ADMINISTRATION AGREEMENT between FORD CREDIT AUTO OWNER TRUST 20__-__, as Issuer, and FORD MOTOR CREDIT COMPANY LLC, as Administrator Dated as of ______, 20__
EXHIBIT 10.4
between
FORD CREDIT AUTO OWNER TRUST 20__-__,
as Issuer,
and
FORD MOTOR CREDIT COMPANY LLC,
as Administrator
Dated as of ______, 20__
TABLE OF CONTENTS
ARTICLE I USAGE AND DEFINITIONS | 1 | |
Section 1.1. | Usage and Definitions | 1 |
ARTICLE II ADMINISTRATION OF ISSUER | 1 | |
Section 2.1. | Engagement of Administrator | 1 |
Section 2.2. | Administrator's Rights and Obligations | 1 |
Section 2.3. | Limits on Administrator's Rights and Obligations | 2 |
Section 2.4. | Power of Attorney | 3 |
Section 2.5. | Access to Issuer Records | 3 |
Section 2.6. | Review of Administrator's Records | 3 |
Section 2.7. | Updating List of Responsible Persons | 3 |
Section 2.8. | Administrator's Fees and Expenses | 3 |
ARTICLE III ADMINISTRATOR | 3 | |
Section 3.1. | Administrator's Representations and Warranties | 3 |
Section 3.2. | Liability of Administrator | 4 |
Section 3.3. | Indemnities | 5 |
Section 3.4. | Resignation and Removal of Administrator | 6 |
Section 3.5. | Successor Administrator | 7 |
Section 3.6. | Merger, Consolidation, Succession or Assignment | 7 |
ARTICLE IV OTHER AGREEMENTS | 7 | |
Section 4.1. | Independence of Administrator; No Joint Venture | 7 |
Section 4.2. | Transactions with Affiliates; Other Transactions | 7 |
Section 4.3. | Ford Credit in Other Capacities | 8 |
Section 4.4. | No Petition | 8 |
Section 4.5. | Limitation of Liability of Owner Trustee and Indenture Trustee | 8 |
Section 4.6. | Termination | 8 |
ARTICLE V MISCELLANEOUS | 8 | |
Section 5.1. | Amendments | 8 |
Section 5.2. | Assignment; Benefit of Agreement; Third-Party Beneficiary | 9 |
Section 5.3. | Notices | 9 |
Section 5.4. | GOVERNING LAW | 10 |
Section 5.5. | Submission to Jurisdiction | 10 |
Section 5.6. | WAIVER OF JURY TRIAL | 10 |
Section 5.7. | No Waiver; Remedies | 10 |
Section 5.8. | Severability | 10 |
Section 5.9. | Headings | 10 |
Section 5.10. | Counterparts | 10 |
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ADMINISTRATION AGREEMENT, dated as of ______, 20__ (this "Agreement"), between FORD CREDIT AUTO OWNER TRUST 20__-__, a Delaware statutory trust, as Issuer, and FORD MOTOR CREDIT COMPANY LLC, a Delaware limited liability company, as Administrator.
Ford Credit is the sponsor of a securitization transaction in which the Issuer was formed under the Trust Agreement and will issue the Notes under the Indenture.
The Issuer and the Owner Trustee have obligations under the Transaction Documents and intend that Ford Credit administer the activities of the Issuer and perform certain obligations of the Issuer and the Owner Trustee under the Transaction Documents.
The parties agree as follows:
ARTICLE I
USAGE AND DEFINITIONS
Section 1.1.β―β―β―β―β―β―β―β―Usage and Definitions. Capitalized terms used but not defined in this Agreement are defined in Appendix A to the Sale and Servicing Agreement, dated as of ______, 20__, among Ford Credit Auto Owner Trust 20__-__, as Issuer, Ford Credit Auto Receivables Two LLC, as Depositor, and Ford Motor Credit Company LLC, as Servicer. Appendix A also contains usage rules that apply to this Agreement. Appendix A is incorporated by reference into this Agreement.
ARTICLE II
ADMINISTRATION OF ISSUER
Section 2.2.β―β―β―β―β―β―β―β―Administrator's Rights and Obligations.
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action is necessary to perform the Issuer's obligations under the Transaction Documents and to comply with the Transaction Documents.
Section 2.3.β―β―β―β―β―β―β―β―Limits on Administrator's Rights and Obligations.
(i)β―β―β―β―β―β―β―β―β―β―β―β―starting or pursuing any proceeding by the Issuer and the settlement of any proceeding brought by or against the Issuer; and
(ii)β―β―β―β―β―β―β―β―β―β―β―β―appointing or engaging a successor Indenture Trustee under the Indenture or consenting to the assignment by the Indenture Trustee of its obligations under the Indenture.
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Section 2.4.β―β―β―β―β―β―β―β―Power of Attorney. The Issuer appoints the Administrator as the Issuer's attorney-in-fact, with full power of substitution to exercise all rights of the Issuer under the Transaction Documents. This power of attorney, and all authority given, under this Section 2.4 is revocable and is given solely to facilitate the performance of the Administrator's obligations under this Agreement and may only be used by the Administrator consistent with this Agreement. On request of the Administrator, the Issuer will furnish the Administrator with written powers of attorney and other documents to enable the Administrator to perform its obligations under this Agreement.
Section 2.5.β―β―β―β―β―β―β―β―Access to Issuer Records. On reasonable request, the Issuer will provide the Administrator with access, during normal business hours, to the Issuer's records and documents, but only to the extent required by the Administrator to perform its obligations under this Agreement. Any access will be subject to the Issuer's confidentiality and privacy policies.
Section 2.6.β―β―β―β―β―β―β―β―Review of Administrator's Records. The Administrator will maintain records and documents relating to its performance under this Agreement according to its customary business practices. On reasonable request not more than once during any year, the Administrator will give the Issuer, the Depositor, the Owner Trustee and the Indenture Trustee (or their representatives) access to the records and documents to conduct a review of the Administrator's performance under this Agreement. Any access or review will be conducted at the Administrator's offices during its normal business hours at a time reasonably convenient to the Administrator and in a manner that will minimize disruption to its business operations. Any access or review will be subject to the Administrator's confidentiality and privacy policies.
Section 2.7.β―β―β―β―β―β―β―β―Updating List of Responsible Persons. On or before the Closing Date, the Administrator will notify the Owner Trustee, the Indenture Trustee, the Servicer and the Depositor of each Person who is a Responsible Person for the Administrator. The Administrator may change such Persons by notifying the Owner Trustee, the Indenture Trustee, the Servicer and the Depositor.
Section 2.8.β―β―β―β―β―β―β―β―Administrator's Fees and Expenses. The Depositor will pay the Administrator as compensation for performing its obligations under this Agreement a fee separately agreed to by the Depositor and the Administrator. The Administrator will be responsible for its costs and expenses in performing its obligations under this Agreement.
ADMINISTRATOR
Section 3.1.β―β―β―β―β―β―β―β―Administrator's Representations and Warranties. The Administrator represents and warrants to the Issuer, the Owner Trustee and the Indenture Trustee as of the Closing Date:
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the failure to obtain the qualifications, licenses or approvals would not reasonably be expected to have a material adverse effect on the Administrator's ability to perform its obligations under this Agreement.
(b)β―β―β―β―β―β―β―β―β―β―β―β―Power, Authority and Enforceability. The Administrator has the power and authority to execute, deliver and perform its obligations under this Agreement. The Administrator has authorized the execution, delivery and performance of this Agreement. This Agreement is the legal, valid and binding obligation of the Administrator, enforceable against the Administrator, except as may be limited by insolvency, bankruptcy, reorganization or other similar laws relating to the enforcement of creditors' rights or by general equitable principles.
(c)β―β―β―β―β―β―β―β―β―β―β―β―No Conflicts and No Violation. The completion of the transactions under this Agreement, and the performance of its obligations under this Agreement, will not (i) conflict with, or be a breach or default under, any indenture, mortgage, deed of trust, loan agreement, guarantee or similar document under which the Administrator is a debtor or guarantor, (ii) result in the creation or imposition of a Lien on the Administrator's properties or assets under the terms of any indenture, mortgage, deed of trust, loan agreement, guarantee or similar document, (iii) violate the Administrator's certificate of formation or limited liability company agreement or (iv) violate a law or, to the Administrator's knowledge, an order, rule or regulation of a federal or State court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Administrator or its properties that applies to the Administrator, which, in each case, would reasonably be expected to have a material adverse effect on the Administrator's ability to perform its obligations under this Agreement.
(d)β―β―β―β―β―β―β―β―β―β―β―β―No Proceedings. To the Administrator's knowledge, there are no proceedings or investigations pending or threatened in writing before a federal or State court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Administrator or its properties (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the completion of the transactions under this Agreement or (iii) seeking a determination or ruling that would reasonably be expected to have a material adverse effect on the Administrator's ability to perform its obligations under, or the validity or enforceability of, this Agreement.
Section 3.2.β―β―β―β―β―β―β―β―Liability of Administrator.
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Section 3.3.β―β―β―β―β―β―β―β―Indemnities.
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separate counsel to the Indemnified Person. No settlement of a proceeding may be made without the approval of the Administrator and the Indemnified Person, which approval will not be unreasonably withheld.
Section 3.4.β―β―β―β―β―β―β―β―Resignation and Removal of Administrator.
(i)β―β―β―β―β―β―β―β―β―β―β―β―the Administrator fails to perform in any material respect its obligations under this Agreement, which failure continues for 90 days after the Administrator receives notice of the failure from the Owner Trustee, the Indenture Trustee or the Noteholders of at least 25% of the Note Balance of the Controlling Class; or
(ii)β―β―β―β―β―β―β―β―β―β―β―β―an Insolvency Event of the Administrator occurs.
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Section 3.5.β―β―β―β―β―β―β―β―Successor Administrator.
(b)β―β―β―β―β―β―β―β―β―β―β―β―Effectiveness of Resignation or Removal. No resignation or removal of the Administrator will be effective until (i) the successor Administrator has executed and delivered to the Issuer an agreement accepting its engagement and agreeing to perform the obligations of the Administrator under this Agreement or a new administration agreement on substantially the same terms as this Agreement, in a form acceptable to the Issuer, and (ii) the Rating Agency Condition is satisfied.
Section 3.6.β―β―β―β―β―β―β―β―Merger, Consolidation, Succession or Assignment. Any Person (a) into which the Administrator is merged or consolidated, (b) resulting from a merger or consolidation to which the Administrator is a party, (c) succeeding to the Administrator's business or (d) that is an Affiliate of the Administrator to whom the Administrator has assigned this Agreement, will be the successor to the Administrator under this Agreement. Such Person will execute and deliver to the Issuer, the Owner Trustee and the Indenture Trustee an agreement to assume the Administrator's obligations under this Agreement (unless the assumption happens by operation of law).
Section 4.1.β―β―β―β―β―β―β―β―Independence of Administrator; No Joint Venture. The Administrator will be an independent contractor and will not be subject to the supervision of the Issuer or the Owner Trustee for the manner in which it performs its obligations under this Agreement. Except as expressly authorized by the Transaction Documents, the Administrator will have no authority to act for or represent the Issuer or the Owner Trustee and will not be considered an agent of the Issuer or the Owner Trustee. This Agreement will not make the Administrator and the Issuer or the Owner Trustee members of a partnership, joint venture or other entity or impose any liability as such on any of them.
Section 4.2.β―β―β―β―β―β―β―β―Transactions with Affiliates; Other Transactions. In performing its obligations under this Agreement, the Administrator may enter into transactions or deal with any
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of its Affiliates. This Agreement will not 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 even though that Person may engage in activities similar to those of the Issuer.
Section 4.3.β―β―β―β―β―β―β―β―Ford Credit in Other Capacities. This Agreement will not affect or limit any right or obligation Ford Credit may have in any other capacity.
Section 4.4.β―β―β―β―β―β―β―β―No Petition. Each party agrees that, before the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of (a) all securities issued by the Depositor or by a trust for which the Depositor was depositor or (b) the Notes, it will not start or pursue against, or join any other Person in starting or pursuing against, (i) the Depositor or (ii) the Issuer, respectively, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law. This Section 4.4 will survive termination of this Agreement.
Section 4.5.β―β―β―β―β―β―β―β―Limitation of Liability of Owner Trustee and Indenture Trustee.
(a)β―β―β―β―β―β―β―β―β―β―β―β―Owner Trustee. This Agreement has been executed on behalf of the Issuer by _____________________ not in its individual capacity but solely in its capacity as Owner Trustee of the Issuer and in no event will _____________________ in its individual capacity or a holder of a beneficial interest in the Issuer be liable for the Issuer's obligations under this Agreement. For all purposes under this Agreement, the Owner Trustee will be subject to, and entitled to the benefits of, the Trust Agreement. Neither the Issuer nor the Owner Trustee will have any liability for any act or failure to act of the Administrator, including any action taken under a power of attorney given under this Agreement.
Section 5.1.β―β―β―β―β―β―β―β―Amendments.
(a)β―β―β―β―β―β―β―β―β―β―β―β―Amendments. The parties may amend this Agreement:
(i)β―β―β―β―β―β―β―β―β―β―β―β―to clarify an ambiguity, correct an error or correct or supplement any term of this Agreement that may be defective or inconsistent with the other terms of this Agreement [or any prospectus or offering memorandum related to the Notes] or to provide for, or facilitate the acceptance of this Agreement by, a successor Administrator, in each case, without the consent of the Noteholders or any other Person;
(ii)β―β―β―β―β―β―β―β―β―β―β―β―to add, change or eliminate terms of this Agreement, in each case without the consent of the Noteholders or any other Person, if the Administrator delivers an
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Officer's Certificate to the Issuer, the Owner Trustee and the Indenture Trustee stating that the amendment will not have a material adverse effect on the Noteholders; or
(iii)β―β―β―β―β―β―β―β―β―β―β―β―to add, change or eliminate terms of this Agreement for which an Officer's Certificate is not or cannot be delivered under Section 5.1(a)(ii), with the consent of the Noteholders of a majority of the Note Balance of each Class of Notes Outstanding (with each affected Class voting separately, except that all Noteholders of Class A Notes will vote together as a single class).
Section 5.2.β―β―β―β―β―β―β―β―Assignment; Benefit of Agreement; Third-Party Beneficiary.
(i)β―β―β―β―β―β―β―β―β―β―β―for overnight mail, on delivery or, for registered first class mail, postage prepaid, three days after deposit in the mail properly addressed to the recipient;
(ii)β―β―β―β―β―β―β―β―β―β―β―β―for a fax, when receipt is confirmed by telephone, reply email or reply fax from the recipient;
(iii)β―β―β―β―β―β―β―β―β―β―β―for an email, when receipt is confirmed by telephone or reply email from the recipient; and
(iv)β―β―β―β―β―β―β―β―β―β―β―for an electronic posting to a password-protected website to which the recipient has access, on delivery of an email (without the requirement of confirmation of receipt) stating that the electronic posting has been made.
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Section 5.4.β―β―β―β―β―β―β―β―GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NEW YORK.
Section 5.5.β―β―β―β―β―β―β―β―Submission to Jurisdiction. Each party submits 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 legal proceedings relating to this Agreement. Each party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or in the future have to the venue of a proceeding brought in such a court and any claim that the proceeding was brought in an inconvenient forum.
Section 5.6.β―β―β―β―β―β―β―β―WAIVER OF JURY TRIAL. Each party irrevocably waives, to the fullest extent permitted by law, THE right to trial by jury in legal proceedingS relating to this agreement.
Section 5.7.β―β―β―β―β―β―β―β―No Waiver; Remedies. No party's failure or delay in exercising a power, right or remedy under this Agreement will operate as a waiver. No single or partial exercise of a power, right or remedy will preclude any other or further exercise of the power, right or remedy or the exercise of any other power, right or remedy. The powers, rights and remedies under this Agreement are in addition to any powers, rights and remedies under law.
Section 5.8.β―β―β―β―β―β―β―β―Severability. If a part of this Agreement is held invalid, illegal or unenforceable, then it will be deemed severable from the remaining Agreement and will not affect the validity, legality or enforceability of the remaining Agreement.
Section 5.9.β―β―β―β―β―β―β―β―Headings. The headings in this Agreement are included for convenience and will not affect the meaning or interpretation of this Agreement.
[Remainder of Page Left Blank]
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EXECUTED BY:
FORD CREDIT AUTO OWNER TRUST 20__-__, | ||
as Issuer | ||
By: | ______________________________________, | |
not in its individual capacity but solely as Owner Trustee | ||
By: | ||
Name: | ||
Title: | ||
FORD MOTOR CREDIT COMPANY LLC, | ||
as Administrator | ||
By: | ||
Name: | ||
Title: |
AGREED AND ACCEPTED BY: | ||
FORD CREDIT AUTO RECEIVABLES | ||
TWO LLC, as Depositor | ||
By: | ||
Name: | ||
Title: | ||
______________________________________, | ||
not in its individual capacity but | ||
solely as Indenture Trustee | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Administration Agreement]