Exhibit 99.1
SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 2000-B,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO L.P.,
as Seller,
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of April 1, 2000
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND USAGE 1
ARTICLE II
TRUST PROPERTY 1
SECTION 2.1 Conveyance of Trust Property 1
SECTION 2.2 Representations and Warranties of
the Seller as to the Receivables 2
SECTION 2.3 Repurchase upon Breach 6
SECTION 2.4 Custody of Receivable Files 7
SECTION 2.5 Duties of Servicer as Custodian 7
SECTION 2.6 Instructions; Authority to Act 8
SECTION 2.7 Custodian's Indemnification 9
SECTION 2.8 Effective Period and Termination 9
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY 9
SECTION 3.1 Duties of Servicer 9
SECTION 3.2 Collection of Receivable Payments 10
SECTION 3.3 Realization Upon Receivables 10
SECTION 3.4 Allocations of Collections 11
SECTION 3.5 Maintenance of Security Interests
in Financed Vehicles 11
SECTION 3.6 Covenants of Servicer 11
SECTION 3.7 Purchase of Receivables Upon Breach 11
SECTION 3.8 Servicer Fee 12
SECTION 3.9 Servicer's Certificate 12
SECTION 3.10 Annual Statement as to Compliance;
Notice of Event of Servicing 13
SECTION 3.11 Annual Independent Certified
Public Accountant's Report 13
SECTION 3.12 Access to Certain Documentation
and Information Regarding Receivables 14
SECTION 3.13 Servicer Expenses 14
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS 14
SECTION 4.1 Accounts 14
SECTION 4.2 Remittance of Collections by the Servicer 18
SECTION 4.3 Application of Collections 19
SECTION 4.4 Monthly Advances 19
SECTION 4.5 Servicer Liquidity Advances 20
SECTION 4.6 Additional Deposits to Collection Account
and Withdrawals from Reserve 21
SECTION 4.7 Distributions 21
SECTION 4.8 Reserve Account 28
SECTION 4.9 Net Deposits 30
SECTION 4.10 Statements to Noteholders and
Certificateholders 31
ARTICLE V
THE SELLER 32
SECTION 5.1 Representations and Warranties of Seller 32
SECTION 5.2 Liability of Seller; Indemnities 34
SECTION 5.3 Merger or Consolidation of, or
Assumption of the Obligations of, Seller 35
SECTION 5.4 Limitation on Liability of Seller and Others 36
SECTION 5.5 Seller May Own Notes or Certificates 36
ARTICLE VI
THE SERVICER 36
SECTION 6.1 Representations of Servicer 36
SECTION 6.2 Indemnities of Servicer 38
SECTION 6.3 Merger or Consolidation of, or
Assumption of the Obligations of, Servicer 39
SECTION 6.4 Limitation on Liability of Servicer and Others 40
SECTION 6.5 Delegation of Duties 40
SECTION 6.6 Ford Credit Not to Resign as Servicer 40
SECTION 6.7 Servicer May Own Notes or Certificates 41
ARTICLE VII
SERVICING TERMINATION 41
SECTION 7.1 Events of Servicing Termination 41
SECTION 7.2 Appointment of Successor Servicer 43
SECTION 7.3 Repayment of Monthly Advances and
Servicer Liquidity Advances 43
SECTION 7.4 Notification to Noteholders and
Certificateholders 44
SECTION 7.5 Waiver of Past Events of Servicing
Termination 44
ARTICLE VIII
TERMINATION 44
SECTION 8.1 Optional Purchase of All Receivables 44
SECTION 8.2. Succession Upon Satisfaction and
Discharge of Indenture 45
ARTICLE IX
MISCELLANEOUS PROVISIONS 45
SECTION 9.1 Amendment 45
SECTION 9.2 Protection of Title to Trust Property 47
SECTION 9.3 Governing Law 49
SECTION 9.4 Notices 49
SECTION 9.5 Severability of Provisions 49
SECTION 9.6 Assignment 50
SECTION 9.7 Further Assurances 50
SECTION 9.8 No Waiver; Cumulative Remedies 50
SECTION 9.9 Third-Party Beneficiaries 50
SECTION 9.10 Actions by Noteholders or
Certificateholders 50
SECTION 9.11 Agent for Service 51
SECTION 9.12 No Bankruptcy Petition 51
SECTION 9.13 Limitation of Liability of Owner
Trustee and Indenture Trustee 51
SECTION 9.14 Savings Clause 52
Schedule A Schedule of Receivables SA-1
Schedule B Location of Receivable Files SB-1
Schedule C-1 Custodians for Receivable Files SB-1
Appendix A Definitions and Usage AA-1
SALE AND SERVICING AGREEMENT, dated as of April 1, 2000 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 2000-B (the "Issuer"), a
Delaware business trust, FORD CREDIT AUTO RECEIVABLES TWO L.P., a Delaware
limited partnership, as seller (the "Seller"), and FORD MOTOR CREDIT COMPANY, a
Delaware corporation, as servicer (the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of
receivables consisting of motor vehicle retail installment sale contracts
generated by Ford Motor Credit Company and PRIMUS in the ordinary course of
their business and conveyed to Issuer by the Seller on the Closing Date;
WHEREAS, the Seller is willing to sell such portfolio of
receivables and related property to the Issuer; and
WHEREAS, Ford Motor Credit Company is willing to service such
receivables on behalf of the Issuer;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants 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:
ARTICLE I
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.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property. (a) In consideration
of the Issuer's delivery to, or upon the order of, the Seller of the Notes and
the Certificates in an aggregate principal amount equal to 96.63% of the Initial
Pool Balance, the Seller does hereby irrevocably transfer, assign and otherwise
convey to the Issuer without recourse (subject to the obligations herein) all
right, title and interest of the Seller, whether now owned or hereafter
acquired, in and to the following (collectively, the "Trust Property"): (i) the
Receivables; (ii) with respect to Receivables that are Actuarial Receivables,
monies due thereunder on or after the Cutoff Date (including Payaheads) and,
with respect to Receivables that are Simple Interest Receivables, monies due or
received thereunder on or after the Cutoff Date; (iii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Issuer in the Financed Vehicles; (iv) rights to receive
proceeds with respect to the Receivables from claims on any physical damage,
credit life, credit disability, or other insurance policies covering Financed
Vehicles or Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to
the Receivable Files that relate to the Receivables; (vii) the Trust Accounts,
the Certificate Interest Distribution Account, the Certificate Principal
Distribution Account and all amounts, securities, investments, investment
property and other property deposited in or credited to any of the foregoing,
all security entitlements relating to the foregoing and all proceeds thereof;
(viii) all of the Seller's rights under this Agreement; (ix) all of the Seller's
rights under the Purchase Agreement, including the right of the Seller to cause
Ford Credit to repurchase Receivables from the Seller; (x) payments and proceeds
with respect to the Receivables held by the Servicer; (xi) all property
(including the right to receive Liquidation Proceeds) securing a Receivable
(other than a Receivable purchased by the Servicer or purchased by the Seller);
(xii) rebates of premiums and other amounts relating to insurance policies and
other items financed under the Receivables in effect as of the Cutoff Date; and
(xiii) all present and future claims, demands, causes of action and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
(b) Any transfer, assignment and conveyance made under Section 2.1(a)
shall not constitute and is not intended to result in an assumption by the
Issuer of any obligation of the Seller to the Obligors, the Dealers or any other
Person in connection with the Receivables and the other Trust Property or any
agreement, document or instrument related thereto.
SECTION 2.2 Representations and Warranties of the Seller as to
the Receivables. The Seller makes the following representations and warranties
as to the Receivables on which the Issuer shall be deemed to have relied in
accepting the Receivables. Such representations and warranties speak as of the
Closing Date, but shall survive the transfer, assignment and conveyance of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (a) shall have been
originated in the United States of America by a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's business, shall have
been fully and properly executed by the parties thereto, shall have been
purchased either (X) by the Seller from Ford Credit, which in turn shall have
purchased such Receivable from a Dealer under an existing dealer agreement with
Ford Credit, and which shall have been validly assigned by such Dealer to Ford
Credit and which in turn shall have been validly assigned by Ford Credit to the
Seller in accordance with its terms, or (Y) by the Seller from Ford Credit,
which shall have been assigned such Receivable by PRIMUS, which in turn shall
have purchased such Receivable from a Dealer or other finance source (provided
that such purchase relates to an individual Receivable and not a bulk purchase)
under an existing agreement with PRIMUS, and which shall have been validly
assigned by such Dealer or other finance source to PRIMUS and shall have been
validly assigned by PRIMUS to Ford Credit in the ordinary course of business and
which in turn shall have been validly assigned by Ford Credit to the Seller in
accordance with its terms, (b) shall have created or shall create a valid,
subsisting, and enforceable first priority security interest in favor of Ford
Credit in the Financed Vehicle, which security interest has been assigned by
Ford Credit to the Seller, which in turn shall be assignable by the Seller to
the Issuer, (c) shall contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for realization
against the collateral of the benefits of the security, (d) shall provide for
level monthly payments (provided that the payment in the first or last month in
the life of the Receivable may be minimally different from the level payment)
that fully amortize the Amount Financed by maturity and yield interest at the
Annual Percentage Rate, (e) shall provide for, in the event that such contract
is prepaid, a prepayment that fully pays the Principal Balance, and (f) is an
Actuarial Receivable or a Simple Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the Schedule of
Receivables shall be true and correct in all material respects as of the opening
of business on the Cutoff Date, and no selection procedures believed to be
adverse to the Noteholders or the Certificateholders shall have been utilized in
selecting the Receivables from those receivables which meet the criteria
contained herein. The computer tape or other listing regarding the Receivables
made available to the Issuer and its assigns (which computer tape or other
listing is required to be delivered as specified herein) is true and correct in
all material respects.
(iii) Compliance with Law. Each Receivable and the sale of the Financed Vehicle
shall have complied at the time it was originated or made and at the execution
of this Agreement shall comply in all material respects with all requirements of
applicable federal, State, and local laws, and regulations thereunder,
including, without limitation, usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Federal Reserve Board's Regulations B and Z, and State
adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code, and other consumer credit laws and equal credit opportunity and disclosure
laws.
(iv) Binding Obligation. Each Receivable shall represent the genuine, legal,
valid, and binding payment obligation of the Obligor, enforceable by the holder
thereof in accordance with its terms subject to the effect of bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors' rights generally.
(v) No Government Obligor. None of the Receivables shall be due
from the United States of America or any State or from any agency, department,
or instrumentality of the United States of America, any State or political
subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior to the transfer,
assignment and conveyance thereof, each Receivable shall be secured by a first
priority, validly perfected security interest in the Financed Vehicle in favor
of Ford Credit as secured party or all necessary and appropriate actions shall
have been commenced that would result in a first priority, validly perfected
security interest in the Financed Vehicle in favor of Ford Credit as secured
party.
(vii) Receivables in Force. No Receivable shall have been satisfied,
subordinated, or rescinded, nor shall any Financed Vehicle have been released
from the lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable shall have been waived.
(ix) No Defenses. No right of rescission, setoff, counterclaim, or defense
shall have been asserted or threatened with respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens or claims shall
have been filed for work, labor, or materials relating to a Financed Vehicle
that shall be liens prior to, or equal with, the security interest in the
Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a period of not more
than thirty (30) days as of the Cutoff Date, no default, breach, violation, or
event permitting acceleration under the terms of any Receivable shall have
occurred; and no continuing condition that with notice or the lapse of time
would constitute a default, breach, violation, or event permitting acceleration
under the terms of any Receivable shall have arisen; and Ford Credit shall not
waive any of the foregoing.
(xii) Insurance. Ford Credit, in accordance with its customary standards,
policies and procedures, shall have determined that, as of the date of
origination of each Receivable, the Obligor had obtained or agreed to obtain
physical damage insurance covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the transfer and assignment
herein contemplated constitute an absolute sale, transfer, assignment and
conveyance of the Receivables from the Seller to the Issuer and that the
beneficial interest in and title to the Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. No Receivable has been sold, transferred,
assigned, conveyed or pledged by the Seller to any Person other than the Issuer.
Immediately prior to the transfer and assignment herein contemplated, the Seller
had good and marketable title to each Receivable free and clear of all Liens,
encumbrances, security interests, participations and rights of others and,
immediately upon the transfer thereof, the Issuer shall have good and marketable
title to each Receivable, free and clear of all Liens, encumbrances, security
interests, participations and rights of others; and the transfer has been
perfected under the UCC.
(xiv) Valid Assignment. No Receivable shall have been originated in, or shall be
subject to the laws of, any jurisdiction under which the sale, transfer,
assignment and conveyance of such Receivable under this Agreement or pursuant to
transfers of the Notes or the Certificates shall be unlawful, void, or voidable.
The Seller has not entered into any agreement with any account debtor that
prohibits, restricts or conditions the assignment of any portion of the
Receivables.
(xv) All Filings Made. All filings (including, without limitation, UCC filings)
necessary in any jurisdiction to give the Issuer a first priority, validly
perfected ownership interest in the Receivables, and to give the Indenture
Trustee a first perfected security interest therein, shall have been made. .
(xvi) Chattel Paper. Each Receivable constitutes "chattel paper" as defined in
the UCC.
(xvii) One Original. There shall be only one original executed copy of each
Receivable. The Seller, or its custodian, has possession of such original with
respect to each Receivable.
(xviii) New and Used Vehicles. 70.00% of the aggregate Principal Balance of the
Receivables, constituting 62.48% of the number of Receivables as of the Cutoff
Date, represent vehicles financed at new vehicle rates, and the remainder of the
Receivables represent vehicles financed at used vehicle rates.
(xix) Amortization Type. By aggregate Principal Balance as of the Cutoff
Date, 0.29% of the Receivables constitute Actuarial Receivables and 99.71% of
the Receivables constitute Simple Interest Receivables.
(xx) Origination. Each Receivable shall have an origination date on or after
March 1, 1998.
(xxi) PRIMUS. 12.06% of the aggregate Principal Balance of the Receivables as
of the Cutoff Date, represent Receivables originated through PRIMUS and assigned
to Ford Credit, and the remainder of the Receivables were originated through
Ford Credit (excluding PRIMUS).
(xxii) Maturity of Receivables. Each Receivable shall have an original
maturity of not greater than sixty (60) months.
(xxiii) Annual Percentage Rate. The Annual Percentage Rate of each Receivable
shall be not less than 1.90% and not greater than 20.00%.
(xxiv) Scheduled Payments. Each Receivable shall have a first Scheduled Payment
due, in the case of Actuarial Receivables, or a first scheduled due date, in the
case of Simple Interest Receivables, on or prior to April 30, 2000 and no
Receivable shall have a payment that is more than thirty (30) days overdue as of
the Cutoff Date.
(xxv) Location of Receivable Files. The Receivable Files shall be kept at one
or more of the locations listed in Schedule B-1 hereto or the offices of one of
the custodians specified in Schedule B-2 hereto.
(xxvi) No Extensions. The number of Scheduled Payments, in the case of Actuarial
Receivables, and the number of scheduled due dates, in the case of Simple
Interest Receivables, shall not have been extended on or before the Cutoff Date
on any Receivable.
(xxvii) Rating Agencies. The rating agencies rating the Notes and the Class C
Certificates are Xxxxx'x, Standard & Poor's and Fitch and the rating agencies
rating the Class D Certificates are Standard & Poor's and Fitch.
(xxviii) Agreement. The representations and warranties of the Seller in
Section 5.1 are true and correct.
(xxix) No Receivables Originated in Alabama or Pennsylvania. No Receivable
shall have been originated in Alabama or Pennsylvania.
SECTION 2.3 Repurchase upon Breach. The Seller, the Servicer,
the Issuer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement, the Indenture Trustee and Ford Credit promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties made by the Seller pursuant to Section 2.2. Unless the breach shall
have been cured by the last day of the second Collection Period following the
discovery, the Indenture Trustee shall enforce the obligation of the Seller
under this Section 2.3, and, if necessary, the Seller or the Indenture Trustee
shall enforce the obligation of Ford Credit under the Purchase Agreement, to
repurchase any Receivable materially and adversely affected by the breach as of
such last day (or, at the Seller's option, the last day of the first Collection
Period following the discovery). In consideration of the purchase of the
Receivable, the Seller shall remit the Purchase Amount, in the manner specified
in Section 4.6(a). The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the Seller's representations and warranties pursuant to Section 2.2
shall be to require the Seller to repurchase such Receivables pursuant to this
Section 2.3 or to enforce the obligation of Ford Credit to the Seller to
repurchase such Receivables pursuant to the Purchase Agreement. Neither the
Owner Trustee nor the Indenture Trustee shall have any duty to conduct an
affirmative investigation as to the occurrence of any condition requiring the
repurchase of any Receivable pursuant to this Section 2.3 or the eligibility of
any Receivable for purposes of this Agreement.
SECTION 2.4 Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Issuer, upon the execution and delivery of this Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to act
as the agent of the Issuer and the Indenture Trustee as custodian of the
following documents or instruments, which are hereby constructively delivered to
the Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture
(collectively, a "Receivable File"):
(i) The original Receivable.
(ii) The original credit application fully executed by the Obligor or a
photocopy thereof or a record thereof on a computer file, diskette or
on microfiche.
(iii) The original certificate of title or such documents that the
Servicer or Ford Credit shall keep on file, in accordance with its
customary standards, policies and procedures, evidencing the security
interest of Ford Credit in the Financed Vehicle.
(iv) Any and all other documents (including any computer file, diskette
or microfiche) that the Servicer or the Seller shall keep on file, in
accordance with its customary procedures, relating to a Receivable, an
Obligor, or a Financed Vehicle.
The Servicer shall provide an Officer's Certificate to the
Issuer and the Indenture Trustee confirming that the Servicer has received on
behalf of the Issuer and the Indenture Trustee all the documents and instruments
necessary for the Servicer to act as the agent of the Issuer and the Indenture
Trustee for the purposes set forth in this Section 2.4, including the documents
referred to herein, and the Issuer and the Indenture Trustee are hereby
authorized to rely on such Officer's Certificate.
SECTION 2.5 Duties of Servicer as Custodian
(a) Safekeeping. The Servicer shall hold the Receivable Files for the benefit of
the Issuer and the Indenture Trustee and maintain such accurate and complete
accounts, records, and computer systems pertaining to each Receivable File as
shall enable the Servicer and the Issuer to comply with the terms and conditions
of this Agreement, and the Indenture Trustee to comply with the terms and
conditions of the Indenture. In performing its duties as custodian the Servicer
shall act with reasonable care, using that degree of skill and attention that
the Servicer exercises with respect to the receivable files relating to all
comparable automotive receivables that the Servicer services for itself or
others and, consistent with such reasonable care, the Servicer may utilize the
services of third parties to act as custodian of physical Receivable Files,
subject to Section 6.5. In accordance with its customary standards, policies and
procedures with respect to its retail installment sale contracts, the Servicer
shall conduct, or cause to be conducted, periodic audits of the Receivable Files
held by it under this Agreement, and of the related accounts, records, and
computer systems, in such a manner as shall enable the Issuer or the Indenture
Trustee to verify the accuracy of the Servicer's record keeping. The Servicer
shall promptly report to the Issuer and the Indenture Trustee any failure on its
part to hold the Receivable Files and maintain its accounts, records, and
computer systems as herein provided and promptly take appropriate action to
remedy any such failure. Nothing herein shall be deemed to require an initial
review or any periodic review by the Issuer, the Owner Trustee or the Indenture
Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain each
Receivable File at one of its offices specified in Schedule B-1 to this
Agreement or the offices of one of its custodians specified in Schedule B-2 of
this Agreement, or at such other office as shall be specified to the Issuer and
the Indenture Trustee by written notice not later than ninety (90) days after
any change in location. The Servicer shall make available to the Issuer and the
Indenture Trustee or their duly authorized representatives, attorneys, or
auditors a list of locations of the Receivable Files, the Receivable Files, and
the related accounts, records, and computer systems maintained by the Servicer
at such times as the Issuer or the Indenture Trustee shall instruct, but only
upon reasonable notice and during the normal business hours at the respective
offices of the Servicer.
(c) Release of Documents. Upon written instructions from the Indenture Trustee,
the Servicer shall release or cause to be released any document in the
Receivable Files to the Indenture Trustee, the Indenture Trustee's agent or the
Indenture Trustee's designee, as the case may be, at such place or places as the
Indenture Trustee may designate, as soon thereafter as is practicable. Any
document so released shall be handled by the Indenture Trustee with due care and
returned to the Servicer for safekeeping as soon as the Indenture Trustee or its
agent or designee, as the case may be, shall have no further need therefor.
SECTION 2.6 Instructions; Authority to Act. All instructions
from the Indenture Trustee shall be in writing and signed by an Authorized
Officer of the Indenture Trustee, and the Servicer shall be deemed to have
received proper instructions with respect to the Receivable Files upon its
receipt of such written instructions.
SECTION 2.7 Custodian's Indemnification. The Servicer as
custodian shall indemnify the Issuer, the Owner Trustee and the Indenture
Trustee for any and all liabilities, obligations, losses, compensatory damages,
payments, costs, or expenses of any kind whatsoever that may be imposed on,
incurred, or asserted against the Issuer, the Owner Trustee or the Indenture
Trustee as the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the Receivable Files;
provided, however, that the Servicer shall not be liable (i) to the Issuer for
any portion of any such amount resulting from the willful misfeasance, bad
faith, or negligence of the Indenture Trustee, the Owner Trustee or the Issuer,
(ii) to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith, or negligence of the Indenture Trustee, the
Owner Trustee or the Issuer and (iii) to the Indenture Trustee for any portion
of any such amount resulting from the willful misfeasance, bad faith, or
negligence of the Indenture Trustee, the Owner Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section 2.8.
If Ford Credit shall resign as Servicer in accordance with the provisions of
this Agreement or if all of the rights and obligations of the Servicer shall
have been terminated under Section 7.1, the appointment of the Servicer as
custodian hereunder may be terminated by the Indenture Trustee, or by the
Noteholders of Notes evidencing not less than 25% of the principal amount of the
Notes Outstanding or, with the consent of Noteholders of Notes evidencing not
less than 25% of the principal amount of the Notes Outstanding, by the Owner
Trustee or by Certificateholders of Certificates evidencing not less than 25% of
the Aggregate Certificate Balance, in the same manner as the Indenture Trustee
or such Securityholders may terminate the rights and obligations of the Servicer
under Section 7.1. As soon as practicable after any termination of such
appointment, the Servicer shall deliver to the Indenture Trustee or the
Indenture Trustee's agent the Receivable Files and the related accounts and
records maintained by the Servicer at such place or places as the Indenture
Trustee may reasonably designate.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall manage,
service, administer, and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable automotive receivables that it services for itself or
others. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections, furnishing monthly and annual statements
to the Owner Trustee and the Indenture Trustee with respect to distributions,
making Monthly Advances pursuant to Section 4.4 and, in its sole discretion,
making Servicer Liquidity Advances pursuant to Section 4.5. The Servicer shall
follow its customary standards, policies and procedures in performing its duties
as Servicer. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders, or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Financed Vehicles
securing such Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Owner Trustee (in the case of a Receivable other than
a Purchased Receivable) shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such Receivable to the Servicer.
If in any enforcement suit or legal proceeding it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Receivable, the Owner
Trustee shall, at the Servicer's expense and direction, take steps to enforce
the Receivable, including bringing suit in its name or the names of the
Indenture Trustee, the Noteholders, the Certificateholders, or any of them. The
Owner Trustee shall furnish the Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder. The Servicer, at its
expense, shall obtain on behalf of the Issuer or the Owner Trustee all licenses,
if any, required by the laws of any jurisdiction to be held by the Issuer or the
Owner Trustee in connection with ownership of the Receivables, and shall make
all filings and pay all fees as may be required in connection therewith during
the term hereof.
SECTION 3.2 Collection of Receivable Payments. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable receivables that it services for itself or others. Subject to
Sections 3.6(iii) and (iv), the Servicer may grant extensions, rebates, or
adjustments on a Receivable; provided, however, that if the Servicer extends the
date for final payment by the Obligor of any Receivable beyond 6 months past the
Final Scheduled Maturity Date, it shall promptly purchase the Receivable in the
manner provided in Section 3.7. The Servicer may in its discretion waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable.
SECTION 3.3 Realization Upon Receivables. On behalf of the
Issuer, the Servicer shall use reasonable efforts, consistent with its customary
standards, policies and procedures, to repossess or otherwise convert the
ownership of the Financed Vehicle securing any Receivable as to which the
Servicer shall have determined eventual payment in full is unlikely. The
Servicer shall follow such customary standards, policies and procedures as it
shall deem necessary or advisable in its servicing of comparable receivables,
which may include reasonable efforts to realize upon any Dealer Recourse and
selling the Financed Vehicle at public or private sale. The foregoing shall be
subject to the provision that, in any case in which the Financed Vehicle shall
have suffered damage, the Servicer shall not be required to expend funds in
connection with the repair or the repossession of such Financed Vehicle unless
it shall determine in its discretion that such repair and/or repossession will
increase the Liquidation Proceeds by an amount greater than the amount of such
expenses.
SECTION 3.4 Allocations of Collections. If an Obligor is
obligated under one or more Receivables and also under one or more other assets
owned by Ford Credit or assigned by Ford Credit to third parties, then any
payment on any such asset received from or on behalf of such Obligor shall, if
identified as being made with respect to a particular item or asset, be applied
to such item, and otherwise shall be allocated by Ford Credit in accordance with
its customary standards, policies and procedures.
SECTION 3.5 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary standards,
policies and procedures, take such steps as are necessary to maintain perfection
of the security interest created by each Receivable in the related Financed
Vehicle. The Issuer hereby authorizes the Servicer to take such steps as are
necessary to re-perfect such security interest on behalf of the Issuer and the
Indenture Trustee in the event of the relocation of a Financed Vehicle or for
any other reason.
SECTION 3.6 Covenants of Servicer. The Servicer shall not (i)
release the Financed Vehicle securing each such Receivable from the security
interest granted by such Receivable in whole or in part except in the event of
payment in full by or on behalf of the Obligor thereunder or repossession, (ii)
impair the rights of the Noteholders or the Certificateholders in the
Receivables, (iii) change the Annual Percentage Rate with respect to any
Receivable, or (iv) modify the Amount Financed or the total number of Scheduled
Payments (in the case of an Actuarial Receivable) or the total number of
originally scheduled due dates (in the case of a Simple Interest Receivable).
SECTION 3.7 Purchase of Receivables Upon Breach.
(a) The Seller, the Servicer or the Owner Trustee, as the case may be, promptly
shall inform the other parties to this Agreement, in writing, upon the discovery
of any breach pursuant to Section 3.2, 3.5 or 3.6. Unless the breach shall have
been cured by the last day of the second Collection Period following such
discovery (or, at the Servicer's election, the last day of the first following
Collection Period), the Servicer shall purchase any Receivable materially and
adversely affected by such breach as determined by the Indenture Trustee (which
shall include any Receivable as to which a breach of Section 3.6 has occurred)
at the Purchase Amount. In consideration of the purchase of such Receivable, the
Servicer shall remit the Purchase Amount in the manner specified in Section
4.6(a). For purposes of this Section 3.7, the Purchase Amount shall consist in
part of a release by the Servicer of all rights of reimbursement with respect to
Outstanding Monthly Advances on the Receivable. The sole remedy of the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach pursuant to Section 3.2, 3.5 or 3.6
shall be to require the Servicer to purchase Receivables pursuant to this
Section 3.7.
(b) The Seller, the Servicer or the Owner Trustee, as the case may be, promptly
shall inform the other parties to this Agreement in writing, upon the discovery
of any breach of the representations and warranties of Ford Credit, as seller,
set forth in Section 3.2(b) of the Purchase Agreement. Unless the breach shall
have been cured by the last day of the second Collection Period following the
discovery, the Servicer shall enforce the obligation of Ford Credit under the
Purchase Agreement to repurchase any Receivable materially and adversely
affected by the breach as of such last day (or, at Ford Credit's option, the
last day of the first Collection Period following the discovery). In
consideration of the purchase of the Receivable, Ford Credit shall remit,
pursuant to Section 5.2 of the Purchase Agreement, the Purchase Amount to the
Servicer and the Servicer shall remit the Purchase Amount to the Collection
Account as specified in Section 4.6(a) hereof.
(C) With respect to all Receivables purchased pursuant to this Section 3.7, the
Issuer shall assign to the Servicer or the Seller, as applicable, without
recourse, representation or warranty, all of the Issuer's right, title and
interest in and to such Receivables and all security and documents relating
thereto.
SECTION 3.8 Servicer Fee. The Servicer shall be entitled to
any interest earned on the amounts deposited in the Collection Account and the
Payahead Account during each Collection Period plus all late fees, prepayment
charges and other administrative fees and expenses or similar charges allowed by
applicable law with respect to Receivables during each Collection Period (the
"Supplemental Servicing Fee"). The Servicer also shall be entitled to the
Servicing Fee, as provided herein.
SECTION 3.9 Servicer's Certificate. (a) On or about the tenth
day of each calendar month, the Servicer shall deliver to the Owner Trustee,
each Note Paying Agent and Certificate Paying Agent, the Indenture Trustee, the
Swap Counterparty and the Seller, with a copy to the Rating Agencies, a
Servicer's Certificate containing all information (including all specific dollar
amounts) necessary to make the transfers and distributions pursuant to Sections
4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 for the Collection Period preceding the date of
such Servicer's Certificate, together with the written statements to be
furnished by the Owner Trustee to Certificateholders pursuant to Section 4.10
and by the Indenture Trustee to the Noteholders pursuant to Section 4.10 hereof
and Section 6.6 of the Indenture. Receivables purchased or to be purchased by
the Servicer or the Seller shall be identified by the Servicer by the Seller's
account number with respect to such Receivable (as specified in the Schedule of
Receivables).
(b) On or about the fifth (but in no event later than the
tenth) calendar day of each calendar month, the Servicer shall deliver to the
respective underwriters of the Notes and the Certificates the Note Pool Factor
for each Class or Subclass of Notes and the Certificate Pool Factor for each
Class of Certificates as of the close of business on the Distribution Date
occurring in that month.
SECTION 3.10 Annual Statement as to Compliance; Notice of
Event of Servicing Termination. (a) The Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and each Rating Agency on or before April 30 of
each year beginning April 30, 2000, an Officer's Certificate, dated as of
December 31 of the preceding calendar year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month (or shorter) period and
of its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. A copy of such Officer's Certificate and the report
referred to in Section 3.11 may be obtained by any Certificateholder by a
request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture
Trustee, in either case addressed to the applicable Corporate Trust Office. Upon
the telephone request of the Owner Trustee, the Indenture Trustee shall promptly
furnish the Owner Trustee a list of Noteholders as of the date specified by the
Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and
each Rating Agency promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice in an
Officer's Certificate of any event which with the giving of notice or lapse of
time, or both, would become an Event of Servicing Termination under Section 7.1.
The Seller shall deliver to the Owner Trustee, the Indenture Trustee and each
Rating Agency promptly after having obtained knowledge thereof, but in no event
later than five (5) Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Servicing Termination under clause (a)(ii) of
Section 7.1.
SECTION 3.11 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the Seller
or to Ford Credit, to deliver to the Owner Trustee and the Indenture Trustee on
or before April 30 of each year beginning April 30, 2001 with respect to the
prior calendar year a report addressed to the board of directors of the Servicer
and to the Owner Trustee and the Indenture Trustee, to the effect that such firm
has audited the financial statements of the Servicer and issued its report
thereon and that such audit (1) was made in accordance with generally accepted
auditing standards, (2) included tests relating to automotive loans serviced for
others in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers (the "Program"), to the extent the procedures in
such Program are applicable to the servicing obligations set forth in this
Agreement, and (3) except as described in the report, disclosed no exceptions or
errors in the records relating to automobile and light truck loans serviced for
others that such firm is required to report under the Program.
The report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 3.12 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders, the
Indenture Trustee and the Noteholders access to the Receivable Files in such
cases where the Certificateholders, the Indenture Trustee or the Noteholders
shall be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer. Nothing in this Section 3.12 shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section 3.12. The Servicer shall provide such information with respect to the
Receivables as the Rating Agencies may reasonably request, including as soon as
practicable a periodic report of the aggregate principal balance of Receivables
which become Liquidated Receivables during each Collection Period.
SECTION 3.13 Servicer Expenses. The Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the Owner Trustee and the Indenture Trustee,
independent accountants, taxes imposed on the Servicer and expenses incurred in
connection with distributions and reports to Noteholders and Certificateholders.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) The Servicer shall, prior to the
Closing Date, establish and maintain a segregated trust account in the name "The
Chase Manhattan Bank as Indenture Trustee, as secured party from Ford Credit
Auto Owner Trust 2000-B", at a Qualified Institution or Qualified Trust
Institution (which shall initially be the corporate trust department of The
Chase Manhattan Bank), which shall be designated as the "Collection Account".
Initially, the Collection Account shall be account number C-70868 and shall
include any successor or replacement accounts thereto. The Collection Account
shall be under the sole dominion and control of the Indenture Trustee; provided,
that the Servicer may make deposits to and direct the Indenture Trustee in
writing to make withdrawals from the Collection Account in accordance with the
terms of the Basic Documents. The Collection Account will be established and
maintained pursuant to an account agreement which specifies New York law as the
governing law. In addition, the Collection Account shall be established and
maintained at a Qualified Institution or Qualified Trust Institution which
agrees in writing that for so long as the Notes are outstanding it will comply
with entitlement orders (as defined in Article 8 of the UCC) originated by the
Indenture Trustee without further consent of the Issuer. All monies deposited
from time to time in the Collection Account shall be held by the Indenture
Trustee as secured party for the benefit of the Noteholders and, after payment
in full of the Notes, as agent of the Owner Trustee and as part of the Trust
Property. All deposits to and withdrawals from the Collection Account shall be
made only upon the terms and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to
the first sentence of Section 4.2, all amounts held in the Collection Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Collection Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Distribution Date for the
Collection Period to which such amounts relate and such Permitted Investments
shall be held to maturity. All interest and other income (net of losses and
investment expenses) on funds on deposit in the Collection Account shall be
withdrawn from the Collection Account at the written direction of the Servicer
and shall be paid to the Servicer. In the event that the Collection Account is
no longer to be maintained at the corporate trust department of The Chase
Manhattan Bank, the Servicer shall, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, cause the Collection Account to be moved to a
Qualified Institution or a Qualified Trust Institution within ten (10) Business
Days (or such longer period not to exceed thirty (30) calendar days as to which
each Rating Agency may consent).
(b) The Servicer shall, prior to the Closing Date, establish and maintain an
administrative subaccount within the Collection Account at the bank or trust
company then maintaining the Collection Account, which subaccount shall be
designated as the "Principal Distribution Account". The Principal Distribution
Account is established and maintained solely for administrative purposes.
(c) The Servicer shall, prior to the Closing Date, establish and maintain two
segregated trust accounts, each in the name "The Bank of New York as Owner
Trustee" at a Qualified Institution or Qualified Trust Institution (which shall
initially be the corporate trust department of The Bank of New York), which
shall be designated as the "Certificate Interest Distribution Account" and the
"Certificate Principal Distribution Account", respectively. Each Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee. All monies deposited from time to time in each Certificate Distribution
Account pursuant to this Agreement and the Indenture shall be held by the Owner
Trustee as part of the Trust Property and shall be applied as provided in the
Basic Documents. In the event that either Certificate Distribution Account is no
longer to be maintained at the corporate trust department of The Bank of New
York the Servicer shall, with the Owner Trustee's assistance as necessary, cause
such Certificate Distribution Account to be moved to a Qualified Institution or
a Qualified Trust Institution within ten (10) Business Days (or such longer
period not to exceed thirty (30) calendar days as to which each Rating Agency
may consent). Each Certificate Distribution Account will be established and
maintained pursuant to an account agreement which specifies New York law as the
governing law.
(d) The Servicer shall, prior to the Closing Date, establish and maintain a
segregated trust account in the name of "The Chase Manhattan Bank as Indenture
Trustee" at a Qualified Institution or Qualified Trust Institution (which shall
initially be the corporate trust department of The Chase Manhattan Bank), which
shall be designated as the "Payahead Account". The Payahead Account shall be
held in trust for the benefit of the Obligors. The Payahead Account shall be
under the sole dominion and control of the Indenture Trustee; provided that the
Servicer may make deposits to and direct the Indenture Trustee in writing to
make withdrawals from the Payahead Account in accordance with the Basic
Documents. The Payahead Account shall not be a part of the Trust Property. All
deposits to and withdrawals from the Payahead Account shall be made only upon
the terms and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to
the first sentence of Section 4.2, all amounts held in the Payahead Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Payahead Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Distribution Date for the
Collection Period to which such amounts relate and such Permitted Investments
shall be held to maturity. All interest and other income (net of losses and
investment expenses) on funds on deposit in the Payahead Account shall be
withdrawn from the Payahead Account at the direction of the Servicer and shall
be paid to the Servicer. In the event that the Payahead Account is no longer to
be maintained at the corporate trust department of The Chase Manhattan Bank, the
Servicer shall, with the Indenture Trustee's or Owner Trustee's assistance as
necessary, cause the Payahead Account to be moved to a Qualified Institution or
a Qualified Trust Institution within ten (10) Business Days (or such longer
period not to exceed thirty (30) calendar days as to which each Rating Agency
may consent).
(e) Notwithstanding the provisions of clause (d) above and of Section
4.7(a)(ii), for so long as (i) Ford Credit is the Servicer, (ii) the rating of
Ford Credit's short-term unsecured debt is at least P-1 by Xxxxx'x, at least A-1
by Standard & Poor's and at least F-1 by Fitch and (iii) no Event of Servicing
Termination shall have occurred (each, a "Monthly Remittance Condition"),
Payaheads need not be remitted to and deposited in the Payahead Account but
instead may be remitted to and held by the Servicer. So long as each Monthly
Remittance Condition is satisfied, the Servicer shall not be required to
segregate or otherwise hold separate any Payaheads remitted to the Servicer as
aforesaid but shall be required to remit Payaheads to the Collection Account in
accordance with Section 4.7(a)(i). At any time that any Monthly Remittance
Condition is not satisfied, the Servicer shall deposit in the Payahead Account
the amount of any Payaheads then held or received by it (which amount shall be
at least equal to the Payahead Balance as of the close of business on the last
day of the immediately preceding Collection Period). Notwithstanding the
foregoing, if a Monthly Remittance Condition is not satisfied the Servicer may
utilize, with respect to Payaheads, an alternative remittance schedule (which
may include the remittance schedule utilized by the Servicer before the Monthly
Remittance Condition became unsatisfied), if the Servicer provides to the Owner
Trustee and the Indenture Trustee written confirmation from each Rating Agency
that such alternative remittance schedule will not result in the downgrading or
withdrawal by such Rating Agency of the ratings then assigned to the Notes and
the Certificates. The Owner Trustee and the Indenture Trustee shall not be
deemed to have knowledge of any event or circumstance under clause (iii) of the
first sentence of this Section 4.1(e) that would require remittance of the
Payaheads to the Payahead Account unless the Owner Trustee or the Indenture
Trustee has received notice of such event or circumstance from the Seller or the
Servicer in an Officer's Certificate or from the Noteholders of Notes evidencing
not less than 25% of the principal amount of the Notes Outstanding or from the
Certificateholders of Certificates evidencing not less than 25% of the Aggregate
Certificate Balance or unless a Trustee Officer in the Corporate Trust Office
with knowledge hereof and familiarity herewith has actual knowledge of such
event or circumstance.
(f) The Servicer shall, prior to the Closing Date, establish and maintain an
administrative subaccount within the Collection Account in the name of "The
Chase Manhattan Bank as Indenture Trustee" at a Qualified Institution or
Qualified Trust Institution (which shall initially be the corporate trust
department of The Chase Manhattan Bank), which subaccount shall be designated as
the "Accumulation Account". The Accumulation Account shall be held in trust for
the benefit of the Noteholders. The Accumulation Account shall be under the sole
dominion and control of the Indenture Trustee; provided that the Servicer may
make deposits to and direct the Indenture Trustee in writing to make withdrawals
from the Accumulation Account in accordance with the Basic Documents. All monies
deposited from time to time in the Accumulation Account shall be held by the
Indenture Trustee as part of the Trust Property and all deposits to and
withdrawals from the Accumulation Account shall be made only upon the terms and
conditions of the Basic Documents.
All amounts held in the Accumulation Account shall, to the
extent permitted by applicable law, rules and regulations, be invested, as
directed in writing by the Servicer, by the bank or trust company then
maintaining the Accumulation Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Distribution Date for the
Collection Period to which such amounts relate and such Permitted Investments
shall be held to maturity. All interest and other income on funds on deposit in
the Accumulation Account shall be withdrawn and deposited in the Collection
Account for distribution on each Distribution Date in accordance with Section
4.7(c). In the event that the Accumulation Account is no longer to be maintained
at the corporate trust department of The Chase Manhattan Bank, the Servicer
shall, with the Indenture Trustee's or Owner Trustee's assistance as necessary,
cause the Accumulation Account to be moved to a Qualified Institution or a
Qualified Trust Institution within ten (10) Business Days (or such longer period
not to exceed thirty (30) calendar days as to which each Rating Agency may
consent).
(g) The Servicer shall, prior to the Closing Date, establish and maintain a
segregated trust account in the name of "The Chase Manhattan Bank as Indenture
Trustee" at a Qualified Institution or Qualified Trust Institution (which shall
initially be the corporate trust department of The Chase Manhattan Bank), which
shall be designated as the "VPTN Proceeds Account". The VPTN Proceeds Account
shall be held in trust for the benefit of the holders of the Subclass of Class A
Notes to be paid on its Targeted Scheduled Distribution Date from the proceeds
of issuance after the Closing Date of VPTNs deposited to such account from time
to time. The VPTN Proceeds Account shall be under the sole dominion and control
of the Indenture Trustee; provided that the Servicer may make deposits to and
direct the Indenture Trustee in writing to make withdrawals from the VPTN
Proceeds Account in accordance with the Basic Documents. All monies deposited
from time to time in the VPTN Proceeds Account shall be held by the Indenture
Trustee as part of the Trust Property and all deposits to and withdrawals from
the VPTN Proceeds Account shall be made only upon the terms and conditions of
the Basic Documents.
SECTION 4.2 Remittance of Collections by the Servicer. The
Servicer shall remit to the Collection Account within two (2) Business Days of
the receipt thereof (i) all payments by or on behalf of the Obligors (including
Payaheads on the Receivables, but excluding Purchased Receivables) and (ii) all
Liquidation Proceeds, both as collected during the Collection Period. Ford
Credit, so long as it is acting as the Servicer, may make remittances of
collections on a less frequent basis than that specified in the immediately
preceding sentence. It is understood that such less frequent remittances may be
made only on the specific terms and conditions set forth below in this Section
4.2 and only for so long as such terms and conditions are fulfilled.
Accordingly, notwithstanding the provisions of the first sentence of this
Section 4.2, the Servicer shall remit collections received during a Collection
Period to the Collection Account in immediately available funds on the Business
Day preceding the related Distribution Date (or, with the prior consent of the
Rating Agencies, on the related Distribution Date) but only for so long as each
Monthly Remittance Condition is satisfied. Notwithstanding the foregoing, if a
Monthly Remittance Condition is not satisfied the Servicer may utilize an
alternative remittance schedule (which may include the remittance schedule
utilized by the Servicer before the Monthly Remittance Condition became
unsatisfied), if the Servicer provides to the Owner Trustee and the Indenture
Trustee written confirmation from each Rating Agency that such alternative
remittance schedule will not result in the downgrading or withdrawal by such
Rating Agency of the ratings then assigned to the Notes and the Certificates.
The Owner Trustee or the Indenture Trustee shall not be deemed to have knowledge
of any event or circumstance under clause (iii) of the definition of Monthly
Remittance Condition that would require remittance by the Servicer to the
Collection Account within two Business Days of receipt as aforesaid unless the
Owner Trustee or the Indenture Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate or from
the Noteholders of Notes evidencing not less than 25% of the principal amount of
the Notes Outstanding or from the Certificateholders of Certificates evidencing
not less than 25% of the Aggregate Certificate Balance or a Trustee Officer in
the Corporate Trust Office with knowledge hereof or familiarity herewith has
actual knowledge of such event or circumstance. For purposes of this Article IV
the phrase "payments by or on behalf of Obligors" shall mean payments made by
Persons other than the Servicer or by other means.
SECTION 4.3 Application of Collections. For the purposes of
this Agreement, as of the close of business on the last day of each Collection
Period, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied by the Servicer
as follows: (i) payments by or on behalf of the Obligor which are not late fees,
prepayment charges, or other administrative fees and expenses, or similar
charges which constitute the Supplemental Servicing Fee shall be applied first
to reduce Outstanding Monthly Advances made with respect to such Receivable, as
described in Sections 4.4(a) and (b) below and (ii) next, any excess shall be
applied (i) in the case of Simple Interest Receivables, to interest and
principal on the Receivable in accordance with the Simple Interest Method and
(ii) in the case of Actuarial Receivables, to the Scheduled Payment with respect
to such Receivable and any remaining excess (except for partial prepayments
which cause a reduction in the Obligor's periodic payment to below the Scheduled
Payment as of the Cutoff Date) shall be added to the Payahead Balance, and shall
be applied to prepay the Actuarial Receivable but only if the sum of such excess
and the previous Payahead Balance shall be sufficient to prepay the Actuarial
Receivable in full, otherwise such excess shall constitute a Payahead, and shall
increase the Payahead Balance.
SECTION 4.4 Monthly Advances. (a) As of the close of business
on the last day of each Collection Period, if the payments by or on behalf of
the Obligor on an Actuarial Receivable (other than a Purchased Receivable) after
application under Section 4.3 shall be less than the Scheduled Payment, whether
as a result of any extension granted to the Obligor or otherwise, the Payahead
Balance, if any, with respect to such Receivables shall be applied by the
Indenture Trustee to the extent of the shortfall, and such Payahead Balance
shall be reduced accordingly. Next, subject to the following sentence, the
Servicer shall make an advance of any remaining shortfall (such amount, an
"Actuarial Advance"). The Servicer will be obligated to make an Actuarial
Advance in respect of an Actuarial Receivable only to the extent that the
Servicer, in its sole discretion, shall determine that the Actuarial Advance
shall be recoverable from subsequent collections or recoveries on any Actuarial
Receivable. With respect to each Actuarial Receivable, the Actuarial Advance
shall increase Outstanding Actuarial Advances. Outstanding Actuarial Advances
shall be reduced by subsequent payments by or on behalf of the Obligor,
collections of Liquidation Proceeds and payments of the Purchase Amount.
If the Servicer shall determine that an Outstanding Actuarial
Advance with respect to any Actuarial Receivable shall not be recoverable, the
Servicer shall be reimbursed from any collections made on other Receivables in
the Trust, and Outstanding Actuarial Advances with respect to such Actuarial
Receivable shall be reduced accordingly.
(b) As of the close of business on the last day of each Collection Period, the
Servicer shall advance an amount equal to the amount of interest due on the
Simple Interest Receivables at their respective APRs for the related Collection
Period (assuming the Simple Interest Receivables pay on their respective due
dates) minus the amount of interest actually received on the Simple Interest
Receivables during the related Collection Period (such amount, a "Simple
Interest Advance"). With respect to each Simple Interest Receivable, the Simple
Interest Advance shall increase Outstanding Simple Interest Advances. If such
calculation results in a negative number, an amount equal to such negative
number shall be paid to the Servicer and the amount of Outstanding Simple
Interest Advances shall be reduced by such amount. In addition, in the event
that a Simple Interest Receivable becomes a Liquidated Receivable, Liquidation
Proceeds with respect to a Simple Interest Receivable attributable to accrued
and unpaid interest thereon (but not including interest for the then current
Collection Period) shall be paid to the Servicer to reduce Outstanding Simple
Interest Advances, but only to the extent of any Outstanding Simple Interest
Advances. The Servicer shall not make any advance in respect of principal of
Simple Interest Receivables.
If the Servicer shall determine that an Outstanding Simple
Interest Advance with respect to any Simple Interest Receivable shall not be
recoverable, the Servicer shall be reimbursed from any collections made on other
Receivables in the Trust, but only to the extent that such Outstanding Simple
Interest Advance represents accrued and unpaid interest on such Simple Interest
Receivable. Outstanding Simple Interest Advances with respect to such Simple
Interest Receivable shall be reduced by the amount of such reimbursement.
(c) In the event that an Obligor shall prepay a Receivable in full, if the
related contract did not require such Obligor to pay a full month's interest,
for the month of prepayment, at the APR, the Servicer shall make an
unreimbursable advance of the amount of such interest.
SECTION 4.5 Servicer Liquidity Advances. If, on a Targeted
Scheduled Distribution Date for any Subclass of Class A Notes, the Issuer has
entered into a binding agreement with an Eligible Purchaser for the sale of any
VPTNs to be issued on such Targeted Scheduled Distribution Date and the Servicer
determines that the proceeds from such sale will not be received by the Issuer
on that Targeted Scheduled Distribution Date in time to make timely payments on
the related Subclass of Class A Notes on such Targeted Scheduled Distribution
Date, the Servicer may, in its sole discretion, make a liquidity advance in the
amount equal to the expected proceeds if it determines, in its sole discretion,
that it has received reasonable assurance from the purchaser of the VPTNs to the
effect that the full amount of the expected proceeds will be delivered not more
than two Business Days after such Targeted Scheduled Distribution Date (such
liquidity advance, a "Servicer Liquidity Advance"). The Servicer shall deposit
any such Servicer Liquidity Advance in the VPTN Proceeds Account. If the
Servicer makes a Servicer Liquidity Advance, then promptly upon receipt by the
Issuer of the purchase price of such VPTN from the Eligible Purchaser, the
Indenture Trustee shall apply such funds to reimburse the Servicer for that
related Servicer Liquidity Advance, with interest to the extent any amount paid
by the purchaser with respect to accrued interest on the VPTN.
SECTION 4.6 Additional Deposits to Collection Account and
Withdrawals from Reserve Account. (a) The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 4.4(a)
and (b) and. the aggregate advances pursuant to Section 4.4(c). The Servicer and
the Seller shall deposit in the Collection Account the aggregate Purchase
Amounts with respect to Purchased Receivables and the Servicer shall deposit
therein all amounts to be paid under Section 8.1. All such deposits with respect
to a Collection Period shall be made, in immediately available funds, on the
Business Day preceding the Distribution Date (or, with the prior consent of the
Rating Agencies, on the Distribution Date) related to such Collection Period.
(b) The Indenture Trustee shall, on the Distribution Date relating to each
Collection Period, make withdrawals from the Reserve Account (i) first, in an
amount equal to the Reserve Account Release Amount, (ii) second, in an amount
equal to the amount (if positive) calculated by the Servicer pursuant to the
second sentence of Section 4.7(b), (iii) third, in an amount equal to the amount
(if positive) calculated by the Servicer pursuant to the third sentence of
Section 4.7(b) and (iv) fourth, in an amount equal to the amount (if positive)
calculated by the Servicer pursuant to the fourth sentence of Section 4.7(b),
and, in each case, shall deposit such funds into the Collection Account.
(c) On each Targeted Scheduled Distribution Date, the purchaser of a VPTN shall
deposit in the VPTN Proceeds Account the purchase price of any VPTNs issued by
the Issuer on such Distribution Date pursuant to Section 2.2(d) of the Indenture
and Section 2(b) of the Administration Agreement and the Servicer shall deposit
any Servicer Liquidity Advance made by the Servicer pursuant to Section 4.5.
SECTION 4.7 Distributions. (a) On each Distribution Date, the
Indenture Trustee shall cause to be made the following transfers and
distributions in the amounts set forth in the Servicer's Certificate for such
Distribution Date:
(i) From the Payahead Account, or from the Servicer in the event the
provisions of Section 4.1(e) above are applicable, to the Collection
Account, in immediately available funds, (x) the portion of Payaheads
constituting Scheduled Payments or prepayments in full, required by
Sections 4.3 and 4.4(a), and (y) the Payahead Balance, if any, relating
to any Purchased Receivable.
(ii) From the Collection Account to the Payahead Account, or to the Servicer
in the event the provisions of Section 4.1(e) above are applicable, in
immediately available funds, the aggregate Payaheads required by
Section 4.3 for the Collection Period related to such Distribution
Date.
(iii) From the Principal Distribution Account to the Accumulation Account, in
immediately available funds, the amount specified as the deposit to the
Accumulation Account in the Servicer's Certificate required by Section
3.9 for the Collection Period related to such Distribution Date.
(iv) From the Collection Account to the Servicer, in immediately available
funds, repayment of Outstanding Monthly Advances pursuant to Sections
4.4(a) and (b).
(b) Prior to each Distribution Date, the Servicer shall on or before each
Determination Date calculate the Available Collections, the Reserve Account
Release Amount, the Accumulation Amount, the Available Funds, the Servicing Fee
and all unpaid Servicing Fees from prior Collection Periods, if any, the Swap
Payment, any Swap Termination Payment, the Accrued Class A Note Interest, the
Accrued VPTN Interest, the First Priority Principal Distribution Amount, the
Accrued Class B Note Interest, the Second Priority Principal Distribution
Amount, the Accrued Class C Certificate Interest, the Accrued Class D
Certificate Interest , the Regular Principal Distribution Amount and if such
Distribution Date is a Targeted Scheduled Distribution Date, the amount of any
VPTN to be issued. In addition, the Servicer shall calculate on or before each
Determination Date the difference, if any, between the Total Required Payment
and the Available Funds and, pursuant to Section 4.6(b), the Indenture Trustee
shall withdraw funds from the Reserve Account in an amount equal to the lesser
of such difference (if positive) or the balance of such Reserve Account. On or
before the Determination Date immediately preceding the Final Scheduled
Distribution Date with respect to any Class of Notes or either Class of
Certificates, the Servicer shall calculate the difference, if any, between (i)
the amount required to pay such Class of Notes or such Class of Certificates in
full in accordance with the priorities set forth in Sections 4.7(c) and (d), and
(ii) the sum of the Available Funds plus the amount withdrawn from the Reserve
Account in accordance with the preceding sentence, and pursuant to Section
4.6(b), the Indenture Trustee shall withdraw funds from the Reserve Account in
the amount of such difference (if positive). The Servicer also shall calculate,
on or before each Determination Date, (i) the sum of the Available Funds plus
the amounts withdrawn from the Reserve Account in accordance with the two
immediately preceding sentences plus the amount remaining on deposit in the
Reserve Account after the withdrawal of such amounts, and (ii) the amount
required to pay the Servicing Fee and principal and interest of each Class of
Notes and Certificates in full in accordance with the priorities set forth in
Sections 4.7(c) and (d), and, if the amount determined pursuant to clause (i) of
this sentence is greater than the amount determined pursuant to clause (ii) of
this sentence, the Indenture Trustee, pursuant to Section 4.6(b), shall withdraw
funds from the Reserve Account in an amount which is, together with Available
Funds and the amounts withdrawn from the Reserve Account in accordance with the
two immediately preceding sentences, sufficient to pay the amount specified in
clause (ii) of this sentence.
(c) On each Distribution Date, the Servicer shall instruct the Indenture Trustee
(based on the information contained in the Servicer's Certificate delivered on
or before the related Determination Date pursuant to Section 3.9), to make the
following withdrawals from the Collection Account and make deposits,
distributions and payments, to the extent of Available Funds on deposit in the
Collection Account with respect to the Collection Period preceding such
Distribution Date (including investment earnings, if any, transferred from the
Accumulation Account pursuant to Section 4.1(f) and funds, if any, transferred
from the Payahead Account pursuant to this Section 4.7) and funds deposited
therein from the Reserve Account pursuant to Section 4.6(b), in the following
order of priority:
(i) first, to the Servicer, the Servicing Fee and all unpaid Servicing
Fees from prior Collection Periods;
(ii) second, to the Swap Counterparty, the Swap Payment;
(iii) third, with the same priority and ratably, in accordance with the
outstanding principal balance of the Class A Notes, the outstanding
principal balance of the VPTNs and the amount of any Swap Termination
Payment due and payable by the Issuer to the Swap Counterparty (1) to
the Class A Noteholders, the Accrued Class A Note Interest, (2) to the
VPTN Noteholders, the Accrued VPTN Interest and (3) to the Swap
Counterparty, any Swap Termination Payment; provided, that, if any
amounts allocable to the Class A Notes or VPTNs are not needed to pay
interest due on such Notes, such amounts shall be applied to pay the
portion, if any, of any Swap Termination Payment remaining unpaid;
provided, further, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class A Note Interest, payments
among the Class A Notes will be made pro rata and if there are not
sufficient funds available to pay the entire amount of the Accrued VPTN
Interest, payments among the VPTNs will be made pro rata;
(iv) fourth, to the Principal Distribution Account, the First Priority
Principal Distribution Amount;
(v) fifth, to the Noteholders of Class B Notes, the Accrued Class
B Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class B Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class B Notes on a pro rata basis;
(vi) sixth, to the Principal Distribution Account, the Second Priority
Principal Distribution Amount;
(vii) seventh, to the Certificate Interest Distribution Account, the
Accrued Class C Certificate Interest;
(viii) eighth, to the Certificate Interest Distribution Account, the
Accrued Class D Certificate Interest.
(ix) ninth, to the Reserve Account, the amount, if any, required to
reinstate the amount in the Reserve Account up to the Specified Reserve
Balance;
(x) tenth, to the Principal Distribution Account, the Regular Principal
Distribution Amount; and
(xi) eleventh, to the Seller, any funds remaining on deposit in the
Collection Account with respect to the Collection Period preceding such
Distribution Date.
Notwithstanding the foregoing, (A) following the occurrence
and during the continuation of an Event of Default specified in Section 5.1(i),
5.1(ii), 5.1(iv) or 5.1(v) of the Indenture which has resulted in an
acceleration of the Notes (or following the occurrence of any such event after
an Event of Default specified in Section 5.1(iii) of the Indenture has occurred
and the Notes have been accelerated), the Servicer shall instruct the Indenture
Trustee to transfer the funds on deposit in the Collection Account remaining
after the application of clauses (i), (ii) and (iii) above to the Principal
Distribution Account to the extent necessary to reduce the principal amount of
all the Class A Notes and the VPTNs to zero, (B) following the occurrence and
during the continuation of an Event of Default specified in Section 5.1(iii) of
the Indenture which has resulted in an acceleration of the Notes, the Servicer
shall instruct the Indenture Trustee to transfer the funds on deposit in the
Collection Account remaining after the application of clauses (i), (ii), (iii),
(iv) and (v) above to the Principal Distribution Account to the extent necessary
to reduce the principal amount of all the Notes to zero, and (C) in the case of
an event described in clause (A) or (B), the Certificateholders will not receive
any distributions of principal or interest until the principal amount and
accrued interest on all the Notes has been paid in full.
(d) On each Distribution Date, the Servicer shall instruct the Indenture Trustee
(based on the information contained in the Servicer's Certificate delivered on
or before the related Determination Date pursuant to Section 3.9), to withdraw
the funds on deposit in the Principal Distribution Account, any funds on deposit
in the Accumulation Account (exclusive of investment earnings) and, if such
Distribution Date is a Targeted Scheduled Distribution Date, any funds on
deposit in the VPTN Proceeds Account and make distributions and payments in the
following order of priority:
(1) FIRST, to the holders of the Class A Notes and VPTNs in
reduction of principal until the principal amounts of the
outstanding Class A Notes and VPTNs have been paid in full, in
accordance with the following:
(A) On each Targeted Scheduled Distribution Date for a Subclass of
Class A Notes,
(i) first,
(a) from amounts on deposit in the Principal
Distribution Account to the holders of the
outstanding VPTNs, if any, the VPTN
Percentage of such amounts until all
outstanding VPTNs are paid in full; and
(b) from amounts on deposit in the Principal
Distribution Account to the holders of the
Subclass of Class A Notes, the Class A
Percentage of such amounts until the
principal amount of the Subclass or
Subclasses of Class A Notes which have
reached or passed their Targeted Scheduled
Distribution Date have been paid in full;
(ii) second, from amounts on deposit in the
Accumulation Account, if any, to the holders
of such Subclass of Class A Notes which has
reached its Targeted Scheduled Distribution
Date until paid in full;
(iii) third, from amounts on deposit in the VPTN
Proceeds Account to the holders of such
Subclass or Subclasses of Class A Notes
which have reached or passed their Targeted
Scheduled Distribution Date until paid in
full; and
(iv) fourth, from any remaining amounts on
deposit in the Principal Distribution
Account to the holders of the VPTNs until
paid in full, and then any remaining amounts
will be deposited to the Accumulation
Account if any Class A Notes are outstanding
which have not reached or passed their
Targeted Scheduled Distribution Date.
(B) On each Distribution Date that is not a Targeted Scheduled
Distribution Date for a Subclass of Class A Notes and is not
during a Curable Sequential Amortization Period or an Extended
Sequential Amortization Period,
(i) first, from amounts on deposit in the
Principal Distribution Account to the
holders of the outstanding VPTNs, if any,
until all outstanding VPTNs have been paid
in full; and
(ii) second, if any Class A Notes remain out-
standing, the remainder, if any, to the
Accumulation Account.
(C) On each Distribution Date that is not a Targeted
Scheduled Distribution Date for a Subclass of Class A
Notes and is during a Curable Sequential Amortization
Period,
(i) first,
(a) from amounts on deposit in the
Principal Distribution Account to
the holders of the outstanding
VPTNs, if any, the VPTN Percentage
of such amounts until all
outstanding VPTNs have been paid in
full;
(b) from amounts on deposit in the
Principal Distribution Account to
the holders of the Subclass of Class
A Notes which was not paid in full
on its Targeted Scheduled
Distribution Date, the Class A
Percentage of such amounts until the
principal amount of such Subclass of
Class A Notes has been paid in full;
and
(ii) second, from any remaining amounts on
deposit in the Principal Distribution
Account, to the holders of the VPTNs until
paid in full, and then any remaining amounts
will be deposited to the Accumulation
Account if any Class A Notes are
outstanding,
(D) On each Distribution Date that is not a Targeted
Scheduled Distribution Date for a Subclass of Class A
Notes and is during an Extended Sequential
Amortization Period,
(i) from amounts on deposit in the Principal
Distribution Account to the holders of all
of the outstanding Subclasses of Class A
Notes the Class A Percentage of all amounts
on deposit in the Principal Distribution
Account until the principal amount of all
such outstanding Subclasses of Class A Notes
have been paid in full, in the following
order of priority:
(a) first, to the Noteholders of the
Class A-1 Notes in reduction of
principal until the principal amount
of the Outstanding Class A-1 Notes
has been paid in full;
(b) second, to the
Noteholders of the Class A-2 Notes
in reduction of principal until the
principal amount of the Outstanding
Class A-2 Notes has been paid in
full;
(c) third, to the
Noteholders of the Class A-3 Notes
in reduction of principal until the
principal amount of the Outstanding
Class A-3 Notes has been paid in
full;
(d) fourth, to the
Noteholders of the Class A-4 Notes
in reduction of principal until the
principal amount of the Outstanding
Class A-4 Notes has been paid in
full;
(e) fifth, to the
Noteholders of the Class A-5 Notes
in reduction of principal until the
principal amount of the Outstanding
Class A-5 Notes has been paid in
full; and
(ii) from amounts on deposit in the
Principal Distribution Account to the
holders of the VPTNs, if any, the VPTN
Percentage of such amounts until all
outstanding VPTNs have been paid in full;
(2) SECOND, to the holders of the Class B Notes in reduction of
principal until the principal amount of the outstanding Class
B Notes has been paid in full;
(3) THIRD to the Certificate Principal Distribution Account, until
the Certificate Balance of the Class C Certificates has been
paid in full;
(4) FOURTH, to the Certificate Principal Distribution Account,
until the Certificate Balance of the Class D Certificates has
been paid in full; and
(5) FIFTH, to the seller, any funds remaining on deposit in the
Principal Distribution Account;
provided, in each case, that in the event there are not sufficient funds to pay
the principal amount of all Notes or Certificates within a Subclass or Class
having the same priority, principal payments shall be made to each holder within
such Subclass or Class on a pro rata basis, and provided, further, all of the
Subclasses of Class A Notes will be paid sequentially, so that no principal
payments will be made on any Subclass of Class A Notes, until all Subclasses of
Class A Notes with a lower numerical designation have been paid in full; and
provided further if at any time more than one VPTN is outstanding, principal
will be paid to the VPTNs sequentially, with the earliest issued VPTN being paid
in full before any principal is paid to any VPTN with a later issuance date.
SECTION 4.8 Reserve Account. (a)(i) The Seller shall, prior to the
Closing Date, establish and maintain an account in the name "The Chase Manhattan
Bank as Indenture Trustee, as secured party for Ford Credit Auto Owner Trust
2000-B" at a Qualified Institution or Qualified Trust Institution, which shall
be designated as the "Reserve Account" (the Reserve Account, together with the
Collection Account (including the Principal Distribution Account), the
Accumulation Account and the VPTN Proceeds Account, the "Trust Accounts"). The
Reserve Account shall be under the sole dominion and control of the Indenture
Trustee; provided, that the Servicer may make deposits to the Reserve Account in
accordance with the Basic Documents and so long as no Default or Event of
Default shall have occurred and be continuing all or a portion of the funds in
the Reserve Account shall be invested by the applicable Qualified Institution or
Qualified Trust Institution maintaining such account at the direction of the
Seller in Permitted Investments without requiring any action from the Indenture
Trustee. The Seller shall not direct the Qualified Institution or Qualified
Trust Institution maintaining the Reserve Account to make any investment of any
funds or to sell any investment held in the Reserve Account unless the security
interest Granted and perfected in such account in favor of the Indenture Trustee
will continue to be perfected in such investment or the proceeds of such sale,
in either case without any further action by any Person, and, in connection with
any direction by the Seller to make any such investment or sale, if requested by
the applicable Qualified Institution or Qualified Trust Institution, the Seller
shall deliver to such Qualified Institution or Qualified Trust Institution an
Opinion of Counsel, acceptable to such Qualified Institution or Qualified Trust
Institution, to such effect. If (i) the Seller shall have failed to give
investment directions for any funds on deposit in the Reserve Account to the
Qualified Institution or Qualified Trust Institution maintaining such account by
11:00 a.m. New York Time (or such other time as may be agreed by the Issuer and
such Qualified Institution or Qualified Trust Institution) on the Business Day
preceding each Distribution Date, (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2 of the Indenture or
(iii) the Notes shall have been declared due and payable following an Event of
Default, amounts collected or receivable from the Indenture Trust Estate are
being applied in accordance with Section 5.4 of the Indenture as if there had
not been such a declaration, then the Qualified Institution or Qualified Trust
Institution shall, to the fullest extent practicable, invest and reinvest funds
in the Reserve Account in one or more Permitted Investments described in clause
(b) of the definition thereof. The Reserve Account will be established and
maintained pursuant to an account agreement which specifies New York law as the
governing law. In addition, the Reserve Account shall be established and
maintained at a Qualified Institution or Qualified Trust Institution which
agrees in writing that for so long as the Notes are outstanding it will comply
with entitlement orders (as defined in Article 8 of the UCC) originated by the
Indenture Trustee without further consent of the Issuer. On the Closing Date,
the Seller shall deposit the Reserve Initial Deposit into the Reserve Account
from the net proceeds of the sale of the Notes and the Certificates. The Reserve
Account and all amounts, securities, investments, financial assets and other
property deposited in or credited to the Reserve Account (such amounts, the
"Reserve Account Property") shall be held by the Indenture Trustee as secured
party for the benefit of the Noteholders and, after payment in full of the
Notes, as agent of the Owner Trustee and as part of the Trust Property, and all
deposits to and withdrawals from therefrom shall be made only upon the terms and
conditions of the Basic Documents.
The Reserve Account Property shall, to the extent permitted by
applicable law, rules and regulations, be invested, as directed in writing by
the Seller, by the bank or trust company then maintaining the Reserve Account in
Permitted Investments that mature not later than the Business Day preceding the
next Distribution Date and such Permitted Investments shall be held to maturity;
provided, however, that upon satisfaction of the Rating Agency Condition, funds
in the Reserve Account may be invested in Permitted Investments that will not
mature prior to the next Distribution Date and will not be required to be sold
or liquidated to meet any shortfalls that may occur. All interest and other
income (net of losses and investment expenses) on funds on deposit in the
Reserve Account shall be deposited therein. In the event the Reserve Account is
no longer to be maintained at the corporate trust department of The Chase
Manhattan Bank, the Seller shall, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, cause the Reserve Account to be moved to a
Qualified Institution or a Qualified Trust Institution within ten (10) Business
Days (or such longer period not to exceed thirty (30) calendar days as to which
each Rating Agency may consent).
(ii) With respect to Reserve Account Property:
(A) any Reserve Account Property that is a "financial asset" as defined
in Section 8-102(a)(9) of the UCC shall be physically
delivered to, or credited to an account in the name of, the
Qualified Institution or Qualified Trust Institution
maintaining the Reserve Account in accordance with such
institution's customary procedures such that such institution
establishes a "securities entitlement" in favor of the
Indenture Trustee with respect thereto; and
(B) any Reserve Account Property that is held in deposit accounts shall
be held solely in the name of the Indenture Trustee at one or
more depository institutions having the Required Rating and
each such deposit account shall be subject to the exclusive
custody and control of the Indenture Trustee and the Indenture
Trustee shall have sole signature authority with respect
thereto.
(iii) Except for any deposit accounts specified in clause (ii)(B)
above, the Reserve Account shall only be invested in securities or in
other assets which the Qualified Institution or Qualified Trust
Institution maintaining the Reserve Account agrees to treat as
"financial assets" as defined in Section 8-102(a)(9) of the UCC.
(b) If the Servicer pursuant to Section 4.4 determines on or before any
Determination Date that it is required to make a Monthly Advance and does not do
so from its own funds, the Servicer shall promptly instruct the Indenture
Trustee in writing to withdraw funds, in an amount specified by the Servicer,
from the Reserve Account and deposit them in the Collection Account to cover any
shortfall. Such payment shall be deemed to have been made by the Servicer
pursuant to Section 4.4 for purposes of making distributions pursuant to this
Agreement, but shall not otherwise satisfy the Servicer's obligation to deliver
the amount of the Monthly Advances to the Indenture Trustee, and the Servicer
shall within two Business Days replace any funds in the Reserve Account so used.
(c) Following the payment in full of the aggregate principal amount of
the Notes and the Aggregate Certificate Balance and of all other amounts owing
or to be distributed hereunder or under the Indenture or the Trust Agreement to
Noteholders and Certificateholders and the termination of the Trust, any
remaining Reserve Account Property shall be distributed to the Seller.
(d) The Seller shall be permitted to sell, transfer, convey or assign
in any manner its rights in the Reserve Account under this Section 4.8(c),
together with its rights to receive amounts under Section 4.7(c)(xi) of this
Agreement and Sections 5.4(b)(ix) and 8.2(c)(xi) of the Indenture, provided that
each of the following:
(i) the Rating Agency Condition is satisfied with respect such action;
(ii) such action shall not, as evidenced by an Opinion of Counsel,
cause the Issuer to be characterized for federal or any then Applicable
Tax State income tax purposes as an association taxable as a
corporation; and
(iii) the transferee or assignee agrees in writing to take positions
for federal and any Applicable Tax State income tax purposes consistent
with the tax positions taken previously by the Seller.
SECTION 4.9 Net Deposits. For so long as (i) Ford Credit shall be
the Servicer, (ii) the Servicer shall be entitled pursuant to Section 4.2 to
remit collections on a monthly basis rather than within two Business Days of
receipt, and (iii) the Servicer shall be entitled pursuant to Section 4.1(e) to
retain Payaheads rather than deposit them in the Payahead Account. Ford Credit
may make the remittances pursuant to Sections 4.2, 4.5 and 4.6 above, net of
amounts to be distributed to Ford Credit pursuant to Section 4.7(c).
Nonetheless, the Servicer shall account for all of the above described
remittances and distributions except for the Supplemental Servicing Fee in the
Servicer's Certificate as if the amounts were deposited and/or transferred
separately.
SECTION 4.10 Statements to Noteholders and Certificateholders. On
each Distribution Date, the Servicer shall provide to the Indenture Trustee
(with copies to the Rating Agencies and each Note Paying Agent) for the
Indenture Trustee to forward to each Noteholder of record as of the most recent
Record Date and to the Owner Trustee (with copies to the Rating Agencies and to
each Certificate Paying Agent) for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date a statement based
on information in the Servicer's Certificate furnished pursuant to Section 3.9,
setting forth for the Collection Period relating to such Distribution Date the
following information as to the Notes and the Certificates to the extent
applicable:
(i) the amount of such distribution allocable to principal allocable
to each Class or Subclass, as applicable, of the Notes and the
Certificates;
(ii) the amount of such distribution allocable to interest allocable to
each Class or Subclass, as applicable, of the Notes and the
Certificates;
(iii) the amount of any draws from the Reserve Account, if any;
(iv) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(v) the Specified Overcollateralization Amount and the Specified
Credit Enhancement Amount as of such Distribution Date;
(vi) the amount of the Servicing Fee paid to the Servicer with respect
to the related Collection Period and the amount of any unpaid Servicing
Fees and the change in such amount from that of the prior Distribution
Date;
(vii) the amounts of the Noteholders' Interest Carryover Shortfall and
the Certificateholders' Interest Carryover Shortfall, if any, on such
Distribution Date and the change in such amounts from the preceding
Distribution Date;
(viii) the aggregate outstanding principal amount of each Class of
Notes, the Note Pool Factor for each Class of Notes, the Certificate
Balance of each Class of Certificates and the Certificate Pool Factor
for each Class of Certificates as of such Distribution Date;
(ix) the amount of any previously due and unpaid payment of principal
of the Notes or of the Certificate Balance, as applicable, and the
change in such amount from that of the prior Distribution Date;
(x) the balance of the Reserve Account on such Distribution Date
(specifying any increase in the balance of the Reserve Account due to
an increase in the amounts on deposit in the Accumulation Account),
after giving effect to distributions made on such Distribution Date and
the change in such balance from the preceding Distribution Date;
(xi) the balance of the Accumulation Account on such Distribution Date,
after giving effect to distributions made on such Distribution Date and
the change in such balance from the preceding Distribution Date;
(xii) the amount of the aggregate Realized Losses, if any, with respect
to the related Collection Period;
(xiii) the aggregate Purchase Amount of Receivables repurchased by the
Seller or purchased by the Servicer, if any, with respect to the
related Collection Period;
(xiv) the amount of Monthly Advances, if any, on such Distribution
Date (stating separately the amount of Actuarial Advances and Simple
Interest Advances); and
(xv) the issuance date and the outstanding principal balances of each
Outstanding VPTN;
(xvi) whether a Curable Sequential Amortization Period has occurred and
is continuing; and
(xvii) whether the Extended Sequential Amortization Period has
occurred.
Each amount set forth on the Distribution Date statement pursuant
to clauses (i), (ii), (vi), (vii) and (ix) above shall be expressed as a dollar
amount per $1,000 of original principal amount or original Certificate Balance
of a Note or a Certificate, as applicable.
ARTICLE V
THE SELLER
SECTION 5.1 Representations and Warranties of Seller. The Seller
makes the following representations and warranties on which the Issuer is deemed
to have relied in acquiring the Trust Property. The representations and
warranties speak as of the execution and delivery of this Agreement and shall
survive the conveyance of the Trust Property to the Issuer and the pledge
thereof by the Issuer to the Indenture Trustee pursuant to the Indenture:
(a) Organization and Good Standing. The Seller shall have been duly organized
and shall be validly existing as a limited partnership in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority and legal right to acquire and own the
Receivables.
(b) Due Qualification. The Seller shall be duly qualified to do business as a
foreign limited partnership in good standing, and shall have obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Seller shall have the power and authority to
execute and deliver this Agreement and the other Basic Documents to which it is
a party and to carry out their terms. The Seller shall have full power and
authority to convey and assign the property to be conveyed and assigned to and
deposited with the Issuer and has duly authorized such conveyance and assignment
to the Issuer by all necessary action; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to which it is a
party shall have been duly authorized, executed and delivered by the Seller by
all necessary action.
(d) Valid Conveyance; Binding Obligation. This Agreement shall evidence a valid
transfer, assignment and conveyance of the Receivables and the other Trust
Property conveyed by the Seller to the Issuer hereunder, enforceable against
creditors of and purchasers from the Seller; and this Agreement and the other
Basic Documents to which the Seller is a party constitute legal, valid, and
binding obligations of the Seller, enforceable against the Seller in accordance
with their terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(e) No Violation. The consummation of the transactions contemplated by this
Agreement and the other Basic Documents to which the Seller is a party and the
fulfillment of the terms hereof and thereof will not conflict with, result in
any breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time or both) a default under the Certificate of
Limited Partnership or Limited Partnership Agreement, any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument to which the Seller is a party or by which the Seller is
bound; nor result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument; nor violate any law or, to the
best of the Seller's knowledge, any order, rule, or regulation applicable to the
Seller of any federal or State regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(f) No Proceedings. There are no proceedings or investigations pending, or, to
the Seller's best knowledge, threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction
over the Seller or its properties: (i) asserting the invalidity of this
Agreement, the Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, or (iv) relating to the Seller and
which might adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes or the Certificates.
SECTION 5.2 Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement, and hereby agrees to the
following:
(a) The Seller shall indemnify, defend, and hold harmless the Issuer, the Owner
Trustee and the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to, and as of the date of,
the conveyance of the Receivables to the Issuer or the issuance and original
sale of the Notes and the Certificates, including any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to ownership of the Receivables or federal or other Applicable Tax State income
taxes arising out of the transactions contemplated by this Agreement and the
other Basic Documents) and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend, and hold harmless the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Certificateholders from
and against any loss, liability or expense incurred by reason of (i) the
Seller's willful misfeasance, bad faith, or negligence (other than errors in
judgment) in the performance of its duties under this Agreement, or by reason of
reckless disregard of its obligations and duties under this Agreement and (ii)
the Seller's violation of federal or State securities laws in connection with
the registration or the sale of the Notes or the Certificates.
(c) The Seller shall indemnify, defend and hold harmless the Owner Trustee and
the Indenture Trustee and their respective officers, directors, employees and
agents from and against all costs, expenses, losses, claims, damages and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained herein and in the Trust
Agreement, in the case of the Owner Trustee, and in the Indenture, in the case
of the Indenture Trustee, except to the extent that such cost, expense, loss,
claim, damage or liability: (i) in the case of the Owner Trustee, shall be due
to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Owner Trustee or, in the case of the Indenture Trustee, shall
be due to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Indenture Trustee; or (ii) in the case of the Owner Trustee
shall arise from the breach by the Owner Trustee of any of its representations
or warranties set forth in Section 7.3 of the Trust Agreement or (iii) in the
case of the Indenture Trustee shall arise from the breach by the Indenture
Trustee of any of its representations and warranties set forth in the Indenture.
(d) The Seller shall pay any and all taxes levied or assessed upon all or
any part of the Owner Trust Estate.
(e) Indemnification under this Section 5.2 shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of
this Agreement and shall include, without limitation, reasonable fees and
expenses of counsel and expenses of litigation. If the Seller shall have made
any indemnity payments pursuant to this Section 5.2 and the Person to or on
behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Seller, without interest.
SECTION 5.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Seller shall be a party, (iii) succeeding to the business of the
Seller, or (iv) more than 50% of the voting stock of which is owned directly or
indirectly by Ford Motor Company, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, will be the successor to the Seller under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement; provided, however, that (x) the Seller
shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger, conversion,
consolidation or succession and such agreement of assumption comply with this
Section 5.3 and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with and (y) the
Seller shall have delivered to the Owner Trustee and the Indenture Trustee an
Opinion of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee, respectively, in the
Receivables and the other Trust Property, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Seller shall
provide notice of any merger, conversion, consolidation, or succession pursuant
to this Section 5.3 to the Rating Agencies. Notwithstanding anything herein to
the contrary, the execution of the foregoing agreement of assumption and
compliance with clauses (x) and (y) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii) or (iii)
above.
SECTION 5.4 Limitation on Liability of Seller and Others. The
Seller and any officer or employee or agent of the Seller may rely in good faith
on the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Seller shall not be under any obligation to appear in, prosecute, or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
SECTION 5.5 Seller May Own Notes or Certificates. The Seller, and
any Affiliate of the Seller, may in its individual or any other capacity become
the owner or pledgee of Notes or Certificates with the same rights as it would
have if it were not the Seller or an Affiliate thereof, except as otherwise
expressly provided herein or in the other Basic Documents. Except as set forth
herein or in the other Basic Documents, Notes and Certificates so owned by or
pledged to the Seller or any such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement and the other Basic
Documents, without preference, priority, or distinction as among all of the
Notes and Certificates.
ARTICLE VI
THE SERVICER
SECTION 6.1 Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Trust Property. The representations speak as of the execution and
delivery of this Agreement and shall survive the conveyance of the Trust
Property to the Issuer and the pledge thereof by the Issuer pursuant to the
Indenture:
(a) Organization and Good Standing. The Servicer shall have been duly organized
and shall be validly existing as a corporation in good standing under the laws
of the State of its incorporation, with power and authority to own its
properties and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all relevant times,
and shall have, power, authority, and legal right to acquire, own, sell and
service the Receivables and to hold the Receivable Files as custodian on behalf
of the Issuer and the Indenture Trustee.
(b) Due Qualification. The Servicer shall be duly qualified to do business as a
foreign corporation in good standing, and shall have obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) shall require such qualifications.
(c) Power and Authority. The Servicer shall have the power and authority to
execute and deliver this Agreement and the other Basic Documents to which it is
a party and to carry out their terms, and the execution, delivery and
performance of this Agreement and the other Basic Documents to which it is a
party shall have been duly authorized, executed and delivered by the Servicer by
all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic Documents to which
the Servicer is a party constitute legal, valid, and binding obligations of the
Servicer, enforceable against the Servicer in accordance with their terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws and to general equitable principles.
(e) No Violation. The consummation of the transactions contemplated by this
Agreement and the other Basic Documents to which the Servicer is a party and the
fulfillment of the terms hereof and thereof shall not conflict with, result in
any breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time or both) a default under (in each case material
to the Servicer and its subsidiaries considered as a whole), the articles of
incorporation or by-laws of the Servicer, or any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or similar agreement
or instrument to which the Servicer is a party or by which it shall be bound,
nor result in the creation or imposition of any lien, charge or encumbrance (in
each case material to the Servicer and its subsidiaries considered as a whole)
upon any of its properties pursuant to the terms of any such indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument (other than this Agreement); nor violate any law
or, to the best of the Servicer's knowledge, any order, rule, or regulation
applicable to the Servicer of any court or any federal or State regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction
over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations pending, or, to
the Servicer's best knowledge, threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction
over the Servicer or its properties: (i) asserting the invalidity of this
Agreement, the Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, or (iv) relating to the Servicer and
which might adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes or the Certificates.
SECTION 6.2 Indemnities of Servicer. The Servicer shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, and hereby agrees to the
following:
(a) The Servicer shall defend, indemnify and hold harmless the Issuer, the Owner
Trustee, the Delaware Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders and the Seller from and against any and all costs, expenses,
losses, damages, claims and liabilities, arising out of or resulting from the
use, ownership or operation by the Servicer or any Affiliate thereof of a
Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the Issuer, the Owner
Trustee, the Delaware Trustee and the Indenture Trustee from and against any
taxes that may at any time be asserted against any such Person with respect to
the transactions contemplated herein or in the other Basic Documents, if any,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes (but, in the case of the
Issuer, not including any taxes asserted with respect to, and as of the date of,
the conveyance of the Receivables to the Issuer or the issuance and original
sale of the Notes and the Certificates, or asserted with respect to ownership of
the Receivables, or federal or other Applicable Tax State income taxes arising
out of the transactions contemplated by this Agreement and the other Basic
Documents) and costs and expenses in defending against the same.
(c) The Servicer shall indemnify, defend and hold harmless the Issuer, the Owner
Trustee, the Delaware Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders and the Seller from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost, expense,
loss, claim, damage, or liability arose out of, or was imposed upon any such
Person through, the negligence, willful misfeasance, or bad faith (other than
errors in judgment) of the Servicer in the performance of its duties under this
Agreement or any other Basic Document to which it is a party, or by reason of
reckless disregard of its obligations and duties under this Agreement or any
other Basic Document to which it is a party.
(d) The Servicer shall indemnify, defend, and hold harmless the Owner Trustee,
the Delaware Trustee and the Indenture Trustee, as applicable, from and against
all costs, expenses, losses, claims, damages, and liabilities arising out of or
incurred in connection with the acceptance or performance of the trusts and
duties contained herein and in the other Basic Documents, if any, except to the
extent that such cost, expense, loss, claim, damage, or liability: (i) shall be
due to the willful misfeasance, bad faith, or negligence (except for errors in
judgment) of the Owner Trustee, the Delaware Trustee or the Indenture Trustee,
as applicable; (ii) in the case of the Owner Trustee, shall arise from the Owner
Trustee's breach of any of its representations or warranties set forth in
Section 7.3 of the Trust Agreement or, in the case of the Indenture Trustee,
from the Indenture Trustee's breach of any of its representations or warranties
set forth in the Indenture; or (iii) in the case of the Indenture Trustee, shall
arise out of or be incurred in connection with the performance by the Indenture
Trustee of the duties of a Successor Servicer hereunder.
For purposes of this Section 6.2, in the event of the termination
of the rights and obligations of Ford Credit (or any successor thereto pursuant
to Section 7.2) as Servicer pursuant to Section 7.1, or a resignation by such
Servicer pursuant to this Agreement, such Servicer shall be deemed to continue
to be the Servicer pending appointment of a Successor Servicer (other than the
Indenture Trustee) pursuant to Section 7.2.
(e) Indemnification under this Section 6.2 by Ford Credit (or any successor
thereto pursuant to Section 7.2) as Servicer, with respect to the period such
Person was (or was deemed to be) the Servicer, shall survive the termination of
such Person as Servicer or a resignation by such Person as Servicer as well as
the termination of this Agreement or the resignation or removal of the Owner
Trustee, the Delaware Trustee or the Indenture Trustee and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section 6.2 and
the Person to or on behalf of whom such payments are made thereafter shall
collect any of such amounts from others, such Person shall promptly repay such
amounts to the Servicer, without interest.
SECTION 6.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Servicer shall be a party, (iii) succeeding to the business of the
Servicer, or (iv) so long as Ford Credit acts as Servicer, any corporation more
than 50% of the voting stock of which is owned directly or indirectly by Ford
Motor Company, which Person in any of the foregoing cases executes an agreement
of assumption to perform every obligation of the Servicer under this Agreement,
will be the successor to the Servicer under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties to
this Agreement; provided, however, that (x) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such merger, conversion, consolidation, or
succession and such agreement of assumption comply with this Section 6.3 and
that all conditions precedent provided for in this Agreement relating to such
transaction have been complied with and (y) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Issuer and the
Indenture Trustee, respectively, in the Receivables, and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interests. The Servicer
shall provide notice of any merger, conversion, consolidation or succession
pursuant to this Section 6.3 to the Rating Agencies. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement or assumption
and compliance with clauses (x) and (y) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), or (iii)
above.
SECTION 6.4 Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Issuer, the Noteholders or
the Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance or bad faith in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement, or by reason of negligence in the performance of
its duties under this Agreement (except for errors in judgment). The Servicer
and any director, officer or employee or agent of the Servicer may rely in good
faith on any Opinion of Counsel or on any Officer's Certificate of the Seller or
certificate of auditors believed to be genuine and to have been signed by the
proper party in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute, or defend any legal action that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties to this Agreement and the interests of the Noteholders and
Certificateholders under this Agreement. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Servicer.
SECTION 6.5 Delegation of Duties. So long as Ford Credit acts as
Servicer, the Servicer may at any time without notice or consent delegate some
of or substantially all of its duties under this Agreement to any corporation
more than 50% of the voting stock of which is owned, directly or indirectly, by
Ford Motor Company. The Servicer may at any time perform specific duties as
servicer under the Agreement through sub-contractors; provided that no such
delegation or subcontracting shall relieve the Servicer of its responsibilities
with respect to such duties as to which the Servicer shall remain primarily
responsible with respect thereto and the Servicer shall be solely responsible
for the fees of any such sub-contractors.
SECTION 6.6 Ford Credit Not to Resign as Servicer. Subject to the
provisions of Section 6.3, Ford Credit shall not resign from the obligations and
duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law. Notice of any such determination
permitting the resignation of Ford Credit shall be communicated to the Owner
Trustee and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a Successor Servicer shall have
(i) taken the actions required by Section 7.1(b), (ii) assumed the
responsibilities and obligations of Ford Credit in accordance with Section 7.2
and (iii) become the Administrator under the Administration Agreement pursuant
to Section 8 thereof.
SECTION 6.7 Servicer May Own Notes or Certificates. The Servicer,
and any Affiliate of the Servicer, may, in its individual or any other capacity,
become the owner or pledgee of Notes or Certificates with the same rights as it
would have if it were not the Servicer or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Basic Documents. Except as
set forth herein or in the other Basic Documents, Notes and Certificates so
owned by or pledged to the Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Notes and Certificates.
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination. (a) If any one
of the following events ("Events of Servicing Termination") occur and be
continuing:
(i) Any failure by the Servicer or the Seller to deliver to the Owner
Trustee or the Indenture Trustee any proceeds or payment required to be
so delivered under the terms of the Notes and the Certificates and this
Agreement that shall continue unremedied for a period of three (3)
Business Days after written notice of such failure is received by the
Servicer or the Seller, as the case may be, from the Owner Trustee or
the Indenture Trustee or after discovery of such failure by an officer
of the Servicer or the Seller, as the case may be; or
(ii) Failure on the part of the Servicer or the Seller duly to observe
or to perform in any material respect any other covenants or agreements
of the Servicer or the Seller, as the case may be, set forth in the
Notes, the Certificates or in this Agreement, which failure shall (a)
materially and adversely affect the rights of Noteholders or
Certificateholders and (b) continue unremedied for a period of ninety
(90) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (1) to the
Servicer or the Seller, as the case may be, by the Owner Trustee or the
Indenture Trustee, or (2) to the Owner Trustee, the Indenture Trustee,
the Seller and the Servicer by the Noteholders of Notes evidencing not
less than 25% of the principal amount of the Controlling Note Class or,
if no Notes are outstanding, by Certificateholders of Certificates
evidencing not less than 25% of the Certificate Balance of the
Controlling Certificate Class; or
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, or liquidator for the Servicer
or the Seller in any insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings, or for the winding up
or liquidation of its respective affairs, and the continuance of any
such decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
(iv) The consent by the Servicer or the Seller to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities, or similar proceedings
of or relating to the Servicer of or relating to substantially all of
its property; or the Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntary suspend
payment of its obligations or become insolvent;
then the Indenture Trustee shall promptly notify each Rating Agency, and in each
and every case, so long as an Event of Servicing Termination shall not have been
remedied, either the Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the principal amount of the Controlling Note Class
(or, if no Notes are outstanding, the Owner Trustee or Certificates evidencing
not less than a majority of the Certificate Balance of the Controlling
Certificate Class), by notice then given in writing to the Servicer (and to the
Indenture Trustee and the Owner Trustee if given by the Noteholders and to the
Owner Trustee if given by the Certificateholders) (with a copy to the Rating
Agencies) may terminate all of the rights and obligations of the Servicer under
this Agreement. On or after the receipt by the Servicer of such written notice,
all authority and power of the Servicer under this Agreement, whether with
respect to the Notes, the Certificates or the Trust Property or otherwise, shall
pass to and be vested in the Indenture Trustee or such Successor Servicer as may
be appointed under Section 7.2; and, without limitation, the Indenture Trustee
and the Owner Trustee are hereby authorized and empowered to execute and
deliver, on behalf of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise.
(b) Upon termination of the Servicer under Section 7.1(a), the predecessor
Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the predecessor Servicer under this Agreement, including the transfer
to the Indenture Trustee or such Successor Servicer for administration of all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received with respect to a Receivable and the
delivery of the Receivable Files and the related accounts and records maintained
by the Servicer. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Receivable Files to the Successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section 7.1 shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and expenses.
SECTION 7.2 Appointment of Successor Servicer. (a) Upon the Servicer's
receipt of notice of termination pursuant to Section 7.1 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the later of
(x) the date 45 days from the delivery to the Indenture Trustee and the Owner
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (y) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of the Servicer's resignation or termination hereunder, the Issuer
shall appoint a Successor Servicer, and the Successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Owner Trustee and
the Indenture Trustee (with a copy to each Rating Agency). In the event that a
Successor Servicer has not been appointed at the time when the predecessor
Servicer has ceased to act as Servicer in accordance with this Section 7.2, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. Notwithstanding the above, the Indenture Trustee, if it
shall be legally unable so to act, shall appoint, or petition a court of
competent jurisdiction to appoint, any established institution, having a net
worth of not less than $100,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to the Servicer under this
Agreement.
(b) Upon appointment, the Successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties, and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, by the terms and provisions of this
Agreement.
(c) In connection with such appointment, the Indenture Trustee may
make such arrangements for the compensation of such Successor Servicer out of
payments on Receivables as it and such Successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
predecessor Servicer under this Agreement. The Indenture Trustee and such
Successor Servicer shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.3 Repayment of Monthly Advances and Servicer Liquidity
Advances. If the identity of the Servicer shall change, the predecessor Servicer
shall be entitled to receive to the extent of available funds reimbursement for
Outstanding Monthly Advances pursuant to Section 4.3 and 4.4 or Outstanding
Servicer Liquidity Advances pursuant to Section 4.5, with respect to all Monthly
Advances or Servicer Liquidity Advances made by the predecessor Servicer.
SECTION 7.4 Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, the Servicer pursuant
to this Article VII, the Indenture Trustee shall give prompt written notice
thereof to Noteholders and to the Swap Counterparty, and the Owner Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses of record and to each Rating Agency.
SECTION 7.5 Waiver of Past Events of Servicing Termination. The
Noteholders of Notes evidencing not less than a majority of the principal amount
of the Controlling Note Class (or, if no Notes are outstanding, the Owner
Trustee or Certificates evidencing not less than a majority of the Certificate
Balance of the Controlling Certificate Class) may, on behalf of all Noteholders
and Certificateholders, waive any Event of Servicing Termination hereunder and
its consequences, except an event resulting from the failure to make any
required deposits to or payments from any of the Trust Accounts, either
Certificate Distribution Account or the Payahead Account in accordance with this
Agreement. Upon any such waiver of a past Event of Servicing Termination, such
Event of Servicing Termination shall cease to exist, and shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other event or impair any right consequent thereon. The
Issuer shall provide written notice of any such waiver to the Rating Agencies
and to the Swap Counterparty.
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables. On the last day
of any Collection Period as of which the Pool Factor shall be less than the
Optional Purchase Percentage, the Servicer shall have the option to purchase the
corpus of the Trust. To exercise such option, the Servicer shall deposit
pursuant to Section 4.6(a) in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables, plus the appraised value of any
other property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Servicer, the Owner Trustee and the Indenture
Trustee, and shall succeed to all interests in and to the Trust. Notwithstanding
the foregoing, the Servicer shall not be permitted to exercise such option
unless the amount to be deposited in the Collection Account pursuant to the
preceding sentence is greater than or equal to the sum of the outstanding
principal amount of the Notes and the Aggregate Certificate Balance and all
accrued but unpaid interest (including any overdue interest) thereon. The amount
deposited in the Collection Account pursuant to this Section 8.1 shall be used
on the next Distribution Date to make payments in full to Noteholders and
Certificateholders in the manner set forth in Article IV.
SECTION 8.2. Succession Upon Satisfaction and Discharge of
Indenture. Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, to the extent
permitted by applicable law, the Indenture Trustee will continue to carry out
its obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Payahead Account and the Collection
Account in accordance with Section 4.7 and making withdrawals from the Reserve
Account in accordance with Section 4.6(b) and Section 4.8.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment. (a) This Agreement may be amended by the
Seller, the Servicer and the Issuer, with the consent of the Indenture Trustee
and the Owner Trustee and to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement, or to add any provisions to or change or eliminate
any provisions or to modify the rights of the Noteholders or Certificateholders;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interests of any Noteholder or Certificateholder or
adversely affect the rights or obligations of the Swap Counterparty under the
Interest Rate Swap Agreement or modify the obligations or, or impair the ability
of the Issuer to fully perform any of its obligations under the Interest Rate
Swap Agreement; and provided further that such action shall not, as evidenced by
an Opinion of Counsel, cause the Issuer to be characterized for federal or any
then Applicable Tax State income tax purposes as an association taxable as a
corporation.
(b) This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the consent of the Swap Counterparty to the extent
such amendment adversely affects the rights or obligations of the Swap
Counterparty under the Interest Rate Swap Agreement or modifies the obligations
of, or impairs the ability of the Issuer to fully perform any of its obligations
under the Interest Rate Swap Agreement, and with the consent of the Indenture
Trustee and the Owner Trustee to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld) and with the consent of (i) the Noteholders of Notes evidencing not
less than a majority of the principal amount of each Class of the Notes and (ii)
the Certificateholders of Certificates evidencing not less than a majority of
the Aggregate Certificate Balance (which consent of any Noteholder of a Note or
Certificateholder of a Certificate given pursuant to this Section 9.1 or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Note or Certificate, as the case may be, and on all future
Noteholders of such Note or Certificateholders of such Certificate, as the case
may be, and of any Note or Certificate, as applicable, issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon such Note or the Certificate) 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 the Certificateholders; provided, however, that no such amendment
shall (A) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that shall be required to be made on any Note or
Certificate or change any Note Interest Rate or any Certificate Rate or, without
satisfaction of the Rating Agency Condition, the Specified Reserve Balance,
without the consent of all adversely affected Noteholders or Certificateholders
or (B) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Noteholders of all Notes and
Certificateholders of all Certificates affected thereby; and provided further
that such action shall not, as evidenced by an Opinion of Counsel, cause the
Issuer to be characterized for federal or any then Applicable Tax State income
tax purposes as an association taxable as a corporation.
(c) Prior to the execution of any such amendment or consent the Servicer will
provide, and the Owner Trustee shall distribute, written notification of the
substance of such amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Swap Counterparty, the Indenture Trustee
and each Rating Agency and the Indenture Trustee will provide notification of
the substance of such amendment or consent to each Noteholder. It shall not be
necessary for the consent of Noteholders or the Certificateholders pursuant to
this Section 9.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Noteholders and Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Noteholders and
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee and the Indenture Trustee may prescribe, including the establishment of
record dates pursuant to paragraph number 2 of the Note Depository Agreement.
(e) Prior to the execution of any amendment to this Agreement, the Owner Trustee
and the Indenture Trustee shall be entitled to receive and rely upon an Opinion
of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
9.2(i)(1). The Owner Trustee or the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects such Owner Trustee's
or Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 9.2 Protection of Title to Trust Property. (a) The Seller
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain, and protect the interest of the
Issuer and the Indenture Trustee for the benefit of the Noteholders in the
Receivables and in the proceeds thereof. The Seller shall deliver (or cause to
be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Seller nor the Servicer shall change its name, identity, or
corporate structure in any manner that would, could, or might make any financing
statement or continuation statement filed by the Seller in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-402(7) of
the UCC, unless it shall have given the Owner Trustee and the Indenture Trustee
at least five (5) days' prior written notice thereof, with a copy to the Rating
Agencies, and shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Seller and the Servicer shall give the Owner Trustee and the Indenture
Trustee at least sixty (60) days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing statement.
The Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account, the Payahead Account and
the Reserve Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and after the
time of conveyance under this Agreement of the Receivables to the Issuer, the
Servicer's master computer records (including any back-up archives) that refer
to a Receivable shall indicate clearly the interest of the Issuer and the
Indenture Trustee in such Receivable and that such Receivable is owned by the
Issuer and has been pledged to the Indenture Trustee pursuant to the Indenture.
Indication of the Issuer's and the Indenture Trustee's interest in a Receivable
shall not be deleted from or modified on the Servicer's computer systems until,
and only until, the Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender, or other transferee, the
Servicer shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been conveyed to and is owned by
the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice, shall permit the
Owner Trustee, the Indenture Trustee and their respective agents at any time
during normal business hours to inspect, audit, and make copies of and to obtain
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee and the
Indenture Trustee, within twenty (20) Business Days, a list of all Receivables
(by contract number and name of Obligor) then held as part of the Trust,
together with a reconciliation of such list to the Schedule of Receivables and
to each of the Servicer's Certificates furnished before such request indicating
removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the Indenture Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel
either (A) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Issuer and the Indenture Trustee in
the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such Counsel, no
such action shall be necessary to preserve and protect such
interest; and
(2) within 120 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Cutoff Date, an Opinion of
Counsel, dated as of a date during such 120-day period, either (A)
stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee in the
Receivables, and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or
(B) stating that, in the opinion of such Counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above shall specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law, cause the Notes
and the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
(k) For the purpose of facilitating the execution of this Agreement and for
other purposes, this Agreement may be executed in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
SECTION 9.3 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 UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 9.4 Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller or the Servicer, to the agent for service as specified in
Section 9.11 hereof, or at such other address as shall be designated by the
Seller or the Servicer in a written notice to the Owner Trustee and the
Indenture Trustee, (b) in the case of the Owner Trustee, at the Corporate Trust
Office of the Owner Trustee, (c) in the case of the Indenture Trustee, at the
Corporate Trust Office of the Indenture Trustee, (d) in the case of Xxxxx'x
Investors Service, Inc., at the following address: Xxxxx'x Investors Service,
Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (e)
in the case of Standard & Poor's Ratings Services, at the following address:
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Surveillance Department, (f) in the case of
Fitch IBCA, Inc., at the following address: Fitch IBCA, Inc., 0 Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance, and (g)
in the case of the Swap Counterparty, at the following address: Westdeusche
Landesbank Girozentrale, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Xxxxxxx Xxxxx ((000) 000-0000)). Any notice required or permitted to be
mailed to a Noteholder or Certificateholder shall be given by first class mail,
postage prepaid, at the address of such Person as shown in the Note Register or
the Certificate Register, as applicable. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder or Certificateholder shall receive such
notice.
SECTION 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the Notes, the
Certificates or the rights of the holders thereof.
SECTION 9.6 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.3 and 7.2 and as provided in
the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Seller or the Servicer without the
prior written consent of the Owner Trustee, the Indenture Trustee, the
Noteholders of Notes evidencing not less than 66b% of the principal amount of
the Notes Outstanding and the Certificateholders of Certificates evidencing not
less than 66b% of the Aggregate Certificate Balance.
SECTION 9.7 Further Assurances. The Seller and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Owner Trustee or
the Indenture Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 9.8 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges therein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.9 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Noteholders, the
Certificateholders, the Indenture Trustee, the Delaware Trustee, the Owner
Trustee and the Swap Counterparty and their respective successors and permitted
assigns and each of the Indenture Trustee, the Delaware Trustee and the Owner
Trustee may enforce the provisions hereof as if they were parties thereto.
Except as otherwise provided in this Article IX, no other Person will have any
right or obligation hereunder. The parties hereto hereby acknowledge and consent
to the pledge of this Agreement by the Issuer to the Indenture Trustee for the
benefit of the Noteholders pursuant to the Indenture.
SECTION 9.10 Actions by Noteholders or Certificateholders. (a)
Wherever in this Agreement a provision is made that an action may be taken or a
notice, demand, or instruction given by Noteholders or Certificateholders, such
action, notice, or instruction may be taken or given by any Noteholder or
Certificateholder, as applicable, unless such provision requires a specific
percentage of Noteholders or Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent, waiver, or
other act by a Noteholder or Certificateholder shall bind such Noteholder or
Certificateholder and every subsequent holder of such Note or Certificate issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or omitted to be done by the Owner Trustee,
the Indenture Trustee or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Note or Certificate.
SECTION 9.11 Agent for Service. The agent for service of the
Seller and the Servicer in respect of this Agreement shall be Xxxxxx X. Xxxxx,
Secretary, Ford Motor Credit Company, Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000.
SECTION 9.12 No Bankruptcy Petition. The Owner Trustee, the
Indenture Trustee, the Issuer and the Servicer each covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization it will not institute against, or join any other Person in
instituting against, the Seller or the General Partner any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law. This Section
9.12 shall survive the resignation or removal of the Owner Trustee under the
Trust Agreement or the Indenture Trustee under the Indenture or the termination
of this Agreement.
SECTION 9.13 Limitation of Liability of Owner Trustee and
Indenture Trustee. (a) 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 in its capacity as Owner Trustee of the
Issuer and in no event shall The Bank of New York in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee of the
Issuer 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. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this Agreement
has been accepted by The Chase Manhattan Bank, not in its individual capacity
but solely as Indenture Trustee, and in no event shall The Chase Manhattan Bank
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
SECTION 9.14 Savings Clause. It is the intention of the Seller and
the Issuer that the transfer of the Trust Property contemplated herein
constitute an absolute transfer of the Trust Property, conveying good title to
the Trust Property from the Seller to the Issuer. However, in the event that
such transfer is deemed not to be a sale or for any reason such sale is not
effective, the Seller hereby grants to the Issuer a first priority security
interest in all of the Seller's right, title and interest in, to and under the
Trust Property, and all proceeds thereof, to secure a loan in an amount equal to
all amounts payable under the Notes and the Certificates, and in such event,
this Agreement shall constitute a security agreement under applicable law.
IN WITNESS WHEREOF, the parties have caused this Sale and
Servicing Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES TWO L.P.,
as Seller
By: FORD CREDIT AUTO RECEIVABLES TWO, INC.,
By: /s/ X.X. Xxxxxx
Name: X. X. Xxxxxx
Title: Assistant Secretary
FORD CREDIT AUTO OWNER TRUST 2000-B,
as Issuer
By: THE BANK OF NEW YORK, not in its
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
FORD MOTOR CREDIT COMPANY,
as Servicer
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Secretary
Accepted and agreed:
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
SCHEDULE A
[SCHEDULE OF RECEIVABLES]
Delivered to Indenture Trustee at Closing
SCHEDULE B-1
Location of Receivable Files
at Ford Credit Branch Offices
Akron
175 Montrose Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Albany
0 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Albuquerque
0000 Xxxxxx Xxxx., X.X.
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Amarillo
0000 X. Xxxxxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxx, XX 00000
Anchorage
0000 X Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Appleton
00 Xxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Athens
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Atlanta-North
North Park Town Center
Xxxx. 000, Xxxxx 000
0000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, XX 00000
Atlanta-South
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
Atlanta/CL
0000 Xxxxxxxxx Xxx. X
Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
Atlantic Region District Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Austin
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Baltimore
Xxxxxxxx Corporate
Center One
0000 Xxxxxxxx Xxxx.
Suite 000
Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Beaumont
0000 Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Billings
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Birmingham
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx,XX 00000
Boston-North
Xxx Xxxx Xxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
Boston-South
Southboro Place
0xx Xxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Bristol
Landmark Center-
Suite A
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Buffalo
00 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Cape Girardeau
0000-X X. Xx. Xxxxxx Xx.
Xxxx Xxxxxxxxx, XX 00000
Charleston
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 XxXxxxx Xxxx
Xxxxx Xxxxxxxxxx, XX 00000
Charlotte
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Charlotte/CL
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Chattanooga
0 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Cheyenne
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Chicago-East
Xxx Xxxxx Xxxxx
Xxxxx X
Xxxxxxx, XX 00000
Chicago-North
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Chicago-South
The Office of Waterfall Xxxx I
Suite 310
000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Chicago-West
0000 X. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Chicago/CL
000 XxXxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Cincinnati
0000 Xxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Cleveland
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000-0000
Colorado Springs
0000 Xxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Columbia
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Columbus
Metro V, Suite 470
000 Xxxxx Xxxxx X
Xxxxxx, XX 00000
Coral Springs
0000 X. Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Corpus Christi
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Xxxxxx
Xxxxxxxx Forum
Suite 600
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dallas/XX
Xxxxxxxx Forum
Suite 650
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Davenport
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Decatur
000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Denver
0000 X. Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Des Moines
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
X. Xxx Xxxxxx, XX 00000
Detroit-North
0000 X. Xxxx Xxxx Xxxx
Xxxxx 000
Xxxx, XX 00000
Detroit-West
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Detroit/CL
Xxx Xxxxxxxx Xxxx.
Xxxxx 000X
Xxxxxxxx, XX 00000
Dothan
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
El Paso
0000 Xxxxxx Xxx Xxxxxx
Xxxxx 000
Xx Xxxx, XX 00000
Eugene
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Falls Church
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
XxXxxx, XX 00000
Fargo
0000 00xx Xxx. Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Fayetteville
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Findlay
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Ft. Xxxxx
00000 Xxxxxxx Xxxxx Xx.
Xxxx Xxxxx, XX 00000
Ft. Xxxxx
Xxxxxx Xxxx Xxxxx
Xxxxx 000
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Grand Junction
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxxxx, XX 00000
Grand Rapids
0000 Xxxxxxxxxx Xxxxx XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Greensboro
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Harlingen
0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Harrisburg
0000 Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Henderson
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Honolulu
Ala Moano Pacific Center
Xxxxx 000
0000 Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Houston-North
000 X. Xxx Xxxxxxx Xxxx. X.
Xxxxx 000
Xxxxxxx, XX 00000
Houston-West
000 Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Huntington
0000 X.X. Xxxxx 00 *
Xxx, XX 00000
Indianapolis
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Jackson
000 Xxxxx Xxxxxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Jacksonville
Suite 310
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Jefferson City
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Kansas City
0000 Xxxx 000xx Xxxxxx
Xxxx. #00, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Knoxville
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxxxxxx
Xxxxxx Xxxxxx Xxxx
Xxxxx 000
000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Lansing
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Las Vegas
000 X Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxx, XX 00000
Little Rock
0000 Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Long Island
Xxx Xxxxxxx Xxxxx
0xx Xxxxx Xxxx X
Xxxxxxx, XX 00000
Louisville
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Lubbock
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Macon
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Manchester
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Memphis
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Miami
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Midland
00 Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Milwaukee
00000 X. Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Minneapolis
One Southwest Crossing
Suite 308
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Mobile
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000-0000
Xxxxxxxxx
Xxxxxxxx Xxxxx
Xxxxx 000
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
New Haven
00 Xxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
New Jersey-Central
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
New Jersey-North
00 Xxxxx Xxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxxxxx, XX 00000
New Jersey-South
00000 XxxXxxxxxxx Xx.
Xxxxx 000 Xxxx
Xx. Xxxxxx, XX 00000
New Orleans
Lakeway III
0000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxx, XX 00000
Norfolk
Greenbrier Pointe
Suite 350
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Oklahoma City
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxxxxx Xxx Xx.
Xxxxxxxx Xxxx, XX 00000
Omaha
00000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Omaha Customer Service Center
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Nashville Customer Service Center
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Orange
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orange/CL
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orlando
0000 Xxxxxxxx Xxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Pasadena
000 X. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Pensacola
00 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xx 00000
Philadelphia
Bay Colony Executive Park
Suite 100
000 X. Xxxxxxxxxx Xx.
Xxxxx, XX 00000
Philadelphia/CL
000 X. Xxxxx Xx.
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Phoenix
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Pittsburgh
Xxxxxx Xxxxx 0
000 Xxxxxxx Xxxxx
0xx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Portland, ME
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Portland, OR
00000 X.X. Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Raleigh
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Regional Opers Center
0000 Xxxxxxxx Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Richmond
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Roanoke
0000 Xxxxxx Xxxxxx Xxxx.
Xxxxx 0
Xxxxxxx, XX 00000
Sacramento
0000 Xxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Saginaw
0000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Salt Lake City
000 X. 0000 X.
Xxxxx 000
Xxxxxx, XX 00000
Santa Xxx Central Collections
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
San Antonio
000 X.X. Xxxx 000
Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
San Bernardino
0000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
San Diego
0000 Xxxxxx Xxx Xxx X.
Xxxxx 0000
Xxx Xxxxx, XX 00000
San Francisco
0000 Xxxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
San Francisco/CL
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx XX 00000
San Xxxx
0000 XxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Savannah
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Seattle
00000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Shreveport
Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
South Bay
000 X. Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
South Bend
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Spokane
000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000-0000
Springfield
0000 X. Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
St. Louis
0000 Xxxxx Xxxx Xxxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
St. Xxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Syracuse
0000 Xxxxxxxxxx Xxxx.
XxXxxx, XX 00000
Tampa
Lincoln Pointe, Suite 800
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Terre Haute
0000 X. Xxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Tulsa
0000 Xxxx 00xx Xx.
Xxxxx 000
Xxxxx, XX 00000
Tupelo
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Tyler
000 Xxxx XX Xxxx 000
Xxxxx 000
Xxxxx, XX 00000
Ventura
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Washington, D.C.
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Westchester
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Western Carolina
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Wichita
0000 Xxxx 00xx
Xxxxxxx, XX 00000
SCHEDULE C
Location of Receivable Files
at Third Party Custodians for Ford Credit
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
IKON Business Imaging Services
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
APPENDIX A
Definitions and Usage
