dated as of November 14,
2006
BANK OF AMERICA, NATIONAL
ASSOCIATION
BAS SECURITIZATION
LLC,
as Purchaser
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Page
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ARTICLE I DEFINITIONS AND USAGE
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1
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1
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SECTION 1.2 Other Interpretive
Provisions
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1
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2
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SECTION 2.1 Agreement to Sell and Contribute on
the Closing Date
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2
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SECTION 2.2 Consideration and Payment
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2
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ARTICLE III REPRESENTATIONS, WARRANTIES AND
COVENANTS
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3
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SECTION 3.1 Representations and Warranties of
BANA
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3
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SECTION 3.2 Representations and Warranties of
BANA regarding the Receivables
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4
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SECTION 3.3 Repurchase upon Breach
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4
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SECTION 3.4 Protection of Title
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5
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SECTION 3.5 Other Liens or Interests
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6
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SECTION 3.6 Perfection Representations,
Warranties and Covenants
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6
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6
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SECTION 4.1 Transfers Intended as Sale; Security
Interest
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6
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7
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SECTION 4.3 Choice of Law
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7
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8
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8
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8
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9
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SECTION 4.8 Entire Agreement
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9
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SECTION 4.9 Severability of
Provisions
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9
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SECTION 4.10 Binding Effect
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9
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SECTION 4.11 Acknowledgment and
Agreement
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10
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SECTION 4.12 Cumulative Remedies
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10
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SECTION 4.13 Nonpetition Covenant
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10
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SECTION 4.14 Submission to
Jurisdiction
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10
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SECTION 4.15 Third-Party
Beneficiaries
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11
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-i-
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Page
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SCHEDULE
I Perfection
Representations, Warranties and Covenants
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EXHIBIT
A Form
of Assignment
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Purchase Agreement
(2006-G1)
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-ii-
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 ”).
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:
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.
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Purchase Agreement
(2006-G1)
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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.
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Purchase Agreement
(2006-G1)
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-2-
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.
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Purchase Agreement
(2006-G1)
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-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
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Purchase Agreement
(2006-G1)
|
-4-
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
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Purchase Agreement
(2006-G1)
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-5-
substantially
simultaneously with such change, if it is not possible to take such
action in advance) reasonably necessary or advisa
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