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Purchase and Sale Agreement

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Exhibit 10.1

 

PURCHASE AGREEMENT

dated as of November 14, 2006

between

BANK OF AMERICA, NATIONAL ASSOCIATION

and

BAS SECURITIZATION LLC,
as Purchaser

 

 


 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

Page

ARTICLE I DEFINITIONS AND USAGE

 

 

1

 

SECTION 1.1 Definitions

 

 

1

 

SECTION 1.2 Other Interpretive Provisions

 

 

1

 

ARTICLE II PURCHASE

 

 

2

 

SECTION 2.1 Agreement to Sell and Contribute on the Closing Date

 

 

2

 

SECTION 2.2 Consideration and Payment

 

 

2

 

ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS

 

 

3

 

SECTION 3.1 Representations and Warranties of BANA

 

 

3

 

SECTION 3.2 Representations and Warranties of BANA regarding the Receivables

 

 

4

 

SECTION 3.3 Repurchase upon Breach

 

 

4

 

SECTION 3.4 Protection of Title

 

 

5

 

SECTION 3.5 Other Liens or Interests

 

 

6

 

SECTION 3.6 Perfection Representations, Warranties and Covenants

 

 

6

 

ARTICLE IV MISCELLANEOUS

 

 

6

 

SECTION 4.1 Transfers Intended as Sale; Security Interest

 

 

6

 

SECTION 4.2 Notices, Etc

 

 

7

 

SECTION 4.3 Choice of Law

 

 

7

 

SECTION 4.4 Headings

 

 

8

 

SECTION 4.5 Counterparts

 

 

8

 

SECTION 4.6 Amendment

 

 

8

 

SECTION 4.7 Waivers

 

 

9

 

SECTION 4.8 Entire Agreement

 

 

9

 

SECTION 4.9 Severability of Provisions

 

 

9

 

SECTION 4.10 Binding Effect

 

 

9

 

SECTION 4.11 Acknowledgment and Agreement

 

 

10

 

SECTION 4.12 Cumulative Remedies

 

 

10

 

SECTION 4.13 Nonpetition Covenant

 

 

10

 

SECTION 4.14 Submission to Jurisdiction

 

 

10

 

SECTION 4.15 Third-Party Beneficiaries

 

 

11

 

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Page

 

SCHEDULE I            Perfection Representations, Warranties and Covenants

 

 

 

 

 

 

 

 

 

EXHIBIT A            Form of Assignment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchase Agreement (2006-G1)

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     THIS PURCHASE AGREEMENT is made and entered into as of November 14, 2006 (as amended from time to time, this “ Agreement ”) by BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (“ BANA ”), and BAS SECURITIZATION LLC, a Delaware limited liability company (the “ Purchaser ”).

WITNESSETH:

     WHEREAS, the Purchaser desires to purchase from BANA a portfolio of motor vehicle receivables, including motor vehicle retail installment loans that are secured by new and used automobiles, light-duty trucks and motorcycles; and

     WHEREAS, BANA is willing to sell such portfolio of motor vehicle receivables and related property to the Purchaser on the terms and conditions set forth in this Agreement.

     NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND USAGE

     SECTION 1.1 Definitions . Except as otherwise defined herein or as the context may otherwise require, capitalized terms used but not otherwise defined herein are defined in Appendix A to the Sale Agreement dated as of the date hereof (as from time to time amended, supplemented or otherwise modified and in effect, the “ Sale Agreement ”) between Banc of America Securities Auto Trust 2006-G1 and the Purchaser, as Seller which also contains rules as to usage that are applicable herein. As used herein, “ Purchased Assets ” has the meaning specified in Section 2.1 .

     SECTION 1.2 Other Interpretive Provisions . For purposes of this Agreement, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; (b) terms defined in Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise defined in this Agreement are used as defined in that Article; (c) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Article, Section, Schedule, Appendix or Exhibit are references to Articles, Sections, Schedules, Appendices and Exhibits in or to this Agreement and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term “including” means “including without limitation”; (f) except as otherwise expressly provided herein, references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any Person include that Person’s successors and assigns; and (h) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchase Agreement (2006-G1)

 


 

ARTICLE II

PURCHASE

     SECTION 2.1 Agreement to Sell and Contribute on the Closing Date . On the terms and subject to the conditions set forth in this Agreement, BANA does hereby irrevocably sell, transfer, assign and otherwise convey to the Purchaser without recourse (subject to the obligations herein) on the Closing Date all of its right, title and interest in, to and under the following property and identified in an Assignment substantially in the form of Exhibit A delivered on the Closing Date (collectively, the “ Purchased Assets ”):

     (i) all right, title and interest of BANA in, to and under the Receivables listed on the Schedule of Receivables and all monies received thereon, on and after the Cut-Off Date, exclusive of any amounts allocable to the premium for physical damage insurance force-placed by GMAC covering any related Financed Vehicle;

     (ii) the interest of BANA in the security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and, to the extent permitted by law, any accessions thereto;

     (iii) the interest of BANA in any proceeds from claims on any physical damage, credit life, credit disability, warranties, debt cancellation agreements or other insurance policies covering Financed Vehicles or Obligors;

     (iv) the interest of BANA in any proceeds from recourse against Dealers on the Receivables;

     (v) all right, title and interest of BANA in, to and under the CARI Purchase Agreement, the GMAC Sale Agreement, including the right of BANA to cause CARI or GMAC, as applicable, to repurchase Receivables under certain circumstances, and all right, title and interest of BANA in its capacity as purchaser under the Receivables Servicing Agreement;

     (vi) all of BANA’s rights to the Receivable Files; and

     (vii) the interest of BANA in any proceeds of the property described in clauses (i) and (ii) above.

The sale, transfer, assignment and conveyance made hereunder does not constitute and is not intended to result in an assumption by the Purchaser of any obligation of BANA, CARI or any Originator to the Obligors or any other Person in connection with the Receivables or the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.

     SECTION 2.2 Consideration and Payment . In consideration of the sale of the Purchased Assets sold to the Purchaser on the Closing Date, the Purchaser shall pay to BANA on such date an amount equal to the estimated fair market value of the Purchased Assets on the Closing Date.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchase Agreement (2006-G1)

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ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

     SECTION 3.1 Representations and Warranties of BANA . BANA makes the following representations and warranties as of the Closing Date on which the Purchaser will be deemed to have relied in acquiring the Purchased Assets. The representations and warranties will survive the conveyance of the Purchased Assets to the Purchaser, the conveyance of the Purchased Assets to the Issuer pursuant to the Sale Agreement and the pledge thereof by the Issuer to the Indenture Trustee pursuant to the Indenture:

     (a)  Existence and Power . BANA is a national banking association validly existing and in good standing under the laws of the United States and has, in all material respects, full power and authority to own its assets and operate its business as presently owned or operated, and to execute, deliver and perform its obligations under the Transaction Documents to which it is a party or affect the enforceability or collectibility of the Receivables or any other part of the Purchased Assets. BANA has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of BANA to perform its obligations under the Transaction Documents or affect the enforceability or collectibility of the Receivables or any other part of the Purchased Assets.

     (b)  Authorization and No Contravention . The execution, delivery and performance by BANA of the Transaction Documents to which it is a party have been duly authorized by all necessary action on the part of BANA and do not contravene or constitute a default under (i) any applicable law, rule or regulation, (ii) its organizational documents or (iii) any material indenture or material agreement or instrument to which BANA is a party or by which its properties are bound (other than violations of such laws, rules, regulations, indentures or agreements which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or BANA’s ability to perform its obligations under, the Transaction Documents).

     (c)  No Consent Required . No approval or authorization by, or filing with, any Governmental Authority is required in connection with the execution, delivery and performance by BANA of any Transaction Document other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and filings that have previously been made and (iii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectibility of the Receivables or any other part of the Purchased Assets or would not materially and adversely affect the ability of BANA to perform its obligations under the Transaction Documents.

     (d)  Binding Effect . Each Transaction Document to which BANA is a party constitutes the legal, valid and binding obligation of BANA enforceable against BANA in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting the enforcement of creditors’ rights generally and, if applicable, the rights of creditors of national banks from time to time in effect or by general principles of equity.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchase Agreement (2006-G1)

-3-


 

     (e)  No Proceedings . There are no actions, orders, suits or Proceedings pending or, to the knowledge of BANA, threatened against BANA before or by any Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or any of the other Transaction Documents, (ii) seek 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) seek any determination or ruling that would materially and adversely affect the performance by BANA of its obligations under this Agreement or any of the other Transaction Documents or have a material adverse effect on the Noteholders or (iv) relating to BANA that would materially and adversely affect the federal or Applicable Tax State income, excise, franchise or similar tax attributes of the Notes.

     (f)  Lien Filings . BANA is not aware of any material judgment, ERISA or tax lien filings against BANA.

     SECTION 3.2 Representations and Warranties of BANA regarding the Receivables . BANA makes the following representations and warranties with respect to the Receivables, on which the Purchaser relies in purchasing the Receivables. Such representations and warranties speak as of the Closing Date, but shall survive the sale, transfer and assignment of the Receivables by BANA to the Purchaser pursuant to this Agreement, the sale, transfer and assignment of the Receivables by the Purchaser to the Issuer pursuant to the Sale Agreement and the pledge of the Receivables by the Issuer to the Indenture Trustee pursuant to the Indenture.

     (i) Schedule of Receivables . No selection procedures adverse to the Noteholders have been used by BANA in selecting the Receivables from all receivables owned by BANA which were acquired from CARI pursuant to the CARI Purchase Agreement.

     (ii) No Sale or Transfer . No Receivable has been sold, transferred, assigned or pledged by BANA to any Person other than the Purchaser.

     (iii) Good Title . Immediately prior to the conveyance of the Receivables pursuant to this Agreement, BANA had good and marketable title thereto, free of any Lien; and, upon execution and delivery of this Agreement by BANA, the Purchaser shall have all of the right, title and interest of BANA in and to the Receivables, the unpaid indebtedness evidenced thereby and the collateral security therefor, free of any Lien.

     (iv) Delinquencies . As of the Cut-Off Date, no Receivable has any payment more than 30 days past due, that is, the payments due on that Receivable in excess of $25.00 have been received within 30 days of the scheduled payment date, except that up to 0.96% and 0.12% of the aggregate Amount Financed may consist of Receivables between 31 and 60 days past due and 61 to 90 days past due, respectively.

     SECTION 3.3 Repurchase upon Breach . (a) Upon discovery by or notice to the Purchaser or BANA of a breach of any of the representations and warranties described in Section 3.2 with respect to any Receivable at the time such representations and warranties were made which materially and adversely affects the interests of the Issuer or the Noteholders in such Receivable, the party discovering such breach or receiving such notice shall give prompt written

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchase Agreement (2006-G1)

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notice thereof to the other party hereto; provided, that the failure to give such notice shall not affect any obligation of BANA hereunder. If the breach materially and adversely affects the interests of the Issuer or the Noteholders in such Receivable, then BANA shall either (i) correct or cure such breach or (ii) purchase such Receivable from the holder thereof, in either case on or before the last day of the second Collection Period following the date BANA became aware of or was notified of such breach. Any such purchase by BANA shall be at a price equal to the related Repurchase Price. In consideration for such repurchase, BANA shall make (or shall cause to be made) a payment to the Purchaser equal to the Repurchase Price by depositing (or causing to be deposited) such amount into the Collection Account on the date of such repurchase. Upon payment of such Repurchase Price by BANA, the Purchaser shall release and shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse or representation, as may be reasonably requested by BANA to evidence such release, transfer or assignment or more effectively vest in BANA or its designee any Receivable and related Purchased Assets repurchased pursuant to this Section 3.3 . It is understood and agreed that the right to cause BANA to repurchase (or to enforce the obligations of CARI under the CARI Purchase Agreement or GMAC under the GMAC Sale Agreement to repurchase) any Receivable as described above shall constitute the sole remedy respecting such breach available to the Purchaser.

     (b) In addition to the foregoing repurchase obligations, if the interest of the Purchaser in any Receivable is materially and adversely affected by a breach by CARI of a representation or warranty relating to such Receivable in the CARI Purchase Agreement, or a breach by GMAC of a representation or warranty relating to such Receivable in the GMAC Sale Agreement, BANA shall repurchase such Receivable from the Issuer but only if CARI or GMAC, as applicable, shall in fact repurchase such Receivable. BANA shall promptly remit into the Collection Account the purchase price paid by CARI with respect to such Receivable.

     SECTION 3.4 Protection of Title .

     (a) BANA shall authorize and file such financing statements and cause to be authorized and filed such continuation and other statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Purchaser under this Agreement in the Receivables. BANA shall deliver (or cause to be delivered) to the Purchaser file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.

     (b) BANA shall not change its name, identity, corporate structure or jurisdiction of organization in any manner that would make any financing statement or continuation statement filed by BANA in accordance with paragraph (a) above “seriously misleading” within the meaning of Sections 9-506, 9-507 or 9-508 of the UCC, unless it shall have given the Purchaser at least five days’ prior written notice thereof and, to the extent necessary, shall have promptly filed amendments to previously filed financing statements or continuation statements described in paragraph (a) above or filed new financing statements, as applicable.

     (c) BANA shall give the Purchaser at least five days’ prior written notice of any change of location of BANA for purposes of Section 9-307 of the UCC and shall have taken all action prior to making such change (or shall have made arrangements to take such action

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchase Agreement (2006-G1)

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substantially simultaneously with such change, if it is not possible to take such action in advance) reasonably necessary or advisa


 
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