PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Seller
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Purchaser
Dated as of May 1, 2004
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES
2.1 Conveyance and Acquisition of Receivables..................................................2
2.2 The Closing................................................................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser............................................3
3.2 Representations and Warranties of the Seller...............................................4
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser.................................................11
4.2 Conditions to Obligation of the Seller....................................................12
ARTICLE V
COVENANTS OF THE SELLER
5.1 Protection of Right, Title and Interest...................................................12
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
6.1 Obligations of Seller.....................................................................16
6.2 Repurchase of Receivables Upon Breach by the Seller.......................................16
6.3 Purchaser's Assignment of Repurchased Receivables.........................................16
6.4 Trust.....................................................................................16
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.............................................................20
6.13 GOVERNING LAW.............................................................................20
6.14 Counterparts..............................................................................20
6.15 Further Assurances........................................................................20
6.16 Savings Clause............................................................................20
Exhibit A Assignment......................................................................A-1
Exhibit B Schedule of Receivables.........................................................B-1
Schedule A Location of Receivable Files
at Third Party Custodians.......................................................A-1
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 May 2004, 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 2004-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.
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) monies due or received thereunder on or
after the Cutoff Date and monies due and received prior to the Cutoff Date that
are posted to the Obligor's account on or after the Cutoff Date; (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 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 $1,721,550,400.36 in cash by federal wire
transfer (same day) funds. The Purchaser and the Seller each represent and
warrant to the other that the amount of cash paid by the Purchaser, together
with the increase in value in the Seller's capital in the Purchaser, is equal to
the fair market value of the Receivables.
(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 a mutually agreed upon time and place 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 the
interim trust agreement will be amended; 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.
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) Valid Security Interest. 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, is payable in U.S. dollars, has been fully and properly
executed by the parties thereto, has been purchased by the Seller from
a Dealer and has been validly assigned by such Dealer to the Seller,
(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 that fully amortize the Amount
Financed by its stated 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 (f) is
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 (which computer tape or
other listing is required to be delivered as specified herein) 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 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
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 an event permitting acceleration under the terms
of any Receivable has arisen; and the Seller has not waived any of the
foregoing.
(xii) Insurance. The Seller, in accordance with its policies and
procedures, 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 priority
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 substantially to the following effect:
"A purchase of or security interest in any collateral described in
this financing statement will violate the rights of the Secured
Party/Assignee."
(xix) New and Used Vehicles. 84.32% of the aggregate Principal
Balance of the Receivables, constituting 76.37% of the number of
Receivables, as of the Cutoff Date, represent vehicles financed at new
vehicle rates, and the remainder of the aggregate Principal Balance of
the Receivables represent vehicles financed at used vehicle rates.
(xx) Origination. Each Receivable has an origination date on or
after June 24, 1998 and a scheduled maturity date not later than March
30, 2010.
(xxi) Principal Balance. Each Receivable has a current principal
balance of at least $250.00.
(xxii) PRIMUS. 10.04% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date represent Receivables originated
through Ford Credit's PRIMUS division, and 89.96% of the aggregate
Principal Balance of the Receivables as of the Cutoff Date represent
Receivables that were originated through Ford Credit (excluding its
PRIMUS division).
(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 25.44%. The percentage of Receivables by Principal
Balance with remaining terms greater than 60 months is 19.46%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate of each
Receivable is between 0.00% to 29.95% (inclusive).
(xxv) Scheduled Payments. Each Receivable has a first scheduled
due date on or prior to April 30, 2004 and has had at least one
scheduled payment applied. No Receivable has a payment that is more
than thirty (30) days delinquent, as determined by the Seller in
accordance with its policies and procedures, 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 due dates 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 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. Within ten (10) days of 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 within ten (10) days of 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 so
that, from and after the time of conveyance under this Agreement 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 or its assignee.
(g) The Seller, upon receipt by the Seller of
reasonable prior notice, will 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) then owned by the Purchaser or its assignee, 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, that 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 in all material respects by the last day of the
second Collection Period following such discovery, the Seller will repurchase
any Receivable materially and adversely affected by such breach as of such last
day (or, at the Seller's election, the last day of the first following
Collection Period), 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.
6.3 Purchaser's Assignment of Repurchased 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, Credit
Losses and Repossessions in Ford Credit's Portfolio" 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 fax number for
each party set forth below.
To Seller: Ford Motor Credit Company
c/o Ford Motor Company, WHQ
Xxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Fax number: (000) 000-0000
To Purchaser: Ford Credit Auto Receivables Two LLC
c/o Ford Credit SPE Management Office
c/o Ford Motor Company, WHQ
Xxx Xxxxxxxx Xxxx
Xxxxx 0000-X0
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax Number: (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.
(a) The Purchaser agrees to hold and treat all
Confidential Information (defined in Section 6.11(b)) provided to it under this
Agreement in confidence and in accordance with this Section 6.11, and will
implement and maintain safeguards to further assure the confidentiality of such
Confidential Information. Such Confidential Information will not, without
instruction pursuant to this Agreement or the prior written consent of the
Seller, be disclosed or used by the Purchaser or its directors, officers,
employees, attorneys or agents (collectively, the "Information Recipients")
other than in connection with (i) the transactions contemplated by the Basic
Documents and the issuance of the Notes and (ii) the Purchaser's due diligence
on the Receivables. Disclosure that is not in violation of the Right to
Financial Privacy Act of 1978, the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "G-L-B
Act") or other applicable law by the Purchaser of any Confidential Information
(A) in connection with (x) the enforcement of the Purchaser's rights under the
Purchased Property and (y) the performance of the Purchaser's due diligence on
the Receivables or (B) at the request of the Purchaser's independent certified
public accountants or governmental regulatory authorities in connection with an
examination of the Purchaser by any such authority or for the purposes specified
in Section 6.6 will not constitute a breach of its obligations under this
Section 6.11, and will not require the prior written consent of the Seller.
(b) As used herein, "Confidential Information" means
non-public personal information (as defined in the G-L-B Act and its enabling
regulations issued by the Federal Trade Commission) regarding Obligors on the
Receivables that is identified as such by the Seller. Confidential Information
will not include information that (i) is or becomes generally available to the
public other than as a result of disclosure by the Purchaser or any of its
Information Recipients, (ii) was available to the Purchaser on a
non-confidential basis from a Person or entity other than the Seller prior to
its disclosure to the Purchaser, (iii) is requested to be disclosed by a
governmental authority or related governmental, administrative, or regulatory or
self-regulatory agencies having or claiming authority to regulate or oversee any
aspect of the Purchaser's business or that of its Affiliates or is otherwise
required by law or by legal or regulatory process to be disclosed, (iv) becomes
available to the Purchaser on a non-confidential basis from a Person other than
the Seller who, to the knowledge of the Purchaser, is not otherwise bound by a
confidentiality agreement with the Seller and is not otherwise prohibited from
transmitting the information to the Purchaser or (v) the Seller provides written
permission to the Purchaser to release.
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 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.
6.16 Savings Clause. It is the intention of the Seller and
the Purchaser that the transfer of the Purchased Property contemplated herein
constitute an absolute sale of the Purchased Property, conveying good title to
the Purchased Property from the Seller to the Purchaser. However, in the event
that such sale is deemed to be a pledge, the Seller hereby grants to the
Purchaser a first priority security interest in all of the Seller's right, title
and interest in, to and under the Purchased Property, and all proceeds thereof,
to secure a loan in an amount equal to all amounts payable under this Agreement,
and in such event, this Agreement will constitute a security agreement under
applicable law.
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 X. Xxxxxx
Title: Assistant Treasurer
FORD CREDIT AUTO RECEIVABLES
TWO LLC
By:
Name: Xxxxx X. Xxxxxx
Title: Secretary
A-1
Exhibit A
For value received, in accordance with the Purchase Agreement
dated as of May 1, 2004 (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) monies
due or received thereunder on or after the Cutoff Date and monies due and
received prior to the Cutoff Date that are posted to the Obligor's account on or
after the Cutoff Date; (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 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 shall
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 May 1, 2004.
FORD MOTOR CREDIT COMPANY
By: _______________________
Name: X.X. Xxxxxx
Title: Assistant Treasurer
B-1
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
A-1
Schedule A
Location of Receivable Files
at Third Party Custodians
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
AA-1
APPENDIX A
Definitions and Usage
