PURCHASE AGREEMENT between FORD MOTOR CREDIT COMPANY, as Sponsor and FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor Dated as of August 1, 2006
between
FORD
MOTOR CREDIT COMPANY,
as
Sponsor
and
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
Dated
as
of August 1, 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
|
Accountants'
Letter
|
8
|
|
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
|
10
|
|
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 August 1, 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
(a) Effective
as of the Closing Date and immediately before the transactions pursuant to
the
Sale and Servicing Agreement, the Trust Agreement and the Indenture, the
Sponsor
sells to the Depositor, without recourse (subject to the obligations of the
Sponsor under this Agreement), all right, title and interest of the Sponsor,
whether now owned or hereafter acquired, in and to the Purchased
Property.
(b) In
consideration for the Purchased Property, the Depositor will pay to the Sponsor
$2,964,695,226.71
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 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 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.
3
(e) Insurance.
Each
Receivable requires the Obligor to obtain physical damage insurance covering
the
Financed Vehicle.
(f) Valid
Assignment.
No
Receivable has been originated in, or is subject to the laws of, any
jurisdiction under which the sale of such Receivable under this Agreement
would
be unlawful, void or voidable. The terms of the Receivable do not limit the
right of the owner of such Receivable to sell such Receivable. The Sponsor
has
not entered into any agreement with any Person that prohibits, restricts
or
conditions the sale of any Receivable by the Sponsor.
(g) Compliance
with Law.
Each
Receivable complied in all material respects at the time it was originated
and
as of the Closing Date will comply in all material respects with all
requirements of federal, State, and local laws.
(h) Binding
Obligation.
Each
Receivable is on a form contract that includes rights and remedies allowing
the
holder to enforce the obligation and realize on the Financed Vehicle and
represents the legal, valid and binding payment obligation of the Obligor,
enforceable in all material respects by the holder of the Receivable, except
as
may be limited by bankruptcy, insolvency, reorganization or other laws relating
to the enforcement of creditors' rights or by general equitable principles
and
consumer protection laws.
(i) Perfected
Ownership Interest in Financed Vehicle.
Each
Receivable is secured by a security interest in the related Financed Vehicle
in
favor of the Sponsor as secured party, which was validly created and is a
perfected, first priority security interest and is assignable by the Sponsor
to
the Depositor.
(j) Good
Title.
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 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.
(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.”
4
(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, counter-claim 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
other receivables of the Sponsor that meet the criteria specified in this
Section 3.2.
5
(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 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 requir-ing 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 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.
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 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.
7
(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 Accountants'
Letter.
The
Sponsor will cause an Independent firm of certified public accountants of
national reputation to deliver to the Depositor an “agreed upon procedures”
letter, dated the Closing Date with respect to the financial and statistical
information contained in the Prospectus relating to the Receivables, the
Sponsor’s portfolio and with respect to such other information, and in a form,
as may be mutually agreed upon by the Sponsor, the Depositor and the
Representatives. The letter will be addressed to the Issuer and the
Representatives provided they execute any required engagement letters or
other
acknowledgements required such Independent firm of certified public accountants.
The Sponsor will cooperate with the Depositor and such Independent firm of
certified public accountants in making available all information and taking
all
steps reasonably necessary to permit such accountants to deliver the
letter.
8
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.
(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.
9
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 reason-able 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.
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.
10
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:
|
/s/
X. X. Xxxxxx
|
|
Name:
Xxxxx 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
