ACCOUNT CONTROL AGREEMENT between FORD CREDIT AUTO OWNER TRUST 2009-E, as Grantor and THE BANK OF NEW YORK MELLON as Indenture Trustee Dated as of November 1, 2009
Exhibit 99.4
Execution
Copy
between
as
Grantor
and
THE BANK
OF NEW YORK MELLON
as
Indenture Trustee
Dated as
of November 1, 2009
TABLE OF
CONTENTS
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ARTICLE
I
|
USAGE
AND DEFINITIONS
|
1
|
|
Section
1.1.
|
Usage
and Definitions
|
1
|
|
ARTICLE
II
|
ESTABLISHMENT
OF COLLATERAL ACCOUNTS
|
1
|
|
Section
2.1.
|
Description
of Account
|
1
|
|
Section
2.2.
|
Account
Modifications
|
1
|
|
Section
2.3.
|
Type
of Account
|
1
|
|
Section
2.4.
|
Securities
Account Provisions
|
1
|
|
ARTICLE
III
|
SECURED
PARTY CONTROL
|
2
|
|
Section
3.1.
|
Control
for Purposes of UCC
|
2
|
|
Section
3.2.
|
Conflicting
Orders or Instructions
|
2
|
|
ARTICLE
IV
|
INVESTMENT
OF FUNDS IN THE COLLATERAL ACCOUNTS
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2
|
|
Section
4.1.
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Investment
of Funds
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2
|
|
ARTICLE
V
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SUBORDINATION
OF FINANCIAL INSTITUTION'S LIEN; WAIVER OF
SET-OFF
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3
|
|
Section
5.1.
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Subordination
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3
|
|
Section
5.2.
|
Set-off
and Recoupment
|
3
|
|
ARTICLE
VI
|
OTHER
AGREEMENTS
|
3
|
|
Section
6.1.
|
Adverse
Claim
|
3
|
|
Section
6.2.
|
Correspondence,
Statements and Confirmations
|
3
|
|
Section
6.3.
|
Representation
of the Financial Institution
|
3
|
|
Section
6.4.
|
Release
of Financial Institution
|
3
|
|
Section
6.5.
|
Termination
|
3
|
|
Section
6.6.
|
Existence
of Other Agreements
|
4
|
|
Section
6.7.
|
Notice
|
4
|
|
ARTICLE
VII
|
MISCELLANEOUS
|
4
|
|
Section
7.1.
|
Amendment
|
4
|
|
Section
7.2.
|
Conflict
With Other Agreement
|
4
|
|
Section
7.3.
|
Location
of Financial Institution
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4
|
|
Section
7.4.
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GOVERNING
LAW
|
5
|
|
Section
7.5.
|
Submission
to Jurisdiction
|
5
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|
Section
7.6.
|
WAIVER
OF JURY TRIAL
|
5
|
|
Section
7.7.
|
Successors
|
5
|
|
Section
7.8.
|
Notices
|
5
|
|
Section
7.9.
|
Severability
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6
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|
Section
7.10.
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Counterparts
|
6
|
|
Section
7.11.
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Headings
|
6
|
i
ACCOUNT
CONTROL AGREEMENT, dated as of November 1, 2009 (this "Agreement"), among
FORD CREDIT AUTO OWNER TRUST 2009-E, a Delaware statutory trust, as Grantor, THE
BANK OF NEW YORK MELLON, a New York banking corporation, as Indenture Trustee
for the benefit of the Noteholders, (in such capacity, the "Secured Party") and
THE BANK OF NEW YORK MELLON in its capacity as both a "securities intermediary"
as defined in Section 8-102 of the UCC and a "bank" as defined in Section 9-102
of the UCC (in such capacities, the "Financial
Institution").
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 November 1, 2009, among Ford Credit Auto Owner Trust 2009-E, 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. All references to the "UCC" mean the Uniform
Commercial Code as in effect in the State of New York.
ARTICLE
II
ESTABLISHMENT
OF COLLATERAL ACCOUNTS
Section
2.1. Description of
Account. The Financial Institution has established the
following accounts (each, a "Collateral
Account"):
"Collection
Account – The Bank of New York Mellon as Indenture Trustee, as secured party for
Ford Credit Auto Owner Trust 2009-E" with account number 236125;
"Reserve
Account – The Bank of New York Mellon as Indenture Trustee, as secured party for
Ford Credit Auto Owner Trust 2009-E" with account number 236126;
and
"Principal
Payment Account – The Bank of New York Mellon as Indenture Trustee, as secured
party for Ford Credit Auto Owner Trust 2009-E" with account number
236127.
Section
2.2. Account
Modifications. Neither the Financial Institution nor the
Grantor will change the name or account number of any Collateral Account without
the prior written consent of the Secured Party.
Section
2.3. Type of
Account. The Financial Institution agrees that each Collateral
Account is, and will be maintained as, either (i) a "securities account" (as
defined in Section 8-501 of the UCC) or (ii) a "deposit account," as defined in
Section 9-102(a)(29) of the UCC).
Section
2.4. Securities Account
Provisions. If and to the extent any Collateral Account is a
securities account (within the meaning of Section 8-501 of the UCC) the
Financial Institution agrees that:
(a) all
securities, financial assets or other investment property (other than cash)
credited to each Collateral Account will be registered in the name of the
Financial Institution,
indorsed
to the Financial Institution or in blank or credited to another securities
account maintained in the name of the Financial Institution. In no
case will any financial asset credited to any Collateral Account be registered
in the name of the Grantor, payable to the order of the Grantor or specially
indorsed to the Grantor unless the foregoing have been specially indorsed to the
Financial Institution or in blank; and
(b) all
financial assets delivered to the Financial Institution pursuant to the
Indenture will be promptly credited to the appropriate Collateral Account; and
each item of property (whether investment property, financial asset, security or
instrument) credited to any Collateral Account will be treated as a "financial
asset" within the meaning of Section 8-102(a)(9) of the UCC.
ARTICLE
III
SECURED
PARTY CONTROL
Section
3.1. Control for Purposes of
UCC. If the Financial Institution receives any order from the
Secured Party or its authorized agent (i) directing disposition of funds in any
Collateral Account or (ii) directing transfer or redemption of the financial
assets relating to the Collateral Accounts (a "Secured Party
Order"), the Financial Institution will comply with the Secured Party
Order without further consent by the Grantor or any other person.
Section
3.2. Conflicting Orders or
Instructions. Notwithstanding anything to the contrary
contained herein, if at any time, the Financial Institution receives conflicting
orders or instructions from the Secured Party and the Grantor, the Financial
Institution will follow the orders or instructions of the Secured Party and not
the Grantor. The Financial Institution will (i) have no obligation to
investigate or inquire as to whether the Secured Party is entitled pursuant to
the Indenture or otherwise to deliver any Secured Party Order and (ii) be
entitled to rely on communications (including Secured Party Orders) believed by
it in good faith to be genuine and given by the appropriate party.
ARTICLE
IV
INVESTMENT
OF FUNDS IN THE COLLATERAL ACCOUNTS
Section
4.1. Investment of
Funds. If (i) the Financial Institution has not otherwise
received a Secured Party Order regarding the investment of funds held in the
Collateral Accounts by 11:00 a.m. New York time (or such other time as may be
agreed between the Financial Institution and the Grantor) on the Business Day
preceding a Payment Date, or (ii) a Default or Event of Default has occurred and
is continuing with respect to the Notes and the Indenture Trustee has provided
notice of such continuing Default or Event of Default to the Financial
Institution, the Financial Institution will, to the fullest extent practicable,
invest and reinvest funds on deposit in such Collateral Account in one or more
investments described in clause (b) of the definition of Permitted
Investments.
2
ARTICLE
V
SUBORDINATION
OF FINANCIAL INSTITUTION'S LIEN; WAIVER OF SET-OFF
Section
5.1. Subordination. If
the Financial Institution has, or subsequently obtains, by agreement, by
operation of law or otherwise a security interest in any Collateral Account (or
any portion thereof), the Financial Institution agrees that such security
interest will be subordinate to the security interest of the Secured
Party.
Section
5.2. Set-off and
Recoupment. The financial assets, money and other items
credited to each Collateral Account will not be subject to deduction, set-off,
recoupment, banker's lien, or any other right in favor of any person other than
the Secured Party. However, the Financial Institution may set off (i)
all amounts due to the Financial Institution in respect of customary fees and
expenses for the routine maintenance and operation of each Collateral Account,
(ii) the face amount of any checks which have been credited to a Collateral
Account but are subsequently returned unpaid because of uncollected or
insufficient funds and (iii) any advances made in connection with the settlement
of any investment made with respect to the Collateral Accounts.
ARTICLE
VI
OTHER
AGREEMENTS
Section
6.1. Adverse
Claim. Except for the claims and interests of the Secured
Party and the Grantor, the Financial Institution does not know of any lien on,
or claim to, or interest in, any Collateral Account or in any
"financial asset" (as defined in Section 8-102(a) of the UCC), cash or funds
credited thereto.
Section
6.2. Correspondence, Statements
and Confirmations. The Financial Institution will promptly
send copies of all statements, confirmations and other correspondence concerning
any Collateral Account and, if applicable, any financial assets credited
thereto, simultaneously to the Grantor and the Secured Party.
Section
6.3. Representation of the
Financial Institution. The Financial Institution represents
that this Agreement is the valid and legally binding obligation of the Financial
Institution.
Section
6.4. Release of Financial
Institution. The Grantor and the Secured Party agree that the
Financial Institution is released from any and all liabilities to the Grantor
and the Secured Party arising from the terms of this Agreement and the
compliance of the Financial Institution with the terms hereof, except to the
extent that such liabilities arise from the Financial Institution's
negligence. In no event will the Financial Institution be liable,
directly or indirectly, to any person or entity for any indirect, special,
incidental or consequential damages of any kind whatsoever (including lost
profit), even if the Financial Institution has been advised of the likelihood of
such loss or damage and regardless of the form of action.
Section
6.5. Termination. The
obligations of the Financial Institution to the Secured Party pursuant to this
Agreement will continue in effect until the security interests of the Secured
Party in each Collateral Account have been terminated pursuant to the terms of
the Indenture and
3
the
Secured Party has notified the Financial Institution of such termination in
writing. The Financial Institution may terminate its obligations
under this Agreement if the Secured Party resigns or is removed as Indenture
Trustee pursuant to the Indenture, provided that such termination will not be
effective until the Collateral Accounts have been established with, and
transferred to, another securities intermediary which has agreed to assume the
obligations of the Financial Institution under this Agreement. The
termination of this Agreement will not terminate any Collateral Account or alter
the obligations of the Financial Institution to the Grantor pursuant to any
other agreement with respect to any Collateral Account.
Section
6.6. Existence of Other
Agreements. The Financial Institution confirms and agrees
that:
(a) There
are no other agreements entered into between the Financial Institution and the
Grantor with respect to any Collateral Account other than the
Indenture;
(b) The
Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person relating any
Collateral Account pursuant to which it has agreed to comply with entitlement
orders (as defined in Section 8-102(a)(8) of the UCC) or instructions (within
the meaning of Section 9-104 of the UCC) of such other person; and
(c) The
Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement purporting to limit or condition
the obligation of the Financial Institution to comply with entitlement orders or
instructions.
Section
6.7. Notice. If
any person asserts any lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against any Collateral Account (or in any financial asset, cash or funds carried
therein), the Financial Institution will promptly notify the Secured
Party.
ARTICLE
VII
MISCELLANEOUS
Section
7.1. Amendment. No
amendment or modification of this Agreement or waiver of any right under this
Agreement will be binding on any party to this Agreement unless it is in writing
and is signed by all of the parties to this Agreement.
Section
7.2. Conflict With Other
Agreement. In the event of any conflict between this Agreement
(or any portion thereof) and any other agreement now existing or hereafter
entered into, the terms of this Agreement will prevail.
Section
7.3. Location of Financial
Institution. Regardless of any provision in any other
agreement, for purposes of the UCC, New York will be the location of the bank
for purposes of Sections 9-301, 9-304 and 9-305 of the UCC and the securities
intermediary for purposes of Sections 9-301 and 9-305 and Section 8-110 of the
UCC.
4
Section
7.4. GOVERNING
LAW. THIS
AGREEMENT AND EACH COLLATERAL ACCOUNT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
7.5. 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
7.6. 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
7.7. Successors. The
terms of this Agreement will be binding upon, and will be for the benefit of,
the parties hereto and their respective successors and assigns and will apply to
any successor account to any Collateral Account.
Section
7.8. Notices. All
notices, requests, demands, consents, waivers or other communications to or from
the parties to this Agreement must be in writing and will be deemed to have been
given:
(i) upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 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, 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.
5
Section
7.9. 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
7.10. 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
7.11. Headings. The
headings in this Agreement are included for convenience only and will not affect
the meaning or interpretation of this Agreement.
[Remainder
of Page Intentionally Left Blank]
6
EXECUTED:
|
FORD
CREDIT AUTO OWNER TRUST 2009-E, as
Grantor
|
|||
| By: |
U.S.
BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity
but solely as Owner Trustee of Ford Credit Auto Owner Trust 2009-E |
||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Vice President | |||
|
THE
BANK OF NEW YORK MELLON, solely
in its capacity as "Indenture Trustee" for the
"Noteholders"
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|||
|
|
By:
|
/s/ ▇▇▇▇ Bourtman | |
| Name: ▇▇▇▇ Bourtman | |||
| Title: Senior Associate | |||
|
THE
BANK OF NEW YORK MELLON, as
securities intermediary
|
|||
|
|
By:
|
/s/ ▇▇▇▇ Bourtman | |
| Name: ▇▇▇▇ Bourtman | |||
| Title: Senior Associate | |||
[Signature
Page to Account Control Agreement]