Exhibit 99.3
PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Seller
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Purchaser
Dated as of April 1, 2005
ii
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES
2.1 Conveyance and Acquisition of Receivables....................................................1
2.2 The Closing..................................................................................2
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser..............................................3
3.2 Representations and Warranties of the Seller.................................................4
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser...................................................10
4.2 Conditions to Obligation of the Seller......................................................11
ARTICLE V
COVENANTS OF THE SELLER
5.1 Protection of Right, Title and Interest.....................................................11
5.2 Other Liens or Interests....................................................................12
5.3 Costs and Expenses..........................................................................13
5.4 Indemnification.............................................................................13
5.5 Treatment...................................................................................14
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller.......................................................................14
6.2 Repurchase of Receivables Upon Breach by the Seller.........................................14
6.3 Purchaser's Assignment of Repurchased Receivables...........................................15
6.4 Trust.......................................................................................15
6.5 Amendment...................................................................................15
6.6 Accountants' Letters........................................................................15
6.7 Waivers.....................................................................................16
6.8 Notices.....................................................................................16
6.9 Costs and Expenses..........................................................................17
6.10 Survival....................................................................................17
6.11 Confidential Information....................................................................17
6.12 Headings and Cross-References...............................................................18
6.13 GOVERNING LAW...............................................................................18
6.14 Counterparts................................................................................18
6.15 Further Assurances..........................................................................18
6.16 Savings Clause..............................................................................19
Exhibit A Assignment.........................................................................A-1
Exhibit B Schedule of Receivables............................................................B-1
Schedule A Location of Receivable Files at Third Party Custodians.............................A-1
Appendix A Definitions and Usage.............................................................AA-1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (as from time to time amended,
supplemented or otherwise modified and in effect, this "Agreement") is made as
of the 1st day of April 2005, 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 2005-B to be created
pursuant to the Trust Agreement, which Trust will issue notes secured by such
Receivables and certain other property of the Trust, pursuant to the Indenture,
and will issue certificates representing beneficial interests in such
Receivables and certain other property of the Trust, pursuant to the Trust
Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that are
applicable herein.
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES
2.1 Conveyance and Acquisition of Receivables.
On the Closing Date, subject to the terms and conditions of
this Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Receivables and the other property
relating thereto (as defined below).
(a) Conveyance of Purchased Property. Effective as of the Closing Date and
simultaneously with the transactions pursuant to the Indenture, the Sale and
Servicing Agreement and the Trust Agreement, the Seller hereby sells, transfers,
assigns and otherwise conveys to the Purchaser, without recourse, all right,
title and interest of the Seller, whether now owned or hereafter acquired, in
and to the following (collectively, the "Purchased Property"): (i) the
Receivables; (ii) monies due or received thereunder on or after the Cutoff Date
and monies due and received prior to the Cutoff Date that are posted to the
Obligor's account on or after the Cutoff Date; (iii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Seller in the Financed Vehicles; (iv) rights to receive
proceeds with respect to the Receivables from claims on any physical damage,
credit life, credit disability, or other insurance policies covering Financed
Vehicles or Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to
the Receivable Files; (vii) payments and proceeds with respect to the
Receivables held by the Seller; (viii) all property securing a Receivable; (ix)
rebates of premiums and other amounts relating to insurance policies and other
items financed under the Receivables in effect as of the Cutoff Date; and (x)
all present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
(b) Receivables Purchase Price. In consideration for the Purchased Property
described in Section 2.1(a) hereof, the Purchaser will, on the Closing Date, pay
to the Seller $2,954,806,390.50 in cash by federal wire transfer (same day)
funds. The Purchaser and the Seller each represent and warrant to the other that
the amount of cash paid by the Purchaser, together with the increase in value in
the Seller's capital in the Purchaser, is equal to the fair market value of the
Receivables.
(c) It is understood that the absolute sale, transfer, assignment and conveyance
of the Purchased Property by the Seller to the Purchaser pursuant to this
Agreement will be without recourse and the Seller does not guarantee collection
of any Receivable; provided, however, that such sale, transfer, assignment and
conveyance will be made pursuant to and in reliance on by the Purchaser of the
representations and warranties of the Seller as set forth in Section 3.2(b)
hereof.
2.2 The Closing.
The sale, assignment, conveyance and acquisition of the
Purchased Property will take place at a closing (the "Closing") at a mutually
agreed upon time and place on the Closing Date, simultaneously with the closings
under: (a) the Sale and Servicing Agreement pursuant to which the Purchaser will
assign all of its right, title and interest in, to and under the Receivables and
certain other property to the Trust in exchange for the Securities; (b) the
Indenture, pursuant to which the Trust will issue the Notes and pledge all of
its right, title and interest in, to and under the Receivables and certain other
property to secure the Notes; (c) the Trust Agreement, pursuant to which the
Trust will issue the Certificates and the interim trust agreement will be
amended; and (d) the Underwriting Agreement, pursuant to which the Purchaser
will sell to the Underwriters the Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as of the
date of this Agreement and as of the Closing Date:
(a) Organization and Qualification. The Purchaser is duly organized and validly
existing as a limited liability company in good standing under the laws of the
State of Delaware. The Purchaser is qualified as a foreign limited liability
company in good standing and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of its properties or the
conduct of its activities requires such qualification, license or approval,
unless the failure to obtain such qualifications, licenses or approvals would
not have a material adverse effect on the Purchaser's ability to perform its
obligations under this Agreement.
(b) Power, Authorization and Enforceability. The Purchaser has full power and
authority to execute, deliver and perform the terms of this Agreement and to
acquire, own and sell the Receivables. The Purchaser has duly authorized the
execution, delivery and performance of the terms of this Agreement. This
Agreement is the legal, valid, binding and enforceable obligation of the
Purchaser, except as may be limited by insolvency, bankruptcy, reorganization or
other laws relating to the enforcement of creditors' rights or by general
equitable principles.
(c) No Conflicts and No Violation. The consummation of the transactions
contemplated by this Agreement, and the fulfillment of the terms of this
Agreement, will not (i) conflict with or result in a breach of the terms or
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, loan agreement, guarantee or similar agreement or instrument under which
the Purchaser is a debtor or guarantor, (ii) result in the creation or
imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Purchaser pursuant to the terms of any such indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument,
(iii) violate the Certificate of Formation or the Limited Liability Company
Agreement of the Purchaser, or (iv) violate any law or, to the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser of any
court or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser of its
properties; in each case, which conflict, breach, default, lien, or violation
would have a material adverse effect on the Purchaser's ability to perform its
obligations under this Agreement.
(d) No Proceedings. To the Purchaser's knowledge, there are no proceedings or
investigations pending or threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction
over the Purchaser or its properties: (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling that
would reasonably be expected to have a material adverse effect on the
Purchaser's ability to perform its obligations under this Agreement or on the
validity or enforceability of this Agreement.
3.2 Representations and Warranties of the Seller.
(a) The Seller represents and warrants to the Purchaser as of the date of
this Agreement and as of the Closing Date:
(i) Organization and Qualification. The Seller is duly incorporated and
validly existing as a corporation in good standing under the laws of
the State of Delaware. The Seller is qualified as a foreign corporation
in good standing and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license
or approval, unless the failure to obtain such qualifications, licenses
or approvals would not have a material adverse effect on the Seller's
ability to perform its obligations under this Agreement.
(ii) Power, Authorization and Enforceability. The Seller has full power and
authority to execute, deliver and perform the terms of this Agreement
and to acquire, own, hold, service and sell the Receivables. The Seller
has duly authorized the execution, delivery and performance of the
terms of this Agreement. This Agreement is the legal, valid, binding
and enforceable obligation of the Purchaser, except as may be limited
by insolvency, bankruptcy, reorganization or other laws relating to the
enforcement of creditors' rights or by general equitable principles.
(iii) No Conflicts and No Violation. The consummation of the transactions
contemplated by this Agreement, and the fulfillment of the terms of
this Agreement, will not (i) conflict with or result in a breach of the
terms or provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement, guarantee or similar agreement
or instrument under which the Seller is a debtor or guarantor,
(ii) result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of the Seller pursuant
to the terms of any such indenture, mortgage, deed of trust, loan
agreement, guarantee or similar agreement or instrument, (iii) violate
the Certificate of Incorporation or Bylaws of the Seller, or
(iv) violate any law or, to the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller of its properties;
in each case, which conflict, breach, default, lien, or violation would
have a material adverse effect on the Seller's ability to perform its
obligations under this Agreement.
(iv) No Proceedings. To the Seller's knowledge, there are no proceedings or
investigations pending or threatened, before any court, regulatory
body, administrative agency, or other governmental instrumentality
having jurisdiction over the Seller or its properties: (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or (iii) seeking any determination or ruling that would reasonably be
expected to have a material adverse effect on the Seller's ability to
perform its obligations under this Agreement or the validity or
enforceability of this Agreement.
(v) Valid Security Interest. This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in the Receivables
in favor of the Purchaser, which security interest is prior to all
other Liens and is enforceable against all creditors of and purchasers
from the Seller.
(b) The Seller represents and warrants to the Purchaser as of the date of
this Agreement and as of the Closing Date which representations and
warranties (i) the Purchaser will be deemed to have relied upon in
acquiring the Receivables and (ii) will survive the sale and assignment
of the Receivables to the Purchaser, the subsequent assignment and
transfer to the Trust pursuant to the Sale and Servicing Agreement and
the pledge of the Receivables to the Indenture Trustee pursuant to the
Indenture:
(i) Characteristics of Receivables. Each Receivable (a) has been
originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, is payable in U.S. dollars, has been fully and
properly executed by the parties thereto, has been purchased by the
Seller from a Dealer and has been validly assigned by such Dealer to
the Seller, (b) creates or has created a valid, subsisting, and
enforceable first priority security interest in favor of the Seller in
the Financed Vehicle, which security interest will be assignable by the
Seller to the Purchaser, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are
adequate for realization against the Financed Vehicle and any other
collateral of the benefits of the security, (d) provides for level
monthly payments that fully amortize the Amount Financed by its stated
maturity and yield interest at the Annual Percentage Rate, (e) provides
for, in the event that such contract is prepaid, a prepayment that
fully pays the Principal Balance and (f) is a Simple Interest
Receivable.
(ii) Schedule of Receivables. The information set forth in the Schedule of
Receivables is true and correct in all material respects as of the
opening of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Noteholders or the Certificateholders
have been utilized in selecting the Receivables from those receivables
which meet the criteria contained herein. The computer tape or other
listing regarding the Receivables made available to the Purchaser and
its assigns (which computer tape or other listing is required to be
delivered as specified herein) is true and correct in all material
respects.
(iii) Compliance with Law. Each Receivable and the sale of the Financed
Vehicle will have complied at the time it was originated or made and at
the execution of this Agreement complies in all material respects with
all requirements of applicable federal, State, and local laws, and
regulations thereunder, including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the
Federal Reserve Board's Regulations B and Z, and State adaptations of
the National Consumer Act and of the Uniform Consumer Credit Code, and
other consumer credit laws and equal credit opportunity and disclosure
laws.
(iv) Binding Obligation. Each Receivable represents the legal, valid, and
binding payment obligation of the Obligor, enforceable by the holder
thereof in accordance with its terms subject to the effect of
bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights generally.
(v) No Government Obligor. None of the Receivables are due from the United
States of America or any State or from any agency, department, or
instrumentality of the United States of America, any State or political
subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior to the
transfer, assignment and conveyance thereof, each Receivable is secured
by a first priority, validly perfected security interest in the
Financed Vehicle in favor of the Seller as secured party or all
necessary and appropriate actions have been commenced that would result
in a first priority, validly perfected security interest in the
Financed Vehicle in favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has been satisfied, subordinated,
or rescinded, nor has any Financed Vehicle been released from the lien
granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been waived.
(ix) No Defenses. No right of rescission, setoff, counterclaim, or defense
has been asserted or threatened with respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens or claims
have been filed for work, labor, or materials relating to a Financed
Vehicle that are liens prior to, or equal with, the security interest
in the Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a period of not
more than thirty (30) days, as of the Cutoff Date, no payment defaults
(determined in accordance with the Servicer's policies and procedures)
exist and Ford Credit has not affirmatively waived any of the
foregoing.
(xii) Insurance. The Seller, in accordance with its policies and procedures,
has determined that, as of the date of origination of each Receivable,
the Obligor had obtained or agreed to obtain physical damage insurance
covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the sale, transfer,
assignment and conveyance herein contemplated constitute an absolute
sale, transfer, assignment and conveyance of the Receivables from the
Seller to the Purchaser and that the beneficial interest in and title
to the Receivables not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned,
conveyed or pledged by the Seller to any Person other than the
Purchaser. Immediately prior to the sale and transfer herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens, encumbrances, security
interests, participations and rights of others and, immediately upon
the sale and transfer thereof, the Purchaser will have good and
marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests, participations and rights of others;
and the sale and transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer,
assignment and conveyance of such Receivable under this Agreement or
pursuant to transfers of the Securities would be unlawful, void, or
voidable. The Seller has not entered into any agreement with any
account debtor that prohibits, restricts or conditions the assignment
of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Purchaser a first
priority, validly perfected ownership interest in the Receivables, and
to give the Indenture Trustee a first priority perfected security
interest therein, will be made within ten days of the Closing Date.
(xvi) Priority. Other than the security interest granted to the Purchaser
pursuant to this Agreement, the Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Receivables. The Seller has not authorized the filing of and is not
aware of any financing statements against the Seller that include a
description of collateral covering the Receivables other than any
financing statement relating to the security interest granted to the
Purchaser hereunder or granted by the Purchaser to the Issuer or by the
Issuer to the Indenture Trustee or that has been terminated.
(xvii) Chattel Paper. Each Receivable constitutes "tangible chattel paper" as
defined in the UCC.
(xviii) One Original. There will be only one original executed copy of each
Receivable. The Seller, or its custodian, has possession of such
original with respect to each Receivable. Such original does not have
any marks or notations indicating that it has been pledged, assigned or
otherwise conveyed to any Person other than the Seller. All financing
statements filed or to be filed against the Seller in favor of the
Purchaser in connection herewith describing the Receivables contain a
statement substantially to the following effect: "A purchase of or
security interest in any collateral described in this financing
statement will violate the rights of the Secured Party/Assignee."
(xix) New and Used Vehicles. 85.42% of the aggregate Principal Balance of the
Receivables, constituting 78.93% of the number of Receivables, as of
the Cutoff Date, represent vehicles financed at new vehicle rates, and
the remainder of the aggregate Principal Balance of the Receivables
represent vehicles financed at used vehicle rates.
(xx) Origination. Each Receivable has an origination date on or after
December 11, 1999 and a scheduled maturity date not later than
February 28, 2011.
(xxi) Principal Balance. Each Receivable has a current principal balance of
at least $250.00.
(xxii) PRIMUS. 7.30% of the aggregate Principal Balance of the Receivables as
of the Cutoff Date represent Receivables originated through Ford
Credit's PRIMUS division, and 92.70% of the aggregate Principal Balance
of the Receivables as of the Cutoff Date represent Receivables that
were originated through Ford Credit (excluding its PRIMUS division).
(xxiii) Maturity of Receivables. Each Receivable has an original maturity of
not greater than seventy-two (72) months. The percentage of Receivables
by Principal Balance with original terms greater than sixty (60) months
is 28.67%. The percentage of Receivables by Principal Balance with
remaining terms greater than sixty (60) months is 17.52%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate of each Receivable
is between 0.00% to 29.99% (inclusive).
(xxv) Scheduled Payments. Each Receivable has a first scheduled due date on
or prior to March 31, 2005 and has had at least one scheduled payment
applied. No Receivable has a payment that is more than thirty (30) days
delinquent, as determined by the Seller in accordance with its policies
and procedures, as of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files are kept at one or
more of the offices of the Servicer in the United States or the offices
of one of the custodians specified in Schedule A hereto.
(xxvii) No Extensions. The number of scheduled due dates will not have been
extended on or before the Cutoff Date on any Receivable.
(xxviii) Other Data. The numerical data relating to the characteristics of the
Receivables contained in the Prospectus are true and correct in all
material respects.
(xxix) Agreement. The representations and warranties in this Agreement will be
true.
(c) The Seller has determined that the Receivables Purchase Price received
by it for the Purchased Property on the Closing Date is equal to the
fair market value for the Purchased Property.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser.
The obligation of the Purchaser to purchase the Receivables is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties
of the Seller hereunder will be true and correct on the Closing Date
with the same effect as if then made, and the Seller will have
performed all obligations to be performed by it hereunder on or prior
to the Closing Date.
(b) Computer Files Marked. The Seller, at its own expense, on or prior to
the Closing Date, will indicate in its computer files, in accordance
with its policies and procedures, that the Receivables have been
conveyed to the Purchaser pursuant to this Agreement and will deliver
to the Purchaser the Schedule of Receivables certified by an officer of
the Seller to be true, correct and complete.
(c) Documents to be Delivered by the Seller at the Closing.
(i) The Assignment. On the Closing Date, the Seller will execute and
deliver the Assignment. The Assignment will be substantially in the
form of Exhibit A hereto.
(ii) Evidence of UCC Filing. Within ten (10) days of the Closing Date, the
Seller will record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by the Seller, as seller or debtor, and naming the Purchaser,
as purchaser or secured party, naming the Receivables and the other
property conveyed hereunder, meeting the requirements of the laws of
each such jurisdiction and in such manner as is necessary to perfect
the transfer, assignment and conveyance of such Receivables to the
Purchaser. The Seller will deliver a file-stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the Purchaser
within ten (10) days of the Closing Date.
(iii) Other Documents. Such other documents as the Purchaser may reasonably
request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement will be
consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller.
The obligation of the Seller to convey the Receivables to the
Purchaser is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties of
the Purchaser hereunder will be true and correct on the Closing Date with the
same effect as if then made, and the Purchaser will have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. At the Closing Date, the Purchaser will deliver
to the Seller the Receivables Purchase Price in accordance with Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller covenants and agrees with the Purchaser as follows,
provided, however, that to the extent that any provision of this Article V
conflicts with any provision of the Sale and Servicing Agreement, the Sale and
Servicing Agreement will govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller will 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. The Seller authorizes the Purchaser and any
assignee of the Purchaser hereunder to file such financing statements and
continuation statements.
(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 change in its jurisdiction of organization and will promptly file
(and authorizes the Purchaser and any assignee of the Purchaser hereunder to
file) all amendments of any previously filed financing or continuation statement
and any new financing statements as may be necessary to continue the perfection
of the Purchaser's interest in the Purchased Property. The Seller will at all
times maintain each office from which it will service Receivables, and its
principal executive office, within the United States of America.
(d) The Seller will maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit the reader thereof to know at any
time the status of such Receivable, including payments and recoveries made and
payments owing (and the nature of each).
(e) The Seller will maintain its computer systems so that, from and after the
time of conveyance under this Agreement of the Receivables to the Purchaser, the
Seller's master computer records (including any back-up archives) that refer to
a Receivable will indicate clearly the interest of the Purchaser in such
Receivable and that such Receivable is owned by the Purchaser or its assignee.
Indication of the ownership of a Receivable by the Purchaser or its assignee
will not be deleted from or modified on the Seller's computer systems until, and
only until, the Receivable has been paid in full or repurchased.
(f) If at any time the Seller proposes to sell, grant a security interest in, or
otherwise transfer any interest in automotive receivables to any prospective
purchaser, lender, or other transferee, the Seller will give to such prospective
purchaser, lender, or other transferee computer tapes, records, or print-outs
(including any restored from back-up archives) that, if they refer in any manner
whatsoever to any Receivable, will indicate clearly that such Receivable has
been conveyed to and is owned by the Purchaser or its assignee.
(g) The Seller, upon receipt by the Seller of reasonable prior notice, will
permit the Purchaser and its agents at any time during normal business hours to
inspect, audit, and make copies of and abstracts from the Seller's records
regarding any Receivable.
(h) Upon request, the Seller will furnish to the Purchaser, within twenty (20)
Business Days, a list of all Receivables (by contract number) then owned by the
Purchaser or its assignee, together with a reconciliation of such list to the
Schedule of Receivables.
5.2 Other Liens or Interests.
Except for the conveyances hereunder and pursuant to the other
Basic Documents, the Seller will not sell, pledge, assign or transfer any
Receivable to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on any interest therein, and the Seller will defend the right,
title, and interest of the Purchaser in, to and under such Receivables against
all claims of third parties claiming through or under the Seller; provided,
however, that the Seller's obligations under this Section 5.2 will terminate
upon the termination of the Trust pursuant to the Trust Agreement.
5.3 Costs and Expenses.
The Seller agrees to pay all reasonable costs and
disbursements in connection with the perfection, as against all third parties,
of the Purchaser's right, title and interest in and to the Receivables.
5.4 Indemnification.
(a) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the failure of a Receivable to be originated in
compliance with all requirements of law and for any breach of any of the
Seller's representations and warranties contained herein; provided, however,
that any indemnification amounts owed pursuant to this Section 5.4 with respect
of a Receivable will give effect to and not be duplicative of the Purchase
Amounts paid by the Seller pursuant to Section 6.2 hereof.
(b) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the use, ownership, or operation by the Seller
or any Affiliate thereof of a Financed Vehicle.
(c) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all taxes that may at any time be asserted against the Purchaser
with respect to the transactions contemplated herein, including, without
limitation, any sales, gross receipts, general corporation, tangible personal
property, privilege, or license taxes and costs and expenses in defending
against the same.
(d) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability arose out
of, or was imposed upon the Purchaser through, the negligence, willful
misfeasance, or bad faith of the Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of the Seller's obligations
and duties under this Agreement.
(e) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in connection with the acceptance or performance of the
Seller's trusts and duties as Servicer under the Sale and Servicing Agreement,
except to the extent that such cost, expense, loss, claim, damage, or liability
is due to the willful misfeasance, bad faith, or negligence (except for errors
in judgment) of the Purchaser.
These indemnity obligations will be in addition to any
obligation that the Seller may otherwise have.
5.5 Treatment.
The Seller agrees to treat this conveyance as (i) an absolute
transfer for tax purposes and (ii) a sale for all other purposes (including
without limitation financial accounting purposes), in each case on all relevant
books, records, tax returns, financial statements and other applicable
documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller.
The obligations of the Seller under this Agreement will not be
affected by reason of any invalidity, illegality or irregularity of any
Receivable.
6.2 Repurchase of Receivables Upon Breach by the Seller.
(a) (i) If an Authorized Officer of the Seller has actual knowledge, or receives
notice from the Indenture Trustee of a breach of a representation or warranty
set forth in Section 3.2(b) that materially and adversely affects any Receivable
and such breach has not been cured in all material respects by the last day of
the second Collection Period following the Collection Period in which the Seller
obtained actual knowledge, or was notified, of such breach, the Seller will
repurchase such Receivable as of such last day (or, at the Seller's option, the
end of the first Collection Period following the Collection Period in which the
Seller obtained actual knowledge, or was notified, of such breach).
(ii) The Seller will remit the Purchase Amount with
respect to any Receivable that the Seller is repurchasing in accordance
with this Section 6.2(a) to the Servicer for distribution pursuant to
Section 4.3 of the Sale and Servicing Agreement on the Business Day
immediately preceding the Payment Date (or, with Rating Agency
Confirmation, on such Payment Date) related to the Collection Period
during which such repurchase occurs.
(b) The sole remedy (except as provided in Section
5.4) of the Purchaser, the Trust, the Owner Trustee,
the Indenture Trustee, the Noteholders and the Certificateholders against the
Seller with respect to a breach of the representations and warranties contained
in Section 3.2(b) are as set forth in Section 6.2(a). None of the Seller, the
Servicer, the Owner Trustee, the Administrator, or the Indenture Trustee will
have any duty to conduct an affirmative investigation as to the occurrence of
any condition requiring the Seller to repurchase any Receivable pursuant to
Section 6.2(a).
6.3 Purchaser's Assignment of Repurchased Receivables.
Upon the Seller's payment of the Purchase Amount with respect
to any Receivable pursuant to Section 6.2(a) the Purchaser will be deemed to
have assigned, without recourse, representation or warranty, to the Seller all
the Purchaser's right, title and interest in and to such repurchased Receivable,
and all security and documents relating thereto.
6.4 Trust.
The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing Agreement, convey the
Receivables to the Trust and assign its rights under this Agreement to the Trust
for the benefit of the Noteholders and the Certificateholders, and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under Sections 6.2 and 6.3 hereof are intended to benefit the Trust,
the Owner Trustee, the Noteholders and the Certificateholders. The Seller hereby
consents to such conveyance and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the Receivables and its
rights under this Agreement to the Indenture Trustee for the benefit of the
Noteholders, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under this Agreement, including under
Sections 6.2 and 6.3 are intended to benefit the Indenture Trustee and the
Noteholders. The Seller hereby consents to such pledge.
6.5 Amendment.
This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Seller and the Purchaser; provided,
however, that any such amendment that materially adversely affects the rights of
the Noteholders or the Certificateholders under the Indenture, Sale and
Servicing Agreement or Trust Agreement will be consented to by the Noteholders
of Notes evidencing not less than a majority of the Notes Outstanding and the
Certificateholders of Certificates evidencing not less than a majority of the
Aggregate Certificate Balance.
6.6 Accountants' Letters.
(a) PricewaterhouseCoopers LLP will review the characteristics of the
Receivables described in the Schedule of Receivables and will compare those
characteristics to the information with respect to the Receivables contained in
the Prospectus.
(b) The Seller will cooperate with the Purchaser and PricewaterhouseCoopers LLP
in making available all information and taking all steps reasonably necessary to
permit such accountants to complete the review set forth in Section 6.6(a) above
and to deliver the letters required of them under the Underwriting Agreement.
(c) PricewaterhouseCoopers LLP will deliver to the Purchaser a letter, dated the
Closing Date, in the form previously agreed to by the Seller and the Purchaser,
with respect to the financial and statistical information contained in the
Prospectus under the caption "Delinquencies, Credit Losses and Repossessions in
Ford Credit's Portfolio" and with respect to such other information as may be
agreed in the form of letter.
6.7 Waivers.
No failure or delay on the part of the Purchaser in exercising
any power, right or remedy under this Agreement or the Assignment will operate
as a waiver thereof, nor will any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
6.8 Notices.
All communications and notices pursuant hereto to either party
will be in writing or by facsimile and addressed or delivered to it at its
address as shown below or at such other address as may be designated by it by
notice to the other party and, if mailed or sent by facsimile, will be deemed
given upon receipt at the address or fax number for each party set forth below.
To Seller: Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Securitization Operations
Supervisor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Purchaser: Ford Credit Auto Receivables Two LLC
c/o Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Ford Credit SPE
Management Office
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6.9 Costs and Expenses.
The Seller will pay all expenses incident to the performance
of its obligations under this Agreement and the Seller agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser, excluding fees and
expenses of counsel, in connection with the perfection as against third parties
of the Purchaser's right, title and interest in and to the Receivables and the
enforcement of any obligation of the Seller hereunder.
6.10 Survival.
The respective agreements, representations, warranties and
other statements by the Seller and the Purchaser set forth in or made pursuant
to this Agreement will remain in full force and effect and will survive the
closing under Section 2.2 hereof and any sale, transfer or other assignment of
the Receivables by the Purchaser.
6.11 Confidential Information.
(a) The Purchaser agrees to hold and treat all Confidential Information (defined
in Section 6.11(b)) provided to it under this Agreement in confidence and in
accordance with this Section 6.11, and will implement and maintain safeguards to
further assure the confidentiality of such Confidential Information. Such
Confidential Information will not, without instruction pursuant to this
Agreement or the prior written consent of the Seller, be disclosed or used by
the Purchaser or its directors, officers, employees, attorneys or agents
(collectively, the "Information Recipients") other than in connection with (i)
the transactions contemplated by the Basic Documents and the issuance of the
Notes and (ii) the Purchaser's due diligence on the Receivables. Disclosure that
is not in violation of the Right to Financial Privacy Act of 1978, the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "G-L-B Act") or other applicable law by the
Purchaser of any Confidential Information (A) in connection with (x) the
enforcement of the Purchaser's rights under the Purchased Property and (y) the
performance of the Purchaser's due diligence on the Receivables or (B) at the
request of the Purchaser's independent certified public accountants or
governmental regulatory authorities in connection with an examination of the
Purchaser by any such authority or for the purposes specified in Section 6.6
will not constitute a breach of its obligations under this Section 6.11, and
will not require the prior written consent of the Seller.
(b) As used herein, "Confidential Information" means non-public personal
information (as defined in the G-L-B Act and its enabling regulations issued by
the Federal Trade Commission) regarding Obligors on the Receivables that is
identified as such by the Seller. Confidential Information will not include
information that (i) is or becomes generally available to the public other than
as a result of disclosure by the Purchaser or any of its Information Recipients,
(ii) was available to the Purchaser on a non-confidential basis from a Person or
entity other than the Seller prior to its disclosure to the Purchaser, (iii) is
requested to be disclosed by a governmental authority or related governmental,
administrative, or regulatory or self-regulatory agencies having or claiming
authority to regulate or oversee any aspect of the Purchaser's business or that
of its Affiliates or is otherwise required by law or by legal or regulatory
process to be disclosed, (iv) becomes available to the Purchaser on a
non-confidential basis from a Person other than the Seller who, to the knowledge
of the Purchaser, is not otherwise bound by a confidentiality agreement with the
Seller and is not otherwise prohibited from transmitting the information to the
Purchaser or (v) the Seller provides written permission to the Purchaser to
release.
6.12 Headings and Cross-References.
The various headings in this Agreement are included for
convenience only and will not affect the meaning or interpretation of any
provision of this Agreement. References in this Agreement to Section names or
numbers are to such Sections of this Agreement.
6.13 GOVERNING LAW.
THIS AGREEMENT AND THE ASSIGNMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6.14 Counterparts.
This Agreement may be executed in two or more counterparts and
by different parties on separate counterparts, each of which will be an
original, but all of which together will constitute one and the same instrument.
6.15 Further Assurances.
Seller and Purchaser will each, at the request of the other,
execute and deliver to the other all other instruments that either may
reasonably request in order to perfect the conveyance, transfer, assignment and
delivery to Purchaser of the rights to be conveyed, transferred, assigned and
delivered and for the consummation of this Agreement.
6.16 Savings Clause.
It is the intention of the Seller and the Purchaser that the
transfer of the Purchased Property contemplated in this Agreement constitute an
absolute sale of the Purchased Property, conveying good title to the Purchased
Property from the Seller to the Purchaser. However, in the event that such sale
is deemed to be a pledge, the Seller grants to the Purchaser a first priority
security interest in all of the Seller's right, title and interest in, to and
under the Purchased Property, and all proceeds thereof, to secure a loan in an
amount equal to the sum of all amounts payable by the Seller under this
Agreement, all principal amounts payable on the Securities and all amounts
payable as interest on the Securities, and all amounts payable as servicing fees
under the Sale and Servicing Agreement, and in such event, this Agreement will
constitute a security agreement under applicable law.
IN WITNESS WHEREOF, the parties hereby have caused this
Purchase Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
FORD MOTOR CREDIT COMPANY
By: /s/ X.X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
FORD CREDIT AUTO RECEIVABLES
TWO LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
A-2
Exhibit A
For value received, in accordance with the Purchase Agreement
dated as of April 1, 2005 (the "Purchase Agreement"), between the undersigned
and FORD CREDIT AUTO RECEIVABLES TWO LLC (the "Purchaser"), the undersigned does
hereby sell, assign, transfer and otherwise convey unto the Purchaser, without
recourse, all right, title and interest of the undersigned, whether now owned or
hereafter acquired, in and to the following: (i) the Receivables; (ii) monies
due or received thereunder on or after the Cutoff Date and monies due and
received prior to the Cutoff Date that are posted to the Obligor's account on or
after the Cutoff Date; (iii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of the
Seller in the Financed Vehicles; (iv) rights to receive proceeds with respect to
the Receivables from claims on any physical damage, credit life, credit
disability, or other insurance policies covering the Financed Vehicles or
Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to the Receivable
Files; (vii) payments and proceeds with respect to the Receivables held by the
Seller; (viii) all property securing a Receivable; (ix) rebates of premiums and
other amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cutoff Date; and (x) all present and future
claims, demands, causes of action and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing. The foregoing conveyance does not constitute and is not intended to
result in any assumption by the Purchaser of any obligation of the undersigned
to the Obligors, insurers or any other Person in connection with the
Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of April 1, 2005.
FORD MOTOR CREDIT COMPANY
By: -------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
B-1
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
A-1
Schedule A
Location of Receivable Files
at Third Party Custodians
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
MSX International, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Iron Mountain Records Management
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
AA-1
APPENDIX A
Definitions and Usage
See Tab 16
