<PAGE>
EXHIBIT 10.2
EXECUTION COPY
================================================================================
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
________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION
HEADING
PAGE
<S>
<C>
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..............................................................
30
</TABLE>
-i-
<PAGE>
<TABLE>
<S>
<C>
Section 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
</TABLE>
-ii-
<PAGE>
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
<PAGE>
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 818 Oak Park Road, Covina, CA
91724.
"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 818 Oak Park Road, Covina, CA 91724.
"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.
-2-
<PAGE>
(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 Section
541 of the United States 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
-3-
<PAGE>
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
-4-
<PAGE>
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).
-5-
<PAGE>
(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 1840 Gateway Drive, Suite 401,
San Mateo,
California 94404. 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:
-6-
<PAGE>
(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 Magnuson-Moss 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
-7-
<PAGE>
"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.
-8-
<PAGE>
(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-
<PAGE>
(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
-10-
<PAGE>
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
-11-
<PAGE>
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 D
