EXHIBIT 99.3
================================================================================
PURCHASE AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Sponsor
and
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Depositor
Dated as of [__________], 2006
================================================================================
TABLE OF CONTENTS
ARTICLE I USAGE AND DEFINITIONS........................................... 1
ARTICLE II SALE AND PURCHASE OF RECEIVABLES............................... 1
Section 2.1 Sale of Purchased Property; Payment of Purchase Price... 1
Section 2.2 Savings Clause.......................................... 1
ARTICLE III REPRESENTATIONS AND WARRANTIES................................ 2
Section 3.1 Representations and Warranties of the Sponsor........... 2
Section 3.2 Representations and Warranties of the Sponsor About the
Receivables............................................. 3
Section 3.3 Repurchase of Receivables Upon Breach of Representations
or Warranties by the Sponsor............................ 6
Section 3.4 Representations and Warranties of the Depositor......... 6
ARTICLE IV COVENANTS OF THE SPONSOR....................................... 7
Section 4.1 Filing and Maintenance of Financing Statements and
Security Interests...................................... 7
Section 4.2 Account Records and Computer Systems.................... 8
Section 4.3 Inspections............................................. 8
Section 4.4 Treatment............................................... 8
Section 4.5 Accountants' Letter..................................... 9
ARTICLE V MISCELLANEOUS................................................... 9
Section 5.1 Amendment............................................... 9
Section 5.2 Notices................................................. 9
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.................................... 10
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
PURCHASE AGREEMENT, dated as of [____________], 2006 (this "Agreement"),
between FORD MOTOR CREDIT COMPANY, a Delaware corporation, as Sponsor, and FORD
CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited liability company, as
Depositor.
BACKGROUND
In the regular course of its business, the Sponsor purchases retail
installment sale contracts secured by new and used cars and light trucks from
motor vehicle dealers.
The Sponsor wishes to sell, and the Depositor wishes to purchase, a pool of
such contracts and related property on the terms and conditions in this
Agreement.
ARTICLE I
USAGE AND DEFINITIONS
Capitalized terms used but not otherwise defined in this Agreement are
defined in Appendix A to the Sale and Servicing Agreement. Appendix A also
contains rules as to usage applicable to this Agreement. Appendix A is
incorporated by reference into this Agreement.
ARTICLE II
SALE AND PURCHASE OF RECEIVABLES
Section 2.1 Sale of Purchased Property; Payment of Purchase Price.
(a) Effective as of the Closing Date and immediately before the
transactions pursuant to the Sale and Servicing Agreement, the Trust Agreement
and the Indenture, the Sponsor sells to the Depositor, without recourse (subject
to the obligations of the Sponsor under this Agreement), all right, title and
interest of the Sponsor, whether now owned or hereafter acquired, in and to the
Purchased Property.
(b) In consideration for the Purchased Property, the Depositor will
pay to the Sponsor $[_____] in cash by federal wire transfer (same day) funds on
the Closing Date. The Depositor and the Sponsor each represents and warrants to
the other that the amount of cash paid by the Depositor, together with the
increase in the value in the Sponsor's capital in the Depositor, is equal to the
fair market value of the Receivables.
(c) The sale of the Purchased Property made under this Agreement does
not constitute and is not intended to result in an assumption by the Depositor
of any obligation of the Sponsor to the Obligors, the Dealers or any other
Person in connection with the Purchased Property.
Section 2.2 Savings Clause. It is the intention of the Sponsor and the
Depositor that (i) the sale pursuant to Section 2.1 constitute an absolute sale
of the Purchased Property, conveying good title to the Purchased Property free
and clear of any Lien other than Permitted
Liens, from the Sponsor to the Depositor and (ii) the Purchased Property not be
a part of the Sponsor's estate in the event of a bankruptcy or insolvency of the
Sponsor. If, notwithstanding the intention of the Sponsor and the Depositor,
such sale is deemed to be a pledge in connection with a financing or is
otherwise deemed not to be a sale, the Sponsor grants, and the parties intend
that the Sponsor Grants, to the Depositor a security interest in all of the
Sponsor's right, title and interest in the Purchased Property to secure a loan
in an amount equal to all amounts payable by the Sponsor under this Agreement,
all amounts payable as principal or interest on the Notes, and all amounts
payable as servicing fees under the Sale and Servicing Agreement, and in such
event, this Agreement will constitute a security agreement under applicable law
and the Depositor will have all of the rights and remedies of a secured party
and creditor under the UCC.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Sponsor. The Sponsor
represents and warrants to the Depositor as of the date of this Agreement and as
of the Closing Date:
(a) Organization and Qualification. The Sponsor is duly incorporated
and validly existing as a corporation in good standing under the laws of the
State of Delaware. The Sponsor is qualified as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its properties or the conduct
of its activities requires such qualification, license or approval, unless the
failure to obtain such qualifications, licenses or approvals would not
reasonably be expected to have a material adverse effect on the Sponsor's
ability to perform its obligations under this Agreement.
(b) Power, Authorization and Enforceability. The Sponsor has the power
and authority to execute, deliver and perform the terms of this Agreement. The
Sponsor has duly authorized the execution, delivery and performance of the terms
of this Agreement. This Agreement is the legal, valid, binding and enforceable
obligation of the Sponsor, except as may be limited by insolvency, bankruptcy,
reorganization or other laws relating to the enforcement of creditors' rights or
by general equitable principles.
(c) No Conflicts and No Violation. The consummation of the
transactions contemplated by this Agreement, and the fulfillment of the terms of
this Agreement, will not (i) conflict with or result in a breach of the terms or
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, loan agreement, guarantee or similar agreement or instrument under which
the Sponsor is a debtor or guarantor, (ii) result in the creation or imposition
of any Lien upon any of the properties or assets of the Sponsor pursuant to the
terms of any such indenture, mortgage, deed of trust, loan agreement, guarantee
or similar agreement or instrument, (iii) violate the Certificate of
Incorporation or Bylaws 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.
2
(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 Issuer'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.
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 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.
3
(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 Sponsor has not
entered into any agreement with any Obligor that prohibits, restricts or
conditions the sale of the Receivables by the Sponsor.
(g) Compliance with Law. Each Receivable complied in all material
respects at the time it was originated and as of the Closing Date will comply in
all material respects with all requirements of federal, State, and local laws.
(h) Binding Obligation. Each Receivable is on a form contract that
includes rights and remedies allowing the holder to enforce the obligation and
realize on the Financed Vehicle and represents the legal, valid and binding
payment obligation of the Obligor, enforceable in all material respects by the
holder of the Receivable, except as may be limited by bankruptcy, insolvency,
reorganization or other laws relating to the enforcement of creditors' rights or
by general equitable principles and consumer protection laws.
(i) Perfected Ownership Interest in Financed Vehicle. Each Receivable
is secured by a security interest in the related Financed Vehicle in favor of
the Sponsor as secured party that will be a first priority, validly perfected
security interest in the Financed Vehicle in favor of the Sponsor as secured
party, which security interest is assignable by the Sponsor to the Depositor.
(j) Good Title. The Sponsor has not sold, assigned, pledged or Granted
a security interest in or otherwise transferred any Receivable to any Person
other than the Depositor. Immediately before the sale under this Agreement, the
Sponsor had good and marketable 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 and marketable title to each Receivable,
free and clear of any Lien other than Permitted Liens.
(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
4
to the security interest granted to the Depositor under this Agreement, by
the Depositor to the Issuer under the Sale and Servicing Agreement or by
the Issuer to the Indenture Trustee under the Indenture, or that has been
terminated.
(l) Chattel Paper. Each Receivable constitutes either "tangible
chattel paper" or "electronic chattel paper" within the meaning of the
applicable UCC and there is only one original authenticated copy of each
Receivable.
(m) Servicing. As of the Cutoff Date, each Receivable has been
serviced in compliance with all material requirements of federal, State and
local laws, and in compliance with the Credit and Collection Policy.
(n) No Bankruptcy. As of the Cutoff Date, the Sponsor has not received
actual notice that the Obligor on any Receivable is a debtor in a bankruptcy
proceeding.
(o) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from the
lien granted by the related Receivable in whole or in part.
(p) No Material Amendments or Modifications. No material provision of
a Receivable has been affirmatively amended, except amendments and modifications
that are contained in the Receivables Files. No Receivable has been amended or
rewritten to extend the due date for any payment date other than in connection
with a change of the monthly due date in accordance with the Credit and
Collection Policy.
(q) No Defenses. To the Sponsor's knowledge, no right of rescission,
setoff, counterclaim or defense has been asserted or threatened with respect to
any Receivable.
(r) No Payment Default. Except for payments that are not more than 30
days Delinquent as of the Cutoff Date, no payment defaults exist.
(s) Maturity of Receivables. Each Receivable has an original maturity
of not greater than 72 months, provided that the first month of the Receivable
may consist of up to 45 days as a result of the monthly due date selected by the
Obligor in accordance with Ford Credit's policies and procedures.
(t) Scheduled Payments. Each Receivable has a first scheduled due date
not later than 30 days after the Cutoff Date.
(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 those 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.
5
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 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 after the Responsible Person obtains actual knowledge or is notified of
such breach, the Sponsor will repurchase such Receivable as of such last day
(or, at the Sponsor's option, the last day of the first full Collection Period
after the Responsible Person obtains actual knowledge or is notified of such
breach) at a price equal to the Purchase Amount. The Sponsor will deposit or
cause to be deposited into the Collection Account the Purchase Amount for any
Receivable that it is repurchasing on the Business Day immediately preceding the
Payment Date (or, with Rating Agency Confirmation, on such Payment Date) related
to the Collection Period as of which such repurchase occurs.
(b) The sole remedy for a breach of the Sponsor's representations and
warranties made in Section 3.2 is to repurchase the Receivable as set forth in
3.3(a). The Depositor will enforce the Sponsor's repurchase obligation pursuant
to Section 3.3(a). None of the Servicer, the Owner Trustee, the Indenture
Trustee, the Sponsor or the Administrator will have any duty to conduct an
investigation as to the occurrence of any condition requiring the repurchase of
any Receivable pursuant to Section 3.3(a).
(c) Upon the Sponsor's payment of the Purchase Amount, the Depositor
will be deemed to have sold and assigned to the Sponsor, 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 may xxxx its computer records
indicating that any receivable purchased pursuant to Section 3.3(a) is no longer
a Receivable, file UCC termination or amendment statements or take any other
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.
6
(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.
(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
7
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 by the Depositor in
accordance with Section 4.1(a) or Section 4.1(b) seriously misleading within the
meaning of Section 9-506 of the UCC, unless it has given the Depositor at least
5 days' prior notice of such change and promptly files appropriate amendments to
all previously filed financing statements.
Section 4.2 Account Records and Computer Systems.
(a) The Sponsor will maintain accurate accounts and records for each
Receivable in sufficient detail to indicate the status of such Receivable,
including payments and collections made and payments owing (and the nature of
each).
(b) The Sponsor will maintain its computer systems so that, from and
after the Closing Date, the master computer records for the Receivables indicate
clearly that each Receivable is owned by the Depositor or its assignee, which
indication of ownership will not be deleted from or modified until the
Receivable has been paid in full by the Obligor or repurchased by the Sponsor or
the Depositor or purchased or sold by the Servicer under any Basic Document.
Section 4.3 Inspections. The Sponsor, upon receipt of reasonable prior
notice, will permit the Depositor and its agents at any time during the
Sponsor's normal business hours to inspect, audit and make copies of and
abstracts from the Sponsor's records regarding any Receivable subject to the
Sponsor's normal security and confidentiality procedures and subject to the
terms and conditions of a confidentiality agreement satisfactory to the Sponsor.
Nothing in this Section 4.3 will affect the obligation of the Sponsor to observe
any privacy and confidentiality law prohibiting disclosures of information
regarding the Obligors and the failure of the Sponsor to provide access as a
result of such obligations will not constitute a breach of this Section 4.3.
Section 4.4 Treatment. The Sponsor will treat the sale of the Purchased
Property contemplated by this Agreement as a sale for all purposes including
financial accounting purposes (but not for tax purposes) on all of its books,
records, financial statements and other documents.
8
Section 4.5 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. Such letter will be addressed to the Issuer
and the Representatives provided they execute any required engagement letters
or other acknowledgements required such Independent firm of certified public
accountants. The Sponsor will cooperate with the Depositor and such Independent
firm of certified public accountants in making available all information and
taking all steps reasonably necessary to permit such accountants to deliver the
letter.
ARTICLE V
MISCELLANEOUS
Section 5.1 Amendment.
(a) This Agreement may be amended by the Depositor and the Sponsor for
any purpose if either (i) the Depositor or the Sponsor delivers an Opinion, 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.
(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,
9
(iii) in the case of an email, when receipt is confirmed by
telephone, 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.
10
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.
11
EXECUTED BY:
FORD MOTOR CREDIT COMPANY,
as Sponsor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT A
Schedule of Receivables
Delivered to Depositor on CD-ROM at Closing
A-1
