EX-10.1
4
ex10_1.htm
EXHIBIT 10.1
SCHEDULE
to
the
ISDA
Master Agreement
dated
as of August 22, 2006
between
THE
ROYAL BANK OF SCOTLAND PLC,
a
company incorporated under the laws of Scotland
(“Party
A”)
and
FORD
CREDIT AUTO OWNER TRUST 2006-B,
a
Delaware statutory trust
(“Party
B”)
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Part
1.
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Termination
Provisions.
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(a)
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“Specified
Entity”
means in relation to Party A for the purpose
of:
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Section
5(a)(v),
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Not
applicable.
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Section
5(a)(vi),
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Not
applicable.
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Section
5(a)(vii),
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Not
applicable.
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Section
5(b)(iv),
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Not
applicable.
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in
relation to Party B for the purpose of:
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Section
5(a)(v),
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Not
applicable.
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Section
5(a)(vi),
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Not
applicable.
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Section
5(a)(vii),
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Not
applicable.
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Section
5(b)(iv),
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Not
applicable.
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(b)
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“Specified
Transaction”
will have the meaning specified in Section 14 of this Agreement unless
another meaning is specified here: No change from Section
14.
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(c)
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The
“Breach
of Agreement”
provisions of Section 5(a)(ii), the “Misrepresentation”
provisions of Section 5(a)(iv) and the “Default
under Specified Transaction”
provisions
of Section 5(a)(v) will not apply to Party
B.
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(d)
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The
“Credit
Support Default”
provisions of Section 5(a)(iii) will not apply to Party A and will
not
apply to Party B.
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(e)
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The
“Cross
Default”
provisions
of
Section 5(a)(vi) will not apply to Party A and will not apply to
Party B.
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(f)
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For
purposes of Section 6(b), only Party B may designate an Early Termination
Date in respect of a “Tax
Event”
or“Tax
Event Upon Merger”
of
Sections 5(b)(ii) and 5(b)(iii), respectively.
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(g)
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The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A or to Party
B.
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(h)
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The
“Automatic
Early Termination” provisions
of Section 6(a) will not apply to Party A or to Party B.
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(i)
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Payments
on Early Termination.
For
the purpose of Section 6(e):
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(i)
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Market
Quotation will apply unless Party A is the Defaulting Party or the
Affected Party and Party B has contracted to enter into a replacement
Transaction on or prior to the Early Termination Date, in which event
Loss
will apply.
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(ii)
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The
Second Method will apply.
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(iii)
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Notwithstanding
anything to the contrary set forth in the Agreement, if (1) Party
B
designates an Early Termination Date pursuant to Part
5(m)
or
5(o) in respect of which any Transaction is a Terminated Transaction
and
(2) Party B enters into a replacement transaction with a third party
on or
before such Early Termination Date, then (x) the amount, if any,
payable
by Party B to Party A in respect of such Early Termination Date and
such
Transaction will not exceed the amount received by Party B from such
third
party in consideration of entering into such replacement transaction
and
(y) the amount, if any, payable by Party A to Party B in respect
of such
Early Termination Date and such Transaction will not be less than
the
amount payable by Party B to such third party in consideration of
entering
into such replacement transaction.
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(j)
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“Termination
Currency”
means United States Dollars.
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(k)
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Additional
Termination Event will apply.
Each of the following will constitute an Additional Termination Event
pursuant to Section 5(b)(v):
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(i)
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Any
acceleration of the Notes pursuant to Section 5.2(a) of the Indenture
(provided such acceleration has not been rescinded pursuant to Section
5.2(b) of the Indenture) and liquidation of the Indenture Trust Estate
with Party B as the sole Affected Party;
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(ii)
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Any
amendment or supplement to the Indenture or to the Sale and Servicing
Agreement
that would materially adversely affect any of Party A’s rights or
obligations under this Agreement or any Transaction that is made
without
the consent of Party A, which consent will not be unreasonably withheld;
provided
that Party A’s consent will be deemed to have been given if Party A does
not object in writing within 10 Business Days of receipt of a written
request for such consent, with Party B as the sole Affected Party;
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(iii)
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Failure
of Party A to comply with the requirements of Part
5(m),
with Party A as the sole Affected Party;
and
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(iv)
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Failure
of Party A to comply with the requirements of Part 5(o), with Party
A as
the sole Affected Party.
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Part
2.
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Tax
Representations.
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(a)
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Payer
Tax Representations.
For the purpose of Section 3(e), each of Party A and Party B makes
the
following representation:
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It
is not
re-quired by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e)) to be made by it to the
other party under this Agreement. In making this representation, it may rely
on
(i) the accuracy of any representation made by the other party pursuant to
Section 3(f), (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii), and (iii) the
satisfaction of the agreement of the other party contained in Section 4(d),
provided
that it
will not be a breach of this representation where reliance is placed on
clause
(ii)
above
and the other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial
position.
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(b)
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Payee
Tax Representations.
For the purpose of Section 3(f):
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(i)
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Party
A makes the following representations: It
is a tax resident of the United
Kingdom.
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(ii)
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Party
B makes the following representations: It is a United States Person
for
U.S. federal income tax purposes and either (a) is a financial institution
(within the meaning of Treasury Regulations section 1.1441-1(c)(5))
or (b)
is not acting as an agent for a person that is not a United States
Person
for U.S. federal income tax purposes, including IRS Form X-0, Xxxx
0XXX or
Form W-8BEN, as applicable.
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Part
3.
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Agreement
to Deliver Documents.
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(a)
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For
purposes of Section 4(a)(i) and (ii), each party agrees to deliver
the
following documents, as applicable:
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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| | | | | |
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Party
A and Party B
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Any
form or document that may be required or reasonably requested in
order to
allow the other party to make a payment under this Agreement without
any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate.
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On
the date of this Agreement, and promptly upon the earlier of (i)
reasonable demand by the other party and (ii) learning that the form
or
document is required.
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(b)
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Other
documents to be delivered are:
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21
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Covered
by Section 3(d) Representation
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| | | | | | | |
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Party
A
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Annual
audited financial statements prepared in accordance with generally
accepted accounting principles in the country in which the party
is
organized.
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Promptly
upon Party B’s request.
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Yes
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Party
A and Party B
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Certificate
or other documents evidencing the authority of the party entering
into
this Agreement or a Confirmation, as the case may be, including copies
of
any board resolutions and appropriate certificates of incumbency
as to the
officers execut-ng such documents.
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At
or promptly following the execution of this Agreement.
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Yes
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| | | | | | | |
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Party
A and Party B
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Opinions
of counsel in form and substance acceptable to the other
party.
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At
or promptly following the execution of this Agreement.
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No
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Party
A
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Financial
data relating to Party A, as required pursuant to Part 5(o) of this
Schedule.
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As
required pursuant to Part 5(o) of this Schedule.
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Yes
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Party
A
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A
certificate of an authorized person of Party A certifying that the
information provided by Party A to Party B for use in the Prospectus
is
true and accurate in all material respects.
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Upon
execution of this Agreement
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Yes
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(a)
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Addresses
for Notices:
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(1) TO
PARTY
A:
For
the
purpose of Section 12(a), notices will be delivered to the following
address:
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Address:
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x/x
XXX Xxxxxxxxx Xxxxxxx, Xxxxx 0, 135 Xxxxxxxxxxx, Xxxxxx, XX0X
0XX
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Attention:
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Swaps
Administration
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Telephone:
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000
0000 0000
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Fax:
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000
0000 0000
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Any
notice delivered for purposes of Sections 5, 6 and 7 will be delivered to the
following address:
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Address:
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c/o
RBS Financial Markets
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Xxxxx
0, 000 Xxxxxxxxxxx
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Xxxxxx
XX0X 3UR
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Attention:
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Head
of Legal, Financial Markets
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Telephone:
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00
000 000 0000
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Facsimile:
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44
207 085 8411
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With
a
copy to:
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Address:
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000
Xxxxxxxxx Xxxx
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Xxxxxxxxx,
XX 00000
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Attention:
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Legal
Department - Derivatives Documentation
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Phone
No.:
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000-000-0000/32
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Facsimile
No.:
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000-000-0000/34
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For
the
purpose of Section 12(a), notices will be delivered to the address or facsimile
number specified in the Confirmation of such Transaction. Any notice delivered
for purposes of Sections 5, 6 and 7 will be delivered to the following
address:
U.S.
Bank
Trust National Association,
as
Owner
Trustee for
Ford
Credit Auto Owner Trust 2006-B
000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn:
Corporate Trust Administration
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
with
copies to:
The
Bank
of
New York,
as
Indenture Trustee for
Ford
Credit Auto Owner Trust 0000-X
000
Xxxxxxx Xxxxxx
Xxxxx
8
West
New
York,
New York 10286
Attn:
Structured Finance Services -
Asset
Backed Securities, Ford 2006-B
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
and
Ford
Motor Credit Company
Xxx
Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Secretary
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
23
and
Ford
Motor Credit Company
c/o
Ford
Motor Company WHQ
Xxx
Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Securitization Operations Supervisor
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
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(b)
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Process
Agent.
For the purpose of Section 13(c):
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Party
A
appoints as its Process Agent: Not
applicable.
Party
B
appoints as its Process Agent: Not
applicable.
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(c)
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Offices.
The provisions of Section 10(a) will
apply.
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(d)
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Multibranch
Party.
For the purpose of Section 10:
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(i)
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Party
A is not a Multibranch Party.
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(ii)
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Party
B is not a Multibranch Party.
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(e)
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Calculation
Agent.
The Calculation Agent is Party B.
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(f)
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Credit
Support Document.
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Party
A:
Not Applicable.
Party
B:
Not Applicable.
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(g)
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Credit
Support Provider.
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Party
A:
Not Applicable.
Party
B:
Not Applicable.
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(h)
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Governing
Law.
This Agreement will be governed by and construed in accordance with
the
laws of the State of New York.
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(i)
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Netting
of Payments.
Subparagraph (ii) of Section 2(c) will apply to all Transactions
under
this Agreement.
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(j)
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“Affiliate”
will
have the meaning specified in Section
14.
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(k)
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Waiver
of Jury Trial.
Each party waives, to the fullest extent permitted by applicable
law, its
right to have a jury trial in respect to any proceedings related
to this
Agreement. Each party certifies that no representative, agent or
attorney
of the other party has represented, expressly or otherwise, that
such
other party would not, in the event of such a suit, action or proceeding,
seek to enforce the foregoing waiver.
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Part
5.
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Other
Provisions.
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(a)
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Non-Reliance.
In connection with the negotiation of, the entering into, and the
execution of this Master Agreement, any Credit Support Document to
which
it is a party, each Transaction and any other documentation relating
to
this Master Agreement to which it is a party or that is required
by this
Master Agreement to deliver, each of Party A and Party B represents
and
agrees that:
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(i)
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it
is not relying (for the purposes of making any investment decision
or
otherwise) upon any advice, counsel or representations (whether written
or
oral) of the other party to this Master Agreement, such Credit Support
Document, each Transaction or such other documentation other than
the
representations expressly set forth in this Master Agreement, such
Credit
Support Document and in any
Confirmation;
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(ii)
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it
has consulted with its own legal, regulatory, tax, business, investment,
financial and accounting advisors to the extent it has deemed necessary,
and it has made its own investment, hedging and trading decisions
(including decisions regarding the suitability of any Transaction
pursuant
to this Master Agreement) based upon its own judgment and upon any
advice
from such advisors as it has deemed necessary and not upon any view
expressed by the other party to this Master Agreement, such Credit
Support
Document, each Transaction or such other
documentation;
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(iii)
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it
has a full understanding of all the terms, conditions and risks (economic
and otherwise) of the Master Agreement, such Credit Support Document,
each
Transaction and such other documentation and is capable of assuming
and
willing to, and will, assume (financially and otherwise) those
risks;
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(iv)
|
it
is an “eligible contract participant” as defined in Section 1a(12) of the
Commodity Exchange Act (7 U.S.C. 1a), as amended by the Commodity
Futures
Modernization Act of 2000;
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(v)
|
it
is entering into this Master Agreement, such Credit Support Document,
each
Transaction and such other documentation for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business;
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(vi)
|
it
is entering into this Master Agreement, such Credit Support Document,
each
Transaction and such other documentation as principal, and not as
agent or
in any other capacity, fiduciary or otherwise;
and
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(vii)
|
the
other party to this Master Agreement, such Credit Support Document,
each
Transaction and such other documentation (a) is not acting as a fiduciary
or financial, investment or commodity trading advisor for it, (b)
has not
given to it (directly or indirectly through any other person) any
assurance, guaranty or representation whatsoever as to the merits
(either
legal, regulatory, tax, financial, accounting or otherwise) of this
Master
Agreement, such Credit Support Document, each Transaction or such
other
documentation, and (c) has not committed to unwind the
Transactions.
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25
The
definition of Tax Event, Section 5 (b)(ii), is hereby modified by adding the
following provision at the end thereof:
“provided,
however, that for purposes of clarification, the parties acknowledge that the
introduction or proposal of legislation will not, in and of itself, give rise
to
a presumption that a Tax Event has occurred.”
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(c)
|
Deduction
or Withholding for Tax.
Party B will not be required to pay to Party A any amount relating
to
Indemnifiable Taxes pursuant to Section 2(d)(i)(4). However, if in
the
absence of this paragraph, Party B would otherwise be required to
pay such
amounts, Party A will have the right, but not the obligation, to
transfer
its rights and obligations under this Agreement to another of its
Offices
or Affiliates or third party such that no Indemnifiable Tax would
be
imposed, subject to the notice and con-sent provisions set forth
in
Section 6(b)(ii).
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(d)
|
No
Petition.
Party A covenants and agrees that prior to the date that is one year
and
one day after the payment in full of (i) all of the Notes and any
other
securities issued by Party B and (ii) any other securities issued
by a
trust as to which Ford Credit Auto Receivables Two LLC is a depositor
(or,
if later, the expiration of all applicable preference periods under
the
United States Bankruptcy Code or other applicable law), it will not
institute against, or join with any other Person in instituting against,
Party B or Ford Credit Auto Receivables Two LLC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
or
other proceedings under United States federal or state bankruptcy
or
similar law in connection with any obligations under this Agreement.
The
provisions of this paragraph will survive the termination of this
Agreement.
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(e)
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Limited
Recourse; Subordination.
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(i)
|
Notwithstanding
anything to the contrary contained in this Agreement, the obligations
of
Party B under this Agreement and any Transaction hereunder are solely
the
obligations of Party B and will be payable solely to the extent of
funds
received by and available to Party B in accordance with the priority
of
payment provisions under the Indenture and on the Payment Dates specified
therein. Party A acknowledges that Party B has pledged its assets
constituting the Indenture Trust Estate to the Indenture Trustee.
Upon
exhaustion of the assets of Party B and the proceeds thereof in accordance
with the Indenture and the Sale and Servicing Agreement, Party A
will not
be entitled to take any further steps against Party B to recover
any sums
due but unpaid under this Agreement, all claims in respect of which
will
be extinguished. No recourse may be taken for the payment of any
amount
owing in respect of any obligation of, or claim against, Party B
arising
out of or based upon this Agreement or any Transaction against any
holder
of a beneficial interest, employee, officer or Affiliate of Party
B and,
except as specifically provided in this Agreement, no recourse may
be
taken for the payment of any amount owing in respect of any obligation
of,
or claim against, Party B based on or arising out of this Agreement
against the Administrator (as defined in the Administration Agreement),
Ford Credit Auto Receivables Two LLC or any stockholder, holder of
a
beneficial interest, employee, officer, director, incorporator or
Affiliate of such person; provided,
however,
that the foregoing will not relieve any such person or entity from
any
liability they might otherwise have as a result of their gross negligence
or willful misconduct.
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26
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(ii)
|
The
parties intend that Part
5(e)(i)
of
this Schedule constitute an enforceable subordination agreement under
Section 510(a) of the Bankruptcy Code and will survive the termination
of
this Agreement.
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(f)
|
Party
B Pledge.
Notwithstanding
Section 7 to the contrary, Party A acknowledges that Party B will
pledge
its rights under this Agreement to the Indenture Trustee for the
benefit
of the Noteholders pursuant to the Indenture and agrees to such pledge.
The Indenture Trustee will not be deemed to be a party to this Agreement,
provided,
however,
the Indenture Trustee, acting on behalf of the holders of the Notes,
will
have the right to enforce this Agreement against Party A. Party A
will be
entitled to rely on any notice or communication from the Indenture
Trustee
to that effect. Party A acknowledges that Party B will pledge
substantially all its assets to the Indenture Trustee for the benefit
of
the Noteholders and Party A and that all payments hereunder, including
payments on early termination, will be made in accordance with the
priority of payment provisions of the Indenture and the Sale and
Servicing
Agreement and on the Payment Dates specified
therein.
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(g)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, will be held to
be
invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof will
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties to this Agreement.
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(h)
|
Recording
of Conversations.
Each party (i) consents to the recording of the telephone conversations
of
the trading and marketing personnel of the parties in connection
with this
Agreement and any potential or actual Transaction and (ii) agrees
to
obtain any necessary consent of, and to give notice of such recording
to,
its personnel.
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(i)
|
Consent
by Party A to Amendments to Certain Documents.
Before any amendment, modification or supplement is made to the Indenture
or the Purchase Agreement or the Sale and Servicing Agreement that
(i)
would materially adversely affect any of Party A’s rights or obligations
under this Agreement or any Transaction or (ii) modify the obligations
or
impair the ability of Party B to fully perform any of Party B’s
obligations under this Agreement or any Transaction in such a way
that
would materially adversely affect any of Party A’s rights or obligations
under this Agreement or any Transaction, Party B will provide Party
A with
a copy of the proposed amendment, modification or supplement and
will
obtain the consent of Party A prior to its adoption, which consent
will
not be unreasonably withheld, provided that Party A’s consent will be
deemed to have been given if Party A does not object in writing within
10
Business Days of receipt of a written request for such
consent.
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(j)
|
Set-off.
Notwithstanding any provision of this Agreement or any other existing
or
future agreements, each of Party A and Party B irrevocably waives
as to
itself any and all contractual rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition its payment or performance
of any obligation to the other party hereto arising outside of this
Agreement (which Agreement includes the Master Agreement to which
this
Schedule is attached, this Schedule and the Confirmations hereto).
This
Part
5(j)
will not affect the rights and obligations of the Parties pursuant
to
Section 2(c) (Netting).
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27
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(k)
|
Limitation
of Liability of Owner Trustee.
Notwithstanding anything contained in this Agreement to the contrary,
this
instrument (and any Confirmation pursuant to this instrument) has
been or
will be signed on behalf of Party B by U.S. Bank Trust National
Association not in its individual capacity but solely in its capacity
as
Owner Trustee of Party B and in no event will U.S. Bank Trust National
Association in its individual capacity or any beneficial owner of
Party B
have any liability for the representations, warranties, covenants,
agreements or other obligations of Party B under this Agreement or
under
any such Confirmation, as to all of which recourse will be had solely
to
the assets of Party B. For all purposes of this Agreement and any
Confirmation, in the performance of any duties or obligations of
Party B
hereunder, the Owner Trustee will be subject to, and entitled to
the
benefits of, the terms and provisions of the Trust Agreement; provided,
however,
that the foregoing will not relieve the Owner Trustee from any liability
it might otherwise have under the Trust Agreement as a result of
its gross
negligence or willful misconduct.
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(l)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement and
the
relevant Transaction between the parties are subject to the 2000
ISDA
Definitions (the “Definitions”), as published by the International Swaps
and Derivatives Association, Inc., and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date hereof. The
provisions of the Definitions are incorpo-rated by reference in and
will
be deemed a part of this Agreement, except that references in the
Definitions to a “Swap Transaction” will be deemed references to a
“Transaction” for purposes of this Agreement. In the event of any
inconsistency between the provisions of this Agreement and the
Definitions, this Agreement will prevail. In the event of any
inconsistency between the provision of any Confirmation and this
Agreement
or the Definitions, such Confirmation will prevail for the purpose
of the
relevant Transaction.
|
Additional
Defined Terms. Capitalized
terms used but not defined in this Agreement (including this Schedule) or any
Confirmation are defined in the Sale and Servicing Agreement dated as of August
1, 2006 (including Appendix A to such Sale and Servicing Agreement), as amended,
supplemented or otherwise modified, among Party B, Ford Motor Credit Company
as
Servicer and Ford Credit Auto Receivables Two LLC as Depositor.
| |
(m)
|
Counterparty
Rating Withdrawal or Reduction.
In
the event that (w) Party A’s long- or short term unsecured and
unsubordinated debt rating (or bank deposit rating) is withdrawn
or
reduced below “A” or “A-1” by S&P (or if it has no short term
unsecured debt rating by S&P, a long term unsecured debt rating of
"A+") (x) either (i) Party A’s long term unsecured and unsubordinated debt
rating is withdrawn or reduced below “Aa3” by Xxxxx’x and Party A does not
have a short-term unsecured and unsubordinated debt rating of “P-1” or
above or (ii) Party A’s long or short-term unsecured and unsubordinated
debt rating is withdrawn or reduced below “A1” or “P-1” by Xxxxx’x, or (y)
Party A’s long term unsecured and unsubordinated debt rating is withdrawn
or reduced below “A” by Fitch (such rating thresholds in clauses (w), (x),
and (y), “Approved
Rating Thresholds”),
within 30 days of such rating withdrawal or downgrade (unless each
such
Rating Agency has reconfirmed the rating of each Class of Notes which
was
in effect immediately prior to such withdrawal or downgrade), Party
A will
(i) assign each Transaction to another counterparty with the Approved
Rating Thresholds and approved by Party B (which approval will not
be
unreasonably withheld) on terms identical to this Schedule and the
related
Confirmation, (ii) obtain a guaranty, or a contingent agreement of,
another person with Approved Rating Thresholds to honor Party A’s
obligations under this Agreement, provided that such other person
is
approved by Party B (which approval will not be unreasonably withheld),
(iii) post xxxx-to-market collateral, pursuant to a collateral support
agreement acceptable to Party B, which will be sufficient to restore
any
downgrade or withdrawal in the ratings of each Class of Notes issued
by
Party B attributable to Party A's failure to comply with the Approved
Rating Thresholds, or (iv) establish any other arrangement satisfactory
to
Party B and to the applicable Rating Agency, in each case, sufficient
to
satisfy the Rating Agency Confirmation. However, Party A will be
required
to take the action described in clause (i), (ii) or (iv) above, in
any
event, if Party A fails to have either (A) a short-term unsecured
debt
rating of at least “A-3” by S&P or, if Party A does not have a
short-term rating by S&P, a long-term unsecured debt rating of at
least “BBB-” by S&P or (B) a long-term unsecured debt rating of at
least “BBB-” by Fitch. All costs and expenses in connection with effecting
any arrangements pursuant to clauses (i), (ii), (iii) or (iv) will
be for
the account of Party A.
|
28
| |
(n)
|
Approval
of Amendments or Assignment.
No
amendments to this Agreement will be effected, nor may the rights
and
obligations of Party A be transferred or assigned, without the prior
written confirmation of each Rating Agency that such amendment, transfer
or assignment will not cause such Rating Agency to reduce or withdraw
its
then current rating on any of the Notes.
|
| |
(o)
|
Regulation
AB Financial Disclosure.
|
Party
A
acknowledges that for so long as there are reporting obligations with respect
to
any Transaction under this Agreement under Regulation AB, the Depositor is
required under Regulation AB to disclose certain information set forth in
Regulation AB regarding Party A or its group of affiliated entities, if
applicable, depending on the aggregate “significance percentage” of this
Agreement and any other derivative contracts between Party A or its group of
affiliated entities, if applicable, and Party B, as calculated from time to
time
in accordance with Item 1115 of Regulation AB.
If
the
Depositor determines, reasonably and in good faith, that the significance
percentage of this Agreement has increased to 9%, then on any Business Day
after
the date of such determination the Depositor may request from Party A the same
information set forth in Item 1115(b) of Regulation AB that would have been
required if the significance percentage had in fact increased to 10% (such
request, a “Swap Financial Disclosure Request” and such requested information,
subject to the last sentence of this paragraph, the “Swap Financial
Disclosure”). Party A and Party B further agree that the Swap Financial
Disclosure provided to meet the Swap Financial Disclosure Request will be the
information set forth in Item 1115(b)(1) or Item 1115(b)(2) of Regulation AB,
as
applicable.
Upon
the
occurrence of a Swap Financial Disclosure Request, Party A, at its own expense,
shall within
30
days after receipt of such Swap Financial Disclosure Request (or within 10
days
after Party A being informed of the significance percentage reaching 10% after
such Swap Financial Disclosure Request): (i) provide the Depositor with the
Swap
Financial Disclosure, (ii) subject to Rating Agency Confirmation and approval
by
Party B (which approval will not be unreasonably withheld), secure another
entity to replace Party A as party to this Agreement on terms substantially
similar to this Agreement which entity is able and will provide the Swap
Financial Disclosure for such entity within the time period specified above
or
(iii) subject to Rating Agency Confirmation and approval by Party B (which
approval will not be unreasonably withheld), obtain a guaranty of Party A’s
obligations under this Agreement from an affiliate of Party A that is able
to
provide the Swap Financial Disclosure for such affiliate, such that disclosure
provided in respect of the affiliate will satisfy any disclosure requirements
applicable to Party A, and cause such affiliate to provide Swap Financial
Disclosure within the time period specified above. If permitted by Regulation
AB, any required Swap Financial Disclosure may be provided by incorporation
by
reference from reports filed pursuant to the Exchange Act. For purposes of
clause (ii) above, Party B agrees that National Westminster Bank plc (“Nat
West”) is an acceptable replacement party for Party A, subject to Rating Agency
Confirmation and Nat West being able to provide the Swap Financial Disclosure
within the time period specified above.
29
| |
(p)
|
Agency
Role of Greenwich Capital Markets, Inc.
In
connection with this Agreement, Greenwich Capital Markets, Inc.
has acted
as agent of Party A. Greenwich Capital Markets, Inc. has not guaranteed
and is not otherwise responsible for the obligations of Party A
under this
Agreement.
|
*
*
*
30
EXECUTED:
|
FORD
CREDIT AUTO OWNER TRUST 0000-X
|
XXX
XXXXX XXXX XX XXXXXXXX PLC
|
| | | | |
|
By:
|
U.S.
BANK TRUST
|
By:
|
GREENWICH
CAPITAL MARKETS, INC.,
|
| |
NATIONAL
ASSOCIATION,
| |
as
its Agent
|
| |
not
in its individual capacity
| | |
| |
but
solely as Owner Trustee
| | |
|
By:
|
/s/
Xxxxxxxx X. Xxxxxxx
| |
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
X. Xxxxxxx
| |
Name:
|
Xxxxx
X. Xxxxxx
|
|
Title:
|
Authorized
Person
| |
Title:
|
Managing
Director
|
| | | | | |
| Date:
August 25, 2006 | | Date:
August 25, 2006 |
[Signature
Page for Swap Schedule]
31
