PURCHASE AGREEMENT
Exhibit
99.2
Execution
Copy
between
FORD
MOTOR CREDIT COMPANY LLC,
as
Sponsor
and
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
Dated as
of June 1, 2009
TABLE OF
CONTENTS
|
ARTICLE
I
|
USAGE
AND DEFINITIONS
|
1
|
|
|
Section
1.1.
|
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
|
2
|
|
|
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.
|
6
|
|
|
Section
3.4.
|
Representations
and Warranties of the Depositor
|
7
|
|
|
ARTICLE
IV
|
COVENANTS
OF THE SPONSOR
|
8
|
|
|
Section
4.1.
|
Filing
and Maintenance of Financing Statements and Security
Interests.
|
8
|
|
|
Section
4.2.
|
Account
Records and Computer Systems.
|
9
|
|
|
Section
4.3.
|
Inspections
|
9
|
|
|
ARTICLE
V
|
MISCELLANEOUS
|
9
|
|
|
Section
5.1.
|
Amendment.
|
9
|
|
|
Section
5.2.
|
Notices
|
10
|
|
|
Section
5.3.
|
Costs
and Expenses
|
10
|
|
|
Section
5.4.
|
Third-Party
Beneficiaries
|
10
|
|
|
Section
5.5.
|
GOVERNING
LAW
|
10
|
|
|
Section
5.6.
|
Submission
to Jurisdiction
|
10
|
|
|
Section
5.7.
|
WAIVER
OF JURY TRIAL
|
11
|
|
|
Section
5.8.
|
Severability
|
11
|
|
|
Section
5.9.
|
Counterparts
|
11
|
|
|
Section
5.10.
|
Headings
|
11
|
|
|
Section
5.11.
|
No
Waiver; Cumulative Remedies
|
11
|
|
|
Exhibit
A
|
Schedule
of Receivables
|
A-1
|
|
i
PURCHASE
AGREEMENT, dated as of June 1, 2009 (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 assign, 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
Section
1.1. Usage and
Definitions. Capitalized terms used but not otherwise defined
in this Agreement are defined in Appendix A to the Sale and Servicing Agreement,
dated as of June 1, 2009, among Ford Credit Auto Owner Trust 2009-C, as Issuer,
Ford Credit Auto Receivables Two LLC, as Depositor, and Ford Motor Credit
Company LLC, as Servicer. 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 and assigns 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
$1,004,928,027.04 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 and assignment 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 and
assignment 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 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 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 authorized the execution, delivery and
performance of the terms 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 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
2
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:
(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
3
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
Security 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, or the Sponsor has commenced procedures
that will result in the perfection of a first priority security interest in the
related Financed Vehicle, and said security interest 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.
4
(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.
5
(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 the Credit
and Collection Policy.
(t) Scheduled
Payments. Each Receivable has a
first scheduled due date not later than 30 days after the Cutoff
Date.
(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 Section
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
6
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.
(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.
7
(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.
(d) The
Sponsor will not change its name in any manner that could make any financing
statement or continuation statement filed in accordance with this Section 4.1
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.
8
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.
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 the Noteholders of Class A Notes voting
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.
(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.
9
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, three 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
10
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.
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.
[Remainder
of Page Intentionally Left Blank]
11
EXECUTED
BY:
|
FORD
MOTOR CREDIT COMPANY LLC,
|
|||
|
as
Sponsor
|
|||
|
By:
|
/s/ Xxxxxx X.
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
