EXHIBIT 99.2
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ADMINISTRATION AGREEMENT
among
FORD CREDIT AUTO OWNER TRUST 2007-X,
as Issuer,
FORD MOTOR CREDIT COMPANY LLC,
as Administrator
and
THE BANK OF NEW YORK,
as Indenture Trustee
Dated as of [_____], 2007
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TABLE OF CONTENTS
Page
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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............................................................. 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.......... 8
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.................................................. 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................................................. 11
Section 6.13 No Petition.............................................. 11
Section 6.14 Not Applicable to Ford Credit in Other Capacities........ 11
Section 6.15 Limitation of Liability of Owner Trustee and Indenture
Trustee.................................................. 11
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ADMINISTRATION AGREEMENT, dated as of [_____], 2007 (this
"Agreement"), among FORD CREDIT AUTO OWNER TRUST 2007-X, 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.
ARTICLE I
USAGE AND DEFINITIONS
Capitalized terms used but not otherwise defined in this Agreement are
defined in Appendix A to the Sale and Servicing Agreement. Appendix A also
contains rules as to usage applicable to this Agreement. Appendix A is
incorporated by reference into this Agreement.
ARTICLE II
ENGAGEMENT OF ADMINISTRATOR
Section 2.1 Engagement. The Issuer and the Owner Trustee engage the
Administrator to perform certain duties of the Issuer and the Owner Trustee
under the Basic Documents on the terms set forth in this Agreement and the
Administrator accepts such engagement.
Section 2.2 Compensation. As compensation for the 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) 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);
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(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);
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(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
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(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.
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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 an Event of Default (as such terms are defined in
each Interest Rate Swap) (unless the Indenture Trustee is selling or liquidating
the Collateral), the Administrator will use reasonable efforts to cause the
Trust to enter into a replacement interest rate swap on terms similar to those
of such Interest Rate Swap with an eligible swap counterparty. If any Swap
Termination Payments that are received from a Swap Counterparty are to be
applied as an initial payment to a replacement Swap Counterparty, the
Administrator will direct the Indenture Trustee to retain such amounts and will
provide the Indenture Trustee with written instructions regarding the
application and payment of such amounts. If a Swap Counterparty is required to
collateralize the related Interest Rate Swap, the Administrator will coordinate
with the Indenture Trustee the establishment of collateral accounts, the holding
of securities deposited therein and the investment of any cash deposited
therein.
(b) The Administrator will notify the Indenture Trustee of the
occurrence or existence of a default, event of default or similar condition or
event with respect to any Swap Counterparty or any credit support provider for a
Swap Counterparty.
(c) The Administrator will notify each Swap Counterparty of any
proposed amendment or supplement to any of the Purchase Agreement, 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 LIBOR Determination Agent under the Indenture, will calculate the
amount of all Net Swap Payments, Net Swap Receipts and Swap
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Termination Payments payable on each Payment Date and will notify each Swap
Counterparty and the Indenture Trustee of such amounts prior to such Payment
Date.
ARTICLE IV
INDEMNIFICATION
Section 4.1 Indemnification.
(a) The Depositor and the Administrator will indemnify, defend
and hold harmless the Indenture Trustee and its officers, directors, employees
and agents, from and against any and all costs, expenses, losses, damages,
claims and liabilities (including the reasonable compensation, expenses and
disbursements of the Indenture Trustee's agents, counsel, accountants and
experts) incurred by it in connection with the administration of and the
performance of its duties under the Indenture, including the costs and expenses
of defending itself against any loss, damage, claim or liability incurred by it
in connection with the exercise or performance of any of its powers or duties
under the Indenture, but excluding any cost, expense, loss, damage, claim or
liability (i) incurred by the Indenture Trustee through the Indenture Trustee's
willful misconduct, bad faith or negligence (except for errors in judgment) or
(ii) arising from the Indenture Trustee's breach of any of its representations
or warranties set forth in the Indenture.
(b) The Depositor and the Administrator will indemnify, defend
and hold harmless the Owner Trustee and its officers, directors, employees and
agents, from and against any and all costs, expenses, losses, damages, claims
and liabilities (including the reasonable compensation, expenses and
disbursements of the Owner Trustee's agents, counsel, accountants and experts)
incurred by it in connection with the administration of and the performance of
its duties under the Trust Agreement, including the costs and expenses of
defending itself against any loss, damage, claim or liability incurred by it in
connection with the exercise or performance of any of its powers or duties under
the Indenture, but excluding any cost, expense, loss, damage, claim or liability
(i) incurred by the Owner Trustee through the Owner Trustee's own willful
misconduct, bad faith or negligence (except for errors in judgment) or (ii)
arising from the Owner Trustee's breach of any of its representations or
warranties set forth in the Trust Agreement.
(c) Promptly upon receipt by any Indemnified Person of notice of
the commencement of any Proceeding against any such Indemnified Person, such
Indemnified Person will, if a claim in respect of such Proceeding is to be made
against the Depositor or the Administrator under Section 4.1(a) or (b), notify
the Depositor and the Administrator of the commencement of such Proceeding. The
Depositor or the Administrator may participate in and assume the defense and
settlement of any such Proceeding at its expense, and no settlement of such
Proceeding may be made without the approval of the Depositor or the
Administrator and such Indemnified Person, which approvals will not be
unreasonably withheld, delayed or conditioned. After notice from the Depositor
or the Administrator to the 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.
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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 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.
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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.
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.
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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.
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.
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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 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.
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EXECUTED BY:
FORD CREDIT AUTO OWNER TRUST 2007-X,
as Issuer
By: U.S. BANK TRUST
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FORD MOTOR CREDIT COMPANY LLC,
as Administrator
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
AGREED AND ACCEPTED BY:
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Depositor
By:
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary