Exhibit 99.3
PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Seller
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Purchaser
Dated as of June 1, 2002
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND USAGE............................1
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES................2
2.1 Conveyance and Acquisition of Receivables............................2
2.2 The Closing..........................................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES......................4
3.1 Representations and Warranties of the Purchaser......................4
3.2 Representations and Warranties of the Seller.........................5
ARTICLE IV
CONDITIONS..................................12
4.1 Conditions to Obligation of the Purchaser...........................12
4.2 Conditions to Obligation of the Seller..............................13
ARTICLE V
COVENANTS OF THE SELLER.........................13
5.1 Protection of Right, Title and Interest.............................13
5.2 Other Liens or Interests............................................15
5.3 Costs and Expenses..................................................15
5.4 Indemnification.....................................................15
5.5 Treatment...........................................................16
ARTICLE VI
MISCELLANEOUS PROVISIONS.......................17
6.1 Obligations of Seller...............................................17
6.2 Repurchase of Receivables Upon Breach by the Seller.................17
6.3 Seller's Assignment of Purchased Receivables........................17
6.4 Trust...............................................................18
6.5 Amendment...........................................................18
6.6 Accountants' Letters................................................18
6.7 Waivers.............................................................19
6.8 Notices.............................................................19
6.9 Costs and Expenses..................................................20
6.10 Survival............................................................20
6.11 Confidential Information............................................20
6.12 Headings and Cross-References.......................................20
6.13 Governing Law.......................................................20
6.14 Counterparts........................................................20
6.15 Further Assurances..................................................20
Exhibit A Assignment....................................................A-1
Exhibit B Schedule of Receivables.......................................B-1
Schedule A Location of Receivable Files
at Third Party Custodians of Ford Credit......................A-1
Schedule B Receivables Purchase Price ..................................B-2
Appendix A Definitions and Usage........................................AA-1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (as from time to time amended,
supplemented or otherwise modified and in effect, this "Agreement") is made as
of the 1st day of June 2002, 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 2002-C to be
created pursuant to the Trust Agreement, which Trust will issue notes secured
by such Receivables and certain other property of the Trust, pursuant to the
Indenture, and will issue certificates representing beneficial interests in
such Receivables and certain other property of the Trust, pursuant to the
Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing, other
good and valuable consideration, and the mutual terms and covenants contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that are
applicable herein. The term "Seller" herein means Ford Motor Credit Company.
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES
2.1 Conveyance and Acquisition of Receivables
On the Closing Date, subject to the terms and conditions
of this Agreement, the Seller agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from the Seller, the Receivables and the other
property relating thereto (as defined below).
(a) Conveyance of Purchased Property. Effective
as of the Closing Date and simultaneously with the transactions pursuant to
the Indenture, the Sale and Servicing Agreement and the Trust Agreement,
the Seller hereby sells, transfers, assigns and otherwise conveys to the
Purchaser, without recourse, all right, title and interest of the Seller,
whether now owned or hereafter acquired, in and to the following
(collectively, the "Purchased Property"): (i) the Receivables; (ii) with
respect to Actuarial Receivables, monies due thereunder on or after the
Cutoff Date (including Payaheads) and, with respect to Simple Interest
Receivables, monies due or received thereunder on or after the Cutoff Date
(including in each case any monies received prior to the Cutoff Date that
are due on or after the Cutoff Date and were not used to reduce the
principal balance of the Receivable); (iii) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Seller in the Financed Vehicles; (iv) rights to
receive proceeds with respect to the Receivables from claims on any
physical damage, credit life, credit disability, or other insurance
policies covering Financed Vehicles or Obligors; (v) Dealer Recourse; (vi)
all of the Seller's rights to the Receivable Files; (vii) payments and
proceeds with respect to the Receivables held by the Seller; (viii) all
property (including the right to receive Liquidation Proceeds) securing a
Receivable (other than a Receivable repurchased by the Seller); (ix)
rebates of premiums and other amounts relating to insurance policies and
other items financed under the Receivables in effect as of the Cutoff Date;
and (x) all present and future claims, demands, causes of action and choses
in action in respect of any or all of the forego ing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any
time constitute all or part of or are included in the proceeds of any of
the foregoing.
(b) Receivables Purchase Price. In consideration
for the Purchased Property described in Section 2.1(a) hereof, the
Purchaser will, on the Closing Date, pay to the Seller the Receivables
Purchase Price. As detailed on Schedule B hereto, the portion of the
Receivables Purchase Price to be paid in cash is an amount equal to the net
cash proceeds from the sale of the Notes to the Underwriters pursuant to
the Underwriting Agreement minus the Reserve Initial Deposit. The remaining
portion of the Receivables Purchase Price, $114,125,688.03, will be deemed
paid and returned to the Purchaser and will be considered a contribution to
capital. The portion of the Receivables Purchase Price to be paid in cash
will be paid by federal wire transfer (same day) funds.
(c) It is understood that the absolute sale,
transfer, assignment and conveyance of the Purchased Property by the Seller
to the Purchaser pursuant to this Agreement will be without recourse and
the Seller does not guarantee collection of any Receivable, provided,
however, that such sale, transfer, assignment and conveyance will be made
pursuant to and in reliance on by the Purchaser of the representations and
warranties of the Seller as set forth in Section 3.2(b) hereof.
2.2 The Closing. The sale, assignment, conveyance and
acquisition of the Purchased Property will take place at a closing (the
"Closing") at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four
Times Square, New York, NY 10036-6522 on the Closing Date, simultaneously
with the closings under: (a) the Sale and Servicing Agreement pursuant to
which the Purchaser will assign all of its right, title and interest in, to
and under the Receivables and certain other property to the Trust in
exchange for the Securities; (b) the Indenture, pursuant to which the Trust
will issue the Notes and pledge all of its right, title and interest in, to
and under the Receivables and certain other property to secure the Notes;
(c) the Trust Agreement, pursuant to which the Trust will issue the
Certificates; and (d) the Underwriting Agreement, pursuant to which the
Purchaser will sell to the Underwriters the Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as of the date
hereof and as of the Closing Date:
(a) Organization, etc. The Purchaser has been
duly organized and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware, and has full power
and authority to execute and deliver this Agreement and to perform the
terms and provisions hereof and thereof.
(b) Due Authorization and No Violation. This
Agreement has been duly authorized, executed and delivered by the
Purchaser, and is the legal, valid, binding and enforceable obligation of
the Purchaser except as the same may be limited by insolvency, bankruptcy,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights or by general equity principles.
(c) No Conflicts. The consummation of the
transactions contemplated by this Agreement, and the fulfillment of the
terms hereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under (in each case
material to the Purchaser), or result in the creation or imposition of any
lien, charge or encumbrance (in each case material to the Purchaser) upon
any of the property or assets of the Purchaser pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Purchaser is a debtor or guarantor, nor will such action result in any
violation of the provisions of the Certificate of Formation or the Limited
Liability Company Agreement of the Purchaser.
(d) No Proceedings. No legal or governmental
proceedings are pending to which the Purchaser is a party or of which any
property of the Purchaser is the subject, and no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others, other than such proceedings which will not have a material adverse
effect upon the general affairs, financial position, net worth or results
of operations (on an annual basis) of the Purchaser and will not materially
and adversely affect the performance by the Purchaser of its obligations
under, or the validity and enforceability of, this Agreement.
(e) Fair Market Value. The Purchaser has
determined that the Receivables Purchase Price paid by it for the Purchased
Property on the Closing Date is equal to the fair market value for the
Purchased Property.
3.2 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to
the Purchaser as of the date hereof and as of the Closing Date:
(i) Organization, etc. The Seller has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, and is duly
qualified to transact business and is in good standing in each
jurisdiction in the United States of America in which the conduct
of its business or the ownership of its property requires such
qualification.
(ii) Power and Authority; Due Authorization;
Enforceability. The Seller has full power and authority to convey
and assign the property conveyed and assigned to the Purchaser
hereunder and has duly authorized such sale and assignment to the
Purchaser by all necessary corporate action. This Agreement has
been duly authorized, executed and delivered by the Seller and
will constitute the legal, valid, binding and enforceable
obligation of the Seller except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to
or affecting the enforcement of creditors' rights or by general
equity principles.
(iii) No Violation. The consummation of the
transactions contemplated by this Agreement, and the fulfillment
of the terms hereof, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under (in each case material to the Seller and its subsidiaries
considered as a whole), or result in the creation or imposition of
any lien, charge or encumbrance (in each case material to the
Seller and its subsidiaries considered as a whole) upon any of the
property or assets of the Seller pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under
which the Seller is a debtor or guarantor, nor will such action
result in any violation of the provisions of the certificate of
incorporation or the by-laws of the Seller.
(iv) No Proceedings. No legal or governmental
proceedings are pending to which the Seller is a party or of which
any property of the Seller is the subject, and no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others, other than such proceedings which will not
have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis)
of the Seller and its subsidiaries considered as a whole and will
not materially and adversely affect the performance by the Seller
of its obligations under, or the validity and enforceability of,
this Agreement.
(v) This Agreement creates a valid and
continuing security interest (as defined in the applicable UCC) in
the Receivables, in favor of the Purchaser which security interest
is prior to all other Liens and is enforceable as such as against
all other creditors of and purchasers from the Seller.
(b) The Seller makes the following
representations and warranties as to the Receivables on which the Purchaser
relies in accepting the Receivables. Such representations and warranties
speak as of the Closing Date, but will survive the transfer, assignment and
conveyance of the Receivables to the Purchaser and the subsequent
assignment and transfer to the Trust pursuant to the Sale and Servicing
Agreement and the pledge thereof to the Indenture Trustee pursuant to the
Indenture:
(i) Characteristics of Receivables. Each
Receivable (a) has been originated in the United States of America
by a Dealer for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business, has been fully and
properly executed by the parties thereto, has been purchased
either (X) by the Seller from a Dealer under an existing dealer
agreement with the Seller and has been validly assigned by such
Dealer to the Seller, or (Y) by PRIMUS from a Dealer or other
finance source (provided that such purchase relates to an
individual Receivable and not a bulk purchase) under an existing
agreement with PRIMUS and has been validly assigned by such Dealer
or other finance source to PRIMUS and has been validly assigned by
PRIMUS to the Seller in the ordinary course of business, (b)
creates or has created a valid, subsisting, and enforceable first
priority security interest in favor of the Seller in the Financed
Vehicle, which security interest will be assignable by the Seller
to the Purchaser, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof
are adequate for realization against the collateral of the
benefits of the security, (d) provides for level monthly payments
(provided that the payment in the last month in the life of the
Receivable may be different but in no event more than twice the
amount of the level payment) that fully amortize the Amount
Financed by maturity and yield interest at the Annual Percentage
Rate, (e) provides for, in the event that such contract is
prepaid, a prepayment that fully pays the Principal Balance, and
(e) is an Actuarial Receivable or a Simple Interest Receivable.
(ii) Schedule of Receivables. The information
set forth in the Schedule of Receivables is true and correct in
all material respects as of the opening of business on the Cutoff
Date, and no selection procedures believed to be adverse to the
Noteholders or the Certificateholders have been utilized in
selecting the Receivables from those receivables which meet the
criteria contained herein. The computer tape or other listing
regarding the Receivables made available to the Purchaser and its
assigns is true and correct in all material respects.
(iii) Compliance with Law. Each Receivable and
the sale of the Financed Vehicle will have complied at the time it
was originated or made and at the execution of this Agreement
complies in all material respects with all requirements of
applicable federal, State, and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the
Federal Reserve Board's Regulations B and Z, and State adaptations
of the National Consumer Act and of the Uniform Consumer Credit
Code, and other consumer credit laws and equal credit opportunity
and disclosure laws.
(iv) Binding Obligation. Each Receivable
represents the genuine, legal, valid, and binding payment
obligation of the Obligor, enforceable by the holder thereof in
accordance with its terms subject to the effect of bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally.
(v) No Government Obligor. None of the
Receivables are due from the United States of America or any State
or from any agency, department, or instrumentality of the United
States of America, any State or political subdivision of either
thereof.
(vi) Security Interest in Financed Vehicle.
Immediately prior to the transfer, assignment and conveyance
thereof, each Receivable is secured by a first priority, validly
perfected security interest in the Financed Vehicle in favor of
the Seller as secured party or all necessary and appropriate
actions have been commenced that would result in a first priority,
validly perfected security interest in the Financed Vehicle in
favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has
been satisfied, subordinated, or rescinded, nor has any Financed
Vehicle been released from the lien granted by the related
Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable
has been waived.
(ix) No Defenses. No right of rescission,
setoff, counterclaim, or defense has been asserted or threatened
with respect to any Receivable.
(x) No Liens. To the best of the Seller's
knowledge, no liens or claims have been filed for work, labor, or
materials relating to a Financed Vehicle that are liens prior to,
or equal with, the security interest in the Financed Vehicle
granted by the Receivable.
(xi) No Default. Except for payment defaults
continuing for a period of not more than thirty (30) days as of
the Cutoff Date, no default, breach, violation, or event
permitting acceleration under the terms of any Receivable has
occurred; and no continuing condition that with notice or the
lapse of time would constitute a default, breach, violation, or
event permitting acceleration under the terms of any Receivable
has arisen; and the Seller has not waived any of the foregoing.
(xii) Insurance. With respect to each
Receivable, the Seller, in accordance with its customary
standards, policies and procedures, will has determined that, as
of the date of origination of each Receivable, the Obligor had
obtained or agreed to obtain physical damage insurance covering
the Financed Vehicle.
(xiii) Title. It is the intention of the Seller
that the sale, transfer, assignment and conveyance herein
contemplated constitute an absolute sale, transfer, assignment and
conveyance of the Receivables from the Seller to the Purchaser and
that the beneficial interest in and title to the Receivables not
be part of the Seller's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy
law. No Receivable has been sold, transferred, assigned, conveyed
or pledged by the Seller to any Person other than the Purchaser.
Immediately prior to the sale and transfer herein contemplated,
the Seller had good and marketable title to each Receivable free
and clear of all Liens, encumbrances, security interests,
participations and rights of others and, immediately upon the sale
and transfer thereof, the Purchaser will have good and marketable
title to each Receivable, free and clear of all Liens,
encumbrances, security interests, participations and rights of
others; and the sale and transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable has been
originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer, assignment and conveyance of such
Receivable under this Agreement or pursuant to transfers of the
Securities would be unlawful, void, or voidable. The Seller has
not entered into any agreement with any account debtor that
prohibits, restricts or conditions the assignment of any portion
of the Receivables.
(xv) All Filings Made. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction to
give the Purchaser a first priority, validly perfected ownership
interest in the Receivables, and to give the Indenture Trustee a
first perfected security interest therein, will be made within ten
days of the Closing Date.
(xvi) Priority. Other than the security interest
granted to the Purchaser pursuant to this Agreement, the Seller
has not pledged, assigned, sold, granted a security interest in,
or otherwise conveyed any of the Receivables. The Seller has not
authorized the filing of and is not aware of any financing
statements against the Seller that include a description of
collateral covering the Receivables other than any financing
statement relating to the security interest granted to the
Purchaser hereunder or granted by the Purchaser to the Issuer or
by the Issuer to the Indenture Trustee or that has been terminated.
(xvii) Chattel Paper. Each Receivable
constitutes "tangible chattel paper" as defined in the UCC.
(xviii) One Original. There will be only one
original executed copy of each Receivable. The Seller, or its
custodian, has possession of such original with respect to each
Receivable. Such original does not have any marks or notations
indicating that it has been pledged, assigned or otherwise
conveyed to any Person other than the Seller. All financing
statements filed or to be filed against the Seller in favor of the
Purchaser in connection herewith describing the Receivables
contain a statement to the following effect: "A purchase of or
security interest in any collateral described in this financing
statement will violate the rights of the Purchaser."
(xix) New and Used Vehicles. 80.75% of the
aggregate Principal Balance of the Receivables, constituting
74.78% of the number of Receivables, as of the Cutoff Date,
represent vehicles financed at new vehicle rates, and the
remainder of the Receivables represent vehicles financed at used
vehicle rates.
(xx) Amortization Type. By aggregate Principal
Balance as of the Cutoff Date, 0.03% of the Receivables constitute
Actuarial Receivables and 99.97% of the Receivables constitute
Simple Interest Receivables.
(xxi) Origination. Each Receivable has an
origination date on or after October 26, 1996.
(xxii) PRIMUS. 12.02% of the aggregate Principal
Balance of the Receivables as of the Cutoff Date represent
Receivables originated through PRIMUS and assigned to the Seller,
and 87.98% of the aggregate Principal Balance of the Receivables
as of the Cutoff Date represent Receivables that were originated
through Ford Credit (excluding PRIMUS).
(xxiii) Maturity of Receivables. Each Receivable
has an original maturity of not greater than seventy-two (72)
months. The percentage of Receivables by Principal Balance with
original terms greater than 60 months is 6.25%. The percentage of
Receivables by Principal Balance with remaining terms greater than
60 months is 4.09%.
(xxiv) Annual Percentage Rate. The Annual
Percentage Rate of each Receivable is between 0.00% to 29.99%.
(xxv) Scheduled Payments. Each Receivable has a
first Scheduled Payment due, in the case of Actuarial Receivables,
or a first scheduled due date, in the case of Simple Interest
Receivables, on or prior to June 1, 2002 and no Receivable has a
payment that is more than thirty (30) days overdue as of the
Cutoff Date.
(xxvi) Location of Receivable Files. The
Receivable Files are kept at one or more of the offices of the
Servicer in the United States or the offices of one of the
custodians specified in Schedule A hereto.
(xxvii) No Extensions. The number of Scheduled
Payments, in the case of Actuarial Receivables, and the number of
scheduled due dates, in the case of Simple Interest Receivables,
will not have been extended on or before the Cutoff Date on any
Receivable.
(xxviii) Other Data. The numerical data relating
to the characteristics of the Receivables contained in the
Prospectus are true and correct in all material respects.
(xxix) Agreement. The representations and
warranties in this Agreement will be true.
(c) The Seller has determined that the Receivables
Purchase Price received by it for the Purchased Property on the Closing
Date is equal to the fair market value for the Purchased Property.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Seller hereunder will be true and
correct on the Closing Date with the same effect as if then made, and the
Seller will have performed all obligations to be performed by it hereunder
on or prior to the Closing Date.
(b) Computer Files Marked. The Seller, at its
own expense, on or prior to the Closing Date, will indicate in its computer
files, in accordance with its customary standards, policies and procedures,
that the Receivables have been conveyed to the Purchaser pursuant to this
Agreement and will deliver to the Purchaser the Schedule of Receivables
certified by an officer of the Seller to be true, correct and complete.
(c) Documents to be Delivered by the Seller at
the Closing.
(i) The Assignment. On the Closing Date, the
Seller will execute and deliver the Assignment. The Assignment
will be substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller will record and file, at its own expense,
a UCC-1 financing statement in each jurisdiction in which required
by applicable law, executed by the Seller, as seller or debtor,
and naming the Purchaser, as purchaser or secured party, naming
the Receivables and the other property conveyed hereunder, meeting
the requirements of the laws of each such jurisdiction and in such
manner as is necessary to perfect the transfer, assignment and
conveyance of such Receivables to the Purchaser. The Seller will
deliver a file-stamped copy, or other evidence satisfactory to the
Purchaser of such filing, to the Purchaser on or prior to the
Closing Date.
(iii) Other Documents. Such other documents as
the Purchaser may reasonably request.
(d) Other Transactions. The transactions
contemplated by the Sale and Servicing Agreement, the Indenture and the
Trust Agreement will be consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller. The
obligation of the Seller to convey the Receivables to the Purchaser is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Purchaser hereunder will be true and
correct on the Closing Date with the same effect as if then made, and the
Purchaser will have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. At the Closing
Date, the Purchaser will deliver to the Seller the Receivables Purchase
Price in accordance with Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller covenants and agrees with the Purchaser as
follows, provided, however, that to the extent that any provision of this
ARTICLE V conflicts with any provision of the Sale and Servicing Agreement,
the Sale and Servicing Agreement will govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller will authorize and file such
financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain, and protect the interest of the Purchaser (or
its assignee) in the Receivables and in the proceeds thereof. The Seller
will deliver (or cause to be delivered) to the Purchaser file-stamped
copies of, or filing receipts for, any document filed as provided above, as
soon as available following such filing.
(b) The Seller will not change its name,
identity, or corporate structure in any manner that would, could, or might
make any financing statement or continuation statement filed by the Seller
in accordance with paragraph (a) above seriously misleading within the
meaning of ss. 9-506 of the UCC, unless it has given the Purchaser at least
five (5) days' prior written notice thereof and promptly files appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller will give the Purchaser at least
sixty (60) days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new
financing statement and will promptly file any such amendment or new
financing statement. The Seller will at all times maintain each office from
which it will service Receivables, and its principal executive office,
within the United States of America.
(d) The Seller will maintain accounts and
records as to each Receivable accurately and in sufficient detail to permit
the reader thereof to know at any time the status of such Receivable,
including payments and recoveries made and payments owing (and the nature
of each).
(e) The Seller will maintain its computer
systems, in accordance with its customary standards, policies and
procedures, so that, from and after the time of conveyance hereunder of the
Receivables to the Purchaser, the Seller's master computer records
(including any back-up archives) that refer to a Receivable will indicate
clearly the interest of the Purchaser in such Receivable and that such
Receivable is owned by the Purchaser or its assignee. Indication of the
ownership of a Receivable by the Purchaser or its assignee will not be
deleted from or modified on the Seller's computer systems until, and only
until, the Receivable has been paid in full or repurchased.
(f) If at any time the Seller proposes to sell,
grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender, or other
transferee, the Seller will give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs (including any
restored from back-up archives) that, if they refer in any manner
whatsoever to any Receivable, will indicate clearly that such Receivable
has been conveyed to and is owned by the Purchaser.
(g) The Seller will, upon receipt by the Seller
of reasonable prior notice, permit the Purchaser and its agents at any time
during normal business hours to inspect, audit, and make copies of and
abstracts from the Seller's records regarding any Receivable.
(h) Upon request, the Seller will furnish to the
Purchaser, within twenty (20) Business Days, a list of all Receivables (by
contract number and name of Obligor) then owned by the Purchaser, together
with a reconciliation of such list to the Schedule of Receivables.
5.2 Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the other Basic Documents, the Seller will not
sell, pledge, assign or transfer any Receivable to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any interest
therein, and the Seller will defend the right, title, and interest of the
Purchaser in, to and under such Receivables against all claims of third
parties claiming through or under the Seller; provided, however, that the
Seller's obligations under this Section 5.2 will terminate upon the
termination of the Trust pursuant to the Trust Agreement.
5.3 Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as
against all third parties, of the Purchaser's right, title and interest in
and to the Receivables.
5.4 Indemnification.
(a) The Seller will defend, indemnify, and hold
harmless the Purchaser from and against any and all costs, expenses, losses,
damages, claims, and liabilities, arising out of or resulting from the
failure of a Receivable to be originated in compliance with all requirements
of law and for any breach of any of the Seller's representations and
warranties contained herein provided, however, with respect to a breach of
the Seller's representations and warranties as set forth in Section 3.2(b),
any indemnification amounts owed pursuant to this Section 5.4 with respect of
a Receivable will give effect to and not be duplicative of the Purchase
Amounts paid by the Seller pursuant to Section 6.2 hereof.
(b) The Seller will defend, indemnify, and hold
harmless the Purchaser from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or resulting from
the use, ownership, or operation by the Seller or any Affiliate thereof of
a Financed Vehicle.
(c) The Seller will defend, indemnify, and hold
harmless the Purchaser from and against any and all taxes that may at any
time be asserted against the Purchaser with respect to the transactions
contemplated herein, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property, privilege, or
license taxes and costs and expenses in defending against the same.
(d) The Seller will defend, indemnify, and hold
harmless the Purchaser from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost,
expense, loss, claim, damage, or liability arose out of, or was imposed
upon the Purchaser through, the negligence, willful misfeasance, or bad
faith of the Seller in the performance of its duties under this Agreement
or by reason of reckless disregard of the Seller's obligations and duties
under this Agreement.
(e) The Seller will defend, indemnify, and hold
harmless the Purchaser from and against all costs, expenses, losses,
claims, damages, and liabilities arising out of or incurred in connection
with the acceptance or performance of the Seller's trusts and duties as
Servicer under the Sale and Servicing Agreement, except to the extent that
such cost, expense, loss, claim, damage, or liability is due to the willful
misfeasance, bad faith, or negligence (except for errors in judgment) of
the Purchaser.
These indemnity obligations will be in addition to any
obligation that the Seller may otherwise have.
5.5 Treatment. The Seller agrees to treat this conveyance
as (i) an absolute transfer for tax purposes and (ii) a sale for all other
purposes (including without limitation financial accounting purposes), in
each case on all relevant books, records, tax returns, financial statements
and other applicable documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller
under this Agreement will not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
6.2 Repurchase of Receivables Upon Breach by the Seller. (a)
The Seller hereby covenants and agrees with the Purchaser for the benefit of
the Purchaser, the Trust, the Owner Trustee, the Indenture Trustee, the
Noteholders and the Certificateholders, that the occurrence of a breach of any
of the Seller's representations and warranties contained in Section 3.2(b)
hereof will constitute events obligating the Seller to repurchase Receivables
hereunder ("Repurchase Events"), at the Purchase Amount from the Purchaser or
from the Trust.
(b) Any Person who discovers a breach of any
representation or warranty of the Seller set forth in Section 3.2(b) hereof
may, and if such Person is the Seller or the Servicer, will, inform promptly
the Servicer, the Seller, the Purchaser, the Trust, the Owner Trustee and the
Indenture Trustee, as the case may be, in writing, upon the discovery of any
breach of any representation or warranty as set forth in Section 3.2(b)
hereof. Unless the breach has been cured by the last day of the second
Collection Period following such discovery (or, at the Seller's election, the
last day of the first following Collection Period), the Seller will
repurchase any Receivable materially and adversely affected by such breach at
the Purchase Amount. In consideration of the repurchase of such Receivable,
the Seller will remit the Purchase Amount to the Servicer for distribution
pursuant to Section 4.3 of the Sale and Servicing Agreement. The sole remedy
(except as provided in Section 5.4 hereof) of the Purchaser, the Trust, the
Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders against the Seller with respect to a Repurchase Event will
be to require the Seller to repurchase Receivables pursuant to this Section
6.2. With respect to all Receivables repurchased pursuant to this Section
6.2, the Purchaser will assign to the Seller, without recourse,
representation or warranty, all the Purchaser's right, title and interest in
and to such Receivables, and all security and documents relating thereto.
6.3 Seller's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Purchaser will assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest in
and to such Receivables, and all security and documents relating thereto.
6.4 Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and
Servicing Agreement, convey the Receivables to the Trust and assign its
rights under this Agreement to the Trust for the benefit of the Noteholders
and the Certificateholders, and that the representations and warranties
contained in this Agreement and the rights of the Purchaser under Sections
6.2 and 6.3 hereof are intended to benefit the Trust, the Owner Trustee, the
Noteholders and the Certificateholders. The Seller hereby consents to such
conveyance and assignment.
(b) The Trust will, pursuant to the Indenture,
pledge the Receivables and its rights under this Agreement to the Indenture
Trustee for the benefit of the Noteholders, and that the representations and
warranties contained in this Agreement and the rights of the Purchaser under
this Agreement, including under Sections 6.2 and 6.3 are intended to benefit
the Indenture Trustee and the Noteholders. The Seller hereby consents to such
pledge.
6.5 Amendment. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Seller and the
Purchaser; provided, however, that any such amendment that materially
adversely affects the rights of the Noteholders or the Certificateholders
under the Indenture, Sale and Servicing Agreement or Trust Agreement will be
consented to by the Noteholders of Notes evidencing not less than a majority
of the Notes Outstanding and the Certificateholders of Certificates
evidencing not less than a majority of the Aggregate Certificate Balance.
6.6 Accountants' Letters.
(a) PricewaterhouseCoopers LLP will review the
characteristics of the Receivables described in the Schedule of Receivables
and will compare those characteristics to the information with respect to the
Receivables contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser
and PricewaterhouseCoopers LLP in making available all information and taking
all steps reasonably necessary to permit such accountants to complete the
review set forth in Section 6.6(a) above and to deliver the letters required
of them under the Underwriting Agreement.
(c) PricewaterhouseCoopers LLP will deliver to the
Purchaser a letter, dated the Closing Date, in the form previously agreed to
by the Seller and the Purchaser, with respect to the financial and
statistical information contained in the Prospectus under the caption
"Delinquencies, Repossessions and Net Losses" and with respect to such other
information as may be agreed in the form of letter.
6.7 Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement or
the Assignment will operate as a waiver thereof, nor will any single or
partial exercise of any such power, right or remedy preclude any other or
further exercise thereof or the exercise of any other power, right or remedy.
6.8 Notices. All communications and notices pursuant
hereto to either party will be in writing or by facsimile and addressed or
delivered to it at its address as shown below or at such other address as
may be designated by it by notice to the other party and, if mailed or sent
by facsimile, will be deemed given upon receipt at the address or facsimile
number for each party set forth below.
To Seller: Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
Xxx Xxxxxxxx Xxxx
Xxxxx 0000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Facsimile No.: (000) 000-0000
To Purchaser: Ford Credit Auto Receivables Two LLC
c/o Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Facsimile No.: (000) 000-0000
6.9 Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and
interest in and to the Receivables and the enforcement of any obligation of
the Seller hereunder.
6.10 Survival. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in
or made pursuant to this Agreement will remain in full force and effect and
will survive the closing under Section 2.2 hereof and any sale, transfer or
other assignment of the Receivables by the Purchaser.
6.11 Confidential Information. The Purchaser agrees that
it will neither use nor disclose to any Person the names and addresses of
the Obligors, except in connection with the enforcement of the Purchaser's
rights hereunder, under the Receivables, under any Sale and Servicing
Agreement or as required by law.
6.12 Headings and Cross-References. The various headings
in this Agreement are included for convenience only and will not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement.
6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK.
6.14 Counterparts. This Agreement may be executed in two
or more counterparts and by different parties on separate counterparts,
each of which will be an original, but all of which together will
constitute one and the same instrument.
6.15 Further Assurances. Seller and Purchaser will each,
at the request of the other, execute and deliver to the other all other
instruments that either may reasonably request in order to perfect the
conveyance, transfer, assignment and delivery to Purchaser of the rights to
be conveyed, transferred, assigned and delivered and for the consummation
of this Agreement.
IN WITNESS WHEREOF, the parties hereby have caused this
Purchase Agreement to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
FORD MOTOR CREDIT COMPANY
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
FORD CREDIT AUTO RECEIVABLES
TWO LLC
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of June1, 2002 (the "Purchase Agreement"), between the undersigned
and FORD CREDIT AUTO RECEIVABLES TWO LLC (the "Purchaser"), the undersigned
does hereby assign, transfer and otherwise convey unto the Purchaser,
without recourse, all right, title and interest of the undersigned, whether
now owned or hereafter acquired, in and to the following: (i) the
Receivables; (ii) with respect to Actuarial Receivables, monies due
thereunder on or after the Cutoff Date (including Payaheads) and, with
respect to Simple Interest Receivables, monies due or received thereunder
on or after the Cutoff Date (including in each case any monies received
prior to the Cutoff Date that are due on or after the Cutoff Date and were
not used to reduce the principal balance of the Receivable); (iii) the
security interests in the Financed Vehicles granted by Obligors pursuant to
the Receivables and any other interest of the Seller in the Financed
Vehicles; (iv) rights to receive proceeds with respect to the Receivables
from claims on any physical damage, credit life, credit disability, or
other insurance policies covering the Financed Vehicles or Obligors; (v)
Dealer Recourse; (vi) all of the Seller's rights to the Receivable Files;
(vii) payments and proceeds with respect to the Receivables held by the
Seller; (viii) all property (including the right to receive Liquidation
Proceeds) securing a Receivable (other than a Receivable repurchased by the
Seller); (ix) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and (x) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing and
all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing. The foregoing conveyance does not
constitute and is not intended to result in any assumption by the Purchaser
of any obligation of the undersigned to the Obligors, insurers or any other
Person in connection with the Receivables, Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined will have
the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of June 1, 2002.
FORD MOTOR CREDIT COMPANY
By:____________________________
Name:
Title:
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
Schedule A
Location of Receivable Files
at Third Party Custodians of Ford Credit
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
MSX International, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Iron Mountain Records Management
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Schedule B
Receivables Purchase Price
Total net cash proceeds from the
Underwriters for purchase of the
Class A-1 Notes, Class A-2a Notes,
Class A-2b Notes, Class A-3 Notes,
Class A-4 Notes, Class B Notes and
Class C Notes received by Purchaser $2,003,402,704.26
less Reserve Account Deposit $ (10,599,999.78)
equals the total cash received by
Purchaser available for transfer
to Ford Credit as Seller(1) $1,992,802,704.47
------------------------------------------------------------------------------
Receivables Purchase Price(2) $2,106,928,392.50
minus the total cash received by
Purchaser available for transfer to
Ford Credit as Seller $1,992,802,704.47
equals the difference (and
Deemed Capital Contribution
from Ford Credit) of: $ 114,125,688.03
____________________
(1) The Class D Certificates are retained by the Purchaser and are not
available for transfer to Ford Credit.
(2) The Seller and the Purchaser have determined that the Receivables
Purchase Price equals the fair market value of the Receivables and the related
property and the fair market value is calculated as 105% of the adjusted pool
balance (or equal to 99.38% of the original pool balance for purposes of the
calculations).
APPENDIX A
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Definitions and Usage
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