Exhibit 99.3
PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Seller
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Purchaser
Dated as of August 1, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE........................................................1
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES............................................1
2.1 Conveyance and Acquisition of Receivables....................................................1
2.2 The Closing..................................................................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES....................................................3
3.1 Representations and Warranties of the Purchaser..............................................3
3.2 Representations and Warranties of the Seller.................................................4
ARTICLE IV
CONDITIONS...........................................................10
4.1 Conditions to Obligation of the Purchaser...................................................10
4.2 Conditions to Obligation of the Seller......................................................11
ARTICLE V
COVENANTS OF THE SELLER......................................................11
5.1 Protection of Right, Title and Interest.....................................................11
5.2 Other Liens or Interests....................................................................12
5.3 Costs and Expenses..........................................................................12
5.4 Indemnification.............................................................................13
5.5 Treatment...................................................................................13
ARTICLE VI
MISCELLANEOUS PROVISIONS......................................................14
6.1 Obligations of Seller.......................................................................14
6.2 Repurchase of Receivables Upon Breach by the Seller.........................................14
6.3 Seller's Assignment of Purchased Receivables................................................14
6.4 Trust.......................................................................................14
6.5 Amendment...................................................................................15
6.6 Accountants' Letters........................................................................15
6.7 Waivers.....................................................................................15
6.8 Notices.....................................................................................16
6.9 Costs and Expenses..........................................................................16
6.10 Survival....................................................................................16
6.11 Confidential Information....................................................................16
6.12 Headings and Cross-References...............................................................17
6.13 GOVERNING LAW...............................................................................17
6.14 Counterparts................................................................................17
6.15 Further Assurances..........................................................................17
Exhibit A Assignment.............................................................................A-1
Exhibit B Schedule of Receivables................................................................B-1
Schedule A Location of Receivable Files
at Third Party Custodians of Ford Credit...............................................A-1
Schedule B Receivables Purchase Price.............................................................B-2
Appendix A Definitions and Usage.................................................................AA-1
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (as from time to time amended,
supplemented or otherwise modified and in effect, this "Agreement") is made as
of the 1st day of August 2002, by and between FORD MOTOR CREDIT COMPANY, a
Delaware corporation (the "Seller"), having its principal executive office at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and FORD CREDIT AUTO RECEIVABLES
TWO LLC, a Delaware limited liability company (the "Purchaser"), having its
principal executive office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, in the regular course of its business, the Seller
purchases certain retail installment sale contracts secured by new and used
automobiles and light duty trucks from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Receivables and related property are to be sold,
transferred, assigned and otherwise conveyed by the Seller to the Purchaser,
which Receivables will be transferred by the Purchaser pursuant to the Sale and
Servicing Agreement to the Ford Credit Auto Owner Trust 2002-D to be created
pursuant to the Trust Agreement, which Trust will issue notes secured by such
Receivables and certain other property of the Trust, pursuant to the Indenture,
and will issue certificates representing beneficial interests in such
Receivables and certain other property of the Trust, pursuant to the Trust
Agreement.
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that are
applicable herein. The term "Seller" herein means Ford Motor Credit Company.
ARTICLE II
CONVEYANCE AND ACQUISITION OF RECEIVABLES
2.1 Conveyance and Acquisition of Receivables
On the Closing Date, subject to the terms and conditions of
this Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Receivables and the other property
relating thereto (as defined below).
(a) Conveyance of Purchased Property. Effective as of the Closing Date and
simultaneously with the transactions pursuant to the Indenture, the Sale and
Servicing Agreement and the Trust Agreement, the Seller hereby sells, transfers,
assigns and otherwise conveys to the Purchaser, without recourse, all right,
title and interest of the Seller, whether now owned or hereafter acquired, in
and to the following (collectively, the "Purchased Property"): (i) the
Receivables; (ii) with respect to Actuarial Receivables, monies due thereunder
on or after the Cutoff Date (including Payaheads) and, with respect to Simple
Interest Receivables, monies due or received thereunder on or after the Cutoff
Date (including in each case any monies received prior to the Cutoff Date that
are due on or after the Cutoff Date and were not used to reduce the principal
balance of the Receivable); (iii) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and any other interest
of the Seller in the Financed Vehicles; (iv) rights to receive proceeds with
respect to the Receivables from claims on any physical damage, credit life,
credit disability, or other insurance policies covering Financed Vehicles or
Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to the Receivable
Files; (vii) payments and proceeds with respect to the Receivables held by the
Seller; (viii) all property (including the right to receive Liquidation
Proceeds) securing a Receivable (other than a Receivable repurchased by the
Seller); (ix) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and (x) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing.
(b) Receivables Purchase Price. In consideration for the Purchased Property
described in Section 2.1(a) hereof, the Purchaser will, on the Closing Date, pay
to the Seller the Receivables Purchase Price. As detailed on Schedule B hereto,
the portion of the Receivables Purchase Price to be paid in cash is an amount
equal to the net cash proceeds from the sale of the Notes to the Underwriters
pursuant to the Underwriting Agreement minus the Reserve Initial Deposit. The
remaining portion of the Receivables Purchase Price, $170,626,254.07, will be
deemed paid and returned to the Purchaser and will be considered a contribution
to capital. The portion of the Receivables Purchase Price to be paid in cash
will be paid by federal wire transfer (same day) funds.
(c) It is understood that the absolute sale, transfer, assignment and conveyance
of the Purchased Property by the Seller to the Purchaser pursuant to this
Agreement will be without recourse and the Seller does not guarantee collection
of any Receivable, provided, however, that such sale, transfer, assignment and
conveyance will be made pursuant to and in reliance on by the Purchaser of the
representations and warranties of the Seller as set forth in Section 3.2(b)
hereof.
2.2 The Closing. The sale, assignment, conveyance and acquisition of the
Purchased Property will take place at a closing (the "Closing") at the offices
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square, New York, NY
10036-6522 on the Closing Date, simultaneously with the closings under: (a) the
Sale and Servicing Agreement pursuant to which the Purchaser will assign all of
its right, title and interest in, to and under the Receivables and certain other
property to the Trust in exchange for the Securities; (b) the Indenture,
pursuant to which the Trust will issue the Notes and pledge all of its right,
title and interest in, to and under the Receivables and certain other property
to secure the Notes; (c) the Trust Agreement, pursuant to which the Trust will
issue the Certificates; and (d) the Underwriting Agreement, pursuant to which
the Purchaser will sell to the Underwriters the Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) Organization, etc. The Purchaser has been duly organized and is validly
existing as a limited liability company in good standing under the laws of the
State of Delaware, and has full power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof and thereof.
(b) Due Authorization and No Violation. This Agreement has been duly authorized,
executed and delivered by the Purchaser, and is the legal, valid, binding and
enforceable obligation of the Purchaser except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting
the enforcement of creditors' rights or by general equity principles.
(c) No Conflicts. The consummation of the transactions contemplated by this
Agreement, and the fulfillment of the terms hereof, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under (in each case material to the Purchaser), or result in the creation or
imposition of any lien, charge or encumbrance (in each case material to the
Purchaser) upon any of the property or assets of the Purchaser pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under which the
Purchaser is a debtor or guarantor, nor will such action result in any violation
of the provisions of the Certificate of Formation or the Limited Liability
Company Agreement of the Purchaser.
(d) No Proceedings. No legal or governmental proceedings are pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject, and no such proceedings are threatened or contemplated by governmental
authorities or threatened by others, other than such proceedings which will not
have a material adverse effect upon the general affairs, financial position, net
worth or results of operations (on an annual basis) of the Purchaser and will
not materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity and enforceability of, this Agreement.
(e) Fair Market Value. The Purchaser has determined that the Receivables
Purchase Price paid by it for the Purchased Property on the Closing Date is
equal to the fair market value for the Purchased Property.
3.2 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Purchaser as of the
date hereof and as of the Closing Date:
(i) Organization, etc. The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, and is duly qualified to transact business and
is in good standing in each jurisdiction in the United States of
America in which the conduct of its business or the ownership of its
property requires such qualification.
(ii) Power and Authority; Due Authorization; Enforceability. The Seller has
full power and authority to convey and assign the property conveyed and
assigned to the Purchaser hereunder and has duly authorized such sale
and assignment to the Purchaser by all necessary corporate action. This
Agreement has been duly authorized, executed and delivered by the
Seller and will constitute the legal, valid, binding and enforceable
obligation of the Seller except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general equity
principles.
(iii) No Violation. The consummation of the transactions contemplated by
this Agreement, and the fulfillment of the terms hereof, will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under (in each case material to the Seller
and its subsidiaries considered as a whole), or result in the creation
or imposition of any lien, charge or encumbrance (in each case material
to the Seller and its subsidiaries considered as a whole) upon any of
the property or assets of the Seller pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Seller is a debtor or guarantor, nor will such action result in any
violation of the provisions of the certificate of incorporation or the
by-laws of the Seller.
(iv) No Proceedings. No legal or governmental proceedings are pending to
which the Seller is a party or of which any property of the Seller is
the subject, and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings which will not have a material adverse effect upon the
general affairs, financial position, net worth or results of operations
(on an annual basis) of the Seller and its subsidiaries considered as a
whole and will not materially and adversely affect the performance by
the Seller of its obligations under, or the validity and enforceability
of, this Agreement.
(v) This Agreement creates a valid and continuing security interest (as
defined in the applicable UCC) in the Receivables, in favor of the
Purchaser which security interest is prior to all other Liens and is
enforceable as such as against all other creditors of and purchasers
from the Seller.
(b) The Seller makes the following representations and warranties as to the
Receivables on which the Purchaser relies in accepting the Receivables. Such
representations and warranties speak as of the Closing Date, but will survive
the transfer, assignment and conveyance of the Receivables to the Purchaser and
the subsequent assignment and transfer to the Trust pursuant to the Sale and
Servicing Agreement and the pledge thereof to the Indenture Trustee pursuant to
the Indenture:
(i) Characteristics of Receivables. Each Receivable (a) has been
originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, has been fully and properly executed by the parties
thereto, has been purchased either (X) by the Seller from a Dealer
under an existing dealer agreement with the Seller and has been
validly assigned by such Dealer to the Seller, or (Y) by PRIMUS from a
Dealer or other finance source (provided that such purchase relates to
an individual Receivable and not a bulk purchase) under an existing
agreement with PRIMUS and has been validly assigned by such Dealer or
other finance source to PRIMUS and has been validly assigned by PRIMUS
to the Seller in the ordinary course of business, (b) creates or has
created a valid, subsisting, and enforceable first priority security
interest in favor of the Seller in the Financed Vehicle, which security
interest will be assignable by the Seller to the Purchaser, (c)
contains customary and enforceable provisions such that the rights and
remedies of the holder thereof are adequate for realization against the
collateral of the benefits of the security, (d) provides for level
monthly payments (provided that the payment in the last month in the
life of the Receivable may be different but in no event more than twice
the amount of the level payment) that fully amortize the Amount
Financed by maturity and yield interest at the Annual Percentage Rate,
(e) provides for, in the event that such contract is prepaid, a
prepayment that fully pays the Principal Balance, and (e) is an
Actuarial Receivable or a Simple Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the Schedule of
Receivables is true and correct in all material respects as of the
opening of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Noteholders or the Certificateholders
have been utilized in selecting the Receivables from those receivables
which meet the criteria contained herein. The computer tape or other
listing regarding the Receivables made available to the Purchaser and
its assigns is true and correct in all material respects.
(iii) Compliance with Law. Each Receivable and the sale of the Financed
Vehicle will have complied at the time it was originated or made and at
the execution of this Agreement complies in all material respects with
all requirements of applicable federal, State, and local laws, and
regulations thereunder, including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the
Federal Reserve Board's Regulations B and Z, and State adaptations of
the National Consumer Act and of the Uniform Consumer Credit Code, and
other consumer credit laws and equal credit opportunity and disclosure
laws.
(iv) Binding Obligation. Each Receivable represents the genuine, legal,
valid, and binding payment obligation of the Obligor, enforceable by
the holder thereof in accordance with its terms subject to the effect
of bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally.
(v) No Government Obligor. None of the Receivables are due from the United
States of America or any State or from any agency, department, or
instrumentality of the United States of America, any State or political
subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior to the
transfer, assignment and conveyance thereof, each Receivable is secured
by a first priority, validly perfected security interest in the
Financed Vehicle in favor of the Seller as secured party or all
necessary and appropriate actions have been commenced that would result
in a first priority, validly perfected security interest in the
Financed Vehicle in favor of the Seller as secured party.
(vii) Receivables in Force. No Receivable has been satisfied, subordinated,
or rescinded, nor has any Financed Vehicle been released from the lien
granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been waived.
(ix) No Defenses. No right of rescission, setoff, counterclaim, or defense
has been asserted or threatened with respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens or claims
have been filed for work, labor, or materials relating to a Financed
Vehicle that are liens prior to, or equal with, the security interest
in the Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a period of not
more than thirty (30) days as of the Cutoff Date, no default, breach,
violation, or event permitting acceleration under the terms of any
Receivable has occurred; and no continuing condition that with notice
or the lapse of time would constitute a default, breach, violation, or
event permitting acceleration under the terms of any Receivable has
arisen; and the Seller has not waived any of the foregoing.
(xii) Insurance. With respect to each Receivable, the Seller, in accordance
with its customary standards, policies and procedures, will has
determined that, as of the date of origination of each Receivable, the
Obligor had obtained or agreed to obtain physical damage insurance
covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the sale, transfer,
assignment and conveyance herein contemplated constitute an absolute
sale, transfer, assignment and conveyance of the Receivables from the
Seller to the Purchaser and that the beneficial interest in and title
to the Receivables not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned,
conveyed or pledged by the Seller to any Person other than the
Purchaser. Immediately prior to the sale and transfer herein
contemplated, the Seller had good and marketable title to each
Receivable free and clear of all Liens, encumbrances, security
interests, participations and rights of others and, immediately upon
the sale and transfer thereof, the Purchaser will have good and
marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests, participations and rights of others;
and the sale and transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer,
assignment and conveyance of such Receivable under this Agreement or
pursuant to transfers of the Securities would be unlawful, void, or
voidable. The Seller has not entered into any agreement with any
account debtor that prohibits, restricts or conditions the assignment
of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Purchaser a first
priority, validly perfected ownership interest in the Receivables, and
to give the Indenture Trustee a first perfected security interest
therein, will be made within ten days of the Closing Date.
(xvi) Priority. Other than the security interest granted to the Purchaser
pursuant to this Agreement, the Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Receivables. The Seller has not authorized the filing of and is not
aware of any financing statements against the Seller that include a
description of collateral covering the Receivables other than any
financing statement relating to the security interest granted to the
Purchaser hereunder or granted by the Purchaser to the Issuer or by the
Issuer to the Indenture Trustee or that has been terminated.
(xvii) Chattel Paper. Each Receivable constitutes "tangible chattel paper" as
defined in the UCC.
(xviii) One Original. There will be only one original executed copy of each
Receivable. The Seller, or its custodian, has possession of such
original with respect to each Receivable. Such original does not have
any marks or notations indicating that it has been pledged, assigned or
otherwise conveyed to any Person other than the Seller. All financing
statements filed or to be filed against the Seller in favor of the
Purchaser in connection herewith describing the Receivables contain a
statement to the following effect: "A purchase of or security interest
in any collateral described in this financing statement will violate
the rights of the Purchaser."
(xix) New and Used Vehicles. 79.44% of the aggregate Principal Balance of the
Receivables, constituting 73.05% of the number of Receivables, as of
the Cutoff Date, represent vehicles financed at new vehicle rates, and
the remainder of the Receivables represent vehicles financed at used
vehicle rates.
(xx) Amortization Type. By aggregate Principal Balance as of the Cutoff
Date, 0.02% of the Receivables constitute Actuarial Receivables and
99.98% of the Receivables constitute Simple Interest Receivables.
(xxi) Origination. Each Receivable has an origination date on or after
November 25, 1996.
(xxii) PRIMUS. 11.60% of the aggregate Principal Balance of the Receivables as
of the Cutoff Date represent Receivables originated through PRIMUS and
assigned to the Seller, and 88.40% of the aggregate Principal Balance
of the Receivables as of the Cutoff Date represent Receivables that
were originated through Ford Credit (excluding PRIMUS).
(xxiii) Maturity of Receivables. Each Receivable has an original maturity of
not greater than seventy-two (72) months. The percentage of Receivables
by Principal Balance with original terms greater than 60 months is
6.31%. The percentage of Receivables by Principal Balance with
remaining terms greater than 60 months is 4.17%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate of each Receivable
is between 0.00% to 29.99% (inclusive).
(xxv) Scheduled Payments. Each Receivable has a first Scheduled Payment due,
in the case of Actuarial Receivables, or a first scheduled due date, in
the case of Simple Interest Receivables, on or prior to August 1, 2002
and no Receivable has a payment that is more than thirty (30) days
overdue as of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files are kept at one or
more of the offices of the Servicer in the United States or the offices
of one of the custodians specified in Schedule A hereto.
(xxvii) No Extensions. The number of Scheduled Payments, in the case of
Actuarial Receivables, and the number of scheduled due dates, in the
case of Simple Interest Receivables, will not have been extended on or
before the Cutoff Date on any Receivable.
(xxviii) Other Data. The numerical data relating to the characteristics of the
Receivables contained in the Prospectus are true and correct in all
material respects.
(xxix) Agreement. The representations and warranties in this Agreement will
be true.
(c) The Seller has determined that the Receivables Purchase Price received by
it for the Purchased Property on the Closing Date is equal to the fair market
value for the Purchased Property.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and warranties of
the Seller hereunder will be true and correct on the Closing Date with the same
effect as if then made, and the Seller will have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Computer Files Marked. The Seller, at its own expense, on or prior to the
Closing Date, will indicate in its computer files, in accordance with its
customary standards, policies and procedures, that the Receivables have been
conveyed to the Purchaser pursuant to this Agreement and will deliver to the
Purchaser the Schedule of Receivables certified by an officer of the Seller to
be true, correct and complete.
(c) Documents to be Delivered by the Seller at the Closing.
(i) The Assignment. On the Closing Date, the Seller will execute and
deliver the Assignment. The Assignment will be substantially in the
form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the Closing Date, the Seller
will record and file, at its own expense, a UCC-1 financing statement
in each jurisdiction in which required by applicable law, executed by
the Seller, as seller or debtor, and naming the Purchaser, as purchaser
or secured party, naming the Receivables and the other property
conveyed hereunder, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the
transfer, assignment and conveyance of such Receivables to the
Purchaser. The Seller will deliver a file-stamped copy, or other
evidence satisfactory to the Purchaser of such filing, to the Purchaser
on or prior to the Closing Date.
(iii) Other Documents. Such other documents as the Purchaser may reasonably
request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement will be
consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller. The obligation of the Seller
to convey the Receivables to the Purchaser is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and warranties of
the Purchaser hereunder will be true and correct on the Closing Date with the
same effect as if then made, and the Purchaser will have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. At the Closing Date, the Purchaser will
deliver to the Seller the Receivables Purchase Price in accordance with
Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller covenants and agrees with the Purchaser as follows,
provided, however, that to the extent that any provision of this ARTICLE V
conflicts with any provision of the Sale and Servicing Agreement, the Sale and
Servicing Agreement will govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller will authorize and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain, and protect the
interest of the Purchaser (or its assignee) in the Receivables and in the
proceeds thereof. The Seller will deliver (or cause to be delivered) to the
Purchaser file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) The Seller will not change its name, identity, or corporate structure in any
manner that would, could, or might make any financing statement or continuation
statement filed by the Seller in accordance with paragraph (a) above seriously
misleading within the meaning of ss. 9-506 of the UCC, unless it has given the
Purchaser at least five (5) days' prior written notice thereof and promptly
files appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller will give the Purchaser at least sixty (60) days' prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and will promptly file any such amendment or new
financing statement. The Seller will at all times maintain each office from
which it will service Receivables, and its principal executive office, within
the United States of America.
(d) The Seller will maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit the reader thereof to know at any
time the status of such Receivable, including payments and recoveries made and
payments owing (and the nature of each).
(e) standards, policies and procedures, so that, from and after the time of
conveyance hereunder of the Receivables to the Purchaser, the Seller's master
computer records (including any back-up archives) that refer to a Receivable
will indicate clearly the interest of the Purchaser in such Receivable and that
such Receivable is owned by the Purchaser or its assignee. Indication of the
ownership of a Receivable by the Purchaser or its assignee will not be deleted
from or modified on the Seller's computer systems until, and only until, the
Receivable has been paid in full or repurchased.
(f) If at any time the Seller proposes to sell, grant a security interest in, or
otherwise transfer any interest in automotive receivables to any prospective
purchaser, lender, or other transferee, the Seller will give to such prospective
purchaser, lender, or other transferee computer tapes, records, or print-outs
(including any restored from back-up archives) that, if they refer in any manner
whatsoever to any Receivable, will indicate clearly that such Receivable has
been conveyed to and is owned by the Purchaser.
(g) The Seller will, upon receipt by the Seller of reasonable prior notice,
permit the Purchaser and its agents at any time during normal business hours to
inspect, audit, and make copies of and abstracts from the Seller's records
regarding any Receivable.
(h) Upon request, the Seller will furnish to the Purchaser, within twenty (20)
Business Days, a list of all Receivables (by contract number and name of
Obligor) then owned by the Purchaser, together with a reconciliation of such
list to the Schedule of Receivables.
5.2 Other Liens or Interests. Except for the conveyances hereunder and pursuant
to the other Basic Documents, the Seller will not sell, pledge, assign or
transfer any Receivable to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any interest therein, and the Seller will defend the
right, title, and interest of the Purchaser in, to and under such Receivables
against all claims of third parties claiming through or under the Seller;
provided, however, that the Seller's obligations under this Section 5.2 will
terminate upon the termination of the Trust pursuant to the Trust Agreement.
5.3 Costs and Expenses. The Seller agrees to pay all reasonable costs and
disbursements in connection with the perfection, as against all third parties,
of the Purchaser's right, title and interest in and to the Receivables.
5.4 Indemnification.
(a) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the failure of a Receivable to be originated in
compliance with all requirements of law and for any breach of any of the
Seller's representations and warranties contained herein provided, however, with
respect to a breach of the Seller's representations and warranties as set forth
in Section 3.2(b), any indemnification amounts owed pursuant to this Section 5.4
with respect of a Receivable will give effect to and not be duplicative of the
Purchase Amounts paid by the Seller pursuant to Section 6.2 hereof.
(b) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the use, ownership, or operation by the Seller
or any Affiliate thereof of a Financed Vehicle.
(c) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all taxes that may at any time be asserted against the Purchaser
with respect to the transactions contemplated herein, including, without
limitation, any sales, gross receipts, general corporation, tangible personal
property, privilege, or license taxes and costs and expenses in defending
against the same.
(d) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against any and all costs, expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim, damage, or liability arose out
of, or was imposed upon the Purchaser through, the negligence, willful
misfeasance, or bad faith of the Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of the Seller's obligations
and duties under this Agreement.
(e) The Seller will defend, indemnify, and hold harmless the Purchaser from and
against all costs, expenses, losses, claims, damages, and liabilities arising
out of or incurred in connection with the acceptance or performance of the
Seller's trusts and duties as Servicer under the Sale and Servicing Agreement,
except to the extent that such cost, expense, loss, claim, damage, or liability
is due to the willful misfeasance, bad faith, or negligence (except for errors
in judgment) of the Purchaser.
These indemnity obligations will be in addition to any
obligation that the Seller may otherwise have.
5.5 Treatment. The Seller agrees to treat this conveyance as (i) an absolute
transfer for tax purposes and (ii) a sale for all other purposes (including
without limitation financial accounting purposes), in each case on all relevant
books, records, tax returns, financial statements and other applicable
documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under this
Agreement will not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2 Repurchase of Receivables Upon Breach by the Seller. (a) The Seller hereby
covenants and agrees with the Purchaser for the benefit of the Purchaser, the
Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders, that the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.2(b) hereof will
constitute events obligating the Seller to repurchase Receivables hereunder
("Repurchase Events"), at the Purchase Amount from the Purchaser or from the
Trust.
(b) Any Person who discovers a breach of any representation or warranty of the
Seller set forth in Section 3.2(b) hereof may, and if such Person is the Seller
or the Servicer, will, inform promptly the Servicer, the Seller, the Purchaser,
the Trust, the Owner Trustee and the Indenture Trustee, as the case may be, in
writing, upon the discovery of any breach of any representation or warranty as
set forth in Section 3.2(b) hereof. Unless the breach has been cured by the last
day of the second Collection Period following such discovery (or, at the
Seller's election, the last day of the first following Collection Period), the
Seller will repurchase any Receivable materially and adversely affected by such
breach at the Purchase Amount. In consideration of the repurchase of such
Receivable, the Seller will remit the Purchase Amount to the Servicer for
distribution pursuant to Section 4.3 of the Sale and Servicing Agreement. The
sole remedy (except as provided in Section 5.4 hereof) of the Purchaser, the
Trust, the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders against the Seller with respect to a Repurchase Event will be
to require the Seller to repurchase Receivables pursuant to this Section 6.2.
With respect to all Receivables repurchased pursuant to this Section 6.2, the
Purchaser will assign to the Seller, without recourse, representation or
warranty, all the Purchaser's right, title and interest in and to such
Receivables, and all security and documents relating thereto.
6.3 Seller's Assignment of Purchased Receivables. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser
will assign, without recourse, representation or warranty, to the Seller all the
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
6.4 Trust. The Seller acknowledges that:
(a) The Purchaser will, pursuant to the Sale and Servicing Agreement, convey the
Receivables to the Trust and assign its rights under this Agreement to the Trust
for the benefit of the Noteholders and the Certificateholders, and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under Sections 6.2 and 6.3 hereof are intended to benefit the Trust,
the Owner Trustee, the Noteholders and the Certificateholders. The Seller hereby
consents to such conveyance and assignment.
(b) The Trust will, pursuant to the Indenture, pledge the Receivables and its
rights under this Agreement to the Indenture Trustee for the benefit of the
Noteholders, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under this Agreement, including under
Sections 6.2 and 6.3 are intended to benefit the Indenture Trustee and the
Noteholders. The Seller hereby consents to such pledge.
6.5 Amendment. This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Seller and the Purchaser; provided,
however, that any such amendment that materially adversely affects the rights of
the Noteholders or the Certificateholders under the Indenture, Sale and
Servicing Agreement or Trust Agreement will be consented to by the Noteholders
of Notes evidencing not less than a majority of the Notes Outstanding and the
Certificateholders of Certificates evidencing not less than a majority of the
Aggregate Certificate Balance.
6.6 Accountants' Letters.
(a) PricewaterhouseCoopers LLP will review the characteristics of the
Receivables described in the Schedule of Receivables and will compare those
characteristics to the information with respect to the Receivables contained in
the Prospectus.
(b) The Seller will cooperate with the Purchaser and PricewaterhouseCoopers LLP
in making available all information and taking all steps reasonably necessary to
permit such accountants to complete the review set forth in Section 6.6(a) above
and to deliver the letters required of them under the Underwriting Agreement.
(c) PricewaterhouseCoopers LLP will deliver to the Purchaser a letter, dated the
Closing Date, in the form previously agreed to by the Seller and the Purchaser,
with respect to the financial and statistical information contained in the
Prospectus under the caption "Delinquencies, Repossessions and Net Losses" and
with respect to such other information as may be agreed in the form of letter.
6.7 Waivers. No failure or delay on the part of the Purchaser in exercising any
power, right or remedy under this Agreement or the Assignment will operate as a
waiver thereof, nor will any single or partial exercise of any such power, right
or remedy preclude any other or further exercise thereof or the exercise of any
other power, right or remedy.
6.8 Notices. All communications and notices pursuant hereto to either party will
be in writing or by facsimile and addressed or delivered to it at its address as
shown below or at such other address as may be designated by it by notice to the
other party and, if mailed or sent by facsimile, will be deemed given upon
receipt at the address or facsimile number for each party set forth below.
To Seller: Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Purchaser: Ford Credit Auto Receivables Two LLC
c/o Ford Motor Credit Company
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
6.9 Costs and Expenses. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement and the Seller agrees to pay
all reasonable out-of-pocket costs and expenses of the Purchaser, excluding fees
and expenses of counsel, in connection with the perfection as against third
parties of the Purchaser's right, title and interest in and to the Receivables
and the enforcement of any obligation of the Seller hereunder.
6.10 Survival. The respective agreements, representations, warranties and other
statements by the Seller and the Purchaser set forth in or made pursuant to this
Agreement will remain in full force and effect and will survive the closing
under Section 2.2 hereof and any sale, transfer or other assignment of the
Receivables by the Purchaser.
6.11 Confidential Information. The Purchaser agrees that it will neither use nor
disclose to any Person the names and addresses of the Obligors, except in
connection with the enforcement of the Purchaser's rights hereunder, under the
Receivables, under any Sale and Servicing Agreement or as required by law.
6.12 Headings and Cross-References. The various headings in this Agreement are
included for convenience only and will not affect the meaning or interpretation
of any provision of this Agreement. References in this Agreement to Section
names or numbers are to such Sections of this Agreement.
6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.14 Counterparts. This Agreement may be executed in two or more counterparts
and by different parties on separate counterparts, each of which will be an
original, but all of which together will constitute one and the same instrument.
6.15 Further Assurances. Seller and Purchaser will each, at the request of the
other, execute and deliver to the other all other instruments that either may
reasonably request in order to perfect the conveyance, transfer, assignment and
delivery to Purchaser of the rights to be conveyed, transferred, assigned and
delivered and for the consummation of this Agreement.
IN WITNESS WHEREOF, the parties hereby have caused this
Purchase Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
FORD MOTOR CREDIT COMPANY
By: ____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
FORD CREDIT AUTO RECEIVABLES TWO LLC
By: ____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Assistant Secretary
A-1
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of August 1, 2002 (the "Purchase Agreement"), between the undersigned
and FORD CREDIT AUTO RECEIVABLES TWO LLC (the "Purchaser"), the undersigned does
hereby assign, transfer and otherwise convey unto the Purchaser, without
recourse, all right, title and interest of the undersigned, whether now owned or
hereafter acquired, in and to the following: (i) the Receivables; (ii) with
respect to Actuarial Receivables, monies due thereunder on or after the Cutoff
Date (including Payaheads) and, with respect to Simple Interest Receivables,
monies due or received thereunder on or after the Cutoff Date (including in each
case any monies received prior to the Cutoff Date that are due on or after the
Cutoff Date and were not used to reduce the principal balance of the
Receivable); (iii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Seller in the
Financed Vehicles; (iv) rights to receive proceeds with respect to the
Receivables from claims on any physical damage, credit life, credit disability,
or other insurance policies covering the Financed Vehicles or Obligors; (v)
Dealer Recourse; (vi) all of the Seller's rights to the Receivable Files; (vii)
payments and proceeds with respect to the Receivables held by the Seller; (viii)
all property (including the right to receive Liquidation Proceeds) securing a
Receivable (other than a Receivable repurchased by the Seller); (ix) rebates of
premiums and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date; and (x) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing. The foregoing conveyance does not constitute
and is not intended to result in any assumption by the Purchaser of any
obligation of the undersigned to the Obligors, insurers or any other Person in
connection with the Receivables, Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
A-2
Capitalized terms used herein and not otherwise defined will
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of August 1, 2002.
FORD MOTOR CREDIT COMPANY
By:____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Assistant Secretary
B-1
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
A-1
Schedule A
Location of Receivable Files
at Third Party Custodians of Ford Credit
Security Archives
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MSX International, Inc.
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▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Iron Mountain Records Management
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B-1
Schedule B
Receivables Purchase Price
Total net cash proceeds from the
Underwriters for purchase of the
Class A-1 Notes, Class A-2a Notes,
Class A-2b Notes, Class A-3a Notes,
Class A-3b Notes, Class A-4a Notes,
Class A-4b Notes,
Class B Notes and Class C Notes
received by Purchaser $2,994,949,337.23
less Reserve Account Deposit $(15,789,982.00)
equals the total cash received by
Purchaser available for transfer
to Ford Credit as Seller1 $2,979,159,355.23
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Receivables Purchase Price2 $3,149,785,609.30
minus the total cash received by
Purchaser available for transfer to
Ford Credit as Seller $2,979,159,355.23
equals the difference (and
Deemed Capital Contribution
from Ford Credit) of: $170,626,254.07
B-2
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1 The Class D Certificates are retained by the Purchaser and are not
available for transfer to Ford Credit.
2 The Seller and the Purchaser have determined that the Receivables
Purchase Price equals the fair market value of the Receivables and the
related property and the fair market value is calculated as 105% of the
adjusted pool balance (or equal to 99.74% of the original pool balance
for purposes of the calculations).
AA-1
APPENDIX A
Definitions and Usage