EXHIBIT 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of April 1, 2000 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST 2000-B, a Delaware
business trust (the "Issuer"), FORD MOTOR CREDIT COMPANY, a Delaware
corporation, as administrator (the "Administrator"), and THE CHASE MANHATTAN
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
Agreement and (iv) the Indenture (the Sale and Servicing Agreement, the Note
Depository Agreement, the Interest Rate Swap Agreement 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.
(i) Duties of the Administrator. Duties with Respect to the Indenture and the
Note Depository Agreement. 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 Agreement 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 VI 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 (Section 3.20);
(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);
(BB) 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);
(CC) the execution and delivery of new Notes conforming to
any supplemental indenture (Section 9.6);
(DD) the notification of Noteholders of redemption of the
Notes or duty to cause the Indenture Trustee to provide such
notification (Section 10.2);
(EE) 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));
(FF) 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));
(GG) 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);
(HH) 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
(II) the recording of the Indenture, if applicable
(Section 11.15).
(i) 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 their 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 Issuance of VPTNs and Interest Rate Swap
Agreement. (i) Subject to the terms and conditions of this Section 2(b), on the
Targeted Scheduled Distribution Date for each Subclass of Class A Notes, the
Administrator shall cause the Issuer to issue a related VPTN in the aggregate
principal amount equal to the VPTN Issuance Amount if the conditions in this
Section 2(iii) are satisfied against payment to the Issuer of the par price. The
Administrator shall determine, in its sole discretion, the VPTN Rate for each
issuance of VPTNs, which shall equal, for each Distribution Date, LIBOR plus a
fixed percentage which will be determined at the time of issuance based on
market conditions but which will not exceed 1.50%.
(ii) The Administrator agrees to cause the Trust to offer each VPTN
that may be issued on the Targeted Scheduled Distribution Date for a Subclass of
Class A Notes to FCAR Owner Trust and, if FCAR Owner Trust is unable or
unwilling to purchase such VPTN, the Administrator agrees to use reasonable
efforts to locate another Eligible Purchaser and cause the Trust to offer such
VPTN to such Eligible Purchaser. Neither the Administrator, the Seller nor the
Servicer shall be obligated to identify any other Eligible Purchaser for any
VPTN.
(iii) No VPTN may be issued on a Targeted Scheduled Distribution Date
unless the following conditions are satisfied:
(A) both before and after giving effect to the issuance
of the VPTN and to the application of such proceeds
and any amounts on deposit in the Accumulation
Account and in the Principal Distribution Account,
the aggregate principal balance of the receivables
minus the Yield Supplement Overcollateralization
Amount must be equal to or greater than the aggregate
outstanding balance of the Class A Notes, VPTNs,
Class B Notes and Class C Certificates;
(B) an Extended Sequential Amortization Period must not have
occurred or be occurring;
(C) the VPTN must be rated "AAA" and "Aaa" by S&P and ▇▇▇▇▇'▇,
respectively;
(D) the Interest Rate Swap Agreement must be in full
force and effect with a notional amount equal to the
sum of the principal balances of such VPTN and any
other outstanding VPTNs;
(E) no Event of Servicing Termination shall have occurred and be
continuing;
(F) no Event of Default shall have occurred and be continuing;
(G) the purchase price of the VPTN must be equal to par; and
(H) the interest rate on the VPTN must not exceed one-month LIBOR
plus 1.50%.
(iv) Promptly following the early termination of the 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), the Administrator agrees to use
reasonable efforts to cause the Issuer to enter into a replacement Interest Rate
Swap Agreement with an eligible swap counterparty.
(v) Upon the occurrence of a downgrade of the Swap Counterparty by the
Rating Agencies or of a suspension or withdrawal of its ratings as described in
Section 6.13(f) of the Indenture, within 30 days of such downgrade, suspension
or withdrawal, the Administrator agrees to cause the Issuer to require that the
Swap Counterparty either (i) deliver collateral acceptable to the Issuer in
amounts sufficient to secure its obligations under the Interest Rate Swap
Agreement, (ii) assign its rights and obligations under the Interest Rate Swap
Agreement to a replacement counterparty acceptable to the Issuer or (iii)
establish other arrangements necessary, if any, in each case so that the Rating
Agencies confirm the ratings of the Class A Notes and VPTNs that were in effect
immediately prior to such downgrade, suspension or withdrawal. If the 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.
(vi) The Administrator shall notify the Swap Counterparty 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
Counterparty's rights or obligations under the Interest Rate Swap Agreement or
modify the obligations of, or impair the ability of the Issuer to fully perform
any of its obligations under, the Interest Rate Swap Agreement, the
Administrator shall obtain the consent of the Swap Counterparty prior to the
adoption of such amendment or supplement, provided, the Swap Counterparty's
consent to any such amendment or supplement shall not be unreasonably withheld,
and provided further, the 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.
(vii) At least five days prior to the effective date of any proposed
amendment or supplement to the 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 the
Interest Rate Swap Agreement, an amendment or supplement to the Interest Rate
Swap Agreement will be effective only after satisfaction of the Rating Agency
Condition.
(viii) The Administrator shall be designated as the Calculation Agent
pursuant to the Interest Rate Swap Agreement and shall perform such calculations
and duties with respect thereto. The Administrator shall calculate and provide
written notification to the Swap Counterparty and to the Indenture Trustee of
the notional amount of the Interest Rate Swap 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 Swap Payments,
Swap Receipts and Swap Termination Payments payable on each Distribution Date,
and shall provide written notification of such amounts to the Swap Counterparty
and to the Indenture Trustee prior to such Distribution Date.
(i) Additional Duties. 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 May 31, 2000 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.
(viii) Non-Ministerial Matters. 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.
(ix) 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.
(a) Term of Agreement; Resignation and Removal of Administrator. 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.
(iv) No resignation or removal of the Administrator pursuant to this Section 9
shall be effective until a successor Administrator shall have been appointed by
the Issuer and 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.
(d) The appointment of any successor Administrator shall be effective only after
satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
(e) 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.
9. 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.
10. 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 ▇▇▇▇-▇
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
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Attention: Asset-Backed Finance Unit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
Ford Motor Credit Company
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Indenture Trustee, to:
The Chase Manhattan Bank
Corporate Trust Administration
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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.
(i) 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 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 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 Counterparty's rights or obligations
under the Interest Rate Swap Agreement or modify the obligations of, or impair
the ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreement, then the Administrator shall obtain the consent of
the Swap Counterparty prior to the adoption of such amendment or supplement,
provided the Swap Counterparty's consent shall not be unreasonably withheld, and
provided, further, the 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
(a) Limitation of Liability of Owner Trustee and Indenture Trustee.
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 The Chase Manhattan Bank not in its individual
capacity but solely as Indenture Trustee and in no event shall The Chase
Manhattan 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.
17. 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.
18. 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 or the General Partner to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Seller or the General Partner 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 the General Partner or any substantial part of
their respective property, or ordering the winding up or liquidation of the
affairs of the Seller or the General Partner.
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 2000-B
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK,
not in its individual
capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FORD MOTOR CREDIT COMPANY, as Administrator
By: /s/ ▇.▇. ▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
APPENDIX A
Definitions and Usage