Exhibit 4.3
EXECUTION
FORD CREDIT AUTO RECEIVABLES LLC
Buyer
and
FORD MOTOR CREDIT COMPANY
Seller
RECEIVABLES PURCHASE AGREEMENT
Dated as of September 30, 1997
Table of Contents
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Page
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Exhibit A Form of Assignment
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Opinion of Counsel
Exhibit D Form of Reassignment
Schedule 1 - List of Accounts
RECEIVABLES PURCHASE AGREEMENT, dated as of September 30, 1997,
between FORD CREDIT AUTO RECEIVABLES LLC, a Delaware limited liability
company, as Buyer, and FORD MOTOR CREDIT COMPANY, a Delaware corporation, as
Seller.
W I T N E S S E T H :
WHEREAS the Seller in the ordinary course of its business finances
the purchase of floorplan inventory by automotive dealers thereby generating
certain payment obligations under revolving credit account agreements
established with such dealers;
WHEREAS the Seller wishes to sell certain of such existing and future
payment obligations generated under such accounts from time to time to the
Buyer; and
WHEREAS the Buyer desires to sell such payment obligations to the
Ford Credit Auto Loan Master Trust II pursuant to a Pooling and Servicing
Agreement, dated as of September 30, 1997 (as the same may from time to time
be amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement"), among the Buyer, as transferor, the Seller, as master servicer,
and The Chase Manhattan Bank, as trustee (the "Trustee").
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I.
Definitions
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Section 1.01. Definitions. Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. In addition, the term "Agreement" means this Receivables
Purchase Agreement, as the same may from time to time be amended, supplemented
or otherwise modified.
Section 1.02. Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; Article, Section, Schedule, and Exhibit
references are references to Sections, Schedules and Exhibits in or to this
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II.
Conveyance of Receivables
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Section 2.01. Conveyance of Receivables. By execution of this
Agreement, the Seller does hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as expressly provided herein), to
the Buyer on the first Closing Date, in the case of Initial Accounts, and on
the applicable Addition Date, in the case of Additional Accounts, all of its
right, title and interest in, to and under the Receivables in each Account and
all Related Security with respect thereto owned by the Seller at the close of
business on the Cut-Off Date, in the case of the Initial Accounts, and on the
applicable Additional Cut-Off Date, in the case of Additional Accounts, and
all monies due or to become due and all amounts received with respect thereto
and all proceeds (including "proceeds" as defined in Section 9-306 of the UCC
as in effect in the State of Michigan) and Recoveries thereof. Subject to
Article VI, as of each Business Day prior to the earlier of (x) the occurrence
of an Early Amortization Event specified in Section 9.01(b), (c), (d), or (e)
of the Pooling and Servicing Agreement and (y) the Trust Termination Date, on
which Receivables are created in the Accounts (a "Transfer Date"), the Seller
does hereby sell, transfer, assign, set over and otherwise convey, without
recourse (except as expressly provided herein), to the Buyer, all of its
right, title and interest in, to and under the Receivables in each Account
(other than any Receivables created in any Removal Accounts from and after the
applicable Removal Date) and all Related Security with respect thereto owned
by the Seller at the close of business on such Transfer Date and not
theretofore conveyed to the Buyer, all monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds"
as defined in Section 9-306 of the UCC as in effect in the State of Michigan)
and Recoveries thereof. The foregoing sale, transfer, assignment, set-over and
conveyance and any subsequent sales, transfers, assignments, set-overs and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by the Buyer of any obligation of the Master Servicer, the
Seller, Ford, any Originator or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating
thereto, including any obligation to any Dealers.
In connection with such sales, the Seller agrees to record and file,
at its own expense, a financing statement on form UCC-1 or any other
applicable form (and continuation statements when applicable) naming the
Seller as "seller" and the Buyer as "buyer" thereon with respect to the
Receivables now existing and hereafter created for the sale of chattel paper
(as defined in Section 9-105 of the UCC as in effect in any state where the
Seller's or the Master Servicer's chief executive offices or books and records
relating to the Receivables are located) meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect the sale and assignment of the Receivables and the Related Security to
the Buyer, and to deliver a file-stamped copy of such financing statements or
other evidence of such filing to the Buyer on or prior to the first Closing
Date, in the case of Initial Accounts, and (if any additional filing is so
necessary) the applicable Addition Date, in the case of Additional Accounts.
In addition, the Seller shall cause to be timely filed in the appropriate
filing office any form UCC-1 financing statement and continuation statement
necessary to perfect any sale of Receivables to the Buyer. The Buyer shall be
under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other
filing under the UCC in connection with such sales. The parties hereto intend
that the transfers of Receivables effected by this Agreement be sales.
In connection with such sales, the Seller further agrees, at its own
expense, on or prior to the first Closing Date, in the case of Initial
Accounts, the applicable Addition Date, in the case of Additional Accounts,
and the applicable Removal Date, in the case of Removal Accounts, (a) to
indicate in its computer files that the Receivables created in connection with
the Accounts (other than Removal Accounts) have been sold, and the Related
Security assigned, to the Buyer pursuant to this Agreement and sold to the
Trust pursuant to the Pooling and Servicing Agreement for the benefit of the
Certificateholders and the other Beneficiaries and (b) to deliver to the Buyer
a computer file or microfiche or written list containing a true and complete
list of all such Accounts (other than Removal Accounts) specifying for each
such Account, as of the Cut-Off Date, in the case of Initial Accounts, and the
applicable Additional Cut-Off Date, in the case of Additional Accounts, (i)
its account number and (ii) the aggregate amount of Principal Receivables in
such Account. Such file or list, as supplemented from time to time to reflect
Additional Accounts and Removal Accounts, shall be marked as Schedule 1 to
this Agreement and is hereby incorporated into and made a part of this
Agreement.
In consideration for the sale of $8,942,603,070.65 of the
Receivables, together with the Related Security, transferred to the Buyer on
the first Closing Date, the Buyer shall pay to the Seller $566,350,000.00 in
cash. The remaining $8,376,253,070.65 of Receivables, together with the
Related Security, transferred to the Buyer on the first Closing Date is a
capital contribution to the Buyer. Subject to Article VI, the purchase price
for the Receivables sold by the Seller to the Buyer on each Addition Date and
on each Transfer Date thereafter shall be a price agreed to by the Buyer and
the Seller at the time of acquisition by the Buyer, which price shall not, in
the opinion of the Buyer, be materially less favorable to the Buyer than
prices for transactions of a generally similar character at the time of the
acquisition taking into account the quality of such Receivables and other
pertinent factors; provided that such consideration shall in any event not be
less than reasonably equivalent value therefor.
Section 2.02. Representations and Warranties of the Seller Relating
to the Seller and the Agreement. The Seller hereby represents and warrants to
the Buyer as of each Closing Date that:
(a) Organization and Good Standing. The Seller is a corporation duly
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organized and validly existing and in good standing under the law of the State
of Delaware and has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and
to execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do business
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and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business requires
such qualification except where the failure to so qualify or obtain licenses
or approvals would not have a material adverse effect on its ability to
perform its obligations hereunder.
(c) Due Authorization. The execution and delivery of this Agreement
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and the consummation of the transactions provided for or contemplated by this
Agreement have been duly authorized by the Seller by all necessary corporate
action on the part of the Seller.
(d) No Conflict. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with, result in
any breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other instrument
to which the Seller is a party or by which it or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to the Seller, will not
conflict with or violate any material Requirements of Law applicable to the
Seller.
(f) No Proceedings. There are no proceedings or, to the best
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knowledge of the Seller, investigations, pending or threatened against the
Seller, before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Seller, would materially and adversely
affect the performance by the Seller of its obligations under this Agreement,
(iv) seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement or (v) seeking to
affect adversely the income tax attributes of the Trust under the United
States Federal or any other applicable state, local or foreign jurisdiction's
income, single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations, consents,
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orders, approvals or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery of this
Agreement, the performance of the transactions contemplated by this Agreement,
and the fulfillment of the terms hereof or thereof, have been obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and
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binding obligation of the Seller enforceable against the Seller in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity).
(i) Record of Accounts. As of the first Closing Date, in the case of
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Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Date, in the case of
Removal Accounts, Schedule 1 to this Agreement is an accurate and complete
listing in all material respects of all the Accounts as of the Cut-Off Date,
the applicable Additional Cut-Off Date or the applicable Removal Date, as the
case may be, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Cut-Off Date, such applicable
Additional Cut-Off Date or such Removal Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
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Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller in the
Receivables and the Related Security and the proceeds thereof. Upon the filing
of the financing statements described in Section 2.01 with the Secretary of
State of the State of Michigan and, in the case of the Receivables hereafter
created and the proceeds thereof, upon the creation thereof, the Buyer shall
have a first priority perfected ownership interest in such property. Except as
otherwise provided in the Pooling and Servicing Agreement, neither the Seller
nor any Person claiming through or under the Seller has any claim to or
interest in the Trust Assets.
The representations and warranties set forth in this Section 2.02
shall survive the transfer and assignment of the Receivables to the Buyer.
Upon discovery by the Seller or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party.
In the event of any breach of any of the representations and
warranties set forth in this Section 2.02 and if, in connection therewith, the
Buyer shall be obligated to purchase the Certificateholders' Interest pursuant
to Section 2.03 of the Pooling and Servicing Agreement, the Seller shall
repurchase the Receivables and the Related Security and shall pay to the Buyer
on the Business Day preceding the Distribution Date on which such purchase of
the Certificateholders' Interest is to be made an amount equal to the purchase
price for the Certificateholders' Interest as specified in the Pooling and
Servicing Agreement. The obligation of the Seller to purchase the Receivables
pursuant to this Section 2.02 shall constitute the sole remedy against the
Seller respecting an event of the type specified in the first sentence of this
Section 2.02 available to the Buyer and to the Investor Certificateholders (or
the Trustee on behalf of the Investor Certificateholders).
Section 2.03. Representations and Warranties of the Seller Relating
to the Receivables.
(a) Representations and Warranties. The Seller hereby represents and
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warrants to the Buyer that:
(i) Each Receivable and all Related Security existing on the
first Closing Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, has been
conveyed to the Buyer free and clear of any Lien.
(ii) With respect to each Receivable and all Related Security
existing on the first Closing Date or, in the case of Additional
Accounts, on the applicable Addition Date, and on each Transfer Date,
all consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Seller in
connection with the conveyance of such Receivable or Related Security
to the Buyer have been duly obtained, effected or given and are in
full force and effect.
(iii) On the Cut-Off Date and each Closing Date, each Initial
Account is an Eligible Account and, in the case of Additional
Accounts, on the applicable Additional Cut-Off Date and each
subsequent Closing Date, each such Additional Account is an Eligible
Account.
(iv) On the first Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the
applicable Additional Cut-Off Date, and on each Transfer Date, each
Receivable conveyed to the Buyer on such date is an Eligible
Receivable or, if such Receivable is not an Eligible Receivable, such
Receivable is conveyed to the Buyer in accordance with Section 2.08.
(b) Notice of Breach. The representations and warranties set forth in
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this Section 2.03 shall survive the transfer and assignment of the Receivables
to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of
the representations and warranties set forth in this Section 2.03, the party
discovering such breach shall give prompt written notice to the other party.
(c) Repurchase. In the event any representation or warranty under
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Section 2.03(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and the Buyer is, in connection
therewith, required to purchase such Receivable or all Receivables in such
Account pursuant to Section 2.04(c) of the Pooling and Servicing Agreement,
then, within 30 days (or such longer period as may be agreed to by the Buyer)
of the earlier to occur of the discovery of any such event by the Seller or
the Buyer, or receipt by the Seller or the Buyer of written notice of any such
event given by the Trustee or any Enhancement Providers, the Seller shall
repurchase the Receivable or Receivables of which the Buyer is required to
accept reassignment pursuant to the Pooling and Servicing Agreement on the
Business Day preceding the Determination Date on which such reassignment is to
occur.
The Seller shall purchase each such Receivable by making a payment to
the Buyer in immediately available funds on the Business Day preceding the
Distribution Date on which such reassignment is to occur in an amount equal to
the Purchase Price for such Receivable. Upon payment of the Purchase Price,
the Buyer shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the
Buyer in and to such Receivable, all Related Security and all monies due or to
become due with respect thereto and all proceeds thereof. The Buyer shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by the Seller to effect the
conveyance of such Receivables pursuant to this Section. The obligation of the
Seller to repurchase any such Receivable shall constitute the sole remedy
respecting the event giving rise to such obligation available to the Buyer and
to the Certificateholders (or the Trustee on behalf of Certificateholders).
Section 2.04. Addition of Accounts. (a) The Seller may from time to
time offer to voluntarily designate additional Eligible Accounts to be
included as Accounts, subject to the conditions specified in paragraph (b)
below. If any such offer is accepted by the Buyer, Receivables and the Related
Security from such Additional Accounts shall be sold to the Buyer effective on
a date (the "Addition Date") specified in a written notice provided by the
Seller (or the Master Servicer on its behalf) to the Buyer and any Enhancement
Providers specifying the Additional Cut-Off Date and the Addition Date for
such Additional Accounts (the "Addition Notice") on or before the fifth
Business Day but not more than the 30th day prior to the related Addition Date
(the "Notice Date").
(b) The Seller shall be permitted to convey to the Buyer the
Receivables and all Related Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to Section 2.04(a) only
upon satisfaction of each of the following conditions on or prior to the
related Addition Date; provided, however, conditions (vi), (viii) and (ix)
below shall be inapplicable to Accounts designated by the Buyer as Automatic
Additional Accounts under Section 2.05(b)(ii) of the Pooling and Servicing
Agreement:
(i) The Seller shall provide the Buyer and any Enhancement
Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to the Buyer a duly
executed written assignment (including an acceptance by the Buyer) in
substantially the form of Exhibit A (the "Assignment") and the
computer file or microfiche or written list required to be delivered
pursuant to Section 2.01.
(iv) The Seller shall have delivered to the Buyer for deposit in
the Collection Account all Collections with respect to such
Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be
adverse to the interests of the Buyer or the Beneficiaries were used
in selecting such Additional Accounts; (B) the list of Additional
Accounts delivered pursuant to clause (iii) above is true and correct
in all material respects as of the Additional Cut-Off Date and (C) as
of each of the Notice Date and the Addition Date, neither the Seller,
the Buyer nor the Master Servicer are insolvent nor will have been
made insolvent by such transfer nor are aware of any pending
insolvency.
(vi) The Rating Agency Condition shall have been satisfied with
respect to such addition.
(vii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization
Event.
(viii) The Seller shall have delivered to the Buyer and any
Enhancement Providers a certificate of a Vice President or more
senior officer confirming the items set forth in paragraphs (ii)
through (vii) above.
(ix) On or before each Addition Date, the Seller shall deliver
to the Buyer and any Enhancement Providers an Opinion of Counsel for
the Seller with respect to the Receivables in the Additional Accounts
substantially in the form of Exhibit B.
(c) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.04(b)(v). The
representations and warranties set forth in Section 2.04(b)(v) shall survive
the sale and assignment of the respective Receivables and the Related Security
to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of
the foregoing representations and warranties, the party discovering the breach
shall give prompt written notice to the other party and to any Enhancement
Providers.
(d) At least 20 days prior to each Addition Date in respect of the
designation of any Additional Accounts pursuant to this Section 2.04, the
Seller shall have given written notice of such designation to the Rating
Agencies.
Section 2.05. Covenants of the Seller. The Seller hereby covenants
that:
(a) No Liens. Except for the conveyances hereunder, the Seller will
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not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on, any Receivable or any Related
Security, whether now existing or hereafter created, or any interest therein,
and the Seller shall defend the right, title and interest of the Buyer and the
Trust in, to and under the Receivables and the Related Security, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller.
(b) Floorplan Financing Agreements and Guidelines. The Seller shall
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comply with and perform its master servicing obligations with respect to the
Accounts and Receivables in accordance with the applicable Floorplan Financing
Agreements relating to the Accounts and the applicable Floorplan Financing
Guidelines, except insofar as any failure to so comply or perform would not
materially and adversely affect the rights of the Buyer, Trust or any of the
Beneficiaries. Subject to compliance with all Requirements of Law, the Seller,
in its capacity of Master Servicer, may change the terms and provisions of the
Floorplan Financing Agreement or the Floorplan Financing Guidelines in any
respect (including the calculation of the amount or the timing of charge-offs
and the rate of the finance charge assessed thereon) only if such change would
be permitted pursuant to Section 3.01(d) of the Pooling and Servicing
Agreement.
(c) Account Allocations. In the event that the Seller is unable for
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any reason to transfer Receivables to the Buyer, then the Seller agrees that
it shall allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of the Pooling and Servicing
Agreement. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed
to the Buyer and by the Buyer to the Trust shall continue to be a part of the
Trust notwithstanding any cessation of the transfer of additional Principal
Receivables to the Buyer and Collections with respect thereto shall continue
to be allocated and paid in accordance with Article IV of the Pooling and
Servicing Agreement.
(d) Delivery of Collections. In the event that the Seller receives
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Collections, the Seller agrees to pay the Master Servicer or any Successor
Master Servicer all payments received by the Seller in respect of the
Receivables as soon as practicable after receipt thereof by the Seller, but in
no event later than two Business Days after the receipt by the Seller thereof.
(e) Notice of Liens. The Seller shall notify the Buyer and the
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Trustee promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder or under the Pooling and Servicing Agreement.
(f) Compliance with Law. The Seller hereby agrees to comply in all
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material respects with all Requirements of Law applicable to the Seller.
Section 2.06. Removal of Eligible Accounts. (a) On each Determination
Date on which Accounts, including all amounts then held by the Trust or
thereafter received by the Trust with respect to such Accounts, are removed
from the Trust pursuant to Section 2.07 of the Pooling and Servicing
Agreement, the Buyer shall be deemed to have offered to the Seller
automatically and without notice to or action by or on behalf of the Buyer,
the right to remove Eligible Accounts from the operation of this Agreement in
the manner prescribed in Section 2.06(b).
(b) To accept such offer and remove Accounts, including all amounts
then held by the Trust or thereafter received by the Trust with respect to
such Accounts, the Seller (or the Master Servicer on its behalf) shall take
the following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal Date,
furnish to the Buyer, the Trustee, any Enhancement Providers and the
Rating Agencies a written notice (the "Removal Notice") specifying
the Determination Date (which may be the Determination Date on which
such notice is given) on which removal of the Receivables of one or
more Accounts (the "Removal Accounts") will occur (a "Removal Date");
(ii) from and after such Removal Date, cease to transfer to the
Buyer any and all Receivables arising in such Removal Accounts;
(iii) represent and warrant that the removal of any such
Eligible Account on any Removal Date shall not, in the reasonable
belief of the Seller, cause an Early Amortization Event to occur or
cause the Pool Balance to be less than the Required Participation
Amount;
(iv) represent and warrant that no selection procedures believed
by the Seller to be adverse to the interests of the Beneficiaries
were utilized in selecting the Accounts to be removed; and
(v) on or before the fifth Business Day after the Removal Date,
furnish to the Trustee a computer file, microfiche list or other list
of the Removal Accounts that were removed on the Removal Date,
specifying for each Removal Accounts as of the date of the Removal
Notice its number, the aggregate amount outstanding in such Removal
Accounts and the aggregate amount of Principal Receivables therein
and represent that such computer file, microfiche list or other list
of the Removal Accounts is true and complete in all material
respects.
(c) Subject to Section 2.06(b), on the Removal Date with respect to
any such Removal Accounts, such Removal Accounts shall be deemed removed by
operation of this Agreement for all purposes. After the Removal Date and upon
the written request of the Master Servicer, the Buyer shall deliver to the
Seller a reassignment in substantially the form of Exhibit D (the
"Reassignment").
Section 2.07. Removal of Ineligible Accounts. (a) On the fifth
Business Day after any date on which an Account becomes an Ineligible Account
(such fifth Business Day shall be deemed to be the Removal Date) the Seller
shall commence removal of the Receivables of such Ineligible Account in the
manner prescribed in Section 2.07(b).
(b) With respect to each Account that becomes an Ineligible Account,
the Seller (or the Master Servicer on its behalf) shall take the following
actions and make the following determinations:
(i) furnish to the Buyer, the Trustee, any Agent and any
Enhancement Providers a Removal Notice specifying the Removal Date
and the Ineligible Accounts to be removed;
(ii) from and after such Removal Date, cease to transfer to the
Buyer any and all Receivables arising in such Removal Accounts; and
(iii) within five Business Days after the Removal Date, amend
Schedule 1 by delivering to the Trustee a computer file or microfiche
or written list containing a true and complete list of the Removal
Accounts specifying for each such Account, as of the Removal Date,
its account number and the aggregate amount of Receivables
outstanding in such Account.
(c) On the Removal Date with respect to any such Account to be
removed, the Seller shall cease to allocate any Collections therefor in
accordance herewith and such Account shall be deemed a Removal Account. After
the Removal Date and upon the written request of the Master Servicer, the
Buyer shall deliver to the Seller a Reassignment.
Section 2.08. Sale of Ineligible Receivables. The Seller shall sell
to the Buyer on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that on the
Cut-Off Date or, in the case of Receivables arising in Additional Accounts, on
the related Additional Cut-Off Date, and on the applicable Transfer Date, the
Account in which such Receivables arise is an Eligible Account.
ARTICLE III.
Administration and Servicing
of Receivables
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Section 3.01. Acceptance of Appointment and Other Matters Relating to
the Master Servicer. (a) The Seller agrees to act as the Master Servicer under
this Agreement and the Pooling and Servicing Agreement, and the Buyer consents
to the Seller acting as the Master Servicer. The Seller will have ultimate
responsibility for servicing, managing and making collections on the
Receivables and will have the authority to make any management decisions
relating to such Receivables, to the extent such authority is granted to the
Master Servicer under this Agreement and the Pooling and Servicing Agreement.
(b) The Master Servicer shall service and administer the Receivables
in accordance with the provisions of the Pooling and Servicing Agreement.
Section 3.02. Servicing Compensation. As full compensation for its
servicing activities hereunder and under the Pooling and Servicing Agreement,
the Master Servicer shall be entitled to receive the Servicing Fee on each
Distribution Date. The Servicing Fee shall be paid in accordance with the
terms of the Pooling and Servicing Agreement.
ARTICLE IV.
Rights of Certificateholders and
Allocation and Application of Collections
-----------------------------------------
Section 4.01. Allocations and Applications of Collections and Other
Funds. The Master Servicer will apply all Collections with respect to the
Receivables and all funds on deposit in the Collection Account as described in
Article IV of the Pooling and Servicing Agreement.
ARTICLE V.
Other Matters Relating
to the Seller
-------------
Section 5.01. Merger or Consolidation of, or Assumption, of the
Obligations of the Seller. The Seller shall not consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Seller substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia and, if the Seller is not the
surviving entity, such corporation shall assume, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, the performance of every covenant and obligation of the Seller
hereunder; and
(b) the Seller has delivered to the Buyer and the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer comply with this Section 5.01
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 5.02. Seller Indemnification of the Buyer. The Seller shall
indemnify and hold harmless the Buyer, from and against any loss, liability,
expense, claim, damage or injury suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of activities of the Seller
pursuant to this Agreement arising out of or based on the arrangement created
by this Agreement and the activities of the Seller taken pursuant thereto,
including any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any actual
or threatened action, proceeding or claim; provided, however, that the Seller
shall not indemnify the Buyer if such acts, omissions or alleged acts or
omissions constitute fraud, gross negligence or wilful misconduct by the
Buyer; and provided further, that the Seller shall not indemnify the Buyer for
any liabilities, cost or expense of the Buyer with respect to any Federal,
state or local income or franchise taxes or the Michigan Single Business tax
(or any interest or penalties with respect thereto) required to be paid by the
Buyer in connection herewith to any taxing authority. Any indemnification
under this Article V shall survive the termination of the Agreement.
ARTICLE VI.
Termination
-----------
This Agreement will terminate immediately after the Trust terminates
pursuant to the Pooling and Servicing Agreement. In addition, the Buyer shall
not purchase Receivables nor shall the Seller designate Additional Accounts if
the Seller shall become an involuntary party to (or be made the subject of)
any proceeding provided for by any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Seller or relating to all or substantially all of its property (an
"Involuntary Case") and such Involuntary Case shall have continued for a
period of ten Business Days from and including the day of receipt by the
Seller at its principal corporate office of notice of such Involuntary Case;
provided, that during such ten Business Day period, the Buyer shall suspend
its purchase of Receivables and shall hold all Collections of Principal
Receivables that would have been available to purchase Receivables in the
Collection Account and (a) if by the first Business Day after such ten
Business Day period, the Buyer has not obtained an order from the court having
jurisdiction of such case or filing which order approves the continuation of
the sale of Receivables by the Seller to the Buyer and which provided that the
Buyer and any of its transferees (including the Trustee) may rely on such
order for the validity and nonavoidance of such transfer (the "Order"), the
Buyer shall hold such Collections in the Collection Account until such time as
they may be paid as elsewhere provided herein and shall not purchase
Receivables thereafter or designate Additional Accounts for transfer to the
Buyer, or (b) if by such first Business Day, the Buyer has obtained such
Order, the Seller may continue selling Receivables, and the Buyer may continue
purchasing Receivables, pursuant to the terms hereof, as modified by the
immediately succeeding sentence. During the period after the ten Business Day
period described above and before the end of the 60-day period described
below, the purchase price of the Receivables transferred during such period,
notwithstanding anything in this Agreement to the contrary, shall be paid to
the Seller by the Buyer in cash not later than the same Business Day of any
sale of Receivables. During such period, Receivables will be considered
transferred to the Buyer only to the extent that the purchase price therefor
has been paid in cash on the same Business Day. If an Order is obtained but
subsequently is reversed or rescinded or expires, the Seller shall immediately
cease selling Receivables to the Buyer and the Buyer shall immediately cease
buying Receivables. The Seller shall give prompt written notice to each of the
Buyer and the Trustee immediately upon becoming a party to an Involuntary
Case. If by the first Business Day after the 60-day period after such
involuntary filing, such Involuntary Case has not been dismissed, the Buyer
shall not purchase thereafter Receivables or designated Additional Accounts
for transfer to the Issuer.
ARTICLE VII.
Intercreditor Provisions
------------------------
With respect to a Dealer which is the obligor under Receivables that
have been or will be sold to the Buyer hereunder, the Seller may be or become
a lender to such Dealer under an agreement or arrangement (a "Nonfloorplan
Agreement") other than a Floorplan Financing Agreement pursuant to which the
Seller (either directly, or as assignee of PRIMUS or other Originator of the
Account) has been granted a security interest in the same collateral (the
"Common Collateral") in which the Floorplan Financing Agreement for such
Dealer creates a security interest, which Common Collateral may include the
same Vehicle (the "Common Vehicle Collateral") in which such Floorplan
Financing Agreement creates a security interest. The Common Collateral other
than the related Common Vehicle Collateral is referred to herein as the
"Common Non-Vehicle Collateral". The Seller agrees that with respect to each
Receivable of each such Dealer (i) the security interest in such Common
Vehicle Collateral granted to the Seller pursuant to any Nonfloorplan
Agreement is junior and subordinate to the security interest created by the
related Floorplan Financing Agreement, (ii) the Seller has no legal right to
realize upon such Common Vehicle Collateral or exercise its rights under the
Nonfloorplan Agreement in any manner that is materially adverse to the Buyer
or the Trust and the Certificateholders in respect of the Common Vehicle
Collateral until all required payments in respect of such Receivable under the
Floorplan Financing Agreement have been paid, and (iii) in realizing upon such
Common Vehicle Collateral, neither the Buyer nor the Trust shall have any
obligation to protect or preserve the rights of the Seller in such Common
Vehicle Collateral. The Buyer agrees that with respect each Receivable of each
such Dealer (i) the security interest in such Common Non-Vehicle Collateral
created by the Floorplan Financing Agreement and hereby assigned to the Buyer
is junior and subordinate to the security interest therein created by the
Nonfloorplan Agreement, (ii) the Buyer has no legal right to realize upon such
Common Non-Vehicle Collateral or exercise its rights under the Floorplan
Financing Agreement in any manner that is materially adverse to the Seller
until all required payments in respect of the obligation created or secured by
the Nonfloorplan Agreement have been made, and (iii) in realizing on such
Common Non-Vehicle Collateral, the Seller shall not be obligated to protect or
preserve the rights of the Buyer or the Trust in such Common Non-Vehicle
Collateral. The Pooling and Servicing Agreement shall provide that the Trust
is subject to the preceding sentence. If the Seller in any manner assigns or
transfers any rights under, or any obligation evidenced or secured by, a
Nonfloorplan Agreement, the Seller shall make such assignment or transfer
subject to the provisions of this Article VII and shall require such assignee
or transferee to acknowledge that it takes such assignment or transfer subject
to the provisions of this Article VII and to agree that it will require the
same acknowledgment from any subsequent assignee or transferee.
ARTICLE VIII.
Miscellaneous Provisions
------------------------
Section 8.01. Amendment. (a) This Agreement may be amended from time
to time by the Seller and the Buyer; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel for the Seller addressed and
delivered to the Trustee, adversely affect in any material respect the
interests of any Investor Certificateholder. The absence of such material
adverse effect may be evidenced by (i) a certificate from each applicable
Rating Agency that the ratings then in effect with respect to the affected
Investor Certificates has not been reduced, suspended or withdrawn or (ii) an
Opinion of Counsel for the Seller, addressed and delivered to the Trustee.
(b) This Agreement may also be amended from time to time by the Buyer
and Seller with the consent of the Holders of Investor Certificates evidencing
not less than 66-2/3% of the aggregate unpaid principal amount of the Investor
Certificates of all materially adversely affected Series, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Seller; provided, however, that no such amendment shall (i) reduce in any
manner the amount of or delay the timing of any distributions to be made to
Investor Certificateholders or deposits of amounts to be so distributed with
the amount available under any Enhancement without the consent of each
affected Investor Certificateholder, (ii) change the definition of or the
manner of calculating the interest of any Investor Certificateholders without
the consent of each affected Certificateholder, (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of
each Certificateholder or (iv) adversely affect the rating of any Series or
Class by any Rating Agency without the consent of the Holders of Investor
Certificates of such Series or Class evidencing not less than 66-2/3% of the
aggregate unpaid principal amount of the Investor Certificates of such Series
or Class. Any amendment to be effected pursuant to this paragraph shall be
deemed to materially adversely affect all outstanding Series, other than any
Series with respect to which such action shall not, as evidenced by an Opinion
of Counsel for the Seller, addressed and delivered to the Trustee, adversely
affect in any material respect the interests of any Investor Certificateholder
of such Series. The Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trustee's rights, duties or immunities under
this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Seller shall furnish
notification of the substance of such amendment to each Investor
Certificateholder, each Enhancement Provider, each Agent and each Rating
Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
Section 8.02. Protection of Right, Title and Interest to Receivables.
(a) The Seller shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables
and Related Security relating thereto to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Buyer hereunder. The Seller shall
deliver to the Buyer file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. The Buyer shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent
of this Section 8.02(a).
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 8.02(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in
the State of Michigan (or, if applicable, the corresponding Section of the UCC
as may be in effect in such other jurisdiction where the Seller's Chief
Executive Officers or books or records relating to the Receivables are
located), the Seller shall give the Buyer and any Agent notice of any such
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Buyer's security interest in the
Receivables and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any
relocation of any office at which it keeps records concerning the Receivables
or of its principal executive office and whether, 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 shall file such financing statements or
amendments as may be necessary to perfect or to continue the perfection of the
Buyer's security interest in the Receivables and the proceeds thereof. The
Seller will at all times maintain its principal executive officer within the
United States of America.
(d) The Seller will deliver to the Buyer: (i) upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B; (ii) on each Addition Date on which any
Additional Accounts are to be included as the Accounts pursuant to Section
2.04 hereof, an Opinion of Counsel substantially in the form of Exhibit C; and
(iii) on or before April 30 of each year, beginning with April 30, 1998, an
Opinion of Counsel dated as of a date during such 90-day period, substantially
in the form of Exhibit C.
Section 8.03. Limited Recourse. Notwithstanding anything to the
contrary contained herein, the obligations of the Buyer hereunder shall not be
recourse to the Buyer (or any person or organization acting on behalf of the
Buyer or any affiliate, officer or director of the Buyer), other than to (a)
the portion of the Transferor's Interest on any date of determination which is
in excess of the Required Participation Amount and (b) any other assets of the
Buyer not pledged to third parties or otherwise encumbered in a manner
permitted by the Buyer's Certificate of Incorporation; provided, however, that
any payment by the Buyer made in accordance with this Section 8.03 shall be
made only after payment in full of any amounts that the Seller is obligated to
deposit in the Collection Account pursuant to this Agreement; provided further
that the Investor Certificateholders shall be entitled to the benefits of the
subordination of the Collections allocable to the Transferor's Interest to the
extent provided in the Supplements.
Section 8.04. No Petition. The Seller hereby covenants and agrees
that it will not at any time institute against the Buyer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar
law.
Section 8.05. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.06. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt
requested, to the parties at such addresses specified in the Pooling and
Servicing Agreement.
Section 8.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or rights of the Certificateholders.
Section 8.08. Assignment. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by the Seller without the
prior consent of the Buyer and the Trustee. The Buyer may assign its rights,
remedies, powers and privileges under this Agreement to the Trust pursuant to
the Pooling and Servicing Agreement.
Section 8.09. Further Assurances. The Seller agrees to do and
perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the Buyer more fully
to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables
for filing under the provisions of the UCC of any applicable jurisdiction.
Section 8.10. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Buyer, any right, remedy, power
or privilege under this Agreement shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege under
this Agreement preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 8.11. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 8.12. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, the Certificateholders
and the other Beneficiaries and their respective successors and permitted
assigns. Except as otherwise provided in this Agreement, no other Person will
have any right or obligation hereunder.
Section 8.13. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 8.14. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Receivables Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES LLC,
Buyer,
By________________________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY,
Seller,
By________________________________________
Name:
Title:
EXHIBIT A
TO RPA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.04
of the Receivables Purchase Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
, , among FORD CREDIT AUTO RECEIVABLES LLC, as buyer (the
"Buyer"), and FORD MOTOR CREDIT COMPANY, as seller (the "Seller"), pursuant to
the Receivables Purchase Agreement referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS the Seller and the Buyer are parties to a Receivables
Purchase Agreement dated as of ___________, 19__ (as amended or supplemented,
the "Receivables Purchase Agreement"):
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts to be included as Accounts and to
convey the Receivables and Related Security of such Additional Accounts,
whether now existing or hereafter created, to the Buyer as part of the corpus
of the Trust (as each such term is defined in the Receivables Purchase
Agreement); and
WHEREAS the Buyer is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined here i n
"Addition Date" shall mean, with respect to the Additional Accounts
-------------
designated hereby, __________, 19__.
2. Designation of Additional Accounts. The Seller hereby delivers
-----------------------------------
herewith a computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each such
Account, as of the Additional Cut-Off Date, its account number, the aggregate
amount of Receivables outstanding in such Account and the aggregate amount of
Principal Receivables in such Account. Such file or list shall, as of the date
of this Assignment, supplement Schedule 1 to the Receivables Purchase
Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby sell,
---------------------------
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided in the Receivables Purchase Agreement), to the Buyer, on
the Addition Date all of its right, title and interest in, to and under the
Receivables in such Additional Accounts and all Related Security with respect
thereto, owned by the Seller and existing at the close of business on the
Additional Cut-Off Date and thereafter created from time to time, all monies
due or to become due and all amounts received with respect thereto and all
proceeds (including "proceeds" as defined in Section 9-306 of the UCC as in
effect in the State of Michigan) and Recoveries thereof. The foregoing sale,
transfer, assignment, set-over and conveyance does not constitute and is not
intended to result in the creation or an assumption by the Buyer of any
obligation of the Master Servicer, the Seller, Ford or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of chattel paper (as defined in
Section 9-105 of the UCC as in effect in any state where the Seller's or the
Master Servicer's chief executive offices or books and records relating to the
Receivables are located) meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect the sale and
assignment of the Receivables and the Related Security to the Buyer, and to
deliver a file-stamped copy of such financing statements or other evidence of
such filing to the Buyer on or prior to the Addition Date. In addition, the
Seller shall cause to be timely filed in the appropriate filing office any
form UCC-1 financing statement and continuation statement necessary to perfect
any sale of Receivables to the Seller. The Buyer shall be under no obligation
whatsoever to file such financing statement, or a continuation statement to
such financing statement, or to make any other filing under the UCC in
connection with such sale. The parties hereto intend that the sales of
Receivables effected by this Agreement be sales.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the Addition Date, to indicate in its computer
files that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Related Security assigned to the
Buyer pursuant to this Assignment and sold to the Trust pursuant to the
Pooling and Servicing Agreement for the benefit of the Certificateholders and
the other Beneficiaries.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions
-------------------
set forth in Section 6 of this Assignment, the Buyer hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Buyer pursuant to Section 3(a) of this
Assignment. The Buyer further acknowledges that, prior to or simultaneously
with the execution and delivery of this Assignment, the Seller delivered to
the Buyer the computer file or microfiche or written list relating to the
Additional Accounts described in Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
----------------------------------------------
represents and warrants to the Buyer, on behalf of the Trust, as of the date
of this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment constitutes
-----------------------------------
a legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity);
(b) Organization and Good Standing. The Seller is a corporation duly
------------------------------
organized and validly existing and in good standing under the law of the State
of Delaware and has, in all material respects, full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and
to execute, deliver and perform its obligations under this Assignment;
(c) Due Qualification. The Seller is duly qualified to do business
------------------
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction in which the conduct of its business requires
such qualification except where the failure to so qualify or obtain licenses
or approvals would not have a material adverse effect on its ability to
perform its obligations hereunder;
(d) Eligible Accounts. Each Additional Account designated hereby is
------------------
an Eligible Account;
(e) Selection Procedures. No selection procedures believed by the
---------------------
Seller to be adverse to the interests of the Beneficiaries were utilized in
selecting the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the Addition Date, the
----------
Seller is not insolvent nor, after giving effect to the conveyance set forth
in Section 3 of this Assignment, will it have been made insolvent, nor is it
aware of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a valid sale,
---------------
transfer and assignment to the Buyer of all right, title and interest of the
Seller in the Receivables and the Related Security and the proceeds thereof
and upon the filing of the financing statements described in Section 3 of this
Assignment with the Secretary of State of the State of Michigan and other
applicable states and, in the case of the Receivables and the Related Security
hereafter created and the proceeds thereof, upon the creation thereof, the
Buyer shall have a first priority perfected ownership interest in such
property;
(h) Due Authorization. The execution and delivery of this Assignment
-----------------
and the consummation of the transactions provided for or contemplated by this
Assignment have been duly authorized by the Seller by all necessary corporate
action on the part of the Seller;
(i) No Conflict. The execution and delivery of this Assignment, the
-----------
performance of the transactions contemplated by this Assignment and the
fulfillment of the terms hereof, will not conflict with, result in any breach
of any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Seller is a party or by which it or its properties are bound;
(j) No Violation. The execution and delivery of this Assignment by
------------
the Seller, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof will not conflict with or
violate any material Requirements of Law applicable to the Seller;
(k) No Proceedings. There are no proceedings or, to the best
---------------
knowledge of the Seller, investigations pending or threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of this
Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under this
Assignment, (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Assignment or (v)
seeking to affect adversely the income tax attributes of the Trust under the
United States Federal or any State income, single business or franchise tax
systems;
(l) Record of Accounts. As of the Addition Date, Schedule 1 to this
------------------
Assignment is an accurate and complete listing in all material respects of all
the Additional Accounts as of the Additional Cut-Off Date and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material respects
as of the Additional Cut-Off Date;
(m) No Liens. Each Receivable and all Related Security existing on
--------
the Addition Date has been conveyed to the Buyer free and clear of any Lien;
(n) All Consents Required. With respect to each Receivable and all
----------------------
Related Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Seller in connection with the conveyance of such Receivable or Related
Security to the Trust, the execution and delivery of this Assignment and the
performance of the transactions contemplated hereby have been duly obtained,
effected or given and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cut-Off Date, each
---------------------
Receivable conveyed to the Trust as of such date is an Eligible Receivable or,
if such Receivable is not an Eligible Receivable, such Receivable is conveyed
to the Buyer in accordance with Section 2.08 of the Receivables Purchase
Agreement.
6. Conditions Precedent. The acceptance of the Trustee set forth in
---------------------
Section 4 of this Assignment is subject to the satisfaction, on or prior to
the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
-------------------------------
warranties made by the Seller in Section 5 of this Assignment shall be true
and correct as of the date of this Assignment and as of the Addition Date;
(b) Agreement. Each of the conditions set forth in Section 2.04(b) of
---------
the Receivables Purchase Agreement (other than Sections 2.04 (vi), (viii) and
(ix) in the case of Automatic Additional Accounts designated by the Seller
pursuant to Section 2.05 (b)(ii) of the Pooling and Servicing Agreement)
applicable to the designation of the Additional Accounts to be designated
hereby shall have been satisfied; and
(c) Addition Information. The Seller shall have delivered to the
---------------------
Buyer such information as was reasonably requested by the Buyer to satisfy
itself as to the accuracy of the representation and warranty set forth in
Section 5(d) of this Assignment.
7. Ratification of Agreement. As supplemented by this Assignment, the
-------------------------
Receivables Purchase Agreement is in all respects ratified and confirmed and
the Receivables Purchase Agreement as so supplemented by this Assignment shall
be read, taken and construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or more
------------
counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Assignment to be duly executed and delivered by their respective duly
authorized officers as of the day and the year first above written.
FORD CREDIT AUTO RECEIVABLES
LLC, as Buyer,
By:______________________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY, as
Seller,
By:______________________________________
Name:
Title:
EXHIBIT B
TO RPA
FORM OF OPINION OF COUNSEL
(As required by Section 8.02(d)(i)
----------------------------------
of the Receivables Purchase Agreement)
--------------------------------------
(a) The Amendment to the Receivables Purchase Agreement, attached
hereto as Schedule 1 (the "Amendment"), has been duly authorized, executed and
delivered by the Seller and constitutes the legal, valid and binding agreement
of the Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(b) The Amendment has been entered into in accordance with the terms
and provisions of Section 7.01 of the Receivables Purchase Agreement.
(c) The Amendment will not adversely affect in any material respect
the interests of the Investor Certificateholders. [Include this clause (iii)
only in the case of amendments effected pursuant to Section 8.01(a) of the
Receivables Purchase Agreement.]
EXHIBIT C
TO RPA
FORM OF OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
-----------------------------------------------------
Delivered Pursuant to Section 8.02(d)(ii) or (iii) of the
---------------------------------------------------------
Receivables Purchase Agreement*
-------------------------------
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
opinion of counsel to Ford Motor Credit Company (the "Seller"), delivered on
any Closing Date. Capitalized terms used but not defined herein are used as
defined in the Receivables Purchase Agreement, dated as of ______________,
1997 (the "Receivables Purchase Agreement"), between Ford Credit Auto
Receivables LLC, as buyer (the "Buyer") and the Seller.
[(a) The Assignment has been duly authorized, executed and delivered
by the Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
(b) Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, Floorplan Financing Agreements, such
Receivables will constitute "chattel paper" as defined under Section 9-105 of
the UCC.
(c) With respect to Receivables [in the Additional Accounts] in
existence on the date hereof and with respect to Receivables in the Additional
Accounts] that come into existence after the date hereof, upon the creation of
such Receivables and the subsequent transfer of such Receivables to the Buyer
free and clear of any Liens in accordance with the Receivables Purchase
Agreement and receipt by the Seller of the consideration therefor required
pursuant to the Receivables Purchase Agreement, a bankruptcy court having
jurisdiction over the Seller (i) would not be entitled to compel the turnover
of such Receivables or the proceeds thereof to the Seller under Section 542 of
the Bankruptcy Code and (ii) would not be entitled to treat such Receivables
or the proceeds thereof as assets included in the estate of the Seller
pursuant to Section 541 of the Bankruptcy Code or subject to the automatic
stay provision of Section 362(a) of the Bankruptcy Code.
_______________
* Include bracketed language only in the case of additions of Accounts
effected pursuant to Section 2.04 of the Receivables Purchase Agreement.
EXHIBIT D
TO RPA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVAL ACCOUNTS
(As required by Section 2.06 of the Receivables
Purchase Agreement referred to below)
REASSIGNMENT NO. OF RECEIVABLES, dated
as of , , by and between FORD
CREDIT AUTO RECEIVABLES LLC, as buyer (the
"Buyer"), and FORD MOTOR CREDIT COMPANY, as
seller (the "Seller"), pursuant to the
Receivables Purchase Agreement referred to
below.
WITNESSETH:
WHEREAS the Seller and the Buyer are parties to the Receivables
Purchase Agreement dated as of ___________, 1997 (as amended or supplemented,
the "Receivable Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to remove all Receivables from certain Accounts and the Related
Security thereof (the "Removal Accounts") and to cause the Buyer to reconvey
the Receivables of such Removal Accounts and such Related Security, whether
now existing or hereafter created, and all amounts currently held by the Buyer
or thereafter received by the Trust in respect of such Removal Accounts, from
the Buyer to the Seller (as each such term is defined in the Receivables
Purchase Agreement); and
WHEREAS the Buyer is willing to accept such removal and to reconvey
the Receivables in the Removal Accounts, such Related Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, the Seller and the Buyer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
-------------
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" shall mean, with respect to the Removal Accounts
-------------
designated hereby,_____________________, _______________.
2. Notice of Removal Accounts. (a) Not less than five Business Days
---------------------------
prior to the Removal Date, the Seller shall furnish to the Buyer, any Agent,
any Enhancement Providers and the Rating Agencies a written notice specifying
the Determination Date (which may be the Determination Date on which such
notice is given) on which removal of the Receivables of one or more Accounts
will occur, such date being a Removal Date.
(b) On or before the fifth business day after the Removal Date, the
Seller shall furnish to the Trustee a computer file, microfiche list or other
list of the Removal Accounts that were removed on the Removal Date, specifying
for each Removal Accounts as of the date of the Removal Notice its number, the
aggregate amount outstanding in such Removal Accounts and the aggregate amount
of Principal Receivables therein and represent that such computer file,
microfiche list or other list of the Removal Accounts is true and complete in
all material respects. Such file or list shall be marked as Schedule 1 to this
Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule 1 to the
Receivables Purchase Agreement.
3. Conveyance of Receivables and Accounts. (a) The Buyer does hereby
transfer, assign, set over and otherwise convey to the Seller, without
recourse, representation or warranty on and after the Removal Date, all right,
title and interest of the Trust in, to and under all Receivables now existing
at the close of business on the Removal Date and thereafter created from time
to time until the termination of the Trust in Removal Accounts designated
hereby, all Related Security thereof, all monies due or to become due and all
amounts received with respect thereto (including all Non-Principal
Receivables), all proceeds (as defined in Section 9-306 of the UCC as in
effect in the State of Michigan and Recoveries) thereof relating thereto.
(b) If requested by the Seller, in connection with such transfer, the
Buyer agrees to execute and deliver to the Seller on or prior to the date of
this Reassignment, a termination statement with respect to the Receivables
existing at the close of business on the Removal Date and thereafter created
from time to time and Related Security thereof in the Removal Accounts
reassigned hereby (which may be a single termination statement with respect to
all such Receivables and Related Security) evidencing the release by the Trust
of its lien on the Receivables in the Removal Accounts and the Related
Security, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Buyer. The Buyer hereby acknowledges that, prior to
-------------------
or simultaneously with the execution and delivery of this Reassignment, the
Seller delivered to the Buyer the computer file or such microfiche or written
list described in Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
---------------------------------------------
represents and warrants to the Buyer as of the date of this Reassignment and
as of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
-----------------------------------------
constitutes a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and except as such enforceability
may be limited by general principles of equity (whether considered in a suit
at law or in equity);
(b) No Early Amortization Event. The removal of the Accounts hereby
-----------------------------
removed shall not, in the reasonable belief of the Seller, cause an Early
Amortization Event to occur or cause the Pool Balance to be less than the
Required Participation Amount;
(c) Selection Procedures. No selection procedures believed by the
---------------------
Seller to be adverse to the interests of the Beneficiaries were utilized in
selecting the Accounts to be removed; and
(d) True and Complete List. The list of Removal Accounts described in
----------------------
Section 2(b) of this Assignment is, as of the Removal Date, true and complete
in all material respects.
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set
--------------------
forth in Section 2.06 of the Receivables Purchase Agreement, the obligation of
the Buyer to execute and deliver this Reassignment is subject to the Seller
having delivered on or prior to the Removal Date to the Buyer, any Agent, and
any Enhancement Providers an Officers' Certificate certifying that (i) as of
the Removal Date, all requirements set forth in Section 2.06 of the Agreement
for removing such Accounts and reconveying the Receivables of such Removal
Accounts and the Related Security, whether existing at the close of business
on the Removal Date or thereafter created from time to time until the
termination of the Trust, have been satisfied, and (ii) each of the
representations and warranties made by the Seller in Section 5 hereof is true
and correct as of the date of this Reassignment and as of the Removal Date.
The Buyer may conclusively rely on such Officers' Certificate shall have no
duty to make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment,
-------------------------
the Receivables Purchase Agreement is in all respects ratified and confirmed
and the Receivables Purchase Agreement as so supplemented by this Reassignment
shall be read, taken and construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or more
------------
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to
be duly executed and delivered by their respective duly authorized officer on
the day and year first above written.
FORD CREDIT AUTO RECEIVABLES LLC,
Buyer
By:____________________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY, Seller
By:____________________________________
Name:
Title:
