ADMINISTRATION AGREEMENT among FORD CREDIT AUTO OWNER TRUST 2008-A, as Issuer, FORD MOTOR CREDIT COMPANY LLC, as Administrator and THE BANK OF NEW YORK, as Indenture Trustee Dated as of January 1, 2008
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 January 1, 2008
TABLE
OF
CONTENTS
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Page
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ARTICLE
I USAGE AND DEFINITIONS
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1
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ARTICLE
II ENGAGEMENT OF ADMINISTRATOR
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1
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Section
2.1
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Engagement
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1
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Section
2.2
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Compensation
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1
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ARTICLE
III DUTIES OF THE ADMINISTRATOR
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1
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Section
3.1
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Duties
of the Administrator with Respect to the DTC Letter
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1
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Section
3.2
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Duties
of the Administrator with Respect to the Indenture
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1
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Section
3.3
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Additional
Duties
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4
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Section
3.4
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Audits
of the Administrator
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5
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Section
3.5
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Additional
Information to Be Furnished to the Issuer
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5
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Section
3.6
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Prohibition
on Certain Actions
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6
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Section
3.7
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Duties
with Respect to the Interest Rate Swaps
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6
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ARTICLE
IV INDEMNIFICATION
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7
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Section
4.1
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Indemnification
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7
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ARTICLE
V RESIGNATION AND REMOVAL OF THE ADMINISTRATOR; TERM OF
AGREEMENT
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7
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Section
5.1
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Resignation
and Removal of the Administrator
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7
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Section
5.2
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Appointment
of Successor Administrator
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8
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Section
5.3
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Action
upon Termination, Resignation or Removal
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8
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Section
5.4
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Term
of Agreement
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8
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ARTICLE
VI MISCELLANEOUS
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9
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Section
6.1
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Independence
of the Administrator
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9
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Section
6.2
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Transactions
with Affiliates; Other Transactions
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9
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Section
6.3
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Amendments
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9
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Section
6.4
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Notices
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9
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Section
6.5
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Assignment
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10
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Section
6.6
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Third-Party
Beneficiary
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10
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Section
6.7
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GOVERNING
LAW
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10
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Section
6.8
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Submission
to Jurisdiction
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10
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Section
6.9
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WAIVER
OF JURY TRIAL
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10
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Section
6.10
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Severability
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10
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Section
6.11
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Counterparts
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10
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Section
6.12
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Headings.
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10
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Section
6.13
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No
Petition
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11
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Section
6.14
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Not
Applicable to Ford Credit in Other Capacities
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11
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Section
6.15
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Limitation
of Liability of Owner Trustee and Indenture Trustee
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11
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i
ADMINISTRATION
AGREEMENT, dated as of January 1, 2008 (this "Agreement"), among FORD CREDIT
AUTO OWNER TRUST 2008-A, 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 t he 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 a re 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 wit h 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 Xxxxxxxx-Xxxxx 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 t he 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
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 Trustees 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.
ARTICLE
V
RESIGNATION
AND REMOVAL OF THE ADMINISTRATOR;
TERM
OF
AGREEMENT
Section
5.1
Resignation and Removal of the
Administrator.
7
(a)
Subject to Section 5.2(a), the Administrator may resign
its duties under this Agreement by providing the Issuer, the Owner Trustee
and
the Indenture Trustee with at least 60 days' prior notice.
(b)
Subject to Section 5.2(a), if any of the following events
occurs and is continuing, the Owner Trustee, with the consent of Noteholders
of
Notes evidencing not less than a majority of the Note Balance of the Controlling
Class (or if no Notes are outstanding, the holder of the Residual Interest),
by
notice to the Administrator may terminate all of the rights and obligations
of
the Administrator under this 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
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.
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.
10
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 wit h 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 b ut 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 agreement s delivered
pursuant to this Agreement, as to all of which recourse will be had solely
to
the assets of the Issuer .
11
EXECUTED
BY:
|
as
Issuer
|
||||
|
By:
|
U.S.
BANK TRUST
|
|||
|
NATIONAL
ASSOCIATION,
|
||||
|
not
in its individual capacity but
|
||||
|
solely
as Owner Trustee
|
||||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|||
|
Name:
Xxxxxx Xxxxx
|
||||
|
Title: Vice
President
|
||||
|
THE
BANK OF NEW YORK,
|
||||
|
not
in its individual capacity but solely as
|
||||
|
Indenture
Trustee
|
||||
|
By:
|
/s/
Xxxx Xxxxx
|
|||
|
|
Name:
Xxxx Xxxxx
|
|||
|
|
Title:
Vice President
|
|||
|
FORD
MOTOR CREDIT COMPANY LLC,
|
||||
|
as
Administrator
|
||||
|
By:
|
/s/
M.B. Xxxxxx
|
|||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
|||
|
Title:
|
Assistant
Treasurer
|
|||
|
AGREED
AND ACCEPTED BY:
|
||
|
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
|
||
|
as
Depositor
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxx
|
||
|
Title: Secretary
|
||
