Exhibit 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of August 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-D, a Delaware
business 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);
(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 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) 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 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 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 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 receipt of Rating Agency Confirmation 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 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 2002-D
c/o Wachovia Bank of Delaware, National Association
One Xxxxxx Square
000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: 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:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Services -
Asset Backed Securities, Ford 2002-D
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 2002-D
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: Xxxx Xxxxx
Title: Assistant Treasurer
FORD MOTOR CREDIT COMPANY, as Administrator
By: _______________________________
Name: Xxxxx X. Xxxxx-Xxxxxxx
Title: Assistant Secretary
AA-1
APPENDIX A
Definitions and Usage
