Exhibit 99.2
This ADMINISTRATION AGREEMENT, dated as of January 1, 2001 (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST 2001-A, 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
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 Agreement");
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 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.
(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 February 28, 2001 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 Finance Unit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Indenture Trustee, to:
The Chase Manhattan Bank
Corporate Trust Administration
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 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.
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 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 2001-A
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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
Title:
APPENDIX A
Definitions and Usage
See Tab 14
