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Execution Version
Ford Credit Auto
Receivables Two LLC
Ford Credit Auto Owner Trust 2008-B
Asset-Backed Securities
Underwriting
Agreement
April 15,
2008
Barclays Capital
Inc.
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
each as an Underwriter
and as a Representative
of the other Underwriters named in
the Terms
Annex
Ladies and
Gentlemen:
1.
Introduction
. Ford Credit Auto Receivables Two
LLC, a Delaware limited liability company (the "
Depositor
"), formed under the Amended and
Restated Certificate of Formation of Ford Credit Auto
Receivables Two LLC (such certificate, the "
Certificate of
Formation ") and
operating pursuant to an Amended and Restated Limited Liability
Company Agreement, dated as of March 1, 2001 (the "
Limited Liability Company
Agreement "), executed
by Ford Motor Credit Company LLC, a Delaware limited liability
company (" Ford
Credit "), as sole
member, proposes to sell the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes (the " Publicly Registered Notes ") described in the Terms Annex (the "
Terms Annex
") that is attached as Annex A and
incorporated into and made part of this agreement (this
agreement including the Terms Annex, this "
Agreement
"). The Publicly Registered Notes
will be registered with the Securities and Exchange Commission
(the " Commission ") and will be sold to the applicable
underwriters listed in the Terms Annex through the
representatives (the " Representatives ") signing this Agreement on behalf of
themselves and such underwriters (the Representatives and the
other underwriters of the Publicly Registered Notes, the
" Underwriters "). Other capitalized terms used and not
defined in this Agreement will have the meanings given them in
Appendix A to the Sale and Servicing Agreement (defined below).
The rules of usage specified in the Sale and Servicing Agreement
will apply to this Agreement.
The Publicly
Registered Notes will be issued by a Delaware statutory trust
(the " Trust
") identified in the Terms Annex
and established under a trust agreement (the "
Trust Agreement
") between the Depositor and an
owner trustee (the " Owner Trustee "). Simultaneously with the issuance and sale
of the Publicly Registered Notes as contemplated in this
Agreement, the Trust will issue the Class A-1 Notes, (the
" Class A-1
Notes ") and the Class
B Notes, the Class C Notes and the Class D Notes (the "
Class B Notes,
" the " Class C Notes " and the " Class D Notes, " respectively, and, together with the Class
A-1 Notes and the Publicly Registered Notes, the "
Notes "). The Class A-1 Notes will be sold pursuant
to a note purchase agreement (the " Class A-1 Note Purchase
Agreement
"). The Class B Notes, the Class C
Notes and the Class D Notes will be retained by the Depositor.
Each of the Notes will be issued pursuant to an indenture (the
" Indenture
") between the Trust and an
indenture trustee (the " Indenture Trustee ") and will be secured by a pool of retail
installment sale contracts for new and used cars and light
trucks (the " Receivables ") and certain other property of the
Trust.
Ford Credit will
sell the Receivables to the Depositor pursuant to a purchase
agreement (the " Purchase Agreement ") and the Depositor will sell the Receivables
to the Trust pursuant to a sale and servicing agreement (the
" Sale and Servicing
Agreement "). Ford
Credit (in such capacity, the " Servicer ") will service the Receivables on behalf of
the Trust pursuant to the Sale and Servicing Agreement. Ford
Credit will also act as administrator for the Trust pursuant to
an administration agreement (the " Administration Agreement
") among Ford Credit, the Trust
and the Indenture Trustee.
In order to
perfect the security interest of the Indenture Trustee in
certain accounts, the Trust, the Indenture Trustee and the
financial institution acting as the securities intermediary will
enter into an account control agreement (the " Control
Agreement ").
The Receivables
pay interest at a fixed rate. If any of the Notes are issued as
floating rate notes, the Trust will enter into one or more
interest rate swap or cap agreements (each, an " Interest
Rate Swap ") to hedge its interest rate risk.
Ford Credit and
the Representatives have entered into an indemnification
agreement (the " Indemnification Agreement ").
The Trust
Agreement, the Purchase Agreement, the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the
Control Agreement and the Interest Rate Swaps (if any) are
collectively referred to as the " Basic Documents ." The
Basic Documents, the Indemnification Agreement and this
Agreement are collectively referred to as the "
Transaction
Documents ."
The Depositor has
prepared and filed with the Commission under the Securities Act
of 1933, as amended (the " Act "), and the rules and
regulations of the Commission under the Act (the "
Rules and
Regulations "), a
registration statement on Form S-3 (having the registration
number stated in the Terms Annex), including a form of
prospectus and all amendments that are required as of the date
of this Agreement relating to the Publicly Registered Notes and
the offering of notes from time to time in accordance with Rule
415 under the Act. The registration statement, as amended, has
been declared effective by the Commission. Such registration
statement, as amended at the time of effectiveness, including
all material incorporated by reference therein, is referred to
in this Agreement as the " Registration Statement ." The Depositor also has filed with, or will
file with, the Commission pursuant to Rule 424(b) ("
Rule 424(b)
") under the Act a prospectus
supplement relating to the Publicly Registered Notes (the
" Prospectus
Supplement "). The
prospectus relating to the Publicly Registered Notes in the form
first required to be filed to satisfy the condition set forth in
Rule 172(c) under the Act is referred to as the "
Base Prospectus
," and the Base Prospectus as
supplemented by the Prospectus Supplement required to be filed
to satisfy the condition set forth in Rule 172(c) under the Act
is referred to as the " Prospectus ." Any reference in this Agreement to the
Registration Statement, any preliminary prospectus used in
connection with the offering of the Publicly Registered Notes
described in the Terms Annex (the " Preliminary Prospectus ") or the Prospectus will be deemed to refer
to and include any exhibits thereto and any documents
incorporated by reference therein, as of the effective date of
the Registration Statement or the date of such Preliminary
Prospectus or Prospectus, as the case may be. The Depositor has
included certain static pool information (the "
Static Pool
Information ") relating
to prior securitized pools in Annex 1 to the Preliminary
Prospectus Supplement and the Prospectus Supplement.
At or prior to the
time that the Representatives first entered into 'contracts of
sale' (within the meaning of Rule 159 under the Act, the "
Contracts of Sale ") with investors in
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Publicly
Registered Notes, which time will be specified in the Terms
Annex (such time, the " Time of Sale "), the Depositor had prepared the Preliminary
Prospectus and the information (including any "free-writing
prospectus," as defined pursuant to Rule 405 under the Act (a
" Free Writing
Prospectus ")) listed
in the Terms Annex under "Time of Sale Information"
(collectively, the " Time of Sale Information
"). If, subsequent to the initial
Time of Sale, the Depositor and the Representatives determine
that such information included an untrue statement of material
fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading and the
Representatives advise the Depositor that investors in the
Publicly Registered Notes have elected to terminate their
initial Contracts of Sale and enter into new Contracts of Sale,
then the " Time of
Sale " will refer to
the time of entry into the first new Contract of Sale and the
" Time of Sale
Information " will
refer to the information available to purchasers at the time of
entry (prior to the Closing Date) into the first new Contract of
Sale, including any information that corrects such material
misstatements or omissions (such new information, the "
Corrective
Information ") and the
Terms Annex will be deemed to be amended to include such
Corrective Information in the Time of Sale Information.
Notwithstanding the foregoing, for the purposes of the
Indemnification Agreement and Section 7 hereof, in the event
that an investor elects not to terminate its initial Contract of
Sale and enter into a new Contract of Sale, "
Time of Sale
" will refer to the time of entry
into such initial Contract of Sale and " Time of Sale Information
" with respect to Publicly
Registered Notes to be purchased by such investor will refer to
information available to such purchaser at the time of entry
into such initial Contract of Sale.
2.
Representations and Warranties
of the Depositor . The
Depositor represents and warrants to and agrees with the
Underwriters that, as of the date of this Agreement:
(a)
Registration Statement and
Prospectus . The
Registration Statement has been declared effective by the
Commission under the Act; no stop order suspending the
effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose has been
instituted or, to the knowledge of the Depositor, threatened by
the Commission, and the Registration Statement and the
Prospectus and any amendment thereto, at the time the
Registration Statement became effective and as of the Time of
Sale complied, and as of the date of the Prospectus Supplement
will comply, in all material respects with the Act and the
Registration Statement, did not, at the time the Registration
Statement became effective or as of the Time of Sale, and will
not, on the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and as of the date of the Prospectus and
any amendment or supplement thereto and on the date of this
Agreement, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the
Depositor makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter
furnished to the Depositor in writing by such Underwriter
through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or
supplement thereto; and the conditions to the use by the
Depositor of a registration statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement and the
Prospectus. When the Indenture is executed by all the parties to
the Indenture, it will conform in all material respects with the
Trust Indenture Act of 1939, as amended (the "
TIA "), and at all times thereafter will be duly
qualified under the TIA.
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(b) Time of Sale Information . The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the
Depositor makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in
conformity with information furnished to the Depositor by an
Underwriter through the Representatives expressly for use in
such Time of Sale Information; provided that if
subsequent to the Time of Sale but prior to or on the Closing
Date the Depositor and the Representatives determine that the
Time of Sale Information included an untrue statement of
material fact or omitted to state a material fact necessary to
make the statements therein in light of the circumstances under
which they were made not misleading, for purposes of this
paragraph, Time of Sale Information will include any Corrective
Information provided to the Representatives or Underwriters by
the Depositor in accordance with Section 5(c).
(c) Trust Free Writing Prospectus
. Other than the Preliminary
Prospectus and the Prospectus, the Depositor (including its
agents and representatives other than the Underwriters in their
capacity as such) has not prepared or authorized, and will not
prepare or authorize any "written communication" (as defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Publicly Registered Notes
other than the documents, if any, listed as a Trust Free Writing
Prospectus (each, a " Trust Free Writing Prospectus
") under "Time of Sale
Information" in the Terms Annex. Each such Trust Free Writing
Prospectus complied in all material respects with the Act, has
been filed in accordance with Section 8 (to the extent required
by Rule 433 under the Act) and, when taken together with the
Preliminary Prospectus, such Trust Free Writing Prospectus, did
not at the Time of Sale, and at the Closing Date will not,
contain any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the
Depositor makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in
conformity with information furnished to the Depositor by an
Underwriter through the Representatives expressly for use in
such Trust Free Writing Prospectus.
(d) Documents Incorporated
by Reference . The documents
incorporated by reference in the Prospectus, when they were
filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively,
the " Exchange
Act "); and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations
thereunder.
(e) 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 the Transaction Documents to which it is a
party.
(f) No Conflicts and No
Violation . The consummation
of the transactions contemplated by the Transaction Documents to
which the Depositor is a party and the fulfillment of the terms
of the Transaction Documents to which the Depositor is a party
will not (i) conflict
4
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 the lien pursuant to
the Sale and Servicing 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 the Transaction Documents to which it is a
party.
(g) Power, Authorization and
Enforceability . The
Depositor has the power and authority to execute, deliver and
perform the terms of each of the Transaction Documents to which
it is a party. The Depositor has authorized the execution,
delivery and performance of the terms of this Agreement and on
the Closing Date, the other Transaction Documents to which the
Depositor will be a party will have been duly authorized,
executed and delivered by the Depositor. Each of the Transaction
Documents to which the Depositor will be a party is the legal,
valid and binding obligation of the Depositor enforceable
against the Depositor, except as may be limited by insolvency,
bankruptcy, reorganization or other laws relating to the
enforcement of creditors' rights generally or by general
equitable principles.
(h) Conformity of
Transaction Documents . The
Transaction Documents will conform to their descriptions in the
Prospectus in all material respects.
(i) Enforceability of
Notes . On the Closing Date,
the Publicly Registered Notes will have been duly executed,
issued and delivered, and when authenticated by the Indenture
Trustee and paid for by the Underwriters in accordance with this
Agreement, will constitute valid and binding obligations of the
Trust entitled to the benefits provided by the
Indenture.
(j) Schedule of Receivables
. The Schedule of Receivables to
be delivered by Ford Credit as sponsor under the Purchase
Agreement will be true and correct in all material respects as
of the date specified in the Schedule of Receivables.
(k) Representations and
Warranties in the Basic Documents . The representations and warranties of the
Depositor in the Basic Documents to which it will be a party
will be true and correct in all material respects as of the date
specified.
(l) Ineligible Issuer
. The Depositor is not, and on the
date on which the first bona fide offer of the Publicly
Registered Notes is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
(m) Static Pool
Information . The Static Pool
Information will be true and correct in all material respects as
of the date of the Preliminary Prospectus and as of the date of
the Prospectus.
3.
Purchase, Sale and Delivery of
the Notes . On the
Closing Date, on the basis of the representations, warranties
and agreements contained in this Agreement, but subject to
the
5
terms and conditions set forth in this Agreement,
the Depositor agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Depositor, the respective principal amounts of the Publicly
Registered Notes set forth opposite such Underwriter's name in the
Terms Annex. The Publicly Registered Notes will be purchased by the
Underwriters at the purchase prices set forth in the Terms
Annex.
Payment for the
Publicly Registered Notes will be made to the Depositor or to
its order by wire transfer of immediately available funds at
10:00 a.m., New York City time, on the closing date specified in
the Terms Annex (the " Closing Date ") or at such other time not later than seven
(7) full Business Days after such specified closing date as the
Representatives and the Depositor may determine.
Payment for the
Publicly Registered Notes will be made against delivery to the
Representatives, for the account of the Underwriters, at the
office of Dewey & LeBoeuf LLP, New York, New York, on the
Closing Date. Each of the Publicly Registered Notes to be so
delivered will be initially represented by one or more notes
registered in the name of Cede & Co., the nominee of The
Depository Trust Company (" DTC "). The interests of
beneficial owners of the Publicly Registered Notes will be
represented by book entries on the records of DTC and its
participating members.
4.
Offering by
Underwriters . The
Depositor understands that the Underwriters intend to offer the
Publicly Registered Notes for sale to the public (which may
include selected dealers) upon the terms set forth in the
Prospectus, in the Time of Sale Information and any Preliminary
Prospectus.
5.
Covenants of the
Depositor . The
Depositor covenants and agrees with the Underwriters:
(a)
Preparation of Offering
Documents . Immediately
following the execution of this Agreement, to prepare a
prospectus supplement setting forth such information from the
Terms Annex and such other information as the Depositor deems
appropriate.
(b) Filing of Prospectus
and any Trust Free Writing Prospectus . If required, to transmit the Prospectus to
the Commission within the applicable time period prescribed for
such filings under the Rules and Regulations by a means
reasonably calculated to result in a timely filing with the
Commission pursuant to Rule 424(b) and subject to Section 8,
file any Trust Free Writing Prospectuses to the extent required
by Rule 433 under the Act.
(c) Delivery of Proposed
Amendment or Supplement .
Prior to the Closing Date, to furnish the Representatives with a
copy of any proposed amendment or supplement to the Registration
Statement, the Prospectus or the Time of Sale Information and to
give the Representatives reasonable opportunity to review such
amendment or supplement before it is filed and to provide any
final Corrective Information to the Representatives or such
Underwriter at a time prior to the new Time of Sale reasonably
calculated to allow such Underwriter to provide such Corrective
Information to each investor at least 24 hours prior to the new
Time of Sale.
(d) Notice to the
Representatives . Prior to
the Closing Date, to advise the Representatives promptly (i)
when any amendment to the Registration Statement or supplement
to the Prospectus is filed or becomes effective, (ii) of any
request by the Commission for any amendment to the Registration
Statement or any supplement to the Prospectus, (iii) of any
stop
6
order issued by the Commission suspending the
effectiveness of the Registration Statement or the initiation or
threat of any proceeding for that purpose, and (iv) of the receipt
of any notification with respect to any suspension of the
qualification of the Publicly Registered Notes for offer and sale
in any jurisdiction or the initiation or threat of any proceeding
for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to
promptly use its best efforts to obtain its withdrawal.
(e) Blue Sky
Compliance . To endeavor to
qualify the Publicly Registered Notes for offer and sale under
the securities laws of such states as the Representatives may
reasonably request and to continue such qualifications in effect
so long as necessary under such laws for the distribution of
such Publicly Registered Notes; provided that the
Depositor will not be required to qualify as a foreign limited
liability company to do business, or to file a general consent
to service of process in any jurisdiction; and
provided further
that the expense of maintaining any such
qualification more than one year from the Closing Date with
respect to the Publicly Registered Notes will be at the
Representatives' expense.
(f) Delivery of Prospectus
. To furnish the Underwriters with
copies of the Prospectus as amended or supplemented in such
quantities as the Representatives may reasonably request prior
to the Closing Date. If the delivery of a prospectus is required
by law in connection with sales of any Publicly Registered Notes
in the six-month period following the Closing Date, and either
(i) an event has occurred as a result of which the Prospectus
would include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it is
necessary during such same period to amend or supplement the
Prospectus as amended or supplemented, to notify the
Representatives and to prepare and furnish to the
Representatives as the Representatives may from time to time
reasonably request an amendment or a supplement to the
Prospectus that will correct such statement or omission or
effect such compliance. If an Underwriter is required by law to
deliver a prospectus or other offering document in connection
with sales of any Publicly Registered Notes at any time six
months or more after the Closing Date, upon the Representatives'
request, but at the expense of such Underwriter, the Depositor
will prepare and deliver to such Underwriter as many copies as
the Representatives may reasonably request of an amended or
supplemented prospectus or offering document complying with the
Act.
(g) Earnings Statement
. To make generally available to
Noteholders as soon as practicable, but in any event no later
than eighteen months after the Closing Date, an earnings
statement for the Trust complying with Rule 158 under the Act
and covering a period of at least twelve consecutive months
beginning after the Closing Date; provided that this
covenant may be satisfied by posting the monthly investor report
for the Trust on a publicly available website.
(h) Payment of Costs and
Expenses . To pay or cause to
be paid the following costs and expenses incident to the
performance of its obligations hereunder: (i) the Commission's
filing fees with respect to the Publicly Registered Notes;
(ii) all fees of any rating agencies rating the Notes;
(iii) all fees and expenses of the Indenture Trustee and
the Owner Trustee; (iv) all reasonable fees and expenses of
counsel to the Indenture Trustee; (v) all reasonable fees and
expenses of counsel to the Owner Trustee; (vi) all fees and
expenses of the independent accountants relating to the letter
referred to in Section 6(a); (vii) all fees and expenses of
accountants incurred in connection with the delivery of any
accountants' or auditors' reports required pursuant to the
Indenture or the Sale and Servicing Agreement; (viii) the cost
of printing any preliminary and final prospectuses provided to
investors (including any amendments and supplements thereto
required within six months from the Closing Date pursuant to
Section
7
5(f)) relating to
the Publicly Registered Notes and the Registration
Statement; and (ix) any other fees and expenses incurred in
connection with the performance of its obligations
hereunder.
The Underwriters
will pay the following costs and expenses incident to the
performance of their obligations under this Agreement: (i) all
Blue Sky fees and expenses as well as reasonable fees and
expenses of counsel in connection with state securities law
qualifications and any legal investment surveys; and (ii) the
reasonable fees and expenses of counsel to the Underwriters.
Except as provided in this subsection (h) and Section 10, the
Underwriters will pay all their own costs and expenses,
including the cost of printing any agreement among underwriters,
transfer taxes on resale of the Publicly Registered Notes by the
Underwriters, and any advertising expenses in connection with
any offers that the Underwriters may make.
(i)
Delivery of Reports
. From the date of this Agreement
until the retirement of the Publicly Registered Notes, or until
such time as the Representatives advise the Depositor that the
Underwriters have ceased to maintain a secondary market in the
Publicly Registered Notes, whichever occurs first, to deliver to
the Representatives upon request to the extent not otherwise
available from any publicly available source copies of: (i) the
annual statement of compliance, the Servicer's report on its
assessment of compliance with the minimum servicing criteria and
the related attestation report delivered pursuant to Article III
of the Sale and Servicing Agreement, (ii) each certificate and
the annual statements of compliance delivered to the Indenture
Trustee pursuant to Article III of the Indenture, (iii) each
material amendment to any Basic Document and (iv) each monthly
investor report for the Trust.
(j) Cooperation with
Rating Agencies . If the
ratings provided with respect to the Publicly Registered Notes
by the rating agency or agencies that initially rate the
Publicly Registered Notes are conditional upon the furnishing of
documents or the taking of any other actions by the Depositor,
the Depositor will furnish such documents and take any such
other actions.
6.
Conditions of the Obligations
of the Underwriters .
The obligations of the Underwriters to purchase and pay for the
Publicly Registered Notes will be subject to the accuracy of the
representations and warranties of the Depositor in this
Agreement, to the accuracy of the statements of officers of the
Depositor and Ford Credit made pursuant to the provisions of
this Agreement, to the performance by the Depositor of its
obligations under this Agreement and to the following additional
conditions precedent:
(a)
Accountant's Letter
. On or prior to the Time of Sale
and on or prior to the Closing Date, PricewaterhouseCoopers LLP
(or other independent accountants reasonably acceptable to the
Representatives) will have furnished to the Representatives a
letter substantially in the form and substance of the draft to
which the Representatives previously agreed, concerning
information in the Preliminary Prospectus and the final
Prospectus, respectively.
(b) Registration
Compliance; No Stop Order .
The Prospectus and each Trust Free Writing Prospectus will have
been timely filed with the Commission under the Act (in the case
of an Trust Free Writing Prospectus, to the extent required by
Rule 433 under the Act) and in accordance with Section 5(b) of
this Agreement; and, as of the Closing Date, no stop order will
have been issued suspending the effectiveness of the
Registration Statement or any post-effective amendment, and no
proceedings for such purpose will be pending before or, to the
knowledge of the Depositor, threatened by the
Commission.
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(c) Officer's
Certificates as to Representations and Warranties
. The Representatives will have
received an officer's certificate dated the Closing Date of the
Chairman of the Board, the President, an Executive Vice
President, a Vice President, the Treasurer or any Assistant
Treasurer of:
(i)
Ford Credit, in which such officer
will state that, to his or her knowledge after reasonable
investigation, the representations and warranties of the
Servicer contained in the Sale and Servicing Agreement and of
Ford Credit contained in the Purchase Agreement are true and
correct in all material respects and that Ford Credit has
complied with all agreements and satisfied all conditions to be
performed by it or satisfied by it under such agreements in all
material respects.
(ii)
The Depositor, in which such
officer will state that, to his or her knowledge after
reasonable investigation, the representations and warranties of
the Depositor contained in the Trust Agreement, the Sale and
Servicing Agreement and the Purchase Agreement are true and
correct in all material respects, and that the Depositor has
complied with all agreements and satisfied all conditions to be
performed by it or satisfied by it under such agreements in all
material respects.
(d)
Officer's Certificates as to
Conditions Precedent. The Representatives will have received as of
the Closing Date an officer's certificate signed by the Chairman
of the Board, the President, an Executive Vice President, the
Treasurer or any Assistant Treasurer of the Depositor
representing and warranting that the representations and
warranties of the Depositor in this Agreement are true and
correct in all material respects, and that the Depositor has
complied with all agreements and satisfied all conditions to be
performed by it or satisfied by it under this Agreement in all
material respects.
(e) No
Material Adverse Change .
Since the dates as of which information is given in the
Preliminary Prospectus, as amended or supplemented, there has
not occurred any material adverse change, or any development
involving a prospective material adverse change, in or affecting
particularly (i) the business or assets of the Depositor, or any
material adverse change in the financial position or results of
operations of the Depositor or (ii) the business or assets of
Ford Credit and its subsidiaries considered as a whole, or any
material adverse change in the financial position or results of
operations of Ford Credit and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the
Prospectus, which in any case makes it impracticable or
inadvisable in the Representatives' reasonable judgment to
proceed with the public offering or the delivery of the Publicly
Registered Notes on the terms and in the manner contemplated in
the Prospectus.
(f) War Out
. Subsequent to the execution and
delivery of this Agreement, the United States has not become
engaged in hostilities which have resulted in the declaration of
a national emergency or a declaration of war, which makes it
impracticable or inadvisable in the Representatives' reasonable
judgment to proceed with the public offering or the delivery of
the Publicly Registered Notes on the terms and in the manner
contemplated in the Prospectus as amended or
supplemented.
(g) Inhouse Opinion.
Susan J. Thomas, Esq., Secretary
of the Depositor and Ford Credit and Associate General Counsel,
Global Structured Finance, of Ford Credit, or other counsel
satisfactory to the Representatives in their reasonable
judgment, will have furnished to
9
the Representatives, her written opinion, dated as
of the Closing Date, in form satisfactory to the Representatives in
their reasonable judgment, substantially to the effect that:
(i)
Ford Credit is validly existing
and in good standing as a limited liability company under the
Delaware Limited Liability Company Act, 6 Delaware Code
§18-101 et
seq. , as amended (the
" Delaware Limited
Liability Company Act "). Ford Credit is duly qualified to transact
business and is in good standing in each jurisdiction in the
United States of America in which the conduct of its business or
the ownership of its properties requires such qualification,
unless the failure to obtain such qualification would not
reasonably be expected to have a material adverse effect on the
ability of Ford Credit to perform its obligations under the
Transaction Documents to which it is a party.
(ii) Ford Credit has the
limited liability company power and authority to execute,
deliver and perform all its obligations under the Transaction
Documents to which it is a party under the Delaware Limited
Liability Company Act. Ford Credit has duly authorized the
execution and delivery of the Transaction Documents to which it
is a party and the consummation of the transactions contemplated
thereby by all requisite limited liability company action under
the Delaware Limited Liability Company Act. Ford Credit has duly
executed and delivered each of the Transaction Documents to
which it is a party under the Delaware Limited Liability Company
Act.
(iii) The Depositor is validly
existing and in good standing as a limited liability company
under the Delaware Limited Liability Company Act. The Depositor
is duly qualified to transact business and is in good standing
in each jurisdiction in the United States of America in which
the conduct of its business or the ownership of its properties
requires such qualification, unless the failure to obtain such
qualification would not reasonably be expected to have a
material adverse effect on the ability of the Depositor to
perform its obligations under the Transaction Documents to which
it is a party.
(iv) The Depositor has the limited
liability company power and authority to execute, deliver and
perform all its obligations under the Transaction Documents to
which it is a party under the Delaware Limited Liability Company
Act. The Depositor has duly authorized the execution and
delivery of the Transaction Documents to which it is a party and
the consummation of the transactions contemplated thereby by all
requisite action under the Delaware Limited Liability Company
Act. The Depositor has duly executed and delivered each of the
Transaction Documents to which it is a party under the Delaware
Limited Liability Company Act.
(v) The execution and delivery by
Ford Credit of each of the Transaction Documents to which it is
a party and the consummation by Ford Credit of the transactions
contemplated thereby, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default (in each case material to Ford Credit and its
subsidiaries considered as a whole) under or result in the
creation or imposition of any lien, charge or encumbrance (in
each case material to Ford Credit and its subsidiaries
considered as a whole), other than pursuant to the Transaction
Documents, upon any of the properties or assets of Ford Credit
pursuant to the terms of any indenture, mortgage, deed of trust,
loan
10
agreement, guarantee, lease financing agreement
or similar agreement or instrument known to me under which Ford
Credit is a debtor or guarantor, nor will such action conflict
with or violate any of the provisions of the Certificate of
Formation or the Limited Liability Company Agreement of Ford
Credit.
(vi) The execution and delivery by the
Depositor and the Trust of each of the Transaction Documents to
which it is a party and the consummation by each such Person of
the transactions contemplated thereby (including the issuance
and delivery of the Notes), will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a
default under or result in the creation or imposition of any
lien, charge or encumbrance, other than pursuant to the
Transaction Documents, upon any of the properties or assets of
the Depositor or the Trust pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument
under which the Depositor or the Trust is a debtor or guarantor,
nor will any such action conflict with or violate any of the
provisions of the Certificate of Formation or the LLC Agreement
of the Depositor or the Certificate of Trust or the Trust
Agreement of the Trust.
(vii) Such counsel does not
know of any legal or governmental proceedings pending or
threatened against Ford Credit, the De
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