Exhibit 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of March 1, 2002 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST 2002-B, a Delaware
business trust (the "Issuer"), FORD MOTOR CREDIT COMPANY, a Delaware
corporation, as administrator (the "Administrator"), and JPMORGAN CHASE BANK,
a New York corporation, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture
and the Certificates pursuant to the Trust Agreement and has entered into
certain agreements in connection therewith, including (i) the Sale and
Servicing Agreement, (ii) the Note Depository Agreement, (iii) the Interest
Rate Swap Agreements and (iv) the Indenture (the Sale and Servicing
Agreement, the Note Depository Agreement, the Interest Rate Swap Agreements
and the Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain duties of the Issuer and the Owner Trustee
under the Related Agreements and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Definitions and Usage. Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which also contains rules as
to usage that shall be applicable herein.
2. Duties of the Administrator. (a) Duties with Respect to the
Indenture and the Note Depository Agreement. (i) The Administrator agrees to
perform all its duties as Administrator and the duties of the Issuer under
the Note Depository Agreement. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuer under the Indenture
and the Note Depository Agreement. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the Issuer's duties under the Indenture and the Note
Depository Agreement. The Administrator shall prepare for execution by the
Issuer, or shall cause the preparation by other appropriate Persons of, all
such documents, reports, filings, instruments, certificates and opinions that
it shall be the duty of the Issuer to prepare, file or deliver pursuant to
the Indenture, the Interest Rate Swap Agreements and the Note Depository
Agreement. In furtherance of the foregoing, the Administrator shall take, in
the name and on behalf of the Issuer or the Owner Trustee, all appropriate
action that is the duty of the Issuer or the Owner Trustee to take, if any,
pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under the
Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.5);
(B) the determination as to whether the requirements of UCC
Section 8-401(1) are met and the preparation of an Issuer Request
requesting the Indenture Trustee to authenticate and deliver
replacement Notes in lieu of mutilated, destroyed, lost or stolen
Notes (Section 2.6);
(C) the notification of Noteholders of the final principal
payment on their Notes (Section 2.8(b));
(D) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.2);
(E) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents required
for the release of property from the lien of the Indenture (Section
2.10);
(F) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.13);
(G) the maintenance of an office in the Borough of
Manhattan, The City of New York, for registration of transfer or
exchange of Notes if the Indenture Trustee ceases to maintain such
an office (Section 3.2);
(H) the duty to cause newly appointed Note Paying Agents,
if any, to deliver to the Indenture Trustee the instrument specified
in the Indenture regarding funds held in trust (Section 3.3);
(I) the direction to the Indenture Trustee to deposit
monies with Note Paying Agents, if any, other than the Indenture
Trustee (Section 3.3);
(J) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity
and enforceability of the Indenture, the Notes,
the Collateral and each other instrument or agreement included in
the Indenture Trust Estate (Section 3.4);
(K) the preparation of all supplements and amendments to
the Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the
taking of such other action as is necessary or advisable to protect
the Indenture Trust Estate (Sections 3.5 and 3.7(c));
(L) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to the
Indenture Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance with the
Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an
Officer's Certificate of any Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.7(b));
(N) the notification of the Indenture Trustee and the
Rating Agencies of an Event of Servicing Termination under the Sale
and Servicing Agreement and, if such Event of Servicing Termination
arises from the failure of the Servicer to perform any of its duties
under the Sale and Servicing Agreement with respect to the
Receivables, the taking of all reasonable steps available to remedy
such failure (Section 3.7(d));
(O) the preparation and obtaining of documents and
instruments required for the consolidation or merger of the Issuer
with another entity or the transfer by the Issuer of its properties
or assets (Section 3.10);
(P) the duty to cause the Servicer to comply with Sections
3.9, 3.10, 3.11, 3.12, 3.13 and 4.9 and Article VII of the Sale and
Servicing Agreement (Section 3.14);
(Q) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the Indenture
and each default by the Servicer or the Seller under the Sale and
Servicing Agreement and by Ford Credit or the Seller under the
Purchase Agreement or any Swap Counterparty under the Interest Rate
Swap Agreements (Section 3.19);
(R) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of
an Officer's Certificate and the obtaining of the Opinions of
Counsel and the Independent Certificate relating thereto (Section
4.1);
(S) the monitoring of the Issuer's obligations as to the
satisfaction, discharge and defeasance of the Notes and the
preparation of an Officer's Certificate and the obtaining of an
opinion of a nationally recognized firm of independent certified
public accountants, a written certification thereof and the Opinions
of Counsel relating thereto (Section 4.2);
(T) the preparation of an Officer's Certificate to the
Indenture Trustee after the occurrence of any event which with the
giving of notice and the lapse of time would become an Event of
Default under Section 5.1(iii) of the Indenture, its status and what
action the Issuer is taking or proposes to take with respect thereto
(Section 5.1);
(U) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Indenture Trust
Estate at one or more public or private sales called and conducted
in any manner permitted by law if an Event of Default shall have
occurred and be continuing (Section 5.4);
(V) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.8);
(W) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with the
resignation or removal of any co- trustee or separate trustee
(Sections 6.8 and 6.10);
(X) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.1);
(Y) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic
basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any applicable state
agencies and the transmission of such summaries, as necessary, to
the Noteholders (Section 7.3);
(Z) the opening of one or more accounts in the Issuer's
name, the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions necessary
with respect to investment and reinvestment, to the extent
permitted, of funds in such accounts (Sections 8.2 and 8.3);
(AA) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Indenture Trust Estate (Sections 8.4 and 8.5);
(AB) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with
respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(AC) the execution and delivery of new Notes conforming to
any supplemental indenture (Section 9.6);
(AD) the notification of Noteholders of redemption of the
Notes or duty to cause the Indenture Trustee to provide such
notification (Section 10.2);
(AE) the preparation of all Officer's Certificates, Issuer
Requests and Issuer Orders and the obtaining of Opinions of Counsel
and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(AF) the preparation of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release
of property from the lien of the Indenture (Section 11.1(b));
(AG) the notification of the Rating Agencies, upon the
failure of the Indenture Trustee to give such notification, of the
information required pursuant to Section 11.4 of the Indenture
(Section 11.4);
(AH) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6); and
(AI) the recording of the Indenture, if applicable (Section
11.15).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee
under the Indenture (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of the
Indenture (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith;
(C) indemnify the Indenture Trustee and its agents for, and
hold them harmless against, any losses, liability or expense
incurred without negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration of the
transactions contemplated by the Indenture, including the reasonable
costs and expenses (including reasonable attorneys' fees) of
defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties
under the Indenture;
(D) indemnify the Owner Trustee and the Delaware Trustee
and their successors, assigns, directors, officers, employees,
agents and servants (collectively, the "Indemnified Parties") for,
and hold them harmless against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee, the
Delaware Trustee or any other Indemnified Party in any way relating
to or arising out of the Trust Agreement, the Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or
the action or inaction of the Owner Trustee under the Trust
Agreement, except only that the Administrator shall not be liable
for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from the Indemnified Party's own
willful misconduct, bad faith or negligence; and
(E) indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Delaware Trustee, the Indenture Trustee and any
of their respective officers, directors, employees and agents from
and against any loss, liability or expense incurred by reason of (i)
the Depositor's or the Issuer's violation of federal or state
securities laws in connection with the offering and sale of the
Notes and the Certificates or (ii) any breach of the Depositor of
any term, provision or covenant contained in the Sale and Servicing
Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee, the Delaware Trustee or the Indenture Trustee
and the termination of this Agreement and shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Administrator shall
have made any indemnity payments pursuant to this Section and the Person to
or on behalf of whom such payments are made thereafter shall collect any such
amount from others, such Person shall promptly repay such amounts to the
Administrator, without interest.
(b) Duties with Respect to the Interest Rate Swap Agreements. (i)
Promptly following the early termination of an Interest Rate Swap Agreement
due to a Termination Event or an Event of Default (as such terms are defined
in the Interest Rate Swap Agreement) (unless the Indenture Trustee is selling
or liquidating the Indenture Trust Estate), the Administrator agrees to use
reasonable efforts to cause the Issuer to enter into a replacement interest
rate swap agreement on terms similar to those of such Interest Rate Swap
Agreement with an eligible swap counterparty. If and to the extent any Swap
Termination Payments that are received from a Swap Counterparty are to be
applied as an initial payment to a replacement Swap Counterparty, the
Administrator shall direct the Indenture Trustee to retain such amounts and
shall provide the Indenture Trustee with written instructions regarding the
application and payment of such amounts.
(ii) If a Swap Counterparty is required to collateralize
any Interest Rate Swap transaction, the Administrator shall send written
instructions to the Indenture Trustee to establish individual collateral
accounts and to hold any securities deposited therein in trust and invest any
cash amounts therein in accordance with the provisions of the Interest Rate
Swap Agreement.
(iii) The Administrator shall notify the Indenture Trustee
of the occurrence or existence of a default, event of default or similar
condition or event with respect to any credit support provider for a Swap
Counterparty or any payment default with respect to any credit support
provider or Swap Counterparty in amounts equal to or greater than the
threshold amounts specified in, and in accordance with Section 5(a)(vi) of,
the Interest Rate Swap Agreements.
(iv) The Administrator shall notify the Swap Counterparties
of any proposed amendment or supplement to this Agreement or to any of the
Indenture, the Purchase Agreement, the Sale and Servicing Agreement or the
Trust Agreement. If such proposed amendment or supplement would adversely
affect any of the Swap Counterparties' rights or obligations under the
Interest Rate Swap Agreements or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreements, the Administrator shall obtain the consent of
the Swap Counterparties prior to the adoption of such amendment or
supplement, provided, the Swap Counterparties' consent to any such amendment
or supplement shall not be unreasonably withheld, and provided further, a
Swap Counterparty's consent will be deemed to have been given if the Swap
Counterparty does not object in writing within ten Business Days of receipt
of a written request for such consent and in accordance with the terms of the
Interest Rate Swap Agreement.
(v) At least five days prior to the effective date of any
proposed amendment or supplement to any Interest Rate Swap Agreement, the
Administrator shall provide the Rating Agencies with a copy of the amendment
or supplement. Unless the amendment or supplement clarifies any term or
provision, corrects any inconsistency, cures any ambiguity, or corrects any
typographical error in any Interest Rate Swap Agreement, an amendment or
supplement to any Interest Rate Swap Agreement will be effective only after
satisfaction of the Rating Agency Condition.
(vi) The Administrator shall be designated as the
Calculation Agent pursuant to the Interest Rate Swap Agreements and shall
perform such calculations and duties with respect thereto. The Administrator
shall calculate and provide written notification to the Swap Counterparties
and to the Indenture Trustee of the notional amount of the Interest Rate
Swaps as of each Distribution Date on or before the twelfth day of the month
of the related Distribution Date. The Administrator shall also obtain the
calculation of LIBOR from the Calculation Agent under the Indenture and shall
calculate the amount of all Net Swap Payments, Net Swap Receipts and Swap
Termination Payments payable on each Distribution Date, and shall provide
written notification of such amounts to the appropriate Swap Counterparty and
to the Indenture Trustee prior to such Distribution Date.
(c) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such
calculations and shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the Issuer or the
Owner Trustee, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the
Owner Trustee to prepare, file or deliver pursuant to the Related Agreements,
and at the request of the Owner Trustee shall take all appropriate action
that it is the duty of the Issuer or the Owner Trustee to take pursuant to
the Related Agreements. Subject to Section 6 of this Agreement, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible
for performance of the duties of the Owner Trustee set forth in Section 3.2
of the Trust Agreement with respect to establishing and maintaining a Capital
Account for each Certificateholder.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible
for promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Trust's payments (or allocations of income) to a
Certificateholder as contemplated in Section 5.2(c) of the Trust Agreement.
Any such notice shall specify the amount of any withholding tax required to
be withheld by the Owner Trustee pursuant to such provision.
(iv) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible
for performance of the duties of the Trust or the Owner Trustee set forth in
Section 5.5(a), (b), (c) and (d), the penultimate sentence of Section 5.5 and
Section 5.6(a) of the Trust Agreement with respect to, among other things,
accounting and reports to Certificateholders.
(v) The Administrator will provide prior to 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 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 2002-B
c/o The Bank of New York
Attention: Asset Backed Securities
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Administrator, to:
Ford Motor Credit Company
Ford Motor Company World Headquarters
Office of the General Counsel
Xxx Xxxxxxxx Xxxx
Xxxxx 0000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to the Indenture Trustee, to:
JPMorgan Chase Bank
Institutional Trust Services
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
12. Amendments. (a) This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, with the written consent of the
Owner Trustee, without the consent of the Noteholders and the
Certificateholders, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or Certificateholders;
provided that such amendment will not, as set forth in an Opinion of Counsel
satisfactory to the Indenture Trustee and the Owner Trustee, materially and
adversely affect the interest of any Noteholder or Certificateholder. This
Agreement may also be amended by the Issuer, the Administrator and the
Indenture Trustee with the written consent of the Owner Trustee and the
Noteholders of Notes evidencing not less than a majority of the Notes
Outstanding and the Certificateholders of Certificates evidencing not less
than a majority of the Aggregate Certificate Balance for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or the Certificateholders; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders
or Certificateholders or (ii) reduce the aforesaid percentage of the
Noteholders and Certificateholders which are required to consent to any such
amendment, without the consent of the Noteholders of all the Notes
Outstanding and Certificateholders of Certificates evidencing all of the
Aggregate Certificate Balance.
(b) Upon any proposed amendment or supplement to this Agreement
pursuant to this Section 12, if such proposed amendment or supplement would
adversely affect any of the Swap Counterparties' rights or obligations under
the Interest Rate Swap Agreements or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreements, then the Administrator shall obtain the
consent of the Swap Counterparties prior to the adoption of such amendment or
supplement, provided each Swap Counterparty's consent shall not be
unreasonably withheld, and provided, further, a Swap Counterparty's consent
will be deemed to have been given if the Swap Counterparty does not object in
writing within ten Business Days of receipt of a written request for such
consent and in accordance with the terms of the Interest Rate Swap Agreement.
13. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to the satisfaction
of the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in
the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
14. Governing Law. This agreement shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
15. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which
together shall constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
18. Not Applicable to Ford Credit in Other Capacities. Nothing in
this Agreement shall affect any right or obligation Ford Credit may have in
any other capacity.
19. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been signed on behalf of the Issuer by The Bank of New York
not in its individual capacity but solely in its capacity as Owner Trustee of
the Issuer and in no event shall The Bank of New York in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank not in its individual
capacity but solely as Indenture Trustee and in no event shall JPMorgan Chase
Bank have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
20. Third-Party Beneficiary. The Owner Trustee and the Delaware
Trustee are third-party beneficiaries to this Agreement and are entitled to
the rights and benefits hereunder and may enforce the provisions hereof as if
they were parties hereto.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination
of this Agreement, the Seller, the Administrator, the Owner Trustee, the
Delaware Trustee and the Indenture Trustee shall not, prior to the date which
is one year and one day after the termination of this Agreement with respect
to the Issuer, acquiesce, petition or otherwise invoke or cause the Issuer to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any federal or State
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Issuer, the Administrator, the Owner Trustee, the Delaware Trustee and the
Indenture Trustee shall not, prior to the date which is one year and one day
after the termination of this Agreement with respect to the Seller,
acquiesce, petition or otherwise invoke or cause the Seller to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller under any federal or State bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or
any substantial part of their respective property, or ordering the winding up
or liquidation of the affairs of the Seller.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
FORD CREDIT AUTO OWNER TRUST 2002-B
By: THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Assistant Treasurer
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
FORD MOTOR CREDIT COMPANY, as Administrator
By: /s/ Xxxxx Xxxxx-Xxxxxxx
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Name: Xxxxx Xxxxx-Xxxxxxx
Title: Assistant Secretary
APPENDIX A
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Definitions and Usage
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See Tab 14
