ADMINISTRATION AGREEMENT among FORD CREDIT AUTO OWNER TRUST 2007-B, as Issuer, FORD MOTOR CREDIT COMPANY LLC, as Administrator and THE BANK OF NEW YORK, as Indenture Trustee Dated as of October 1, 2007
Exhibit
99.3
among
as
Issuer,
FORD
MOTOR CREDIT COMPANY LLC,
as
Administrator
and
THE
BANK
OF NEW YORK,
as
Indenture Trustee
Dated
as
of October 1, 2007
TABLE
OF CONTENTS
Page
|
ARTICLE
I 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
|
1
|
|
Section
3.3
|
Additional
Duties
|
4
|
|
Section
3.4
|
Audits
of the Administrator
|
5
|
|
Section
3.5
|
Additional
Information to Be Furnished to the Issuer
|
5
|
|
Section
3.6
|
Prohibition
on Certain Actions
|
6
|
|
Section
3.7
|
Duties
with Respect to the Interest Rate Swaps
|
6
|
|
ARTICLE
IV INDEMNIFICATION
|
7
|
|
|
Section
4.1
|
Indemnification
|
7
|
|
ARTICLE
V RESIGNATION AND REMOVAL OF THE ADMINISTRATOR; TERM OF
AGREEMENT
|
7
|
|
|
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
|
|
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
|
9
|
|
Section
6.5
|
Assignment
|
10
|
|
Section
6.6
|
Third-Party
Beneficiary
|
10
|
|
Section
6.7
|
GOVERNING
LAW
|
10
|
|
Section
6.8
|
Submission
to Jurisdiction
|
10
|
|
Section
6.9
|
WAIVER
OF JURY TRIAL
|
10
|
|
Section
6.10
|
Severability
|
10
|
|
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
|
i
ADMINISTRATION
AGREEMENT, dated as of October 1, 2007 (this "Agreement"), among FORD CREDIT
AUTO OWNER TRUST 2007-B, a Delaware statutory trust, as Issuer, FORD MOTOR
CREDIT COMPANY LLC, a Delaware limited liability company, 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.
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.
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.
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) 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(b));
(j) directing
any Note Paying Agent to pay to the Indenture Trustee all sums to be held by
the
Indenture Trustee (Section 3.3(c));
(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 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);
2
(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));
(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);
3
(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);
(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, 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);
(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,
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
4
(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 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
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
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.
5
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.
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 "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
Receipts 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, the 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 Calculation Agent under the
Indenture, will calculate the amount of all Net Swap Payments, Net Swap
Receipts, Swap Termination Payments and Swap Termination Receipts payable on
each Payment Date and will notify each Swap Counterparty and the Indenture
Trustee of such amounts prior to such Payment Date.
6
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 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 Depositor or the Administrator will pay for the separate counsel
to the Indemnified Person.
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 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 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
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.
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 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.
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 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.
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 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
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EXECUTED
BY:
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as
Issuer
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By:
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U.S.
BANK TRUST
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NATIONAL
ASSOCIATION,
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not
in its individual capacity but
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solely
as Owner Trustee
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice
President
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THE
BANK OF NEW YORK,
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not
in its individual capacity but solely as
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Indenture
Trustee
|
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇
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Title: Vice
President
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FORD
MOTOR CREDIT COMPANY LLC,
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as
Administrator
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By:
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/s/ M.B. ▇▇▇▇▇▇ | ||
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
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Title: Assistant
Treasurer
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AGREED
AND ACCEPTED BY:
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FORD
CREDIT AUTO RECEIVABLES TWO LLC,
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as
Depositor
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: Secretary
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