ADMINISTRATION AGREEMENT among FORD CREDIT AUTO OWNER TRUST 2006-C, as Issuer, FORD MOTOR CREDIT COMPANY, as Administrator and THE BANK OF NEW YORK, as Indenture Trustee Dated as of November 1, 2006
among
as
Issuer,
FORD
MOTOR CREDIT COMPANY,
as
Administrator
and
THE
BANK
OF NEW YORK,
as
Indenture Trustee
Dated
as
of November 1, 2006
TABLE
OF CONTENTS
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Page
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| ARTICLE I USAGE AND DEFINITIONS |
1
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| ARTICLE II ENGAGEMENT OF ADMINISTRATOR |
1
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Section
2.1
|
Engagement
|
1
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|
|
Section
2.2
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Compensation
|
1
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| ARTICLE III DUTIES OF THE ADMINISTRATOR |
1
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Section
3.1
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Duties
of the Administrator with Respect to the DTC Letter
|
1
|
|
|
Section
3.2
|
Duties
of the Administrator with Respect to the Indenture
|
1
|
|
|
Section
3.3
|
Additional
Duties
|
4
|
|
|
Section
3.4
|
Audits
of the Administrator
|
5
|
|
|
Section
3.5
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Additional
Information to Be Furnished to the Issuer
|
5
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|
|
Section
3.6
|
Prohibition
on Certain Actions
|
5
|
|
|
Section
3.7
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Duties
with Respect to the Interest Rate Swaps
|
6
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|
| ARTICLE IV INDEMNIFICATION |
7
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||
|
Section
4.1
|
Indemnification
|
7
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|
| ARTICLE V RESIGNATION AND REMOVAL OF THE ADMINISTRATOR; TERM OF AGREEMENT |
7
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||
|
Section
5.1
|
Resignation
and Removal of the Administrator
|
7
|
|
|
Section
5.2
|
Appointment
of Successor Administrator
|
8
|
|
|
Section
5.3
|
Action
upon Termination, Resignation or Removal
|
8
|
|
|
Section
5.4
|
Term
of Agreement
|
8
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| ARTICLE VI MISCELLANEOUS |
9
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|
Section
6.1
|
Independence
of the Administrator
|
9
|
|
|
Section
6.2
|
Transactions
with Affiliates; Other Transactions
|
9
|
|
|
Section
6.3
|
Amendments
|
9
|
|
|
Section
6.4
|
Notices
|
9
|
|
|
Section
6.5
|
Assignment
|
10
|
|
|
Section
6.6
|
Third-Party
Beneficiary
|
10
|
|
|
Section
6.7
|
GOVERNING
LAW
|
10
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|
|
Section
6.8
|
Submission
to Jurisdiction
|
10
|
|
|
Section
6.9
|
WAIVER
OF JURY TRIAL
|
10
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|
|
Section
6.10
|
Severability
|
10
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|
|
Section
6.11
|
Counterparts
|
10
|
|
|
Section
6.12
|
Headings.
|
10
|
|
|
Section
6.13
|
No
Petition
|
10
|
|
|
Section
6.14
|
Not
Applicable to Ford Credit in Other Capacities
|
11
|
|
|
Section
6.15
|
Limitation
of Liability of Owner Trustee and Indenture Trustee
|
11
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|
i
ADMINISTRATION
AGREEMENT, dated as of November 1, 2006 (this “Agreement”), among FORD CREDIT
AUTO OWNER TRUST 2006-C, a Delaware statutory trust, as Issuer, FORD MOTOR
CREDIT COMPANY, a Delaware corporation, as Administrator, and THE BANK OF NEW
YORK, a New York banking corporation, not in its individual capacity but solely
as Indenture Trustee.
BACKGROUND
The
Issuer was formed pursuant to the Trust Agreement and is issuing the Notes
pursuant to the Indenture.
The
Issuer has entered into certain agreements in connection with the issuance
of
the Notes, including the DTC Letter, the Interest Rate Swaps and the
Indenture.
The
Issuer and the Owner Trustee desire to have the Administrator perform certain
duties of the Issuer and the Owner Trustee under the Basic Documents on the
terms set forth 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
ENGAGEMENT
OF ADMINISTRATOR
Section
2.1
Engagement.
The
Issuer and the Owner Trustee engage the Administrator to perform certain duties
of the Issuer and the Owner Trustee under the Basic Documents on the terms
set
forth in this Agreement and the Administrator accepts such
engagement.
Section
2.2
Compensation.
As
compensation for the perfor-▇▇▇▇▇ of the Administrator's obligations under
this
Agreement and as reimbursement for its expenses related to its obligations
under
this Agreement, the Depositor will pay the Administrator a fee in an amount
agreed upon by the Depositor and the Administrator.
ARTICLE
III
DUTIES
OF
THE ADMINISTRATOR
Section
3.1
Duties
of the Administrator with Respect to the DTC Letter.
The
Administrator agrees to perform all its duties as Administrator and the duties
of the Issuer under the DTC Letter. The Administrator will monitor the
performance of the Issuer and will advise the Owner Trustee when action is
necessary to comply with the Issuer's duties under the DTC Letter. The
Administrator will prepare, or cause to be prepared, for execution by the
Issuer, or execute as Administrator on behalf of the Issuer, all documents,
reports, filings, instruments, certificates and opinions that are the duty
of
the Issuer to prepare, file or deliver pursuant to the DTC Letter.
Section
3.2
Duties
of the Administrator with Respect to the Indenture.
The
Administrator will consult with the Owner Trustee regarding the duties of the
Issuer under the Indenture. The Administrator will monitor the performance
of
the Issuer and will advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture. The Administrator will prepare,
or
cause to be prepared, for execution by the Issuer, or execute as Administrator
on behalf of the Issuer, all documents, reports, filings, instruments,
certificates and opinions that are the duty of the Issuer to prepare, file
or
deliver pursuant to the Indenture. In furtherance of the foregoing, the
Administrator will take all action that is the duty of the Issuer or the Owner
Trustee to take pursuant to the Indenture including (references are to sections
of the Indenture):
(a) preparing
or obtaining the documents and instruments required for authentication of the
Notes and delivering such documents and instru-ments to the Indenture Trustee
(Section 2.2);
(b) causing
the Note Register to be kept and giving the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or change in location,
of
the Note Register (Section 2.4(a));
(c) determining
whether the requirements of UCC Section 8-401(a) are met (Section 2.4(b) and
(c));
(d) determining
whether the requirements of UCC Section 8-405 are met (Section 2.5) and
preparing an Issuer Request requesting the Indenture Trustee to authenticate
and
deliver replacement Notes in lieu of mutilated, destroyed, lost or stolen Notes
(Section 2.5);
(e) causing
the Indenture Trustee to notify the Noteholders of the final principal payment
on their Notes (Section 2.7(b));
(f)
preparing
Definitive Notes in accordance with the instructions of the Clearing Agency
(Section 2.11);
(g) ensuring
that the Indenture Trustee maintains an office or agency in the Borough of
Manhattan, The City of New York, for registration of transfer or exchange of
Notes (Section 3.2);
(h) directing
the Indenture Trustee to deposit monies with any Note Paying Agents other than
the Indenture Trustee (Section 3.3);
(i)
causing
any newly appointed Note Paying Agents to deliver to the Indenture Trustee
the
instrument specified in the Indenture regarding funds held in trust (Section
3.3(c));
(j)
directing
any Note Paying Agent to pay to the Indenture Trustee all sums to be held by
the
Indenture Trustee (Section 3.3(d));
(k) obtaining
and preserving the Issuer's qualification to do business in each jurisdiction
in
which such qualification is or will be necessary to protect the validity and
enforceability of the Indenture, the Notes and the Collateral (Section
3.4);
(l)
preparing
all supplements and amendments to the Inden-ture and all financing statements,
continuation statements, instruments of further assurance and other instruments
as may be required in connection with such supple-ment or amendment and taking
such other action as is necessary or advisable to protect the Collateral
(Section 3.5);
(m) notifying
the Indenture Trustee in an Officer's Certificate of any Person with whom the
Issuer has contracted to perform its duties under the Indenture (Section
3.6(b));
2
(n) notifying
the Indenture Trustee and the Rating Agencies of any Event of Servicing
Termination under the Sale and Servicing Agreement and, if such Event of
Servicing Termination arises from the failure of the Servicer to perform any
of
its duties and obligations under the Sale and Servicing Agreement with respect
to the Receivables, taking all reasonable steps available to cause the Servicer
to remedy such failure (Section 3.6(d));
(o) delivering
the Opinion of Counsel on the Closing Date, the annual Opinions of Counsel
as to
the Collateral, the annual Officer's Certificate and certain other statements
as
to compliance with the Indenture (Sections 3.8 and 3.9);
(p) preparing
and obtaining the documents and instruments required for the consolidation
or
merger of the Issuer with or into any other Person or the conveyance or transfer
by the Issuer of any of its properties or assets to any other Person (Section
3.10);
(q) notifying
the Indenture Trustee and the Rating Agencies of each Event of Default under
the
Indenture (Section 3.15);
(r)
monitoring
the Issuer's obligations as to the satisfaction and discharge of the Indenture,
preparing an Officer's Certificate and obtaining the required Opinions of
Counsel (Section 4.1);
(s) notifying
the Indenture Trustee (with a copy of such notice to any Qualified Institution
or Qualified Trust Institution (if not the Indenture Trustee) maintaining any
Bank Accounts) of the occurrence of an event set forth in Section 5.1(a)(iii)
of
the Indenture, which with the giving of notice and the lapse of time would
become an Event of Default, describing such Default, the status of such Default
and what action the Administrator is taking or proposes to take with respect
to
such Default (Section 5.1);
(t)
complying
with any written directive of the Indenture Trustee with respect to the sale
of
the Collateral at one or more public or private sales called and conducted
in
any manner permitted by law if an Event of Default has occurred and is
continuing (Section 5.6);
(u) causing
the Servicer to comply with its duties and obligations under the Sale and
Servicing Agreement (Section 5.17);
(v) removing
the Indenture Trustee upon the occurrence of one the events specified in Section
6.8(b) of the Indenture and appointing a successor Indenture Trustee upon the
resignation or removal of the Indenture Trustee (Section 6.8);
(w) preparing
any written instruments required to confirm the authority of any co-trustee
or
separate trustee and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee (Section
6.10);
(x)
inspecting
the Indenture Trustee's books and records (Section 6.13);
(y) furnishing
the Indenture Trustee with the names and addresses of Noteholders during any
period when the Indenture Trustee is not the Note Registrar (Section
7.1);
(z) preparing
and, after execution by the Issuer, filing with the Securities and Exchange
Commission and delivering to the Indenture Trustee documents and reports
required to be filed with the Securities and Exchange Commission and any
additional information, documents and reports (or summaries) with respect to
compliance by the Issuer with the conditions and covenants of the Indenture
required to be filed with the Securities and Exchange Commission under rules
and
regulations prescribed by the Securities and Exchange Commission (Section
7.3);
3
(aa)
notifying
the Indenture Trustee of the listing of the Notes on any stock exchange (Section
7.4(b));
(bb)
preparing,
obtaining and filing the instruments, opinions, certificates and other documents
required for the release of property from the lien of the Indenture (Section
8.4);
(cc)
preparing
Issuer Orders and Officer's Certificates, provid-ing prior notice to the Rating
Agencies, obtaining Opinions of Counsel, Rating Agency Confirmations and the
necessary consents with respect to the execution of supplemen-tal indentures
and
preparing such supplemental indentures and notices with respect to the execution
of such supplemental indentures (Sections 9.1 and 9.2);
(dd)
causing
the execution of, and after execution by the Issuer, the delivery of new Notes
conforming to any supplemental indenture (Section 9.6);
(ee)
causing
the Indenture Trustee to notify the Noteholders of the redemption of the Notes
(Section 10.1);
(ff) preparing
all Officer's Certificates and obtaining Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuer to the Indenture Trustee
to take any action under the Indenture (Section 11.1(a));
(gg)
preparing
Officer's Certificates and obtaining Independent Certificates, if necessary,
for
the release of property from the lien of the Indenture (Section 11.1(c));
and
(hh)
effecting
the recording of the Indenture, if applicable, and obtaining an Opinion of
Counsel (Section 11.14).
Section
3.3 Additional
Duties.
(a) In
addition to the duties of the Administrator set forth in Sections 3.1 and 3.2,
the Administrator will perform calculations and will prepare, file and deliver
on behalf of the Issuer or the Owner Trustee, all such documents that the Issuer
or the Owner Trustee is required to prepare, file or deliver pursuant to the
Basic Documents, and at the request of the Owner Trustee will take all
appropriate action that the Issuer or the Owner Trustee is required to take
pursuant to the Basic Documents. Subject to Section 6.1 of this Agreement,
the
Administrator will administer, perform or supervise the performance of such
other activities in connection with the Collateral (including those under the
Basic Documents) that are not covered by any of the foregoing provisions and
that are expressly requested by the Owner Trustee and are reasonably within
the
capability of the Administrator, includ-ing:
(i)
obtaining and maintaining, at its own expense, any licenses required to be
obtained or maintained by the Issuer under the laws of any State in connection
with the Issuer's duties and obligations under the Basic Documents;
and
(ii) notifying
the Owner Trustee, on or before the Closing Date and from time to time
thereafter, of any licenses required to be obtained or main-tained by the
Owner
Trustee under the laws of any State in connection with the duties and
obligations of the Owner Trustee under the Basic Documents.
4
(b) The
Administrator will be responsible for performing the duties of the Owner Trustee
set forth in Section 2.11 of the Trust Agreement, except that if the Owner
Trustee is notified by the Administrator that the Issuer is deemed to be taxable
as a partnership for U.S. federal income tax purposes, the Owner Trustee will
retain responsibility for the distribution to the Depositor and the holder
of
the Residual Interest in the Issuer such information as may be required to
enable the Depositor and any such holder to prepare its U.S. federal and State
income tax returns.
(c) The
Administrator will be responsible for notifying the Owner Trustee if any
withholding tax is imposed on the Issuer's pay-ments (or allocations of income)
to the holder of the Residual Interest as contem-plated by Section 4.1(c) of
the
Trust Agreement, the amount of any withholding tax required to be withheld
by
the Owner Trustee pursuant to Section 4.1(c) of the Trust Agreement and the
procedures to be followed to comply with the requirements under the Code. The
Administrator will notify the Owner Trustee in each instance that any additional
tax withholding is subsequently required or any previously required tax
withholding is no longer required.
(d) The
Administrator will perform the duties of the Adminis-trator specified in Section
9.2 of the Trust Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee and any other duties required to
be
performed by the Administrator pursuant to the Trust Agree-ment.
(e) The
Administrator will either prepare, execute and deliver, or will direct the
Servicer or the Depositor, as applicable, to prepare, execute and deliver,
on
behalf of the Issuer all certificates and other documents required to be
delivered by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(f)
Upon
final distribution of any funds to the holder of the Residual Interest, the
Administrator will direct the Owner Trustee to cause the Certificate of Trust
to
be cancelled in accordance with Section 8.1(c) of the Trust
Agreement.
Section
3.4
Audits
of the Administrator.
The
Administrator will, upon reasonable prior notice, permit any authorized
representative of the Issuer, the Depositor, the Owner Trustee or the Indenture
Trustee, during the Administrator's normal business hours, to examine and audit
the books of account, records, reports and other documents and materials of
the
Administrator relating to the performance of the Administrator's obligations
under this Agreement. In addition, the Administrator will permit such
representatives to make copies and extracts of any such books and records and
to
discuss the same with the Administrator's officers and Independent certified
public accountants, all at such reasonable times and as often as may reasonably
be requested. Each of the Issuer, the Depositor, the Owner Trustee or the
Indenture Trustee will, and will cause its authorized representatives to, hold
in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment
are
unavailing) and except to the extent that such party, may reasonably determine
that such disclosure is consistent with its obligations under this
Agreement.
Section
3.5
Additional
Information to Be Furnished to the Issuer.
The
Administrator will furnish to the Issuer such additional information regarding
the Collateral as the Issuer may reasonably request.
Section
3.6
Prohibition
on Certain Actions.
Notwithstanding anything to the contrary in this Agreement, the Administrator
will not (a) make any payments to the Noteholders under the Basic Documents,
(b)
sell the Collateral pursuant to Section 5.6 of the Indenture or (c) take any
other action that the Owner Trustee or the Indenture Trustee directs the
Administrator not to take on its behalf.
5
Section
3.7
Duties
with Respect to the Interest Rate Swaps.
The
Administrator will consult with the Owner Trustee regarding the duties of the
Issuer under the Interest Rate Swaps. The Administrator will monitor the
performance of the Issuer and will advise the Owner Trustee when action is
necessary to comply with the Issuer's duties under the Interest Rate Swaps.
The
Administrator will prepare, or cause to be prepared, for execution by the
Issuer, or execute as Administrator on behalf of the Issuer, all documents
that
are the duty of the Issuer to prepare or deliver pursuant to the Interest Rate
Swaps. In furtherance of the foregoing, the Administrator will take all action
that is the duty of the Issuer or the Owner Trustee to take pursuant to the
Interest Rate Swaps including:
(a) Promptly
following the early termination of any Interest Rate Swap due to a Termination
Event or an Event of Default (as such terms are defined in each Interest Rate
Swap) (unless the Indenture Trustee is selling or liquidating the Collateral),
the Administrator will use reasonable efforts to cause the Trust to enter into
a
replacement interest rate swap on terms similar to those of such Interest Rate
Swap with an eligible swap counterparty. If any Swap Termination Payments that
are received from a Swap Counterparty are to be applied as an initial payment
to
a replacement Swap Counterparty, the Administrator will direct the Indenture
Trustee to retain such amounts and will provide the Indenture Trustee with
written instructions regarding the application and payment of such amounts.
If a
Swap Counterparty is required to collateralize the related
Interest Rate Swap, the Administrator will coordinate with the Indenture Trustee
the establishment of collateral accounts, the holding of securities deposited
therein and the investment of any cash deposited therein.
(b) The
Administrator will notify the Indenture Trustee of the occurrence or existence
of a default, event of default or similar condition or event with respect to
any
Swap Counterparty or any credit support provider for a Swap
Counterparty.
(c) The
Administrator will notify each Swap Counterparty of any proposed amendment
or
supplement to any of the Purchase Agreement, Sale and Servicing Agreement,
the
Indenture or the Trust Agreement and obtain the consent of each Swap
Counterparty, in each case if and to the extent required pursuant to such
agreement or the Interest Rate Swaps.
(d) The
Administrator will provide the Rating Agencies with a copy of any proposed
amendment or supplement to any Interest Rate Swap at least 5 days prior to
the
effective date of such amendment or supplement. Such proposed amendment or
supplement will be effective only after receipt of Rating Agency Confirmation,
unless such amendment or supplement clarifies any term or provision, corrects
any inconsistency, cures any ambiguity or corrects any typographical error
in
such Interest Rate Swap.
(e) The
Administrator is designated as the Calculation Agent (as such term is defined
in
each Interest Rate Swap) pursuant to the Interest Rate Swaps and will perform
such calculations and duties with respect to each Interest Rate Swap. The
Administrator will calculate and notify each Swap Counterparty and the Indenture
Trustee of the notional amount of the applicable Interest Rate Swap as of each
Payment Date on or before the 12th day of the month in which such Payment Date
occurs. The Administrator will also obtain the determination of LIBOR from
the
LIBOR Determination Agent under the Indenture, will calculate the amount of
all
Net Swap Payments, Net Swap Receipts and Swap Termination Payments payable
on
each Payment Date and will notify each Swap Counterparty and the Indenture
Trustee of such amounts prior to such Payment Date.
6
ARTICLE
IV
INDEMNIFICATION
Section
4.1 Indemnification.
(a) The
Depositor and the Administrator will indemnify, defend and hold harmless the
Indenture Trustee and its officers, directors, employees and agents, from and
against any and all costs, expenses, losses, damages, claims and liabilities
(including the reasonable compensation, expenses and disbursements of the
Indenture Trustee’s agents, counsel, accountants and experts) incurred by it in
connection with the administration of and the performance of its duties under
the Indenture, including the costs and expenses of defending itself against
any
loss, damage, claim or liability incurred by it in connection with the exercise
or performance of any of its powers or duties under the Indenture, but excluding
any cost, expense, loss, damage, claim or liability (i) incurred by the
Indenture Trustee through the Indenture Trustee’s willful misconduct, bad faith
or negligence (except for errors in judgment) or (ii) arising from the Indenture
Trustee’s breach of any of its representations or warranties set forth in the
Indenture.
(b) The
Depositor and the Administrator will indemnify, defend and hold harmless the
Owner Trustee and its officers, directors, employees and agents, from and
against any and all costs, expenses, losses, damages, claims and liabilities
(including the reasonable compensation, expenses and disbursements of the Owner
Trustee's agents, counsel, accountants and experts) incurred by it in connection
with the administration of and the performance of its duties under the Trust
Agreement, including the costs and expenses of defending itself against any
loss, damage, claim or liability incurred by it in connection with the exercise
or performance of any of its powers or duties under the Indenture, but excluding
any cost, expense, loss, damage, claim or liability (i) incurred by the Owner
Trustee through the Owner Trustee's own willful misconduct, bad faith or
negligence (except for errors in judgment) or (ii) arising from the Owner
Trustee’s breach of any of its representations or warranties set forth in the
Trust Agreement.
(c) Promptly
upon receipt by any
Indemnified Person of notice of the commencement of any Proceeding against
any
such Indemnified Person, such Indemnified Person will, if a claim in respect
of
such Proceeding is to be made against the Depositor or the Administrator under
Section 4.1(a) or (b), notify the Depositor and the Administrator of the
commencement of such Proceeding. The Depositor or the Administrator may
participate in and assume the defense and settlement of any such Proceeding
at
its expense, and no settlement of such Proceeding may be made without the
approval of the Depositor or the Administrator and such Indemnified Person,
which approvals will not be unreasonably withheld, delayed or conditioned.
After
notice from the Depositor or the Administrator to the Indem-nified Person of
the
Depositor's or the Administrator's intention to assume the defense of such
Proceeding with counsel reasonably satisfactory to the Indemnified Person,
and
so long as the Depositor or the Administrator so assumes the defense of such
Proceeding in a manner reasonably satisfactory to the Indemnified Person, as
applicable, the Depositor or the Administrator will not be liable for any legal
expenses of counsel to the Indemnified Person unless there is a conflict between
the interests of the Depositor or the Administrator and an Indemnified Person,
in which case the Depositor or the Administrator will pay for the separate
counsel to the Indemnified Person.
ARTICLE
V
RESIGNATION
AND REMOVAL OF THE ADMINISTRATOR;
TERM
OF
AGREEMENT
Section
5.1
Resignation
and Removal of the Administrator.
7
(a)
Subject
to Section 5.2(a), the Administrator may resign its duties under this Agreement
by providing the Issuer, the Owner Trustee and the Indenture Trustee with at
least 60 days' prior notice.
(b) Subject
to Section 5.2(a), if any of the following events occurs and is continuing,
the
Owner Trustee, with the consent of Noteholders of Notes evidencing not less
than
a majority of the Note Balance of the Controlling Class (or if no Notes are
outstanding, the holder of the Residual Interest), by notice to the
Administrator may terminate all of the rights and obligations of the
Administrator under this Agree-ment:
(i)
the Administrator defaults in the performance of any of its duties under
this
Agreement and, after notice of such default by the Issuer, the Indenture
Trustee
or the Owner Trustee, does not cure such default within 15 days
(or,
if such default cannot be cured in such time, does not give within 15 days
such
assurance of cure as is reasonably satisfactory to the Issuer); or
(ii) an
Insolvency Event occurs with respect to the Administrator.
(c) The
Administrator will notify the Issuer and the Indenture Trustee within 5 Business
Days after the occurrence of an Insolvency Event with respect to the
Administrator.
Section
5.2
Appointment
of Successor Administrator.
(a) No
resignation or removal of the Administrator pursuant to Section 5.1(a) or (b)
will be effective until (i) a successor Administrator has been appointed by
the
Issuer at the direction of Noteholders of at least a majority of the Note
Balance of the Controlling Class, or if no Notes are outstanding, by the holder
of the Residual Interest, (ii) such successor Administrator has executed,
acknowledged and delivered to the Issuer and to its predecessor Administrator
an
instrument accepting its appointment under this Agreement, and (iii) Rating
Agency Confirmation has been obtained with respect to the proposed appointment.
The Issuer will notify the Indenture Trustee of any such resignation or
removal.
(b) Upon
the
appointment of a successor Servicer pursuant to the Sale and Servicing
Agreement, the Administrator will immediately resign and such successor Servicer
will automatically become the Administrator under this Agreement.
Section
5.3
Action
upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant
to
Section 5.4 or the resignation or removal of the Administrator pursuant to
Sections 5.1 or 5.2(b), the Administrator will be entitled to be paid all fees
and reimbursable expenses accruing to it through the date of such termination,
resignation or removal. If this Agreement is terminated pursuant to Section
5.4,
the Administrator will promptly deliver to the Issuer all property and documents
relating to the Collateral then in the custody of the Administrator. If the
Administrator resigns or is removed pursuant to Sections 5.1 or 5.2(b), the
Administrator will cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties
of
the Administrator to the successor Administrator.
Section
5.4
Term
of Agreement.
This
Agreement will continue in force until the termination of the Issuer in
accordance with Section 8.1 of the Trust Agreement, upon which event this
Agreement will automatically terminate.
8
ARTICLE
VI
MISCELLANEOUS
Section
6.1
Independence
of the Administrator.
The
Administrator will be an independent contractor and will not be subject to
the
supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations under this Agree-ment.
Unless expressly authorized by the Issuer, the Administrator will have no
authority to act for or represent the Issuer or the Owner Trustee in any way
and
will not otherwise be deemed an agent of the Issuer or the Owner Trustee.
Nothing contained in this Agreement will constitute the Administrator and either
of the Issuer or the Owner Trustee as members of any partnership, joint venture
or other separate entity or impose any liability as such on any of
them.
Section
6.2
Transactions
with Affiliates; Other Transactions.
In
carrying out any of its obligations under this Agreement, the Administrator
may
enter into transactions or otherwise deal with any of its Affiliates. Nothing
in
this Agreement will prevent the Administrator or its Affiliates from engaging
in
other businesses or from acting in a similar capacity as an administra-tor
for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuer.
Section
6.3
Amendments.
This
Agreement may be amended by a written amendment executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the consent of the
Owner Trustee, without the consent of the Noteholders, so long as the Issuer
or
the Administrator delivers an Opinion of Counsel to the Indenture Trustee and
the Owner Trustee to the effect that such amendment will not materially
adversely affect the interest of the Noteholders. This Agreement also may be
amended by the Issuer, the Administrator and the Indenture Trustee with the
consent of the Owner Trustee and the Noteholders of a majority of the Note
Balance of the Notes Outstanding, provided that no such amendment may reduce
the
percentage of the Noteholders required to consent to any such amendment, without
the consent of each Noteholder adversely affected.
Section
6.4
Notices.
(a) All
notices, requests, demands, consents, waivers or other communications to or
from
the parties to this Agreement must be in writing and will be deemed to have
been
given:
(i)
upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 3 days after deposit in the mail,
(ii) in
the
case of a fax, when receipt is confirmed by telephone, reply email or reply
fax
from the recipient,
(iii) in
the
case of an email, when receipt is confirmed by telephone or reply email from
the
recipient, and
(iv) in
the
case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Any
such
notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to the Sale and Servicing Agreement or
at
such other address as any party may designate by notice to the other
parties.
9
(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
6.5
Assignment.
This
Agreement may not be assigned by the Administrator unless the Administrator
obtains the consent of the Issuer and the Owner Trustee and Rating Agency
Confirmation for such action. Notwithstanding the foregoing, this Agreement
may
be assigned by the Administrator without the consent of the Issuer or the Owner
Trustee or Rating Agency Confirmation to a Person that is a successor (by
merger, consolidation or purchase of assets) to the Administrator or to an
Affiliate of the Administrator, provided that such Person or such Affiliate
executes and delivers to the Issuer, the Owner Trustee and the Indenture Trustee
an agreement in which such Person or such Affiliate agrees to be bound under
this Agreement in the same manner as the Administrator is bound under this
Agreement. Subject to the foregoing, this Agreement will bind any successors
or
assigns of the parties to this Agreement.
Section
6.6
Third-Party
Beneficiary.
This
Agreement will inure to the benefit of and be binding upon the parties to this
Agreement. The Owner Trustee will be a third-party beneficiary of this
Agreement. Except as otherwise provided in this Agreement, no other Person
will
have any right or obligation under this Agreement.
Section
6.7
GOVERNING
LAW.
THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
Section
6.8 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
6.9
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
6.10 Severability.
If any
of the covenants, agreements or terms of this Agreement is held invalid, illegal
or unen-forceable, 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
6.11 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
6.12 Headings.The
headings in this Agreement are included for convenience only and will not affect
the meaning or interpretation of any provision of this Agreement.
Section
6.13 No
Petition.
10
(a) Notwithstanding
any prior termination of this Agreement, the Depositor, the Administrator,
the
Owner Trustee and the Indenture Trustee will not, before the date which is
1
year and 1 day after the termination of this Agreement, institute against,
or
join any other Person in instituting against, the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any U.S. federal or State bankruptcy or similar law in
connection with any obligations relating to the Notes, this Agreement or any
of
the Basic Documents.
(b) Notwithstanding
any prior termination of this Agreement, the Issuer, the Administrator, the
Owner Trustee and the Indenture Trustee will not, before the date which is
1
year and 1 day after the termination of this Agreement institute against, or
join any other Person in instituting against, the Depositor any bank-ruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any U.S. federal or State bankruptcy or similar law in
connection with any obligations relating to the Notes, this Agreement or any
of
the Basic Documents.
Section
6.14 Not
Applicable to Ford Credit in Other Capacities.
Nothing
in this Agreement will affect any right or obligation Ford Credit may have
in
any other capacity.
Section
6.15 Limitation
of Liability of Owner Trustee and Indenture Trustee.
(a) This
Agreement has been signed on behalf of the Issuer by U.S. Bank Trust National
Association not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer. In no event will U.S. Bank Trust National Association
in
its individual capacity or any beneficial owner of the Issuer have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Issuer under this Agreement or in any of the certificates, notices or
agreements delivered pursuant to this Agreement. For all purposes of this
Agreement, in the perfor-▇▇▇▇▇ of any duties or obligations of the Issuer under
this Agreement, the Owner Trustee will be subject to, and entitled to the
benefits of, the terms and provisions of the Trust Agreement.
(b) This
Agreement has been countersigned by The Bank of New York not in its individual
capacity but solely as Indenture Trustee. In no event will The Bank of New
York
have any liability for the representations, warranties, covenants, agreements
or
other obligations of the Issuer under this Agreement or in any of the
certificates, notices or agreements delivered pursuant to this Agreement, as
to
all of which recourse will be had solely to the assets of the
Issuer.
11
EXECUTED
BY:
|
as
Issuer
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but
|
|||
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solely
as Owner Trustee
|
|||
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By:
|
/s/
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
Trust Officer
|
|||
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THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as
|
|||
|
Indenture
Trustee
|
|||
|
By:
|
/s/
▇. ▇▇▇
|
||
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Name:
▇▇▇▇▇▇▇ ▇▇▇
|
|||
|
Title:
Assistant Vice President
|
|||
|
FORD
MOTOR CREDIT COMPANY,
|
|||
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as
Administrator
|
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By:
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/s/
▇. ▇. ▇▇▇▇▇▇
|
||
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
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Title:
Assistant Treasurer
|
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AGREED
AND ACCEPTED BY:
|
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
|
||
|
as
Depositor
|
||
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By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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||
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Title:
Secretary
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