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EXHIBIT 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of ______ __, ____ (as from
time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), is by and among FORD CREDIT AUTO OWNER TRUST ____-_, a
Delaware business trust (the "Issuer"), FORD MOTOR CREDIT COMPANY, a
Delaware corporation, as administrator (the "Administrator"), and _______,
a ______ 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 Depository Agreements, and (iii) the
Indenture (the Sale and Servicing Agreement, the Depository 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;
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein contained, 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 Depository Agreements. (i) The Administrator agrees to
perform all its duties as Administrator and the duties of the Issuer under
the Depository Agreements. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuer under the
Indenture and the Depository Agreements. 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 Depository Agreements. 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 and the Depository
Agreements. In furtherance of the foregoing, the Administrator shall take
all appropriate action that is the duty of the Issuer to take 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 notification of Noteholders of the final
principal payment on their Notes (Section 2.8(b));
(C) 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);
(D) 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);
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(E) the preparation of Definitive Notes in accordance
with the instructions of the Clearing Agency (Section 2.13);
(F) the maintenance of an office in the Borough of Manhattan,
City of New York, for registration of transfer or exchange of Notes
(Section 3.2);
(G) 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);
(H) the direction to the Indenture Trustee to deposit monies
with Note Paying Agents, if any, other than the Indenture Trustee
(Section 3.3);
(I) 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);
(J) 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 (Section 3.5);
(K) 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);
(L) 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));
(M) the notification of the Indenture Trustee and the Rating
Agencies of an Event of Servicing Termination under the Sale and
Servicing Agreement
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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));
(N) the preparation and obtaining of documents and instruments
required for the transfer by the Issuer of its properties or assets
(Section 3.10(b));
(O) 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);
(P) 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);
(Q) 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);
(R) 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 confirmation thereof and the Opinions
of Counsel relating thereto (Section 4.2);
(S) the preparation and delivery 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);
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(T) 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);
(U) 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);
(V) 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);
(W) 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);
(X) 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);
(Y) 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);
(Z) 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);
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(AA) 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);
(BB) the execution and delivery of new Notes conforming
to any supplemental indenture (Section 9.6);
(CC) the notification of Noteholders of redemption of the Notes
or duty to cause the Indenture Trustee to provide such notification
(Section 10.2);
(DD) the preparation and delivery of all Officer's Certificates
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));
(EE) the preparation and delivery 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));
(FF) 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);
(GG) 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
(HH) 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
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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 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; and
(D) indemnify the Owner 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 Trust Agreement, including the reasonable costs
and expenses of defending themselves against any claim or liability
in connection with the exercise or performance of any of their
powers or duties under the Trust Agreement.
(b) 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
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duty of the Issuer or the Owner Trustee to take pursuant to the Related
Agreements. Subject to Section 5 of this Agreement, and in accordance with
the directions of the Owner Trustee, 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
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.
(iii) 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.
(iv) The Administrator will provide prior to __________ __, ____, 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.
(v) 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, and
any other duties expressly required to be performed by the Administrator
pursuant to the Trust Agreement.
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(vi) 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.
(c) 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
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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
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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 dissolution
of the Issuer, 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, it
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,
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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(d) 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.
(e) 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.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Sections 9(e) and 9(f), 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), respec-
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tively, 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 ____-_
c/o _______
_________
Attention: ______
Telephone: ______
Telecopy: ______
(b) if to the Administrator, to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: ______
Telephone: ______
Telecopy: ______
(c) If to the Indenture Trustee, to:
_________
_________
Attention: ______
Telephone: ______
Telecopy: ______
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. 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
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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 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 of
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 the
Certificate Balance. Notwithstanding the foregoing, the Administrator may
not amend this Agreement without the consent of the Seller, which
permission shall not be unreasonably withheld.
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
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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 countersigned by ______ not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event
shall ______ 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
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obligations of the Issuer hereunder, the Owner Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Articles
VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by ______ not in its individual capacity
but solely as Indenture Trustee and in no event shall ______ 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 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 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, (i) the
Issuer, the Administrator, the Owner 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,
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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 (ii) any claim that the Issuer, the Administrator, the Owner
Trustee and the Indenture Trustee may have at any time against the Series
Assets of any Series unrelated to the Notes, the Certificates or the
Receivables, and any claim that they may have at any time against the
Seller that they may seek to enforce against the Series Assets of any
Series unrelated to the Notes, the Certificates or the Receivables, shall
be subordinate to the payment in full, including post-petition interest,
in the event that the Seller becomes a debtor or debtor in possession in a
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect or otherwise subject to any
insolvency, reorganization, liquidation, rehabilitation or other similar
proceedings, of the claims of the holders of any Securities related to
such unrelated Series and the holders of any other notes, bonds, contracts
or other obligations that are related to such unrelated Series and (z) the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee
hereby irrevocably make the election afforded by Title 00 Xxxxxx Xxxxxx
Code Section 1111(b)(1)(A)(i) to secured creditors to receive the
treatment afforded by Title 00 Xxxxxx Xxxxxx Code Section 1111(b)(2) with
respect to any secured claim that they may have at any time against the
Depositor. The obligations of the Seller under this Agreement are limited
to the related Series and the related Series Assets.
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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 ____-_
By: ______, not in its individual capacity but
solely as Owner Trustee
By: __________________________________________
Name:
Title:
______, not in its individual capacity but
solely as Indenture Trustee
By: __________________________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY, as Administrator
By: __________________________________________
Name:
Title:
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APPENDIX A
Definitions and Usage
AA-1
