ADMINISTRATION AGREEMENT among FORD CREDIT AUTO OWNER TRUST 2009-C,
Exhibit
99.3
Execution
Copy
among
as
Issuer,
FORD
MOTOR CREDIT COMPANY LLC,
as
Administrator
and
THE BANK
OF NEW YORK MELLON,
as
Indenture Trustee
Dated as
of June 1, 2009
TABLE OF
CONTENTS
|
ARTICLE
I
|
USAGE
AND DEFINITIONS
|
1
|
|
|
Section
1.1.
|
Usage
and Definitions
|
1
|
|
|
ARTICLE
II
|
ENGAGEMENT
OF ADMINISTRATOR
|
1
|
|
|
Section
2.1.
|
Engagement
|
1
|
|
|
Section
2.2.
|
Compensation
|
1
|
|
|
ARTICLE
III
|
DUTIES
OF THE ADMINISTRATOR
|
1
|
|
|
Section
3.1.
|
Duties
of the Administrator with Respect to the DTC Letter
|
1
|
|
|
Section
3.2.
|
Duties
of the Administrator with Respect to the Indenture
|
2
|
|
|
Section
3.3.
|
Additional
Duties.
|
5
|
|
|
Section
3.4.
|
Audits
of the Administrator
|
6
|
|
|
Section
3.5.
|
Additional
Information to Be Furnished to the Issuer
|
6
|
|
|
Section
3.6.
|
Prohibition
on Certain Actions
|
6
|
|
|
ARTICLE
IV
|
INDEMNIFICATION
|
7
|
|
|
Section
4.1.
|
Indemnification.
|
7
|
|
|
ARTICLE
V
|
RESIGNATION
AND REMOVAL OF THE ADMINISTRATOR; TERM OF AGREEMENT
|
8
|
|
|
Section
5.1.
|
Resignation
and Removal of the Administrator.
|
8
|
|
|
Section
5.2.
|
Appointment
of Successor Administrator.
|
8
|
|
|
Section
5.3.
|
Action
upon Termination, Resignation or Removal
|
9
|
|
|
Section
5.4.
|
Term
of Agreement
|
9
|
|
|
ARTICLE
VI
|
MISCELLANEOUS
|
9
|
|
|
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.
|
10
|
|
|
Section
6.5.
|
Assignment
|
10
|
|
|
Section
6.6.
|
Third-Party
Beneficiary
|
10
|
|
|
Section
6.7.
|
GOVERNING
LAW
|
11
|
|
|
Section
6.8.
|
Submission
to Jurisdiction
|
11
|
|
|
Section
6.9.
|
WAIVER
OF JURY TRIAL
|
11
|
|
|
Section
6.10.
|
Severability
|
11
|
|
|
Section
6.11.
|
Counterparts
|
11
|
|
|
Section
6.12.
|
Headings
|
11
|
|
|
Section
6.13.
|
No
Petition.
|
11
|
|
|
Section
6.14.
|
Not
Applicable to Ford Credit in Other Capacities
|
12
|
|
|
Section
6.15.
|
Limitation
of Liability of Owner Trustee and Indenture Trustee.
|
12
|
|
i
ADMINISTRATION
AGREEMENT, dated as of June 1, 2009 (this "Agreement"),
among FORD CREDIT AUTO OWNER TRUST 2009-C, a Delaware statutory trust, as
Issuer, FORD MOTOR CREDIT COMPANY LLC, a Delaware limited liability company, as
Administrator, and THE BANK OF NEW YORK MELLON, 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 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
Section
1.1. Usage and
Definitions. Capitalized terms used but not otherwise defined
in this Agreement are defined in Appendix A to the Sale and Servicing Agreement,
dated as of June 1, 2009, among Ford Credit Auto Owner Trust 2009-C, as Issuer,
Ford Credit Auto Receivables Two LLC, as Depositor, and Ford Motor Credit
Company LLC, as Servicer. 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 performance 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 instruments 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) causing
the Indenture Trustee to release property from the Lien of the Indenture
(Section 2.9);
(g) preparing
Definitive Notes in accordance with the instructions of the Clearing Agency
(Section 2.11);
(h) 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);
(i) directing
the Indenture Trustee to deposit monies with any Note Paying Agents other than
the Indenture Trustee (Section 3.3);
2
(j) 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(b));
(k) directing
any Note Paying Agent to pay to the Indenture Trustee all sums to be held by the
Indenture Trustee (Section 3.3(c));
(l) 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);
(m) preparing
all supplements and amendments to the Indenture and all financing statements,
continuation statements, instruments of further assurance and other instruments
as may be required in connection with such supplement or amendment and taking
such other action as is necessary or advisable to protect the Collateral
(Section 3.5);
(n) 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));
(o) 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));
(p) 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);
(q) 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);
(r) notifying
the Indenture Trustee and the Rating Agencies of each Event of Default under the
Indenture (Section 3.15);
(s) 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);
(t) notifying
the Indenture Trustee (with a copy of such notice to any Qualified 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);
3
(u) 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);
(v) causing
the Servicer to comply with its duties and obligations under the Sale and
Servicing Agreement (Section 5.17);
(w) 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);
(x) 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);
(y) inspecting
the Indenture Trustee's books and records (Section 6.13);
(z) 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);
(aa) 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);
(bb) notifying
the Indenture Trustee of the listing of the Notes on any stock exchange (Section
7.4(b));
(cc) preparing,
obtaining and filing the instruments, opinions, certificates and other documents
required for the release of property from the Lien of the Indenture (Sections
8.4 and 10.1);
(dd) preparing
Issuer Orders and Officer's Certificates, providing prior notice to the Rating
Agencies, obtaining Opinions of Counsel, Rating Agency Confirmations and the
necessary consents with respect to the execution of supplemental indentures and
preparing such supplemental indentures and notices with respect to the execution
of such supplemental indentures (Sections 9.1 and 9.2);
(ee) causing
the execution of, and after execution by the Issuer, the delivery of new Notes
conforming to any supplemental indenture (Section 9.6);
(ff) causing
the Indenture Trustee to notify the Noteholders of the redemption of the Notes
(Section 10.1);
4
(gg) 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));
(hh) 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
(ii) 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,
including:
(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 maintained 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.
(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 payments (or allocations of income)
to the holder of the Residual Interest as contemplated 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
5
tax withholding
is subsequently required or any previously required tax withholding is no longer
required.
(d) The
Administrator will perform the duties of the Administrator specified in Sections
7.2, 7.3 and 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
Agreement.
(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.
6
ARTICLE
IV
INDEMNIFICATION
Section
4.1. Indemnification.
(a) The
Depositor and the Administrator will, jointly and severally, indemnify, defend
and hold harmless the Indenture Trustee (in each of its capacities under the
Basic Documents, including as Financial Institution) 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 and the other Basic
Documents, 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, jointly and severally, 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 Indemnified 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
7
Depositor or the
Administrator will pay for the separate counsel to the Indemnified Person which
is reasonably satisfactory to the Administrator. The obligations of
the Administrator under this Article IV will survive the termination of this
Agreement.
ARTICLE
V
RESIGNATION
AND REMOVAL OF THE ADMINISTRATOR;
TERM OF
AGREEMENT
Section
5.1. Resignation
and Removal of the Administrator.
(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 Agreement:
(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 five
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.
8
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.
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 Agreement. 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 administrator 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.
9
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, three days after deposit in the mail;
(ii) in
the case of a fax, when receipt is confirmed by telephone, reply email or reply
fax from the recipient;
(iii) in
the case of an email, when receipt is confirmed by telephone or reply email from
the recipient; and
(iv) in
the case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Any such
notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to the Sale and Servicing Agreement or at
such other address as any party may designate by notice to the other
parties.
(b) Any
notice required or permitted to be mailed to a Noteholder must be sent by
overnight delivery, mailed by registered first class mail, postage prepaid, or
sent by fax, to the address of such Person as shown in the Note
Register. Any notice so mailed within the time prescribed in this
Agreement will be conclusively presumed to have been properly given, whether or
not the Noteholder receives such notice.
Section
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.
11
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 unenforceable, then it will be deemed severable from the remaining
covenants, agreements or terms of this Agreement and will in no way affect the
validity, legality or enforceability of the remaining Agreement.
Section
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.
(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 one
year and one day (or, if longer, any applicable preference period) after the
payment in full of the Notes, 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 one
year and one day (or, if longer, any applicable preference period) after the
payment in full of all securities issued by the Depositor or by a trust for
which the Depositor was depositor, institute against, or join any other Person
in instituting against, the Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings
under
11
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
performance 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 Mellon, not in its
individual capacity but solely as Indenture Trustee. In no event will
The Bank of New York Mellon 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.
[Remainder
of Page Intentionally Left Blank]
12
EXECUTED
BY:
|
as
Issuer
|
|||
|
By:
|
U.S.
BANK TRUST NATIONAL ASSOCIATION,
|
||
|
not
in its individual capacity but solely as Owner Trustee
|
|||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
||
|
Title:
|
Trust
Officer
|
||
|
THE
BANK OF NEW YORK MELLON,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇
▇▇▇▇▇
|
||
|
Title:
|
Vice
President
|
||
|
FORD
MOTOR CREDIT COMPANY LLC,
|
|||
|
as
Administrator
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
||
|
Title:
|
Assistant
Treasurer
|
||
AGREED
AND ACCEPTED BY:
| FORD CREDIT AUTO RECEIVABLES | ||
| TWO LLC, as Depositor | ||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
|
Secretary
|
|
[Signature
Page to Administration Agreement]