SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 2004-A,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Seller,
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of May 1, 2004
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
TRUST PROPERTY
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...............................................8
SECTION 2.6 Instructions; Authority to Act................................................9
SECTION 2.7 Custodian's Indemnification...................................................9
SECTION 2.8 Effective Period and Termination.............................................10
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer...........................................................10
SECTION 3.2 Collection of Receivable Payments............................................11
SECTION 3.3 Realization Upon Receivables.................................................11
SECTION 3.4 Application and Allocations of Collections...................................12
SECTION 3.5 Maintenance of Security Interests in Financed Vehicles.......................12
SECTION 3.6 Covenants of Servicer........................................................12
SECTION 3.7 Purchase of Receivables Upon Breach..........................................12
SECTION 3.8 Servicer Fee.................................................................13
SECTION 3.9 Monthly Investor Report......................................................14
SECTION 3.10 Annual Statement as to Compliance; Notice of Event of Servicing
Termination..................................................................15
SECTION 3.11 Annual Independent Certified Public Accountants' Report......................16
SECTION 3.12 Access to Certain Documentation and Information Regarding Receivables........17
SECTION 3.13 Servicer Expenses............................................................17
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts.....................................................................18
SECTION 4.2 Investment of Funds on Deposit in the Reserve Account and the
Collection Account...........................................................20
SECTION 4.3 Remittances..................................................................23
SECTION 4.4 Reserved....................................................................24
SECTION 4.5 Advances and Unreimbursable Advances.........................................24
SECTION 4.6 Additional Deposits to the Collection Account and Withdrawals from
the Reserve Account..........................................................25
SECTION 4.7 Distributions................................................................26
SECTION 4.8 Net Deposits.................................................................31
ARTICLE V
THE SELLER
SECTION 5.1 Representations and Warranties of Seller.....................................31
SECTION 5.2 Liability of Seller; Indemnities.............................................33
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 Securities....................................................36
ARTICLE VI
THE SERVICER
SECTION 6.1 Representations of Servicer..................................................37
SECTION 6.2 Indemnities of Servicer......................................................38
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of,
Servicer.....................................................................40
SECTION 6.4 Limitation on Liability of Servicer and Others...............................41
SECTION 6.5 Delegation of Duties.........................................................42
SECTION 6.6 Ford Credit Not to Resign as Servicer........................................42
SECTION 6.7 Servicer May Own Securities..................................................42
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination..............................................43
SECTION 7.2 Appointment of Successor Servicer............................................45
SECTION 7.3 Repayment of Advances........................................................46
SECTION 7.4 Notification to Noteholders and Certificateholders...........................46
SECTION 7.5 Waiver of Past Events of Servicing Termination...............................46
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables.........................................46
SECTION 8.2. Succession Upon Satisfaction and Discharge of Indenture......................47
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment....................................................................47
SECTION 9.2 Protection of Title to Trust Property........................................49
SECTION 9.3 Governing Law................................................................52
SECTION 9.4 Notices......................................................................52
SECTION 9.5 Severability of Provisions...................................................53
SECTION 9.6 Assignment...................................................................53
SECTION 9.7 Further Assurances...........................................................53
SECTION 9.8 No Waiver; Cumulative Remedies...............................................53
SECTION 9.9 Third-Party Beneficiaries....................................................54
SECTION 9.10 Actions by Noteholders or Certificateholders.................................54
SECTION 9.11 Agent for Service............................................................54
SECTION 9.12 No Bankruptcy Petition.......................................................54
SECTION 9.13 Limitation of Liability of Owner Trustee and Indenture Trustee...............55
SECTION 9.14 Confidential Information.....................................................55
SECTION 9.15 Savings Clause...............................................................56
Schedule A Schedule of Receivables........................................................SA-1
Schedule B Location of Receivable Files at Third Party Custodians for Ford
Credit .........................................................................B-1
Appendix A Definitions and Usage..........................................................AA-1
SALE AND SERVICING AGREEMENT, dated as of May 1, 2004 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 2004-A (the "Issuer"), a
Delaware statutory trust, FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware
limited liability company, 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 and related property consisting of retail installment sale contracts
secured by new and used automobiles and light duty trucks generated by Ford
Motor Credit Company and PRIMUS in the ordinary course of their business and
conveyed to the Seller;
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 are
applicable herein.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property. In consideration of
the Issuer's sale and delivery to, or upon the order of, the Seller of the
Securities in an aggregate principal amount of $1,912,000,000 and the rights to
distributions under Section 4.7, the Seller does hereby irrevocably sell,
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 Trust Property and the Reserve
Initial Deposit. The transfer, assignment and conveyance made hereunder will 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 will be deemed to have relied in
accepting the Receivables. Such representations and warranties speak as of the
Closing Date, but will 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) has
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, is
payable in U.S. dollars, has been fully and properly executed by the parties
thereto, has been purchased by the Seller from Ford Credit, which in turn has
purchased such Receivable from a Dealer, and which Receivable has been validly
assigned by such Dealer to Ford Credit and which in turn has been validly
assigned by Ford Credit to the Seller in accordance with its terms, (b) creates
or has created 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 will be
assignable by the Seller to the Issuer, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the security, (d)
provides for level monthly payments that fully amortize the Amount Financed by
maturity and yield interest at the Annual Percentage Rate, (e) provides for, in
the event that such contract is prepaid, a prepayment that fully pays the
Principal Balance, and (f) is a Simple Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables is 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 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 complied at the time it was originated or made and at the
execution of this Agreement complies 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 represents the 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 are 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 is 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 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 has been satisfied,
subordinated, or rescinded, nor has any Financed Vehicle been released from the
lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been
waived.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or threatened with respect to any
Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens
or claims have been filed for work, labor, or materials relating to a Financed
Vehicle that are 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 event
permitting acceleration under the terms of any Receivable has occurred; and no
continuing condition that with notice or the lapse of time would constitute an
event permitting acceleration under the terms of any Receivable has arisen; and
Ford Credit has not waived any of the foregoing.
(xii) Insurance. Ford Credit, in accordance with its policies
and procedures, has 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 sale,
transfer, assignment and conveyance 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 sale and transfer 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 sale and transfer thereof, the Issuer
will have good and marketable title to each Receivable, free and clear of all
Liens, encumbrances, security interests, participations and rights of others;
and the sale and transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable has been originated in,
or is 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 Securities would 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 priority perfected security interest therein,
will be made within ten days of the Closing Date.
(xvi) Priority. Other than the security interest granted to
the Issuer pursuant to this Agreement, the Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables. The Seller has not authorized the filing of and is not aware of any
financing statements against the Seller that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Issuer hereunder and by the Issuer to the
Indenture Trustee or that has been terminated.
(xvii) Chattel Paper. Each Receivable constitutes "tangible
chattel paper" as defined in the UCC.
(xviii) One Original. There is only one original executed copy
of each Receivable. The Seller, or its custodian, has possession of such
original with respect to each Receivable. Such original does not have any marks
or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than Ford Credit. All financing statements filed or
to be filed against the Seller in favor of the Issuer in connection herewith
describing the Receivables contain a statement substantially to the following
effect: "A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Secured Party/Assignee."
(xix) New and Used Vehicles. 84.32% of the aggregate Principal
Balance of the Receivables, constituting 76.37% of the number of Receivables as
of the Cutoff Date, represent vehicles financed at new vehicle rates, and the
remainder of the aggregate Principal Balance of the Receivables represent
vehicles financed at used vehicle rates.
(xx) Origination. Each Receivable has an origination date on
or after June 24, 1998 and has a scheduled maturity date not later than March
30, 2010.
(xxi) Principal Balance. Each Receivable has a current
Principal Balance of at least $250.00.
(xxii) PRIMUS. 10.04% of the aggregate Principal Balance of
the Receivables as of the Cutoff Date represent Receivables originated through
Ford Credit's PRIMUS division, and the remainder of the aggregate Principal
Balance Receivables were originated through Ford Credit (excluding its PRIMUS
division).
(xxiii) Maturity of Receivables. Each Receivable has an
original maturity of not greater than seventy-two (72) months. The percentage of
Receivables by Principal Balance with original terms greater than 60 months is
25.44%. The percentage of Receivables by Principal Balance with remaining terms
greater than 60 months is 19.46%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate of
each Receivable is between 0.00% to 29.95% (inclusive).
(xxv) Scheduled Payments. Each Receivable has a first
scheduled due date on or prior to April 30, 2004 and has had at least one
scheduled payment applied. No Receivable has a payment that is more than thirty
(30) days delinquent, as determined by the Servicer in accordance with its
policies and procedures, as of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files are
kept at one or more of the offices of the Servicer in the United States or the
offices of one of the custodians specified in Schedule B hereto.
(xxvii) No Extensions. The number of scheduled due dates will
not have been extended on or before the Cutoff Date on any Receivable.
(xxviii) Rating Agencies. The rating agencies rating the Notes
are Xxxxx'x, Standard & Poor's and Fitch and the rating agencies rating the
Class D Certificates are Standard & Poor's and Fitch.
(xxix) Agreement. The representations and warranties of the
Seller in Section 5.1 are true and correct.
SECTION 2.3 Repurchase upon Breach. The Seller, the Servicer,
the Issuer or the Owner Trustee, as the case may be, will 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 has
been cured in all material respects by the last day of the second Collection
Period following the discovery, the Indenture Trustee will enforce the
obligation of the Seller under this Section 2.3 to repurchase any Receivable
materially and adversely affected by such breach, and, if necessary, the Seller
or the Indenture Trustee will enforce the obligation of Ford Credit under the
Purchase Agreement, to repurchase any such Receivable, pursuant to Section 6.2
of the Purchase Agreement, 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 will remit the
Purchase Amount, in the manner specified in Section 4.6. 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 will be to require that the Seller 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 will
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, with
respect to each Receivable (collectively, the "Receivable Files"):
(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 will keep on file, in
accordance with its 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
will keep on file, in accordance with its policies and procedures,
relating to a Receivable, an Obligor, or a Financed Vehicle.
The Servicer hereby confirms to the Issuer and the Indenture
Trustee 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.
SECTION 2.5 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer will 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 would 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 will 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 policies and procedures
with respect to its retail installment sale contracts, the Servicer will
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 would enable the Issuer or the Indenture Trustee to
verify the accuracy of the Servicer's record keeping. The Servicer will 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 will 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 will
maintain each Receivable File at one of its offices in the United States or the
offices of one of its custodians specified in Schedule B of this Agreement, or
at such other office as specified to the Issuer and the Indenture Trustee by
written notice not later than ninety (90) days after any change in location. The
Servicer will 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 upon request. The Servicer will provide access to 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
direct, 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 will 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 will 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, has no further
need therefor.
SECTION 2.6 Instructions; Authority to Act. All instructions
from the Indenture Trustee will be in writing and signed by an Authorized
Officer of the Indenture Trustee, and the Servicer will 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 will 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 will 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 will become effective as of the Cutoff Date and will
continue in full force and effect until terminated pursuant to this Section 2.8.
If Ford Credit resigns as Servicer in accordance with the provisions of this
Agreement or if all of the rights and obligations of the Servicer 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 Note Balance of the Notes Outstanding
or, with the consent of Noteholders of Notes evidencing not less than 25% of the
Note Balance 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 will 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 will 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 will 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,
and making Advances and Unreimbursable Advances pursuant to Section 4.5. The
Servicer will follow its 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 commences a legal proceeding to
enforce a Receivable, the Owner Trustee (in the case of a Receivable other than
a Purchased Receivable) will 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 is held that the Servicer may not
enforce a Receivable on the ground that it is not a real party in interest or a
holder entitled to enforce the Receivable, the Owner Trustee will, 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 will
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, will obtain on
behalf of the Issuer and the Owner Trustee (or will cause the Owner Trustee to
obtain) 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 will 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
will make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same becomes due and will
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 last day of
the Collection Period in which the Final Scheduled Receivable Maturity Date
occurs, it will promptly purchase the Receivable in the manner provided in
Section 3.7, unless such extension was required by law or court order. 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 will use reasonable efforts, consistent with its policies
and procedures, to repossess or otherwise convert the ownership of the Financed
Vehicle securing any Receivable as to which the Servicer has determined eventual
payment in full is unlikely. The Servicer will follow such policies and
procedures as it will 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 will be subject to the provision that, in any case in which the
Financed Vehicle has suffered damage, the Servicer will not be required to
expend funds in connection with the repair or the repossession of such Financed
Vehicle unless it determines 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 Application and Allocations of Collections. The
Servicer will apply and allocate Collections received on the Receivables in
accordance with its policies and procedures. 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 will, if identified as being
made with respect to a particular item or asset, be applied to such item, and
otherwise will be allocated by Ford Credit in accordance with its policies and
procedures.
SECTION 3.5 Maintenance of Security Interests in Financed
Vehicles. The Servicer will, in accordance with its 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
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 if a
Financed Vehicle is relocated or for any other reason.
SECTION 3.6 Covenants of Servicer. The Servicer will 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, satisfaction of the
payment obligation evidenced by such Receivable, repossession, discounted
settlement, abandonment or by operation of law, in each case in accordance with
the Servicer's policies and procedures, (ii) impair the rights of the Issuer,
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 originally scheduled due dates (unless any of
the foregoing actions are required by law or court order).
SECTION 3.7 Purchase of Receivables Upon Breach. (a) The
Seller, the Servicer or the Owner Trustee, as the case may be, promptly will
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. Notice will be deemed given by
the Servicer in connection with a breach by the Servicer of the covenants under
Section 3.6(iii) or (iv) which results in a repurchase by the Servicer of any
applicable Receivables by providing the aggregate Purchase Amounts of any such
Receivables in the Monthly Investor Report in accordance with Section 3.9(xii).
Unless the breach has been cured in all material respects by the last day of the
second Collection Period following the discovery of such breach, the Servicer
will purchase any Receivable materially and adversely affected by such breach,
at the Purchase Amount as of such last day (or, at the Servicer's election, the
last day of the first Collection Period following the discovery). In
consideration of the purchase of such Receivable, the Servicer will remit the
Purchase Amount in the manner specified in Section 4.6. For purposes of this
Section 3.7, the Purchase Amount will consist in part of a release by the
Servicer of all rights of reimbursement with respect to outstanding 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 will 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 will 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 has been cured in all material respects by the last day of the second
Collection Period following the discovery, the Servicer will 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 will remit, pursuant to Section 6.2 of the Purchase Agreement, the
Purchase Amount to the Servicer and the Servicer will remit the Purchase Amount
to the Collection Account as specified in Section 4.6 hereof.
(c) With respect to all Receivables purchased pursuant to this
Section 3.7, the Issuer will 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 will be entitled to the
Servicing Fee, as provided in Section 4.7(c). In addition, the Servicer will be
entitled to (a) retain from Collections the Supplemental Servicing Fee and (b)
receive investment earnings (net of investment losses and expenses) on funds
deposited into the Trust Accounts during each Collection Period.
SECTION 3.9 Monthly Investor Report. (a) On or about the tenth
day of each calendar month, the Servicer will deliver to the Owner Trustee, the
Note Paying Agent and Certificate Paying Agent, the Indenture Trustee and the
Seller, with a copy to the Rating Agencies, a servicing report (the "Monthly
Investor Report"), certified by an Authorized Officer of the Servicer as to the
accuracy of the information therein, containing all information (including all
specific dollar amounts) necessary to make the transfers and distributions
pursuant to Sections 4.5, 4.6 and 4.7, and the following information as to the
Notes and the Certificates to the extent applicable, in each case for the
Collection Period preceding the date of such Monthly Investor Report:
(i) the amount of such distribution allocable to
principal allocable to each Class of Securities;
(ii) the amount of such distribution allocable to
interest allocable to each Class of Securities;
(iii) the amount of such distribution allocable to
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 Payment 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 the
amount paid on the prior Payment Date;
(vii) the amounts of any unpaid interest from a prior
Collection Period, with respect to each Class of Notes or the
Certificates, plus any interest thereon, to the extent permitted by
law, if any, on such Payment Date and the change in such amounts from
the preceding Payment Date;
(viii) the aggregate outstanding principal amount of
each Class of Notes and the Note Pool Factor for each Class of Notes,
the Certificate Balance of the Class D Certificates and the Certificate
Pool Factor of the Class D Certificates as of such Payment 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
Payment Date;
(x) the balance of the Reserve Account on such Payment
Date, after giving effect to distributions made on such Payment Date
and the change in such balance from the preceding Payment Date;
(xi) the amount of the aggregate Realized Losses, if
any, with respect to the related Collection Period;
(xii) the aggregate Purchase Amount of Receivables
repurchased by the Seller or purchased by the Servicer, if any, with
respect to the related Collection Period; and
(xiii) the amount of Advances, if any, on such Payment
Date.
Each amount set forth on the Payment Date statement pursuant
to clauses (i), (ii), (vii) and (ix) above will 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.
(b) To the extent required by law, the Servicer will deliver
to the Owner Trustee and the Indenture Trustee for distribution to each
Securityholder information for the preparation of the Securityholder's federal
income tax returns.
SECTION 3.10 Annual Statement as to Compliance; Notice of
Event of Servicing Termination. (a) The Servicer will deliver to the Seller, the
Owner Trustee, the Indenture Trustee and each Rating Agency on or before March
30 of each year, beginning March 30, 2005, 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 calendar year and of its
performance under this Agreement has been made under such officer's supervision
and (ii) to such officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year in all
material respects, or, if there has been a default in the fulfillment of any
such obligation in any material respect, specifying each such default known to
such officer and the nature and status of such default; provided that if the
Issuer is not required to file periodic reports under the Securities Exchange
Act of 1934, as amended, or otherwise required by law to file an Officer's
Certificate of the Servicer as to compliance, such Officer's Certificate may be
delivered on or before April 30 of each calendar year.
Any Noteholder or Person certifying that it is a Note Owner may obtain a copy of
the certificate by sending a request to the Indenture Trustee at its Corporate
Trust Office.
(b) The Servicer will 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 will 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(a)(ii).
(c) To the extent directed by the Administrator, the
Servicer shall prepare, execute and deliver all certificates or other documents
required to be delivered by the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002
or the rules and regulations promulgated pursuant thereto, for so long as such
laws, rules and regulations are in effect.
SECTION 3.11 Annual Independent Certified Public Accountants'
Report. The Servicer will 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 March 30 of each year beginning March 30, 2005 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 duty truck loans serviced
for others that such firm is required to report under the Program; provided that
if the Issuer is not required to file periodic reports under the Securities
Exchange Act of 1934, as amended, or otherwise required by law to file such
report, the firm may deliver such report on or before April 30 of each calendar
year.
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.
A copy of the report referred to in this 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.
SECTION 3.12 Access to Certain Documentation and Information
Regarding Receivables. The Servicer will provide to the Certificateholders, the
Indenture Trustee and the Noteholders access to the Receivable Files in such
cases where the Indenture Trustee, the Noteholders or Certificateholders are
required by applicable statutes or regulations to review such documentation.
Access will 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 will 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 will not constitute a breach of this Section 3.12. The
Servicer will 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 will be required
to pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the Owner 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) Collection Account. The Servicer will, prior to the
Closing Date, establish and maintain a segregated trust account in the
name "The Bank of New York as Indenture Trustee, as secured party for
Ford Credit Auto Owner Trust 2004-A", at a Qualified Institution or
Qualified Trust Institution (which will initially be the corporate
trust department of The Bank of New York), that will be designated as
the "Collection Account". Initially, the Collection Account will be
account number 879377 and will include any successor or replacement
accounts thereto. The Collection Account will 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 hereof. The Servicer may direct the Indenture Trustee to
withdraw from the Collection Account and pay to the Servicer amounts
received from or on behalf of Obligors on the Receivables that do not
constitute Available Collections for any Collection Period or that were
deposited to the Collection Account in error. The Collection Account
and all amounts, securities, investments, financial assets and other
property deposited in or credited to the Collection Account will 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
Trust and as part of the Trust Property and all deposits to and
withdrawals therefrom will be made subject to the terms hereof.
(b) Principal Distribution Account. The Servicer will, prior
to the Closing Date, establish and maintain a segregated subaccount
within the Collection Account at the bank or trust company then
maintaining the Collection Account, which subaccount will be designated
as the "Principal Distribution Account". The Principal Distribution
Account is established and maintained solely for administrative
purposes.
(c) Certificate Distribution Accounts. The Servicer will,
prior to the Closing Date, establish and maintain two segregated trust
accounts, each in the name "Wachovia Bank of Delaware, National
Association as Owner Trustee" at a Qualified Institution or Qualified
Trust Institution (initially the corporate trust department of Wachovia
Bank of Delaware, National Association), that will be designated as the
"Certificate Interest Distribution Account" and the "Certificate
Principal Distribution Account", respectively. Each Certificate
Distribution Account will 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 will be held by the Owner Trustee as part of the Trust
Property and will be applied as provided in this Agreement.
(d)(i) Reserve Account. The Seller will, prior to the Closing
Date, establish and maintain an account in the name "The Bank of New
York as Indenture Trustee, as secured party for Ford Credit Auto Owner
Trust 2004-A" at a Qualified Institution or Qualified Trust Institution
which will initially be The Bank of New York, that will be designated
as the "Reserve Account" (and together with the Collection Account,
including the Principal Distribution Account, the "Trust Accounts" and
together with the Certificate Distribution Accounts, the "2004-A Bank
Accounts"). Initially the Reserve Account will be account number 879378
and will include any successor or replacement accounts thereto. The
Reserve Account will 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
Reserve Account subject to the terms hereof. The Reserve Account and
all amounts, securities, investments, financial assets and other
property deposited in or credited to the Reserve Account will 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 therefrom will be made subject to the terms hereof. The
Seller will be permitted to sell, transfer, convey or assign in any
manner its rights in the Reserve Account under this Section 4.1(d),
together with its rights to receive amounts under Section 4.7(c)(xi) of
this Agreement and Sections 5.4(b)(xiv) and 8.2(c)(xi) of the
Indenture, provided, that each of the following is satisfied:
(1) the Rating Agency Confirmation has been obtained with
respect to such action;
(2) such action will 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
(3) 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.
(ii) 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, the Indenture Trustee will distribute
any remaining funds on deposit in the Reserve Account to the Seller.
(e) Compliance. Each of the 2004-A Bank Accounts will be
established and maintained at a Qualified Institution or Qualified
Trust Institution pursuant to an account agreement that specifies New
York law as the governing law. The Servicer, with respect to the
Collection Account, and the Seller, with respect to the Reserve
Account, will ensure that the account agreement establishing the
Collection Account and the Reserve Account, respectively, requires the
Qualified Institution or Qualified Trust Institution maintaining such
account to comply with entitlement orders (as defined in Article 8 of
the UCC) originated by the Indenture Trustee without further consent of
the Issuer for so long as the Notes are outstanding and to act as a
securities intermediary in accordance with the terms of the UCC. All
deposits to and withdrawals from the 2004-A Bank Accounts will be made
only upon the terms and conditions of the Basic Documents.
(f) Maintenance of Accounts. If at any time an institution
maintaining one of the 2004-A Bank Accounts ceases to be a Qualified
Institution or Qualified Trust Institution, the Servicer, with respect
to the Collection Account, including the Principal Distribution Account
and the Certificate Distribution Accounts, and the Seller, with respect
to the Reserve Account, will, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, within ten (10) Business Days (or
such longer period not to exceed thirty (30) calendar days as to which
each Rating Agency may consent), move such 2004-A Bank Account to a
Qualified Institution or Qualified Trust Institution.
SECTION 4.2 Investment of Funds on Deposit in the Reserve Account and
the Collection Account.
(a) On the Closing Date, the Seller will deposit the Reserve
Initial Deposit into the Reserve Account from the net proceeds of the sale of
the Securities. For so long as no Default or Event of Default has occurred and
is continuing, funds on deposit in the Reserve Account will, to the extent
permitted by applicable law, rules and regulations, be invested in Permitted
Investments by the applicable Qualified Institution or Qualified Trust
Institution maintaining such account as directed by the Seller, by any Person
appointed by the Seller, or by such Qualified Institution or Qualified Trust
Institution in accordance with Section 4.2(d), in each case, without requiring
any action from the Indenture Trustee. Funds on deposit in the Reserve Account
may be invested in Permitted Investments that mature not later than the Business
Day preceding the next Payment Date, and such Permitted Investments will be held
to maturity (except with respect to the sale or liquidation of the Indenture
Trust Estate as provided in Section 5.4 of the Indenture); provided, however,
that upon receipt of Rating Agency Confirmation, funds on deposit in the Reserve
Account may be invested in Permitted Investments that will not mature prior to
the next Payment Date. All interest and other income (net of losses and
investment expenses) on funds on deposit in the Reserve Account will be
deposited into the Reserve Account. In no event will the Servicer or the
Qualified Institution or Qualified Trust Institution maintaining such account be
liable for the selection of Permitted Investments or for losses incurred thereon
(other than in its capacity as obligor thereon, if applicable). The Servicer
hereby directs the Indenture Trustee to withdraw all interest and other income
(net of losses and investment expenses) on funds on deposit in the Reserve
Account from the Reserve Account and pay such amounts to the Servicer on each
Payment Date.
(b) For so long as no Default or Event of Default has occurred
and is continuing, funds on deposit held in the Collection Account will, to the
extent permitted by applicable law, rules and regulations, be invested, as
directed in writing by the Servicer, by the Qualified Institution or Qualified
Trust Institution maintaining such account in Permitted Investments that mature
not later than the Business Day immediately prior to the Payment Date for the
Collection Period to which such amounts relate and such Permitted Investments
will be held to maturity (except with respect to the sale or liquidation of the
Indenture Trust Estate as provided in Section 5.4 of the Indenture). The
Servicer hereby directs the Indenture Trustee to withdraw all interest and other
income (net of losses and investment expenses) on funds on deposit in the
Collection Account and pay such amounts to the Servicer on each Payment Date.
(c) Neither the Seller, with respect to the Reserve Account,
nor the Servicer, with respect to the Collection Account, will direct the
Qualified Institution or Qualified Trust Institution maintaining such account to
make any investment of any funds or to sell any investment held in the Reserve
Account or the Collection Account unless the security interest Granted and
perfected in the Reserve Account and the Collection 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.
In connection with any direction by the Seller or the Servicer, as applicable,
to make any such investment or sale, if requested by the Indenture Trustee
(acting at the direction of not less than 50% of the Controlling Note Class),
the Seller or the Servicer, as applicable, will deliver an Opinion of Counsel to
the Indenture Trustee, to such effect.
(d) If (i) the Seller or the Servicer, as applicable, has
failed to give investment directions for any funds on deposit in the Reserve
Account or the Collection Account to the Qualified Institution or Qualified
Trust Institution maintaining such accounts 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 Payment Date,
(ii) a Default or Event of Default has occurred and is continuing with respect
to the Notes but the Notes have not been declared due and payable pursuant to
Section 5.2 of the Indenture (notice of which will be provided to the Qualified
Institution or Qualified Trust Institution maintaining the Reserve Account and
the Collection Account by the Indenture Trustee) or (iii) the Notes have been
declared due and payable following an Event of Default and amounts collected or
received 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 (notice
of which will be provided to the Qualified Institution or Qualified Trust
Institution maintaining the Reserve Account and the Collection Account by the
Indenture Trustee), the Qualified Institution or Qualified Trust Institution
will, to the fullest extent practicable, invest and reinvest funds in the
Reserve Account and the Collection Account in one or more Permitted Investments
described in clause (b) of the definition thereof.
(e) With respect to funds on deposit in the Reserve Account
and the Collection Account:
(1) any such funds or property in such accounts that is
a "financial asset" as defined in Section 8-102(a)(9)
of the UCC will be physically delivered to, or credited
to an account in the name of, the Qualified Institution
or Qualified Trust Institution maintaining such 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
(2) any funds or property that are held in deposit
accounts will 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 will be subject to the exclusive
custody and control of the Indenture Trustee and the
Indenture Trustee has sole signature authority with
respect thereto.
(f) Except for any deposit accounts specified in clause (e)(2)
above, the funds on deposit in the Reserve Account and the Collection Account
will only be invested in securities or in other assets which the Qualified
Institution or Qualified Trust Institution maintaining such accounts agrees to
treat as "financial assets" as defined in Section 8-102(a)(9) of the UCC.
SECTION 4.3 Remittances.
(a) Ford Credit will remit Collections it receives on the
Receivables to the Collection Account within two Business Days of posting such
Collections to the Obligors' accounts in accordance with Ford Credit's policies
and procedures, unless Ford Credit satisfies the minimum rating requirement
described below. For this purpose, Collections does not include Recoveries and
amounts that constitute the Supplemental Servicing Fee. Ford Credit will remit
Recoveries to the Collection Account no later than the Business Day preceding
each Payment Date or, with Rating Agency Confirmation, each Payment Date. Ford
Credit will be entitled to retain amounts constituting the Supplemental
Servicing Fee from Collections.
If Ford Credit's short term unsecured debt is rated at least
"P-1" by Xxxxx'x, "A-1" by Standard & Poor's and "F1" by Fitch (this rating
requirement, the "Monthly Remittance Condition"), Ford Credit may remit
Collections on the Business Day preceding each Payment Date or, with Rating
Agency Confirmation, on each Payment Date.
At any time that Ford Credit's rating from one or more of the
Rating Agencies does not satisfy the Monthly Remittance Condition, Ford Credit
may remit Collections less frequently than the second Business Day after posting
of such Collections to the Obligors' accounts, but not later than the related
Payment Date, if it obtains Rating Agency Confirmation from that Rating Agency
or Rating Agencies. Pending deposit into the Collection Account, amounts
collected by the Servicer may be used by the Servicer at its own risk and for
its own benefit and will not be segregated from its own funds. Ford Credit will
remit Purchase Amounts on the Business Day preceding each Payment Date or, with
Rating Agency Confirmation, on each Payment Date.
If Ford Credit is not the Servicer or an Event of Servicing
Termination occurs, the Servicer will be required to remit Collections within
two Business Days of receipt.
(b) The Issuer and the Indenture Trustee will not be deemed to
have knowledge of any failure to satisfy the Monthly Remittance Condition or the
occurrence of any Event of Servicing Termination that would require remittances
to the Collection Account within two Business Days of receipt unless the Issuer
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 Note Balance 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 has
actual knowledge of such event or circumstance.
SECTION 4.4 Reserved.
SECTION 4.5 Advances and Unreimbursable Advances. (a)(i)
Advance by Servicer for early payment on the Receivables. For each Collection
Period, the Servicer will advance an amount equal to the excess, if any, of 30
days of interest on a Receivable over the amount of interest actually received
on the Receivable during that Collection Period (such amount, a "Simple Interest
Advance"), to the extent the Servicer, in its sole discretion, expects to recoup
the Simple Interest Advance from payments by or on behalf of the related Obligor
or any related Liquidation Proceeds. If the Servicer subsequently determines
that a Simple Interest Advance will not be recoverable from these sources, the
Servicer will be entitled to recoup the Simple Interest Advance from any
Collections (excluding amounts constituting the Supplemental Servicing Fee) made
on the other Receivables in the Trust. The Servicer will be entitled to retain
all payments of interest on the Receivables in excess of 30 days of interest.
(ii) No Advances of Principal on the Receivables. The
Servicer will not make any advance in respect of principal of the Receivables.
(b) Unreimbursable Advance by Servicer for Full Prepayment on
a Receivable. If an Obligor prepays a Receivable in full, and 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 will make an unreimbursable
advance equal to the excess of (i) the amount of interest that the Obligor would
have been required to pay on the scheduled due date during the month of
prepayment if such Obligor had not prepaid the Receivable over (ii) the amount
of interest that the Obligor is required to pay during the month of prepayment
(an "Unreimbursable Advance").
(c) Mechanics. The Servicer will deposit Simple Interest
Advances and Unreimbursable Advances into the Collection Account on the Business
Day preceding the Payment Date or, with Rating Agency Confirmation, on such
Payment Date. Outstanding Advances will be repaid in accordance with Section
4.7(a). The Servicer may make such deposit net of reimbursement for Simple
Interest Advances made with respect to prior Collection Periods.
(d) Payment of Advances from the Reserve Account. If the
Servicer determines on or before any Determination Date that it is required to
make an Advance or an Unreimbursable Advance and does not do so from its own
funds, the Servicer will promptly instruct the Indenture Trustee in writing to
withdraw funds, in an amount specified by the Servicer from funds in the Reserve
Account and deposit them in the Collection Account to cover any shortfall. Such
payment will be deemed to have been made by the Servicer pursuant to this
Section 4.5 for purposes of making distributions pursuant to this Agreement, but
will not otherwise satisfy the Servicer's obligation to deliver the amount of
the Advances and Unreimbursable Advances to the Indenture Trustee. The Servicer
will replace any funds in the Reserve Account so used within two Business Days
by depositing such funds directly into the Reserve Account.
SECTION 4.6 Additional Deposits to the Collection Account and
Withdrawals from the Reserve Account. (a) The Servicer and the Seller will
deposit into the Collection Account the aggregate Purchase Amounts with respect
to Purchased Receivables and the Servicer will deposit into the Collection
Account all amounts to be paid under Section 8.1. All such deposits with respect
to a Collection Period will be made, in immediately available funds, on the
Business Day preceding the Payment Date (or, with Rating Agency Confirmation, on
the Payment Date) related to such Collection Period.
(b) The Indenture Trustee will, on the Payment Date following
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 Section 4.5(d),
(iii) third, in an amount equal to the amount (if
positive) calculated by the Servicer pursuant to Section 4.7(b)(ii),
(iv) fourth, in an amount equal to the amount (if
positive) calculated by the Servicer pursuant to the Section
4.7(b)(iii), and
(v) fifth in an amount equal to the amount (if
positive) calculated by the Servicer pursuant to the Section
4.7(b)(iv), and, in each case, will deposit such funds in the
Collection Account.
SECTION 4.7 Distributions. (a) On each Payment Date, the
Servicer will instruct the Indenture Trustee to withdraw from the Collection
Account, in immediately available funds, repayment of outstanding Advances
pursuant to Section 4.5(a), in the amounts set forth in the Monthly Investor
Report for such Payment Date prior to the distributions set forth in Section
4.7(c). Pursuant to Section 4.8, Ford Credit may net such amounts from its
remittances pursuant to Sections 4.3(a) and 4.5(c).
(b) Prior to each Payment Date, the Servicer will on or before
each Determination Date calculate:
(i) the Available Collections, the Reserve Account
Release Amount, the Available Funds, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods, if any, the Accrued Class
A Note Interest, the First Priority Principal Distribution Amount, the
Accrued Class B Note Interest, the Second Priority Principal
Distribution Amount, the Accrued Class C Note Interest, the Third
Priority Principal Distribution Amount, the Accrued Class D Certificate
Interest and the Regular Principal Distribution Amount;
(ii) the excess, if any, of the Total Required Payment
over the Available Funds;
(iii) if such Determination Date is the Determination
Date immediately preceding the Final Scheduled Payment Date with
respect to any Class of Notes or the Class D Certificates, the excess,
if any, of (x) the amount required to pay such Class of Notes or the
Class D Certificates in full in accordance with the priorities set
forth in Sections 4.7(c) and (d), over (y) the sum of the Available
Funds plus the amount calculated in accordance with clause (ii) above;
and
(iv) (x) the sum of the Available Funds plus the
amounts calculated in accordance with Section 4.7(b) (ii) and
(iii) plus the amount remaining on deposit in the Reserve Account after
subtraction of the amounts calculated in Section 4.7(b) (ii) and (iii), and
(y) the amount required to pay the Servicing Fee and principal and interest of
each Class of Notes and the Class D Certificates in full in accordance with the
priorities set forth in Sections 4.7(c) and (d).
(c) On each Payment Date, the Servicer will instruct the
Indenture Trustee (based on the information contained in the Monthly Investor
Report 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 funds on deposit in the
Collection Account with respect to the Collection Period preceding such Payment
Date (including funds, if any, 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 Noteholders of the Class A Notes,
the Accrued Class A Note Interest; provided, that if there are not
sufficient funds available to pay the entire amount of the Accrued
Class A Note Interest, the amounts available will be applied to the
payment of such interest on the Class A Notes on a pro rata basis in
accordance with the aggregate Outstanding principal balances of the
Class A Notes;
(iii) third, to the Principal Distribution Account, the
First Priority Principal Distribution Amount; (iv) fourth, 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 will be applied to the payment of such interest on the Class
B Notes on a pro rata basis;
(v) fifth, to the Principal Distribution Account, the
Second Priority Principal Distribution Amount, if any;
(vi) sixth, to the Noteholders of Class C Notes, the
Accrued Class C Note Interest; provided, that if there are not
sufficient funds available to pay the entire amount of the Accrued
Class C Note Interest, the amounts available will be applied to the
payment of such interest on the Class C Notes on a pro rata basis;
(vii) seventh, to the Principal Distribution Account,
the Third Priority Principal Distribution Amount, if any;
(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 bring 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 Payment 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 that has resulted in an acceleration of the Notes (including
the occurrence of such an Event of Default following the occurrence of
an Event of Default specified in Section 5.1(iii) of the Indenture that
has resulted in an acceleration of the Notes), the Servicer will
instruct the Indenture Trustee to transfer the funds on deposit in the
Collection Account remaining after the distribution of amounts pursuant
to Section 4.7(c)(i) and (ii) above to the Principal Distribution
Account to the extent necessary to reduce the principal amount of all
the Class A Notes to zero, and then after payment of amounts pursuant
to Section 4.7(c)(iv) above, to the Principal Distribution Account to
the extent necessary to reduce the principal amount of all the Class B
Notes to zero, and then after payment of amounts pursuant to Section
4.7(c)(vi) above, to the Principal Distribution Account to the extent
necessary to reduce the principal amount of all the Class C Notes to
zero,
(B) following the occurrence and during the continuation of an Event of
Default specified in Section 5.1(iii) of the Indenture that has
resulted in an acceleration of the Notes, the Servicer will instruct
the Indenture Trustee to transfer the funds on deposit in the
Collection Account remaining after the distribution of amounts pursuant
to Section 4.7(c) (i), (ii), (iii), (iv), (v) and (vi) 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 Payment Date, the Servicer will instruct the
Indenture Trustee (based on the information contained in the Monthly Investor
Report delivered on or before the related Determination Date pursuant to Section
3.9), to withdraw the funds on deposit in the Principal Distribution Account
with respect to the Collection Period preceding such Payment Date and make
distributions and payments in the following order of priority:
(i) 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; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-1 Notes in full, the amounts available will be
applied to the payment of principal on the Class A-1 Notes on a pro
rata basis;
(ii) second, to the Noteholders of the Class A-1A Notes
in reduction of principal until the principal amount of the Outstanding
Class A-1A Notes has been paid in full; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-1A Notes in full, the amounts available will be
applied to the payment of principal on the Class A-1A Notes on a pro
rata basis;
(iii) third, 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; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-2 Notes in full, the amounts available will be
applied to the payment of principal on the Class A-2 Notes on a pro
rata basis;
(iv) fourth, 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; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-3 Notes in full, the amounts available will be
applied to the payment of principal on the Class A-3 Notes on a pro
rata basis;
(v) fifth, 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; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-4 Notes in full, the amounts available will be
applied to the payment of principal on the Class A-4 Notes on a pro
rata basis;
(vi) sixth, to the Noteholders of the Class B Notes in
reduction of principal until the principal amount of the Outstanding
Class B Notes has been paid in full; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class B Notes in full, the amounts available will be
applied to the payment of principal on the Class B Notes on a pro rata
basis;
(vii) seventh, to the Noteholders of the Class C Notes
in reduction of principal until the principal amount of the Outstanding
Class C Notes has been paid in full; provided, that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class C Notes in full, the amounts available will be
applied to the payment of principal on the Class C Notes on a pro rata
basis;
(viii) eighth, to the Certificate Principal
Distribution Account, in reduction of the Certificate Balance of the
Class D Certificates, until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(ix) ninth, to the Seller, any funds remaining on
deposit in the Principal Distribution Account.
SECTION 4.8 Net Deposits. Ford Credit may make the remittances
pursuant to Sections 4.3(a) and 4.5(c), net of Servicing Fees to be distributed
to Ford Credit pursuant to Section 4.7(c). Nonetheless, the Servicer will
account for all of the above described remittances and distributions in the
Monthly Investor Report as if the amounts were deposited and/or transferred
separately.
ARTICLE V
THE SELLER
SECTION 5.1 Representations and Warranties of Seller. The
Seller makes the following representations and warranties on which the Issuer
will be deemed to have relied in acquiring the Trust Property. The
representations and warranties speak as of the execution and delivery of this
Agreement and will 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 has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its activities as such properties are
currently owned and such activities are presently conducted, and had at all
relevant times, and will have, power, authority and legal right to acquire, own
and sell the Receivables.
(b) Due Qualification. The Seller is duly qualified as a
foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its activities requires such qualifications.
(c) Power and Authority. The Seller has 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 respective terms. The Seller has 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 has been duly authorized and this Agreement and
the other Basic Documents to which it is a party have been executed and
delivered by the Seller by all necessary action.
(d) Valid Conveyance; Binding Obligation. This Agreement
evidences a valid sale, 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 respective 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 Formation or Limited Liability Company 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 or
the Securities, (ii) seeking to prevent the issuance of the Securities 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 would reasonably be expected to 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 or the Securities, or (iv) relating to the Seller that would
reasonably be expected to (A) affect the treatment of the Notes as indebtedness
for U.S. federal income or Applicable Tax State income or franchise tax
purposes, (B) be deemed to cause a taxable exchange of the Notes for U.S.
federal income tax purposes or (C) cause the Issuer to be treated as an
association or publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes or (D) cause Issuer to incur Michigan Single
Business Tax liability.
(g) Valid Security Interest. This Agreement creates a valid
and continuing security interest (as defined in the applicable UCC) in the
Receivables, in favor of the Issuer which security interest is prior to all
other Liens and is enforceable as such as against all other creditors of and
purchasers from the Seller.
SECTION 5.2 Liability of Seller; Indemnities. The Seller will
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 will 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 Securities, 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 will 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 Securities.
(c) The Seller will 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, is 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, is 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
arises 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 arises from the breach by the Indenture Trustee of any
of its representations and warranties set forth in the Indenture.
(d) The Seller will pay any and all taxes levied or assessed
upon all or any part of the Trust Property.
(e) The Seller will defend, indemnify, and hold harmless the
Issuer from and against any and all costs, expenses, losses, damages, claims and
liabilities, arising out of or resulting from the failure of a Receivable to be
originated in compliance with all requirements of law and for any breach of any
of the Seller's representations and warranties as set forth in Section 2.2,
provided, that any indemnification amounts owed pursuant to this Section 5.2
with respect to a Receivable will give effect to and not be duplicative of the
Purchase Amount paid by the Seller pursuant to Section 2.3 hereof.
(f) Indemnification under this Section 5.2 will survive the
resignation or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement and will include, without limitation, reasonable
fees and expenses of counsel and expenses of litigation. If the Seller has made
any indemnity payments pursuant to this Section 5.2 and the Person to or on
behalf of whom such payments are made thereafter collects any of such amounts
from others, such Person will promptly repay such amounts to the Seller, without
interest.
(g) The Seller's obligations under this Section 5.2 are
obligations solely of the Seller and will not constitute a claim against the
Seller to the extent that the Seller does not have funds sufficient to make
payment of such obligations. In furtherance of and not in derogation of the
foregoing, the Issuer, the Servicer, the Indenture Trustee and the Owner
Trustee, by entering into or accepting this Agreement, acknowledge and agree
that they have no right, title or interest in or to the Other Assets of the
Seller. To the extent that, notwithstanding the preceding sentence, the Issuer,
Servicer, Indenture Trustee or Owner Trustee either (i) asserts an interest or
claim to, or benefit from, Other Assets, or (ii) is deemed to have any such
interest, claim to, or benefit in or from Other Assets, whether by operation of
law, legal process, pursuant to applicable provisions of insolvency laws or
otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any
successor provision having similar effect under the Bankruptcy Code), then such
Issuer, Servicer, Indenture Trustee or Owner Trustee further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is and
will be expressly subordinated to the indefeasible payment in full of the other
obligations and liabilities, which, under the terms of the relevant documents
relating to the securitization or conveyance of such Other Assets, are entitled
to be paid from, entitled to the benefits of, or otherwise secured by such Other
Assets (whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to a priority of distributions or application
under applicable law, including insolvency laws, and whether or not asserted
against the Seller), including the payment of post-petition interest on such
other obligations and liabilities. This subordination agreement will be deemed a
subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. The Issuer, Servicer, Indenture Trustee and Owner Trustee each further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 5.2(g) and the terms of this Section 5.2(g) may be enforced by an
action for specific performance. The provisions of this Section 5.2(g) will be
for the third party benefit of those entitled to rely thereon and will survive
the termination of this Agreement.
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 is a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock or voting power and 50% or more of the
economic equity 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 has 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 has 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 is necessary to preserve and protect
such interest. The Seller will 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) of
this Section 5.3 will be conditions to the consummation of the transactions
referred to in clauses (i), (ii) or (iii) of this Section 5.3.
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 will not be under any obligation to appear in, prosecute, or defend
any legal action that is not 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 Securities. The Seller, and any
Affiliate of the Seller, may in its individual or any other capacity become the
owner or pledgee of Securities 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, Securities so owned by or pledged to the Seller or any
such Affiliate will 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 Securities.
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 will 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 has been duly
organized and is 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 in each jurisdiction in the United States
of America in which the conduct of its business or the ownership of its
properties requires such qualifications, and had at all relevant times, and has,
the 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 is duly qualified to do
business as a foreign corporation in good standing, and has 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) require such qualifications.
(c) Power and Authority. The Servicer has 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 respective terms, and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which it is a party 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 respective 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 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 (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
is 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 or
the Securities, (ii) seeking to prevent the issuance of the Securities 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 would reasonably be expected to 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 or the Securities, or (iv) relating to the Servicer that would
reasonably be expected to (A) affect the treatment of the Notes as indebtedness
for U.S. federal income or Applicable Tax State income or franchise tax purposes
(B) be deemed to cause a taxable exchange of the Notes for U.S. federal income
tax purposes (C) cause the Issuer to be treated as an association or publicly
traded partnership taxable as a corporation for U.S. federal income tax purposes
or (D) cause the Issuer to incur Michigan Single Business Tax liability.
SECTION 6.2 Indemnities of Servicer. The Servicer will 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 will defend, indemnify and hold harmless the
Issuer, the Owner 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 will 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 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 Securities, 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 will indemnify, defend and hold harmless the
Issuer, the Owner 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 will indemnify, defend, and hold harmless the
Owner 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) in the
case of the Owner Trustee, is 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, is due to the willful misfeasance, bad faith, or
negligence (except for errors in judgment) of the Indenture Trustee; (ii) in the
case of the Owner Trustee, arises from the breach by the Owner Trustee of any of
its representations or warranties set forth in Section 7.3 of the Trust
Agreement, (iii) in the case of the Indenture Trustee, arises from the breach by
the Indenture Trustee of any of its representations or warranties set forth in
the Indenture; or (iv) in the case of the Indenture Trustee, arises out of or is
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 will 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, will 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 or the Indenture Trustee and will include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer has made any indemnity payments pursuant to this Section 6.2 and the
Person to or on behalf of whom such payments are made thereafter collects any of
such amounts from others, such Person will 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 is a party, (iii) succeeding to the business of the Servicer,
or (iv) so long as Ford Credit acts as Servicer, any company or other business
entity of which Ford Motor Company owns, directly or indirectly, more than 50%
of the voting stock or voting power and 50% or more of the economic equity,
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 has 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 has 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 is necessary to
preserve and protect such interests. The Servicer will 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) of this Section 6.3 will be conditions to the consummation of the
transactions referred to in clauses (i), (ii), or (iii) this Section 6.3.
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 will 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
will 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 will
not be under any obligation to appear in, prosecute, or defend any legal action
that is not 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
will 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 Ford Motor
Company or any company or other business entity of which Ford Motor Company
owns, directly or indirectly, more than 50% of the voting stock or voting power
and 50% or more of the economic equity. The Servicer may at any time perform
specific duties as servicer under the Agreement through sub-contractors;
provided, that no such delegation or subcontracting will relieve the Servicer of
its responsibilities with respect to such duties as to which the Servicer will
remain primarily responsible with respect thereto and the Servicer will 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 will 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 is no
longer permissible under applicable law. Notice of any such determination
permitting the resignation of Ford Credit will be communicated to the Owner
Trustee and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, will be confirmed in writing at the earliest
practicable time) and any such determination will 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 will become
effective until the Indenture Trustee or a Successor Servicer has (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, or
replaced Ford Credit with a successor as, the Administrator under the
Administration Agreement pursuant to Section 9 thereof.
SECTION 6.7 Servicer May Own Securities. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner or pledgee of Securities 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, Securities so owned by or pledged to the Servicer
or such Affiliate will have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority or distinction as
among all of the Securities.
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 Securities and this
Agreement that continues 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 Authorized
Officer of the Servicer or by 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 Securities or in this Agreement, which failure (a) materially
and adversely affects the rights of Noteholders or Certificateholders
and (b) continues unremedied for a period of ninety (90) days after the
date on which written notice of such failure, requiring the same to be
remedied, has 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 Note
Balance 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
admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable
insolvency or reorganization statute, makes an assignment for the
benefit of its creditors, or voluntary suspends payment of its
obligations or become insolvent;
then the Indenture Trustee will promptly notify each Rating Agency, and in each
and every case, so long as an Event of Servicing Termination has not been
remedied, either the Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the Note Balance 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 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 in either case 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 Securities or the Trust Property or otherwise, will pass to and
be vested in the Indenture Trustee or such Successor Servicer as may be
appointed under Section 7.2. In such event, 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 will 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 are at the time held by the predecessor
Servicer for deposit, or will 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 will 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 will 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 is
legally unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. If the Servicer resigns or is terminated
hereunder, the Issuer will appoint a Successor Servicer, and the Successor
Servicer will 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). If a Successor Servicer has not been appointed at the time when the
predecessor Servicer ceases to act as Servicer in accordance with this Section
7.2, the Indenture Trustee without further action will automatically be
appointed the Successor Servicer. Notwithstanding the above, the Indenture
Trustee, if it is legally unable so to act, will 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 will include the
servicing of automotive receivables, as the successor to the Servicer under this
Agreement.
(b) Upon appointment, the Successor Servicer will be the
successor in all respects to the predecessor Servicer and will 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 will agree;
provided, however, that no such compensation will be in excess of the amount
paid to the predecessor Servicer under this Agreement. The Indenture Trustee and
such Successor Servicer will take such action, consistent with this Agreement,
as will be necessary to effectuate any such succession.
SECTION 7.3 Repayment of Advances. The predecessor Servicer
will be entitled to receive, to the extent of available funds, reimbursement for
outstanding Advances pursuant to Section 4.5, in the manner specified in Section
4.7(a), with respect to all 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 will give
prompt written notice thereof to Noteholders, and the Owner Trustee will 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 Note Balance
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 or either
Certificate Distribution Account in accordance with this Agreement. Upon any
such waiver of a past Event of Servicing Termination, such Event of Servicing
Termination will cease to exist, and will be deemed to have been remedied for
every purpose of this Agreement. No such waiver will extend to any subsequent or
other event or impair any right consequent thereon. The Issuer will provide
written notice of any such waiver to the Rating Agencies.
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 is equal to or less
than the Optional Purchase Percentage, the Servicer has the option to purchase
the Trust Property (other than the amounts on deposit in or invested in
Permitted Investments maturing on or before the next Payment Date in the 2004-A
Bank Accounts). To exercise such option, the Servicer will notify the Indenture
Trustee, the Owner Trustee and the Rating Agencies and will deposit into the
Collection Account an amount equal to the aggregate Purchase Amount for the
Receivables pursuant to Section 4.6, and will succeed to all interests in and to
the Trust Property. Notwithstanding the foregoing, the Servicer will 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 Securities and all accrued
but unpaid interest (including any overdue interest) thereon after giving effect
to the priorities in Section 4.7(c). The amount deposited in the Collection
Account pursuant to this Section 8.1 will be used on the next Payment 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 Collection Account in accordance with
Section 4.7 and making withdrawals from the Reserve Account in accordance with
Section 4.1(d) and Section 4.6(b).
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 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
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 will 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; provided,
further, that such action will not, as evidenced by an Opinion of Counsel, (A)
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) affect
the treatment of the Notes as indebtedness for U.S. federal income or Applicable
Tax State income or franchise tax purposes or (C) be deemed to cause a taxable
exchange of the Notes for U.S. federal income or Applicable Tax State income or
franchise tax purposes.
(b) This Agreement may also be amended from time to time by
the Seller, the Servicer and the Issuer, with the consent (i) of the Owner
Trustee to the extent that its rights or obligations may be affected by such
amendment (which consent may not be unreasonably withheld), (ii) the Indenture
Trustee, to the extent that its rights or obligations would be affected by such
amendment, (iii) the Noteholders of Notes evidencing not less than a majority of
the Note Balance of each Class of the Notes and (iv) 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 will 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 may (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 are required to be made on any Note or Certificate or change
any Note Interest Rate or any Certificate Rate or, without receipt of Rating
Agency Confirmation, 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; provided, further, that such action will 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 will 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 will furnish written notification of the substance of
such amendment or consent to each Certificateholder, 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 will 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 will be sufficient if such consent approves 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 will 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 will 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 will
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 will 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 will 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 will 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. 9-506 of the UCC, unless it has 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 has promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Seller and the Servicer will 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 will promptly file any such amendment or new financing
statement. The Servicer will at all times maintain each office from which it
will service Receivables, and its principal executive office, within the United
States of America.
(d) The Servicer will 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
and the Reserve Account in respect of such Receivable.
(e) The Servicer will 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 will 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 will not be deleted from or modified on the Servicer's computer
systems until, and only until, the Receivable has been paid in full or
repurchased.
(f) If at any time the Seller or the Servicer proposes 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 will 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 refer in any manner whatsoever to any
Receivable, will 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,
will 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 will furnish to the Owner
Trustee and the Indenture Trustee, within twenty (20) Business Days, a list of
all Receivables (by contract number) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Monthly Investor Reports furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer will deliver to the Owner Trustee and the
Indenture Trustee:
(1) promptly after the execution and delivery of this
Agreement, 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 is
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 is
necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above will 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 will, to the extent required by applicable law,
cause the Securities 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 will be deemed to be an original,
and all of which counterparts will constitute but one and the same instrument.
SECTION 9.3 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.4 Notices. All demands, notices, and communications
under this Agreement will be in writing, personally delivered, sent by
telecopier, overnight courier, registered mail, U.S. mail postage prepaid and
will 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 may
be designated by such party in a written notice to the other parties to this
Agreement,
(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, at the following
address: Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Asset Backed Surveillance Department, and
(f) in the case of Fitch, Inc., at the following address:
Fitch, Inc., 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset
Backed Surveillance.
Any notice required or permitted to be mailed to a Noteholder
or Certificateholder will be given by first class mail, postage prepaid, or sent
by overnight delivery 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 will be conclusively presumed to have been
duly given, whether or not the Noteholder or Certificateholder receives such
notice.
SECTION 9.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement is for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms will be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and will in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Securities 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 662/3% of the Note Balance of
the Notes Outstanding and the Certificateholders of Certificates evidencing not
less than 662/3% 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, will operate as a waiver thereof; nor will 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 and the Owner Trustee and their
respective successors and permitted assigns and each of the Indenture 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 will 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 will be the person holding
the office of Corporate Secretary, of the Seller and the Servicer, c/o Ford
Motor Company, World Headquarters, Office of the General Counsel, Xxx Xxxxxxxx
Xxxx, Xxxxx 0000, 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 any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
State bankruptcy or similar law. This Section 9.12 will 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 Wachovia Bank of Delaware,
National Association not in its individual capacity but solely in its capacity
as Owner Trustee of the Issuer and in no event will Wachovia Bank of Delaware,
National Association in its individual capacity or, 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 will 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 will be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by The Bank of New York, not in its individual
capacity but solely as Indenture Trustee, and in no event will The Bank of New
York have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse will be had solely to the assets of the Issuer.
SECTION 9.14 Confidential Information.
(a) The Issuer agrees to hold and treat all Confidential
Information (defined in Section 9.14(b)) provided to it under this Agreement in
confidence and in accordance with this Section 9.14, and will implement and
maintain safeguards to further assure the confidentiality of such Confidential
Information. Such Confidential Information will not, without instruction
pursuant to this Agreement or the prior written consent of the Servicer, be
disclosed or used by the Issuer or its officers, directors, employees, attorneys
or agents (collectively, the "Information Recipients") other than in connection
with the transactions contemplated by the Basic Documents and the issuance of
the Notes. Disclosure that is not in violation of the Right to Financial Privacy
Act of 1978, the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "G-L-B Act") or any other
law by an Information Recipient of any Confidential Information (A) in
connection with the performance of the Issuer's duties hereunder or (B) at the
request of the Issuer's firm of nationally recognized Independent certified
public accountants or governmental regulatory authorities in connection with an
examination of the Issuer by any such authority or for the purposes specified in
Sections 3.11 and 3.12 will not constitute a breach of its obligations under
this Section 9.14, and will not require the prior written consent of the
Servicer.
(b) The Indenture Trustee agrees to comply with Section 11.21
of the Indenture and the Owner Trustee agrees to comply with Section 11.14 of
the Trust Agreement.
(c) As used herein, "Confidential Information" means
non-public personal information (as defined in the G-L-B Act and its enabling
regulations issued by the Federal Trade Commission) regarding Obligors on the
Receivables that is identified as such by the Servicer. Confidential Information
will not include information that (i) is or becomes generally available to the
public other than as a result of disclosure by any of the Information
Recipients, (ii) was available to any of the Information Recipients on a
non-confidential basis from a Person or entity other than the Servicer prior to
its disclosure to any of the Information Recipients, (iii) is requested to be
disclosed by a governmental authority or related governmental, administrative,
or regulatory or self-regulatory agencies having or claiming authority to
regulate or oversee any aspect of the business of the Issuer or that of any of
its Affiliates or is otherwise required by law or by legal or regulatory process
to be disclosed, (iv) becomes available to any of the Information Recipients on
a non-confidential basis from a Person other than the Servicer who, to the
knowledge of such Information Recipient is not otherwise bound by a
confidentiality agreement with the Servicer and is not otherwise prohibited from
transmitting the information to the Information Recipients or (v) the Servicer
provides written permission to the Issuer to release.
SECTION 9.15 Savings Clause. It is the intention of the Seller
and the Issuer that the transfer of the Trust Property contemplated herein
constitute an absolute sale of the Trust Property, conveying good title to the
Trust Property from the Seller to the Issuer. However, in the event that such
sale is deemed to be a pledge, 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 this Agreement, including under the
Securities, and in such event, this Agreement will 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 LLC,
as Seller
By:
Name: Xxxxx X. Xxxxxx
Title: Secretary
FORD CREDIT AUTO OWNER TRUST 2004-A,
as Issuer
By: WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By:
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By:
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
Accepted and agreed:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture Trustee
By:
Name:
Title:
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
Delivered to Indenture Trustee at Closing
SCHEDULE B
Location of Receivable Files
at Third Party Custodians
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
MSX International, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Iron Mountain Records Management
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
APPENDIX A
Definitions and Usage
