1
EXHIBIT 99.1
================================================================================
SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 1998-B,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO L.P.,
as Seller
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of May 1, 1998
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND USAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.1. Conveyance of Trust Property . . . . . . . . . . . . . 2
SECTION 2.2. Representations and Warranties of the
Seller as to the Receivables . . . . . . . . . . . . . 2
SECTION 2.3. Repurchase upon Breach . . . . . . . . . . . . . . . . 7
SECTION 2.4. Custody of Receivable Files . . . . . . . . . . . . . . 8
SECTION 2.5. Duties of Servicer as Custodian . . . . . . . . . . . . 8
SECTION 2.6. Instructions; Authority to Act . . . . . . . . . . . . 10
SECTION 2.7. Custodian's Indemnification . . . . . . . . . . . . . . 10
SECTION 2.8. Effective Period and Termination . . . . . . . . . . . 10
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.1. Duties of Servicer . . . . . . . . . . . . . . . . . . 12
SECTION 3.2. Collection of Receivable Payments . . . . . . . . . . . 13
SECTION 3.3. Realization Upon Receivables . . . . . . . . . . . . . 13
SECTION 3.4. [Reserved] . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.5. Maintenance of Security Interests in
Financed Vehicles . . . . . . . . . . . . . . . . . . 14
SECTION 3.6. Covenants of Servicer . . . . . . . . . . . . . . . . . 14
SECTION 3.7. Purchase of Receivables Upon Breach . . . . . . . . . . 14
SECTION 3.8. Servicer Fee . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.9. Servicer's Certificate . . . . . . . . . . . . . . . . 15
SECTION 3.10. Annual Statement as to Compliance;
Notice of Event of Servicing
Termination . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.11. Annual Independent Certified Public
Accountant's Report . . . . . . . . . . . . . . . . . 16
SECTION 3.12. Access to Certain Documentation and
Information Regarding Receivables . . . . . . . . . . 17
SECTION 3.13. Servicer Expenses . . . . . . . . . . . . . . . . . . . 18
i
3
Page
----
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS . . . . . . . . . . . . . . 19
SECTION 4.1. Accounts . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.2. Collections . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.3. Application of Collections . . . . . . . . . . . . . . 24
SECTION 4.4. Advances . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.5. Additional Deposits . . . . . . . . . . . . . . . . . . 26
SECTION 4.6. Distributions . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.7. Reserve Account . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.8. Net Deposits . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.9. Statements to Noteholders and
Certificateholders . . . . . . . . . . . . . . . . . 34
ARTICLE V
[Intentionally Omitted]
ARTICLE VI
THE SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.1. Representations and Warranties of
Seller . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.2. Liability of Seller; Indemnities . . . . . . . . . . . 39
SECTION 6.3. Merger or Consolidation of, or Assumption
of the Obligations of, Seller . . . . . . . . . . . . 40
SECTION 6.4. Limitation on Liability of Seller and
Others . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.5. Seller May Own Notes or Certificates . . . . . . . . . 41
ARTICLE VII
THE SERVICER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.1. Representations of Servicer . . . . . . . . . . . . . . 43
SECTION 7.2. Indemnities of Servicer . . . . . . . . . . . . . . . . 44
SECTION 7.3. Merger or Consolidation of, or Assumption
of the Obligations of, Servicer . . . . . . . . . . . 47
SECTION 7.4. Limitation on Liability of Servicer and
Others . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.5. Delegation of Duties . . . . . . . . . . . . . . . . . 48
ii
4
Page
----
SECTION 7.6. Ford Credit Not to Resign as Servicer . . . . . . . . . 48
SECTION 7.7. Servicer May Own Notes or Certificates . . . . . . . . 49
ARTICLE VIII
SERVICING TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.1. Events of Servicing Termination . . . . . . . . . . . . 50
SECTION 8.2. Appointment of Successor Servicer . . . . . . . . . . . 52
SECTION 8.3. Repayment of Advances . . . . . . . . . . . . . . . . . 53
SECTION 8.4. Notification to Noteholders and
Certificateholders . . . . . . . . . . . . . . . . . . 53
SECTION 8.5. Waiver of Past Events of Servicing
Termination . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.1. Optional Purchase of All Receivables . . . . . . . . . 55
SECTION 9.2. Succession Upon Satisfaction and Discharge
of Indenture . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE X
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.1. Amendment . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.2. Protection of Title to Trust . . . . . . . . . . . . . 58
SECTION 10.3. Governing Law . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.4. Notices . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.5. Severability of Provisions . . . . . . . . . . . . . . 62
SECTION 10.6. Assignment . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.7. Further Assurances . . . . . . . . . . . . . . . . . . 62
SECTION 10.8. No Waiver; Cumulative Remedies . . . . . . . . . . . . 62
SECTION 10.9. Third-Party Beneficiaries . . . . . . . . . . . . . . 63
SECTION 10.10. Actions by Noteholders or
Certificateholders . . . . . . . . . . . . . . . . . 63
SECTION 10.11. Agent for Service . . . . . . . . . . . . . . . . . . 63
SECTION 10.12. No Bankruptcy Petition. . . . . . . . . . . . . . . . 64
SECTION 10.13. Limitation of Liability of Owner
Trustee and Indenture Trustee . . . . . . . . . . . . 64
SECTION 10.14. Third-Party Beneficiary . . . . . . . . . . . . . . . 65
SECTION 10.15. Savings Clause . . . . . . . . . . . . . . . . . . . . 65
iii
5
Page
----
SCHEDULE A Schedule of Receivables . . . . . . . . . . . SA-1
SCHEDULE B Location of Receivable Files . . . . . . . . . SB-1
APPENDIX A Definitions and Usage . . . . . . . . . . . . AA-1
iv
6
SALE AND SERVICING AGREEMENT, dated as of May 1, 1998 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 1998-B (the "Issuer"),
a Delaware business trust, FORD CREDIT AUTO RECEIVABLES TWO L.P., a Delaware
limited partnership, as seller (the "Seller"), and FORD MOTOR CREDIT COMPANY, a
Delaware corporation, as servicer (the "Servicer").
WHEREAS, the Issuer desires to acquire a portfolio of receivables
arising in connection with motor vehicle retail installment sale contracts
generated by Ford Motor Credit Company in the ordinary course of its business
and conveyed to the Seller;
WHEREAS, the Seller is willing to convey such receivables 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.
7
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 approximately 102% 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
execution and delivery of this Agreement, 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 by the Seller from Ford Credit, which in turn shall have
purchased such Receivable from such Dealer under an existing dealer agreement
with Ford Credit, and shall have been validly assigned by such Dealer to Ford
Credit, 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
2
8
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 a
Precomputed 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 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
3
9
payment obligation in writing 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 or any State.
(vi) Security Interest in Financed Vehicle. Immediately prior
to the transfer, assignment and conveyance thereof, each Receivable shall be
secured by a validly perfected first 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 the valid perfection of
a first 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 or coordinate 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
4
10
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
procedures, shall have determined that the Obligor has 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 transfer 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 conveyed, transferred, assigned, 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, 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, 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 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 perfected ownership interest in the Receivables, and to give the
Indenture Trustee a first perfected security interest therein, shall have been
made.
5
11
(xvi) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(xvii) One Original. There shall be only one original executed
copy of each Receivable.
(xviii) New and Used Vehicles. Approximately 70.0% of the
aggregate Principal Balance of the Receivables, constituting 62.8% of the
number of Receivables, as of the Cutoff Date, represent vehicles financed at
new vehicle rates, and the remainder of the Receivables represent vehicles
financed at used vehicle rates.
(xix) Amortization Type. By aggregate Principal Balance as of
the Cutoff Date, approximately 22.9% of the Receivables constitute Precomputed
Receivables and 77.1% of the Receivables constitute Simple Interest
Receivables.
(xx) Origination. Each Receivable shall have an origination
date on or after February 1, 1996.
(xxi) Maturity of Receivables. Each Receivable shall have an
original maturity of not greater than sixty (60) months.
(xxii) Minimum Annual Percentage Rate. Each Receivable shall
have an Annual Percentage Rate equal to or greater than 7.75%.
(xxiii) Scheduled Payments. Each Receivable shall have a first
Scheduled Payment due, in the case of Precomputed Receivables, or a first
scheduled due date, in the case of Simple Interest Receivables, on or prior to
May 31, 1998 and no Receivable shall have a payment that is more than thirty
(30) days overdue as of the Cutoff Date.
(xxiv) Location of Receivable Files. The Receivable Files shall
be kept at one or more of the locations listed in Schedule B hereto.
(xxv) No Extensions. The number of Scheduled Payments, in the
case of Precomputed Receivables, and the number of scheduled due dates, in the
case of Simple Interest Receivables, shall not have been extended on any
Receivable on or before the Cutoff Date.
6
12
(xxvi) Rating Agencies. The rating agencies rating the Notes
and the Class C Certificates are Xxxxx'x, Standard & Poor's and Fitch and the
rating agencies rating the Class D Certificates are Standard & Poor's and
Fitch.
(xxvii) Agreement. The representations and warranties of the
Seller in Section 6.1 are true and correct.
(xxviii) No Receivables Originated in Alabama or Pennsylvania.
No Receivable shall have been originated in Alabama or Pennsylvania.
SECTION 2.3. Repurchase upon Breach. The Seller, the Servicer,
the Issuer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement, the Indenture Trustee and Ford Credit promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties made by the Seller pursuant to Section 2.2. Unless the breach shall
have been cured by the last day of the second Collection Period following the
discovery, the Indenture Trustee shall enforce the obligation of the Seller
under this Section 2.3, and, if necessary, the Seller or the Indenture Trustee
shall enforce the obligation of Ford Credit under the Purchase Agreement, to
repurchase any Receivable materially and adversely affected by the breach as of
such last day (or, at the Seller's option, the last day of the first Collection
Period following the discovery). In consideration of the purchase of the
Receivable, the Seller shall remit the Purchase Amount, in the manner specified
in Section 4.5. 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 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.
7
13
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 of the Receivable.
(ii) The original credit application fully executed by
the Obligor or a photocopy thereof or a record thereof on a computer
file or disc 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 procedures, evidencing the security interest of Ford
Credit in the Financed Vehicle.
(iv) Any and all other documents (including any computer
file or disc 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
8
14
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. In accordance with its customary practices 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 to
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.
(c) Release of Documents. Upon written instructions from the
Indenture Trustee, the Servicer shall release 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,
9
15
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 principal amount of
the Notes Outstanding or, with the consent of Noteholders
10
16
of Notes evidencing not less than 25% of the principal amount of the Notes
Outstanding, by the Owner Trustee or by Certificateholders of Certificates
evidencing not less than 25% of the Aggregate Certificate Balance, in the same
manner as the Indenture Trustee or such Securityholders may terminate the
rights and obligations of the Servicer under Section 8.1. As soon as
practicable after any termination of such appointment, the Servicer shall
deliver the Receivable Files and the related accounts and records maintained by
the Servicer to the Indenture Trustee or the Indenture Trustee's agent at such
place or places as the Indenture Trustee may reasonably designate.
11
17
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 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
12
18
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 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 servicing 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 and usual practices 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 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. [Reserved].
13
19
SECTION 3.5. Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary servicing
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 a Precomputed 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. The Seller,
the Servicer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement promptly, 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). 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
14
20
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.
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 (including, in the case of a Receivable that provides for payments
according to the "Rule of 78's" and that is prepaid in full, the difference
between the Principal Balance of such Receivable (plus accrued interest to the
date of prepayment) and the principal balance of such Receivable computed
according to the "Rule of 78's"), 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 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 and the Certificates the Note Pool Factor
for each Class of Notes and the Certificate Pool Factor for each Class of
Certificates as of the close of business on the Distribution Date occurring in
that month.
15
21
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, 1999, 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 the Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. A copy of such Officer's Certificate and the report
referred to in Section 3.11 may be obtained by any Certificateholder by a
request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture
Trustee, in either case addressed to the applicable Corporate Trust Office.
Upon the telephone request of the Owner Trustee, the Indenture Trustee shall
promptly furnish the Owner Trustee a list of Noteholders as of the date
specified by the Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the
Indenture Trustee and each Rating Agency promptly after having obtained
knowledge thereof, but in no event later than five (5) Business Days
thereafter, written notice in an Officer's Certificate of any event which with
the giving of notice or lapse of time, or both, would become an Event of
Servicing Termination under Section 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 (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
16
22
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, 1999 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.
17
23
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.
18
24
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1. Accounts. (a) The Servicer shall, prior to the
Closing Date, establish and maintain a segregated trust account in the name
"The Chase Manhattan Bank as Indenture Trustee, as secured party from Ford
Credit Auto Owner Trust 1998-B", at a Qualified Institution or Qualified Trust
Institution (which shall initially be the corporate trust department of The
Chase Manhattan Bank), which shall be designated as the "Collection Account".
Initially, the Collection Account shall be account number C-27645_and shall
include any successor or replacement accounts thereto. The Collection Account
shall be under the sole dominion and control of the Indenture Trustee;
provided, that the Servicer may make deposits to and direct the Indenture
Trustee in writing to make withdrawals from the Collection Account in
accordance with the terms of the Basic Documents. The Collection Account will
be established and maintained pursuant to an account agreement which specifies
New York law as the governing law. In addition, the Collection Account shall
be established and maintained at a Qualified Institution or Qualified Trust
Institution which agrees in writing that for so long as the Notes are
outstanding it will comply with entitlement orders (as defined in Article 8 of
the UCC) originated by the Indenture Trustee without further consent of the
Issuer. All monies deposited from time to time in the Collection Account shall
be held by the Indenture Trustee as secured party for the benefit of the
Noteholders and, after payment in full of the Notes, as agent of the Owner
Trustee and as part of the Trust Property. All deposits to and withdrawals
from the Collection Account shall be made only upon the terms and conditions of
the Basic Documents.
If the Servicer is required to remit collections pursuant to the
first sentence of Section 4.2, all amounts held in the Collection Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Collection Account in Permitted Investments that mature
not later than the Business Day immediately prior to the Distribution Date for
the Collection Period to
19
25
which such amounts relate and such Permitted Investments shall be held to
maturity. All interest and other income (net of losses and investment
expenses) on funds on deposit in the Collection Account shall be withdrawn from
the Collection Account at the written direction of the Servicer and shall be
paid to the Servicer. In the event that the Collection Account is no longer to
be maintained at the corporate trust department of The Chase Manhattan Bank,
the Servicer shall, with the Indenture Trustee's or Owner Trustee's assistance
as necessary, cause the Collection Account to be moved to a Qualified
Institution or a Qualified Trust Institution within ten (10) Business Days (or
such longer period not to exceed thirty (30) calendar days as to which each
Rating Agency may consent).
(b) The Servicer shall, prior to the Closing Date, establish and
maintain an administrative subaccount within the Collection Account at the bank
or trust company then maintaining the Collection Account, which subaccount
shall be designated as the "Principal Distribution Account". The Principal
Distribution Account is established and maintained solely for administrative
purposes.
(c) The Servicer shall, prior to the Closing Date, establish and
maintain two segregated trust accounts, each in the name "PNC Bank, Delaware as
Owner Trustee" at a Qualified Institution or Qualified Trust Institution (which
shall initially be the corporate trust department of PNC Bank, Delaware), 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 PNC Bank, Delaware, 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
20
26
consent). Each Certificate Distribution Account will be established and
maintained pursuant to an account agreement which specifies New York law as the
governing law.
(d) The Servicer shall, prior to the Closing Date, establish and
maintain a segregated trust account in the name of "The Chase Manhattan Bank as
Indenture Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "Payahead Account". The Payahead
Account shall be held in trust for the benefit of the Obligors. The Payahead
Account shall be under the sole dominion and control of the Indenture Trustee;
provided that the Servicer may make deposits to and direct the Indenture
Trustee in writing to make withdrawals from the Payahead Account in accordance
with the Basic Documents. The Payahead Account shall not be a part of the
Trust Property. All deposits to and withdrawals from the Payahead Account
shall be made only upon the terms and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to the
first sentence of Section 4.2, all amounts held in the Payahead Account shall,
to the extent permitted by applicable law, rules and regulations, be invested,
as directed in writing by the Servicer, by the bank or trust company then
maintaining the Payahead Account in Permitted Investments that mature not later
than the Business Day immediately prior to the Distribution Date for the
Collection Period to which such amounts relate and such Permitted Investments
shall be held to maturity. All interest and other income (net of losses and
investment expenses) on funds on deposit in the Payahead Account shall be
withdrawn from the Payahead Account at the direction of the Servicer and shall
be paid to the Servicer. In the event that the Payahead Account is no longer
to be maintained at the corporate trust department of The Chase Manhattan Bank,
the Servicer shall, with the Indenture Trustee's or Owner Trustee's assistance
as necessary, cause the Payahead Account to be moved to a Qualified Institution
or a Qualified Trust Institution within ten (10) Business Days (or such longer
period not to exceed thirty (30) calendar days as to which each Rating Agency
may consent).
21
27
(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 as any Monthly
Remittance Condition is not satisfied, the Servicer shall deposit in the
Payahead Account the amount of any Payaheads then held or received by it (which
amount shall be at least equal to the Payahead Balance as of the close of
business on the last day of the immediately preceding Collection Period).
Notwithstanding the foregoing, if a Monthly Remittance Condition is not
satisfied the Servicer may utilize, with respect to Payaheads, an alternative
remittance schedule (which may include the remittance schedule utilized by the
Servicer before the Monthly Remittance Condition became unsatisfied), if the
Servicer provides to the Owner Trustee and the Indenture Trustee written
confirmation from each Rating Agency that such alternative remittance schedule
will not result in the downgrading or withdrawal by such Rating Agency of the
ratings then assigned to the Notes and the Certificates. The Owner Trustee and
the Indenture Trustee shall not be deemed to have knowledge of any event or
circumstance under clause (iii) of the first sentence of this Section 4.1(e)
that would require remittance of the Payaheads to the Payahead Account unless
the Owner Trustee or the Indenture Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate or from
the Noteholders of Notes evidencing not less than 25% of the principal amount of
the Notes Outstanding or from the Certificateholders of Certificates evidencing
not less than 25% of the Aggregate Certificate Balance or unless a Trustee
Officer in the Corporate Trust Office with knowledge hereof and familiarity
herewith has actual knowledge of such event or circumstance.
22
28
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 and Rule of 78's Payments, but excluding Purchased Receivables) and
(ii) all Liquidation Proceeds, both as collected during the Collection Period.
Ford Credit, so long as it is acting as the Servicer, may make remittances of
collections on a less frequent basis than that specified in the immediately
preceding sentence. It is understood that such less frequent remittances may
be made only on the specific terms and conditions set forth below in this
Section 4.2 and only for so long as such terms and conditions are fulfilled.
Accordingly, notwithstanding the provisions of the first sentence of this
Section 4.2, the Servicer shall remit collections received during a Collection
Period to the Collection Account in immediately available funds on the Business
Day preceding the related Distribution Date (or, with the prior consent of the
Rating Agencies, on the related Distribution Date) but only for so long as each
Monthly Remittance Condition is satisfied. Notwithstanding the foregoing, if a
Monthly Remittance Condition is not satisfied the Servicer may utilize an
alternative remittance schedule (which may include the remittance schedule
utilized by the Servicer before the Monthly Remittance Condition became
unsatisfied), if the Servicer provides to the Owner Trustee and the Indenture
Trustee written confirmation from each Rating Agency that such alternative
remittance schedule will not result in the downgrading or withdrawal by such
Rating Agency of the ratings then assigned to the Notes and the Certificates.
The Owner Trustee or the Indenture Trustee shall not be deemed to have knowledge
of any event or circumstance under clause (iii) of the definition of Monthly
Remittance Condition that would require remittance by the Servicer to the
Collection Account within two Business Days of receipt as aforesaid unless the
Owner Trustee or the Indenture Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate or from
the Noteholders of Notes evidencing not less than 25% of the principal amount of
the Notes Outstanding or from the Certificateholders of Certificates evidencing
not less than 25% of the Aggregate Certificate Balance or a Trustee Officer in
the Corporate Trust Office with knowledge hereof or familiarity herewith has
actual knowledge of such event or
23
29
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 Precomputed 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 Precomputed Receivable but only if the sum of such
excess and the previous Payahead Balance shall be sufficient to prepay
the Precomputed 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 a Precomputed 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
24
30
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, a "Precomputed Advance").
The Servicer will be obligated to make a Precomputed Advance in respect of a
Precomputed Receivable only to the extent that the Servicer, in its sole
discretion, shall determine that the Precomputed Advance shall be recoverable
from subsequent collections or recoveries on any Precomputed Receivable. With
respect to each Precomputed Receivable, the Precomputed Advance shall increase
Outstanding Precomputed Advances. Outstanding Precomputed 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 Precomputed
Advance with respect to any Precomputed Receivable shall not be recoverable,
the Servicer shall be reimbursed from any collections made on other Receivables
in the Trust, and Outstanding Precomputed Advances with respect to such
Precomputed 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
25
31
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. (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) and (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, in each case, shall deposit such
funds into the Collection Account.
26
32
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, 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 Certificate Interest, 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
the amount of such difference (if positive). On or before the Determination
Date immediately preceding the Final Scheduled Distribution Date with respect to
any Class of Notes or either Class of Certificates, the Servicer shall calculate
the
27
33
difference, if any, between (i) the amount required to pay such Class of Notes
or such Class of Certificates in full in accordance with the priorities set
forth in Sections 4.6(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).
(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 Noteholders of Class A Notes, the
Accrued Class A Note Interest; provided that if there are not sufficient
funds available to pay the entire amount of the Accrued Class A Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class A Notes on a pro rata basis;
(iii) third, to the Principal Distribution Account, the
First Priority Principal Distribution Amount;
(iv) fourth, to the Noteholders of Class B Notes, the
Accrued Class B Note Interest; provided that if there are not sufficient
funds available to pay the entire amount of the Accrued Class B Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class B Notes on a pro rata basis;
28
34
(v) fifth, to the Principal Distribution Account, the
Second Priority Principal Distribution Amount;
(vi) sixth, to the Certificate Interest Distribution
Account, the Accrued Class C Certificate Interest;
(vii) seventh, to the Certificate Interest Distribution
Account, the Accrued Class D Certificate Interest.
(viii) eighth, to the Reserve Account, the amount, if
any, required to reinstate the amount in the Reserve Account up to the
Specified Reserve Balance;
(ix) ninth, to the Principal Distribution Account, the
Regular Principal Distribution Amount; and
(x) tenth, 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) or
(ii) of the Indenture or an Insolvency Event with respect to the Issuer, in
each case which has resulted in an acceleration of the Notes, or following an
Insolvency Event or a dissolution with respect to the Seller or the General
Partner, the Servicer shall instruct the Indenture Trustee to transfer the
funds on deposit in the Collection Account remaining after the application of
clauses (i) and (ii) above to the Principal Distribution Account to the extent
necessary to reduce the principal amount of all the Notes to zero, (B)
following the occurrence and during the continuation of any other Event of
Default, 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)
and (iv) 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
29
35
(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;
(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;
(iv) fourth, to the Noteholders of the Class A-4 Notes in
reduction of principal until the
30
36
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 Certificate Principal Distribution
Account, in reduction of the Certificate Balance of the Class C
Certificates, until the Certificate Balance of the Class C Certificates
has been reduced to zero;
(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 "The Chase
Manhattan Bank as Indenture Trustee, as secured party from Ford Credit Auto
Owner Trust 1998-B" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "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.
31
37
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. All interest and other income (net of losses and investment
expenses) on funds on deposit in the Reserve Account shall be deposited
therein. In the event the Reserve Account is no longer to be maintained at the
corporate trust department of The Chase Manhattan Bank, the Servicer 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
32
38
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
33
39
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.
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 and each Note Paying Agent) for the
Indenture Trustee to forward to each Noteholder of record as of the most recent
Record Date and to the Owner Trustee (with copies to the Rating Agencies and to
each Certificate Paying Agent) for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date a statement based
on information in the Servicer's Certificate furnished pursuant to Section 3.9,
setting forth for the Collection Period relating to such Distribution Date the
following information as to the Notes and the Certificates to the extent
applicable:
(i) the amount of such distribution allocable to
principal allocable to the Notes and to the Certificates;
(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;
34
40
(iv) the Pool Balance as of the close of business on the
last day of the preceding Collection Period;
(v) the Specified Overcollateralization Amount and the
Specified Credit Enhancement Amount as of such Distribution Date;
(vi) the amount of the Servicing Fee paid to the Servicer
with respect to the related Collection Period and the amount of any
unpaid Servicing Fees and the change in such amount from that of the
prior Distribution Date;
(vii) the amounts of the Noteholders' Interest Carryover
Shortfall and the Certificateholders' Interest Carryover Shortfall, if
any, on such Distribution Date and the change in such amounts from the
preceding Distribution Date;
(viii) the aggregate outstanding principal amount of each
Class of Notes, the Note Pool Factor for each Class of Notes, the
Certificate Balance of each Class of Certificates and the Certificate
Pool Factor for each Class of Certificates as of such Distribution Date;
(ix) the 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;
(x) the amount of the aggregate Realized Losses, if any,
with respect to the related Collection Period;
(xi) 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
(xii) the amount of Advances, if any, on such
Distribution Date (stating separately the amount of Precomputed Advances
and Simple Interest Advances).
35
41
Each amount set forth on the Distribution Date statement
pursuant to clauses (i), (ii), (vi) or (vii) 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.
36
42
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 partnership in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and shall have, power, authority, and legal right to acquire
and own the Receivables.
(b) Due Qualification. The Seller shall be duly qualified to do
business as a foreign limited partnership in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications.
(c) Power and Authority. The Seller shall have the power and
authority to execute and deliver this Agreement and the other Basic Documents
to which it is a party and to carry out their terms. The Seller shall have
full power and authority to convey and assign the property to be conveyed and
assigned to and deposited with the Issuer and has duly authorized such
conveyance and assignment to the Issuer by all necessary action; and the
execution, delivery, and performance of this Agreement and the other Basic
Documents to which it is a party
37
43
shall have been duly authorized by the Seller by all necessary action.
(d) Valid Conveyance; Binding Obligation. This Agreement shall
evidence a valid transfer, assignment and conveyance of the Receivables and the
other Trust Property conveyed by the Seller to the Issuer hereunder,
enforceable against creditors of and purchasers from the Seller; and this
Agreement and the other Basic Documents to which the Seller is a party
constitute legal, valid, and binding obligations of the Seller, enforceable
against the Seller in accordance with their terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws and to
general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Seller is a party and the fulfillment of the terms hereof and thereof will not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default under,
the Certificate of Limited Partnership or Limited Partnership Agreement, any
indenture, agreement, or other 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
upon any of its properties pursuant to the terms of any such indenture,
agreement, or other 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. To the Seller's best knowledge, there are
no proceedings or investigations pending, or 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,
38
44
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture, any of the other
Basic Documents, the Notes or the Certificates, or (iv) relating to the Seller
and which might adversely affect the federal or Applicable Tax State income,
excise, franchise or similar tax attributes of the Notes or the Certificates.
SECTION 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
39
45
and their respective officers, directors, employees and agents from and against
all costs, expenses, losses, claims, damages and liabilities arising out of or
incurred in connection with the acceptance or performance of the trusts and
duties contained herein and in the Trust Agreement, in the case of the Owner
Trustee, and in the Indenture, in the case of the Indenture Trustee, except to
the extent that such cost, expense, loss, claim, damage or liability: (i) in
the case of the Owner Trustee, shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Owner Trustee or, in
the case of the Indenture Trustee, shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Indenture Trustee;
or (ii) in the case of the Owner Trustee shall arise from the breach by the
Owner Trustee of any of its representations or warranties set forth in Section
7.3 of the Trust Agreement or (iii) in the case of the Indenture Trustee shall
arise from the breach by the Indenture Trustee of any of its representations
and warranties set forth in the Indenture.
(d) The Seller shall pay any and all taxes levied or assessed
upon all or any part of the Owner Trust Estate.
(e) Indemnification under this Section 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 repay such amounts to the Seller,
without interest.
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
40
46
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) or (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
41
47
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.
42
48
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 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
43
49
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, the articles of incorporation or by-laws of the Servicer, or any
indenture, agreement, or other 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 upon any of its properties pursuant to the terms of any such indenture,
agreement, or other 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
44
50
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 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 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 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 and the Indenture Trustee,
45
51
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 or the
Indenture Trustee, as applicable; (ii) relates to any tax other than the taxes
with respect to which either the Seller or the Servicer shall be required to
indemnify the Owner Trustee or the Indenture Trustee, as applicable; (iii) 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 (iv) 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.
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 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 recipient thereafter collects any of such amounts from others, the
recipient shall promptly repay such amounts to the Servicer, without interest.
46
52
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
47
53
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
substantially all its duties under this Agreement to any corporation more than
50% of the voting stock of which is owned, directly or indirectly, by Ford
Motor Company. The Servicer may at any time perform specific duties as
servicer under the Agreement through sub-contractors; provided that no such
delegation or subcontracting shall relieve the Servicer of its responsibilities
with respect to such duties as to which the Servicer shall remain primarily
responsible with respect thereto.
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
48
54
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 the last paragraph of Section 8.1,
(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.
49
55
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 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 by the Owner Trustee or the Indenture Trustee, or (2) to the
Owner Trustee, the Indenture Trustee, the Seller and the Servicer by the
Noteholders of Notes evidencing not less than 25% of the principal
amount of the Notes Outstanding or by the Certificateholders of
Certificates evidencing not less than 25% of the Aggregate Certificate
Balance; 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
50
56
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;
then the Indenture Trustee shall promptly notify each Rating Agency, and in
each and every case, so long as an Event of Servicing Termination shall not
have been remedied, either the Indenture Trustee, or the Noteholders of Notes
evidencing not less than a majority of the principal amount of the Notes Out-
standing, by notice then given in writing to the Servicer (and to the Indenture
Trustee and the Owner Trustee if given by the Noteholders) (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.
The predecessor Servicer shall cooperate with the Indenture
Trustee, the Owner Trustee and such successor Servicer in effecting the
termination of the responsibilities
51
57
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 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 Trustee 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
52
58
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 principal
amount of the Notes Outstanding or the Certificateholders of Certificates
evidencing not less than a majority of the Aggregate Certificate Balance (in
the case of an Event of Servicing Termination which does not adversely affect
the Indenture Trustee or the Noteholders) may, on behalf of all Noteholders and
Certificateholders, waive any Event of
53
59
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.
54
60
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.
55
61
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 or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement, or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel delivered to the
Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder or Certificateholder; 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 Indenture Trustee
and the Owner Trustee to the extent that their respective rights or obligations
may be affected thereby (which consent may not be unreasonably withheld) and
with the consent of (i) the Noteholders of Notes evidencing not less than a
majority of the principal amount of the Notes Outstanding and (ii) the
Certificateholders of Certificates evidencing not less than a majority of the
Aggregate Certificate Balance (which consent of any Noteholder of a Note or
Certificateholder of a Certificate given pursuant to this Section 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
56
62
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 the prior consent of the Rating Agencies, the
Specified Reserve Balance, without the consent of all adversely affected
Noteholders or Certificateholders or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the
Noteholders of all Notes and Certificateholders of all Certificates affected
thereby; and provided further that such action shall not, as evidenced by an
Opinion of Counsel, cause the Issuer to be characterized for federal or any
then Applicable Tax State income tax purposes as an association taxable as a
corporation.
(c) Prior to the execution of any such amendment or consent the
Servicer will provide, and the Owner Trustee shall distribute, written
notification of the substance of such amendment or consent to each Rating
Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to each Certificateholder, the Indenture Trustee
and each Rating Agency. 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.
57
63
(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. (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
Section 9-402(7) of the UCC, unless it shall have given the Owner Trustee and
the Indenture Trustee at least five (5) days' prior written notice thereof,
with a copy to the Rating Agencies, and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Owner Trustee and
the Indenture Trustee at least sixty (60) days' prior written notice of any
relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of
any amendment of any previously filed financing or continuation statement or of
any new financing statement and shall promptly file any such amendment or new
financing statement. The Servicer shall at all
58
64
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 be deleted from or modified on the Servicer's computer
systems when, and only when, 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 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.
59
65
(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
60
66
(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 Ratings Services, at the following
address: Standard & Poor's Ratings Services, 00 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance Department and (f)
in the case of Fitch IBCA, Inc., at the following address: Fitch IBCA, Inc.,
0000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: Asset Backed
Surveillance. Any notice required or permitted to
61
67
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 66 2/3% of the principal
amount of the Notes Outstanding and the Certificateholders of Certificates
evidencing not less than 66 2/3% 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,
62
68
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, and their respective successors and
permitted assigns. 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 Xxxxxx X. Xxxxx,
Secretary, Ford Motor Credit Company, Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000.
63
69
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 or the General Partner any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law. This Section
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 PNC Bank, Delaware not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall PNC Bank, Delaware 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 The Chase Manhattan Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall The
Chase Manhattan Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the
64
70
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. Third-Party Beneficiary. The Indenture Trustee
is a third-party beneficiary to this Agreement and is entitled to the rights
and benefits hereunder and may enforce the provisions hereof as if it were a
party hereto.
SECTION 10.15. Savings Clause. It is the intention of the
Seller and the Issuer that the transfer of the Trust Property contemplated
herein constitute an absolute 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.
65
71
IN WITNESS WHEREOF, the parties have caused this Sale and
Servicing Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES
TWO L.P.,
as Seller
By: FORD CREDIT AUTO
RECEIVABLES TWO, INC.,
as General Partner
By: /s/ X. X. Xxxxxx
-----------------------------------
Name: X. X. Xxxxxx
Title: Assistant Secretary
FORD CREDIT AUTO OWNER TRUST
1998-B,
as Issuer
By: PNC BANK, DELAWARE,
not in its individual
capacity but solely as Owner
Trustee
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
FORD MOTOR CREDIT COMPANY,
as Servicer
By: /s/ X. X. Xxxxxx
------------------------------------------
Name: X. X. Xxxxxx
Title: Assistant Secretary
72
Accepted and agreed:
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
PNC BANK, DELAWARE,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
73
SCHEDULE A
[SCHEDULE OF RECEIVABLES]
Delivered to Indenture Trustee at Closing
74
SCHEDULE B
LOCATION OF RECEIVABLE FILES
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
SB-1
75
Atlanta-South
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
Atlanta/CL
0000 Xxxxxxxxx Xxx. X
Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
Atlantic Region District Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Austin
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Baltimore-East
Xxxxxxxx Corporate
Center One
0000 Xxxxxxxx Xxxx.
Suite 000
Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Beaumont
0000 Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Billings
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Birmingham
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Boston-North
Xxx Xxxx Xxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
SB-2
00
Xxxxxx-Xxxxx
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
0000 Xxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Cheyenne
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
SB-3
77
Chicago-East
Xxx Xxxxx Xxxxx
Xxxxx X
Xxxxxxx, XX 00000
Chicago-North
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Chicago-South
The Office of Waterfall Xxxx I
Suite 310
000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Chicago-West
0000 X. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Chicago/CL
000 XxXxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Cincinnati
0000 Xxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Cleveland
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000-0000
Colorado Springs
0000 Xxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Columbia
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
XX-0
00
Xxxxxxxx
Xxxxx X, Xxxxx 000
000 Xxxxx Xxxxx X
Xxxxxx, XX 00000
Coral Springs-East
0000 X. Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Corpus Christi
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Xxxxxx
Xxxxxxxx Forum
Suite 600
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx
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
SB-5
79
Detroit-North
0000 Xxxxxxxx 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
SB-6
80
Fayetteville
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Findlay
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Ft. Xxxxx
00000 Xxxxxxx Xxxxx Xx.
Xxxx Xxxxx, XX 00000
Ft. Xxxxx
Xxxxxx Xxxx Xxxxx
Xxxxx 000
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Grand Junction
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxxxx, XX 00000
Grand Rapids
0000 Xxxxxxxxxx Xxxxx XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Greensboro
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Harlingen
0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Harrisburg
0000 Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Henderson
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XX-0
00
Xxxxxxxx
Xxx 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 Xxxx
Xxxxxxxxxxxxx, XX 00000
Indianapolis
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Jackson
000 Xxxxx Xxxx.
Xxxxx X
Xxxxxxxxx, XX 00000
Jacksonville
Suite 310
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Jefferson City
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
XX-0
00
Xxxxxx Xxxx
0000 Xxxx 000xx Xxxxxx
Xxxx. #00, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Knoxville
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxxxxxx
Xxxxxx Xxxxxx Xxxx
Xxxxx 000
000 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
SB-9
83
Macon
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Manchester
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Marshall
0000 Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Memphis
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Miami
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Milwaukee
00000 X. Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Minneapolis
One Southwest Crossing
Suite 308
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Mobile
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000-0000
Xxxxxxxxx
Xxxxxxxx Xxxxx
Xxxxx 000
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
SB-10
00
Xxx Xxxxx
00 Xxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
New Jersey-Central
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
New Jersey-North
000 Xxxxxxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxxx, XX 00000
New Jersey-South
00000 XxxXxxxxxxx Xx.
Xxxxx 000 Xxxx
Xx. Xxxxxx, XX 00000
New Orleans
Lakeway III
0000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxx, XX 00000
Norfolk
Greenbrier Pointe
Suite 350
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Xxxxxx
Xxxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxx 000X
0000 Xxxx X. Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Oklahoma City
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxxxxx Xxx Xx.
Xxxxxxxx Xxxx, XX 00000
SB-11
85
Omaha
00000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Omaha Customer Service Center
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Orange
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orange/CL
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orlando
0000 Xxxxxxxx Xxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Pasadena
000 X. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Pensacola
00 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xx 00000
Philadelphia
Bay Colony Executive Park
Suite 100
000 X. Xxxxxxxxxx Xx.
Xxxxx, XX 00000
Philadelphia/CL
000 X. Xxxxx Xx.
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
SB-12
86
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
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Portland
00000 X.X. Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Raleigh
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Regional Opers Center
0000 Xxxxxxxx Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Richmond
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Roanoke
0000 Xxxxxx Xxxxxx Xxxx.
Xxxxx 0
Xxxxxxx, XX 00000
Sacramento
0000 Xxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Saginaw
0000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
XX-00
00
Xxxx Xxxx Xxxx
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 Xxxxxxxx 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
SB-14
88
Seattle
00000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Shreveport
Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
3007 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx Xxx
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
SB-15
00
Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
SB-16
90
Tulsa
0000 Xxxx 00xx Xx.
Xxxxx 000
Xxxxx, XX 00000
Tupelo
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Tyler
000 Xxxx XX Xxxx 000
Xxxxx 000
Xxxxx, XX 00000
Ventura
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Washington, D.C.
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Westchester
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Western Carolina
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Wichita
0000 Xxxx 00xx
Xxxxxxx, XX 00000
SB-17
91
APPENDIX A
Definitions and Usage
AA-1
