PURCHASE AGREEMENT between FORD MOTOR CREDIT COMPANY LLC, as Sponsor and FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor Dated as of January 1, 2008
Exhibit
99.2
between
FORD
MOTOR CREDIT COMPANY LLC,
as
Sponsor
and
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
Dated
as
of January 1, 2008
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
|
2
|
|||
|
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
|
Inspections
|
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
|
8
|
|||
|
Section
5.7
|
WAIVER
OF JURY TRIAL
|
8
|
|||
|
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 January 1, 2008 (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
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 sellsand assignsto
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$2,065,609,277.67in
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)
Organizationand
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
orguarantor,
(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 Formationor
the
Limited Liability Company
Agreementof 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
isenforceable 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 hasbeen 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
principaland
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. EachReceivable
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 Americaor
any State or local government or from
any agency, department, instrumentality or political subdivision of the
United Statesor
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 ofthe
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 Issuera
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
daysafter 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 Issuerunder
the Sale and Servicing Agreement
or by the Issuerto
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 the Creditand
Collection Policy.
(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 Breachof
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
optionof
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 anyPurchase Amount in
accordance with Section 4.3(c) of the
Saleand
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
Amountis included in Available
Funds for a
Payment Date, the Depositor
will be deemed to have sold and assigned to the Sponsoras of the last day
ofthe
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 Issueror
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)
Organizationand
Qualification. The
Depositoris
duly organized and validly existing
as a limited liability company in good standing under the laws of the State
of
Delaware. The
Depositoris
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
Depositorhas
the power and authority to execute,
deliver and perform the terms of this Agreement. The Depositorhas
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 Depositoris
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
Depositorpursuant
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 LiabilityCompany Agreement,
or (iv) violate any
law or, to the Depositor's
knowledge, any order, rule or
regulation applicable to the Depositorof
any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over
the Depositoror
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 orcontinuation 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 oran
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 Statesand
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 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.
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 andits 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 tothe 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
theObligors
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 by the Independent firm of certified public
accountants. The Sponsor will cooperate with the Depositor and the
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
