Exhibit 99.4
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FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__]
Issuer
FORD MOTOR CREDIT COMPANY
Administrator
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ADMINISTRATION
AGREEMENT
Dated as of [______ __, 200_]
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ADMINISTRATION AGREEMENT, dated as of [______ __, 200_] (as amended
and supplemented from time to time, the "Administration Agreement"), by and
between FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__], a Delaware business
trust, as issuer (the "Issuer"), and FORD MOTOR CREDIT COMPANY, a Delaware
corporation ("Ford Credit"), as administrator (the "Administrator").
RECITALS
A. Pursuant to the Trust Agreement, dated as of the date hereof (as
amended and supplemented from time to time, the "Trust Agreement"), between
[Ford Credit Auto Receivables Corporation] [and] [Ford Credit Auto Receivables
LLC], as transferor[s] (the "Transferor[s]"), and [Owner Trustee], as owner
trustee (the "Owner Trustee"), the Issuer was created as a Delaware statutory
business trust.
B. The Issuer has entered into the Indenture, dated as of the date
hereof (as amended and supplemented from time to time, the "Indenture"),
between the Issuer and [Indenture Trustee], as indenture trustee (the
"Indenture Trustee"), to provide for the issuance from time to time of its
Asset Backed Notes (the "Notes").
C. In connection with the issuance of the Notes, the Issuer has
entered or will enter into certain agreements, including, without limitation,
(i) the Transfer and Servicing Agreement[s], dated as of the date hereof (as
amended and supplemented from time to time, the "Transfer and Servicing
Agreement[s]"), among the Transferor[s], the Issuer and Ford Credit, as
servicer (the "Servicer"), (ii) the Indenture, (iii) one or more Letters of
Representations relating to the Notes (the "Depository Agreements"), among the
Issuer, the Indenture Trustee and The Depository Trust Company and (iv) one or
more documents evidencing enhancement for the Notes (as amended and
supplemented from time to time, the "Enhancement Agreements" and, together
with the Trust Agreement, the Indenture, the Transfer and Servicing Agreement,
the Depository Agreements and the Enhancement Agreements, the "Related
Agreements") (capitalized terms used and not otherwise defined herein have the
meanings assigned to such terms in the Transfer and Servicing Agreement, or if
not defined therein, in the Indenture).
D. Pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the
Notes and the Collateral pledged pursuant to the Indenture to secure payment
of the Notes and (b) the beneficial ownership interest in the Issuer held by
the Transferor[s].
E. The Issuer and the Owner Trustee desire to appoint the
Administrator to perform certain duties of the Issuer and the Owner Trustee
under the Related Agreements and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request.
F. The Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
In consideration of the mutual covenants and agreements and herein
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
STATEMENT OF AGREEMENT
Section 1. Duties of Administrator.
(a) Duties with Respect to Related Agreements.
(i) The Administrator will consult with the Owner Trustee
regarding the duties of the Issuer and the Owner Trustee under the
Related Agreements.
(ii) The Administrator will monitor the performance of the
Issuer and advise the Owner Trustee when action is necessary to
comply with the Issuer's or the Owner Trustee's duties under the
Related Agreements. The Administrator will prepare for execution by
the Issuer or the Owner Trustee, or cause the preparation by other
appropriate Persons, of all such documents, reports, filings,
instruments, certificates and opinions as it is the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to
any Related Agreement. In furtherance of the foregoing, the
Administrator will take, in the name of and on behalf of the Issuer
or the Owner Trustee, all appropriate action that it is the duty of
the Issuer or the Owner Trustee to take pursuant to the Indenture on
all matters including, without limitation, the following (references
are to sections of the Indenture):
(1) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes, if any,
and delivery of the same to the Indenture Trustee (Section
2.03);
(2) the causing of the Note Register to be kept and the
notification to the Indenture Trustee of any appointment of a
new Note Registrar and the location, or change in location, of
the Note Register (Section 2.05(a) and (b));
(3) the determination as to whether the requirements of
UCC Section 8-401(1) are met and the preparation of an Issuer
Request requesting the Indenture Trustee to authenticate and
deliver replacement Notes in lieu of surrendered Notes;
(4) the furnishing to the Indenture Trustee, the Servicer,
any Noteholder or the Paying Agent of the names and addresses
of Noteholders after receipt of a written request therefor from
the Indenture Trustee, the Servicer, any Noteholder or the
Paying Agent, respectively (Section 2.09(a));
(5) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.11);
(6) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.15);
(7) the payment of principal and interest in accordance
with the terms of the Notes as specified in the relevant
Indenture Supplement (Section 3.01(a));
(8) the maintenance of an office in the Borough of
Manhattan in The City of New York for presentation or surrender
of the Notes for payment and for registration of transfer or
exchange of Notes if the Indenture Trustee ceases to maintain
such an office (Section 3.02);
(9) the causing of newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.03);
(10) the direction to Paying Agents to pay to the
Indenture Trustee all sums held in trust by such Paying Agents
(Section 3.03);
(11) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction where such
qualification is or will be necessary to protect the validity
and enforceability of the Indenture, the Notes, the Receivables
and each other related instrument and agreement (Section 3.04);
(12) the preparation of all supplements, amendments,
financing statements, continuation statements, if any,
instruments of further assurance and other instruments, and the
taking of such other actions, as are necessary or advisable to
protect the Trust Estate (Section 3.05);
(13) the obtaining of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel as
to the Trust Estate, and the annual delivery of the Officers'
Certificate and certain other statements as to compliance with
the Indenture (Sections 3.06 and 3.09);
(14) the identification to the Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.07(b));
(15) the delivery of notice to the Indenture Trustee of
the occurrence of any Servicer Default of which the Issuer has
knowledge and the taking of all reasonable steps available to
remedy such default (Section 3.07(d));
(16) the delivery to the Indenture Trustee, within 120
days after the end of each fiscal year of the Issuer of an
Officers' Certificate with respect to various matters relating
to compliance with the Indenture (Section 3.09);
(17) the preparation and obtaining of documents and
instruments required for the consolidation or merger of the
Issuer with another entity or the conveyance or transfer of its
properties and assets substantially as an entirety (Section
3.10);
(18) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under
the Indenture and each default by the Servicer or the
Transferor[s] under the Transfer and Servicing Agreement[s]
(Section 3.19);
(19) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation
of an Officers' Certificate and the obtaining of the Opinion of
Counsel and the Independent Certificate relating thereto
(Section 4.01);
(20) the preparation of an Officer's Certificate to the
Indenture Trustee after the occurrence of any event which with
the giving of notice and the lapse of time would become an
Event of Default under the Indenture, the status of such event
and what action the Issuer is taking or proposes to take with
respect thereto (Section 5.02);
(21) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate
in a commercially reasonable manner if an Event of Default
under the Indenture shall have occurred and be continuing
(Section 5.05);
(22) the furnishing to the Indenture Trustee of the names,
addresses and tax payer identification numbers of the
Noteholders during any period when the Indenture Trustee is not
the Transfer Agent and Registrar (Section 7.01);
(23) the preparation and, after execution by the Issuer,
the filing with the Commission and the Indenture Trustee, of
documents required to be filed on a periodic basis with the
Commission (Section 7.03);
(24) the preparation of an Issuer Order and Officers'
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Trust Estate (Section 8.09);
(25) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of
notices with respect to such supplemental indentures (Sections
10.01, 10.02 and 10.03);
(26) the execution of new Notes conforming to any
supplemental indenture (Section 10.06);
(27) the preparation of all Officers' Certificates,
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 12.01(a));
(28) the preparation and delivery of Officers'
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the Lien of the
Indenture (Section 12.01(b)); and
(29) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 12.06).
(iii) The Administrator is required to:
(1) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee
under the Indenture (which compensation is not be limited by
any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or
made by the Indenture Trustee in accordance with any provision
of the Indenture (including the reasonable compensation,
expenses and disbursements of its agents and counsel, except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;
(3) indemnify the Indenture Trustee and its agents for,
and hold them harmless against, any losses, liability or
expense incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the
Indenture, including the reasonable costs and expenses
(including reasonable attorneys' fees) of defending themselves
against any claim or liability in connection with the exercise
or performance of any of their powers or duties under the
Indenture, except that the Administrator is not liable for, or
required to indemnify an Indemnified Party from and against,
Expenses arising or resulting from taxes imposed on the
Indenture Trustee in connection with fees earned by it pursuant
to the Indenture; and
(4) indemnify the Owner Trustee and its successors,
assigns, directors, officers, employees, agents and servants
(collectively, the "Indemnified Parties") for, and to hold them
harmless against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all
reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee
or any other Indemnified Party in any way relating to or
arising out of the Trust Agreement, the Transaction Documents,
the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Owner Trustee under the Trust
Agreement, except that the Administrator is not liable for, or
required to indemnify an Indemnified Party from and against,
Expenses arising or resulting from (x) the Indemnified Party's
own willful misconduct, bad faith or negligence or (y) taxes
imposed on the Owner Trustee in connection with fees earned by
it pursuant to the Trust Agreement; and
(5) indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Indenture Trustee and any of their
respective officers, directors, employees and agents from and
against any loss, liability or expense incurred by reason of
(i) the violation by the Transferor[s] or the Issuer of federal
or state securities laws in connection with the offering and
sale of the Notes or (ii) any breach by the Transferor[s] of
any term, provision or covenant contained in the Transfer and
Servicing Agreement[s].
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of
this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Administrator shall have made any indemnity
payments pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any such amount from others, such
Person shall promptly repay such amounts to the Administrator, without
interest.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set forth
above, the Administrator will perform such calculations, prepare, or
cause the preparation by other appropriate persons of, and execute
on behalf of the Issuer or the Owner Trustee, all such documents,
reports, filings, instruments, certificates and opinions as it is
the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to the Related Agreements. At the request of the
Owner Trustee, the Administrator will also take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Related Agreements. Subject to Section 6 of
this Agreement, the Administrator will administer, perform or
supervise the performance of such other activities in connection
with the Collateral (including those set forth in the Related
Agreements) as are not covered by any of the foregoing provisions
and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator.
(ii) The Administrator will perform the duties of the
Administrator specified in Section 9.02 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Owner Trustee, and any other duties expressly
required to be performed by the Administrator pursuant to the Trust
Agreement.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings will be
in accordance with any directions received from the Issuer and be,
in the Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator will not
take any action unless within a reasonable time before the taking of
such action, the Administrator has notified the Owner Trustee of the
proposed action and the Owner Trustee has not withheld consent or
provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" include, without limitation:
(1) the amendment of or any supplement to the Indenture;
(2) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by
or against the Issuer (other than in connection with the
collection of the Receivables or Eligible Investments);
(3) the amendment, change or modification of the other
Related Agreements;
(4) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(5) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator is not obligated to, and may not (1)
make any payments to the Noteholders or the Transferor[s] under the
Related Agreements, (2) sell the Trust Assets pursuant to Section
5.05 of the Indenture other than pursuant to a written directive of
the Indenture Trustee or (3) take any other action that the Issuer
directs the Administrator not to take on its behalf.
Section 2. Records.
The Administrator will maintain appropriate books of account and
records relating to services performed hereunder. The Administrator will make
all such books of account and records accessible for inspection by the Issuer,
the Owner Trustee, the Indenture Trustee and the Transferor[s] at any time
during normal business hours following reasonable advance notice.
Section 3. Compensation.
As compensation for the performance of the Administrator's
obligations under this Agreement and as reimbursement for its expenses related
thereto, the Administrator is entitled to the amount set forth on Schedule 1
that is payable in accordance with the applicable Indenture Supplement, which
amount is solely an obligation of the Transferor[s].
Section 4. Additional Information to Be Furnished to Issuer.
The Administrator will furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer reasonably
requests.
Section 5. Independence of Administrator.
For all purposes of this Agreement, the Administrator will be an
independent contractor and not 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 has no authority to act for or
represent the Issuer or the Owner Trustee in any way and is not an agent of
the Issuer or the Owner Trustee.
Section 6. No Joint Venture.
Nothing contained in this Agreement (i) constitutes the Administrator
and either of the Issuer or the Owner Trustee as members of any partnership,
joint venture, association, syndicate, unincorporated business or other
separate entity, (ii) is to be construed to impose any liability as such on
any of them or (iii) is to be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf
of the others.
Section 7. Other Activities of Administrator.
Nothing herein prevents the Administrator or its Affiliates from
engaging in other businesses or, in its sole discretion, from acting in a
similar capacity as an administrator for any other Person even though such
Person may engage in business activities similar to those of the Issuer, the
Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of
Administrator.
(a) This Agreement will continue in force until the termination of
the legal existence of the Issuer in accordance with Section 8.01 of the Trust
Agreement, upon which event this Agreement will automatically terminate.
(b) Subject to Section 8(e) and (f), the Administrator may resign its
duties under this Agreement by providing the Issuer with at least 60 days'
prior written notice and, in such event, the Issuer agrees to appoint a
successor Administrator promptly.
(c) Subject to Section 8(e) and (f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events occur:
(i) the Administrator defaults in the performance of any of its
duties under this Agreement and, after notice of such default, does
not cure such default within ten (10) days (or, if such default
cannot be cured in such time, does not give within ten (10) days
such assurance of cure as is reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises enters a
decree or order for relief, and such decree or order is not vacated
within sixty (60) days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its
property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, consents to the entry of an order for relief in
an involuntary case under any such law, consents to the appointment
of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, consents to the taking of
possession by any such official of any substantial part of its
property, makes any general assignment for the benefit of creditors
or fails generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause (ii) or
(iii) of this Section 8(c) occurs, it will give written notice thereof to the
Issuer and the Indenture Trustee promptly after the happening of such event.
(d) No resignation or removal of the Administrator pursuant to this
Section 8 will be effective until a successor Administrator has been appointed
by the Issuer and such successor Administrator has agreed in writing to be
bound by the terms of this Agreement in the same manner as the Administrator
is bound hereunder. The Issuer will provide written notice of any such
resignation or removal to the Indenture Trustee, with a copy to the Rating
Agencies.
(e) The appointment of any successor Administrator will be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(f) Subject to Section 8(d) and (e), the Administrator acknowledges
that, upon the appointment of a successor Servicer pursuant to the Transfer
and Servicing Agreement[s], the Administrator will resign immediately and such
successor Servicer will automatically become the Administrator under this
Agreement.
Section 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement
pursuant to Section 8(a) or the resignation or removal of the Administrator
pursuant to Section 8(b) or (c), respectively, the Administrator will be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. Upon such termination
pursuant to Section 8(a), the Administrator will forthwith deliver to the
Issuer all property and documents of or relating to the Collateral then in the
custody of the Administrator. In the event of the resignation or removal of
the Administrator pursuant to Section 8(b) or (c), respectively, 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.
Section 10. Notices.
Any notice, report or other communication given hereunder must be in
writing and will be deemed to be duly given if delivered in person or by
overnight courier service, or sent by facsimile transmission or other
electronic transmission, followed by first class mail, as follows:
(a) if to the Issuer or the Owner Trustee, to:
Ford Credit Floorplan Master Owner Trust [__]
c/o [Owner Trustee]
______________________________
______________________________
Attention: _________________
Telephone: ________________
Fax: _____________________
(b) if to the Administrator, to:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _________________
Telephone: ________________
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Transferor[s], to:
[Ford Credit Auto Receivables Corporation]
[and]
[Ford Credit Auto Receivables LLC]
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ________________
Telephone: _______________
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to the Indenture Trustee, to:
[Indenture Trustee]
___________________________
___________________________
Attention: _______________
Telephone: ______________
Fax: ___________________
All notices will be effective on receipt.
Section 11. Amendments.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Issuer and the Administrator,
with the written consent of the Owner Trustee (and with respect to Sections
1(a)(ii)(1), (2) and (3), the Indenture Trustee), without the consent of any
of the Noteholders or the Transferor[s], for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or Transferor[s]; provided, however, that such amendment will not, as set
forth in an Opinion of Counsel satisfactory to the Indenture Trustee and the
Owner Trustee, materially and adversely affect the interest of any Noteholder
or the Transferor[s].
(b) This Agreement may also be amended by the Issuer and the
Administrator, with the written consent of the Owner Trustee, the Holders of
Notes evidencing not less than a majority of the Notes Outstanding and the
Transferor[s], for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or modifying in
any manner the rights of Noteholders or the Transferor[s]; provided, however,
that, without the consent of the Holders of all of the Notes Outstanding and
the Transferor[s], no such amendment may:
(i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the
Receivables or distributions that are required to be made for the
benefit of the Noteholders or the Transferor[s]; or
(ii) reduce the aforesaid portion of the Noteholders which are
required to consent to any such amendment.
(c) Prior to the execution of any such amendment or consent, the
Administrator will furnish written notification of the substance of such
amendment or consent to each Rating Agency. Promptly after the execution of
any such amendment or consent, the Administrator will furnish written
notification of the substance of such amendment or consent to the Indenture
Trustee.
(d) The Noteholders must consent to and approve any proposed
amendment or consent pursuant to this Section 11, but they need not consent to
and approve the particular form of any such amendment or consent.
Section 12. Successors and Assigns.
This Agreement may not be assigned by the Administrator unless such
assignment is previously consented to in writing by the Issuer and the Owner
Trustee and the Rating Agency Condition in is satisfied. An assignment with
such consent and satisfaction, if accepted by the assignee, will bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator, without the consent of the Issuer or the Owner Trustee, to a
corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such Person agrees to be bound
by the terms of said assignment in the same manner as the Administrator is
bound under this Agreement. Subject to the requirements of this Section 12,
this Agreement will bind any successors or assigns of the parties hereto.
Section 13. Governing Law.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER ARE TO BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 14. Headings.
The section headings hereof have been inserted for convenience of
reference only and are not intended to affect the meaning, construction or
effect of this Agreement.
Section 15. Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed will be an original, but all of which together constitute but one and
the same agreement.
Section 16. Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction will be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction will not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 17. Not Applicable to Ford Credit in Other Capacities.
Nothing in this Agreement is intended to affect any right or
obligation that Ford Credit may have in any other capacity under any of the
Related Agreements.
Section 18. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
instrument has been signed on behalf of the Issuer by [Owner Trustee] not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event will [Owner Trustee] 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
hereunder, as to all of which recourse may be had solely to the assets of the
Issuer. For all purposes of this Agreement, in the performance of any duties
or obligations of the Issuer hereunder, the Owner Trustee is subject to, and
entitled to the benefits of, the terms and provisions of the Trust Agreement.
Section 19. Third-Party Beneficiary.
(a) The Owner Trustee is a third-party beneficiary to this Agreement
and is entitled to the rights and benefits hereunder and may enforce the
provisions hereof as if it were a party hereto.
(b) Solely with respect to any amounts owing to the Indenture Trustee
pursuant to Section 6.07 of the Indenture, the Indenture Trustee is a third-
party beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
Section 20. Nonpetition Covenants.
Notwithstanding any prior termination of this Agreement, the Issuer
and Administrator may not prior to the date which is one year and one day
after the termination of this Agreement with respect to the Transferor[s],
acquiesce, petition or otherwise invoke or cause the Issuer or [the] [any]
Transferor to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against [the] [any] Transferor
under any federal or state bankruptcy, insolvency or similar law or appointing
a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of [the] [any] Transferor or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of [the] [any] Transferor; provided, however, that this Section 20
is not intended to preclude any remedy described in Article V of the
Indenture.
IN WITNESS WHEREOF, the Issuer and the Administrator have caused this
Administration Agreement to be duly executed by their respective duly
authorized officers all as of the day and year first above written.
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__],
as Issuer
By [Owner Trustee], not in its individual capacity,
but solely as Owner Trustee
By
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Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Administrator
By
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Name:
Title: