Exhibit 99.1
SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 2002-B,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Seller,
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of March 1, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND USAGE....................................................................................1
ARTICLE II
TRUST PROPERTY...........................................................................................1
SECTION 2.1 Conveyance of Trust Property................................................................1
SECTION 2.2 Representations and Warranties of the Seller as to the Receivables..........................2
SECTION 2.3 Repurchase upon Breach......................................................................6
SECTION 2.4 Custody of Receivable Files.................................................................7
SECTION 2.5 Duties of Servicer as Custodian.............................................................8
SECTION 2.6 Instructions; Authority to Act..............................................................9
SECTION 2.7 Custodian's Indemnification.................................................................9
SECTION 2.8 Effective Period and Termination............................................................9
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY..........................................................................10
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 Allocations of Collections.................................................................11
SECTION 3.5 Maintenance of Security Interests in Financed Vehicles.....................................11
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 Servicer's Certificate.....................................................................13
SECTION 3.10 Annual Statement as to Compliance; Notice of Event of
Servicing Termination...................................................................13
SECTION 3.11 Annual Independent Certified Public Accountant's Report...................................14
SECTION 3.12 Access to Certain Documentation and Information Regarding
Receivables.............................................................................14
SECTION 3.13 Servicer Expenses.........................................................................15
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS........................................................15
SECTION 4.1 Accounts...................................................................................15
SECTION 4.2 Collections................................................................................18
SECTION 4.3 Application of Collections.................................................................19
SECTION 4.4 Advances...................................................................................19
SECTION 4.5 Additional Deposits to Collection Account and Withdrawals from
Reserve Account..........................................................................21
SECTION 4.6 Distributions..............................................................................21
SECTION 4.7 Reserve Account............................................................................26
SECTION 4.8 Net Deposits...............................................................................29
SECTION 4.9 Statements to Noteholders and Certificateholders...........................................29
ARTICLE V
Intentionally Omitted...................................................................................31
ARTICLE VI
THE SELLER..............................................................................................31
SECTION 6.1 Representations and Warranties of Seller...................................................31
SECTION 6.2 Liability of Seller; Indemnities...........................................................33
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of,
Seller...................................................................................35
SECTION 6.4 Limitation on Liability of Seller and Others...............................................35
SECTION 6.5 Seller May Own Notes or Certificates.......................................................36
ARTICLE VII
THE SERVICER............................................................................................36
SECTION 7.1 Representations of Servicer................................................................36
SECTION 7.2 Indemnities of Servicer....................................................................38
SECTION 7.3 Merger or Consolidation of, or Assumption of the Obligations of, Servicer.................39
SECTION 7.4 Limitation on Liability of Servicer and Others.............................................40
SECTION 7.5 Delegation of Duties.......................................................................40
SECTION 7.6 Ford Credit Not to Resign as Servicer......................................................41
SECTION 7.7 Servicer May Own Notes or Certificates.....................................................41
ARTICLE VIII
SERVICING TERMINATION...................................................................................41
SECTION 8.1 Events of Servicing Termination............................................................41
SECTION 8.2 Appointment of Successor Servicer..........................................................43
SECTION 8.3 Repayment of Advances......................................................................44
SECTION 8.4 Notification to Noteholders and Certificateholders.........................................44
SECTION 8.5 Waiver of Past Events of Servicing Termination.............................................44
ARTICLE IX
TERMINATION.............................................................................................45
SECTION 9.1 Optional Purchase of All Receivables.......................................................45
SECTION 9.2. Succession Upon Satisfaction and Discharge of Indenture....................................45
ARTICLE X
MISCELLANEOUS PROVISIONS................................................................................46
SECTION 10.1 Amendment.................................................................................46
SECTION 10.2 Protection of Title to Trust Property.....................................................48
SECTION 10.3 Governing Law.............................................................................50
SECTION 10.4 Notices...................................................................................50
SECTION 10.5 Severability of Provisions................................................................51
SECTION 10.6 Assignment................................................................................51
SECTION 10.7 Further Assurances........................................................................51
SECTION 10.8 No Waiver; Cumulative Remedies............................................................51
SECTION 10.9 Third-Party Beneficiaries.................................................................51
SECTION 10.10 Actions by Noteholders or Certificateholders.............................................52
SECTION 10.11 Agent for Service........................................................................52
SECTION 10.12 No Bankruptcy Petition...................................................................52
SECTION 10.13 Limitation of Liability of Owner Trustee and Indenture Trustee...........................52
SECTION 10.14 Savings Clause...........................................................................53
Schedule A Schedule of Receivables.............................................................SA-1
Schedule B-1 Location of Receivable Files........................................................SB-1
Schedule B-2 Custodians for Receivable Files.....................................................B2-1
Appendix A Definitions and Usage...............................................................AA-1
SALE AND SERVICING AGREEMENT, dated as of March 1, 2002 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 2002-B (the
"Issuer"), a Delaware business 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 motor vehicle retail
installment sale contracts 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
shall be applicable herein.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property. In consideration of the
Issuer's delivery to, or upon the order of, the Seller of the Notes and the
Certificates in an aggregate principal amount equal to 98.49% of the Initial
Pool Balance, the Seller does hereby irrevocably transfer, assign and
otherwise convey to the Issuer without recourse (subject to the obligations
herein) all right, title and interest of the Seller, whether now owned or
hereafter acquired, in and to the Trust Property. The transfer, assignment
and conveyance made hereunder shall not constitute and is not intended to
result in an assumption by the Issuer of any obligation of the Seller to the
Obligors, the Dealers or any other Person in connection with the Receivables
and the other Trust Property or any agreement, document or instrument related
thereto.
SECTION 2.2 Representations and Warranties of the Seller as to
the Receivables. The Seller makes the following representations and
warranties as to the Receivables on which the Issuer shall be deemed to have
relied in accepting the Receivables. Such representations and warranties
speak as of the Closing Date, but shall survive the transfer, assignment and
conveyance of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (a) shall
have been originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such Dealer's
business, shall have been fully and properly executed by the parties thereto,
shall have been purchased either (X) by the Seller from Ford Credit, which in
turn shall have purchased such Receivable from a Dealer under an existing
dealer agreement with Ford Credit, and which shall have been validly assigned
by such Dealer to Ford Credit and which in turn shall have been validly
assigned by Ford Credit to the Seller in accordance with its terms, or (Y) by
the Seller from Ford Credit, which shall have been assigned such Receivable
by PRIMUS, which in turn shall have purchased such Receivable from a Dealer
or other finance source (provided that such purchase relates to an individual
Receivable and not a bulk purchase) under an existing agreement with PRIMUS,
and which shall have been validly assigned by such Dealer or other finance
source to PRIMUS and shall have been validly assigned by PRIMUS to Ford
Credit in the ordinary course of business and which in turn shall have been
validly assigned by Ford Credit to the Seller in accordance with its terms,
(b) shall have created or shall create a valid, subsisting, and enforceable
first priority security interest in favor of Ford Credit in the Financed
Vehicle, which security interest has been assigned by Ford Credit to the
Seller, which in turn shall be assignable by the Seller to the Issuer, (c)
shall contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization against the
collateral of the benefits of the security, (d) shall provide for level
monthly payments (provided that the payment in the first or last month in the
life of the Receivable may be minimally different from the level payment)
that fully amortize the Amount Financed by maturity and yield interest at the
Annual Percentage Rate, (e) shall provide for, in the event that such
contract is prepaid, a prepayment that fully pays the Principal Balance, and
(f) is an Actuarial Receivable or a Simple Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables shall be true and correct in all material respects as
of the opening of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Noteholders or the Certificateholders shall
have been utilized in selecting the Receivables from those receivables which
meet the criteria contained herein. The computer tape or other listing
regarding the Receivables made available to the Issuer and its assigns (which
computer tape or other listing is required to be delivered as specified
herein) is true and correct in all material respects.
(iii) Compliance with Law. Each Receivable and the sale of the
Financed Vehicle shall have complied at the time it was originated or made
and at the execution of this Agreement shall comply in all material respects
with all requirements of applicable federal, State, and local laws, and
regulations thereunder, including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve
Board's Regulations B and Z, and State adaptations of the National Consumer
Act and of the Uniform Consumer Credit Code, and other consumer credit laws
and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent the
genuine, legal, valid, and binding payment obligation of the Obligor,
enforceable by the holder thereof in accordance with its terms subject to the
effect of bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally.
(v) No Government Obligor. None of the Receivables shall be due
from the United States of America or any State or from any agency,
department, or instrumentality of the United States of America, any State or
political subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior to
the transfer, assignment and conveyance thereof, each Receivable shall be
secured by a first priority, validly perfected security interest in the
Financed Vehicle in favor of Ford Credit as secured party or all necessary
and appropriate actions shall have been commenced that would result in a
first priority, validly perfected security interest in the Financed Vehicle
in favor of Ford Credit as secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle have
been released from the lien granted by the related Receivable in whole or in
part.
(viii) No Waiver. No provision of a Receivable shall have been
waived.
(ix) No Defenses. No right of rescission, setoff, counterclaim,
or defense shall have been asserted or threatened with respect to any
Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens or
claims shall have been filed for work, labor, or materials relating to a
Financed Vehicle that shall be liens prior to, or equal with, the security
interest in the Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a
period of not more than thirty (30) days as of the Cutoff Date, no default,
breach, violation, or event permitting acceleration under the terms of any
Receivable shall have occurred; and no continuing condition that with notice
or the lapse of time would constitute a default, breach, violation, or event
permitting acceleration under the terms of any Receivable shall have arisen;
and Ford Credit shall not waive any of the foregoing.
(xii) Insurance. Ford Credit, in accordance with its customary
standards, policies and procedures, shall have determined that, as of the
date of origination of each Receivable, the Obligor had obtained or agreed to
obtain physical damage insurance covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the transfer
and assignment herein contemplated constitute an absolute sale, transfer,
assignment and conveyance of the Receivables from the Seller to the Issuer
and that the beneficial interest in and title to the Receivables not be part
of the Seller's estate in the event of the filing of a bankruptcy petition by
or against the Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, conveyed or pledged by the Seller to any Person other
than the Issuer. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each Receivable
free and clear of all Liens, encumbrances, security interests, participations
and rights of others and, immediately upon the transfer thereof, the Issuer
shall have good and marketable title to each Receivable, free and clear of
all Liens, encumbrances, security interests, participations and rights of
others; and the transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable shall have been originated
in, or shall be subject to the laws of, any jurisdiction under which the
sale, transfer, assignment and conveyance of such Receivable under this
Agreement or pursuant to transfers of the Notes or the Certificates shall be
unlawful, void, or voidable. The Seller has not entered into any agreement
with any account debtor that prohibits, restricts or conditions the
assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Issuer a
first priority, validly perfected ownership interest in the Receivables, and
to give the Indenture Trustee a first perfected security interest therein,
shall 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 shall be only one original executed
copy of each Receivable. The Seller, or its custodian, has possession of such
original with respect to each Receivable. 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 to the
following effect: "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the Issuer."
(xix) New and Used Vehicles. 74.40% of the aggregate Principal
Balance of the Receivables, constituting 68.16% of the number of Receivables
as of the Cutoff Date, represent vehicles financed at new vehicle rates, and
the remainder of the Receivables represent vehicles financed at used vehicle
rates.
(xx) Amortization Type. By aggregate Principal Balance as of the
Cutoff Date, 0.05% of the Receivables constitute Actuarial Receivables and
99.95% of the Receivables constitute Simple Interest Receivables.
(xxi) Origination. Each Receivable shall have an origination date
on or after July 30, 1996.
(xxii) PRIMUS. 13.00% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date represent Receivables originated through
PRIMUS and assigned to Ford Credit, and the remainder of the Receivables were
originated through Ford Credit (excluding PRIMUS).
(xxiii) Maturity of Receivables. Each Receivable shall have 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 8.82%. The percentage of Receivables by Principal Balance with
remaining terms greater than 60 months is 5.75%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate of each
Receivable shall be not less than 0.01% and not greater than 29.99%.
(xxv) Scheduled Payments. Each Receivable shall have a first
Scheduled Payment due, in the case of Actuarial Receivables, or a first
scheduled due date, in the case of Simple Interest Receivables, on or prior
to March 1, 2002 and no Receivable shall have a payment that is more than
thirty (30) days overdue as of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files shall
be kept at one or more of the locations listed in Schedule B-1 hereto or the
offices of one of the custodians specified in Schedule B-2 hereto.
(xxvii) No Extensions. The number of Scheduled Payments, in the
case of Actuarial Receivables, and the number of scheduled due dates, in the
case of Simple Interest Receivables, shall not have been extended on or
before the Cutoff Date on any Receivable.
(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 6.1 are true and correct.
(xxx) No Receivables Originated in Pennsylvania. No Receivable
shall have been originated in Pennsylvania.
SECTION 2.3 Repurchase upon Breach. The Seller, the Servicer, the
Issuer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement, the Indenture Trustee and Ford Credit promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties made by the Seller pursuant to Section 2.2. Unless the breach
shall have been cured by the last day of the second Collection Period
following the discovery, the Indenture Trustee shall enforce the obligation
of the Seller under this Section 2.3, and, if necessary, the Seller or the
Indenture Trustee shall enforce the obligation of Ford Credit under the
Purchase Agreement, to repurchase any Receivable materially and adversely
affected by the breach as of such last day (or, at the Seller's option, the
last day of the first Collection Period following the discovery). In
consideration of the purchase of the Receivable, the Seller shall remit the
Purchase Amount, in the manner specified in Section 4.5. The sole remedy of
the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach of the Seller's representations
and warranties pursuant to Section 2.2 shall be to require the Seller to
repurchase such Receivables pursuant to this Section 2.3 or to enforce the
obligation of Ford Credit to the Seller to repurchase such Receivables
pursuant to the Purchase Agreement. Neither the Owner Trustee nor the
Indenture Trustee shall have any duty to conduct an affirmative investigation
as to the occurrence of any condition requiring the repurchase of any
Receivable pursuant to this Section 2.3 or the eligibility of any Receivable
for purposes of this Agreement.
SECTION 2.4 Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Issuer, upon the execution and delivery of this Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to
act as the agent of the Issuer and the Indenture Trustee as custodian of the
following documents or instruments, which are hereby constructively delivered
to the Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture,
with respect to each Receivable:
(i) The original Receivable.
(ii) The original credit application fully
executed by the Obligor or a photocopy thereof or a record thereof
on a computer file, diskette or on microfiche.
(iii) The original certificate of title or such
documents that the Servicer or Ford Credit shall keep on file, in
accordance with its customary standards, policies and procedures,
evidencing the security interest of Ford Credit in the Financed
Vehicle.
(iv) Any and all other documents (including any
computer file, diskette or microfiche) that the Servicer or the
Seller shall keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor, or a Financed
Vehicle.
The Servicer shall provide an Officer's Certificate to the Issuer
and the Indenture Trustee confirming that the Servicer has received on behalf
of the Issuer and the Indenture Trustee all the documents and instruments
necessary for the Servicer to act as the agent of the Issuer and the
Indenture Trustee for the purposes set forth in this Section 2.4, including
the documents referred to herein, and the Issuer and the Indenture Trustee
are hereby authorized to rely on such Officer's Certificate.
SECTION 2.5 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files for
the benefit of the Issuer and the Indenture Trustee and maintain such
accurate and complete accounts, records, and computer systems pertaining to
each Receivable File as shall enable the Servicer and the Issuer to comply
with the terms and conditions of this Agreement, and the Indenture Trustee to
comply with the terms and conditions of the Indenture. In performing its
duties as custodian the Servicer shall act with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to the
receivable files relating to all comparable automotive receivables that the
Servicer services for itself or others and, consistent with such reasonable
care, the Servicer may utilize the services of third parties to act as
custodian of physical Receivable Files, subject to Section 7.5. In accordance
with its customary standards, policies and procedures with respect to its
retail installment sale contracts, the Servicer shall conduct, or cause to be
conducted, periodic audits of the Receivable Files held by it under this
Agreement, and of the related accounts, records, and computer systems, in
such a manner as shall enable the Issuer or the Indenture Trustee to verify
the accuracy of the Servicer's record keeping. The Servicer shall promptly
report to the Issuer and the Indenture Trustee any failure on its part to
hold the Receivable Files and maintain its accounts, records, and computer
systems as herein provided and promptly take appropriate action to remedy any
such failure. Nothing herein shall be deemed to require an initial review or
any periodic review by the Issuer, the Owner Trustee or the Indenture Trustee
of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B-1
to this Agreement or the offices of one of its custodians specified in
Schedule B-2 of this Agreement, or at such other office as shall be specified
to the Issuer and the Indenture Trustee by written notice not later than
ninety (90) days after any change in location. The Servicer shall make
available to the Issuer and the Indenture Trustee or their duly authorized
representatives, attorneys, or auditors a list of locations of the Receivable
Files, the Receivable Files, and the related accounts, records, and computer
systems maintained by the Servicer at such times as the Issuer or the
Indenture Trustee shall instruct, but only upon reasonable notice and during
the normal business hours at the respective offices of the Servicer.
(c) Release of Documents. Upon written instructions from the
Indenture Trustee, the Servicer shall release or cause to be released any
document in the Receivable Files to the Indenture Trustee, the Indenture
Trustee's agent or the Indenture Trustee's designee, as the case may be, at
such place or places as the Indenture Trustee may designate, as soon
thereafter as is practicable. Any document so released shall be handled by
the Indenture Trustee with due care and returned to the Servicer for
safekeeping as soon as the Indenture Trustee or its agent or designee, as the
case may be, shall have no further need therefor.
SECTION 2.6 Instructions; Authority to Act. All instructions from
the Indenture Trustee shall be in writing and signed by an Authorized Officer
of the Indenture Trustee, and the Servicer shall be deemed to have received
proper instructions with respect to the Receivable Files upon its receipt of
such written instructions.
SECTION 2.7 Custodian's Indemnification. The Servicer as
custodian shall indemnify the Issuer, the Owner Trustee and the Indenture
Trustee for any and all liabilities, obligations, losses, compensatory
damages, payments, costs, or expenses of any kind whatsoever that may be
imposed on, incurred, or asserted against the Issuer, the Owner Trustee or
the Indenture Trustee as the result of any improper act or omission in any
way relating to the maintenance and custody by the Servicer as custodian of
the Receivable Files; provided, however, that the Servicer shall not be
liable (i) to the Issuer for any portion of any such amount resulting from
the willful misfeasance, bad faith, or negligence of the Indenture Trustee,
the Owner Trustee or the Issuer, (ii) to the Owner Trustee for any portion of
any such amount resulting from the willful misfeasance, bad faith, or
negligence of the Indenture Trustee, the Owner Trustee or the Issuer and
(iii) to the Indenture Trustee for any portion of any such amount resulting
from the willful misfeasance, bad faith, or negligence of the Indenture
Trustee, the Owner Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and
shall continue in full force and effect until terminated pursuant to this
Section 2.8. If Ford Credit shall resign as Servicer in accordance with the
provisions of this Agreement or if all of the rights and obligations of the
Servicer shall have been terminated under Section 8.1, 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 8.1. As soon as practicable after
any termination of such appointment, the Servicer shall deliver to the
Indenture Trustee or the Indenture Trustee's agent the Receivable Files and
the related accounts and records maintained by the Servicer at such place or
places as the Indenture Trustee may reasonably designate.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall manage,
service, administer, and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises
with respect to all comparable automotive receivables that it services for
itself or others. The Servicer's duties shall include collection and posting
of all payments, responding to inquiries of Obligors on such Receivables,
investigating delinquencies, sending payment coupons to Obligors, reporting
tax information to Obligors, accounting for collections, furnishing monthly
and annual statements to the Owner Trustee and the Indenture Trustee with
respect to distributions, and making Advances pursuant to Section 4.4. The
Servicer shall follow its customary standards, policies and procedures in
performing its duties as Servicer. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered to execute and
deliver, on behalf of itself, the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders, the Certificateholders, or any of them, any and all
instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Vehicles securing such Receivables. If the
Servicer shall commence a legal proceeding to enforce a Receivable, the Owner
Trustee (in the case of a Receivable other than a Purchased Receivable) shall
thereupon be deemed to have automatically assigned, solely for the purpose of
collection, such Receivable to the Servicer. If in any enforcement suit or
legal proceeding it shall be held that the Servicer may not enforce a
Receivable on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Receivable, the Owner Trustee shall, at the
Servicer's expense and direction, take steps to enforce the Receivable,
including bringing suit in its name or the names of the Indenture Trustee,
the Noteholders, the Certificateholders, or any of them. The Owner Trustee
shall furnish the Servicer with any powers of attorney and other documents
reasonably necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. The Servicer, at its expense,
shall obtain on behalf of the Issuer or the Owner Trustee all licenses, if
any, required by the laws of any jurisdiction to be held by the Issuer or the
Owner Trustee in connection with ownership of the Receivables, and shall make
all filings and pay all fees as may be required in connection therewith
during the term hereof.
SECTION 3.2 Collection of Receivable Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable receivables that it services for itself or others. Subject to
Sections 3.6(iii) and (iv), the Servicer may grant extensions, rebates, or
adjustments on a Receivable; provided, however, that if the Servicer extends
the date for final payment by the Obligor of any Receivable beyond 6 months
past the Final Scheduled Maturity Date, it shall promptly purchase the
Receivable in the manner provided in Section 3.7. The Servicer may in its
discretion waive any late payment charge or any other fees that may be
collected in the ordinary course of servicing a Receivable.
SECTION 3.3 Realization Upon Receivables. On behalf of the
Issuer, the Servicer shall use reasonable efforts, consistent with its
customary standards, policies and procedures, to repossess or otherwise
convert the ownership of the Financed Vehicle securing any Receivable as to
which the Servicer shall have determined eventual payment in full is
unlikely. The Servicer shall follow such customary standards, policies and
procedures as it shall deem necessary or advisable in its servicing of
comparable receivables, which may include reasonable efforts to realize upon
any Dealer Recourse and selling the Financed Vehicle at public or private
sale. The foregoing shall be subject to the provision that, in any case in
which the Financed Vehicle shall have suffered damage, the Servicer shall not
be required to expend funds in connection with the repair or the repossession
of such Financed Vehicle unless it shall determine in its discretion that
such repair and/or repossession will increase the Liquidation Proceeds by an
amount greater than the amount of such expenses.
SECTION 3.4 Allocations of Collections. If an Obligor is
obligated under one or more Receivables and also under one or more other
assets owned by Ford Credit or assigned by Ford Credit to third parties, then
any payment on any such asset received from or on behalf of such Obligor
shall, if identified as being made with respect to a particular item or
asset, be applied to such item, and otherwise shall be allocated by Ford
Credit in accordance with its customary standards, policies and procedures.
SECTION 3.5 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary standards,
policies and procedures, take such steps as are necessary to maintain
perfection of the security interest created by each Receivable in the related
Financed Vehicle. The Issuer hereby authorizes the Servicer to take such
steps as are necessary to re-perfect such security interest on behalf of the
Issuer and the Indenture Trustee in the event of the relocation of a Financed
Vehicle or for any other reason.
SECTION 3.6 Covenants of Servicer. The Servicer shall not (i)
release the Financed Vehicle securing each such Receivable from the security
interest granted by such Receivable in whole or in part except in the event
of payment in full by or on behalf of the Obligor thereunder or repossession,
(ii) impair the rights of the Noteholders or the Certificateholders in the
Receivables, (iii) change the Annual Percentage Rate with respect to any
Receivable, or (iv) modify the Amount Financed or the total number of
Scheduled Payments (in the case of an Actuarial Receivable) or the total
number of originally scheduled due dates (in the case of a Simple Interest
Receivable).
SECTION 3.7 Purchase of Receivables Upon Breach. (a) The Seller,
the Servicer or the Owner Trustee, as the case may be, promptly shall inform
the other parties to this Agreement, in writing, upon the discovery of any
breach pursuant to Section 3.2, 3.5 or 3.6. Unless the breach shall have been
cured by the last day of the second Collection Period following such
discovery (or, at the Servicer's election, the last day of the first
following Collection Period), the Servicer shall purchase any Receivable
materially and adversely affected by such breach as determined by the
Indenture Trustee (which shall include any Receivable as to which a breach of
Section 3.6 has occurred) at the Purchase Amount. In consideration of the
purchase of such Receivable, the Servicer shall remit the Purchase Amount in
the manner specified in Section 4.5. For purposes of this Section 3.7, the
Purchase Amount shall consist in part of a release by the Servicer of all
rights of reimbursement with respect to Outstanding Advances on the
Receivable. The sole remedy of the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders with respect to a breach
pursuant to Section 3.2, 3.5 or 3.6 shall be to require the Servicer to
purchase Receivables pursuant to this Section 3.7.
(b) The Seller, the Servicer or the Owner Trustee, as the case
may be, promptly shall inform the other parties to this Agreement in writing,
upon the discovery of any breach of the representations and warranties of
Ford Credit, as seller, set forth in Section 3.2(b) of the Purchase
Agreement. Unless the breach shall have been cured by the last day of the
second Collection Period following the discovery, the Servicer shall enforce
the obligation of Ford Credit under the Purchase Agreement to repurchase any
Receivable materially and adversely affected by the breach as of such last
day (or, at Ford Credit's option, the last day of the first Collection Period
following the discovery). In consideration of the purchase of the Receivable,
Ford Credit shall remit, pursuant to Section 6.2 of the Purchase Agreement,
the Purchase Amount to the Servicer and the Servicer shall remit the Purchase
Amount to the Collection Account as specified in Section 4.5 hereof.
(c) With respect to all Receivables purchased pursuant to this
Section 3.7, the Issuer shall assign to the Servicer or the Seller, as
applicable, without recourse, representation or warranty, all of the Issuer's
right, title and interest in and to such Receivables and all security and
documents relating thereto.
SECTION 3.8 Servicer Fee. The Servicer shall be entitled to any
interest earned on the amounts deposited in the Collection Account and the
Payahead Account during each Collection Period plus all late fees, prepayment
charges and other administrative fees and expenses or similar charges allowed
by applicable law with respect to Receivables during each Collection Period
(the "Supplemental Servicing Fee"). The Servicer also shall be entitled to
the Servicing Fee, as provided herein.
SECTION 3.9 Servicer's Certificate. (a) On or about the tenth day
of each calendar month, the Servicer shall deliver to the Owner Trustee, each
Note Paying Agent and Certificate Paying Agent, the Indenture Trustee, each
Swap Counterparty and the Seller, with a copy to the Rating Agencies, a
Servicer's Certificate containing all information (including all specific
dollar amounts) necessary to make the transfers and distributions pursuant to
Sections 4.3, 4.4, 4.5, 4.6 and 4.7 for the Collection Period preceding the
date of such Servicer's Certificate, together with the written statements to
be furnished by the Owner Trustee to Certificateholders pursuant to Section
4.9 and by the Indenture Trustee to the Noteholders pursuant to Section 4.9
hereof and Section 6.6 of the Indenture. Receivables purchased or to be
purchased by the Servicer or the Seller shall be identified by the Servicer
by the Seller's account number with respect to such Receivable (as specified
in the Schedule of Receivables).
(b) On or about the fifth (but in no event later than the tenth)
calendar day of each calendar month, the Servicer shall deliver to the
respective underwriters of the Notes the Note Pool Factor for each Class of
Notes as of the close of business on the Distribution Date occurring in that
month.
SECTION 3.10 Annual Statement as to Compliance; Notice of Event
of Servicing Termination. (a) The Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and each Rating Agency on or before April 30
of each year beginning April 30, 2002, an Officer's Certificate, dated as of
December 31 of the preceding calendar year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month (or shorter) period
and of its performance under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof; provided, that the Officer's
Certificate to be delivered on or before April 30, 2002 shall be, dated as of
the Closing Date. A copy of such Officer's Certificate and the report
referred to in Section 3.11 may be obtained by any Certificateholder by a
request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture
Trustee, in either case addressed to the applicable Corporate Trust Office.
Upon the telephone request of the Owner Trustee, the Indenture Trustee shall
promptly furnish the Owner Trustee a list of Noteholders as of the date
specified by the Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the
Indenture Trustee and each Rating Agency promptly after having obtained
knowledge thereof, but in no event later than five (5) Business Days
thereafter, written notice in an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become an Event of
Servicing Termination under Section 8.1. The Seller shall deliver to the
Owner Trustee, the Indenture Trustee and each Rating Agency promptly after
having obtained knowledge thereof, but in no event later than five (5)
Business Days thereafter, written notice in an Officer's Certificate of any
event which with the giving of notice or lapse of time, or both, would become
an Event of Servicing Termination under clause (a)(ii) of Section 8.1.
SECTION 3.11 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the
Seller or to Ford Credit, to deliver to the Owner Trustee and the Indenture
Trustee on or before April 30 of each year beginning April 30, 2003 with
respect to the prior calendar year a report addressed to the board of
directors of the Servicer and to the Owner Trustee and the Indenture Trustee,
to the effect that such firm has audited the financial statements of the
Servicer and issued its report thereon and that such audit (1) was made in
accordance with generally accepted auditing standards, (2) included tests
relating to automotive loans serviced for others in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers
(the "Program"), to the extent the procedures in such Program are applicable
to the servicing obligations set forth in this Agreement, and (3) except as
described in the report, disclosed no exceptions or errors in the records
relating to automobile and light truck loans serviced for others that such
firm is required to report under the Program.
The report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 3.12 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders,
the Indenture Trustee and the Noteholders access to the Receivable Files in
such cases where the Certificateholders, the Indenture Trustee or the
Noteholders shall be required by applicable statutes or regulations to review
such documentation. Access shall be afforded without charge, but only upon
reasonable request and during the normal business hours at the respective
offices of the Servicer. Nothing in this Section 3.12 shall affect the
obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such obligation
shall not constitute a breach of this Section 3.12. The Servicer shall
provide such information with respect to the Receivables as the Rating
Agencies may reasonably request, including as soon as practicable a periodic
report of the aggregate principal balance of Receivables which become
Liquidated Receivables during each Collection Period.
SECTION 3.13 Servicer Expenses. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the Owner Trustee and the Indenture
Trustee, independent accountants, taxes imposed on the Servicer and expenses
incurred in connection with distributions and reports to Noteholders and
Certificateholders.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) The Servicer shall, prior to the
Closing Date, establish and maintain a segregated trust account in the name
"JPMorgan Chase Bank as Indenture Trustee, as secured party for Ford Credit
Auto Owner Trust 2002-B", at a Qualified Institution or Qualified Trust
Institution (which shall initially be the corporate trust department of
JPMorgan Chase Bank), which shall be designated as the "Collection Account".
Initially, the Collection Account shall be account number 161629.1 and shall
include any successor or replacement accounts thereto. The Collection Account
shall be under the sole dominion and control of the Indenture Trustee;
provided, that the Servicer may make deposits to and direct the Indenture
Trustee in writing to make withdrawals from the Collection Account in
accordance with the terms of the Basic Documents. The Collection Account will
be established and maintained pursuant to an account agreement which
specifies New York law as the governing law. In addition, the Collection
Account shall be established and maintained at a Qualified Institution or
Qualified Trust Institution which agrees in writing that for so long as the
Notes are outstanding it will comply with entitlement orders (as defined in
Article 8 of the UCC) and instructions originated by the Indenture Trustee
without further consent of the Issuer. All monies deposited from time to time
in the Collection Account shall be held by the Indenture Trustee as secured
party for the benefit of the Noteholders and, after payment in full of the
Notes, as agent of the Owner Trustee and as part of the Trust Property. All
deposits to and withdrawals from the Collection Account shall be made only
upon the terms and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to the
first sentence of Section 4.2, all amounts held in the Collection Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust
company then maintaining the Collection Account in Permitted Investments that
mature not later than the Business Day immediately prior to the Distribution
Date for the Collection Period to which such amounts relate and such
Permitted Investments shall be held to maturity. All interest and other
income (net of losses and investment expenses) on funds on deposit in the
Collection Account shall be withdrawn from the Collection Account at the
written direction of the Servicer and shall be paid to the Servicer. In the
event that the Collection Account is no longer to be maintained at the
corporate trust department of JPMorgan Chase Bank, the Servicer shall, with
the Indenture Trustee's or Owner Trustee's assistance as necessary, cause the
Collection Account to be moved to a Qualified Institution or a Qualified
Trust Institution within ten (10) Business Days (or such longer period not to
exceed thirty (30) calendar days as to which each Rating Agency may consent).
(b) The Servicer shall, prior to the Closing Date, establish and
maintain an administrative subaccount within the Collection Account at the
bank or trust company then maintaining the Collection Account, which
subaccount shall be designated as the "Principal Distribution Account". The
Principal Distribution Account is established and maintained solely for
administrative purposes.
(c) The Servicer shall, prior to the Closing Date, establish and
maintain two segregated trust accounts, each in the name "The Bank of New
York as Owner Trustee" at a Qualified Institution or Qualified Trust
Institution (which shall initially be the corporate trust department of The
Bank of New York), which shall be designated as the "Certificate Interest
Distribution Account" and the "Certificate Principal Distribution Account",
respectively. Each Certificate Distribution Account shall be under the sole
dominion and control of the Owner Trustee. All monies deposited from time to
time in each Certificate Distribution Account pursuant to this Agreement and
the Indenture shall be held by the Owner Trustee as part of the Trust
Property and shall be applied as provided in the Basic Documents. In the
event that either Certificate Distribution Account is no longer to be
maintained at the corporate trust department of The Bank of New York the
Servicer shall, with the Owner Trustee's assistance as necessary, cause such
Certificate Distribution Account to be moved to a Qualified Institution or a
Qualified Trust Institution within ten (10) Business Days (or such longer
period not to exceed thirty (30) calendar days as to which each Rating Agency
may consent). Each Certificate Distribution Account will be established and
maintained pursuant to an account agreement which specifies New York law as
the governing law.
(d) The Servicer shall, prior to the Closing Date, establish and
maintain a segregated trust account in the name of "JPMorgan Chase Bank as
Indenture Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of JPMorgan Chase
Bank), which shall be designated as the "Payahead Account". The Payahead
Account shall be held in trust for the benefit of the Obligors. The Payahead
Account shall be under the sole dominion and control of the Indenture
Trustee; provided that the Servicer may make deposits to and direct the
Indenture Trustee in writing to make withdrawals from the Payahead Account in
accordance with the Basic Documents. The Payahead Account shall not be a part
of the Trust Property. All deposits to and withdrawals from the Payahead
Account shall be made only upon the terms and conditions of the Basic
Documents.
If the Servicer is required to remit collections pursuant to the
first sentence of Section 4.2, all amounts held in the Payahead Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust
company then maintaining the Payahead Account in Permitted Investments that
mature not later than the Business Day immediately prior to the Distribution
Date for the Collection Period to which such amounts relate and such
Permitted Investments shall be held to maturity. All interest and other
income (net of losses and investment expenses) on funds on deposit in the
Payahead Account shall be withdrawn from the Payahead Account at the
direction of the Servicer and shall be paid to the Servicer. In the event
that the Payahead Account is no longer to be maintained at the corporate
trust department of JPMorgan Chase Bank, the Servicer shall, with the
Indenture Trustee's or Owner Trustee's assistance as necessary, cause the
Payahead Account to be moved to a Qualified Institution or a Qualified Trust
Institution within ten (10) Business Days (or such longer period not to
exceed thirty (30) calendar days as to which each Rating Agency may consent).
(e) Notwithstanding the provisions of clause (d) above and of
Section 4.6(a)(ii), for so long as (i) Ford Credit is the Servicer, (ii) the
rating of Ford Credit's short-term unsecured debt is at least "P-1" by
Xxxxx'x, is at least "A-1" by Standard & Poor's and is at least "F-1" by
Fitch and (iii) no Event of Servicing Termination shall have occurred (each,
a "Monthly Remittance Condition"), Payaheads need not be remitted to and
deposited in the Payahead Account but instead may be remitted to and held by
the Servicer. So long as each Monthly Remittance Condition is satisfied, the
Servicer shall not be required to segregate or otherwise hold separate any
Payaheads remitted to the Servicer as aforesaid but shall be required to
remit Payaheads to the Collection Account in accordance with Section
4.6(a)(i). At any time that any Monthly Remittance Condition is not
satisfied, the Servicer shall deposit in the Payahead Account the amount of
any Payaheads then held or received by it (which amount shall be at least
equal to the Payahead Balance as of the close of business on the last day of
the immediately preceding Collection Period). Notwithstanding the foregoing,
if a Monthly Remittance Condition is not satisfied the Servicer may utilize,
with respect to Payaheads, an alternative remittance schedule (which may
include the remittance schedule utilized by the Servicer before the Monthly
Remittance Condition became unsatisfied or any other remittance schedule with
or without credit support through a servicer letter of credit, posting of
collateral or any other means), if the Servicer provides to the Owner Trustee
and the Indenture Trustee written confirmation from each Rating Agency that
such alternative remittance schedule will not result in the downgrading or
withdrawal by such Rating Agency of the ratings then assigned to the Notes
and the Certificates. The Owner Trustee and the Indenture Trustee shall not
be deemed to have knowledge of any event or circumstance under clause (iii)
of the first sentence of this Section 4.1(e) that would require remittance of
the Payaheads to the Payahead Account unless the Owner Trustee or the
Indenture Trustee has received notice of such event or circumstance from the
Seller or the Servicer in an Officer's Certificate or from the Noteholders of
Notes evidencing not less than 25% of the 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 in the Corporate Trust Office with knowledge hereof and familiarity
herewith has actual knowledge of such event or circumstance.
SECTION 4.2 Collections. The Servicer shall remit to the
Collection Account within two (2) Business Days of the receipt thereof (i)
all payments by or on behalf of the Obligors (including Payaheads on the
Receivables, but excluding Purchased Receivables) and (ii) all Liquidation
Proceeds, both as collected during the Collection Period. Ford Credit, so
long as it is acting as the Servicer, may make remittances of collections on
a less frequent basis than that specified in the immediately preceding
sentence. It is understood that such less frequent remittances may be made
only on the specific terms and conditions set forth below in this Section 4.2
and only for so long as such terms and conditions are fulfilled. Accordingly,
notwithstanding the provisions of the first sentence of this Section 4.2, the
Servicer shall remit collections received during a Collection Period to the
Collection Account in immediately available funds on the Business Day
preceding the related Distribution Date (or, with the prior consent of the
Rating Agencies, on the related Distribution Date) but only for so long as
each Monthly Remittance Condition is satisfied. Notwithstanding the
foregoing, if a Monthly Remittance Condition is not satisfied the Servicer
may utilize an alternative remittance schedule (which may include the
remittance schedule utilized by the Servicer before the Monthly Remittance
Condition became unsatisfied or any other remittance schedule with or without
credit support through a servicer letter of credit, posting of collateral or
any other means), if the Servicer provides to the Owner Trustee and the
Indenture Trustee written confirmation from each Rating Agency that such
alternative remittance schedule will not result in the downgrading or
withdrawal by such Rating Agency of the ratings then assigned to the Notes
and the Certificates. The Owner Trustee or the Indenture Trustee shall not be
deemed to have knowledge of any event or circumstance under clause (iii) of
the definition of Monthly Remittance Condition that would require remittance
by the Servicer to the Collection Account within two Business Days of receipt
as aforesaid unless the Owner Trustee or the Indenture Trustee has received
notice of such event or circumstance from the Seller or the Servicer in an
Officer's Certificate or from the Noteholders of Notes evidencing not less
than 25% of the Note Balance of the Notes Outstanding or from the
Certificateholders of Certificates evidencing not less than 25% of the
Aggregate Certificate Balance or a Trustee Officer in the Corporate Trust
Office with knowledge hereof or familiarity herewith has actual knowledge of
such event or circumstance. For purposes of this Article IV the phrase
"payments by or on behalf of Obligors" shall mean payments made by Persons
other than the Servicer or by other means.
SECTION 4.3 Application of Collections. For the purposes of this
Agreement, as of the close of business on the last day of each Collection
Period, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied by the
Servicer as follows:
Payments by or on behalf of the Obligor which are not late fees,
prepayment charges, or other administrative fees and expenses, or
similar charges which constitute the Supplemental Servicing Fee
shall be applied first to reduce Outstanding Advances made with
respect to such Receivable, as described in Sections 4.4(a) and
(b) below. Next, any excess shall be applied (i) in the case of
Simple Interest Receivables, to interest and principal on the
Receivable in accordance with the Simple Interest Method and (ii)
in the case of Actuarial Receivables, to the Scheduled Payment
with respect to such Receivable and any remaining excess (except
for partial prepayments which cause a reduction in the Obligor's
periodic payment to below the Scheduled Payment as of the Cutoff
Date) shall be added to the Payahead Balance, and shall be applied
to prepay the Actuarial Receivable but only if the sum of such
excess and the previous Payahead Balance shall be sufficient to
prepay the Actuarial Receivable in full, otherwise such excess
shall constitute a Payahead, and shall increase the Payahead
Balance.
SECTION 4.4 Advances. (a) As of the close of business on the last
day of each Collection Period, if the payments by or on behalf of the Obligor
on an Actuarial Receivable (other than a Purchased Receivable) after
application under Section 4.3 shall be less than the Scheduled Payment,
whether as a result of any extension granted to the Obligor or otherwise, the
Payahead Balance, if any, with respect to such Receivables shall be applied
by the Indenture Trustee to the extent of the shortfall, and such Payahead
Balance shall be reduced accordingly. Next, subject to the following
sentence, the Servicer shall make an advance of any remaining shortfall (such
amount, an "Actuarial Advance"). The Servicer will be obligated to make an
Actuarial Advance in respect of an Actuarial Receivable only to the extent
that the Servicer, in its sole discretion, shall determine that the Actuarial
Advance shall be recoverable from subsequent collections or recoveries on any
Actuarial Receivable. With respect to each Actuarial Receivable, the
Actuarial Advance shall increase Outstanding Actuarial Advances. Outstanding
Actuarial Advances shall be reduced by subsequent payments by or on behalf of
the Obligor, collections of Liquidation Proceeds and payments of the Purchase
Amount.
If the Servicer shall determine that an Outstanding Actuarial
Advance with respect to any Actuarial Receivable shall not be recoverable,
the Servicer shall be reimbursed from any collections made on other
Receivables in the Trust, and Outstanding Actuarial Advances with respect to
such Actuarial Receivable shall be reduced accordingly.
(b) As of the close of business on the last day of each
Collection Period, the Servicer shall advance an amount equal to the amount
of interest due on the Simple Interest Receivables at their respective APRs
for the related Collection Period (assuming the Simple Interest Receivables
pay on their respective due dates) minus the amount of interest actually
received on the Simple Interest Receivables during the related Collection
Period (such amount, a "Simple Interest Advance"). With respect to each
Simple Interest Receivable, the Simple Interest Advance shall increase
Outstanding Simple Interest Advances. If such calculation results in a
negative number, an amount equal to such negative number shall be paid to the
Servicer and the amount of Outstanding Simple Interest Advances shall be
reduced by such amount. In addition, in the event that a Simple Interest
Receivable becomes a Liquidated Receivable, Liquidation Proceeds with respect
to a Simple Interest Receivable attributable to accrued and unpaid interest
thereon (but not including interest for the then current Collection Period)
shall be paid to the Servicer to reduce Outstanding Simple Interest Advances,
but only to the extent of any Outstanding Simple Interest Advances. The
Servicer shall not make any advance in respect of principal of Simple
Interest Receivables.
If the Servicer shall determine that an Outstanding Simple
Interest Advance with respect to any Simple Interest Receivable shall not be
recoverable, the Servicer shall be reimbursed from any collections made on
other Receivables in the Trust, but only to the extent that such Outstanding
Simple Interest Advance represents accrued and unpaid interest on such Simple
Interest Receivable. Outstanding Simple Interest Advances with respect to
such Simple Interest Receivable shall be reduced by the amount of such
reimbursement.
(c) In the event that an Obligor shall prepay a Receivable in
full, if the related contract did not require such Obligor to pay a full
month's interest, for the month of prepayment, at the APR, the Servicer shall
make an unreimbursable advance of the amount of such interest.
SECTION 4.5 Additional Deposits to Collection Account and
Withdrawals from Reserve Account. (a) The Servicer shall deposit in the
Collection Account the aggregate Advances pursuant to Sections 4.4(a) and (b)
and the aggregate advances pursuant to Section 4.4(c). The Servicer and the
Seller shall deposit in the Collection Account the aggregate Purchase Amounts
with respect to Purchased Receivables and the Servicer shall deposit therein
all amounts to be paid under Section 9.1. All such deposits with respect to a
Collection Period shall be made, in immediately available funds, on the
Business Day preceding the Distribution Date (or, with the prior consent of
the Rating Agencies, on the Distribution Date) related to such Collection
Period.
(b) The Indenture Trustee shall, on the Distribution Date
relating to each Collection Period, make withdrawals from the Reserve Account
(i) first, in an amount equal to the Reserve Account Release Amount, (ii)
second, in an amount equal to the amount (if positive) calculated by the
Servicer pursuant to the second sentence of Section 4.6(b), (iii) third, in
an amount equal to the amount (if positive) calculated by the Servicer
pursuant to the third sentence of Section 4.6(b) and (iv) fourth, in an
amount equal to the amount (if positive) calculated by the Servicer pursuant
to the fourth sentence of Section 4.6(b), and, in each case, shall deposit
such funds into the Collection Account.
SECTION 4.6 Distributions. (a) On each Distribution Date, the
Indenture Trustee shall cause to be made the following transfers and
distributions in the amounts set forth in the Servicer's Certificate for such
Distribution Date:
(i) From the Payahead Account, or from the
Servicer in the event the provisions of Section 4.1(e) above are
applicable, to the Collection Account, in immediately available
funds, (x) the portion of Payaheads constituting Scheduled
Payments or prepayments in full, required by Sections 4.3 and
4.4(a), and (y) the Payahead Balance, if any, relating to any
Purchased Receivable.
(ii) From the Collection Account to the Payahead
Account, or to the Servicer in the event the provisions of
Section 4.1(e) above are applicable, in immediately available funds,
the aggregate Payaheads required by Section 4.3 for the Collection
Period related to such Distribution Date.
(iii) From the Collection Account to the Servicer,
in immediately available funds, repayment of Outstanding Advances
pursuant to Sections 4.4(a) and (b).
(b) Prior to each Distribution Date, the Servicer shall on or
before each Determination Date calculate the Available Collections, the
Reserve Account Release Amount, the Available Funds, the Servicing Fee and
all unpaid Servicing Fees from prior Collection Periods, if any, any Net Swap
Payments, any Net Swap Receipts, any Swap Termination Payments, 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. In addition, the Servicer shall calculate on
or before each Determination Date the difference, if any, between the Total
Required Payment and the Available Funds and, pursuant to Section 4.5(b), the
Indenture Trustee shall withdraw funds from the Reserve Account in an amount
equal to the lesser of such difference (if positive) or the balance of such
Reserve Account. On or before the Determination Date immediately preceding
the Final Scheduled Distribution Date with respect to any Class of Notes or
the Class D Certificates, the Servicer shall calculate the difference, if
any, between (i) 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 4.6(c) and (d), and (ii) the sum of the Available Funds plus the
amount withdrawn from the Reserve Account in accordance with the preceding
sentence, and pursuant to Section 4.5(b), the Indenture Trustee shall
withdraw funds from the Reserve Account in the amount of such difference (if
positive). The Servicer also shall calculate, on or before each Determination
Date, (i) the sum of the Available Funds plus the amounts withdrawn from the
Reserve Account in accordance with the two immediately preceding sentences
plus the amount remaining on deposit in the Reserve Account after the
withdrawal of such amounts, and (ii) the amount required to pay the Servicing
Fee and principal and interest of each Class of Notes and the Class D
Certificates in full in accordance with the priorities set forth in Sections
4.6(c) and (d), and, if the amount determined pursuant to clause (i) of this
sentence is greater than the amount determined pursuant to clause (ii) of
this sentence, the Indenture Trustee, pursuant to Section 4.5(b), shall
withdraw funds from the Reserve Account in an amount which is, together with
Available Funds and the amounts withdrawn from the Reserve Account in
accordance with the two immediately preceding sentences, sufficient to pay
the amount specified in clause (ii) of this sentence.
(c) On each Distribution Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on or before the related Determination Date pursuant to
Section 3.9), to make the following withdrawals from the Collection Account
and make deposits, distributions and payments, to the extent of funds on
deposit in the Collection Account with respect to the Collection Period
preceding such Distribution Date (including funds, if any, deposited therein
from the Reserve Account pursuant to Section 4.5(b) and from the Payahead
Account pursuant to this Section 4.6), in the following order of priority:
(i) first, to the Servicer, the Servicing Fee and all
unpaid Servicing Fees from prior Collection Periods;
(ii) second, to the Swap Counterparties, the
amount of any Net Swap Payments then due under the Interest Rate
Swap Agreements (exclusive of any Swap Termination Payments), pro
rata, based on the Net Swap Payments due to each Swap
Counterparty;
(iii) third, with the same priority and ratably,
in accordance with the outstanding principal balance of the Class
A Notes and the amount of any Swap Termination Payments due and
payable by the Issuer to the Swap Counterparties,
(1) to the Noteholders of Class A Notes,
the Accrued Class A Note Interest, and
(2) to the Swap Counterparties, any Swap
Termination Payments;
provided, that, if any amounts allocable to the Class A Notes are
not needed to pay interest due on such Notes, such amounts shall
be applied to pay the portion, if any, of any Swap Termination
Payments remaining unpaid, pro rata, based on the amount of the
Swap Termination Payments and provided, further, that if there are
not sufficient funds available to pay the entire amount of the
Accrued Class A Note Interest, the amounts available shall be
applied to the payment of such interest on the Class A Notes on a
pro rata basis;
(iv) fourth, to the Principal Distribution Account,
the First Priority Principal Distribution Amount, if any;
(v) fifth, to the Noteholders of Class B Notes,
the Accrued Class B Note Interest; provided that if there are not
sufficient funds available to pay the entire amount of the Accrued
Class B Note Interest, the amounts available shall be applied to
the payment of such interest on the Class B Notes on a pro rata
basis;
(vi) sixth, to the Principal Distribution Account,
the Second Priority Principal Distribution Amount, if any;
(vii) seventh, 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 shall be
applied to the payment of such interest on the Class C Notes on a
pro rata basis;
(viii) eighth, to the Principal Distribution Account,
the Third Priority Principal Distribution Amount, if any;
(ix) ninth, to the Certificate Interest Distribution
Account, the Accrued Class D Certificate Interest;
(x) tenth, to the Reserve Account, the amount, if any,
required to reinstate the amount in the Reserve Account up to the
Specified Reserve Balance;
(xi) eleventh, to the Principal Distribution Account,
the Regular Principal Distribution Amount; and
(xii) twelfth, to the Seller, any funds remaining
on deposit in the Collection Account with respect to the
Collection Period preceding such Distribution Date.
Notwithstanding the foregoing, (A) following the occurrence and
during the continuation of an Event of Default specified in Section 5.1(i),
5.1(ii), 5.1(iv) or 5.1(v) of the Indenture which has resulted in an
acceleration of the Notes (or following the occurrence of any such event
after an Event of Default specified in Section 5.1(iii) of the Indenture has
occurred and the Notes have been accelerated), the Servicer shall instruct
the Indenture Trustee to transfer the funds on deposit in the Collection
Account remaining after the application of clauses (i), (ii) and (iii) above
to the Principal Distribution Account to the extent necessary to reduce the
principal amount of all the Class A Notes to zero, (B) following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(iii) of the Indenture, which has resulted in an acceleration of
the Notes, the Servicer shall instruct the Indenture Trustee to transfer the
funds on deposit in the Collection Account remaining after the application of
clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) above to the Principal
Distribution Account to the extent necessary to reduce the principal amount
of all the Notes to zero, and (C) in the case of an event described in clause
(A) or (B), the Certificateholders will not receive any distributions of
principal or interest until the principal amount and accrued interest on all
the Notes has been paid in full.
(d) On each Distribution Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on or before the related Determination Date pursuant to
Section 3.9), to withdraw the funds on deposit in the Principal Distribution
Account with respect to the Collection Period preceding such Distribution
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 shall 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-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 shall be applied to the payment of principal on the
Class A-2 Notes on a pro rata basis based on the principal
balances of the Class A-2a Notes and the Class A-2b Notes;
(iii) third, to the Noteholders of the Class A-3
Notes in reduction of principal until the principal amount of the
Outstanding Class A-3 Notes has been paid in full; 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 shall be applied to the payment of principal on the
Class A-3 Notes on a pro rata basis based on the principal
balances of the Class A-3a Notes and the Class A-3b Notes;
(iv) fourth, to the Noteholders of the Class A-4
Notes in reduction of principal until the principal amount of the
Outstanding Class A-4 Notes has been paid in full; 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 shall be applied to the payment of principal on the
Class A-4 Notes on a pro rata basis;
(v) fifth, 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 shall be applied to the payment of principal on the Class B
Notes on a pro rata basis;
(vi) sixth, 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 shall be applied to the payment of principal on the
Class C Notes on a pro rata basis;
(vii) seventh, 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; and
(viii) eighth, to the Seller, any funds remaining on
deposit in the Principal Distribution Account.
SECTION 4.7 Reserve Account. (a) (i) The Seller shall, prior to
the Closing Date, establish and maintain an account in the name "JPMorgan
Chase Bank as Indenture Trustee, as secured party from Ford Credit Auto Owner
Trust 2002-B" at a Qualified Institution or Qualified Trust Institution,
which shall be designated as the "Reserve Account" (the Reserve Account,
together with the Collection Account (including the Principal Distribution
Account), the "Trust Accounts"). The Reserve Account shall be under the sole
dominion and control of the Indenture Trustee; provided, that the Servicer
may make deposits to the Reserve Account in accordance with the Basic
Documents and so long as no Default or Event of Default shall have occurred
and be continuing all or a portion of the funds in the Reserve Account shall
be invested by the applicable Qualified Institution or Qualified Trust
Institution maintaining such account at the direction of the Seller in
Permitted Investments without requiring any action from the Indenture
Trustee. The Seller shall not direct the Qualified Institution or Qualified
Trust Institution maintaining the Reserve Account to make any investment of
any funds or to sell any investment held in the Reserve Account unless the
security interest Granted and perfected in such account in favor of the
Indenture Trustee will continue to be perfected in such investment or the
proceeds of such sale, in either case without any further action by any
Person, and, in connection with any direction by the Seller to make any such
investment or sale, if requested by the applicable Qualified Institution or
Qualified Trust Institution, the Seller shall deliver to such Qualified
Institution or Qualified Trust Institution an Opinion of Counsel, acceptable
to such Qualified Institution or Qualified Trust Institution, to such effect.
If (i) the Seller shall have failed to give investment directions for any
funds on deposit in the Reserve Account to the Qualified Institution or
Qualified Trust Institution maintaining such account by 11:00 a.m. New York
Time (or such other time as may be agreed by the Issuer and such Qualified
Institution or Qualified Trust Institution) on the Business Day preceding
each Distribution Date, (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2 of the Indenture
or (iii) the Notes shall have been declared due and payable following an
Event of Default, amounts collected or receivable from the Indenture Trust
Estate are being applied in accordance with Section 5.4 of the Indenture as
if there had not been such a declaration, then the Qualified Institution or
Qualified Trust Institution shall, to the fullest extent practicable, invest
and reinvest funds in the Reserve Account in one or more Permitted
Investments described in clause (b) of the definition thereof. The Reserve
Account will be established and maintained pursuant to an account agreement
which specifies New York law as the governing law. In addition, the Reserve
Account shall be established and maintained at a Qualified Institution or
Qualified Trust Institution which agrees in writing that for so long as the
Notes are outstanding it will comply with entitlement orders (as defined in
Article 8 of the UCC) originated by the Indenture Trustee without further
consent of the Issuer. On the Closing Date, the Seller shall deposit the
Reserve Initial Deposit into the Reserve Account from the net proceeds of the
sale of the Notes and the Certificates. The Reserve Account and all amounts,
securities, investments, financial assets and other property deposited in or
credited to the Reserve Account (such amounts, the "Reserve Account
Property") shall be held by the Indenture Trustee as secured party for the
benefit of the Noteholders and, after payment in full of the Notes, as agent
of the Owner Trustee and as part of the Trust Property, and all deposits to
and withdrawals from therefrom shall be made only upon the terms and
conditions of the Basic Documents.
The Reserve Account Property shall, to the extent permitted by
applicable law, rules and regulations, be invested, as directed in writing by
the Seller, by the bank or trust company then maintaining the Reserve Account
in Permitted Investments that mature not later than the Business Day
preceding the next Distribution Date, and such Permitted Investments shall be
held to maturity; provided, however, that upon satisfaction of the Rating
Agency Condition, funds in the Reserve Account may be invested in Permitted
Investments that will not mature prior to the next Distribution Date and will
not be required to be sold or liquidated to meet any shortfalls that may
occur. All interest and other income (net of losses and investment expenses)
on funds on deposit in the Reserve Account shall be deposited therein. In the
event the Reserve Account is no longer to be maintained at the corporate
trust department of JPMorgan Chase Bank, the Seller shall, with the Indenture
Trustee's or Owner Trustee's assistance as necessary, cause the Reserve
Account to be moved to a Qualified Institution or a Qualified Trust
Institution within ten (10) Business Days (or such longer period not to
exceed thirty (30) calendar days as to which each Rating Agency may consent).
(ii) With respect to Reserve Account Property:
(A) any Reserve Account Property that is a
"financial asset" as defined in Section
8-102(a)(9) of the UCC shall be physically
delivered to, or credited to an account in the
name of, the Qualified Institution or Qualified
Trust Institution maintaining the Reserve Account
in accordance with such institution's customary
procedures such that such institution establishes
a "securities entitlement" in favor of the
Indenture Trustee with respect thereto; and
(B) any Reserve Account Property that is held in
deposit accounts shall be held solely in the name
of the Indenture Trustee at one or more depository
institutions having the Required Rating and each
such deposit account shall be subject to the
exclusive custody and control of the Indenture
Trustee and the Indenture Trustee shall have sole
signature authority with respect thereto.
(iii) Except for any deposit accounts specified in clause
(ii)(B) above, the Reserve Account shall only be invested in
securities or in other assets which the Qualified Institution or
Qualified Trust Institution maintaining the Reserve Account agrees
to treat as "financial assets" as defined in Section 8-102(a)(9)
of the UCC.
(b) If the Servicer pursuant to Section 4.4 determines on or
before any Determination Date that it is required to make an Advance and does
not do so from its own funds, the Servicer shall promptly instruct the
Indenture Trustee in writing to withdraw funds, in an amount specified by the
Servicer, from the Reserve Account and deposit them in the Collection Account
to cover any shortfall. Such payment shall be deemed to have been made by the
Servicer pursuant to Section 4.4 for purposes of making distributions
pursuant to this Agreement, but shall not otherwise satisfy the Servicer's
obligation to deliver the amount of the Advances to the Indenture Trustee,
and the Servicer shall within two Business Days replace any funds in the
Reserve Account so used.
(c) Following the payment in full of the aggregate principal
amount of the Notes and the Aggregate Certificate Balance and of all other
amounts owing or to be distributed hereunder or under the Indenture or the
Trust Agreement to Noteholders and Certificateholders and the termination of
the Trust, any remaining Reserve Account Property shall be distributed to the
Seller.
(d) The Seller shall be permitted to sell, transfer, convey or
assign in any manner its rights in the Reserve Account under this Section
4.7(c), together with its rights to receive amounts under Section 4.6(c)(xii)
of this Agreement and Sections 5.4(b)(xiv) and 8.2(c)(xii) of the Indenture,
provided that each of the following:
(i) the Rating Agency Condition is satisfied with
respect such action;
(ii) such action shall not, as evidenced by an
Opinion of Counsel, cause the Issuer to be characterized for
federal or any then Applicable Tax State income tax purposes as an
association taxable as a corporation; and
(iii) the transferee or assignee agrees in writing
to take positions for federal and any Applicable Tax State income
tax purposes consistent with the tax positions taken previously by
the Seller.
SECTION 4.8 Net Deposits. For so long as (i) Ford Credit shall be
the Servicer, (ii) the Servicer shall be entitled pursuant to Section 4.2 to
remit collections on a monthly basis rather than within two Business Days of
receipt, and (iii) the Servicer shall be entitled pursuant to Section 4.1(e)
to retain Payaheads rather than deposit them in the Payahead Account, Ford
Credit may make the remittances pursuant to Sections 4.2 and 4.5 above, net
of amounts to be distributed to Ford Credit pursuant to Section 4.6(c).
Nonetheless, the Servicer shall account for all of the above described
remittances and distributions except for the Supplemental Servicing Fee in
the Servicer's Certificate as if the amounts were deposited and/or
transferred separately.
SECTION 4.9 Statements to Noteholders and Certificateholders. On
each Distribution Date, the Servicer shall provide to the Indenture Trustee
(with copies to the Rating Agencies, each Swap Counterparty and each Note
Paying Agent) for the Indenture Trustee to forward to each Noteholder of
record as of the most recent Record Date (which delivery by the Indenture
Trustee to the Noteholders may be made by making such statement available to
the Noteholders through the Indenture Trustee's website, which initially is
located at xxxx://xxx.xxxxxxxx.xxx/xxxxxx) and to the Owner Trustee (with
copies to the Rating Agencies and to each Certificate Paying Agent) for the
Owner Trustee to forward to each Certificateholder of record as of the most
recent Record Date a statement based on information in the Servicer's
Certificate furnished pursuant to Section 3.9, setting forth for the
Collection Period relating to such Distribution Date the following
information as to the Notes and the Certificates to the extent applicable:
(i) the amount of such distribution allocable to
principal allocable to the Notes and to the Certificate Balance;
(ii) the amount of such distribution allocable to
interest allocable to the Notes and the Certificates;
(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 Distribution Date;
(vi) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period and the
amount of any unpaid Servicing Fees and the change in such amount
from that of the prior Distribution Date;
(vii) the amounts of the Noteholders' Interest
Carryover Shortfall and the Certificateholders' Interest Carryover
Shortfall, if any, on such Distribution Date and the change in
such amounts from the preceding Distribution Date;
(viii) the aggregate outstanding principal amount
of each Class of Notes, the Note Pool Factor for each Class of
Notes, the Certificate Balance of the Class D Certificates and the
Certificate Pool Factor for the Class D Certificates as of such
Distribution Date;
(ix) the amount of any previously due and unpaid
payment of principal of the Notes or of the Certificate Balance,
as applicable, and the change in such amount from that of the
prior Distribution Date;
(x) the balance of the Reserve Account on such
Distribution Date, after giving effect to distributions made on
such Distribution Date and the change in such balance from the
preceding Distribution 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
Distribution Date (stating separately the amount of Actuarial
Advances and Simple Interest Advances).
Each amount set forth on the Distribution Date statement pursuant
to clauses (i), (ii), (vi), (vii) and (ix) above shall be expressed as a
dollar amount per $1,000 of original principal amount or original Certificate
Balance of a Note or a Certificate, as applicable.
ARTICLE V
Intentionally Omitted
ARTICLE VI
THE SELLER
SECTION 6.1 Representations and Warranties of Seller. The Seller
makes the following representations and warranties on which the Issuer is
deemed to have relied in acquiring the Trust Property. The representations
and warranties speak as of the execution and delivery of this Agreement and
shall survive the conveyance of the Trust Property to the Issuer and the
pledge thereof by the Issuer to the Indenture Trustee pursuant to the
Indenture:
(a) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a limited 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 business as such
properties shall be currently owned and such business is presently conducted,
and had at all relevant times, and shall have, power, authority and legal
right to acquire and own the Receivables.
(b) Due Qualification. The Seller shall be duly qualified to do
business as a foreign limited liability company in good standing, and shall
have obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) Power and Authority. The Seller shall have the power and
authority to execute and deliver this Agreement and the other Basic Documents
to which it is a party and to carry out their terms. The Seller shall have
full power and authority to convey and assign the property to be conveyed and
assigned to and deposited with the Issuer and has duly authorized such
conveyance and assignment to the Issuer by all necessary action; and the
execution, delivery, and performance of this Agreement and the other Basic
Documents to which it is a party shall have been duly authorized, executed
and delivered by the Seller by all necessary action.
(d) Valid Conveyance; Binding Obligation. This Agreement shall
evidence a valid transfer, assignment and conveyance of the Receivables and
the other Trust Property conveyed by the Seller to the Issuer hereunder,
enforceable against creditors of and purchasers from the Seller; and this
Agreement and the other Basic Documents to which the Seller is a party
constitute legal, valid, and binding obligations of the Seller, enforceable
against the Seller in accordance with their terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to
general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Seller is a party and the fulfillment of the terms hereof and thereof will
not conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or both) a
default under the Certificate of 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, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the Certificates,
or (iv) relating to the Seller and which might adversely affect the federal
or Applicable Tax State income, excise, franchise or similar tax attributes
of the Notes or the Certificates.
(g) 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 6.2 Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement, and hereby agrees
to the following:
(a) The Seller shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee from and against any
taxes that may at any time be asserted against any such Person with respect
to, and as of the date of, the conveyance of the Receivables to the Issuer or
the issuance and original sale of the Notes and the Certificates, including
any sales, gross receipts, general corporation, tangible personal property,
privilege, or license taxes (but, in the case of the Issuer, not including
any taxes asserted with respect to ownership of the Receivables or federal or
other Applicable Tax State income taxes arising out of the transactions
contemplated by this Agreement and the other Basic Documents) and costs and
expenses in defending against the same.
(b) The Seller shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any loss, liability or expense incurred
by reason of (i) the Seller's willful misfeasance, bad faith, or negligence
(other than errors in judgment) in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and duties
under this Agreement and (ii) the Seller's violation of federal or State
securities laws in connection with the registration or the sale of the Notes
or the Certificates.
(c) The Seller shall indemnify, defend and hold harmless the
Owner Trustee and the Indenture Trustee and their respective officers,
directors, employees and agents from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in connection with
the acceptance or performance of the trusts and duties contained herein and
in the Trust Agreement, in the case of the Owner Trustee, and in the
Indenture, in the case of the Indenture Trustee, except to the extent that
such cost, expense, loss, claim, damage or liability: (i) in the case of the
Owner Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Owner Trustee or, in the
case of the Indenture Trustee, shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Indenture Trustee;
or (ii) in the case of the Owner Trustee shall arise from the breach by the
Owner Trustee of any of its representations or warranties set forth in
Section 7.3 of the Trust Agreement or (iii) in the case of the Indenture
Trustee shall arise from the breach by the Indenture Trustee of any of its
representations and warranties set forth in the Indenture.
(d) The Seller shall pay any and all taxes levied or assessed
upon all or any part of the Owner Trust Estate.
(e) The Seller shall 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 6.2 with respect to a Receivable shall 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 6.2 shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement and shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Seller shall have made any indemnity payments pursuant to this Section 6.2
and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly
repay such amounts to the Seller, without interest.
(g) The Seller's obligations under this Section 6.2 are
obligations solely of the Seller and shall 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 shall have no right, title or interest in or to the Other Assets of
the Seller. To the extent that, notwithstanding the agreements and provisions
contained in 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 shall
be expressly subordinated to the indefeasible payment in full, 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 shall 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 6.2(f) and the terms of this Section 6.2(f) may be enforced by
an action for specific performance. The provision of this Section 6.2(f)
shall be for the third party benefit of those entitled to rely thereon and
shall survive the termination of this Agreement.
SECTION 6.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Seller shall be a party, (iii) succeeding to the business of the
Seller, or (iv) more than 50% of the voting stock of which is owned directly
or indirectly by Ford Motor Company, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Seller under this Agreement, will be the successor to the Seller under this
Agreement without the execution or filing of any document or any further act
on the part of any of the parties to this Agreement; provided, however, that
(x) the Seller shall have delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such merger, conversion, consolidation or succession and such agreement of
assumption comply with this Section 6.3 and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have been
complied with and (y) the Seller shall have delivered to the Owner Trustee
and the Indenture Trustee an Opinion of Counsel either (A) stating that, in
the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Issuer and the
Indenture Trustee, respectively, in the Receivables and the other Trust
Property, and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve
and protect such interest. The Seller shall provide notice of any merger,
conversion, consolidation, or succession pursuant to this Section 6.3 to the
Rating Agencies. Notwithstanding anything herein to the contrary, the
execution of the foregoing agreement of assumption and compliance with
clauses (x) and (y) above shall be conditions to the consummation of the
transactions referred to in clauses (i), (ii) or (iii) above.
SECTION 6.4 Limitation on Liability of Seller and Others. The
Seller and any officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall not be under any obligation to appear in,
prosecute, or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in
any expense or liability.
SECTION 6.5 Seller May Own Notes or Certificates. The Seller, and
any Affiliate of the Seller, may in its individual or any other capacity
become the owner or pledgee of Notes or Certificates with the same rights as
it would have if it were not the Seller or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Basic Documents. Except
as set forth herein or in the other Basic Documents, Notes and Certificates
so owned by or pledged to the Seller or any such Affiliate shall have an
equal and proportionate benefit under the provisions of this Agreement and
the other Basic Documents, without preference, priority, or distinction as
among all of the Notes and Certificates.
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Trust Property. The representations speak as of the execution
and delivery of this Agreement and shall survive the conveyance of the Trust
Property to the Issuer and the pledge thereof by the Issuer pursuant to the
Indenture:
(a) Organization and Good Standing. The Servicer shall have been
duly organized and shall be validly existing as a corporation in good
standing under the laws of the State of its incorporation, with power and
authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is presently conducted,
and had at all relevant times, and shall have, power, authority, and legal
right to acquire, own, sell and service the Receivables and to hold the
Receivable Files as custodian on behalf of the Issuer and the Indenture
Trustee.
(b) Due Qualification. The Servicer shall be duly qualified to do
business as a foreign corporation in good standing, and shall have obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including the
servicing of the Receivables as required by this Agreement) shall require
such qualifications.
(c) Power and Authority. The Servicer shall have the power and
authority to execute and deliver this Agreement and the other Basic Documents
to which it is a party and to carry out their terms, and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which it is a party shall have been duly authorized, executed and delivered
by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which the Servicer is a party constitute legal, valid, and
binding obligations of the Servicer, enforceable against the Servicer in
accordance with their terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Servicer is a party and the fulfillment of the terms hereof and thereof shall
not conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or both) a
default under (in each case material to the Servicer and its subsidiaries
considered as a whole), the articles of incorporation or by-laws of the
Servicer, or any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument to
which the Servicer is a party or by which it shall be bound, nor result in
the creation or imposition of any lien, charge or encumbrance (in each case
material to the Servicer and its subsidiaries considered as a whole) upon any
of its properties pursuant to the terms of any such indenture, mortgage, deed
of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument (other than this Agreement); nor violate any law or,
to the best of the Servicer's knowledge, any order, rule, or regulation
applicable to the Servicer of any court or any federal or State regulatory
body, administrative agency, or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the Certificates,
or (iv) relating to the Servicer and which might adversely affect the federal
or Applicable Tax State income, excise, franchise or similar tax attributes
of the Notes or the Certificates.
SECTION 7.2 Indemnities of Servicer. The Servicer shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, and hereby agrees to the
following:
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders and the Seller from and against any and
all costs, expenses, losses, damages, claims and liabilities, arising out of
or resulting from the use, ownership or operation by the Servicer or any
Affiliate thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee and the Indenture Trustee
from and against any taxes that may at any time be asserted against any such
Person with respect to the transactions contemplated herein or in the other
Basic Documents, if any, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property, privilege, or
license taxes (but, in the case of the Issuer, not including any taxes
asserted with respect to, and as of the date of, the conveyance of the
Receivables to the Issuer or the issuance and original sale of the Notes and
the Certificates, or asserted with respect to ownership of the Receivables,
or federal or other Applicable Tax State income taxes arising out of the
transactions contemplated by this Agreement and the other Basic Documents)
and costs and expenses in defending against the same.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders and the Seller from and against any and
all costs, expenses, losses, claims, damages, and liabilities to the extent
that such cost, expense, loss, claim, damage, or liability arose out of, or
was imposed upon any such Person through, the negligence, willful
misfeasance, or bad faith (other than errors in judgment) of the Servicer in
the performance of its duties under this Agreement or any other Basic
Document to which it is a party, or by reason of reckless disregard of its
obligations and duties under this Agreement or any other Basic Document to
which it is a party.
(d) The Servicer shall indemnify, defend, and hold harmless the
Owner Trustee, the Delaware Trustee and the Indenture Trustee, as applicable,
from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained herein and in the other Basic
Documents, if any, except to the extent that such cost, expense, loss, claim,
damage, or liability: (i) shall be due to the willful misfeasance, bad faith,
or negligence (except for errors in judgment) of the Owner Trustee, the
Delaware Trustee or the Indenture Trustee, as applicable; (ii) in the case of
the Owner Trustee, shall arise from the Owner Trustee's breach of any of its
representations or warranties set forth in Section 7.3 of the Trust Agreement
or, in the case of the Indenture Trustee, from the Indenture Trustee's breach
of any of its representations or warranties set forth in the Indenture; or
(iii) in the case of the Indenture Trustee, shall arise out of or be incurred
in connection with the performance by the Indenture Trustee of the duties of
a Successor Servicer hereunder.
For purposes of this Section 7.2, in the event of the termination
of the rights and obligations of Ford Credit (or any successor thereto
pursuant to Section 8.2) as Servicer pursuant to Section 8.1, or a
resignation by such Servicer pursuant to this Agreement, such Servicer shall
be deemed to continue to be the Servicer pending appointment of a Successor
Servicer (other than the Indenture Trustee) pursuant to Section 8.2.
(e) Indemnification under this Section 7.2 by Ford Credit (or any
successor thereto pursuant to Section 8.2) as Servicer, with respect to the
period such Person was (or was deemed to be) the Servicer, shall survive the
termination of such Person as Servicer or a resignation by such Person as
Servicer as well as the termination of this Agreement or the resignation or
removal of the Owner Trustee, the Delaware Trustee or the Indenture Trustee
and shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant
to this Section 7.2 and the Person to or on behalf of whom such payments are
made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Servicer, without interest.
SECTION 7.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (i) into which the Servicer may be
merged or consolidated, (ii) resulting from any merger, conversion, or
consolidation to which the Servicer shall be a party, (iii) succeeding to the
business of the Servicer, or (iv) so long as Ford Credit acts as Servicer,
any corporation more than 50% of the voting stock of which is owned directly
or indirectly by Ford Motor Company, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Servicer under this Agreement, will be the successor to the Servicer under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties to this Agreement; provided, however,
that (x) the Servicer shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such merger, conversion, consolidation, or succession and such
agreement of assumption comply with this Section 7.3 and that all conditions
precedent provided for in this Agreement relating to such transaction have
been complied with and (y) the Servicer shall have delivered to the Owner
Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed
that are necessary fully to preserve and protect the interest of the Issuer
and the Indenture Trustee, respectively, in the Receivables, and reciting the
details of such filings, or (B) stating that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such interests. The
Servicer shall provide notice of any merger, conversion, consolidation or
succession pursuant to this Section 7.3 to the Rating Agencies.
Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement or assumption and compliance with clauses (x) and (y)
above shall be conditions to the consummation of the transactions referred to
in clauses (i), (ii), or (iii) above.
SECTION 7.4 Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor any of the directors or officers or employees or
agents of the Servicer shall be under any liability to the Issuer, the
Noteholders or the Certificateholders, except as provided under this
Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such
Person against any liability that would otherwise be imposed by reason of
willful misfeasance or bad faith in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement, or by
reason of negligence in the performance of its duties under this Agreement
(except for errors in judgment). The Servicer and any director, officer or
employee or agent of the Servicer may rely in good faith on any Opinion of
Counsel or on any Officer's Certificate of the Seller or certificate of
auditors believed to be genuine and to have been signed by the proper party
in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not
be under any obligation to appear in, prosecute, or defend any legal action
that shall not be incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may involve it in any
expense or liability; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties to this Agreement and the
interests of the Noteholders and Certificateholders under this Agreement. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Servicer.
SECTION 7.5 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 corporation more than 50% of the voting stock of which is
owned, directly or indirectly, by Ford Motor Company. The Servicer may at any
time perform specific duties as servicer under the Agreement through
sub-contractors; provided that no such delegation or subcontracting shall
relieve the Servicer of its responsibilities with respect to such duties as
to which the Servicer shall remain primarily responsible with respect thereto
and the Servicer shall be solely responsible for the fees of any such
sub-contractors.
SECTION 7.6 Ford Credit Not to Resign as Servicer. Subject to the
provisions of Section 7.3, Ford Credit shall not resign from the obligations
and duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties under this Agreement shall
no longer be permissible under applicable law. Notice of any such
determination permitting the resignation of Ford Credit shall be communicated
to the Owner Trustee and the Indenture Trustee at the earliest practicable
time (and, if such communication is not in writing, shall be confirmed in
writing at the earliest practicable time) and any such determination shall be
evidenced by an Opinion of Counsel to such effect delivered to the Owner
Trustee and the Indenture Trustee concurrently with or promptly after such
notice. No such resignation shall become effective until the Indenture
Trustee or a Successor Servicer shall have (i) taken the actions required by
Section 8.1(b), (ii) assumed the responsibilities and obligations of Ford
Credit in accordance with Section 8.2 and (iii) become the Administrator
under the Administration Agreement pursuant to Section 9 thereof.
SECTION 7.7 Servicer May Own Notes or Certificates. The Servicer,
and any Affiliate of the Servicer, may, in its individual or any other
capacity, become the owner or pledgee of Notes or Certificates with the same
rights as it would have if it were not the Servicer or an Affiliate thereof,
except as otherwise expressly provided herein or in the other Basic
Documents. Except as set forth herein or in the other Basic Documents, Notes
and Certificates so owned by or pledged to the Servicer or such Affiliate
shall have an equal and proportionate benefit under the provisions of this
Agreement, without preference, priority or distinction as among all of the
Notes and Certificates.
ARTICLE VIII
SERVICING TERMINATION
SECTION 8.1 Events of Servicing Termination. (a) If any one of
the following events ("Events of Servicing Termination") occur and be
continuing:
(i) Any failure by the Servicer or the Seller to deliver
to the Owner Trustee or the Indenture Trustee any proceeds or
payment required to be so delivered under the terms of the Notes
and the Certificates and this Agreement that shall continue
unremedied for a period of three (3) Business Days after written
notice of such failure is received by the Servicer or the Seller,
as the case may be, from the Owner Trustee or the Indenture
Trustee or after discovery of such failure by an officer of the
Servicer or the Seller, as the case may be; or
(ii) Failure on the part of the Servicer or the Seller
duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer or the Seller, as the case
may be, set forth in the Notes, the Certificates or in this
Agreement, which failure shall (a) materially and adversely affect
the rights of Noteholders or Certificateholders and (b) continue
unremedied for a period of ninety (90) days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given (1) to the Servicer or the Seller,
as the case may be, by the Owner Trustee or the Indenture Trustee,
or (2) to the Owner Trustee, the Indenture Trustee, the Seller and
the Servicer by the Noteholders of Notes evidencing not less than
25% of the 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 shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntary suspend
payment of its obligations or become insolvent;
then the Indenture Trustee shall promptly notify each Rating Agency, and in
each and every case, so long as an Event of Servicing Termination shall not
have been remedied, either the Indenture Trustee or the Noteholders of Notes
evidencing not less than a majority of the 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 then given in writing to the
Servicer (and to the Indenture Trustee and the Owner Trustee if given by the
Noteholders and to the Owner Trustee if given by the Certificateholders)
(with a copy to the Rating Agencies) may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt by
the Servicer of such written notice, all authority and power of the Servicer
under this Agreement, whether with respect to the Notes, the Certificates or
the Trust Property or otherwise, shall pass to and be vested in the Indenture
Trustee or such Successor Servicer as may be appointed under Section 8.2;
and, without limitation, the Indenture Trustee and the Owner Trustee are
hereby authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise.
(b) Upon termination of the Servicer under Section 8.1(a), the
predecessor Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Indenture Trustee or such Successor Servicer
for administration of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with
respect to a Receivable and the delivery of the Receivable Files and the
related accounts and records maintained by the Servicer. All reasonable costs
and expenses (including attorneys' fees) incurred in connection with
transferring the Receivable Files to the Successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to this Section 8.1
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses.
SECTION 8.2 Appointment of Successor Servicer. (a) Upon the
Servicer's receipt of notice of termination pursuant to Section 8.1 or the
Servicer's resignation in accordance with the terms of this Agreement, the
predecessor Servicer shall continue to perform its functions as Servicer
under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the later of (x) the date 45 days from the delivery to the
Indenture Trustee and the Owner Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms of this
Agreement and (y) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's resignation
or termination hereunder, the Issuer shall appoint a Successor Servicer, and
the Successor Servicer shall accept its appointment by a written assumption
in form acceptable to the Owner Trustee and the Indenture Trustee (with a
copy to each Rating Agency). In the event that a Successor Servicer has not
been appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section 8.2, the Indenture Trustee without
further action shall automatically be appointed the Successor Servicer.
Notwithstanding the above, the Indenture Trustee, if it shall be legally
unable so to act, shall appoint, or petition a court of competent
jurisdiction to appoint, any established institution, having a net worth of
not less than $100,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to the Servicer under
this Agreement.
(b) Upon appointment, the Successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties, and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, by the terms and provisions of
this Agreement.
(c) In connection with such appointment, the Indenture Trustee
may make such arrangements for the compensation of such Successor Servicer
out of payments on Receivables as it and such Successor Servicer shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the predecessor Servicer under this Agreement. The Indenture
Trustee and such Successor Servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 8.3 Repayment of Advances. If the identity of the
Servicer shall change, the predecessor Servicer shall be entitled to receive
to the extent of available funds reimbursement for Outstanding Advances
pursuant to Section 4.3 and 4.4, in the manner specified in Section 4.6, with
respect to all Advances made by the predecessor Servicer.
SECTION 8.4 Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, the Servicer
pursuant to this Article VIII, the Indenture Trustee shall give prompt
written notice thereof to Noteholders, and the Owner Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses of record and to each Rating Agency.
SECTION 8.5 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, either Certificate Distribution Account or the Payahead
Account in accordance with this Agreement. Upon any such waiver of a past
Event of Servicing Termination, such Event of Servicing Termination shall
cease to exist, and shall be deemed to have been remedied for every purpose
of this Agreement. No such waiver shall extend to any subsequent or other
event or impair any right consequent thereon. The Issuer shall provide
written notice of any such waiver to the Rating Agencies.
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables. On the last day
of any Collection Period as of which the Pool Factor shall be less than the
Optional Purchase Percentage, the Servicer shall have the option to purchase
the corpus of the Trust. To exercise such option, the Servicer shall deposit
pursuant to Section 4.5 in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables, plus the appraised value of
any other property held by the Trust, such value to be determined by an
appraiser mutually agreed upon by the Servicer, the Owner Trustee and the
Indenture Trustee, and shall succeed to all interests in and to the Trust.
Notwithstanding the foregoing, the Servicer shall not be permitted to
exercise such option unless the amount to be deposited in the Collection
Account pursuant to the preceding sentence is greater than or equal to the
sum of the outstanding principal amount of the Notes and the Aggregate
Certificate Balance and all accrued but unpaid interest (including any
overdue interest) thereon. The amount deposited in the Collection Account
pursuant to this Section 9.1 shall be used on the next Distribution Date to
make payments in full to Noteholders and Certificateholders in the manner set
forth in Article IV.
SECTION 9.2. Succession Upon Satisfaction and Discharge of
Indenture. Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, to the extent
permitted by applicable law, the Indenture Trustee will continue to carry out
its obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Payahead Account and the Collection
Account in accordance with Section 4.6 and making withdrawals from the
Reserve Account in accordance with Section 4.5(b) and Section 4.7.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 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, Swap
Counterparties 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, Swap Counterparties or Certificateholders; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel delivered
to the Owner Trustee and the Indenture Trustee, materially and adversely
affect the interests of any Noteholder or Certificateholder or adversely
affect the rights or obligations of the Swap Counterparties under the
Interest Rate Swap Agreements or modify the obligations of, or impair the
ability of the Issuer to fully perform any of its obligations under, the
Interest Rate Swap Agreements; and provided further that such action shall
not, as evidenced by an Opinion of Counsel, cause the Issuer to be
characterized for federal or any then Applicable Tax State income tax
purposes as an association taxable as a corporation.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Issuer, with the consent of the Swap
Counterparties to the extent such amendment adversely affects the rights or
obligations of the Swap Counterparties under the Interest Rate Swap
Agreements or modifies the obligations of, or impairs the ability of the
Issuer to fully perform any of its obligations under, the Interest Rate Swap
Agreements (which consent may not be unreasonably withheld), and with the
consent of the Owner Trustee to the extent that its rights or obligations may
be affected thereby (which consent may not be unreasonably withheld) and with
the consent of (i) the Indenture Trustee, to the extent that its rights or
obligations would be affected by such amendment, (ii) the Noteholders of
Notes evidencing not less than a majority of the Note Balance of each Class
of the Notes and (iii) 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 10.1 or pursuant to any other provision of this Agreement
shall be conclusive and binding on such Note or Certificate, as the case may
be, and on all future Noteholders of such Note or Certificateholders of such
Certificate, as the case may be, and of any Note or Certificate, as
applicable, issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon such Note
or the Certificate), for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (A)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that shall be required to be made on any Note
or Certificate or change any Note Interest Rate or any Certificate Rate or,
without satisfaction of the Rating Agency Condition, the Specified Reserve
Balance, without the consent of all adversely affected Noteholders or
Certificateholders or (B) reduce the aforesaid percentage required to consent
to any such amendment, without the consent of the Noteholders of all Notes
and Certificateholders of all Certificates affected thereby; and provided
further that such action shall not, as evidenced by an Opinion of Counsel,
cause the Issuer to be characterized for federal or any then Applicable Tax
State income tax purposes as an association taxable as a corporation.
(c) Prior to the execution of any such amendment or consent the
Servicer will provide, and the Owner Trustee shall distribute, written
notification of the substance of such amendment or consent to each Rating
Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall mail a copy to the Swap Counterparties and
shall 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 shall not be necessary
for the consent of Noteholders or the Certificateholders pursuant to this
Section 10.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Noteholders and Certificateholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof by
Noteholders and Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee and the Indenture Trustee may prescribe,
including the establishment of record dates pursuant to paragraph number 2 of
the Note Depository Agreement.
(e) Prior to the execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement and the Opinion of Counsel
referred to in Section 10.2(i)(1). The Owner Trustee or the Indenture Trustee
may, but shall not be obligated to, enter into any such amendment which
affects such Owner Trustee's or Indenture Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 10.2 Protection of Title to Trust Property. (a) The
Seller shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain, and
protect the interest of the Issuer and the Indenture Trustee for the benefit
of the Noteholders in the Receivables and in the proceeds thereof. The Seller
shall deliver (or cause to be delivered) to the Owner Trustee and the
Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might
make any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning
of ss. 9-506 of the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least five (5) days' prior written notice thereof, with
a copy to the Rating Agencies, and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Owner Trustee and
the Indenture Trustee at least sixty (60) days' prior written notice of any
relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall promptly file any such amendment or
new financing statement. The Servicer shall at all times maintain each office
from which it shall service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, the Payahead Account and the Reserve Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of conveyance under this Agreement of the Receivables
to the Issuer, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly the interest of
the Issuer and the Indenture Trustee in such Receivable and that such
Receivable is owned by the Issuer and has been pledged to the Indenture
Trustee pursuant to the Indenture. Indication of the Issuer's and the
Indenture Trustee's interest in a Receivable shall not be deleted from or
modified on the Servicer's computer systems until, and only until, the
Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender, or other
transferee, the Servicer shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs (including any
restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable has
been conveyed to and is owned by the Issuer and has been pledged to the
Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice, shall
permit the Owner Trustee, the Indenture Trustee and their respective agents
at any time during normal business hours to inspect, audit, and make copies
of and to obtain abstracts from the Servicer's records regarding any
Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee
and the Indenture Trustee, within twenty (20) Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part of the
Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee:
(1) promptly after the execution and delivery of
this Agreement and of each amendment thereto, an Opinion of
Counsel either (A) stating that, in the opinion of such Counsel,
all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Issuer and the Indenture Trustee in
the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such Counsel, no
such action shall be necessary to preserve and protect such
interest; and
(2) within 120 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Cutoff Date, an Opinion of
Counsel, dated as of a date during such 120-day period, either (A)
stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee in the
Receivables, and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or
(B) stating that, in the opinion of such Counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Notes and the Certificates to be registered with the Securities and
Exchange Commission pursuant to Section 12(b) or Section 12(g) of the
Securities Exchange Act of 1934 within the time periods specified in such
sections.
(k) For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 10.3 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.4 Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in
the case of the Seller or the Servicer, to the agent for service as specified
in Section 10.11 hereof, or at such other address as shall be designated by
the Seller or the Servicer in a written notice to the Owner Trustee and the
Indenture Trustee, (b) in the case of the Owner Trustee, at the Corporate
Trust Office of the Owner Trustee, (c) in the case of the Indenture Trustee,
at the Corporate Trust Office of the Indenture Trustee, (d) in the case of
Xxxxx'x Investors Service, Inc., at the following address: Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (e) in the case of Standard & Poor's, at the following address:
Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Surveillance Department, (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, and (g) in the case of
the Swap Counterparty, Credit Suisse First Boston International, One Xxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxxx. Any notice required or permitted to be
mailed to a Noteholder or Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Person as shown in the Note
Register or the Certificate Register, as applicable. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed
to have been duly given, whether or not the Noteholder or Certificateholder
shall receive such notice.
SECTION 10.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or
of the Notes, the Certificates or the rights of the holders thereof.
SECTION 10.6 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.3 and 8.2 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 10.7 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 10.8 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges therein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 10.9 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Noteholders,
the Certificateholders, the Indenture Trustee, the Delaware Trustee and the
Owner Trustee and their respective successors and permitted assigns and each
of the Indenture Trustee, the Delaware Trustee and the Owner Trustee may
enforce the provisions hereof as if they were parties thereto. Except as
otherwise provided in this Article X, 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 10.10 Actions by Noteholders or Certificateholders. (a)
Wherever in this Agreement a provision is made that an action may be taken or
a notice, demand, or instruction given by Noteholders or Certificateholders,
such action, notice, or instruction may be taken or given by any Noteholder
or Certificateholder, as applicable, unless such provision requires a
specific percentage of Noteholders or Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver, or other act by a Noteholder or Certificateholder shall bind
such Noteholder or Certificateholder and every subsequent holder of such Note
or Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or omitted
to be done by the Owner Trustee, the Indenture Trustee or the Servicer in
reliance thereon, whether or not notation of such action is made upon such
Note or Certificate.
SECTION 10.11 Agent for Service. The agent for service of the
Seller and the Servicer in respect of this Agreement shall be Xxxxx Xxxxxx,
Esq., Office of the General Counsel of Ford Motor Company, Ford Motor Company
World Headquarters, Office of the General Counsel, Xxx Xxxxxxxx Xxxx, Xxxxx
0000-X0, Xxxxxxxx, Xxxxxxxx 00000.
SECTION 10.12 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 10.12 shall survive the resignation or removal of the Owner Trustee
under the Trust Agreement or the Indenture Trustee under the Indenture or the
termination of this Agreement.
SECTION 10.13 Limitation of Liability of Owner Trustee and
Indenture Trustee. (a) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by The Bank of New York not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall The Bank of New York in its individual capacity
or, except as expressly provided in the Trust Agreement, as Owner Trustee of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by JPMorgan Chase Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
JPMorgan Chase Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
SECTION 10.14 Savings Clause. It is the intention of the Seller
and the Issuer that the transfer of the Trust Property contemplated herein
constitute an absolute transfer of the Trust Property, conveying good title
to the Trust Property from the Seller to the Issuer. However, in the event
that such transfer is deemed 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 the Notes
and the Certificates, and in such event, this Agreement shall constitute a
security agreement under applicable law.
IN WITNESS WHEREOF, the parties have caused this Sale and
Servicing Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES TWO
LLC, as Seller
By: /s/ Xxxxx Xxxxx-Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxx-Xxxxxxx
Title: Assistant Secretary
FORD CREDIT AUTO OWNER TRUST 2002-B,
as Issuer
By: THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
FORD MOTOR CREDIT COMPANY,
as Servicer
By: /s/ Xxxxx Xxxxx-Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxx-Xxxxxxx
Title: Assistant Secretary
Accepted and agreed:
JPMORGAN CHASE BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
SCHEDULE A
SCHEDULE OF RECEIVABLES
Delivered to Indenture Trustee at Closing
SCHEDULE B-1
Location of Receivable Files
at Ford Credit Branch Offices
Akron
-----
175 Montrose Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Albany
------
0 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Albuquerque
-----------
0000 Xxxxxx Xxxx., X.X.
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Amarillo
--------
0000 X. Xxxxxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxx, XX 00000
Anchorage
---------
0000 X Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Appleton
--------
00 Xxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Athens
------
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Atlanta-North
-------------
North Park Town Center
Xxxx. 000, Xxxxx 000
0000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, XX 00000
Atlanta-South
--------------
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
Atlanta/CL
----------
0000 Xxxxxxxxx Xxx. X
Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
Atlantic Region District Office
-------------------------------
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Austin
------
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Baltimore
---------
Xxxxxxxx Corporate
Center One
0000 Xxxxxxxx Xxxx.
Suite 000
Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Baltimore Service Center
------------------------
0000 Xxxxxxxx Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Beaumont
--------
0000 Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Billings
--------
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Birmingham
----------
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Boston-North
------------
Xxx Xxxx Xxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
Boston-South
------------
Xxxxxxxxx Xxxxx
0xx Xxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Bristol
-------
Landmark Center-
Suite A
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Buffalo
-------
00 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Cape Girardeau
--------------
0000-X X. Xx. Xxxxxx Xx.
Xxxx Xxxxxxxxx, XX 00000
Charleston
----------
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 XxXxxxx Xxxx
Xxxxx Xxxxxxxxxx, XX 00000
Charlotte
---------
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Charlotte/CL
------------
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Chattanooga
-----------
0 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Cheyenne
--------
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Chicago-East
------------
Xxx Xxxxx Xxxxx
Xxxxx X
Xxxxxxx, XX 00000
Chicago-North
-------------
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Chicago-West
------------
0000 X. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Chicago/CL
----------
000 XxXxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Cincinnati
----------
0000 Xxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Cleveland
---------
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000-0000
Colorado Springs
----------------
0000 Xxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Columbia
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Columbus
--------
Xxxxx X, Xxxxx 000
000 Xxxxx Xxxxx X
Xxxxxx, XX 00000
Coral Springs
-------------
0000 X. Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Corpus Christi
--------------
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Dallas
------
Xxxxxxxx Forum
Suite 600
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dallas/CL
---------
Xxxxxxxx Forum
Suite 650
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Davenport
---------
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Decatur
-------
000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Denver
------
0000 X. Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Des Moines
----------
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
X. Xxx Xxxxxx, XX 00000
Detroit-North
-------------
0000 X. Xxxx Xxxx Xxxx
Xxxxx 000
Xxxx, XX 00000
Detroit-West
------------
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Detroit/CL
----------
Xxx Xxxxxxxx Xxxx.
Xxxxx 000X
Xxxxxxxx, XX 00000
Dothan
------
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
El Paso
-------
0000 Xxxxxx Xxx Xxxxxx
Xxxxx 000
Xx Xxxx, XX 00000
Eugene
------
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Falls Church
------------
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
XxXxxx, XX 00000
Fargo
-----
0000 00xx Xxx. Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Fayetteville
------------
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Findlay
-------
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Ft. Xxxxx
---------
00000 Xxxxxxx Xxxxx Xx.
Xxxx Xxxxx, XX 00000
Ft. Worth
---------
Xxxxxx Xxxx Xxxxx
Xxxxx 000
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Grand Junction
--------------
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxxxx, XX 00000
Grand Rapids
------------
0000 Xxxxxxxxxx Xxxxx XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Greensboro
----------
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Greenville Service Center
-------------------------
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Harlingen
---------
0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Harrisburg
----------
0000 Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Henderson
---------
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxxx Service Center
------------------------
X.X. Xxx 000000
Xxx Xxxxx, Xxxxxx 00000-0000
Honolulu
--------
Ala Moano Pacific Center
Xxxxx 000
0000 Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Houston-North
-------------
000 X. Xxx Xxxxxxx Xxxx. X.
Xxxxx 000
Xxxxxxx, XX 00000
Houston-West
------------
000 Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Huntington
----------
0000 X.X. Xxxxx 00 *
Xxx, XX 00000
Indianapolis
------------
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Irving Service Center
---------------------
0000 Xxxxxx Xxxx.
Xxxxxx, XX 00000
Jackson
-------
000 Xxxxx Xxxxxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Jacksonville
------------
Suite 310
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Jefferson City
--------------
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Kansas City
-----------
0000 Xxxx 000xx Xxxxxx
Xxxx. #00, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Knoxville
---------
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Lafayette
---------
Xxxxxx Xxxxxx Xxxx
Xxxxx 000
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Lansing
-------
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Las Vegas
---------
000 X Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxx, XX 00000
Little Rock
-----------
0000 Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Long Island
-----------
Xxx Xxxxxxx Xxxxx
0xx Xxxxx Xxxx X
Xxxxxxx, XX 00000
Louisville
----------
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Lubbock
-------
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Macon
-----
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Manchester
----------
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Memphis
-------
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Miami
-----
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Midland
-------
00 Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Milwaukee
---------
00000 X. Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Minneapolis
-----------
One Southwest Crossing
Suite 308
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Mobile
------
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000-0000
Nashville
---------
Xxxxxxxx Xxxxx
Xxxxx 000
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Nashville Service Center
------------------------
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
National Recovery Center
------------------------
0000 X. Xxxxxxxxx
Xxxx, XX 00000
New Haven
---------
00 Xxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
New Jersey-Central
------------------
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
New Jersey-North
----------------
00 Xxxxx Xxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxxxxx, XX 00000
New Jersey-South
----------------
10000 MidAtlantic Dr.
Suite 000 Xxxx
Xx. Xxxxxx, XX 00000
New Orleans
-----------
Lakeway III
0000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxx, XX 00000
Norfolk
-------
Xxxxxxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Oklahoma City
-------------
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxxxxx Xxx Xx.
Xxxxxxxx Xxxx, XX 00000
Omaha
-----
00000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Omaha Customer Service Center
-----------------------------
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Nashville Customer Service Center
---------------------------------
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Orange
------
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orange/CL
---------
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orlando
-------
0000 Xxxxxxxx Xxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Pasadena
--------
000 X. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Pensacola
---------
00 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xx 00000
Philadelphia
------------
Xxx Xxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
000 X. Xxxxxxxxxx Xx.
Xxxxx, XX 00000
Philadelphia/CL
---------------
000 X. Xxxxx Xx.
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Phoenix
-------
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Pittsburgh
----------
Xxxxxx Xxxxx 0
000 Xxxxxxx Xxxxx
0xx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Portland, ME
------------
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Portland, OR
------------
00000 X.X. Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Raleigh
-------
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Richmond
--------
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Roanoke
-------
0000 Xxxxxx Xxxxxx Xxxx.
Xxxxx 0
Xxxxxxx, XX 00000
Sacramento
----------
0000 Xxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Saginaw
-------
0000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Salt Lake City
--------------
000 X. 0000 X.
Xxxxx 000
Xxxxxx, XX 00000
Santa Xxx Central Collections
-----------------------------
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
San Antonio
-----------
000 X.X. Xxxx 000
Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
San Bernardino
--------------
0000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
San Diego
---------
0000 Xxxxxx Xxx Xxx X.
Xxxxx 0000
Xxx Xxxxx, XX 00000
San Francisco
-------------
0000 Xxxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
San Francisco/CL
----------------
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx XX 00000
San Xxxx
--------
0000 XxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Savannah
--------
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Seattle
-------
00000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Shreveport
----------
Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
South Bay
---------
000 X. Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
South Bend
----------
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Spokane
-------
000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000-0000
Springfield
-----------
0000 X. Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
St. Louis
---------
0000 Xxxxx Xxxx Xxxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
St. Xxxx
--------
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Syracuse
--------
0000 Xxxxxxxxxx Xxxx.
XxXxxx, XX 00000
Tampa
-----
Xxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Tampa Service Center
--------------------
0000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Terre Haute
-----------
0000 X. Xxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Tulsa
-----
0000 Xxxx 00xx Xx.
Xxxxx 000
Xxxxx, XX 00000
Ventura
-------
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Washington, D.C.
----------------
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Westchester
-----------
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Western Carolina
----------------
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Wichita
-------
0000 Xxxx 00xx
Xxxxxxx, XX 00000
Schedule B-2
Location of Receivable Files
at Third Party Custodians for Ford Credit
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
---------------------
See Tab 14
