Exhibit 99.3
==============================================================================
FORD MOTOR CREDIT COMPANY
Seller
[FORD CREDIT AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC]
Buyer
-----------------------------------
RECEIVABLES PURCHASE
AGREEMENT
Dated as of [______ __, 200_]
-----------------------------------
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__]
=============================================================================
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................ 1
Section 1.02. Other Definitional Provisions.......................... 13
ARTICLE II
SALE OF RECEIVABLES
Section 2.01. Sale of Receivables.................................... 13
Section 2.02. Representations and Warranties of Seller Relating
to Itself and This Agreement........................... 16
Section 2.03. Representations and Warranties of Seller Relating
to Receivables and Accounts............................ 18
Section 2.04. Covenants of Seller.................................... 20
Section 2.05. Designation of Additional Accounts..................... 21
Section 2.06. Addition of Interests in Other Floorplan Assets........ 22
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating
to Servicer............................................ 22
Section 3.02. Servicing Compensation................................. 23
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.01. Merger or Consolidation of, or Assumption,
of Obligations of Seller............................... 23
Section 4.02. Seller Indemnification of Buyer........................ 24
ARTICLE V
TERMINATION
Section 5.01. Termination of Agreement............................... 24
ARTICLE VI
INTERCREDITOR PROVISIONS
Section 6.01. Nonfloorplan Agreements Between Seller and Dealer...... 25
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.............................................. 26
Section 7.02. Protection of Right, Title and Interest to Receivables. 27
Section 7.03. Limited Recourse....................................... 28
Section 7.04. No Petition............................................ 28
Section 7.05. Governing Law.......................................... 28
Section 7.06. Notices................................................ 28
Section 7.07. Severability of Provisions............................. 28
Section 7.08. Assignment............................................. 29
Section 7.09. Further Assurances..................................... 29
Section 7.10. No Waiver; Cumulative Remedies......................... 29
Section 7.11. Counterparts........................................... 29
Section 7.12. Third-Party Beneficiaries.............................. 29
Section 7.13. Merger and Integration................................. 30
Section 7.14. Headings............................................... 30
RECEIVABLE PURCHASE AGREEMENT, dated as of [______ __, 200_], by and
between FORD MOTOR CREDIT COMPANY, a Delaware corporation, as Seller, and
[FORD CREDIT AUTO RECEIVABLES CORPORATION, a Delaware corporation] [FORD
CREDIT AUTO RECEIVABLES LLC, a Delaware limited liability company], as Buyer.
RECITALS
A. The Seller desires to sell to the Buyer, and the Buyer desires to
purchase from the Seller, the Receivables arising from time to time in
connection with the Accounts designated hereunder.
B. Pursuant to the Transfer and Servicing Agreement, the Buyer has agreed
to transfer to the Issuer all such Receivables purchased by the Buyer
hereunder.
C. [Pursuant to a transfer and servicing agreement among [FCAR LLC] [FCAR
Corp], the Issuer and the Servicer, [FCAR LLC] [FCAR Corp] has also agreed to
transfer to the Issuer all the receivables that have been purchased by [FCAR
LLC] [FCAR Corp] under a separate receivables purchase agreement between it
and the Seller.]
D. Pursuant to the Indenture and the Indenture Supplements, the Issuer
will issue from time to time Notes secured by the Receivables.
In consideration of the mutual covenants and agreements herein contained,
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows.
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases have the
following meanings, and the definitions of such terms are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
"Account" means, as of any date of determination, each Initial Account
and, from and after the related Addition Date, each Additional Account.
"Account Schedule" means the Initial Account Schedule, as the same may be
from time to time supplemented by the Additional Account Schedules, or
otherwise modified.
"Addition Date" has the meaning specified in Section 2.05(a).
"Addition Notice" has the meaning specified in Section 2.05(a).
"Additional Account" means a floorplan financing account established with
a Dealer pursuant to a Floorplan Financing Agreement that is designated
pursuant to Section 2.05 and is identified in the applicable Additional
Account Schedule.
"Additional Account Schedule" has the meaning specified in Section
2.01(e)(iii).
"Additional Cut-Off Date" means, with respect to Additional Accounts, the
day specified in the Addition Notice delivered with respect to such Additional
Accounts pursuant to Section 2.05(a).
"Adjustment Fees" means the amounts payable by Ford to Ford Credit in
respect of the Ford's assignment to Ford Credit under the Sale and Assignment
Agreement of Ford's right to receive amounts payable by a Dealer from time to
time in respect of such Dealer's purchase of New Vehicles manufactured or
distributed by Ford pursuant to the related Sales and Service Agreement.
"Adjustment Payment" has the meaning specified in Section 3.09(a) of the
Transfer and Servicing Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Receivables Purchase Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Amortization Event" has the meaning specified in the Indenture.
"Asset Supplement" means a supplement to this Agreement entered into by
the parties hereto pursuant to Section 2.07 in connection with the sale of
interests in Other Floorplan Assets to the Buyer.
"Assignment" has the meaning specified in Section 2.05(b).
"Business Day" means (a) any day other than (i) a Saturday or a Sunday or
(ii) another day on which banking institutions or trust companies in the State
of Michigan or the State of New York are authorized or obligated by law,
executive order or governmental decree to be closed and (b) any day specified
in an Indenture Supplement as a "Business Day."
"Buyer" means [FCAR Corp] [FCAR LLC] as buyer hereunder.
"Closing Date" has, with respect to any Series, the meaning specified in
the related Indenture Supplement.
"Collections" means, without duplication, all payments received by the
Seller or the Servicer in respect of the Receivables or, if applicable,
interests in Other Floorplan Assets, in the form of cash, checks, wire
transfers or any other form of payment.
"Collection Account" has the meaning specified in the Indenture.
"Collection Period" means, with respect to each Distribution Date, unless
otherwise provided in an Indenture Supplement, the period from and including
the first day of the preceding calendar month to and including the last day of
such calendar month.
"Common Collateral" has the meaning specified in Section 6.01(a).
"Common Vehicle Collateral" has the meaning specified in Section 6.01(a).
"Common Non-Vehicle Collateral" has the meaning specified in Section
6.01(a).
"Cut-Off Date" means [______ __, 200_].
"Dealer" means a Person engaged generally in the business of purchasing
Vehicles from a manufacturer or distributor thereof and holding such Vehicles
for sale or lease in the ordinary course of business.
"Defaulted Receivable" means each Receivable that on any date of
determination has been charged off as uncollectible in respect of the
immediately preceding Collection Period in accordance with the Servicer's
customary and usual procedures for servicing dealer floorplan receivables that
are comparable to the Receivables.
["Designated Jurisdictions" means the following states (and the District
of Columbia): Alabama, Arkansas, Connecticut, Delaware, District of Columbia,
Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New
York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Vermont, Virginia and West Virginia. Subject to the satisfaction of
the Rating Agency Condition, FCAR LLC may amend the definition of "Designated
Jurisdictions" without the prior consent of the Noteholders or any Series
Enhancers.]
["Designated Jurisdictions" means the following states: Alaska, Arizona,
California, Colorado, Hawaii, Idaho, Illinois, Kansas, Minnesota, Montana,
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota,
Texas, Utah, Washington, Wisconsin and Wyoming. Subject to the satisfaction of
the Rating Agency Condition, FCAR Corp may amend the definition of "Designated
Jurisdictions" without the prior consent of the Noteholders or any Series
Enhancers.]
"Determination Date" means, with respect to any Distribution Date, the
day that is two Business Days before such Distribution Date.
"Distribution Date" means, with respect to any Series, the date specified
in the related Indenture Supplement.
"Eligible Account" means each individual floorplan financing account
established with a Dealer pursuant to a Floorplan Financing Agreement in the
ordinary course of business that, as of the date of determination with respect
thereto:
(a) is in existence and maintained and serviced by or on behalf of
the Seller;
(b) is in favor of a Dealer whose principal place of business is
located in one of the Designated Jurisdictions;
(c) is in favor of a Dealer in which Ford or any Affiliate of Ford
does not have an equity investment exceeding 5% as determined by the
Servicer on a quarterly basis, beginning on [__________];
(d) is in favor of a Dealer that has not been classified by the
Servicer as "status" (or comparable classification) under the Floorplan
Financing Guidelines by reason of the Dealer's failure to make any
principal or interest payment when due under the related Floorplan
Financing Agreement or by reason of the occurrence of the bankruptcy,
insolvency, receivership, liquidation or other similar events relating to
the Dealer; and
(e) is an Account in respect of which no material amounts have been
charged off as uncollectible at any time within the previous two years.
"Eligible Receivable" means each Receivable that:
(a) was originated or acquired by the Seller in the ordinary course
of business;
(b) is secured by a perfected first priority interest in the related
Vehicle;
(c) is the subject of a valid sale and assignment from the Seller to
the Buyer of all the Seller's rights and interest in such Receivable,
including (i) all Related Security, (ii) all related rights under, as
applicable, the Sales and Service Agreement, the Sale and Assignment
Agreement and the Floorplan Financing Agreement and (iii) all related
proceeds;
(d) is created in compliance with all requirements of applicable law
and pursuant to, as applicable, the Sales and Service Agreement, the Sale
and Assignment Agreement or the Floorplan Financing Agreement;
(e) as to which Ford and Ford Credit, as applicable, have obtained
all material consents and governmental authorizations required to be
obtained by them in connection with (i) the creation of the Receivable,
the sale of the Receivable to the Buyer, the transfer of the Receivable
to the Issuer and the pledge of the Receivable to the Indenture Trustee
and (ii) if applicable, Ford's performance of the related Sales and
Service Agreement, Ford's performance of the related Sale and Assignment
Agreement and/or Ford Credit's performance of the related Floorplan
Financing Agreement;
(f) as to which the Buyer and the Issuer will at all times have good
and marketable title, free and clear of all Liens arising before the
transfer to the Issuer or arising at any time, other than Liens permitted
under this Agreement;
(g) except for any Adjustment Fees payable by ▇▇▇▇, ▇▇▇▇ at all
times be the legal and assignable payment obligation of the related
Dealer, enforceable against such Dealer in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy or other
similar laws;
(h) as to any Adjustment Fees payable by ▇▇▇▇, ▇▇▇▇ at all times be
the legal and assignable payment obligation of Ford, enforceable against
Ford in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy or other similar laws;
(i) is not subject to any right of rescission, setoff or any other
defense of the related Dealer or Ford, as applicable, including defenses
arising out of violations of usury laws;
(j) as to which ▇▇▇▇, ▇▇▇▇ Credit and the Buyer, as applicable, have
satisfied in all material respects all of their obligations required to
be satisfied by them;
(k) as to which none of ▇▇▇▇, ▇▇▇▇ Credit or the Buyer, as
applicable, has taken or failed to take any action which would impair the
rights of the Issuer or the Noteholders in the Receivable; and
(l) constitutes either a "general intangible," an "account," a
"payment intangible" or "chattel paper," each as defined in Article 9 of
the UCC in effect in the applicable jurisdiction.
["FCAR Corp" means Ford Credit Auto Receivables Corporation, a Delaware
corporation, and its successors.]
["FCAR LLC" means Ford Credit Auto Receivables LLC, a Delaware limited
liability company, and its successors.]
"Fleet Receivables" means all amounts shown on the Servicer's records as
amounts payable by any Dealer designated by the Seller as a "fleet dealer" in
respect of advances made by the Seller to such Dealer or advances made by Ford
or other originator of such receivable to such Dealer and purchased by the
Seller.
"Floorplan Financing Agreement" means, collectively, the group of related
agreements between and among the Seller (either as the originator of a
floorplan financing account or by virtue of an assignment and assumption by
the Seller from the applicable originator of such account), the Dealer with
respect thereto and, in the case of New Vehicles, a Manufacturer, pursuant to
which (a) the Seller agrees to extend credit to such Dealer to finance New
Vehicles and/or Used Vehicles manufactured or distributed by such
Manufacturer, (b) the Seller has a security interest in the specific Vehicles
financed by the Seller, certain other Vehicles, certain other collateral and
the proceeds thereof, (c) such Dealer agrees to repay advances made by the
Seller at the time of Vehicle sale or lease and (d) the obligations of such
Dealer to repay such advances is evidenced by one or more promissory notes of
such Dealer.
"Floorplan Financing Guidelines" means the written policies and
procedures of Ford Credit, as such policies and procedures may be amended from
time to time, (a) relating to the operation of its floorplan financing
business, including the written policies and procedures for determining the
interest rate charged to Dealers, the other terms and conditions relating to
Ford Credit's floorplan financing accounts, the creditworthiness of Dealers
and the extension of credit to Dealers, (b) relating to the maintenance of
accounts and collection of receivables and (c) relating to the cash management
accounts maintained by Ford Credit on behalf of Dealers.
"Ford" means Ford Motor Company, a Delaware corporation, and its
successors.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation,
and its successors.
"Governmental Authority" means the United States of America, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indenture" means the Indenture, dated as of [____________], 200[_],
between the Issuer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indenture Supplement" has the meaning specified in the Indenture.
"Indenture Trustee" means [Indenture Trustee], in its capacity as
indenture trustee under the Indenture, its successors in interest and any
successor indenture trustee under the Indenture.
"Ineligible Account" means, as of any date of determination, each Account
that is not an Eligible Account on such date.
"Ineligible Receivable" means, as of any date of determination, each
Receivable that is not an Eligible Receivable on such date.
"Initial Account" means a floorplan financing account established with a
Dealer pursuant to a Floorplan Financing Agreement that is identified in the
Initial Account Schedule.
"Initial Account Schedule" has the meaning specified in Section
2.01(e)(ii).
"Insolvency Event" has the meaning specified in the Indenture.
"Issuer" means Ford Credit Floorplan Master Owner Trust [__], the corpus
of which consists of the Trust Assets.
"Insurance Proceeds" has the meaning specified in the Transfer and
Servicing Agreement.
"Interest Receivables" means, in connection with an Account:
(a) all amounts billed and payable by the related Dealer under the
Receivables in such Account pursuant to the related Floorplan Financing
Agreement between such Dealer and Ford Credit in respect of (i) interest
and (ii) other non-principal and non-interest charges, including flat
charges established by Ford Credit from time to time to cover miscellaneous
costs; and
(b) all Adjustment Fees described in clause (b) of the definition of
"Receivable."
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"Manufacturer" means, with respect to any Receivable, the manufacturer or
distributor of the Vehicle related to such Receivable.
"Net Adjusted Pool Balance" has the meaning specified in the Indenture.
"New Vehicle" means any Vehicle that is (i) a currently untitled Vehicle
or (ii) a previously titled Vehicle purchased by a Dealer at a closed auction
conducted by Ford or (iii) a Vehicle previously subject to a retail lease
under one of Ford Credit's retail lease programs that a Dealer has acquired
pursuant to the Dealer's purchase option relating to such lease.
"Nonfloorplan Agreement" has the meaning specified in Section 6.01(a).
"Noteholder" or "Holder" means the Person in whose name a Note is
registered on the Note Register and, if applicable, the holder of any Bearer
Note or Coupon, as the case may be, or such other Person deemed to be a
"Noteholder" or "Holder" in the related Indenture Supplement.
"Notes" means the Asset Backed Notes issued by the Issuer pursuant to the
Indenture and the Indenture Supplements.
"Notice Date" has the meaning specified in Section 2.05(a).
"Officer's Certificate" means (a) with respect to any corporation, unless
otherwise specified in this Agreement, a certificate signed by the Chairman of
the Board, Vice Chairman of the Board, President, any Vice President, a
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary of such
corporation and (b) with respect to any limited liability company, unless
otherwise specified in this Agreement, a certificate signed by any Manager,
the President, any Vice President, Treasuer, Assistant Treasurer, Secretary or
Assistant Secretary of such limited liability company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion and who is
reasonably acceptable to the Indenture Trustee.
"Other Floorplan Assets" means, collectively, any Pooled Participation
Receivables, Purchased Participation Receivables, Syndicated Receivables or
Third-Party Financed In-Transit Receivables.
"Owner Trustee" means [Owner Trustee], a Delaware banking corporation, in
its capacity as owner trustee under the Trust Agreement, its successors in
interest and any successor owner trustee under the Trust Agreement.
"Person" means any legal person, including any individual, corporation,
partnership, association, joint-stock company, limited liability company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pooled Participation Receivables" means receivables that are originated
by Ford Credit under Floorplan Financing Agreements and transferred by Ford
Credit, directly or indirectly, into a pool of assets existing outside of the
Issuer, in which such pool Ford Credit owns an undivided participation
interest issued under agreements similar to the Transaction Documents.
"Principal Receivables" means, in connection with an Account, the amounts
shown on the Servicer's records as Receivables (other than amounts
representing Interest Receivables) that are payable by the related Dealer
under (a) the related Sales and Service Agreement that have been assigned by
Ford to Ford Credit pursuant to the Sale and Assignment Agreement and (b) the
related Floorplan Financing Agreement.
"Purchased Participation Receivables" means receivables originated by a
third party under a dealer floorplan financing agreement owned by such third
party, which receivables are participated to Ford Credit pursuant to a
participation or similar agreement between such third party and Ford Credit.
"Rating Agency" means, with respect to any outstanding Series or Class,
each statistical rating agency selected by the Transferor to rate the Notes of
such Series or Class, unless otherwise specified in the related Indenture
Supplement.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency has notified the Transferor, the Servicer, the Issuer and the
Indenture Trustee in writing that such action will not result in a reduction
or withdrawal of the then existing rating of any outstanding Series or Class
rated by such Rating Agency.
"Receivable" means, in connection with an Account, all amounts shown on
the Servicer's records as:
(a) amounts payable by the related Dealer in respect of such
Dealer's purchase of a New Vehicle manufactured or distributed by Ford
pursuant to the related Sales and Service Agreement, but only if the
payment of such amounts upon delivery of such New Vehicle to such Dealer
will be financed by Ford Credit pursuant to the Floorplan Financing
Agreement establishing such Account;
(b) Adjustment Fees payable by Ford to Ford Credit in respect of the
amounts payable, as described in clause (a) above, that have been
purchased by Ford Credit from Ford pursuant to the Sale and Assignment
Agreement; and
(c) amounts payable by the related Dealer in respect of an advance
made by the Seller to finance such Dealer's purchase of a Vehicle under
the related Floorplan Financing Agreement;
together with, in the case of each of clauses (a), (b) and (c) above, the
group of agreements and other writings evidencing such amounts and the
security interest created in connection therewith. A Receivable that becomes a
Defaulted Receivable will not be shown on the Servicer's records as amounts
payable (and will cease to be included as a Receivable) on the day on which it
becomes a Defaulted Receivable. Additionally, notwithstanding anything to the
contrary in this Agreement, the term "Receivable" excludes any Fleet
Receivables and any amounts shown on the Servicer's records with respect to an
Account that do not relate to a Vehicle.
"Recoveries" means, with respect to any Determination Date, all amounts
received, including Insurance Proceeds, by the Servicer during the Collection
Period immediately preceding such Determination Date with respect to Defaulted
Receivables or, if applicable, interests in Other Floorplan Assets that have
defaulted.
"Related Security" means, with respect to any Receivable, (a) the
security interest granted by or on behalf of the related Dealer with respect
thereto, including a first priority perfected security interest in the related
Vehicle, certain parts inventory, equipment, fixtures, service accounts or
realty with respect to such Dealer and all guarantees of such Receivable and
(b) in the case of a Receivable described in clause (a) of the definition of
"Receivable," all of the Seller's rights, remedies, powers and privileges with
respect to such Receivable under the Sale and Assignment Agreement.
"Repurchase Price" means, with respect to any Receivable for any date on
which such Receivable is to be repurchased pursuant to Section 2.03(c), an
amount equal to the sum of (a) the amount payable by the Dealer in respect
thereof as reflected in the records of the Servicer as of such date and (b)
without duplication, if applicable, (i) the Adjustment Payment with respect
thereto or (ii) all accrued and unbilled interest from the last date in
respect of which interest on such Receivable was billed by the Servicer, at a
per annum rate equal to the rate being charged to the Dealer under the related
Floorplan Financing Agreement.
"Required Pool Balance" has the meaning specified in the Indenture.
"Requirements of Law" for any Person means the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding
upon such Person or to which such Person is subject, whether federal, state or
local (including usury laws and the federal Truth in Lending Act).
"Sale and Assignment Agreement" means the Amended and Restated Sale and
Assignment Agreement, dated as of [_________, 2001], between Ford and Ford
Credit pursuant to which (a) Ford assigns to Ford Credit the right to receive
amounts payable by a Dealer to Ford from time to time in respect of such
Dealer's purchase of New Vehicles manufactured or distributed by Ford pursuant
to the related Sales and Service Agreement, (b) Ford agrees to pay Ford Credit
the related Adjustment Fees in respect of such assignment and (c) Ford assigns
to Ford Credit the security interest granted to Ford by such Dealer in such
New Vehicles, as the same may be amended, supplemented or otherwise modified
from time to time.
"Sales and Service Agreement" means each Sales and Service Agreement,
together with any related Vehicle Terms of Sale Bulletin, between a Dealer and
Ford pursuant to which, among other things, such Dealer purchases from time to
time Vehicles from Ford and, in the case of New Vehicles, (a) such Dealer
agrees to pay for such purchases upon the later to occur of (i) the date of
delivery of such New Vehicles to such Dealer and (ii) the date on which the
invoice price for any such New Vehicle is finalized (not to exceed 30 days
following delivery) and (b) such Dealer grants to Ford a security interest in
the specific New Vehicles purchased, but not yet paid for, by such Dealer, as
the same may be amended, supplemented or otherwise modified from time to time.
"Seller" means Ford Credit as seller hereunder.
"Series" means any series of Notes issued pursuant to the Indenture and
the related Indenture Supplement.
"Series Account" means any deposit, trust, escrow, reserve or similar
account maintained for the benefit of the Noteholders of any Series or Class,
as specified in the related Indenture Supplement.
"Series Cut-Off Date" has, with respect to any Series, the meaning
specified in the related Indenture Supplement.
"Series Enhancements" has the meaning specified in the Indenture.
"Series Enhancer" has the meaning specified in the Indenture.
"Servicer" means, initially, Ford Credit, in its capacity as servicer
under this Agreement and, after any Servicing Transfer, the Successor
Servicer.
"Servicing Fee" has the meaning specified in Section 3.02(a) of the
Transfer and Servicing Agreement.
"Successor Servicer" has the meaning specified in Section 6.02(a) of the
Transfer and Servicing Agreement.
"Syndicated Receivables" means receivables that are originated by Ford
Credit under a syndicated floorplan financing arrangement between a Dealer and
a group of lenders, one of which is Ford Credit.
"Third-Party Financed In-Transit Receivables" means receivables
representing the payment obligations of Dealers arising from their purchases
of New Vehicles of which Ford is the Manufacturer and for which Ford Credit
will not be such Dealers' finance source.
"Transaction Documents" has the meaning specified in the Indenture.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of [_______ __, 200_], among the Transferor, the Servicer
and the Issuer, as the same may be amended, supplemented or otherwise modified
from time to time.
"Transfer Date" has the meaning specified in Section 2.01(a).
"Transferor" means [FCAR Corp] [FCAR LLC] and its successors and assigns
permitted under the Transfer and Servicing Agreement.
"Transferor Interest" has the meaning specified in the Indenture.
"Trust Agreement" means the Trust Agreement relating to the Issuer, dated
as of [______ __, 200_], among [FCAR Corp] [, FCAR LLC] and the Owner Trustee,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Trust Assets" has the meaning specified in the Indenture.
"Trust Termination Date" has the meaning specified in the Trust
Agreement.
"UCC" means the Uniform Commercial Code, as amended from time to time, as
in effect in any specified jurisdiction.
"Used Vehicle" means any Vehicle other than a New Vehicle.
"Vehicle" means an automobile or light-duty truck.
"Vice President" when used with respect to the Servicer means any vice
president whether or not designated by a number or word or words added before
or after the title "vice president."
Section 1.02. Other Definitional Provisions.
(a) All terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Transfer and Servicing Agreement, the Trust
Agreement, the Indenture or, with respect to any Series, the related Indenture
Supplement, as applicable.
(b) All terms defined in this Agreement have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, have the respective meanings given to them
under generally accepted accounting principles or regulatory accounting
principles, as applicable and as in effect on the date of this Agreement. To
the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles or regulatory
accounting principles in the United States, the definitions contained in this
Agreement or in any such certificate or other document will control.
(d) Any reference to each Rating Agency only applies to any specific
rating agency if such rating agency is then rating any outstanding Series.
(e) Unless otherwise specified, references to any dollar amount on any
particular date mean such amount at the close of business on such day.
(f) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement refer to this Agreement as a whole and not
to any particular provision of this Agreement. References to any subsection,
Section, Schedule or Exhibit are references to subsections, Sections,
Schedules and Exhibits in or to this Agreement, unless otherwise specified.
The term "including" means "including without limitation."
ARTICLE II
SALE OF RECEIVABLES
Section 2.01. Sale of Receivables.
(a) By execution of this Agreement, the Seller does hereby:
(i) on the first Closing Date, sell, transfer, assign, set over and
otherwise convey, without recourse, to the Buyer (A) all of its right,
title and interest in, to and under each Receivable arising in connection
with each Initial Account and all Related Security with respect thereto
owned by the Seller at the close of business on the Cut-Off Date and (B)
all monies due or to become due and all amounts received with respect
thereto and all proceeds (including "proceeds," as defined in the UCC as
in effect in the applicable jurisdiction) and Recoveries thereof;
(ii) on the applicable Addition Date, sell, transfer, assign, set
over and otherwise convey, without recourse, to the Buyer (A) all of its
right, title and interest in, to and under each Receivable arising in
connection with each Additional Account and all Related Security with
respect thereto owned by the Seller at the close of business on the
applicable Additional Cut-Off Date and (B) all monies due or to become
due and all amounts received with respect thereto and all proceeds
(including "proceeds," as defined in the UCC as in effect in the
applicable jurisdiction) and Recoveries thereof; and
(iii) on each Business Day occurring before the earlier of (x) the
occurrence of a Trust Amortization Event specified in Section 5.01(ii) of
the Indenture or (y) the Trust Termination Date, on which day a new
Receivable is created in connection with the Accounts (each such Business
Day being a "Transfer Date"), sell, transfer, assign, set over and
otherwise convey, without recourse, to the Buyer (A) all of its right,
title and interest in, to and under such Receivable and all Related
Security with respect thereto owned by the Seller at the close of
business on the applicable Transfer Date and not previously sold to the
Buyer pursuant hereto and (B) all monies due or to become due and all
amounts received with respect thereto and all proceeds (including
"proceeds," as defined in the UCC as in effect in the applicable
jurisdiction) and Recoveries thereof.
(b) The foregoing sale, transfer, assignment, set-over and conveyance,
and any subsequent sales, transfers, assignments, set-overs and conveyances of
additional assets (including interests in any Other Floorplan Assets), do not
constitute, and are not intended to result in, the creation, or an assumption
by the Buyer, of any obligation of the Servicer, the Seller, Ford or any other
Person in connection with the Accounts, the related Receivables, the Other
Floorplan Assets or under any agreement or instrument relating thereto,
including any obligation to any Dealers or Ford. The foregoing sales,
transfers, assignments, set-overs and conveyances are not sales, transfers,
assignments, set-overs and conveyances of the Accounts; they are sales,
transfers, assignments, set-overs and conveyances of the Receivables arising
in connection therewith.
(c) In connection with such sales, the Seller will record and file, at
its own expense, a financing statement on form UCC-1 or any other applicable
form (and continuation statements when applicable) naming the Seller as
"seller" and the Buyer as "buyer" thereon with respect to the Receivables now
existing and hereafter created for the sale of chattel paper, payment
intangibles, general intangibles or accounts (as defined in the UCC as in
effect in the applicable jurisdiction) meeting the requirements of applicable
law in such manner and in such jurisdictions as are necessary to perfect the
sale and assignment of the Receivables and the Related Security to the Buyer,
and to deliver a file-stamped copy of such financing statements or other
evidence of such filing to the Buyer on or before the first Closing Date, in
the case of the Initial Accounts, and (if any additional filing is necessary)
the applicable Addition Date, in the case of Additional Accounts. The Buyer is
under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other
filing under applicable law in connection with such sales.
(d) The Seller and the Buyer intend that all transfers of Receivables
under this Agreement constitute sales of the Receivables and not transfers for
security for a loan. However, if the transfers of the Receivables hereunder
were to be characterized as transfers for security and not as sales, then (i)
the Seller will have granted, and hereby grants, to the Buyer a security
interest in each Receivable, the Related Security and all monies due or to
become due and all amounts received with respect thereto and all proceeds
(including "proceeds," as defined in the UCC as in effect in the applicable
jurisdiction) and Recoveries thereof and (ii) this Agreement constitutes a
security agreement.
(e) In connection with such sales, at its own expense, on or before the
first Closing Date, in the case of the Initial Accounts, and on or before the
applicable Addition Date, in the case of Additional Accounts, the Seller will:
(i) indicate in its computer files that the Receivables arising in
connection with the Accounts and the Related Security: (A) have been sold
or assigned, as the case may be, to the Buyer pursuant to this Agreement,
then (B) transferred by the Buyer to the Issuer pursuant to the Transfer
and Servicing Agreement and then (C) pledged by the Issuer to the
Indenture Trustee for the benefit of the Noteholders and any Series
Enhancers pursuant to the Indenture;
(ii) in the case of the Initial Accounts, deliver to the Buyer a
computer file or written list of such Initial Accounts specifying the
identity of such Initial Accounts and the Principal Receivables arising
in connection therewith as of the Cut-Off Date (such file or list, the
"Initial Account Schedule"); and
(iii) in the case of Additional Accounts, deliver to the Buyer a
computer file or written list of such Additional Accounts specifying the
identity of such Additional Accounts and the Principal Receivables
arising in connection therewith as of the Additional Cut-Off Date (such
file or list, an "Additional Account Schedule").
The Account Schedule as amended, supplemented or otherwise modified from time
to time will be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement.
(f) In consideration for the sale of $[________] of the Receivables,
together with the Related Security, sold to the Buyer on the first Closing
Date, the Buyer will pay to the Seller cash and other valuable consideration.
The purchase price for the Receivables sold pursuant to this Agreement will be
a price agreed to by the Buyer and the Seller at the time of acquisition by
the Buyer. The purchase price will not be materially less favorable than
prices for transactions of a generally similar character at the time of the
acquisition, taking into account the quality of such Receivables, the Seller's
cost of originating such Receivables and a reasonable return on such costs,
and other pertinent factors; provided that such consideration will in any
event not be less than reasonably equivalent value therefor.
Section 2.02. Representations and Warranties of Seller Relating to Itself
and This Agreement.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer as of each Closing Date (unless another date is
specified below) that:
(i) Organization and Good Standing. The Seller is a corporation duly
organized and validly existing and in good standing under the laws of the
State of Delaware and has, in all material respects, full power,
authority and legal right to own its properties and conduct its business
as such properties are currently owned and such business is currently
conducted, and to execute, deliver and perform its obligations under this
Agreement.
(ii) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction where the conduct of its business requires
such qualification, except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on its
ability to perform its obligations hereunder.
(iii) Due Authorization. The Seller has duly authorized by all
necessary action on its part the execution and delivery of this Agreement
and the consummation of the transactions provided for or contemplated by
this Agreement.
(iv) No Conflict. The Seller's execution and delivery of this
Agreement, its performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to it, will
not conflict with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any material indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the
Seller is a party or by which it or its properties are bound.
(v) No Violation. The Seller's execution and delivery of this
Agreement, its performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to it, will
not conflict with or violate any material Requirements of Law applicable
to it.
(vi) No Proceedings. There are no proceedings pending or, to the
best of its knowledge, no proceedings threatened or investigations
pending or threatened against the Seller before or by any Governmental
Authority (A) asserting the invalidity of this Agreement, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, (C) seeking any determination or ruling that, in its
reasonable judgment, would materially and adversely affect the
performance of its obligations under this Agreement, (D) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or (v) seeking to affect
adversely the income tax characterization of the Issuer under the United
States federal or any other applicable state or local jurisdiction's
income, single business or franchise tax systems.
(vii) All Consents Required. All material authorizations, consents,
orders, approvals or other actions of any Governmental Authority required
to be obtained or effected by the Seller in connection with its execution
and delivery of this Agreement, its performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
applicable to it, have been obtained or effected.
(viii) Enforceability. This Agreement constitutes a legal, valid and
binding obligation of the Seller, enforceable against it in accordance
with the terms hereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
(ix) Account Schedule. As of the Cut-Off Date, the Initial Account
Schedule is an accurate and complete listing in all material respects of
all the Initial Accounts and the information contained therein with
respect to the identity of such Initial Accounts and the Principal
Receivables arising in connection therewith is true and correct in all
material respects. As of the applicable Additional Cut-Off Date, the
Additional Account Schedule is an accurate and complete listing in all
material respects of all the related Additional Accounts and the
information contained therein with respect to the identity of such
Additional Accounts and the Principal Receivables arising in connection
therewith is true and correct in all material respects.
(x) Valid Sale. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller in
the Receivables and the Related Security and the proceeds thereof and,
upon the filing of the financing statements described in Section 2.01
and, in the case of the Receivables and the Related Security hereafter
created and the proceeds thereof, upon the creation thereof, the Buyer
will have a first priority perfected ownership interest in such property.
Except as otherwise provided in the Transfer and Servicing Agreement or
the Indenture, neither the Seller nor any Person claiming through or
under it has any claim to or interest in the Trust Assets.
(b) Notice of Breach. The representations and warranties set forth in
Section 2.02(a) will survive the sale and assignment of the Receivables and
Related Security to the Buyer. Upon discovery by the Seller or the Buyer of a
material breach of any of the foregoing representations and warranties, the
party discovering such breach will give prompt written notice to the other
party.
(c) Repurchase upon Breach. If a breach of any of the representations and
warranties set forth in Section 2.02(a) results in the Buyer's obligation to
accept reassignment pursuant to Section 2.03(c) of the Transfer and Servicing
Agreement of all the Receivables that it transferred to the Issuer, then the
Seller will repurchase all such Receivables. In such event, the Seller will
repurchase such Receivables on the Business Day immediately preceding the
Distribution Date on which the Buyer is required to accept reassignment of
such Receivables pursuant to the Transfer and Servicing Agreement. The Seller
will repurchase such Receivables by making a payment to the Buyer, in
immediately available funds, an amount not less than the purchase price for
such Receivables as specified in the Transfer and Servicing Agreement. Upon
payment of such purchase price and reassignment of such Receivables to the
Buyer in accordance with the Transfer and Servicing Agreement, the Buyer will
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Seller, without recourse, representation
or warranty, all the right, title and interest of the Buyer in and to such
Receivables, all Related Security and all monies due or to become due with
respect thereto and all proceeds thereof. The Buyer will execute such
documents and instruments of sale or assignment mutually agreed to by the
Buyer and the Seller. The Buyer will also take such other actions as are
reasonably requested by the Seller to effect the conveyance of such
Receivables. The Seller's obligation to repurchase the Receivables pursuant to
this Section 2.02(c) constitutes the sole remedy with respect to the event of
the type specified in the first sentence of this Section 2.02(c) available to
the Buyer and to the Noteholders (or the Owner Trustee, any Series Enhancer or
the Indenture Trustee on behalf of the Noteholders).
Section 2.03. Representations and Warranties of Seller Relating to
Receivables and Accounts.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer that:
(i) As of the first Closing Date, the Addition Date or the Transfer
Date, as the case may be, each Receivable and its Related Security sold
by it to the Buyer on such date, are being sold free and clear of any
Lien, and all consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by the Seller in connection with the sale
of such Receivable and Related Security on such date have been duly
obtained, effected or given and are in full force and effect.
(ii) (A) Each Initial Account is an Eligible Account as of the
Cut-Off Date and (B) each Additional Account is an Eligible Account as of
the applicable Additional Cut-Off Date and (C) each Account is an
Eligible Account as of each Series Cut-Off Date.
(iii) As of the first Closing Date, the Addition Date or the
Transfer Date, as the case may be, each Receivable sold by the Seller to
the Buyer on such date, is an Eligible Receivable.
(b) Notice of Breach. The representations and warranties set forth in
Section 2.03(a) survive the sale and assignment of the Receivables and the
Related Security to the Buyer. Upon discovery by the Seller or the Buyer of a
material breach of any of the foregoing representations and warranties, the
party discovering such breach will give prompt written notice to the other
party.
(c) Repurchase upon Breach. If any of the representations and warranties
set forth in Section 2.03(a) is not true and correct as of the date specified
therein with respect to a Receivable and, in connection therewith, the Buyer
is obligated to accept reassignment pursuant to Section 2.04(c) of the
Transfer and Servicing Agreement of such Receivable, then the Seller will
repurchase such Receivable. In such event, the Seller will pay an amount not
less than the Repurchase Price for the repurchase of such Receivable on the
Business Day immediately preceding the Determination Date on which the Buyer
is required to accept reassignment pursuant to the Transfer and Servicing
Agreement. The Seller will repurchase such Receivable by making a payment to
the Buyer, in immediately available funds, in an amount equal to the
Repurchase Price for such Receivable. Upon payment of such purchase price and
reassignment of such Receivables to the Buyer in accordance with the Transfer
and Servicing Agreement, the Buyer will automatically and without further
action be deemed to sell, transfer, assign, set over and otherwise convey to
the Seller, without recourse, representation or warranty, all the right, title
and interest of the Buyer in and to such Receivable, all Related Security and
all monies due or to become due with respect thereto and all proceeds thereof.
The Buyer will execute such documents and instruments of sale or assignment
mutually agreed to by the Buyer and the Seller. The Buyer will also take such
other actions as are reasonably requested by the Seller to effect the
conveyance of such Receivable. The Seller's obligation to repurchase a
Receivable or all the Receivables with respect to an Account pursuant to this
Section 2.03(c) constitutes the sole remedy with respect to the event of the
type specified in the first sentence of this Section 2.03(c) available to the
Buyer and to the Noteholders (or the Owner Trustee, any Series Enhancer or the
Indenture Trustee on behalf of the Noteholders).
Section 2.04. Covenants of Seller.
The Seller hereby covenants that:
(i) No Liens. Except for the conveyances hereunder or as provided in
the Transaction Documents, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer
to exist any Lien on, any Receivable or any Related Security, whether now
existing or hereafter created, or any interest therein, and the Seller
will defend the right, title and interest of the Buyer, the Issuer and
the Indenture Trustee in, to and under such Receivables and the Related
Security, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties
claiming through or under the Seller.
(ii) Floorplan Financing Agreements and Guidelines. The Seller will
comply with and perform its servicing obligations with respect to the
Accounts and the Receivables in accordance with the applicable Floorplan
Financing Agreements relating to the Accounts and the applicable
Floorplan Financing Guidelines, except insofar as any failure to so
comply or perform would not materially and adversely affect the rights of
the Buyer, the Issuer, the Noteholders or any Series Enhancers. Subject
to compliance with all Requirements of Law, the Seller, in its capacity
of Servicer, may change the terms and provisions of the Floorplan
Financing Agreement or the Floorplan Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and
the rate of the finance charge assessed thereon) only if such change
would be permitted pursuant to Section 3.01(d) of the Transfer and
Servicing Agreement.
(iii) Account Allocations. If the Seller is unable for any reason to
sell Receivables to the Buyer, then the Seller will allocate, after the
occurrence of such event, payments on each related Account in accordance
with the terms of the Transfer and Servicing Agreement.
(iv) Delivery of Collections. If the Seller or any Affiliate thereof
receives payments in respect of the Receivables, the Seller will pay or
cause to be paid to the Servicer or any Successor Servicer all such
payments as soon as practicable after receipt, but in no event later than
two Business Days after receipt.
(v) Notice of Liens. The Seller will notify the Buyer, the Owner
Trustee and the Indenture Trustee promptly after becoming aware of any
Lien on any Receivable sold by the Seller other than the Liens permitted
under the Transaction Documents.
(vi) Compliance with Law. The Seller will comply in all material
respects with all Requirements of Law applicable to it.
Section 2.05. Designation of Additional Accounts.
(a) The Seller may from time to time offer to designate additional
Eligible Accounts as Accounts, subject to the conditions specified in
paragraph (b) below. If any such offer is accepted by the Buyer, Receivables
and the Related Security arising in connection with such Additional Accounts
will be sold to the Buyer effective on a date (the "Addition Date") specified
in a written notice provided by the Seller (or the Servicer on its behalf) to
the Buyer and any Series Enhancers specifying the Additional Cut-Off Date and
the Addition Date for such Additional Accounts (the "Addition Notice") on or
before the second Business Day but not more than the 30th day before the
related Addition Date (the "Notice Date").
(b) The Seller will be permitted to sell to the Buyer the Receivables and
all Related Security in any Additional Accounts designated by the Seller as
such pursuant to Section 2.05(a) only upon satisfaction of each of the
following conditions on or before the related Addition Date:
(i) the Seller has provided the Buyer with a timely Addition Notice;
(ii) the Seller has delivered to the Buyer a duly executed written
assignment (including an acceptance by the Buyer) in substantially the
form of Exhibit A (the "Assignment"), along with the applicable
Additional Account Schedule in accordance with Section 2.01(e)(iii);
(iii) the Seller has delivered to the Servicer all Collections with
respect to such Additional Accounts since the Additional Cut-Off Date;
(iv) the Seller has represented and warranted that:
(A) each such Additional Account is an Eligible Account as of
the Additional Cut-Off Date;
(B) no selection procedures reasonably believed by the Seller
to be adverse to the interests of the Buyer, the Noteholders or any
Series Enhancers were used in selecting such Additional Accounts;
(C) the Additional Account Schedule delivered pursuant to
clause (ii) above is true and correct in all material respects as of
the Additional Cut-Off Date;
(D) as of each of the Notice Date and the Addition Date, the
Seller is not insolvent nor will be made insolvent by such sale and
it is not aware of any events or circumstances that could reasonably
be expected to lead to its insolvency; and
(E) the addition of the Receivables arising in connection with
such Additional Accounts will not, in the reasonable belief of the
Seller, cause an Amortization Event to occur;
(v) the Seller has delivered to the Buyer an Opinion of Counsel with
respect to the Receivables in the Additional Accounts substantially in
the form of Exhibit C; and
(vi) the Seller has delivered to the Buyer an Officer's Certificate
confirming, to the best of such officer's knowledge, the satisfaction of
each of the conditions set forth in clauses (i) through (v) above. The
Buyer may conclusively rely on such Officer's Certificate and has no duty
to make inquiries with regard to the matters set forth therein and will
incur no liability in so relying.
(c) The Seller hereby represents and warrants on each applicable Addition
Date as to the matters set forth in clause (iv) of Section 2.05(b). These
representations and warranties will survive the sale and assignment of the
respective Receivables and the Related Security to the Buyer. Upon discovery
by the Seller or the Buyer of a breach of any of the foregoing representations
and warranties, the party discovering the breach will give prompt written
notice to the other party and to any Series Enhancers. If any such breach has
a material adverse effect on the related Receivable, the provisions of Section
2.03(c) will apply.
Section 2.06. Addition of Interests in Other Floorplan Assets.
Subject to the satisfaction of the Rating Agency Condition, the Seller
may from time to time enter into an Asset Supplement to this Agreement with
the Buyer for the purpose of providing such amendments or additional
provisions necessary to permit the Seller to sell its interests in Other
Floorplan Assets to the Buyer.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to
Servicer.
(a) The Seller agrees to act as the Servicer under this Agreement and the
Transfer and Servicing Agreement, and the Buyer consents to the Seller acting
as the Servicer. The Seller will have ultimate responsibility for servicing,
managing and making collections on the Receivables and will have the authority
to make any management decisions relating to such Receivables, to the extent
such authority is granted to the Servicer under this Agreement and the
Transfer and Servicing Agreement.
(b) The Servicer will service and administer the Receivables in
accordance with the provisions of the Transfer and Servicing Agreement, the
Indenture and Indenture Supplements.
Section 3.02. Servicing Compensation.
As full compensation for its servicing activities hereunder and under the
Transfer and Servicing Agreement, the Servicer is entitled to receive the
Servicing Fee on each Distribution Date. The Servicing Fee will be paid in
accordance with the terms of the Transfer and Servicing Agreement, the
Indenture and Indenture Supplements.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.01. Merger or Consolidation of, or Assumption, of Obligations
of Seller.
The Seller may not dissolve, liquidate, consolidate with or merge into
any other Person or convey, transfer or sell its properties and assets
substantially as an entirety to any Person unless:
(i) the Person (if other than the Seller) formed by or surviving
such consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Seller substantially as an
entirety, as the case may be, will be organized and existing under the
laws of the United States of America or any state thereof or the District
of Columbia, and expressly assumes, by a supplemental agreement executed
and delivered to the Buyer, the Owner Trustee and the Indenture Trustee,
in form reasonably satisfactory to the Buyer and the Indenture Trustee,
the performance of every covenant and obligation of the Seller hereunder;
(ii) the Person (if other than the Seller) formed by or surviving
such consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Seller substantially as an
entirety, as the case may be, has delivered to the Buyer, the Owner
Trustee and the Indenture Trustee (with a copy to each Rating Agency) an
Officer's Certificate and an Opinion of Counsel each stating that (A)
such consolidation, merger, conveyance, transfer or sale and such
supplemental agreement provided in clause (i) above comply with this
Section, (B) such supplemental agreement is a valid and binding
obligation of such Person enforceable against such Person in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally from time to time in
effect or general principles of equity, and (C) all conditions precedent
herein provided for relating to such transaction have been complied with;
and
(iii) the Rating Agency Condition has been satisfied with respect to
such consolidation, merger, conveyance, transfer or sale.
Section 4.02. Seller Indemnification of Buyer.
The Seller will indemnify and hold harmless the Buyer, from and against
any loss, liability, expense, claim, damage or injury suffered or sustained by
the Buyer by reason of any acts, omissions or alleged acts or omissions
arising out of activities of the Seller pursuant to this Agreement or arising
out of or based on the arrangement created by this Agreement and the
activities of the Seller taken pursuant hereto, including any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim; provided, however, that the Seller is not required to indemnify the
Buyer for any loss, liability, expense, claim, damage or injury of the Buyer
resulting from acts, omissions or alleged acts or omissions that constitute
fraud, gross negligence or willful misconduct by the Buyer; and, provided,
further, that the Seller is not required to indemnify the Buyer for any loss,
liability, expense, claim, damage or injury with respect to any United States
federal, state or local income or franchise taxes or the Michigan Single
Business tax (or any interest or penalties with respect thereto) required to
be paid by the Buyer in connection herewith to any taxing authority. Any
indemnification under this Article IV survives the termination of this
Agreement.
ARTICLE V
TERMINATION
Section 5.01. Termination of Agreement.
This Agreement will terminate immediately after the legal existence of
the Issuer terminates pursuant to the Trust Agreement. In addition, the Buyer
will immediately cease purchasing Receivables and the Seller will immediately
cease selling Receivables and will designate no Additional Accounts following
the occurrence of an Insolvency Event with respect to the Seller. The Seller
will give prompt written notice to each of the Buyer, the Owner Trustee and
the Indenture Trustee immediately following the occurrence of an Insolvency
Event. Notwithstanding any cessation of the sale of Receivables to the Buyer
following an Insolvency Event, Receivables sold to the Buyer before the
occurrence of an Insolvency Event and Collections in respect of such
Receivables will continue to be property of the Buyer available for transfer
by the Buyer to the Issuer pursuant to the Transfer and Servicing Agreement.
ARTICLE VI
INTERCREDITOR PROVISIONS
Section 6.01. Nonfloorplan Agreements Between Seller and Dealer.
(a) With respect to a Dealer that is the obligor under Receivables that
have been or will be sold to the Buyer hereunder, the Seller may be or become
a lender to such Dealer under an agreement or arrangement (a "Nonfloorplan
Agreement") other than a Floorplan Financing Agreement pursuant to which the
Seller (either directly, or as assignee of the originator of the Account) has
been granted a security interest in the same collateral (the "Common
Collateral") in which the Floorplan Financing Agreement for such Dealer
creates a security interest, which Common Collateral may include the same
Vehicle (the "Common Vehicle Collateral") in which such Floorplan Financing
Agreement creates a security interest. The Common Collateral other than the
related Common Vehicle Collateral is referred to herein as the "Common
Non-Vehicle Collateral."
(b) The Seller agrees that with respect to each Receivable of each such
Dealer (i) the security interest in such Common Vehicle Collateral granted to
the Seller pursuant to any Nonfloorplan Agreement is junior and subordinate to
the security interest created by the related Floorplan Financing Agreement,
(ii) the Seller has no legal right to realize upon such Common Vehicle
Collateral or exercise its rights under the Nonfloorplan Agreement in any
manner that is materially adverse to the Buyer, the Issuer or the Noteholders
in respect of the Common Vehicle Collateral until all required payments in
respect of such Receivable under the Floorplan Financing Agreement have been
paid and (iii) in realizing upon such Common Vehicle Collateral, neither the
Buyer nor the Issuer will have any obligation to protect or preserve the
rights of the Seller in such Common Vehicle Collateral.
(c) The Buyer agrees that with respect to each Receivable of each such
Dealer (i) the security interest in such Common Non-Vehicle Collateral created
by the Floorplan Financing Agreement and hereby assigned to the Buyer is
junior and subordinate to the security interest therein created by the
Nonfloorplan Agreement, (ii) the Buyer has no legal right to realize upon such
Common Non-Vehicle Collateral or exercise its rights under the Floorplan
Financing Agreement in any manner that is materially adverse to the Seller
until all required payments in respect of the obligation created or secured by
the Nonfloorplan Agreement have been made and (iii) in realizing on such
Common Non-Vehicle Collateral, the Seller has no obligation to protect or
preserve the rights of the Buyer or the Issuer in such Common Non-Vehicle
Collateral. The Transfer and Servicing Agreement will provide that the Issuer
is subject to the preceding sentence.
(d) If the Seller in any manner assigns or transfers any rights under, or
any obligation evidenced or secured by, a Nonfloorplan Agreement, the Seller
will make such assignment or transfer subject to the provisions of this
Article VI and require such assignee or transferee to acknowledge that it
takes such assignment or transfer subject to the provisions of this Article VI
and to agree that it will require the same acknowledgment from any subsequent
assignee or transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.
(a) This Agreement may be amended from time to time by the Seller and the
Buyer without the consent of any Noteholder; provided that such amendment does
not adversely affect in any material respect the interests of any Noteholder.
The absence of any material adverse effect may be evidenced by (i)
satisfaction of the Rating Agency Condition or (ii) an Opinion of Counsel for
the Seller, addressed and delivered to the Owner Trustee and the Indenture
Trustee.
(b) This Agreement may also be amended from time to time by the Buyer and
the Seller with the consent of the Holders of Notes evidencing not less than
66-2/3% of the aggregate unpaid principal amount of the Notes of all
materially adversely affected Series, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Seller; provided,
however, that no such amendment may (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Noteholders or deposits of
amounts to be so distributed with the amount available under any Series
Enhancement without the consent of each affected Noteholder, (ii) change the
definition of or the manner of calculating the interest of any Noteholders
without the consent of each affected Noteholder, (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of
each Noteholder or (iv) adversely affect the rating of any Series or Class by
any Rating Agency without the consent of the Holders of Notes of such Series
or Class evidencing at least 66-2/3% of the aggregate unpaid principal amount
of the Notes of such Series or Class. Any amendment to be effected pursuant to
this paragraph will be deemed to materially adversely affect all outstanding
Series, other than any Series with respect to which such action will not, as
evidenced by an Opinion of Counsel for the Seller, addressed and delivered to
the Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder of such Series.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a)), the Seller will furnish
notification of the substance of such amendment to each Noteholder, each
Series Enhancer and each Rating Agency.
(d) If the Noteholders are required to consent to any proposed amendments
pursuant to this Section, such Noteholders need not consent to or approve the
particular form of such amendment. The manner of obtaining such consents and
of evidencing the authorization of the execution thereof by Noteholders is
subject to such reasonable requirements as the Indenture Trustee prescribes.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement that would adversely affect in any
material respect the interests of any Series Enhancer without the consent of
such Series Enhancer.
Section 7.02. Protection of Right, Title and Interest to Receivables.
(a) The Seller will cause this Agreement, all amendments hereto and/or
all financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables
and Related Security to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Buyer hereunder. The Seller will deliver to the
Buyer file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Buyer will cooperate fully with the
Seller in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this Section.
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 7.02(a) seriously
misleading within the meaning of the UCC as in effect in the applicable
jurisdiction, the Seller will give the Buyer notice of any such change and
file such financing statements or amendments as may be necessary to continue
the perfection of the Buyer's security interest in the Receivables and the
proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any
relocation of any office at which it keeps records concerning the Receivables
or of its principal executive office and whether, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
any amendment of any previously filed financing or continuation statement or
of any new financing statement and will file such financing statements or
amendments as may be necessary to perfect or to continue the perfection of the
Buyer's security interest in the Receivables and the proceeds thereof. The
Seller will at all times maintain its principal executive office within the
United States of America.
(d) The Seller will deliver to the Buyer: (i) upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit B; (ii) on each Addition Date on which any
Additional Accounts are to be designated as Accounts pursuant to Section 2.05,
an Opinion of Counsel substantially in the form of Exhibit C.
Section 7.03. Limited Recourse.
Notwithstanding anything to the contrary contained herein, the
obligations of the Buyer hereunder will not be recourse to the Buyer (or any
person or organization acting on behalf of the Buyer or any Affiliate, officer
or director of the Buyer), other than to (a) the amount by which the Net
Adjusted Pool Balance on any date of determination exceeds the Required Pool
Balance and (b) any other assets of the Buyer not pledged to third parties or
otherwise encumbered in a manner permitted by the Buyer's organizational
documents; provided, however, that any payment by the Buyer made in accordance
with this Section will be made only after payment in full of any amounts that
the Seller is obligated to deposit into the Collection Account pursuant to
this Agreement; and, provided, further, that the Noteholders will be entitled
to the benefits of the subordination of the Collections allocable to the
Transferor Interest to the extent provided in the Indenture Supplements.
Section 7.04. No Petition.
The Seller hereby covenants and agrees that it will not at any time
institute against the Buyer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law.
Section 7.05. Governing Law.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER ARE TO BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.06. Notices.
All notices, demands, instructions and other communications required or
permitted under this Agreement must be in writing and will be deemed to have
duly given if personally delivered or sent by first class or express mail
(postage prepaid), national overnight courier service or by facsimile
transmission or other electronic communication device capable of transmitting
or creating a written record and followed by first class mail. Unless
otherwise specified in a notice sent in accordance with the provisions of this
Section, notices, demands, instructions and other communications in writing
will be given to the respective parties at their respective addresses
indicated in the Transfer and Servicing Agreement. All notices are effective
on receipt.
Section 7.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement is for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms will be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and will in no
way affect the validity or enforceability of the other provisions of this
Agreement or of the Notes or the rights of the Noteholders.
Section 7.08. Assignment.
Notwithstanding anything to the contrary contained herein, this Agreement
may not be assigned by the Seller without the prior consent of the Buyer and
the Indenture Trustee. The Buyer may assign its rights, remedies, powers and
privileges under this Agreement to the Issuer pursuant to the Transfer and
Servicing Agreement and the Issuer may pledge its assigned rights, remedies,
powers and privileges under this Agreement to the Indenture Trustee pursuant
to the Indenture.
Section 7.09. Further Assurances.
The Seller agrees to do and perform, from time to time, any and all acts
and to execute any and all further instruments required or reasonably
requested by the Buyer more fully to effect the purposes of this Agreement,
including the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
Section 7.10. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Buyer, any right, remedy, power or privilege under this Agreement will operate
as a waiver thereof; nor will any single or partial exercise of any right,
remedy, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
Section 7.11. 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.
Section 7.12. Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, the Noteholders, the holders of the Transferor Interest and
any Series Enhancers and their respective successors and permitted assigns.
Except as otherwise provided in this Agreement, no other Person will have any
right or obligation hereunder.
Section 7.13. Merger and Integration.
Except as specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived, or
supplemented except as provided herein.
Section 7.14. Headings.
The headings herein are for purposes of reference only and are not
intended to otherwise affect the meaning or interpretation of any provision
hereof.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this Receivables
Purchase Agreement to be duly executed by their respective duly authorized
officers as of the day and year first above written.
FORD MOTOR CREDIT COMPANY,
as Seller
By __________________________________________
Name:
Title:
[FORD CREDIT AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC],
as Buyer
By __________________________________________
Name:
Title:
Exhibit A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of Receivables Purchase Agreement)
This ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as
of [________ __, 200_], is by and between FORD MOTOR CREDIT COMPANY, as
Seller, and [FORD CREDIT AUTO RECEIVABLES CORPORATION] [FORD CREDIT AUTO
RECEIVABLES LLC], as Buyer, pursuant to the Receivables Purchase Agreement
referred to below.
RECITALS
A. The Seller and the Buyer are parties to a Receivables Purchase
Agreement, dated as of [________ __, 200_] (as amended, supplemented or
otherwise modified from time to time, the "Receivables Purchase Agreement").
B. Pursuant to the Receivables Purchase Agreement, the Seller wishes to
designate Additional Accounts as Accounts and to sell the Receivables and
Related Security arising in connection with such Additional Accounts, whether
now existing or hereafter created, to the Buyer, to be further transferred to
the Issuer and pledged to the Indenture Trustee.
C. The Buyer is willing to accept such designation and sale subject to
the terms and conditions hereof.
The Seller and the Buyer hereby agree as follows:
STATEMENT OF AGREEMENT
1. Defined Terms. All capitalized terms used herein have the meanings
ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein:
"Addition Date" means, with respect to the Additional Accounts
designated hereby, __________, 20__.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith an Additional Account Schedule specifying for each such Additional
Account, as of the Additional Cut-Off Date, its account number and the
aggregate amount of Principal Receivables of such Account.
3. Sale of Receivables. The Seller does hereby sell, transfer, assign,
set over and otherwise convey, without recourse (except as expressly provided
in the Receivables Purchase Agreement), to the Buyer, on the Addition Date all
of its right, title and interest in, to and under the Receivables arising in
connection with such Additional Accounts and all Related Security with respect
thereto, owned by the Seller and existing at the close of business on the
Additional Cut-Off Date and thereafter created from time to time, all monies
due or to become due and all amounts received with respect thereto and all
proceeds (including "proceeds" as defined in the UCC as in effect in the
applicable jurisdiction) and Recoveries thereof. The foregoing sale, transfer,
assignment, set-over and conveyance does not constitute and is not intended to
result in the creation, or an assumption by the Buyer, of any obligation of
the Servicer, the Seller, Ford or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating
thereto, including any obligation to any Dealers or Ford.
In connection with such sale, the Seller agrees to record and file, at
its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper, payment intangibles, general
intangibles or accounts (as defined in the UCC as in effect in the applicable
jurisdiction) meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect the sale and assignment
of the Receivables and the Related Security to the Buyer, and to deliver a
file-stamped copy of such financing statements or other evidence of such
filing to the Buyer on or before the Addition Date. The Buyer is under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the
UCC in connection with such sale. The parties hereto intend that the sales of
Receivables effected by this Assignment be sales.
In connection with such sale, the Seller further agrees, at its own
expense, on or before the Addition Date, to indicate in its computer files
that the Receivables and the Related Security: (A) have been sold or assigned,
as the case may be, to the Buyer pursuant to this Assignment, then (B)
transferred by the Buyer to the Issuer pursuant to the Transfer and Servicing
Agreement and then (C) pledged by the Issuer to the Indenture Trustee pursuant
to the Indenture for the benefit of the Noteholders and any Series Enhancers.
4. Acceptance by Buyer. Subject to the satisfaction of the conditions set
forth in Section 2.05(b) of the Receivables Purchase Agreement, the Buyer
hereby acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter created, sold to the Buyer pursuant to
Section 3 of this Assignment. The Buyer further acknowledges that, before or
simultaneously with the execution and delivery of this Assignment, the Seller
delivered to the Buyer the Additional Account Schedule described in Section 2
of this Assignment.
5. Representations and Warranties of Seller. The Seller hereby represents
and warrants to the Buyer, on behalf of the Issuer, as of the date of this
Assignment and as of the Addition Date that:
(i) Organization and Good Standing. The Seller is a corporation duly
organized and validly existing and in good standing under the laws of the
State of Delaware and has, in all material respects, full power,
authority and legal right to own its properties and conduct its business
as such properties are currently owned and such business is currently
conducted, and to execute, deliver and perform its obligations under this
Assignment.
(ii) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is
exempt from such requirement) and has obtained all necessary licenses and
approvals in each jurisdiction where the conduct of its business requires
such qualification except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on its
ability to perform its obligations hereunder.
(iii) Due Authorization. The Seller has duly authorized by all
necessary action on its part the execution and delivery of this
Assignment and the consummation of the transactions provided for or
contemplated by this Assignment.
(iv) No Conflict. The Seller's execution and delivery of this
Assignment, its performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to it, will
not conflict with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any material indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the
Seller is a party or by which it or its properties are bound.
(v) No Violation. The Seller's execution and delivery of this
Assignment, its performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to it, will
not conflict with or violate any material Requirements of Law applicable
to it.
(vi) No Proceedings. There are no proceedings pending or, to the
best of its knowledge, no proceedings threatened or investigations
pending or threatened against the Seller before or by any Governmental
Authority (A) asserting the invalidity of this Assignment, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Assignment, (C) seeking any determination or ruling that, in its
reasonable judgment, would materially and adversely affect the
performance of its obligations under this Assignment, (D) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Assignment or (E) seeking to affect
adversely the income tax characterization of the Issuer under the United
States federal or any other applicable state or local jurisdiction's
income, single business or franchise tax systems.
(vii) All Consents Required. All material authorizations, consents,
orders, approvals or other actions of any Governmental Authority required
to be obtained or effected by the Seller in connection with its execution
and delivery of this Assignment, its performance of the transactions
contemplated by this Assignment and the fulfillment of the terms hereof
applicable to it, have been obtained or effected.
(viii) Enforceability. This Assignment constitutes a legal, valid
and binding obligation of the Seller, enforceable against it in
accordance with the terms hereof, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting creditors'
rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity).
(ix) Valid Sale. This Assignment constitutes a valid sale, transfer
and assignment to the Buyer of all right, title and interest of the
Seller in the Receivables and the Related Security and the proceeds
thereof and upon the filing of the financing statements described in
Section 3 of this Assignment and, in the case of the Receivables and the
Related Security hereafter created and the proceeds thereof, upon the
creation thereof, the Buyer will have a first priority perfected
ownership interest in such property.
7. Ratification of Agreement. As supplemented by this Assignment, the
Receivables Purchase Agreement is in all respects ratified and confirmed and
the Receivables Purchase Agreement as so supplemented by this Assignment is to
be read, taken and construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of
which will be an original but all of which together will constitute one and
the same instrument.
9. Governing Law. THIS ASSIGNMENT IS TO BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
ARE TO BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Buyer and the Seller have caused this Assignment
to be duly executed by their respective duly authorized officers as of the day
and year first above written.
FORD MOTOR CREDIT COMPANY,
as Seller
By __________________________________________
Name:
Title:
[FORD CREDIT AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC],
as Buyer
By __________________________________________
Name:
Title:
Exhibit B
FORM OF OPINION OF COUNSEL
(As required by Section 7.02(d)(i)
of Receivables Purchase Agreement)
(a) The Amendment to the Receivables Purchase Agreement, attached hereto
as Schedule 1 (the "Amendment"), has been duly authorized, executed and
delivered by the Seller and constitutes the legal, valid and binding agreement
of the Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(b) The Amendment has been entered into in accordance with the terms and
provisions of Section 7.01 of the Receivables Purchase Agreement.
(c) The Amendment will not adversely affect in any material respect the
interests of the Noteholders. [Include this clause (c) only in the case of
amendments effected pursuant to Section 7.01(a) of the Receivables Purchase
Agreement.]
Exhibit C
FORM OF OPINION OF COUNSEL
(Provisions to be included in Opinion of Counsel to be
delivered pursuant to Section 7.02(d)(ii)
of Receivables Purchase Agreement)*
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the opinion of
counsel to Ford Motor Credit Company (the "Seller") delivered on any Closing
Date, as well as any others deemed appropriate at the time of delivery.
Capitalized terms used but not defined herein are used as defined in the
Receivables Purchase Agreement, dated as of [______ __, 2000_] (the
"Receivables Purchase Agreement"), between [Ford Credit Auto Receivables
Corporation] [Ford Credit Auto Receivables LLC], as buyer (the "Buyer"), and
the Seller.
[The Assignment has been duly authorized, executed and delivered by the
Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
Assuming the Receivables [in the Additional Accounts] are created under,
and are evidenced solely by, either Floorplan Financing Agreements or Sales
and Service Agreements, such Receivables will constitute "chattel paper" as
defined under Section 9-____ of the UCC.
Assuming the Receivables [in the Additional Accounts] are created under,
and are evidenced solely by, the Sale and Assignment Agreement between Ford
Motor Company and the Seller, such Receivables will constitute "general
intangibles," "payment intangibles," "accounts" or "chattel paper" as defined
under Section 9-____ of the UCC.
With respect to Receivables [in the Additional Accounts] in existence on
the date hereof and with respect to Receivables [in the Additional Accounts]
that come into existence after the date hereof, upon the creation of such
Receivables and the subsequent sale of such Receivables to the Buyer free and
clear of any Liens in accordance with the Receivables Purchase Agreement and
receipt by the Seller of the consideration therefor required pursuant to the
Receivables Purchase Agreement, a bankruptcy court having jurisdiction over
the Seller (i) would not be entitled to compel the turnover of such
Receivables or the proceeds thereof to the Seller under Section 542 of the
Bankruptcy Code and (ii) would not be entitled to treat such Receivables or
the proceeds thereof as assets included in the estate of the Seller pursuant
to Section 541 of the Bankruptcy Code or subject to the automatic stay
provision of Section 362(a) of the Bankruptcy Code.
______________
o Include bracketed language only in the case of the designation of
Additional Accounts pursuant to Section 2.05 of the Receivables Purchase
Agreement