ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of May 1, 2004 (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST 2004-A, 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 and (iii) the Indenture (the Sale
and Servicing Agreement, the Note Depository Agreement and the Indenture being
referred to hereinafter collectively as the "Related Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain duties of the Issuer and the Owner Trustee under
the Related Agreements and to provide such additional services consistent with
the terms of this Agreement and the Related Agreements as the Issuer and the
Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions and Usage. Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which also contains rules as to
usage that 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 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 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);
(B) the preparation of definitive Notes in the event
temporary Notes are issued (Section 2.3);
(C) 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);
(D) the determination as to whether the requirements
of UCC Section 8-405(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);
(E) the notification of Noteholders of the final
principal payment on their Notes (Section 2.8(b));
(F) 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);
(G) the preparation of Definitive Notes in accordance
with the instructions of the Clearing Agency (Section 2.13);
(H) 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);
(I) 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);
(J) the direction to the Indenture Trustee to deposit
monies with Note Paying Agents, if any, other than the Indenture
Trustee (Section 3.3);
(K) 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);
(L) 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));
(M) 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);
(N) 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));
(O) 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));
(P) 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);
(Q) the duty to cause the Servicer to comply with
Sections 3.9, 3.10, 3.11, 3.12 and 3.13 and Article VI of the Sale and
Servicing Agreement (Section 3.14);
(R) the delivery of written notice to the Indenture
Trustee and the Rating Agencies of each Event of Default under the
Indenture and each default by the Servicer or the Seller under the Sale
and Servicing Agreement and by Ford Credit or the Seller under the
Purchase Agreement (Section 3.19);
(S) 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);
(T) 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);
(U) 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);
(V) 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);
(W) 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);
(X) 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);
(Y) 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);
(Z) 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);
(AA) 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);
(AB) 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);
(AC) 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);
(AD) the execution and delivery of new Notes
conforming to any supplemental indenture (Section 9.6);
(AE) the notification of Noteholders of redemption of
the Notes or duty to cause the Indenture Trustee to provide such
notification (Section 10.2);
(AF) 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));
(AG) 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));
(AH) 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);
(AI) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6);
(AJ) the recording of the Indenture, if applicable
(Section 11.15); and
(AK) any inspection of the Indenture Trustee's books
and records (Section 11.20).
(ii) The Administrator will:
(A) (i) 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) and (ii) 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 the Indenture Trustee's negligence or
bad faith;
(B) (i) pay the Owner Trustee as compensation for the
Owner Trustee's services under the Trust Agreement such fees as have
been separately agreed upon on the date of this Agreement between the
Administrator and the Owner Trustee and (ii) reimburse the Owner
Trustee for its other reasonable expenses under the Trust Agreement,
including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Owner Trustee
may employ in connection with the exercise and performance of its
rights and its duties under the Trust Agreement;
(C) pay each Authenticating Agent reasonable
compensation for all services rendered by each such Authenticating
Agent under the Indenture;
(D) 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;
(E) 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 Trust Property, the
administration of the Trust Property 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
(F) 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 by 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) Reserved.
(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 Trust or the Owner Trustee set forth in Section
3.2, 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 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(b) 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) If requested by the Owner Trustee, the Administrator will
provide prior to April 1, 2005 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.
(v) The Administrator will obtain and maintain, at its own
expense, any licenses required to be obtained or maintained by the Issuer under
the laws of any State, including the Pennsylvania Motor Vehicle Sales Finance
Act and Section 11-403 of the Annotated Code of Maryland, Financial
Institutions, in connection with the Issuer's duties and obligations under the
Related Agreements, the Indenture and the Trust Agreement.
(vi) The Administrator will notify the Owner Trustee, on or
before the Closing Date and from time to time thereafter, of any licenses
required to be obtained or maintained by the Owner Trustee under the laws of any
State in connection with the duties and obligations of the Owner Trustee under
the Related Agreements and the Trust Agreement. As of the Closing Date, the
Administrator notifies the Owner Trustee that licenses are required under the
Pennsylvania Motor Vehicle Sales Finance Act.
(vii) 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.
(viii) 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 Xxxxxxxx-Xxxxx Act.
(ix) 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 Seller will pay the Administrator an annual fee in
an amount agreed upon by the Seller and the Administrator. Payment of such fee
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), at the sole option of the
Issuer, 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 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 as follows:
(a) if to the Issuer or the Owner Trustee, to:
Ford Credit Auto Owner Trust 2004-A
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
c/o Ford Motor Company, World Headquarters
Xxx Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to the Indenture Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Services -
Asset Backed Securities, Ford 2004-A
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. 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.
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 governed by and construed in
accordance with the laws of the State of New York.
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.
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 2004-A
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:
FORD MOTOR CREDIT COMPANY, as Administrator
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
Acknowledged and Agreed:
FORD CREDIT AUTO RECEIVABLES TWO, LLC, as Seller
By: ______________________
Name: Xxxxx X. Xxxxxx
Title: Secretary
APPENDIX A
Definitions and Usage
