Exhibit 99.2
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of June 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-C, 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 Agreement 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 Agreement 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 Swap Counterparty under the Interest Rate
Swap Agreement (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 Agreement. (i)
Promptly following the early termination of the Interest Rate Swap Agreement
due to a Termination Event or an Event of Default (as such terms are defined
in the Interest Rate Swap Agreement) (unless the Indenture Trustee is selling
or liquidating the Indenture Trust Estate), the Administrator agrees to use
reasonable efforts to cause the Issuer to enter into a replacement interest
rate swap agreement on terms similar to those of the Interest Rate Swap
Agreement with an eligible swap counterparty. If and to the extent any Swap
Termination Payments that are received from the 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 Agreement or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreement, 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 the Swap
Counterparty does not object in writing within ten Business Days of receipt
of a written request for such consent and in accordance with the terms of the
Interest Rate Swap Agreement.
(v) At least five days prior to the effective date of any
proposed amendment or supplement to the 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 the Interest Rate Swap Agreement, an amendment or
supplement to the 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 Agreement and will perform such
calculations and duties with respect thereto. The Administrator will
calculate and provide written notification to the Swap Counterparty and to
the Indenture Trustee of the notional amount of the 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-C
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 Xxx Xxxx
000Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Services -
Asset Backed Securities, Ford 2002-C
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 Agreement or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreement, then the Administrator will obtain the consent
of the Swap Counterparty prior to the adoption of such amendment or
supplement, provided the Swap Counterparty's consent will not be unreasonably
withheld, and provided, further, the Swap Counterparty's consent will be
deemed to have been given if the Swap Counterparty does not object in writing
within ten Business Days of receipt of a written request for such consent and
in accordance with the terms of the Interest Rate Swap Agreement.
13. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in
writing by the Issuer and the Owner Trustee and subject to 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-C
By: WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK, not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
FORD MOTOR CREDIT COMPANY, as Administrator
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
APPENDIX A
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Definitions and Usage
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