Exhibit 10.2
Execution Version
RECEIVABLES PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY LLC,
as Sponsor
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Depositor
Dated as of March 1, 2023
TABLE OF CONTENTS
| ARTICLE I
USAGE AND DEFINITIONS |
1 |
| Section 1.1. |
Usage and Definitions |
1 |
| ARTICLE II
SALE AND PURCHASE OF PURCHASED PROPERTY |
1 |
| Section 2.1. |
Sale of Purchased Property |
1 |
| Section 2.2. |
Payment of Purchase Price |
1 |
| Section 2.3. |
Acknowledgement of Further Assignments |
2 |
| Section 2.4. |
Savings Clause |
2 |
| ARTICLE III
REPRESENTATIONS AND WARRANTIES |
2 |
| Section 3.1. |
Sponsor's Representations and Warranties |
2 |
| Section 3.2. |
Sponsor's Representations and Warranties About Pool
of Receivables |
3 |
| Section 3.3. |
Sponsor's Representations and Warranties About Each
Receivable |
4 |
| Section 3.4. |
Sponsor's Repurchase of Receivables for Breach of Representations |
7 |
| Section 3.5. |
Depositor's Representations and Warranties |
8 |
| ARTICLE IV
SPONSOR'S AGREEMENTS |
9 |
| Section 4.1. |
Financing Statements |
9 |
| Section 4.2. |
No Sale or Lien by Sponsor |
9 |
| Section 4.3. |
Expenses |
9 |
| Section 4.4. |
Sponsor's Receivables Systems |
9 |
| Section 4.5. |
Review of Sponsor's Records |
10 |
| ARTICLE V
OTHER AGREEMENTS |
10 |
| Section 5.1. |
No Petition |
10 |
| Section 5.2. |
Limited Recourse |
10 |
| Section 5.3. |
Termination |
10 |
| ARTICLE VI
MISCELLANEOUS |
10 |
| Section 6.1. |
Amendments |
10 |
| Section 6.2. |
Benefit of Agreement; Third-Party Beneficiaries |
11 |
| Section 6.3. |
Notices |
11 |
| Section 6.4. |
GOVERNING LAW |
11 |
| Section 6.5. |
Submission to Jurisdiction |
11 |
| Section 6.6. |
WAIVER OF JURY TRIAL |
12 |
| Section 6.7. |
No Waiver; Remedies |
12 |
| Section 6.8. |
Severability |
12 |
| Section 6.9. |
Headings |
12 |
| Section 6.10. |
Counterparts |
12 |
| Schedule A |
Schedule of Receivables |
SA-1 |
RECEIVABLES PURCHASE AGREEMENT, dated as of March 1,
2023 (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 normal course of its business, Ford Credit
purchases retail installment sale contracts secured by new and used cars, light trucks and utility vehicles from motor vehicle dealers.
In connection with a securitization transaction
sponsored by Ford Credit in which the Issuer will issue Notes secured by a pool of Receivables consisting of retail installment sale
contracts, Ford Credit has determined to sell a pool of Receivables and related property to the Depositor, who will sell them to the
Issuer.
The parties agree as follows:
ARTICLE I
USAGE AND DEFINITIONS
Section 1.1. Usage
and Definitions. Capitalized terms used but not defined in this Agreement are defined in Appendix A to the Sale and Servicing Agreement,
dated as of March 1, 2023, among Ford Credit Auto Owner Trust 2023-A, as Issuer, Ford Credit Auto Receivables Two LLC, as Depositor,
and Ford Motor Credit Company LLC, as Servicer. Appendix A also contains usage rules that apply to this Agreement. Appendix A is
incorporated by reference into this Agreement.
ARTICLE II
SALE AND PURCHASE OF PURCHASED PROPERTY
Section 2.1. Sale
of Purchased Property. Effective on the Closing Date and immediately before the transactions under the Sale and Servicing Agreement,
the Trust Agreement and the Indenture, the Sponsor sells and assigns to the Depositor, without recourse (other than the Sponsor's obligations
under this Agreement), all of the Sponsor's right, title and interest, whether now owned or later acquired, in the Purchased Property.
This sale and assignment does not, and is not intended to, include any obligation of the Sponsor to the Obligors, the Dealers or any
other Person relating to the Receivables and the other Purchased Property, and the Depositor does not assume any of these obligations.
Section 2.2. Payment
of Purchase Price. In consideration for the Purchased Property, the Depositor will pay to the Sponsor $1,572,102,801.74 on the Closing
Date. The Depositor and the Sponsor each represents and warrants to the other that the amount paid by the Depositor on the Closing Date,
together with the increase in the value of the Sponsor's capital in the Depositor, is equal to the fair market value of the Receivables
and the other Purchased Property.
Section 2.3. Acknowledgement
of Further Assignments. The Sponsor acknowledges that (a) under the Sale and Servicing Agreement, the Depositor will sell and
assign all of its right, title and interest in the Purchased Property and its rights under this Agreement to the Issuer and (b) under
the Indenture, the Issuer will assign and pledge the Purchased Property and related property and rights to the Indenture Trustee for
the benefit of the Secured Parties.
Section 2.4. Savings
Clause. The Sponsor and the Depositor intend that the sale and assignment under this Agreement be an absolute sale and assignment
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. The Sponsor and the Depositor intend that the Purchased Property not be a part of the Sponsor's estate
if there is a bankruptcy or insolvency of the Sponsor. If, despite the intent of the Sponsor and the Depositor, the transfer of the Purchased
Property under this Agreement is determined to be a pledge for a financing or is determined not to be an absolute sale and assignment,
the Sponsor Grants to the Depositor on the date of this Agreement a security interest in the Sponsor's right, title and interest in the
Purchased Property, whether now owned or later acquired, 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, all amounts payable as Servicing Fees under the Sale and Servicing
Agreement and all other amounts payable by the Issuer under the Transaction Documents. In that case, this Agreement is a security agreement
under law and the Depositor will have the rights and remedies of a secured party and creditor under the UCC.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Sponsor's
Representations and Warranties. The Sponsor makes the following representations and warranties on which the Depositor is relying
in purchasing the Purchased Property. The representations and warranties are made as of the Closing Date and will survive the sale and
assignment of the Purchased Property by the Sponsor to the Depositor under this Agreement and by the Depositor to the Issuer under the
Sale and Servicing Agreement and the pledge of the Purchased Property by the Issuer to the Indenture Trustee under the Indenture:
(a) Organization
and Qualification. The Sponsor is duly organized and validly existing as a limited liability company in good standing under the laws
of the State of Delaware. The Sponsor 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
qualification, license or approval, unless the failure to obtain the 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,
Authority and Enforceability. The Sponsor has the power and authority to execute, deliver and perform its obligations under this
Agreement. The Sponsor has authorized the execution, delivery and performance of this Agreement. This Agreement is the legal, valid and
binding obligation of the Sponsor, enforceable against the Sponsor, except as may be limited by insolvency, bankruptcy, reorganization
or other similar laws relating to the enforcement of creditors' rights or by general equitable principles.
(c) No
Conflicts and No Violation. The completion of the transactions under this Agreement, and the performance of its obligations under
this Agreement, will not (i) conflict with, or be a breach or default under, any indenture, mortgage, deed of trust, loan agreement,
guarantee or similar document under which the Sponsor is a debtor or guarantor, (ii) result in the creation or imposition of a Lien
on the Sponsor's properties or assets under the terms of any indenture, mortgage, deed of trust, loan agreement, guarantee or similar
document (other than this Agreement), (iii) violate the Sponsor's certificate of formation or limited liability company agreement
or (iv) violate a law or, to the Sponsor's knowledge, an order, rule or regulation of a federal or State court, regulatory
body, administrative agency or other governmental instrumentality having jurisdiction over the Sponsor or its properties that applies
to the Sponsor, which, in each case, 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 threatened in writing before a federal
or State court, 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 completion of the transactions under
this Agreement, (iii) seeking a determination or ruling that would reasonably be expected to have a material adverse effect on the
Sponsor's ability to perform its obligations under, or the validity or enforceability of, this Agreement or (iv) that would reasonably
be expected to (A) affect the treatment of the Notes as indebtedness for U.S. federal income or Applicable Tax State income or franchise
tax purposes, (B) be deemed to cause a taxable exchange of the Notes for U.S. federal income tax purposes or (C) cause the
Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes,
in each case, other than proceedings that would not reasonably be expected to have a material adverse effect on the Sponsor, the performance
by the Sponsor of its obligations under, or the validity and enforceability of, the Transaction Documents or the Notes or the tax treatment
of the Issuer or the Notes.
(e) Not
an Investment Company. The Sponsor is not required to be registered as an "investment company" under the Investment Company
Act.
Section 3.2. Sponsor's
Representations and Warranties About Pool of Receivables. The Sponsor makes the following representations and warranties about the
pool of Receivables on which the Depositor is relying in purchasing the Purchased Property. The representations and warranties are made
as of the Closing Date and will survive the sale and assignment of the Purchased Property by the Sponsor to the Depositor under this
Agreement and by the Depositor to the Issuer under the Sale and Servicing Agreement and the pledge of the Purchased Property by the Issuer
to the Indenture Trustee under the Indenture.
(a) Valid
Sale. This Agreement evidences a valid sale and assignment of the Purchased Property from the Sponsor to the Depositor, enforceable
against creditors of and purchasers from the Sponsor.
(b) Good
Title to Purchased Property. Immediately before the sale and assignment under this Agreement, the Sponsor has good and marketable
title to the Purchased Property free and clear of any Lien, other than Permitted Liens, and, immediately after the sale and assignment
under this Agreement, the Depositor will have good and marketable title to the Purchased Property, free and clear of any Lien, other
than Permitted Liens.
(c) Security
Interest in Purchased Property.
(i) This
Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Purchased Property in favor of the
Depositor, which is prior to any Lien, other than Permitted Liens, and is enforceable against all creditors of and purchasers from the
Sponsor.
(ii) All
filings (including UCC filings) necessary in any jurisdiction to give the Depositor a first priority, validly perfected ownership and
security interest in the Purchased Property, to give the Issuer a first priority, validly perfected ownership and security interest in
the Sold Property and to give the Indenture Trustee a first priority perfected security interest in the Collateral, will be made within
ten days after the Closing Date.
(iii) All
financing statements filed or to be filed against the Sponsor in favor of the Depositor describing the Purchased Property sold under
this Agreement will 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."
(iv) 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 any Purchased Property other than the financing statements 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.
(d) Selection
Procedures. The Sponsor did not use selection procedures believed to be adverse to the Noteholders in selecting the Receivables from
its portfolio of retail installment sale contracts.
(e) Schedule
of Receivables. The Schedule of Receivables contains an accurate and complete list of unique asset identifying numbers for the Receivables.
(f) Original
Term Concentration. The percentage of the aggregate Principal Balance of the Receivables with an original term of more than 75 months
is no more than 15.00% of the Pool Balance.
Section 3.3. Sponsor's
Representations and Warranties About Each Receivable. The Sponsor makes the following representations and warranties about each Receivable
on which the Depositor is relying in purchasing the Receivables. The representations and warranties are made as of the Closing Date or
other dates stated and will survive the sale and assignment of the Receivables by Ford Credit to the Depositor under this Agreement and
by the Depositor to the Issuer under the Sale and Servicing Agreement and the pledge of the Receivables by the Issuer to the Indenture
Trustee under the Indenture.
(a) Origination.
The Receivable was originated by a Dealer in the United States under United States law for the retail sale of a Financed Vehicle in the
ordinary course of the Dealer's business. The Receivable was signed by the Dealer and the Obligor. The Receivable was purchased
by the Sponsor from the Dealer and validly assigned by the Dealer to the Sponsor.
(b) Simple
Interest. The Receivable provides for level 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 applies a simple interest method of allocating a fixed payment to principal
and interest.
(c) Prepayment.
The Receivable allows for prepayment without penalty.
(d) No
Government Obligors. The Receivable is not an obligation of the United States or a State or local government or any agency, department,
instrumentality or political subdivision of the United States or a State or local government.
(e) Insurance.
The Receivable requires the Obligor to have physical damage insurance covering the Financed Vehicle.
(f) Compliance
with Underwriting Procedures. The Receivable was underwritten according to the Underwriting Procedures in effect at the time, in
all material respects.
(g) Valid
Assignment. The Receivable was originated in, and is subject to the laws of, a jurisdiction which permits the sale and assignment
of the Receivable. The terms of the Receivable do not limit the right of the owner of the Receivable to sell and assign the Receivable.
(h) Compliance
with Law. At the time it was originated, the Receivable complied in all material respects with all requirements of law in effect
at the time.
(i) Binding
Obligation. The 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 similar
laws relating to the enforcement of creditors' rights or by general equitable principles and consumer financial protection laws.
(j) Security
Interest in Financed Vehicle. The Sponsor has, or the Servicer has started procedures that will result in the Sponsor having, a perfected,
first priority security interest in the Financed Vehicle, which security interest was validly created and is assignable by the Sponsor
to the Depositor.
(k) Good
Title to Receivable. Immediately before the sale and assignment under this Agreement, the Sponsor has good and marketable title to
the Receivable free and clear of any Lien, other than Permitted Liens, and, immediately after the sale and assignment under this Agreement,
the Depositor will have good and marketable title to the Receivable, free and clear of any Lien, other than Permitted Liens.
(l) Chattel
Paper. The Receivable is either "tangible chattel paper" or "electronic chattel paper" within the meaning of
the applicable UCC and there is only one original authenticated copy of the Receivable.
(m) Servicing.
The Receivable was serviced in compliance with law and the Servicing Procedures in all material respects from the time it was originated
to the Cutoff Date.
(n) No
Bankruptcy. As of the Cutoff Date, the Sponsor's receivables systems do not indicate that the Obligor on the Receivable is a debtor
in a bankruptcy proceeding.
(o) Receivable
in Force. As of the Cutoff Date, neither the Sponsor's receivables systems nor the Receivable File indicate that the Receivable was
satisfied, subordinated or rescinded, or that the Financed Vehicle was released from the Lien created under the Receivable.
(p) No
Amendments or Modifications. No material term of the Receivable has been affirmatively amended or modified, except amendments and
modifications indicated in the Sponsor's receivables systems or in the Receivable File.
(q) No
Extensions. As of the Cutoff Date, the Receivable was not amended to extend the due date for any payment other than a change of the
monthly due date.
(r) No
Defenses. There is no right of rescission, setoff, counterclaim or defense asserted or threatened against the Receivable indicated
in the Sponsor's receivables systems or in the Receivable File.
(s) No
Payment Default. Except for a payment that is not more than 30 days Delinquent as of the Cutoff Date, no payment default exists on
the Receivable.
(t) Term
of Receivable for New Vehicles. The original term of the Receivable for new Financed Vehicles is not greater than 84 months counting
the period from the origination date to the first payment date as a single month.
(u) Term
of Receivable for Used Vehicles. The original term of the Receivable for used Financed Vehicles is not greater than 75 months counting
the period from the origination date to the first payment date as a single month.
(v) Scheduled
Payments. The first scheduled due date on the Receivable is no later than 30 days after the Cutoff Date.
Section 3.4. Sponsor's
Repurchase of Receivables for Breach of Representations.
(a) Investigation
of Breach. If a Responsible Person of the Sponsor (i) has knowledge of a breach of a representation or warranty made in Section 3.3,
(ii) receives notice from the Depositor, the Issuer, the Owner Trustee or the Indenture Trustee of a breach of a representation
or warranty made in Section 3.3, (iii) receives a Repurchase Request from the Owner Trustee or the Indenture Trustee for a
Receivable or (iv) receives a Review Report that indicates a Test Fail for a Receivable, then, in each case, the Sponsor will investigate
to confirm the breach and determine if the breach has a material adverse effect on a Receivable. None of the Servicer, the Issuer, the
Owner Trustee, the Indenture Trustee or the Administrator will have an obligation to investigate whether a breach of any representation
or warranty has occurred or whether any Receivable is required to be repurchased under this Section 3.4.
(b) Repurchase
of Receivables; Payment of Purchase Price. For a breach described in Section 3.4(a), the Sponsor may, and if the breach has
a material adverse effect on a Receivable will, repurchase the Receivable by paying the Purchase Amount for the Receivable on the Business
Day before the Payment Date (or, with satisfaction of the Rating Agency Condition, on the Payment Date) related to the Collection Period
in which the Sponsor has knowledge or receives notice of and confirms the breach or, at the Sponsor's option, on or before the following
Payment Date, unless the breach is cured in all material respects before that Payment Date. If Ford Credit is the Servicer, the Sponsor
may cause the Purchase Amount to be paid according to Section 4.3(c) of the Sale and Servicing Agreement.
(c) Sale
and Assignment of Repurchased Receivable. When the Sponsor's payment of the Purchase Amount for a Receivable is included in Available
Funds for a Payment Date, the Depositor will be deemed to have sold and assigned to the Sponsor, effective as of the last day of the
Collection Period before the related Collection Period, all of the Depositor's right, title and interest in the Receivable and all security
and documents relating to the Receivable. The sale will not require any action by the Depositor and will be without recourse, representation
or warranty by the Depositor except the representation that the Depositor owns the Receivable free and clear of any Lien, other than
Permitted Liens. After the sale, the Servicer will mark its receivables systems to indicate that the receivable is no longer a Receivable
and may take any action necessary or advisable to transfer the Purchased Receivable, free from any Lien of the Depositor, the Issuer
or the Indenture Trustee.
(d) Repurchase
Sole Remedy. The sole remedy for a breach of a representation or warranty made by the Sponsor in Section 3.3 is to require the
Sponsor to repurchase the Receivable under this Section 3.4. The Depositor will enforce the Sponsor's repurchase obligation under
this Section 3.4.
(e) Dispute
Resolution. The Sponsor agrees to be bound by the dispute resolution terms in Section 2.6 of the Sale and Servicing Agreement
as if they were part of this Agreement.
Section 3.5. Depositor's
Representations and Warranties. The Depositor represents and warrants to the Sponsor 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 the qualification, license or approval, unless the failure to obtain the 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,
Authority and Enforceability. The Depositor has the power and authority to execute, deliver and perform its obligations under this
Agreement. The Depositor has authorized the execution, delivery and performance 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 similar laws relating to the enforcement of creditors' rights or by general equitable principles.
(c) No
Conflicts and No Violation. The completion of the transactions under this Agreement, and the performance of its obligations under
this Agreement, will not (i) conflict with, or be a breach or default under, any indenture, mortgage, deed of trust, loan agreement,
guarantee or similar document under which the Depositor is a debtor or guarantor, (ii) result in the creation or imposition of a
Lien on the Depositor's properties or assets under the terms of any indenture, mortgage, deed of trust, loan agreement, guarantee or
similar document (other than the Sale and Servicing Agreement), (iii) violate the Depositor's certificate of formation or limited
liability company agreement or (iv) violate a law or, to the Depositor's knowledge, an order, rule or regulation of a federal
or State court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or
its properties that applies to the Depositor, which, in each case, 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 threatened in writing before a federal
or State 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 completion of the transactions under
this Agreement, (iii) seeking a determination or ruling that would reasonably be expected to have a material adverse effect on the
Depositor's ability to perform its obligations under, or the validity or enforceability of, this Agreement or (iv) that would reasonably
be expected to (A) affect the treatment of the Notes as indebtedness for U.S. federal income or Applicable Tax State income or franchise
tax purposes, (B) be deemed to cause a taxable exchange of the Notes for U.S. federal income tax purposes or (C) cause the
Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes,
in each case, other than proceedings that would not reasonably be expected to have a material adverse effect on the Depositor, the performance
by the Depositor of its obligations under, or the validity and enforceability of, the Transaction Documents or the Notes or the tax treatment
of the Issuer or the Notes.
(e) Not
an Investment Company. The Depositor is not required to be registered as an "investment company" under the Investment Company
Act.
ARTICLE IV
SPONSOR'S AGREEMENTS
Section 4.1. Financing
Statements.
(a) Filing
of Financing Statements. The Sponsor will file financing and continuation statements, and amendments to the statements, in the jurisdictions
and with the filing offices necessary to perfect the Depositor's interest in the Purchased Property. The Sponsor will promptly deliver
to the Depositor file-stamped copies of, or filing receipts for, any financing statement, continuation statement and amendment to a previously
filed financing statement.
(b) Depositor
Authorized to File Financing Statements. The Sponsor authorizes the Depositor to file financing and continuation statements, and
amendments to the statements, in the jurisdictions and with the filing offices as the Depositor may determine are necessary or advisable
to perfect the Depositor's interest in the Purchased Property. The financing and continuation statements may describe the Purchased Property
as the Depositor may reasonably determine to perfect the Depositor's interest in the Purchased Property. The Depositor will promptly
deliver to the Sponsor file-stamped copies of, or filing receipts for, any financing statement, continuation statement and amendment
to a previously filed financing statement.
(c) Relocation
of Sponsor. The Sponsor will notify the Depositor at least ten days before a relocation of its chief executive office or change in
its corporate structure, form of organization or jurisdiction of organization if it could require the filing of a new financing statement
or an amendment to a previously filed financing statement under Section 9-307 of the UCC. The Sponsor will promptly file new financing
statements or amendments to all previously filed financing statements. The Sponsor will maintain its chief executive office within the
United States and will maintain its jurisdiction of organization in only one State.
(d) Change
of Sponsor's Name. The Sponsor will notify the Depositor at least ten days before any change in the Sponsor's name that could make
a financing statement filed under this Section 4.1 seriously misleading under Section 9-506 of the UCC. The Sponsor will promptly
file amendments to all previously filed financing statements.
Section 4.2. No
Sale or Lien by Sponsor. Except for the sale and assignment under this Agreement, the Sponsor will not sell or assign any Purchased
Property to another Person or Grant or allow a Lien on an interest in any Purchased Property. The Sponsor will defend the Depositor's
interest in the Purchased Property against claims of third parties claiming through the Sponsor.
Section 4.3. Expenses.
The Sponsor will pay all expenses to perform its obligations under this Agreement and the Depositor's reasonable expenses to perfect
the Depositor's interest in the Purchased Property and to enforce the Sponsor's obligations under this Agreement.
Section 4.4. Sponsor's
Receivables Systems. The Sponsor will mark its receivables systems to indicate that each Receivable is owned by the Depositor or
its assignee on the Closing Date and will not change the indication 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 a Transaction Document.
Section 4.5. Review
of Sponsor's Records. The Sponsor will maintain records and documents relating to the origination, underwriting and purchasing of
the Receivables according to its customary business practices. The Sponsor will give the Depositor access to the records and documents
to conduct a review of the representations and warranties made by the Sponsor about the Receivables or in connection with any request
or demand to repurchase a Receivable or any dispute resolution proceeding for a request or demand or any Review by the Asset Representations
Reviewer. Any access or review will be conducted at the Sponsor's offices during its normal business hours at a time reasonably convenient
to the Sponsor and in a manner that will minimize disruption to its business operations. Any access or review will be subject to the
Sponsor's confidentiality and privacy policies.
ARTICLE V
OTHER AGREEMENTS
Section 5.1. No
Petition. The Sponsor agrees that, before the date that is one year and one day (or, if longer, any applicable preference period)
after the payment in full of (a) all securities issued by the Depositor or by a trust for which the Depositor was a depositor or
(b) the Notes, it will not start or pursue against, or join any other Person in starting or pursuing against, (i) the Depositor
or (ii) the Issuer, respectively, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings
under any bankruptcy or similar law. This Section 5.1 will survive the termination of this Agreement.
Section 5.2. Limited
Recourse. The Sponsor agrees that any claim that it may seek to enforce against the Depositor under this Agreement is limited to
the Purchased Property only and is not a claim against the Depositor's assets as a whole or against assets other than the Purchased Property.
This Section 5.2 will survive the termination of this Agreement.
Section 5.3. Termination.
This Agreement will terminate when the Issuer is terminated under the Trust Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Amendments.
(a) Amendments.
The parties may amend this Agreement:
(i) to
clarify an ambiguity, correct an error or correct or supplement any term of this Agreement that may be defective or inconsistent with
the other terms of this Agreement or any prospectus or offering memorandum related to the Notes, in each case, without the consent of
the Noteholders or any other Person;
(ii) to
add, change or eliminate terms of this Agreement, in each case, without the consent of the Noteholders or any other Person, if the Depositor
or the Sponsor delivers an Officer's Certificate to the Issuer, the Owner Trustee and the Indenture Trustee stating that the amendment
will not have a material adverse effect on the Noteholders; or
(iii) to
add, change or eliminate terms of this Agreement for which an Officer's Certificate is not or cannot be delivered under Section 6.1(a)(ii),
with the consent of the Noteholders of a majority of the Note Balance of each Class of Notes Outstanding (with each affected Class voting
separately, except that all Noteholders of Class A Notes will vote together as a single class).
(b) Notice
of Amendments. The Depositor or the Sponsor will notify the Rating Agencies in advance of any amendment. Promptly after the execution
of an amendment, the Sponsor will deliver a copy of the amendment to the Indenture Trustee and the Rating Agencies.
Section 6.2. Benefit
of Agreement; Third-Party Beneficiaries. This Agreement is for the benefit of and will be binding on the parties and their permitted
successors and assigns. The Issuer and the Indenture Trustee, for the benefit of the Secured Parties, will be third-party beneficiaries
of this Agreement and may enforce this Agreement against the Sponsor. No other Person will have any right or obligation under this Agreement.
Section 6.3. Notices.
(a) Notices
to Parties. All notices, requests, directions, consents, waivers or other communications to or from the parties must be in writing
and will be considered received by the recipient:
(i) for
overnight mail, on delivery or, for registered first class mail, postage prepaid, three days after deposit in the mail properly addressed
to the recipient;
(ii) for
a fax, when receipt is confirmed by telephone, reply email or reply fax from the recipient;
(iii) for
an email, when receipt is confirmed by telephone or reply email from the recipient; and
(iv) for
an electronic posting to a password-protected website to which the recipient has access, on delivery of an email (without the requirement
of confirmation of receipt) stating that the electronic posting has been made.
(b) Notice
Addresses. A notice, request, direction, consent, waiver or other communication must be addressed to the recipient at its address
stated in Schedule B to the Sale and Servicing Agreement, which address the party may change by notifying the other party.
Section 6.4. GOVERNING
LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NEW YORK.
Section 6.5. Submission
to Jurisdiction. Each party submits 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 legal proceedings relating to this Agreement. Each party
irrevocably waives, to the fullest extent permitted by law, any objection that it may now or in the future have to the venue of a proceeding
brought in such a court and any claim that the proceeding was brought in an inconvenient forum.
Section 6.6. WAIVER
OF JURY TRIAL. Each party irrevocably waives,
to the fullest extent permitted by law, THE right to trial by jury in legal proceedingS relating to this agreement.
Section 6.7. No
Waiver; Remedies. No party's failure or delay in exercising a power, right or remedy under this Agreement will operate as a waiver.
No single or partial exercise of a power, right or remedy will preclude any other or further exercise of the power, right or remedy or
the exercise of any other power, right or remedy. The powers, rights and remedies under this Agreement are in addition to any powers,
rights and remedies under law.
Section 6.8. Severability.
If a part of this Agreement is held invalid, illegal or unenforceable, then it will be deemed severable from the remaining Agreement
and will not affect the validity, legality or enforceability of the remaining Agreement.
Section 6.9. Headings.
The headings in this Agreement are included for convenience and will not affect the meaning or interpretation of this Agreement.
Section 6.10. Counterparts.
This Agreement may be executed in multiple counterparts. Each counterpart will be an original and all counterparts will together be one
document.
[Remainder of Page Left Blank]
EXECUTED BY:
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FORD MOTOR CREDIT COMPANY LLC, |
| |
|
as Sponsor |
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|
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By: |
/s/ Xxxx Xxxxxxxxxxx |
| |
Name: |
Xxxx Xxxxxxxxxxx |
| |
Title: |
Assistant Treasurer |
| |
|
| |
FORD CREDIT AUTO RECEIVABLES TWO LLC, |
| |
|
as Depositor |
| |
|
| |
By: |
/s/ Xxxx Xxxxxxxxxxx |
| |
Name: |
Xxxx Xxxxxxxxxxx |
| |
Title: |
President and Assistant Treasurer |
[Signature Page to Receivables Purchase Agreement]
Schedule A
Schedule of Receivables
On File With Depositor at Closing
