Exhibit 99.3
PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Seller
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Purchaser
Dated as of January 1, 2003
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE......................................1
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES............................2
2.1 Conveyance and Acquisition of Receivables..................................................2
2.2 The Closing................................................................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES.................................3
3.1 Representations and Warranties of the Purchaser...........................................3
3.2 Representations and Warranties of the Seller..............................................4
ARTICLE IV
CONDITIONS..........................................11
4.1 Conditions to Obligation of the Purchaser................................................11
4.2 Conditions to Obligation of the Seller...................................................12
ARTICLE V
COVENANTS OF THE SELLER...................................12
5.1 Protection of Right, Title and Interest..................................................13
5.2 Other Liens or Interests.................................................................14
5.3 Costs and Expenses.......................................................................14
5.4 Indemnification..........................................................................14
5.5 Treatment................................................................................15
ARTICLE VI
MISCELLANEOUS PROVISIONS...................................16
6.1 Obligations of Seller....................................................................16
6.2 Repurchase of Receivables Upon Breach by the Seller......................................16
6.3 Seller's Assignment of Purchased Receivables.............................................16
6.4 Trust....................................................................................17
6.5 Amendment................................................................................17
6.6 Accountants' Letters.....................................................................17
6.7 Waivers..................................................................................18
6.8 Notices..................................................................................18
6.9 Costs and Expenses.......................................................................18
6.10 Survival.................................................................................19
6.11 Confidential Information.................................................................19
6.12 Headings and Cross-References............................................................19
6.13 Governing Law............................................................................19
6.14 Counterparts.............................................................................19
6.15 Further Assurances.......................................................................19
Exhibit A Assignment..........................................................................A-1
Exhibit B Schedule of Receivables.............................................................B-1
Schedule A Location of Receivable Files
at Third Party Custodians of Ford Credit............................................A-1
Schedule B Receivables Purchase Price..........................................................B-2
Appendix A Definitions and Usage..............................................................AA-1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (as from time to time amended,
supplemented or otherwise modified and in effect, this "Agreement") is made as
of the 1st day of January 2003, by and between FORD MOTOR CREDIT COMPANY, a
Delaware corporation (the "Seller"), having its principal executive office at
Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, and FORD CREDIT AUTO RECEIVABLES
TWO LLC, a Delaware limited liability company (the "Purchaser"), having its
principal executive office at Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, in the regular course of its business, the Seller
purchases certain retail installment sale contracts secured by new and used
automobiles and light duty trucks from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Receivables and related property are to be sold,
transferred, assigned and otherwise conveyed by the Seller to the Purchaser,
which Receivables will be transferred by the Purchaser pursuant to the Sale and
Servicing Agreement to the Ford Credit Auto Owner Trust 2003-A to be created
pursuant to the Trust Agreement, which Trust will issue notes secured by such
Receivables and certain other property of the Trust, pursuant to the Indenture,
and will issue certificates representing beneficial interests in such
Receivables and certain other property of the Trust, pursuant to the Trust
Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that are
applicable herein. The term "Seller" herein means Ford Motor Credit Company.
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES
2.1 Conveyance and Acquisition of Receivables
On the Closing Date, subject to the terms and conditions of
this Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Receivables and the other property
relating thereto (as defined below).
(a) Conveyance of Purchased Property. Effective as of the Closing Date and
simultaneously with the transactions pursuant to the Indenture, the Sale and
Servicing Agreement and the Trust Agreement, the Seller hereby sells, transfers,
assigns and otherwise conveys to the Purchaser, without recourse, all right,
title and interest of the Seller, whether now owned or hereafter acquired, in
and to the following (collectively, the "Purchased Property"): (i) the
Receivables; (ii) with respect to Actuarial Receivables, monies due thereunder
on or after the Cutoff Date (including Payaheads) and, with respect to Simple
Interest Receivables, monies due or received thereunder on or after the Cutoff
Date (including in each case any monies received prior to the Cutoff Date that
are due on or after the Cutoff Date and were not used to reduce the principal
balance of the Receivable); (iii) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and any other interest
of the Seller in the Financed Vehicles; (iv) rights to receive proceeds with
respect to the Receivables from claims on any physical damage, credit life,
credit disability, or other insurance policies covering Financed Vehicles or
Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to the Receivable
Files; (vii) payments and proceeds with respect to the Receivables held by the
Seller; (viii) all property (including the right to receive Liquidation
Proceeds) securing a Receivable (other than a Receivable repurchased by the
Seller); (ix) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and (x) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing.
(b) Receivables Purchase Price. In consideration for the Purchased Property
described in Section 2.1(a) hereof, the Purchaser will, on the Closing Date, pay
to the Seller the Receivables Purchase Price. As detailed on Schedule B hereto,
the portion of the Receivables Purchase Price to be paid in cash is an amount
equal to the net cash proceeds from the sale of the Notes to the Underwriters
pursuant to the Underwriting Agreement minus the Reserve Initial Deposit. The
remaining portion of the Receivables Purchase Price, $147,579,702.24, will be
deemed paid and returned to the Purchaser and will be considered a contribution
to capital. The portion of the Receivables Purchase Price to be paid in cash
will be paid by federal wire transfer (same day) funds.
(c) It is understood that the absolute sale, transfer, assignment and
conveyance of the Purchased Property by the Seller to the Purchaser pursuant to
this Agreement will be without recourse and the Seller does not guarantee
collection of any Receivable, provided, however, that such sale, transfer,
assignment and conveyance will be made pursuant to and in reliance on by the
Purchaser of the representations and warranties of the Seller as set forth in
Section 3.2(b) hereof.
2.2 The Closing. The sale, assignment, conveyance and
acquisition of the Purchased Property will take place at a closing (the
"Closing") at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four
Times Square, New York, NY 10036-6522 on the Closing Date, simultaneously with
the closings under: (a) the Sale and Servicing Agreement pursuant to which the
Purchaser will assign all of its right, title and interest in, to and under the
Receivables and certain other property to the Trust in exchange for the
Securities; (b) the Indenture, pursuant to which the Trust will issue the Notes
and pledge all of its right, title and interest in, to and under the Receivables
and certain other property to secure the Notes; (c) the Trust Agreement,
pursuant to which the Trust will issue the Certificates; and (d) the
Underwriting Agreement, pursuant to which the Purchaser will sell to the
Underwriters the Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date hereof and
as of the Closing Date:
(a) Organization, etc. The Purchaser has been duly organized and is validly
existing as a limited liability company in good standing under the laws of the
State of Delaware, and has full power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof and thereof.
(b) Due Authorization and No Violation. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and is the legal, valid,
binding and enforceable obligation of the Purchaser 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 Conflicts. The consummation of the transactions contemplated by this
Agreement, and the fulfillment of the terms hereof, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under (in each case material to the Purchaser), or result in the creation or
imposition of any lien, charge or encumbrance (in each case material to the
Purchaser) upon any of the property or assets of the Purchaser pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under which the
Purchaser is a debtor or guarantor, nor will such action result in any violation
of the provisions of the Certificate of Formation or the Limited Liability
Company Agreement of the Purchaser.
(d) No Proceedings. No legal or governmental proceedings are pending to
which the Purchaser is a party or of which any property of the Purchaser is the
subject, and no such proceedings are threatened or contemplated by governmental
authorities or threatened by others, other than such proceedings which will not
have a material adverse effect upon the general affairs, financial position, net
worth or results of operations (on an annual basis) of the Purchaser and will
not materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity and enforceability of, this Agreement.
(e) Fair Market Value. The Purchaser has determined that the Receivables
Purchase Price paid by it for the Purchased Property on the Closing Date is
equal to the fair market value for the Purchased Property.
3.2 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Purchaser as of the
date hereof and as of the Closing Date:
(i) Organization, etc. The Seller has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the State of Delaware, and is duly qualified to transact business
and is in good standing in each jurisdiction in the United States of
America in which the conduct of its business or the ownership of its
property requires such qualification.
(ii) Power and Authority; Due Authorization; Enforceability. The
Seller has full power and authority to convey and assign the property
conveyed and assigned to the Purchaser hereunder and has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action. This Agreement has been duly authorized, executed
and delivered by the Seller and will constitute the legal, valid,
binding and enforceable obligation of the Seller 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.
(iii) No Violation. The consummation of the transactions
contemplated by this Agreement, and the fulfillment of the terms
hereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under (in each case
material to the Seller and its subsidiaries considered as a whole), or
result in the creation or imposition of any lien, charge or
encumbrance (in each case material to the Seller and its subsidiaries
considered as a whole) upon any of the property or assets of the
Seller pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Seller is a debtor or
guarantor, nor will such action result in any violation of the
provisions of the certificate of incorporation or the by-laws of the
Seller.
(iv) No Proceedings. No legal or governmental proceedings are
pending to which the Seller is a party or of which any property of the
Seller is the subject, and no such proceedings are threatened or
contemplated by governmental authorities or threatened by others,
other than such proceedings which will not have a material adverse
effect upon the general affairs, financial position, net worth or
results of operations (on an annual basis) of the Seller and its
subsidiaries considered as a whole and will not materially and
adversely affect the performance by the Seller of its obligations
under, or the validity and enforceability of, this Agreement.
(v) This Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in the Receivables, in
favor of the Purchaser which security interest is prior to all other
Liens and is enforceable as such as against all other creditors of and
purchasers from the Seller.
(b) The Seller makes the following representations and warranties as to the
Receivables on which the Purchaser relies in accepting the Receivables. Such
representations and warranties speak as of the Closing Date, but will survive
the transfer, assignment and conveyance of the Receivables to the Purchaser and
the subsequent assignment and transfer to the Trust pursuant to the Sale and
Servicing Agreement and the pledge thereof to the Indenture Trustee pursuant to
the Indenture:
(i) Characteristics of Receivables. Each Receivable (a) has been
originated in the United States of America by a Dealer for the retail
sale of a Financed Vehicle in the ordinary course of such Dealer's
business, has been fully and properly executed by the parties thereto,
has been purchased either (X) by the Seller from a Dealer under an
existing dealer agreement with the Seller and has been validly
assigned by such Dealer to the Seller, or (Y) by PRIMUS from a Dealer
or other finance source (provided that such purchase relates to an
individual Receivable and not a bulk purchase) under an existing
agreement with PRIMUS and has been validly assigned by such Dealer or
other finance source to PRIMUS and has been validly assigned by PRIMUS
to the Seller in the ordinary course of business, (b) creates or has
created a valid, subsisting, and enforceable first priority security
interest in favor of the Seller in the Financed Vehicle, which
security interest will be assignable by the Seller to the Purchaser,
(c) contains customary and enforceable provisions such that the rights
and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security, (d) provides
for level monthly payments (provided that the payment in the last
month in the life of the Receivable may be different but in no event
more than twice the amount of the level payment) that fully amortize
the Amount Financed by maturity and yield interest at the Annual
Percentage Rate, (e) provides for, in the event that such contract is
prepaid, a prepayment that fully pays the Principal Balance, and (e)
is an Actuarial Receivable or a Simple Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables is true and correct in all material respects
as of the opening of business on the Cutoff Date, and no selection
procedures believed to be adverse to the Noteholders or the
Certificateholders have been utilized in selecting the Receivables
from those receivables which meet the criteria contained herein. The
computer tape or other listing regarding the Receivables made
available to the Purchaser and its assigns is true and correct in all
material respects.
(iii) Compliance with Law. Each Receivable and the sale of the
Financed Vehicle will have complied at the time it was originated or
made and at the execution of this Agreement complies in all material
respects with all requirements of applicable federal, State, and local
laws, and regulations thereunder, including, without limitation, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices
Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act,
the Federal Reserve Board's Regulations B and Z, and State adaptations
of the National Consumer Act and of the Uniform Consumer Credit Code,
and other consumer credit laws and equal credit opportunity and
disclosure laws.
(iv) Binding Obligation. Each Receivable represents the genuine,
legal, valid, and binding payment obligation of the Obligor,
enforceable by the holder thereof in accordance with its terms subject
to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally.
(v) No Government Obligor. None of the Receivables are due from
the United States of America or any State or from any agency,
department, or instrumentality of the United States of America, any
State or political subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior to
the transfer, assignment and conveyance thereof, each Receivable is
secured by a first priority, validly perfected security interest in
the Financed Vehicle in favor of the Seller as secured party or all
necessary and appropriate actions have been commenced that would
result in a first priority, validly perfected security interest in the
Financed Vehicle in favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated, or rescinded, nor has any Financed Vehicle been released
from the lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been waived.
(ix) No Defenses. No right of rescission, setoff, counterclaim,
or defense has been asserted or threatened with respect to any
Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens or
claims have been filed for work, labor, or materials relating to a
Financed Vehicle that are liens prior to, or equal with, the security
interest in the Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a
period of not more than thirty (30) days as of the Cutoff Date, no
default, breach, violation, or event permitting acceleration under the
terms of any Receivable has occurred; and no continuing condition that
with notice or the lapse of time would constitute a default, breach,
violation, or event permitting acceleration under the terms of any
Receivable has arisen; and the Seller has not waived any of the
foregoing.
(xii) Insurance. With respect to each Receivable, the Seller, in
accordance with its customary standards, policies and procedures, will
has determined that, as of the date of origination of each Receivable,
the Obligor had obtained or agreed to obtain physical damage insurance
covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the sale,
transfer, assignment and conveyance herein contemplated constitute an
absolute sale, transfer, assignment and conveyance of the Receivables
from the Seller to the Purchaser and that the beneficial interest in
and title to the Receivables not be part of the Seller's estate in the
event of the filing of a bankruptcy petition by or against the Seller
under any bankruptcy law. No Receivable has been sold, transferred,
assigned, conveyed or pledged by the Seller to any Person other than
the Purchaser. Immediately prior to the sale and transfer herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens, encumbrances, security
interests, participations and rights of others and, immediately upon
the sale and transfer thereof, the Purchaser will have good and
marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests, participations and rights of others;
and the sale and transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable has been originated in, or
is subject to the laws of, any jurisdiction under which the sale,
transfer, assignment and conveyance of such Receivable under this
Agreement or pursuant to transfers of the Securities would be
unlawful, void, or voidable. The Seller has not entered into any
agreement with any account debtor that prohibits, restricts or
conditions the assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Purchaser a first priority, validly perfected ownership interest in
the Receivables, and to give the Indenture Trustee a first perfected
security interest therein, will be made within ten days of the Closing
Date.
(xvi) Priority. Other than the security interest granted to the
Purchaser pursuant to this Agreement, the Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables. The Seller has not authorized the filing of
and is not aware of any financing statements against the Seller that
include a description of collateral covering the Receivables other
than any financing statement relating to the security interest granted
to the Purchaser hereunder or granted by the Purchaser to the Issuer
or by the Issuer to the Indenture Trustee or that has been terminated.
(xvii) Chattel Paper. Each Receivable constitutes "tangible
chattel paper" as defined in the UCC.
(xviii) One Original. There will be only one original executed
copy of each Receivable. The Seller, or its custodian, has possession
of such original with respect to each Receivable. Such original does
not have any marks or notations indicating that it has been pledged,
assigned or otherwise conveyed to any Person other than the Seller.
All financing statements filed or to be filed against the Seller in
favor of the Purchaser in connection herewith describing the
Receivables contain a statement to the following effect: "A purchase
of or security interest in any collateral described in this financing
statement will violate the rights of the Purchaser."
(xix) New and Used Vehicles. 79.34% of the aggregate Principal
Balance of the Receivables, constituting 71.53% of the number of
Receivables, as of the Cutoff Date, represent vehicles financed at new
vehicle rates, and the remainder of the Receivables represent vehicles
financed at used vehicle rates.
(xx) Amortization Type. By aggregate Principal Balance as of the
Cutoff Date, 0.01% of the Receivables constitute Actuarial Receivables
and 99.99% of the Receivables constitute Simple Interest Receivables.
(xxi) Origination. Each Receivable has an origination date on or
after February 13, 1997.
(xxii) PRIMUS. 10.01% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date represent Receivables originated
through PRIMUS and assigned to the Seller, and 89.99% of the aggregate
Principal Balance of the Receivables as of the Cutoff Date represent
Receivables that were originated through Ford Credit (excluding
PRIMUS).
(xxiii) Maturity of Receivables. Each Receivable has an original
maturity of not greater than seventy-two (72) months. The percentage
of Receivables by Principal Balance with original terms greater than
60 months is 8.42%. The percentage of Receivables by Principal Balance
with remaining terms greater than 60 months is 6.44%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate of each
Receivable is between 0.00% to 29.99% (inclusive).
(xxv) Scheduled Payments. Each Receivable has a first Scheduled
Payment due, in the case of Actuarial Receivables, or a first
scheduled due date, in the case of Simple Interest Receivables, on or
prior to December 31, 2002 and no Receivable has a payment that is
more than thirty (30) days overdue as of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files are
kept at one or more of the offices of the Servicer in the United
States or the offices of one of the custodians specified in Schedule A
hereto.
(xxvii) No Extensions. The number of Scheduled Payments, in the
case of Actuarial Receivables, and the number of scheduled due dates,
in the case of Simple Interest Receivables, will not have been
extended on or before the Cutoff Date on any Receivable.
(xxviii) Other Data. The numerical data relating to the
characteristics of the Receivables contained in the Prospectus are
true and correct in all material respects.
(xxix) Agreement. The representations and warranties in this
Agreement will be true.
(c) The Seller has determined that the Receivables Purchase Price received
by it for the Purchased Property on the Closing Date is equal to the fair market
value for the Purchased Property.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder will be true and correct on the Closing
Date with the same effect as if then made, and the Seller will have
performed all obligations to be performed by it hereunder on or prior to
the Closing Date.
(b) Computer Files Marked. The Seller, at its own expense, on or prior
to the Closing Date, will indicate in its computer files, in accordance
with its customary standards, policies and procedures, that the Receivables
have been conveyed to the Purchaser pursuant to this Agreement and will
deliver to the Purchaser the Schedule of Receivables certified by an
officer of the Seller to be true, correct and complete.
(c) Documents to be Delivered by the Seller at the Closing.
(i) The Assignment. On the Closing Date, the Seller will
execute and deliver the Assignment. The Assignment will be
substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the Closing
Date, the Seller will record and file, at its own expense, a
UCC-1 financing statement in each jurisdiction in which required
by applicable law, executed by the Seller, as seller or debtor,
and naming the Purchaser, as purchaser or secured party, naming
the Receivables and the other property conveyed hereunder,
meeting the requirements of the laws of each such jurisdiction
and in such manner as is necessary to perfect the transfer,
assignment and conveyance of such Receivables to the Purchaser.
The Seller will deliver a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the Purchaser on
or prior to the Closing Date.
(iii) Other Documents. Such other documents as the Purchaser
may reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement will be
consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller. The
obligation of the Seller to convey the Receivables to the Purchaser is subject
to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder will be true and correct on the
Closing Date with the same effect as if then made, and the Purchaser will
have performed all obligations to be performed by it hereunder on or prior
to the Closing Date.
(b) Receivables Purchase Price. At the Closing Date, the Purchaser
will deliver to the Seller the Receivables Purchase Price in accordance
with Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller covenants and agrees with the Purchaser as follows,
provided, however, that to the extent that any provision of this ARTICLE V
conflicts with any provision of the Sale and Servicing Agreement, the Sale and
Servicing Agreement will govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller will authorize and file such financing statements and
cause to be executed and filed such continuation 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 (or its assignee) in
the Receivables and in the proceeds thereof. The Seller will 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) The Seller will not change its name, identity, or corporate
structure in any manner that would, could, or might make any financing
statement or continuation statement filed by the Seller in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-506 of
the UCC, unless it has given the Purchaser at least five (5) days' prior
written notice thereof and promptly files appropriate amendments to all
previously filed financing statements or continuation statements.
(c) The Seller will give the Purchaser at least sixty (60) days' prior
written notice of any relocation of its principal executive office 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 and will promptly
file any such amendment or new financing statement. The Seller will at all
times maintain each office from which it will service Receivables, and its
principal executive office, within the United States of America.
(d) The Seller will 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).
(e) The Seller will maintain its computer systems, in accordance with
its customary standards, policies and procedures, so that, from and after
the time of conveyance hereunder of the Receivables to the Purchaser, the
Seller's master computer records (including any back-up archives) that
refer to a Receivable will indicate clearly the interest of the Purchaser
in such Receivable and that such Receivable is owned by the Purchaser or
its assignee. Indication of the ownership of a Receivable by the Purchaser
or its assignee will not be deleted from or modified on the Seller's
computer systems until, and only until, the Receivable has been paid in
full or repurchased.
(f) If at any time the Seller proposes to sell, grant a security
interest in, or otherwise transfer any interest in automotive receivables
to any prospective purchaser, lender, or other transferee, the Seller will
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 refer in any manner whatsoever to any Receivable,
will indicate clearly that such Receivable has been conveyed to and is
owned by the Purchaser.
(g) The Seller will, upon receipt by the Seller of reasonable prior
notice, permit the Purchaser and its agents at any time during normal
business hours to inspect, audit, and make copies of and abstracts from the
Seller's records regarding any Receivable.
(h) Upon request, the Seller will furnish to the Purchaser, within
twenty (20) Business Days, a list of all Receivables (by contract number
and name of Obligor) then owned by the Purchaser, together with a
reconciliation of such list to the Schedule of Receivables.
5.2 Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the other Basic Documents, the Seller will not sell,
pledge, assign or transfer any Receivable to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any interest therein, and the
Seller will defend the right, title, and interest of the Purchaser in, to and
under such Receivables against all claims of third parties claiming through or
under the Seller; provided, however, that the Seller's obligations under this
Section 5.2 will terminate upon the termination of the Trust pursuant to the
Trust Agreement.
5.3 Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Purchaser's right, title and interest in and to the
Receivables.
5.4 Indemnification.
(a) The Seller will defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the failure of a Receivable
to be originated in compliance with all requirements of law and for any
breach of any of the Seller's representations and warranties contained
herein provided, however, with respect to a breach of the Seller's
representations and warranties as set forth in Section 3.2(b), any
indemnification amounts owed pursuant to this Section 5.4 with respect of a
Receivable will give effect to and not be duplicative of the Purchase
Amounts paid by the Seller pursuant to Section 6.2 hereof.
(b) The Seller will defend, indemnify, and hold harmless the Purchaser
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 Seller or any Affiliate thereof of a Financed Vehicle.
(c) The Seller will defend, indemnify, and hold harmless the Purchaser
from and against any and all taxes that may at any time be asserted against
the Purchaser with respect to the transactions contemplated herein,
including, without limitation, any sales, gross receipts, general
corporation, tangible personal property, privilege, or license taxes and
costs and expenses in defending against the same.
(d) The Seller will defend, indemnify, and hold harmless the Purchaser
from and against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance, or bad faith of the Seller in the
performance of its duties under this Agreement or by reason of reckless
disregard of the Seller's obligations and duties under this Agreement.
(e) The Seller will defend, indemnify, and hold harmless the Purchaser
from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the Seller's trusts and duties as Servicer under the Sale
and Servicing Agreement, except to the extent that such cost, expense,
loss, claim, damage, or liability is due to the willful misfeasance, bad
faith, or negligence (except for errors in judgment) of the Purchaser.
These indemnity obligations will be in addition to any
obligation that the Seller may otherwise have.
5.5 Treatment. The Seller agrees to treat this conveyance as
(i) an absolute transfer for tax purposes and (ii) a sale for all other purposes
(including without limitation financial accounting purposes), in each case on
all relevant books, records, tax returns, financial statements and other
applicable documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller
under this Agreement will not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
6.2 Repurchase of Receivables Upon Breach by the Seller. (a)
The Seller hereby covenants and agrees with the Purchaser for the benefit of the
Purchaser, the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders
and the Certificateholders, that the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) hereof will
constitute events obligating the Seller to repurchase Receivables hereunder
("Repurchase Events"), at the Purchase Amount from the Purchaser or from the
Trust.
(b) Any Person who discovers a breach of any representation or
warranty of the Seller set forth in Section 3.2(b) hereof may, and if such
Person is the Seller or the Servicer, will, inform promptly the Servicer,
the Seller, the Purchaser, the Trust, the Owner Trustee and the Indenture
Trustee, as the case may be, in writing, upon the discovery of any breach
of any representation or warranty as set forth in Section 3.2(b) hereof.
Unless the breach has been cured by the last day of the second Collection
Period following such discovery (or, at the Seller's election, the last day
of the first following Collection Period), the Seller will repurchase any
Receivable materially and adversely affected by such breach at the Purchase
Amount. In consideration of the repurchase of such Receivable, the Seller
will remit the Purchase Amount to the Servicer for distribution pursuant to
Section 4.3 of the Sale and Servicing Agreement. The sole remedy (except as
provided in Section 5.4 hereof) of the Purchaser, the Trust, the Owner
Trustee, the Indenture Trustee, the Noteholders or the Certificateholders
against the Seller with respect to a Repurchase Event will be to require
the Seller to repurchase Receivables pursuant to this Section 6.2. With
respect to all Receivables repurchased pursuant to this Section 6.2, the
Purchaser will assign to the Seller, without recourse, representation or
warranty, all the Purchaser's right, title and interest in and to such
Receivables, and all security and documents relating thereto.
6.3 Seller's Assignment of Purchased Receivables. With respect
to all Receivables repurchased by the Seller pursuant to this Agreement, the
Purchaser will assign, without recourse, representation or warranty, to the
Seller all the Purchaser's right, title and interest in and to such Receivables,
and all security and documents relating thereto.
6.4 Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing Agreement,
convey the Receivables to the Trust and assign its rights under this
Agreement to the Trust for the benefit of the Noteholders and the
Certificateholders, and that the representations and warranties contained
in this Agreement and the rights of the Purchaser under Sections 6.2 and
6.3 hereof are intended to benefit the Trust, the Owner Trustee, the
Noteholders and the Certificateholders. The Seller hereby consents to such
conveyance and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the Receivables
and its rights under this Agreement to the Indenture Trustee for the
benefit of the Noteholders, and that the representations and warranties
contained in this Agreement and the rights of the Purchaser under this
Agreement, including under Sections 6.2 and 6.3 are intended to benefit the
Indenture Trustee and the Noteholders. The Seller hereby consents to such
pledge.
6.5 Amendment. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller and the
Purchaser; provided, however, that any such amendment that materially adversely
affects the rights of the Noteholders or the Certificateholders under the
Indenture, Sale and Servicing Agreement or Trust Agreement will be consented to
by the Noteholders of Notes evidencing not less than a majority of the Notes
Outstanding and the Certificateholders of Certificates evidencing not less than
a majority of the Aggregate Certificate Balance.
6.6 Accountants' Letters.
(a) PricewaterhouseCoopers LLP will review the characteristics of the
Receivables described in the Schedule of Receivables and will compare those
characteristics to the information with respect to the Receivables
contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser and
PricewaterhouseCoopers LLP in making available all information and taking
all steps reasonably necessary to permit such accountants to complete the
review set forth in Section 6.6(a) above and to deliver the letters
required of them under the Underwriting Agreement.
(c) PricewaterhouseCoopers LLP will deliver to the Purchaser a letter,
dated the Closing Date, in the form previously agreed to by the Seller and
the Purchaser, with respect to the financial and statistical information
contained in the Prospectus under the caption "Delinquencies, Repossessions
and Net Losses" and with respect to such other information as may be agreed
in the form of letter.
6.7 Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or the Assignment
will operate as a waiver thereof, nor will any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
6.8 Notices. All communications and notices pursuant hereto to
either party will be in writing or by facsimile and addressed or delivered to it
at its address as shown below or at such other address as may be designated by
it by notice to the other party and, if mailed or sent by facsimile, will be
deemed given upon receipt at the address or facsimile number for each party set
forth below.
To Seller: Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
Xxx Xxxxxxxx Xxxx
Xxxxx 0000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Facsimile No.: (000) 000-0000
To Purchaser: Ford Credit Auto Receivables Two LLC
c/o Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Facsimile No.: (000) 000-0000
6.9 Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.
6.10 Survival. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in or
made pursuant to this Agreement will remain in full force and effect and will
survive the closing under Section 2.2 hereof and any sale, transfer or other
assignment of the Receivables by the Purchaser.
6.11 Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, under any Sale and Servicing Agreement or as
required by law.
6.12 Headings and Cross-References. The various headings in
this Agreement are included for convenience only and will 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.
6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
6.14 Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which will be an original, but all of which together will constitute one and the
same instrument.
6.15 Further Assurances. Seller and Purchaser will each, at
the request of the other, execute and deliver to the other all other instruments
that either may reasonably request in order to perfect the conveyance, transfer,
assignment and delivery to Purchaser of the rights to be conveyed, transferred,
assigned and delivered and for the consummation of this Agreement.
IN WITNESS WHEREOF, the parties hereby have caused this
Purchase Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
FORD MOTOR CREDIT COMPANY
By:
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
FORD CREDIT AUTO RECEIVABLES
TWO LLC
By:
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of January 1, 2003 (the "Purchase Agreement"), between the undersigned
and FORD CREDIT AUTO RECEIVABLES TWO LLC (the "Purchaser"), the undersigned does
hereby assign, transfer and otherwise convey unto the Purchaser, without
recourse, all right, title and interest of the undersigned, whether now owned or
hereafter acquired, in and to the following: (i) the Receivables; (ii) with
respect to Actuarial Receivables, monies due thereunder on or after the Cutoff
Date (including Payaheads) and, with respect to Simple Interest Receivables,
monies due or received thereunder on or after the Cutoff Date (including in each
case any monies received prior to the Cutoff Date that are due on or after the
Cutoff Date and were not used to reduce the principal balance of the
Receivable); (iii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller in the
Financed Vehicles; (iv) rights to receive proceeds with respect to the
Receivables from claims on any physical damage, credit life, credit disability,
or other insurance policies covering the Financed Vehicles or Obligors; (v)
Dealer Recourse; (vi) all of the Seller's rights to the Receivable Files; (vii)
payments and proceeds with respect to the Receivables held by the Seller; (viii)
all property (including the right to receive Liquidation Proceeds) securing a
Receivable (other than a Receivable repurchased by the Seller); (ix) rebates of
premiums and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date; and (x) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing. The foregoing conveyance does not constitute
and is not intended to result in any assumption by the Purchaser of any
obligation of the undersigned to the Obligors, insurers or any other Person in
connection with the Receivables, Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined will
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of January 1, 2003.
FORD MOTOR CREDIT COMPANY
By:____________________________
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
Schedule A
Location of Receivable Files
at Third Party Custodians of Ford Credit
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
MSX International, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Iron Mountain Records Management
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Schedule B
Receivables Purchase Price
Total net cash proceeds from the
Underwriters for purchase of the
Class A-1 Notes, Class A-2a Notes,
Class A-2b Notes, Class A-3a Notes,
Class A-3b Notes, Class A-4a Notes,
Class A-4b Notes, Class B-1 Notes,
Class B-2 Notes and Class C Notes
received by Purchaser $2,994,545,103.28
less Reserve Account Deposit $(15,749,999.03)
equals the total cash received by
Purchaser available for transfer
to Ford Credit as Seller1 $2,978,795,104.25
Receivables Purchase Price2 $3,126,374,806.49
minus the total cash received by
Purchaser available for transfer to
Ford Credit as Seller $2,978,795,104.25
equals the difference (and
Deemed Capital Contribution
from Ford Credit) of: $147,579,702.24
--------
1The Class D Certificates are retained by the Purchaser and are not
available for transfer to Ford Credit.
2The Seller and the Purchaser have determined that the Receivables Purchase
Price equals the fair market value of the Receivables and the related property
and the fair market value is calculated as 104.23% of the adjusted pool balance
(or equal to 99.25% of the original pool balance for purposes of the
calculations).
APPENDIX A
Definitions and Usage
