Exhibit 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of January 1, 2002 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST 2002-A, a Delaware
business trust (the "Issuer"), FORD MOTOR CREDIT COMPANY, a Delaware
corporation, as administrator (the "Administrator"), and JPMORGAN CHASE BANK, a
New York corporation, not in its individual capacity but solely as Indenture
Trustee (the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture and
the Certificates pursuant to the Trust Agreement and has entered into certain
agreements in connection therewith, including (i) the Sale and Servicing
Agreement, (ii) the Note Depository Agreement, (iii) the Interest Rate Swap
Agreements and (iv) the Indenture (the Sale and Servicing Agreement, the Note
Depository Agreement, the Interest Rate Swap Agreements and the Indenture being
referred to hereinafter collectively as the "Related Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator 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; and
WHEREAS, 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;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions and Usage. Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which also contains rules as to
usage that shall be applicable herein.
2. Duties of the Administrator. (a) Duties with Respect to the
Indenture and the Note Depository Agreement. (i) The Administrator agrees to
perform all its duties as Administrator and the duties of the Issuer under the
Note Depository Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer under the Indenture and the
Note Depository Agreement. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture and the Note Depository Agreement.
The Administrator shall prepare for execution by the Issuer, or shall cause the
preparation by other appropriate Persons of, all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture, the Interest Rate
Swap Agreements and the Note Depository Agreement. In furtherance of the
foregoing, the Administrator shall take, in the name and on behalf of the Issuer
or the Owner Trustee, all appropriate action that is the duty of the Issuer or
the Owner Trustee to take, if any, pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the following
matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register (Section
2.5);
(B) 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 mutilated, destroyed, lost or stolen Notes
(Section 2.6);
(C) the notification of Noteholders of the final principal
payment on their Notes (Section 2.8(b));
(D) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.2);
(E) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of property from the lien of the Indenture (Section 2.10);
(F) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.13);
(G) the maintenance of an office in the Borough of Manhattan,
The City of New York, for registration of transfer or exchange of Notes
if the Indenture Trustee ceases to maintain such an office (Section
3.2);
(H) the duty to cause newly appointed Note Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.3);
(I) the direction to the Indenture Trustee to deposit monies
with Note Paying Agents, if any, other than the Indenture Trustee
(Section 3.3);
(J) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument or agreement included in the Indenture Trust Estate
(Section 3.4);
(K) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking
of such other action as is necessary or advisable to protect the
Indenture Trust Estate (Sections 3.5 and 3.7(c));
(L) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Indenture
Trust Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections
3.6 and 3.9);
(M) the identification to 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 3.7(b));
(N) the notification of the Indenture Trustee and the Rating
Agencies of an 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 under the
Sale and Servicing Agreement with respect to the Receivables, the
taking of all reasonable steps available to remedy such failure
(Section 3.7(d));
(O) the preparation and obtaining of documents and instruments
required for the consolidation or merger of the Issuer with another
entity or the transfer by the Issuer of its properties or assets
(Section 3.10);
(P) the duty to cause the Servicer to comply with Sections
3.9, 3.10, 3.11, 3.12, 3.13 and 4.9 and Article VII of the Sale and
Servicing Agreement (Section 3.14);
(Q) 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 Seller under the Sale and
Servicing Agreement and by Ford Credit or the Seller under the Purchase
Agreement or any Swap Counterparty under the Interest Rate Swap
Agreements (Section 3.19);
(R) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinions of Counsel and
the Independent Certificate relating thereto (Section 4.1);
(S) the monitoring of the Issuer's obligations as to the
satisfaction, discharge and defeasance of the Notes and the preparation
of an Officer's Certificate and the obtaining of an opinion of a
nationally recognized firm of independent certified public accountants,
a written certification thereof and the Opinions of Counsel relating
thereto (Section 4.2);
(T) 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 Section 5.1(iii) of the Indenture, its status and what action the
Issuer is taking or proposes to take with respect thereto (Section
5.1);
(U) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Indenture Trust Estate at one
or more public or private sales called and conducted in any manner
permitted by law if an Event of Default shall have occurred and be
continuing (Section 5.4);
(V) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(W) the preparation of any written instruments required to
confirm more fully 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 (Sections
6.8 and 6.10);
(X) the furnishing of 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);
(Y) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders
(Section 7.3);
(Z) the opening of one or more accounts in the Issuer's name,
the preparation and delivery of Issuer Orders, Officer's Certificates
and Opinions of Counsel and all other actions necessary with respect to
investment and reinvestment, to the extent permitted, of funds in such
accounts (Sections 8.2 and 8.3);
(AA) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Indenture Trust
Estate (Sections 8.4 and 8.5);
(AB) 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 9.1, 9.2 and 9.3);
(AC) the execution and delivery of new Notes conforming to
any supplemental indenture (Section 9.6);
(AD) the notification of Noteholders of redemption of the
Notes or duty to cause the Indenture Trustee to provide such
notification (Section 10.2);
(AE) the preparation of all Officer's Certificates, Issuer
Requests and Issuer Orders and the obtaining of 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));
(AF) the preparation of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.1(b));
(AG) the notification of the Rating Agencies, upon the failure
of the Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 of the Indenture (Section 11.4);
(AH) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.6); and
(AI) the recording of the Indenture, if applicable (Section
11.15).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under
the Indenture (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(B) 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;
(C) 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;
(D) indemnify the Owner Trustee and the Delaware Trustee and
their successors, assigns, directors, officers, employees, agents and
servants (collectively, the "Indemnified Parties") for, and 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, the Delaware Trustee or any other Indemnified Party
in any way relating to or arising out of the Trust Agreement, the Basic
Documents, the Owner Trust Estate, the administration of the Owner
Trust Estate or the action or inaction of the Owner Trustee under the
Trust Agreement, except only that the Administrator shall not be liable
for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from the Indemnified Party's own willful
misconduct, bad faith or negligence; and
(E) indemnify, defend and hold harmless the Issuer, the Owner
Trustee, the Delaware 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
Depositor's or the Issuer's violation of federal or state securities
laws in connection with the offering and sale of the Notes and the
Certificates or (ii) any breach of the Depositor of any term, provision
or covenant contained in the Sale and Servicing Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee, the Delaware 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) Duties with Respect to the Interest Rate Swap Agreements. (i)
Promptly following the early termination of an Interest Rate Swap Agreement due
to a Termination Event or an Event of Default (as such terms are defined in the
Interest Rate Swap Agreement) (unless the Indenture Trustee is selling or
liquidating the Indenture Trust Estate), the Administrator agrees to use
reasonable efforts to cause the Issuer to enter into a replacement interest rate
swap agreement on terms similar to those of such Interest Rate Swap Agreement
with an eligible swap counterparty. If and to the extent any Swap Termination
Payments that are received from a Swap Counterparty are to be applied as an
initial payment to a replacement Swap Counterparty, the Administrator shall
direct the Indenture Trustee to retain such amounts and shall provide the
Indenture Trustee with written instructions regarding the application and
payment of such amounts.
(ii) If a Swap Counterparty is required to collateralize any
Interest Rate Swap transaction, the Administrator shall send written
instructions to the Indenture Trustee to establish individual collateral
accounts and to hold any securities deposited therein in trust and invest any
cash amounts therein in accordance with the provisions of the Interest Rate Swap
Agreement.
(iii) The Administrator shall notify the Indenture Trustee of
the occurrence or existence of a default, event of default or similar condition
or event with respect to any credit support provider for a Swap Counterparty or
any payment default with respect to any credit support provider or Swap
Counterparty in amounts equal to or greater than the threshold amounts specified
in, and in accordance with Section 5(a)(vi) of, the Interest Rate Swap
Agreements.
(iv) The Administrator shall notify the Swap Counterparties of
any proposed amendment or supplement to this Agreement or to any of the
Indenture, the Purchase Agreement, the Sale and Servicing Agreement or the Trust
Agreement. If such proposed amendment or supplement would adversely affect any
of the Swap Counterparties' rights or obligations under the Interest Rate Swap
Agreements or modify the obligations of, or impair the ability of the Issuer to
fully perform any of its obligations under, the Interest Rate Swap Agreements,
the Administrator shall obtain the consent of the Swap Counterparties prior to
the adoption of such amendment or supplement, provided, the Swap Counterparties'
consent to any such amendment or supplement shall not be unreasonably withheld,
and provided further, a Swap Counterparty's consent will be deemed to have been
given if the Swap Counterparty does not object in writing within ten Business
Days of receipt of a written request for such consent and in accordance with the
terms of the Interest Rate Swap Agreement.
(v) At least five days prior to the effective date of any
proposed amendment or supplement to any Interest Rate Swap Agreement, the
Administrator shall provide the Rating Agencies with a copy of the amendment or
supplement. Unless the amendment or supplement clarifies any term or provision,
corrects any inconsistency, cures any ambiguity, or corrects any typographical
error in any Interest Rate Swap Agreement, an amendment or supplement to any
Interest Rate Swap Agreement will be effective only after satisfaction of the
Rating Agency Condition.
(vi) The Administrator shall be designated as the Calculation
Agent pursuant to the Interest Rate Swap Agreements and shall perform such
calculations and duties with respect thereto. The Administrator shall calculate
and provide written notification to the Swap Counterparties and to the Indenture
Trustee of the notional amount of the Interest Rate Swaps as of each
Distribution Date on or before the twelfth day of the month of the related
Distribution Date. The Administrator shall also obtain the calculation of LIBOR
from the Calculation Agent under the Indenture and shall calculate the amount of
all Net Swap Payments, Net Swap Receipts and Swap Termination Payments payable
on each Distribution Date, and shall provide written notification of such
amounts to the appropriate Swap Counterparty and to the Indenture Trustee prior
to such Distribution Date.
(c) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such calculations
and shall prepare or shall cause the preparation by other appropriate persons
of, and shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements, and at the request of the Owner Trustee
shall 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 shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including 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) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section 3.2 of the
Trust Agreement with respect to establishing and maintaining a Capital Account
for each Certificateholder.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax is
imposed on the Trust's payments (or allocations of income) to a
Certificateholder as contemplated in Section 5.2(c) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax required to be
withheld by the Owner Trustee pursuant to such provision.
(iv) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trust or the Owner Trustee set forth in Section
5.5(a), (b), (c) and (d), the penultimate sentence of Section 5.5 and Section
5.6(a) of the Trust Agreement with respect to, among other things, accounting
and reports to Certificateholders.
(v) The Administrator will provide prior to March 1, 2002 a
certificate of an Authorized Officer in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Administrator shall be required to update the
letter in each instance that any additional tax withholding is subsequently
required or any previously required tax withholding shall no longer be required.
(vi) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee or
the Delaware Trustee and any other duties expressly required to be performed by
the Administrator pursuant to the Trust Agreement.
(vii) 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 shall be in accordance with any directions
received from the Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated parties.
(d) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) 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 Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Note 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, Note
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x) make
any payments to the Noteholders under the Related Agreements, (y) sell the
Indenture Trust Estate pursuant to Section 5.4 of the Indenture or (z) take any
other action that the Issuer directs the Administrator not to take on its
behalf.
3. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Seller at any time during normal business hours.
4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $2,500
annually which shall be solely an obligation of the Seller.
5. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall 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
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute 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) shall be construed to
impose any liability as such on any of them or (iii) shall 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.
8. Other Activities of Administrator. Nothing herein shall prevent 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 or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
9. Term of Agreement; Resignation and Removal of Administrator. (a)
This Agreement shall continue in force until the termination of the Issuer in
accordance with Section 9.1 of the Trust Agreement, upon which event this
Agreement shall automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60) days' prior
written notice.
(c) Subject to Sections 9(e) and 9(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
shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten (10) days (or, if such default
cannot be cured in such time, shall not give within ten (10) days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been 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 shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(c) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven (7) days after the
happening of such event.
(d) No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder. The Issuer shall 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 shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(f) Subject to Sections 9(d) and 9(e), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically become the Administrator under this
Agreement.
10. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 9(a) or the
resignation or removal of the Administrator pursuant to Section 9(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 9(a) 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
9(b) or (c), respectively, the Administrator shall 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.
11. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed of follows:
(a) if to the Issuer or the Owner Trustee, to:
Ford Credit Auto Owner Trust ▇▇▇▇-▇
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: Asset Backed Securities
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank
Institutional Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
12. Amendments. (a) This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholders, 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 Certificateholders; provided 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
Certificateholder. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the Noteholders of Notes evidencing not less than a majority of the
Notes Outstanding and the Certificateholders of Certificates evidencing not less
than a majority of the Aggregate Certificate Balance 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 Noteholders or the
Certificateholders; provided, however, that 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 Receivables or distributions that are required to be
made for the benefit of the Noteholders or Certificateholders or (ii) reduce the
aforesaid percentage of the Noteholders and Certificateholders which are
required to consent to any such amendment, without the consent of the
Noteholders of all the Notes Outstanding and Certificateholders of Certificates
evidencing all of the Aggregate Certificate Balance.
(b) Upon any proposed amendment or supplement to this Agreement
pursuant to this Section 12, if such proposed amendment or supplement would
adversely affect any of the Swap Counterparties' rights or obligations under the
Interest Rate Swap Agreements or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreements, then the Administrator shall obtain the consent
of the Swap Counterparties prior to the adoption of such amendment or
supplement, provided each Swap Counterparty's consent shall not be unreasonably
withheld, and provided, further, a Swap Counterparty's consent will be deemed to
have been given if the Swap Counterparty does not object in writing within ten
Business Days of receipt of a written request for such consent and in accordance
with the terms of the Interest Rate Swap Agreement.
13. 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 subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall 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 corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
14. Governing Law. This agreement shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
15. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall 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 shall
not invalidate or render unenforceable such provision in any other jurisdiction.
18. Not Applicable to Ford Credit in Other Capacities. Nothing in
this Agreement shall affect any right or obligation Ford Credit may have in
any other capacity.
19. Limitation of Liability of Owner Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been signed on behalf of the Issuer by The Bank of New York not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall The Bank of New York 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 shall 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 shall be subject to, and entitled to
the benefits of, the terms and provisions of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank not in its individual
capacity but solely as Indenture Trustee and in no event shall JPMorgan Chase
Bank have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
20. Third-Party Beneficiary. The Owner Trustee and the Delaware Trustee
are third-party beneficiaries to this Agreement and are entitled to the rights
and benefits hereunder and may enforce the provisions hereof as if they were
parties hereto.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination of
this Agreement, the Seller, the Administrator, the Owner Trustee, the Delaware
Trustee and the Indenture Trustee shall not, prior to the date which is one year
and one day after the termination of this Agreement with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any federal or State bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement,
the Issuer, the Administrator, the Owner Trustee, the Delaware Trustee and the
Indenture Trustee shall not, prior to the date which is one year and one day
after the termination of this Agreement with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Seller under any federal or State bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of the Seller.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
FORD CREDIT AUTO OWNER TRUST 2002-A
By: THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
JPMORGAN CHASE BANK, not in its individual capacity
but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FORD MOTOR CREDIT COMPANY, as Administrator
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
APPENDIX A
Definitions and Usage
See Tab 14