PURCHASE AGREEMENT between FORD MOTOR CREDIT COMPANY LLC, as Sponsor and FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor Dated as of June 1, 2007
between
FORD
MOTOR CREDIT COMPANY LLC,
as
Sponsor
and
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
Dated
as
of June 1, 2007
TABLE
OF CONTENTS
|
ARTICLE
I USAGE AND DEFINITIONS
|
1
|
|
|
ARTICLE
II SALE AND PURCHASE OF RECEIVABLES
|
1
|
|
|
|
||
|
Section
2.1
|
Sale
of Purchased Property; Payment of Purchase Price
|
1
|
|
Section
2.2
|
Savings
Clause
|
1
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES
|
2
|
|
|
Section
3.1
|
Representations
and Warranties of the Sponsor
|
2
|
|
Section
3.2
|
Representations
and Warranties of the Sponsor About the Receivables
|
3
|
|
Section
3.3
|
Repurchase
of Receivables Upon Breach of Representations or Warranties by the
Sponsor
|
5
|
|
Section
3.4
|
Representations
and Warranties of the Depositor
|
5
|
|
ARTICLE
IV COVENANTS OF THE SPONSOR
|
6
|
|
|
Section
4.1
|
Filing
and Maintenance of Financing Statements and Security
Interests
|
6
|
|
Section
4.2
|
Account
Records and Computer Systems.
|
7
|
|
Section
4.3
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Inspections
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7
|
|
Section
4.4
|
Accountants'
Letter
|
7
|
|
ARTICLE
V MISCELLANEOUS
|
7
|
|
|
Section
5.1
|
Amendment
|
7
|
|
Section
5.2
|
Notices
|
8
|
|
Section
5.3
|
Costs
and Expenses
|
8
|
|
Section
5.4
|
Third-Party
Beneficiaries
|
8
|
|
Section
5.5
|
GOVERNING
LAW
|
8
|
|
Section
5.6
|
Submission
to Jurisdiction
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8
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|
Section
5.7
|
WAIVER
OF JURY TRIAL
|
9
|
|
Section
5.8
|
Severability
|
9
|
|
Section
5.9
|
Counterparts
|
9
|
|
Section
5.10
|
Headings
|
9
|
|
Section
5.11
|
No
Waiver; Cumulative Remedies
|
9
|
|
Exhibit
A Schedule of
Receivables
|
A-1
|
|
i
PURCHASE
AGREEMENT, dated as of June 1, 2007 (this "Agreement"), between FORD
MOTOR CREDIT COMPANY LLC, a Delaware limited liability company, as Sponsor,
and
FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited liability company,
as
Depositor.
BACKGROUND
In
the
regular course of its business, the Sponsor purchases retail installment sale
contracts secured by new and used cars and light trucks from motor vehicle
dealers.
The
Sponsor wishes to sell, and the Depositor wishes to purchase, a pool of such
contracts and related property on the terms and conditions in this
Agreement.
ARTICLE
I
USAGE
AND
DEFINITIONS
Capitalized
terms used but not otherwise defined in this Agreement are defined in Appendix
A
to the Sale and Servicing Agreement. Appendix A also contains rules
as to usage applicable to this Agreement. Appendix A is incorporated
by reference into this Agreement.
ARTICLE
II
SALE
AND
PURCHASE OF RECEIVABLES
Section
2.1 Sale of Purchased
Property; Payment of Purchase Price.
(a) Effective
as of the Closing Date and immediately before the transactions pursuant to
the
Sale and Servicing Agreement, the Trust Agreement and the Indenture, the Sponsor
sells to the Depositor, without recourse (subject to the obligations of the
Sponsor under this Agreement), all right, title and interest of the Sponsor,
whether now owned or hereafter acquired, in and to the Purchased
Property.
(b) In
consideration for the Purchased Property, the Depositor will pay to the
Sponsor $2,017,560,656.09 in cash by federal wire transfer (same day)
funds on the Closing Date. The Depositor and the Sponsor each
represents and warrants to the other that the amount of cash paid by the
Depositor, together with the increase in the value in the Sponsor's capital
in
the Depositor, is equal to the fair market value of the
Receivables.
(c) The
sale of the Purchased Property made under this Agreement does not constitute
and
is not intended to result in an assumption by the Depositor of any obligation
of
the Sponsor to the Obligors, the Dealers or any other Person in connection
with
the Purchased Property.
Section
2.2 Savings
Clause. It
is the intention of the Sponsor and the Depositor that (i) the sale pursuant
to
Section 2.1 constitute an absolute sale of the Purchased Property, conveying
good title to the Purchased Property free and clear of any Lien other than
Permitted Liens, from the Sponsor to the Depositor and (ii) the Purchased
Property not be a part of the Sponsor's estate in the event of a bankruptcy
or
insolvency of the Sponsor. If, notwithstanding the intention of the
Sponsor and the Depositor, such sale is deemed to be a pledge in connection
with
a financing or is otherwise deemed not to be a sale, the Sponsor grants, and
the
parties intend that the Sponsor Grants, to the Depositor a security interest
in
all of the Sponsor's right, title and interest in the Purchased Property to
secure a loan in an amount equal to all amounts payable by the Sponsor under
this Agreement, all amounts payable as principal or interest on the Notes,
and
all amounts payable as servicing fees under the Sale and Servicing Agreement,
and in such event, this Agreement will constitute a security agreement under
applicable law and the Depositor will have all of the rights and remedies of
a
secured party and creditor under the UCC.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1 Representations
and Warranties of the Sponsor. The
Sponsor represents and warrants to the Depositor as of the date of this
Agreement and as of the Closing Date:
(a) Organization
and Qualification. The Sponsor is duly incorporated and validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Sponsor is qualified as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its properties or
the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect
on
the Sponsor's ability to perform its obligations under this
Agreement.
(b) Power,
Authorization and Enforceability. The
Sponsor has the power and authority to execute, deliver and perform the terms
of
this Agreement. The Sponsor has duly authorized the execution,
delivery and performance of the terms of this Agreement. This
Agreement is the legal, valid, binding and enforceable obligation of the
Sponsor, except as may be limited by insolvency, bankruptcy, reorganization
or
other laws relating to the enforcement of creditors' rights or by general
equitable principles.
(c) No
Conflicts and No Violation. The consummation of the
transactions contemplated by this Agreement, and the fulfillment of the terms
of
this Agreement, will not (i) conflict with or result in a breach of the terms
or
provisions of, or constitute a default under any indenture, mortgage, deed
of
trust, loan agreement, guarantee or similar agreement or instrument under which
the Sponsor is a debtor or guarantor, (ii) result in the creation or imposition
of any Lien upon any of the properties or assets of the Sponsor pursuant to
the
terms of any such indenture, mortgage, deed of trust, loan agreement, guarantee
or similar agreement or instrument, (iii) violate the Certificate of Formation
or the Limited Liability Company Agreement of the Sponsor, or (iv) violate
any
law or, to the Sponsor's knowledge, any order, rule or regulation applicable
to
the Sponsor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Sponsor or its properties, in each case which conflict, breach,
default, lien, or violation would reasonably be expected to have a material
adverse effect on the Sponsor's ability to perform its obligations under this
Agreement.
(d) No
Proceedings. To the Sponsor's knowledge, there are
no proceedings or investigations pending or overtly threatened in writing before
any court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Sponsor or its
properties: (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, or (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse effect on the Sponsor's ability to
perform its obligations under this Agreement or the validity or enforceability
of this Agreement.
(e) Valid
Security Interest. This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in the Receivables in
favor
of the Depositor, which security interest is prior to all other Liens, other
than Permitted Liens, and is enforceable against all creditors of and purchasers
from the Sponsor.
(f) Investment
Company Act. The Sponsor is not an "investment company" or a
company "controlled by an investment company" within the meaning of the
Investment Company Act.
Section
3.2 Representations
and Warranties of the Sponsor About the Receivables. The
Sponsor represents and warrants to the Depositor as of the date of this
Agreement and as of the Closing Date (except as otherwise specified), which
representations and warranties (i) the Depositor has relied on in purchasing
the
Receivables and (ii) will survive the sale of the Receivables to the Depositor,
the subsequent sale of the Receivables to the Issuer pursuant to the Sale and
Servicing Agreement and the pledge of the Receivables to the Indenture Trustee
pursuant to the Indenture:
2
(a) Origination
of Receivables. Each Receivable (i) was originated in the United
States by a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business and has been fully executed by the parties
thereto, (ii) was purchased by the Sponsor from a Dealer and was validly
assigned by such Dealer to the Sponsor, and (iii) was underwritten pursuant
to
the Credit and Collection Policy.
(b) Simple
Interest. Each Receivable (i) provides for equal monthly payments
in U.S. dollars that fully amortize the Amount Financed by its stated maturity
and yield interest at the Annual Percentage Rate and (ii) applies a simple
interest method of allocating a fixed payment to principal and interest, so
that
the portion of such payment allocated to interest is equal to the APR multiplied
by the principal balance multiplied by the number of days elapsed since the
preceding payment of interest was made divided by 365.
(c) Prepayment. Each
Receivable allows for prepayment and partial prepayments without penalty and
requires that the Principal Balance be paid in full to prepay the contract
in
full.
(d) No
Government Obligors. No Receivable is the obligation of the
United States of America or any State or local government or from any agency,
department, instrumentality or political subdivision of the United States or
any
State or local government.
(e) Insurance. Each
Receivable requires the Obligor to obtain physical damage insurance covering
the
Financed Vehicle.
(f) Valid
Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale of such Receivable under
this Agreement would be unlawful, void or voidable. The terms of the
Receivable do not limit the right of the owner of such Receivable to sell such
Receivable. The Sponsor has not entered into any agreement with any
Person that prohibits, restricts or conditions the sale of any Receivable by
the
Sponsor.
(g) Compliance
with Law. Each Receivable complied in all material respects at
the time it was originated and as of the Closing Date will comply in all
material respects with all requirements of federal, State, and local
laws.
(h) Binding
Obligation. Each Receivable is on a form contract that includes
rights and remedies allowing the holder to enforce the obligation and realize
on
the Financed Vehicle and represents the legal, valid and binding payment
obligation of the Obligor, enforceable in all material respects by the holder
of
the Receivable, except as may be limited by bankruptcy, insolvency,
reorganization or other laws relating to the enforcement of creditors' rights
or
by general equitable principles and consumer protection laws.
(i) Perfected
Ownership Interest in Financed Vehicle. Each Receivable is
secured by a security interest in the related Financed Vehicle in favor of
the
Sponsor as secured party, which was validly created and is a perfected, first
priority security interest and is assignable by the Sponsor to the
Depositor.
(j) Good
Title. Immediately before the sale under this Agreement, the
Sponsor had good title to each Receivable free and clear of any Lien other
than
Permitted Liens and, immediately upon the sale under this Agreement, the
Depositor will have good title to each Receivable, free and clear of any Lien
other than Permitted Liens.
3
(k) Security
Interest in the Receivables.
(i) All
filings (including UCC filings) necessary in any jurisdiction to give the
Depositor a first priority, validly perfected ownership interest in the
Receivables, to give the Issuer a first priority, validly perfected ownership
interest in the Receivables and to give the Indenture Trustee a first priority
perfected security interest in the Receivables, will be made within ten days
after the Closing Date.
(ii) All
financing statements filed or to be filed against the Sponsor in favor of the
Depositor describing the Receivables sold pursuant to this Agreement 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 Secured Party/Assignee."
(iii) The
Sponsor has not authorized the filing of and is not aware of any financing
statements against the Sponsor that include a description of collateral covering
the Receivables other than any financing statement relating to the security
interest granted to the Depositor under this Agreement, by the Depositor to
the Issuer under the Sale and Servicing Agreement or by the Issuer to the
Indenture Trustee under the Indenture, or that has been terminated.
(l) Chattel
Paper. Each Receivable constitutes either "tangible chattel
paper" or "electronic chattel paper" within the meaning of the applicable UCC
and there is only one original authenticated copy of each
Receivable.
(m) Servicing. As
of the Cutoff Date, each Receivable has been serviced in compliance with all
material requirements of federal, State and local laws, and in compliance with
the Credit and Collection Policy.
(n) No
Bankruptcy. As of the Cutoff Date, the Sponsor has not received
actual notice that the Obligor on any Receivable is a debtor in a bankruptcy
proceeding.
(o) 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.
(p) No
Material Amendments or Modifications. No material provision of a
Receivable has been affirmatively amended, except amendments and modifications
that are contained in the Receivables Files. No Receivable has been
amended or rewritten to extend the due date for any payment date other than
in
connection with a change of the monthly due date in accordance with the Credit
and Collection Policy.
(q) No
Defenses. To the Sponsor's knowledge, no right of rescission,
setoff, counterclaim or defense has been asserted or threatened with
respect to any Receivable.
(r) No
Payment Default. Except for payments that are not more than 30
days Delinquent as of the Cutoff Date, no payment defaults exist.
(s) Maturity
of Receivables. Each Receivable has an original maturity of not
greater than 72 months, provided that the first month of the Receivable may
consist of up to 45 days as a result of the monthly due date selected by the
Obligor in accordance with Ford Credit's policies and procedures.
(t) Scheduled
Payments. Each Receivable has a first
scheduled due date not later than 30 days after the Cutoff Date.
4
(u) Schedule
of Receivables; Selection Procedures. The information in
the Schedule of Receivables is true and correct in all material respects as
of
the Cutoff Date, and no selection procedures believed to be adverse to the
Noteholders have been utilized in selecting the Receivables from other
receivables of the Sponsor that meet the criteria specified in this Section
3.2.
(v) Other
Data. The numerical data relating to the characteristics of the
Receivables contained in the Prospectus are true and correct in all material
respects.
Section
3.3 Repurchase of
Receivables Upon Breach of Representations or Warranties by the
Sponsor.
(a) If
a Responsible Person of the Sponsor has actual knowledge, or receives notice
from the Issuer, the Depositor or the Indenture Trustee, of a breach of a
representation or warranty made by the Sponsor pursuant to Section 3.2 that
materially and adversely affects any Receivable and such breach has not been
cured in all material respects by the last day of the second full Collection
Period (or, at the option of the Sponsor, the first full Collection Period)
after the Responsible Person obtains actual knowledge or is notified of such
breach, the Sponsor will repurchase such Receivable by remitting (or causing
to
be remitted) the Purchase Amount on the Business Day preceding the Payment
Date
after such Collection Period (or, with Rating Agency Confirmation, on such
Payment Date). If Ford Credit is the Servicer, the Sponsor may remit
any Purchase Amount in accordance with Section 4.3(c) of the Sale and
Servicing Agreement.
(b) The
sole remedy for a breach of the Sponsor's representations and warranties made
in
Section 3.2 is to repurchase the Receivable as set forth in
3.3(a). The Depositor will enforce the Sponsor's repurchase
obligation pursuant to Section 3.3(a). None of the Servicer, the
Owner Trustee, the Indenture Trustee, the Sponsor or the Administrator will
have
any duty to conduct an investigation as to the occurrence of any condition
requiring the repurchase of any Receivable pursuant to Section
3.3(a).
(c) When
the Sponsor's payment of the Purchase Amount is included in Available Funds
for
a Payment Date, the Depositor will be deemed to have sold and assigned to the
Sponsor as of the last day of the second preceding Collection Period, without
recourse, representation or warranty except the representation that the
Depositor owns the Receivable free and clear of any Liens other than Permitted
Liens, all of the Depositor's right, title and interest in and to any Receivable
repurchased by the Sponsor pursuant to Section 3.3(a), and all security and
documents relating to such Receivable. Upon such sale, the Servicer will xxxx
its computer records indicating that any receivable purchased pursuant to
Section 3.3(a) is no longer a Receivable or take any action necessary or
appropriate to evidence the transfer of ownership of the Purchased Receivable,
free from any Lien of the Depositor, the Issuer or the Indenture
Trustee.
Section
3.4 Representations
and Warranties of the Depositor. The
Depositor represents and warrants to the Sponsor as of the date of this
Agreement and as of the Closing Date:
(a) Organization
and Qualification. The Depositor is duly organized and validly
existing as a limited liability company in good standing under the laws of
the
State of Delaware. The Depositor is qualified as a foreign limited
liability company in good standing and has obtained all necessary licenses
and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect
on
the Depositor's ability to perform its obligations under this
Agreement.
(b) Power,
Authorization and Enforceability. The
Depositor has the power and authority to execute, deliver and perform the terms
of this Agreement. The Depositor has authorized the execution,
delivery and performance of the terms of this Agreement. This
Agreement is the legal, valid and binding obligation of the Depositor and
enforceable against the Depositor, except as may be limited by insolvency,
bankruptcy, reorganization or other laws relating to the enforcement of
creditors' rights or by general equitable principles.
5
(c) No
Conflicts and No Violation. The consummation of the
transactions contemplated by this Agreement, and the fulfillment of the terms
of
this Agreement, will not (i) conflict with or result in a breach of the terms
or
provisions of, or constitute a default under any indenture, mortgage, deed
of
trust, loan agreement, guarantee or similar agreement or instrument under which
the Depositor is a debtor or guarantor, (ii) result in the creation or
imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Depositor pursuant to the terms of any such indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument
(other than this Agreement), (iii) violate the Certificate of Formation or
Limited Liability Company Agreement, or (iv) violate any law or, to the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor
or
its properties, in each case which conflict, breach, default, lien, or violation
would reasonably be expected to have a material adverse effect on the
Depositor's ability to perform its obligations under this
Agreement.
(d) No
Proceedings. To the Depositor's knowledge, there are no
proceedings or investigations pending or overtly threatened in writing, before
any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Depositor or its properties (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, or
(iii)
seeking any determination or ruling that would reasonably be expected to have
a
material adverse effect on the Depositor's ability to perform its obligations
under this Agreement or the validity or enforceability of this
Agreement.
ARTICLE
IV
COVENANTS
OF THE SPONSOR
Section
4.1 Filing and
Maintenance of Financing Statements and Security Interests.
(a) The
Sponsor will file financing statements and continuation statements in the manner
and place required by law to preserve, maintain and protect the interest of
the
Depositor in the Purchased Property. The Sponsor will deliver to the
Depositor file-stamped copies of, or filing receipts for, any financing
statement and continuation statement promptly upon such document becoming
available following filing.
(b) The
Sponsor authorizes the Depositor to file any financing or continuation
statements, and amendments to such statements, in all jurisdictions and with
all
filing offices as the Depositor may determine are necessary or advisable to
preserve, maintain and protect the interest of the Depositor in the Purchased
Property. Such financing and continuation statements may describe the
Purchased Property in any manner as the Depositor may reasonably determine
to
ensure the perfection of the interest of the Depositor in the Purchased
Property. The Depositor will deliver to the Sponsor file-stamped
copies of, or filing receipts for, any financing statement and continuation
statement promptly upon such document becoming available following
filing.
(c) The
Sponsor will give the Depositor at least 60 days' prior notice of any relocation
of its chief executive office or change in its corporate structure, form of
organization or jurisdiction of organization if, as a result of such relocation
or change, Section 9-307 of the UCC could require the filing of a new financing
statement or an amendment to a previously filed financing or continuation
statement and will promptly file any such new financing statement or
amendment. The Sponsor will maintain its chief executive office
within the United States and will maintain its jurisdiction of organization
in
only one State.
6
(d) The
Sponsor will not change its name in any manner that could make any financing
statement or continuation statement filed by the Depositor in accordance with
Section 4.1(a) or Section 4.1(b) seriously misleading within the meaning of
Section 9-506 of the UCC, unless it has given the Depositor at least 5 days'
prior notice of such change and promptly files appropriate amendments to all
previously filed financing statements.
Section
4.2 Account
Records and Computer Systems.
(a) The
Sponsor will maintain accurate accounts and records for each Receivable in
sufficient detail to indicate the status of such Receivable, including payments
and collections made and payments owing (and the nature of each).
(b) The
Sponsor will maintain its computer systems so that, from and after the Closing
Date, the master computer records for the Receivables indicate clearly that
each
Receivable is owned by the Depositor or its assignee, which indication of
ownership will not be deleted from or modified until the Receivable has been
paid in full by the Obligor or repurchased by the Sponsor or the Depositor
or
purchased or sold by the Servicer under any Basic Document.
Section
4.3 Inspections. The
Sponsor, upon receipt of reasonable prior notice, will permit the Depositor
and
its agents at any time during the Sponsor's normal business hours to inspect,
audit and make copies of and abstracts from the Sponsor's records regarding
any
Receivable subject to the Sponsor's normal security and confidentiality
procedures and subject to the terms and conditions of a confidentiality
agreement satisfactory to the Sponsor. Nothing in this Section 4.3
will affect the obligation of the Sponsor to observe any privacy and
confidentiality law prohibiting disclosures of information regarding the
Obligors and the failure of the Sponsor to provide access as a result of such
obligations will not constitute a breach of this Section 4.3.
Section
4.4 Accountants'
Letter. The
Sponsor will cause an Independent firm of certified public accountants of
national reputation to deliver to the Depositor an "agreed upon procedures"
letter, dated the Closing Date with respect to the financial and statistical
information contained in the Prospectus relating to the Receivables, the
Sponsor's portfolio and with respect to such other information, and in a form,
as may be mutually agreed upon by the Sponsor, the Depositor and the
Representatives. The letter will be addressed to the Issuer and the
Representatives provided they execute any required engagement letters or other
acknowledgements required such Independent firm of certified public
accountants. The Sponsor will cooperate with the Depositor and such
Independent firm of certified public accountants in making available all
information and taking all steps reasonably necessary to permit such accountants
to deliver the letter.
ARTICLE
V
MISCELLANEOUS
Section
5.1 Amendment.
(a) This
Agreement may be amended by the Depositor and the Sponsor, with prior notice
to
the Rating Agencies, for any purpose if either (i) the Depositor or the Sponsor
delivers an Opinion of Counsel to the Issuer, the Owner Trustee and the
Indenture Trustee, in form reasonably satisfactory to them, to the effect that
such amendment will not adversely affect the interests of the Noteholders in
any
material respect or (ii) the consent of the Noteholders of at least a majority
of the Note Balance of each Class of Notes Outstanding adversely affected in
any
material respect is obtained (with each affected Class voting separately, except
that all Noteholders of Class A Notes will vote together as a single
class).
(b) If
the consent of the Noteholders is required, they do not need to approve the
particular form of any proposed amendment so long as their consent approves
the
substance of the proposed amendment.
7
(c) Promptly
upon the execution of any amendment in accordance with this Section 5.1, the
Sponsor will send a copy of such amendment to the Indenture Trustee and each
Rating Agency.
Section
5.2 Notices. All
notices, requests, demands, consents, waivers or other communications to or
from
the parties to this Agreement must be in writing and will be deemed to have
been
given:
(i)
upon delivery or, in the case of a letter mailed by registered first class
mail,
postage prepaid, 3 days after deposit in the mail,
(ii)
in the case of a fax, when receipt is confirmed by telephone, reply email or
reply fax from the recipient,
(iii) in
the case of an email, when receipt is confirmed by telephone or reply email
from
the recipient, and
(iv) in
the case of an electronic posting to a password-protected website to which
the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Any
such
notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to the Sale and Servicing Agreement or
at
such other address as any party may designate by notice to the other
parties.
(b) Any
notice required or permitted to be mailed to a Noteholder must be sent by
overnight delivery, mailed by registered first class mail, postage prepaid,
or
sent by fax, to the address of such Person as shown in the Note
Register. Any notice so mailed within the time prescribed in this
Agreement will be conclusively presumed to have been properly given, whether
or
not the Noteholder receives such notice.
Section
5.3 Costs and
Expenses. The
Sponsor will pay all expenses incurred in the performance of its obligations
under this Agreement and all reasonable out-of-pocket costs and expenses of
the Depositor in connection with the perfection against third parties of the
Depositor's right, title and interest in and to the Purchased Property and
the
enforcement of any obligation of the Sponsor under this Agreement.
Section
5.4 Third-Party
Beneficiaries. This
Agreement will inure to the benefit of and be binding upon the parties to this
Agreement. The Issuer and the Indenture Trustee for the benefit of the Secured
Parties will be third-party beneficiaries of this Agreement entitled to enforce
this Agreement against the Sponsor. Except as otherwise provided in
this Agreement, no other Person will have any right or obligation under this
Agreement.
Section
5.5 GOVERNING
LAW. THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
Section
5.6 Submission to
Jurisdiction. The
parties submit to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State Court
sitting in New York, New York for purposes of all legal proceedings arising
out
of or relating to this Agreement. The parties irrevocably waive, to the fullest
extent they may do so, any objection that they may now or hereafter have to
the
laying of the venue of any such proceeding brought in such a court and any
claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section
5.7 WAIVER OF
JURY TRIAL. EACH
PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY
THIS AGREEMENT.
8
Section
5.8 Severability. If
any of the covenants, agreements or terms of this Agreement is held invalid,
illegal or unenforceable, then it will be deemed severable from the remaining
covenants, agreements or terms of this Agreement and will in no way affect
the
validity, legality or enforceability of the remaining Agreement.
Section
5.9 Counterparts. This
Agreement may be executed in any number of counterparts. Each
counterpart will be an original, and all counterparts will together constitute
one and the same instrument.
Section
5.10 Headings. The
headings in this Agreement are included for convenience only and will not affect
the meaning or interpretation of this Agreement.
Section
5.11 No Waiver;
Cumulative Remedies. No
failure or delay of the Depositor in exercising any power, right or remedy
under
this Agreement will operate as a waiver. No single or partial
exercise of any power, right or remedy precludes any other or further exercise
of such power, right or remedy or the exercise of any other power, right or
remedy. The powers, rights and remedies provided in this Agreement
are in addition to any powers, rights and remedies provided by law.
9
EXECUTED
BY:
|
FORD
MOTOR CREDIT COMPANY LLC,
|
||
|
as
Sponsor
|
||
|
By:
|
/s/
M. B. Xxxxxx
|
|
|
Name: Xxxxxx
X. Xxxxxx
|
||
|
Title: Assistant
Treasurer
|
||
|
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
|
||
|
as
Depositor
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxx
|
||
|
Title: Secretary
|
||
EXHIBIT
A
Schedule
of Receivables
Delivered
to Depositor on CD-ROM at Closing
A-1
