty made by the
Contributor or Depositor pursuant to Article III and (ii) the
indemnification and payment provisions of Article VI, and Section
3.03, shall be continuing and shall survive any termination of this
Agreement.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the data
and year first above written.
BAY VIEW ACCEPTANCE CORPORATION,as
Contributor
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
Signature Page to Contribution Agreement
BAY VIEW WAREHOUSE CORPORATION,as
Depositor
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
Signature Page to Contribution Agreement
EXHIBIT A
FORM OF CONTRIBUTOR ASSIGNMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made as of
_______________, 200__ (the "Contribution Date"), by and between BAY VIEW
ACCEPTANCE CORPORATION, a Nevada corporation ("Assignor"), and BAY VIEW
WAREHOUSE CORPORATION, a Delaware corporation ("Assignee"), with reference to
the following facts:
RECITALS:
A. In connection with the contribution of certain receivables and related
assets of Assignor in conjunction with the issuance on the Closing Date of notes
(the "Notes") by Bay View 2005 Warehouse Trust, Assignee and the Assignor have
executed the Contribution Agreement dated as of June 20, 2005 (the "Contribution
Agreement").
B. In connection with the Contribution Agreement, the Assignor desires to
assign and transfer to Assignee all of Assignor's right, title and interest in
and to each of the Receivables listed in Schedule I hereto, and the related
Contributed Assets (the "Assets").
C. Assignee desires to accept the Assignment and transfer of the Assets on
the Contribution Date.
D. Terms used but not defined herein have the meanings ascribed to them in
the Contribution Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and in consideration of the mutual
covenants set forth herein, the Assignor and Assignee hereby agree as follows:
1. Assignment. The Assignor hereby assigns, conveys, grants and transfers,
without recourse except as provided in the Contribution Agreement, to Assignee
(and the successors and assigns of Assignee) the following property:
1.1. The Assignor's right, title and interest in and to the
Receivables and related Financed Vehicles and Contributed Assets
described and listed on Schedule I hereto.
1.2. All of Assignor's right, title and interest in and to the
Financed Vehicles.
1.3. All of Assignor's rights, title and interest in the other
Contributed Assets relating to each such Receivable.
A-1
2. Further Assurances. The Assignor and Assignee each hereby agree to
provide such further assurances and to execute and deliver such documents and to
perform all such other acts as are necessary or appropriate to consummate and
effectuate this Assignment, including, without limitation, Section 5.01 of the
Contribution Agreement.
3. Distinct Entities. The Assignor and Assignee hereby acknowledge that
for all purposes the Assignor and Assignee are each separate and distinct legal
entities. Accordingly, the Assignor shall not be liable to any third party for
the debts, obligations and liabilities of the Assignee; and Assignee shall not
be liable to any third party for the debts, obligations and liabilities of the
Assignor.
4. Governing Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of New York, including Sections 5-1401 and
5-1402 of the New York General Obligations Law, but otherwise without regard to
the conflicts of law principles thereof.
5. Authority. The Assignor and Assignee each hereby represent respectively
that they have full power and authority to enter into this Assignment.
6. Counterparts. This Assignment may be executed in multiple counterparts,
each of which shall be deemed an original but all of which, taken together,
shall constitute one and the same instrument.
7. Successors and Assigns; Third Party Beneficiaries. The Assignor and
Assignee each agree that this Assignment will be binding and will inure to the
benefit of the Assignor and its successors and assigns and the Assignee and its
successors and assigns. This Assignment shall inure to the benefit of the
Issuer, the Indenture Trustee on behalf of the Noteholders and their respective
successors and assigns.
A-2
IN WITNESS WHEREOF, this Assignment has been executed as of the date first
above written.
BAY VIEW ACCEPTANCE CORPORATION,
Assignor
By ______________________________
Name:
Title:
BAY VIEW WAREHOUSE CORPORATION,
Assignee
By ______________________________
Name:
Title:
A-3
SCHEDULE I
LOAN SCHEDULE
EXHIBIT B
FORM OF CONTRACT
B-1
EXHIBIT C
CONTRIBUTOR'S UNDERWRITING GUIDELINES