Exhibit 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of March 1, 2003 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST 2003-B, a Delaware
statutory trust (the "Issuer"), FORD MOTOR CREDIT COMPANY, a Delaware
corporation, as administrator (the "Administrator"), and THE BANK OF NEW YORK, a
New York banking 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 will 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
will consult with the Owner Trustee regarding the duties of the Issuer
under the Indenture and the Note Depository Agreement. The
Administrator will monitor the performance of the Issuer and will
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 will prepare for execution by the Issuer, or will
cause the preparation by other appropriate Persons of, all such
documents, reports, filings, instruments, certificates and opinions
that it will 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 will 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 will 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 of
the Swap Counterparties 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 has occurred and is 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).
(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 will 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 its 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 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 will 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
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 Securities or (ii) any breach of the Depositor of any term,
provision or covenant contained in the Sale and Servicing Agreement.
Indemnification under this Section will survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of
this Agreement and will include reasonable fees and expenses of counsel and
expenses of litigation. If the Administrator makes any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter collects any such amount from others, such Person will
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 any Interest Rate Swap Agreement due
to a Termination Event or an Event of Default (as such terms are
defined in each 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 will
direct the Indenture Trustee to retain such amounts and will provide
the Indenture Trustee with written instructions regarding the
application and payment of such amounts.
(ii) If a Swap Counterparty is required to collateralize the Interest Rate
Swap transaction, the Administrator will 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 will 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 Agreement.
(iv) The Administrator will 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 will 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 will not be unreasonably withheld, and
provided further, a Swap Counterparty's consent will be deemed to have
been given if such 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 an Interest Rate Swap Agreement, the
Administrator will 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 such Interest Rate Swap
Agreement, an amendment or supplement to such Interest Rate Swap
Agreement will be effective only after receipt of Rating Agency
Confirmation.
(vi) The Administrator will be designated as the Calculation Agent pursuant
to the Interest Rate Swap Agreements and will perform such calculations
and duties with respect thereto. The Administrator will calculate and
provide written notification to each Swap Counterparty and to the
Indenture Trustee of the notional amount of the applicable Interest
Rate Swap as of each Payment Date on or before the twelfth day of the
month of the related Payment Date. The Administrator will also obtain
the calculation of LIBOR from the Calculation Agent under the Indenture
and will calculate the amount of all Net Swap Payments, Net Swap
Receipts and Swap Termination Payments payable on each Payment Date,
and will provide written notification of such amounts to the
appropriate Swap Counterparty and to the Indenture Trustee prior to
such Payment Date.
(c) Additional Duties. (i) In addition to the duties of the Administrator
set forth above, the Administrator will perform such calculations and
will prepare or will cause the preparation by other appropriate persons
of, and will execute on behalf of the Issuer or the Owner Trustee, all
such documents, reports, filings, instruments, certificates and
opinions that it will 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 will take all appropriate action that it
is the duty of the Issuer or the Owner Trustee to take pursuant to the
Related Agreements. Subject to Section 6 of this Agreement, the
Administrator will administer, perform or supervise the performance of
such other activities in connection with the Collateral (including 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 will 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 will 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 will 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 will 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 April 1, 2003 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 will be required
to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax
withholding will no longer be required.
(vi) The Administrator will 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 and any other duties expressly required to be performed by the
Administrator pursuant to the Trust Agreement.
(vii) The Administrator will either prepare, execute and deliver, or will
direct the Servicer to prepare, execute and deliver, on behalf of the
Issuer all certificates and other documents required to be delivered by
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(viii) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions or
otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings will be in accordance with
any directions received from the Issuer and will 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 will not take any action unless within a reasonable time
before the taking of such action, the Administrator notifies the Owner
Trustee of the proposed action and the Owner Trustee has not withheld
consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" will 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 will not be obligated to, and will 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 will maintain appropriate books of account
and records relating to services performed hereunder, which books of
account and records will 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 will be entitled to
$2,500 annually which will be solely an obligation of the Seller.
5. Additional Information To Be Furnished to the Issuer. The Administrator
will furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer will reasonably
request.
6. Independence of the Administrator. For all purposes of this Agreement,
the Administrator will be an independent contractor and will 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 will have no authority to act for or represent the Issuer
or the Owner Trustee in any way and will not otherwise be deemed an
agent of the Issuer or the Owner Trustee.
7. No Joint Venture. Nothing contained in this Agreement (i) will
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) will
be construed to impose any liability as such on any of them or (iii)
will 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 will 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 will continue in force until the termination of the Issuer in
accordance with Section 9.1 of the Trust Agreement, upon which event
this Agreement will automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer, the Owner Trustee and the
Indenture Trustee with at least sixty (60) days' prior written notice.
(c) Subject to Sections 9(e) and 9(f), the Administrator may be removed
immediately upon written notice of termination from the Issuer (with
the consent of a majority of the Controlling Note Class, or if no Notes
are outstanding, the Controlling Certificate Class) to the
Administrator if any of the following events will occur:
(i) the Administrator defaults in the performance of any of its duties
under this Agreement and, after notice of such default, does not cure
such default within ten (10) days (or, if such default cannot be cured
in such time, does not give within ten (10) days such assurance of cure
as is reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises enters a decree or order
for relief, and such decree or order has not 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 appoints a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or orders the
winding-up or liquidation of its affairs; or
(iii) the Administrator commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
consents to the entry of an order for relief in an involuntary case
under any such law, consents to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its property,
consents to the taking of possession by any such official of any
substantial part of its property, makes any general assignment for the
benefit of creditors or fails generally to pay its debts as they become
due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(c) occurs, it will 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
will be effective until (i) a successor Administrator has been appointed by the
Issuer at the direction of a majority of the Controlling Note Class, or if no
Notes are outstanding, the Controlling Certificate Class and (ii) such successor
Administrator has agreed in writing to be bound by the terms of this Agreement
in the same manner as the Administrator is bound hereunder. The Issuer will
provide written notice of any such resignation or removal to the Indenture
Trustee, with a copy to the Rating Agencies.
(e) The appointment of any successor Administrator will be effective only after
Rating Agency Confirmation has been obtained with respect to the proposed
appointment.
(f) Subject to Section 9(e), the Administrator acknowledges that upon the
appointment of a successor Servicer pursuant to the Sale and Servicing
Agreement, the Administrator will immediately resign and such successor Servicer
will 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 will be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator will 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 will cooperate with the Issuer and
take all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
11. Notices. Any notice, report or other communication given hereunder will be
in writing and addressed of follows:
(a) if to the Issuer or the Owner Trustee, to:
Ford Credit Auto Owner Trust 2003-B
c/o Wachovia Bank of Delaware, National Association
One ▇▇▇▇▇▇ Square
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Administrator, to:
Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
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Attention: Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Indenture Trustee, to:
The Bank of New York
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Attention: Structured Finance Services -
Asset Backed Securities, Ford 2003-B
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party will have provided to the other parties in
writing. Any notice required to be in writing hereunder will 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 Counterparty's 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 will obtain the consent of the Swap Counterparties prior
to the adoption of such amendment or supplement, provided each Swap
Counterparty's consent will not be unreasonably withheld, and provided, further,
each 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 Agreements.
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 receipt of Rating Agency
Confirmation in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, will bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such 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 will
bind any successors or assigns of the parties hereto.
14. Governing Law. This agreement will be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder will be determined in accordance with such laws.
15. Headings. The Section headings hereof have been inserted for convenience of
reference only and will 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 will be an original, but all of which together will constitute
but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction will not
invalidate or render unenforceable such provision in any other jurisdiction.
18. Not Applicable to Ford Credit in Other Capacities. Nothing in this Agreement
will 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 Wachovia Bank of Delaware, National
Association not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event will Wachovia Bank of Delaware, National
Association 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 will 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 will 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 Bank of New York not in its individual capacity
but solely as Indenture Trustee and in no event will The Bank of New York 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 will be had
solely to the assets of the Issuer.
20. Third-Party Beneficiary. The Owner Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination of this
Agreement, the Seller, the Administrator, the Owner Trustee and the Indenture
Trustee will 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 and the Indenture Trustee will 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 2003-B
By: WACHOVIA BANK OF DELAWARE, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By:
Name:
Title:
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By:
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
FORD MOTOR CREDIT COMPANY, as Administrator
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
APPENDIX A
Definitions and Usage