Exhibit 99.1
SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 2005-C,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Seller,
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of September 1, 2005
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE
ARTICLE II TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property....................................................1
SECTION 2.2 Representations and Warranties of the Seller as to the Receivables..............2
SECTION 2.3 Repurchase of Receivables Upon Breach by Seller.................................6
SECTION 2.4 Custody of Receivable Files.....................................................6
SECTION 2.5 Duties of Servicer as Custodian.................................................7
SECTION 2.6 Instructions; Authority to Act..................................................8
SECTION 2.7 Custodian's Indemnification.....................................................8
SECTION 2.8 Effective Period and Termination................................................9
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer..............................................................9
SECTION 3.2 Collection of Receivable Payments..............................................10
SECTION 3.3 Realization Upon Receivables...................................................10
SECTION 3.4 Application and Allocations of Collections.....................................11
SECTION 3.5 Maintenance of Security Interests in Financed Vehicles.........................11
SECTION 3.6 No Impairment..................................................................11
SECTION 3.7 Purchase of Receivables Upon Breach by Servicer................................11
SECTION 3.8 Servicer Fee...................................................................12
SECTION 3.9 Monthly Investor Report........................................................12
SECTION 3.10 Annual Statement as to Compliance; Notice of Event of Servicing Termination....14
SECTION 3.11 Annual Independent Certified Public Accountants' Report........................15
SECTION 3.12 Access to Certain Documentation and Information Regarding Receivables..........15
SECTION 3.13 Servicer Expenses..............................................................16
ARTICLE IV DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO NOTEHOLDERS
SECTION 4.1 Accounts.......................................................................16
SECTION 4.2 Investment of Funds on Deposit in the Reserve Account and the
Collection Account.............................................................18
SECTION 4.3 Remittances....................................................................20
SECTION 4.4 Reserved.......................................................................21
SECTION 4.5 Simple Interest Advances and Unreimbursable Advances...........................21
SECTION 4.6 Additional Deposits to the Collection Account and Withdrawals
from the Reserve Account.......................................................22
SECTION 4.7 Distributions..................................................................23
SECTION 4.8 Net Deposits...................................................................27
ARTICLE V THE SELLER
SECTION 5.1 Representations and Warranties of Seller.......................................27
SECTION 5.2 Liability of Seller; Indemnities...............................................29
SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations of, Seller........31
SECTION 5.4 Limitation on Liability of Seller and Others...................................31
SECTION 5.5 Seller May Own Notes...........................................................32
ARTICLE VI THE SERVICER
SECTION 6.1 Representations of Servicer....................................................32
SECTION 6.2 Indemnities of Servicer........................................................33
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations of, Servicer......35
SECTION 6.4 Limitation on Liability of Servicer and Others.................................35
SECTION 6.5 Delegation of Duties...........................................................36
SECTION 6.6 Ford Credit Not to Resign as Servicer..........................................36
SECTION 6.7 Servicer May Own Notes.........................................................37
ARTICLE VII SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination................................................37
SECTION 7.2 Appointment of Successor Servicer..............................................39
SECTION 7.3 Repayment of Simple Interest Advances..........................................40
SECTION 7.4 Notification to Noteholders....................................................40
SECTION 7.5 Waiver of Past Events of Servicing Termination.................................40
ARTICLE VIII TERMINATION
SECTION 8.1 Optional Purchase of All Receivables...........................................41
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture........................41
ARTICLE IX MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment......................................................................42
SECTION 9.2 Protection of Title to Trust Property..........................................43
SECTION 9.3 Governing Law..................................................................45
SECTION 9.4 Notices........................................................................46
SECTION 9.5 Severability of Provisions.....................................................47
SECTION 9.6 Assignment.....................................................................47
SECTION 9.7 Further Assurances.............................................................48
SECTION 9.8 No Waiver; Cumulative Remedies.................................................48
SECTION 9.9 Third-Party Beneficiaries......................................................48
SECTION 9.10 Actions by Noteholders.........................................................48
SECTION 9.11 Agent for Service..............................................................49
SECTION 9.12 No Bankruptcy Petition.........................................................49
SECTION 9.13 Limitation of Liability of Owner Trustee and Indenture Trustee.................49
SECTION 9.14 Confidential Information.......................................................50
SECTION 9.15 Savings Clause.................................................................51
Schedule A Schedule of Receivables.............................................................SA-1
Schedule B Location of Receivable Files at Third Party Custodians for
Ford Credit..........................................................................B-1
Appendix A Definitions and Usage...............................................................AA-1
SALE AND SERVICING AGREEMENT, dated as of September 1, 2005
(as from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 2005-C (the
"Issuer"), a Delaware statutory trust, FORD CREDIT AUTO RECEIVABLES TWO LLC, a
Delaware limited liability company, as seller (the "Seller"), and FORD MOTOR
CREDIT COMPANY, a Delaware corporation, as servicer (the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of
receivables and related property consisting of retail installment sale contracts
secured by new and used automobiles and light duty trucks generated by Ford
Motor Credit Company and PRIMUS in the ordinary course of their business and
conveyed to the Seller;
WHEREAS, the Seller is willing to sell such portfolio of
receivables and related property to the Issuer; and
WHEREAS, Ford Motor Credit Company is willing to service such
receivables on behalf of the Issuer;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that are
applicable herein.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property
In consideration of the Issuer's sale and delivery to, or upon
the order of, the Seller of the Notes in an aggregate principal amount of
$2,051,940,000 and the rights to distributions under Section 4.7, the Seller
does hereby irrevocably sell, transfer, assign and otherwise convey to the
Issuer without recourse (subject to the obligations herein) all right, title and
interest of the Seller, whether now owned or hereafter acquired, in and to the
Trust Property and the Reserve Initial Deposit. The transfer, assignment and
conveyance made hereunder will not constitute and is not intended to result in
an assumption by the Issuer of any obligation of the Seller to the Obligors, the
Dealers or any other Person in connection with the Receivables and the other
Trust Property or any agreement, document or instrument related thereto.
SECTION 2.2 Representations and Warranties of the Seller as to the
Receivables
The Seller makes the following representations and warranties
as to the Receivables on which the Issuer will be deemed to have relied in
accepting the Receivables. Such representations and warranties speak as of the
Closing Date, but will survive the transfer, assignment and conveyance of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture:
(i) Characteristics of Receivables. Each Receivable (a) has
been originated in the United States of America by a Dealer for the retail sale
of a Financed Vehicle in the ordinary course of such Dealer's business, is
payable in U.S. dollars, has been fully and properly executed by the parties
thereto, has been purchased by the Seller from Ford Credit, which in turn has
purchased such Receivable from a Dealer, and which Receivable has been validly
assigned by such Dealer to Ford Credit and which in turn has been validly
assigned by Ford Credit to the Seller in accordance with its terms, (b) creates
or has created a valid, subsisting, and enforceable first priority security
interest in favor of Ford Credit in the Financed Vehicle, which security
interest has been assigned by Ford Credit to the Seller, which in turn will be
assignable by the Seller to the Issuer, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are adequate
for realization against the Financed Vehicle and any other collateral of the
benefits of the security, (d) provides for level monthly payments that fully
amortize the Amount Financed by its stated maturity and yield interest at the
Annual Percentage Rate, (e) provides for, in the event that such contract is
prepaid, a prepayment that fully pays the Principal Balance, and (f) is a Simple
Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables is true and correct in all material respects as of the
opening of business on the Cutoff Date, and no selection procedures believed to
be adverse to the Noteholders have been utilized in selecting the Receivables
from those receivables which meet the criteria contained herein. The computer
tape or other listing regarding the Receivables made available to the Issuer and
its assigns (which computer tape or other listing is required to be delivered as
specified herein) is true and correct in all material respects.
(iii) Compliance with Law. Each Receivable and the sale of the
Financed Vehicle complied at the time it was originated or made and at the
execution of this Agreement complies in all material respects with all
requirements of applicable federal, State, and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z, and State adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code, and other consumer credit laws and equal
credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents the legal,
valid, and binding payment obligation of the Obligor, enforceable by the holder
thereof in accordance with its terms subject to the effect of bankruptcy,
insolvency, reorganization, or other similar laws affecting the enforcement of
creditors' rights generally.
(v) No Government Obligor. None of the Receivables are due
from the United States of America or any State or from any agency, department,
or instrumentality of the United States of America, any State or political
subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior
to the transfer, assignment and conveyance thereof, each Receivable is secured
by a first priority, validly perfected security interest in the Financed Vehicle
in favor of Ford Credit as secured party or all necessary and appropriate
actions have been commenced that would result in a first priority, validly
perfected security interest in the Financed Vehicle in favor of Ford Credit as
secured party.
(vii) Receivables in Force. No Receivable has been satisfied,
subordinated, or rescinded, nor has any Financed Vehicle been released from the
lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable has been
waived.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or threatened with respect to any
Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens
or claims have been filed for work, labor, or materials relating to a Financed
Vehicle that are liens prior to, or equal with, the security interest in the
Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a
period of not more than thirty (30) days, as of the Cutoff Date, no payment
defaults (determined in accordance with the Servicer's policies and procedures)
exist and Ford Credit has not affirmatively waived any of the foregoing.
(xii) Insurance. Ford Credit, in accordance with its policies
and procedures, has determined that, as of the date of origination of each
Receivable, the Obligor had obtained or agreed to obtain physical damage
insurance covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the sale,
transfer, assignment and conveyance herein contemplated constitute an absolute
sale, transfer, assignment and conveyance of the Receivables from the Seller to
the Issuer and that the beneficial interest in and title to the Receivables not
be part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No Receivable has
been sold, transferred, assigned, conveyed or pledged by the Seller to any
Person other than the Issuer. Immediately prior to the sale and transfer herein
contemplated, the Seller had good and marketable title to each Receivable free
and clear of all Liens, encumbrances, security interests, participations and
rights of others and, immediately upon the sale and transfer thereof, the Issuer
will have good and marketable title to each Receivable, free and clear of all
Liens, encumbrances, security interests, participations and rights of others;
and the sale and transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable has been originated in,
or is subject to the laws of, any jurisdiction under which the sale, transfer,
assignment and conveyance of such Receivable under this Agreement or pursuant to
transfers of the Notes would be unlawful, void, or voidable. The Seller has not
entered into any agreement with any account debtor that prohibits, restricts or
conditions the assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Issuer a first priority, validly
perfected ownership interest in the Receivables, and to give the Indenture
Trustee a first priority perfected security interest therein, will be made
within ten days of the Closing Date.
(xvi) Priority. Other than the security interest granted to
the Issuer pursuant to this Agreement, the Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables. The Seller has not authorized the filing of and is not aware of any
financing statements against the Seller that include a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Issuer hereunder and by the Issuer to the
Indenture Trustee or that has been terminated.
(xvii) Chattel Paper. Each Receivable constitutes "tangible
chattel paper" as defined in the UCC.
(xviii) One Original. There is only one original executed copy
of each Receivable. The Seller, or its custodian, has possession of such
original with respect to each Receivable. Such original does not have any marks
or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than Ford Credit. All financing statements filed or
to be filed against the Seller in favor of the Issuer in connection herewith
describing the Receivables contain a statement substantially to the following
effect: "A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Secured Party/Assignee."
(xix) New and Used Vehicles. 85.08% of the aggregate Principal
Balance of the Receivables, constituting 79.24% of the number of Receivables as
of the Cutoff Date, represent vehicles financed at new vehicle rates, and the
remainder of the aggregate Principal Balance of the Receivables represent
vehicles financed at used vehicle rates.
(xx) Origination. Each Receivable has an origination date on
or after September 26, 1999 and has a scheduled maturity date not later than
August 30, 2011.
(xxi) Principal Balance. Each Receivable has a current
Principal Balance of at least $250.00.
(xxii) PRIMUS. 9.61% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date represent Receivables originated through Ford
Credit's PRIMUS division, and 90.39% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date represent Receivables that were originated
through Ford Credit (excluding its PRIMUS division).
(xxiii) Maturity of Receivables. Each Receivable has an
original maturity of not greater than seventy-two (72) months, provided that the
first month of the Receivable may consist of up to 45 days as a result of the
monthly due date selected by the Obligor in accordance with Ford Credit's
policies and procedures. The percentage of Receivables by Principal Balance with
original terms greater than sixty (60) months is 23.90%. The percentage of
Receivables by Principal Balance with remaining terms greater than sixty (60)
months is 18.13%.
(xxiv) Annual Percentage Rate. The Annual Percentage Rate
of each Receivable is between 0.00% to 29.99% (inclusive).
(xxv) Scheduled Payments. Each Receivable has a first
scheduled due date on or prior to September 30, 2005. No Receivable has a
payment that is more than thirty (30) days delinquent, as determined by the
Servicer in accordance with its policies and procedures, as of the Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable Files are
kept at one or more of the offices of the Servicer in the United States or the
offices of one of the custodians specified in Schedule B hereto.
(xxvii) No Extensions. No payment due on any Receivable has
been extended other than in connection with a change of the monthly due date.
(xxviii) Rating Agencies. The rating agencies rating the Class
A Notes, the Class B Notes and the Class C Notes are Xxxxx'x, Standard & Poor's
and Fitch. The rating agencies rating the Class D Notes are Standard & Poor's
and Fitch.
(xxix) Agreement. The representations and warranties of the
Seller in Section 5.1 are true and correct.
SECTION 2.3 Repurchase of Receivables Upon Breach by Seller
(a) (i) If an Authorized Officer of the Seller has actual knowledge, or receives
notice from the Issuer, the Owner Trustee or the Indenture Trustee, of a breach
of a representation or warranty set forth in Section 2.2 that materially and
adversely affects any Receivable and such breach has not been cured in all
material respects by the last day of the second Collection Period following the
Collection Period in which the Seller obtained actual knowledge, or was
notified, of such breach, the Seller will repurchase such Receivable as of such
last day (or, at the Seller's option, the end of the first Collection Period
following the Collection Period in which the Seller obtained actual knowledge,
or was notified, of such breach).
(ii) The Seller will deposit the Purchase Amount with
respect to any Receivable that the Seller is repurchasing in accordance
with this Section 2.3(a) into the Collection Account as specified in
Section 4.6 on the Business Day immediately preceding the Payment Date
(or, with Rating Agency Confirmation, on such Payment Date) related to
the Collection Period during which such repurchase occurs.
(b) The sole remedy (except as provided in Section 5.2) of the Issuer, the Owner
Trustee, Indenture Trustee and the Noteholders with respect to a breach of the
representations and warranties contained in Section 2.2 are as set forth in
Section 2.3(a). None of the Seller, the Servicer, the Owner Trustee, the
Administrator or the Indenture Trustee will have any duty to conduct an
affirmative investigation as to the occurrence of any condition requiring the
Seller to repurchase any Receivable pursuant to Section 2.3(a).
(c) With respect to all Receivables repurchased pursuant to this Section 2.3,
the Issuer will be deemed to have assigned to the Seller, without recourse,
representation or warranty, all of the Issuer's right, title and interest in and
to such repurchased Receivables and all security and documents relating thereto.
SECTION 2.4 Custody of Receivable Files
To assure uniform quality in servicing the Receivables and to
reduce administrative costs, the Issuer, upon the execution and delivery of this
Agreement, hereby revocably appoints the Servicer, and the Servicer hereby
accepts such appointment, to act as the agent of the Issuer and the Indenture
Trustee as custodian of the following documents or instruments, which are hereby
constructively delivered to the Indenture Trustee, as pledgee of the Issuer
pursuant to the Indenture, with respect to each Receivable (collectively, the
"Receivable Files"):
(i) The original Receivable.
(ii) The original credit application fully executed by the Obligor or a
photocopy thereof or a record thereof on a computer file, diskette or
on microfiche.
(iii) The original certificate of title or such documents that the Servicer
or Ford Credit will keep on file, in accordance with its policies and
procedures, evidencing the security interest of Ford Credit in the
Financed Vehicle.
(iv) Any and all other documents (including any computer file, diskette or
microfiche) that the Servicer or the Seller will keep on file, in
accordance with its policies and procedures, relating to a Receivable,
an Obligor, or a Financed Vehicle.
The Servicer hereby confirms to the Issuer and the Indenture
Trustee that the Servicer has received on behalf of the Issuer and the Indenture
Trustee all the documents and instruments necessary for the Servicer to act as
the agent of the Issuer and the Indenture Trustee for the purposes set forth in
this Section 2.4, including the documents referred to herein.
SECTION 2.5 Duties of Servicer as Custodian
(a) Safekeeping. The Servicer will hold the Receivable Files for the benefit of
the Issuer and the Indenture Trustee and maintain such accurate and complete
accounts, records, and computer systems pertaining to each Receivable File as
would enable the Servicer and the Issuer to comply with the terms and conditions
of this Agreement, and the Indenture Trustee to comply with the terms and
conditions of the Indenture. In performing its duties as custodian the Servicer
will act with reasonable care, using that degree of skill and attention that the
Servicer exercises with respect to the receivable files relating to all
comparable automotive receivables that the Servicer services for itself or
others and, consistent with such reasonable care, the Servicer may utilize the
services of third parties to act as custodian of physical Receivable Files,
subject to Section 6.5. In accordance with its policies and procedures with
respect to its retail installment sale contracts, the Servicer will conduct, or
cause to be conducted, periodic audits of the Receivable Files held by it under
this Agreement, and of the related accounts, records, and computer systems, in
such a manner as would enable the Issuer or the Indenture Trustee to verify the
accuracy of the Servicer's record keeping. The Servicer will promptly report to
the Issuer and the Indenture Trustee any failure on its part to hold the
Receivable Files and maintain its accounts, records, and computer systems as
herein provided and promptly take appropriate action to remedy any such failure.
Nothing herein will be deemed to require an initial review or any periodic
review by the Issuer, the Owner Trustee or the Indenture Trustee of the
Receivable Files.
(b) Maintenance of and Access to Records. The Servicer will maintain each
Receivable File at one of its offices in the United States or the offices of one
of its custodians specified in Schedule B of this Agreement, or at such other
office as specified to the Issuer and the Indenture Trustee by written notice
not later than ninety (90) days after any change in location. The Servicer will
make available to the Issuer and the Indenture Trustee or their duly authorized
representatives, attorneys, or auditors a list of locations of the Receivable
Files upon request. The Servicer will provide access to the Receivable Files,
and the related accounts, records, and computer systems maintained by the
Servicer at such times as the Issuer or the Indenture Trustee direct, but only
upon reasonable notice and during the normal business hours at the respective
offices of the Servicer.
(c) Release of Documents. Upon written instructions from the Indenture Trustee,
the Servicer will release or cause to be released any document in the Receivable
Files to the Indenture Trustee, the Indenture Trustee's agent or the Indenture
Trustee's designee, as the case may be, at such place or places as the Indenture
Trustee may designate, as soon thereafter as is practicable. Any document so
released will be handled by the Indenture Trustee with due care and returned to
the Servicer for safekeeping as soon as the Indenture Trustee or its agent or
designee, as the case may be, has no further need therefor.
SECTION 2.6 Instructions; Authority to Act
All instructions from the Indenture Trustee will be in writing
and signed by an Authorized Officer of the Indenture Trustee, and the Servicer
will be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of such written instructions.
SECTION 2.7 Custodian's Indemnification
The Servicer as custodian will indemnify the Issuer, the Owner
Trustee and the Indenture Trustee for any and all liabilities, obligations,
losses, compensatory damages, payments, costs, or expenses of any kind
whatsoever that may be imposed on, incurred, or asserted against the Issuer, the
Owner Trustee or the Indenture Trustee as the result of any improper act or
omission in any way relating to the maintenance and custody by the Servicer as
custodian of the Receivable Files; provided, however, that the Servicer will not
be liable (i) to the Issuer for any portion of any such amount resulting from
the willful misfeasance, bad faith, or negligence of the Indenture Trustee, the
Owner Trustee or the Issuer, (ii) to the Owner Trustee for any portion of any
such amount resulting from the willful misfeasance, bad faith, or negligence of
the Indenture Trustee, the Owner Trustee or the Issuer and (iii) to the
Indenture Trustee for any portion of any such amount resulting from the willful
misfeasance, bad faith, or negligence of the Indenture Trustee, the Owner
Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination
The Servicer's appointment as custodian will become effective
as of the Cutoff Date and will continue in full force and effect until
terminated pursuant to this Section 2.8. If Ford Credit resigns as Servicer in
accordance with the provisions of this Agreement or if all of the rights and
obligations of the Servicer have been terminated under Section 7.1, the
appointment of the Servicer as custodian hereunder may be terminated by the
Indenture Trustee, or by the Noteholders of Notes evidencing not less than 25%
of the Note Balance of the Notes Outstanding or, with the consent of Noteholders
of Notes evidencing not less than 25% of the Note Balance of the Notes
Outstanding, by the Owner Trustee, in the same manner as the Indenture Trustee
or such Noteholders may terminate the rights and obligations of the Servicer
under Section 7.1. As soon as practicable after any termination of such
appointment, the Servicer will deliver to the Indenture Trustee or the Indenture
Trustee's agent the Receivable Files and the related accounts and records
maintained by the Servicer at such place or places as the Indenture Trustee may
reasonably designate.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer
The Servicer will manage, service, administer, and make
collections on the Receivables with reasonable care, using that degree of skill
and attention that the Servicer exercises with respect to all comparable
automotive receivables that it services for itself or others. The Servicer's
duties will include collection and posting of all payments, responding to
inquiries of Obligors on such Receivables, investigating delinquencies, sending
payment coupons to Obligors, reporting tax information to Obligors, accounting
for collections, furnishing monthly and annual statements to the Owner Trustee
and the Indenture Trustee with respect to distributions, and making Simple
Interest Advances and Unreimbursable Advances pursuant to Section 4.5. The
Servicer will follow its policies and procedures in performing its duties as
Servicer. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, or any of
them, any and all instruments of satisfaction or cancellation, or partial or
full release or discharge, and all other comparable instruments, with respect to
such Receivables or to the Financed Vehicles securing such Receivables. If the
Servicer commences a legal proceeding to enforce a Receivable, the Owner Trustee
(in the case of a Receivable other than a Purchased Receivable) will thereupon
be deemed to have automatically assigned, solely for the purpose of collection,
such Receivable to the Servicer. If in any enforcement suit or legal proceeding
it is held that the Servicer may not enforce a Receivable on the ground that it
is not a real party in interest or a holder entitled to enforce the Receivable,
the Owner Trustee will, at the Servicer's expense and direction, take steps to
enforce the Receivable, including bringing suit in its name or the names of the
Indenture Trustee, the Noteholders, or any of them. The Owner Trustee will
furnish the Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder. The Servicer, at its expense, will obtain on
behalf of the Issuer and the Owner Trustee (or will cause the Owner Trustee to
obtain) all licenses, if any, required by the laws of any jurisdiction to be
held by the Issuer or the Owner Trustee in connection with ownership of the
Receivables, and will make all filings and pay all fees as may be required in
connection therewith during the term hereof.
SECTION 3.2 Collection of Receivable Payments
The Servicer will make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same becomes due and will follow such collection procedures as it
follows with respect to all comparable receivables that it services for itself
or others. The Servicer may grant extensions, rebates, or adjustments on a
Receivable; except that, if the Servicer (i) changes the Annual Percentage Rate
with respect to any Receivable, (ii) modifies the Amount Financed or the total
number of originally scheduled due dates or (iii) extends the date for final
payment by the Obligor of any Receivable beyond 6 months past the last day of
the Collection Period in which the Final Scheduled Receivable Maturity Date
occurs, it will promptly purchase the Receivable in the manner provided in
Section 3.7, unless such change, modification or extension was required by law
or court order. The Servicer may in its discretion waive any late payment charge
or any other fees that may be collected in the ordinary course of servicing a
Receivable.
SECTION 3.3 Realization Upon Receivables
On behalf of the Issuer, the Servicer will use reasonable
efforts, consistent with its policies and procedures, to repossess or otherwise
convert the ownership of the Financed Vehicle securing any Receivable as to
which the Servicer has determined eventual payment in full is unlikely. The
Servicer will follow such policies and procedures as it will deem necessary or
advisable in its servicing of comparable receivables, which may include
reasonable efforts to realize upon any Dealer Recourse and selling the Financed
Vehicle at public or private sale. The foregoing will be subject to the
provision that, in any case in which the Financed Vehicle has suffered damage,
the Servicer will not be required to expend funds in connection with the repair
or the repossession of such Financed Vehicle unless it determines in its
discretion that such repair and/or repossession will increase the Liquidation
Proceeds by an amount greater than the amount of such expenses.
SECTION 3.4 Application and Allocations of Collections
The Servicer will apply and allocate Collections received on
the Receivables in accordance with its policies and procedures. If an Obligor is
obligated under one or more Receivables and also under one or more other assets
owned by Ford Credit or assigned by Ford Credit to third parties, then any
payment on any such asset received from or on behalf of such Obligor will, if
identified as being made with respect to a particular item or asset, be applied
to such item, and otherwise will be allocated by Ford Credit in accordance with
its policies and procedures.
SECTION 3.5 Maintenance of Security Interests in Financed Vehicles
The Servicer will, in accordance with its policies and
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Issuer authorizes the Servicer to take such steps as are necessary to
re-perfect such security interest on behalf of the Issuer and the Indenture
Trustee if a Financed Vehicle is relocated or for any other reason. The Servicer
will not release the Financed Vehicle securing any such Receivable from the
security interest granted by such Receivable in whole or in part except in the
event of payment in full by or on behalf of the Obligor thereunder, satisfaction
of the payment obligation evidenced by such Receivable, repossession, discounted
settlement, abandonment or by operation of law, in each case in accordance with
the Servicer's policies and procedures.
SECTION 3.6 No Impairment
The Servicer will not impair the rights of the Issuer or the
Noteholders in the Receivables except in accordance with its policies and
procedures and as otherwise permitted by this Agreement.
SECTION 3.7 Purchase of Receivables Upon Breach by Servicer
(a) (i) Upon the occurrence of any of the conditions requiring purchase by
the Servicer as set forth in Section 3.2, the Servicer will purchase
the Receivable materially and adversely affected by such condition as
of the last day of the second Collection Period following the
Collection Period in which such condition occurs (or, at the Servicer's
option, the end of the first Collection Period following the Collection
Period in which such condition occurs).
(ii) If an Authorized Officer of the Servicer has actual knowledge, or
receives notice from the Seller, the Issuer, the Owner Trustee or the
Indenture Trustee, of a breach of the covenants set forth in Section
3.5 or Section 3.6, and such breach has not been cured in all material
respects by the end of the second Collection Period following the
Collection Period in which the Servicer obtained actual knowledge, or
was notified, of such breach, the Servicer will purchase the Receivable
materially and adversely affected by such breach as of such last day
(or, at the Servicer's option, the end of the first Collection Period
following the Collection Period in which the Servicer obtained actual
knowledge, or was notified, of such breach).
(iii) The Servicer will deposit the Purchase Amount with respect to any
Receivable that the Servicer is purchasing in accordance with this
Section 3.7(a) into the Collection Account as specified in Section 4.6
hereof on the Business Day preceding the Payment Date (or, with Rating
Agency Confirmation, on the Payment Date) related to the Collection
Period during which such purchase occurs.
(b) The sole remedy (except as provided in Section 6.2) of the Issuer, the
Owner Trustee, the Indenture Trustee and the Noteholders with respect
to a breach of the covenants contained in Section 3.2, 3.5 and 3.6 are
as set forth in Section 3.7(a). None of the Servicer, the Seller, the
Owner Trustee, the Administrator or the Indenture Trustee will have any
duty to conduct an affirmative investigation as to the occurrence of
any condition requiring the Servicer to purchase the Receivable
pursuant to Section 3.7(a).
(c) With respect to all Receivables purchased pursuant to this Section 3.7,
the Issuer will be deemed to have assigned to the Servicer or the
Seller, as applicable, without recourse, representation or warranty,
all of the Issuer's right, title and interest in and to such
Receivables and all security and documents relating thereto.
SECTION 3.8 Servicer Fee
The Servicer will be entitled to the Servicing Fee, as
provided in Section 4.7(c). In addition, the Servicer will be entitled to (a)
retain from Collections the Supplemental Servicing Fee and (b) receive
investment earnings (net of investment losses and expenses) on funds deposited
into the Trust Accounts during each Collection Period. SECTION 3.9 Monthly
Investor Report
On or about the tenth day of each calendar month, the Servicer
will deliver to the Owner Trustee, the Note Paying Agent, the Indenture Trustee
and the Seller, with a copy to the Rating Agencies, a servicing report (the
"Monthly Investor Report"), certified by an Authorized Officer of the Servicer
as to the accuracy of the information therein, containing all information
(including all specific dollar amounts) necessary to make the transfers and
distributions pursuant to Sections 4.5, 4.6 and 4.7, and the following
information as to the Notes to the extent applicable, in each case for the
Collection Period preceding the date of such Monthly Investor Report:
(i) the amount of such distribution allocable to principal allocable to
each Class of Notes;
(ii) the amount of such distribution allocable to interest allocable to each
Class of Notes;
(iii) the amount of such distribution allocable to draws from the Reserve
Account, if any;
(iv) the Pool Balance as of the close of business on the last day of the
preceding Collection Period;
(v) the Specified Overcollateralization Amount and the Specified Credit
Enhancement Amount as of such Payment Date;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to
the related Collection Period and the amount of any unpaid Servicing
Fees and the change in such amount from the amount paid on the prior
Payment Date;
(vii) the amounts of any unpaid interest from a prior Collection Period, with
respect to each Class of Notes, plus any interest thereon, to the
extent permitted by law, if any, on such Payment Date and the change in
such amounts from the preceding Payment Date;
(viii) the aggregate outstanding principal amount of each Class of Notes and
the Note Pool Factor for each Class of Notes as of such Payment Date;
(ix) the amount of any previously due and unpaid payment of principal of the
Notes and the change in such amount from that of the prior Payment
Date;
(x) the balance of the Reserve Account on such Payment Date, after giving
effect to distributions made on such Payment Date and the change in
such balance from the preceding Payment Date;
(xi) the amount of the aggregate Realized Losses, if any, with respect to
the related Collection Period;
(xii) the aggregate Purchase Amount of Receivables repurchased by the Seller
or purchased by the Servicer, if any, with respect to the related
Collection Period; and
(xiii) the amount of Simple Interest Advances, if any, on such Payment Date.
Each amount set forth on the Payment Date statement pursuant
to clauses (i), (ii), (vii) and (ix) above will be expressed as a dollar amount
per $1,000 of original principal amount of a Note.
(b) To the extent required by law, the Servicer will deliver to the Owner
Trustee and the Indenture Trustee for distribution to each Noteholder
information for the preparation of the Noteholder's federal income tax returns.
SECTION 3.10 Annual Statement as to Compliance; Notice of Event of
Servicing Termination
(a) The Servicer will deliver to the Seller, the Owner Trustee, the Indenture
Trustee and each Rating Agency on or before March 30 of each year, beginning
March 30, 2006, an Officer's Certificate, dated as of December 31 of the
preceding calendar year, stating that (i) a review of the activities of the
Servicer during the preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision and (ii) to such
officer's knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such year in all material respects,
or, if there has been a default in the fulfillment of any such obligation in any
material respect, specifying each such default known to such officer and the
nature and status of such default; provided that if the Issuer is not required
to file periodic reports under the Securities Exchange Act of 1934, as amended,
or otherwise required by law to file an Officer's Certificate of the Servicer as
to compliance, such Officer's Certificate may be delivered on or before April 30
of each calendar year.
Any Noteholder or Person certifying that it is a Note Owner
may obtain a copy of the certificate by sending a request to the Indenture
Trustee at its Corporate Trust Office.
(b) The Servicer will deliver to the Owner Trustee, the Indenture Trustee and
each Rating Agency promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice in an
Officer's Certificate of any event which with the giving of notice or lapse of
time, or both, would become an Event of Servicing Termination under Section 7.1.
The Seller will deliver to the Owner Trustee, the Indenture Trustee and each
Rating Agency promptly after having obtained knowledge thereof, but in no event
later than five (5) Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Servicing Termination under Section 7.1(a)(ii).
(c) To the extent directed by the Administrator, the Servicer shall prepare,
execute and deliver all certificates or other documents required to be delivered
by the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or the rules and
regulations promulgated pursuant thereto, for so long as such laws, rules and
regulations are in effect.
SECTION 3.11 Annual Independent Certified Public Accountants' Report
The Servicer will cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the Seller
or to Ford Credit, to deliver to the Owner Trustee and the Indenture Trustee on
or before March 30 of each year beginning March 30, 2006 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 conducted tests relating to automotive loans serviced for others in
accordance with the requirements of the Uniform Single Attestation Program for
Mortgage Bankers or any successor program applicable to automotive loans (the
"Program"), to the extent the procedures in such Program are applicable to the
servicing obligations set forth in this Agreement, and except as described in
the report, disclosed no exceptions or errors in the records relating to
automobile and light duty truck loans serviced for others that such firm is
required to report under the Program; provided that if the Issuer is not
required to file periodic reports under the Securities Exchange Act of 1934, as
amended, or otherwise required by law to file such report, the firm may deliver
such report on or before April 30 of each calendar year.
The report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
A copy of the report referred to in this Section 3.11 may be
obtained by any Noteholder or Person certifying that it is a Note Owner by a
request in writing to the Indenture Trustee at its Corporate Trust Office.
SECTION 3.12 Access to Certain Documentation and Information Regarding
Receivables
The Servicer will provide to the Indenture Trustee and the
Noteholders access to the Receivable Files in such cases where the Indenture
Trustee or the Noteholders are required by applicable statutes or regulations to
review such documentation. Access will be afforded without charge, but only upon
reasonable request and during the normal business hours at the respective
offices of the Servicer. Nothing in this Section 3.12 will affect the obligation
of the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Servicer to provide
access to information as a result of such obligation will not constitute a
breach of this Section 3.12. The Servicer will provide such information with
respect to the Receivables as the Rating Agencies may reasonably request,
including as soon as practicable a periodic report of the aggregate Principal
Balance of Receivables which become Liquidated Receivables during each
Collection Period.
SECTION 3.13 Servicer Expenses
The Servicer will be required to pay all expenses incurred by
it in connection with its activities hereunder, including fees and disbursements
of the Owner Trustee, independent accountants, taxes imposed on the Servicer and
expenses incurred in connection with distributions and reports to Noteholders.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS
SECTION 4.1 Accounts
(a) Collection Account. The Servicer will, prior to the Closing Date,
establish and maintain a segregated trust account in the name "The Bank
of New York as Indenture Trustee, as secured party for Ford Credit Auto
Owner Trust 2005-C", at a Qualified Institution or Qualified Trust
Institution (which will initially be the corporate trust department of
The Bank of New York), that will be designated as the "Collection
Account". Initially, the Collection Account will be account number
879406 and will include any successor or replacement accounts thereto.
The Collection Account will be under the sole dominion and control of
the Indenture Trustee; provided, that the Servicer may make deposits to
and direct the Indenture Trustee in writing to make withdrawals from
the Collection Account in accordance with the terms hereof. The
Servicer may direct the Indenture Trustee to withdraw from the
Collection Account and pay to the Servicer amounts received from or on
behalf of Obligors on the Receivables that do not constitute Available
Collections for any Collection Period or that were deposited to the
Collection Account in error. The Collection Account and all amounts,
securities, investments, financial assets and other property deposited
in or credited to the Collection Account will be held by the Indenture
Trustee as secured party for the benefit of the Noteholders and, after
payment in full of the Notes, as agent of the Trust and as part of the
Trust Property and all deposits to and withdrawals therefrom will be
made subject to the terms hereof.
(b) Principal Distribution Account. The Servicer will, prior to the Closing
Date, establish and maintain a segregated subaccount within the
Collection Account at the bank or trust company then maintaining the
Collection Account, which subaccount will be designated as the
"Principal Distribution Account". The Principal Distribution Account is
established and maintained solely for administrative purposes.
(c) Reserved.
(d) (i) Reserve Account. The Seller will, prior to the Closing Date,
establish and maintain an account in the name "The Bank of New York as
Indenture Trustee, as secured party for Ford Credit Auto Owner Trust
2005-C" at a Qualified Institution or Qualified Trust Institution which
will initially be The Bank of New York, that will be designated as the
"Reserve Account" (and together with the Collection Account, including
the Principal Distribution Account, the "Trust Accounts" or the "2005-C
Bank Accounts"). Initially the Reserve Account will be account number
879407 and will include any successor or replacement accounts thereto.
The Reserve Account will be under the sole dominion and control of the
Indenture Trustee; provided, that the Servicer may make deposits to and
direct the Indenture Trustee in writing to make withdrawals from the
Reserve Account subject to the terms hereof. The Reserve Account and
all amounts, securities, investments, financial assets and other
property deposited in or credited to the Reserve Account will be held
by the Indenture Trustee as secured party for the benefit of the
Noteholders and, after payment in full of the Notes, as agent of the
Owner Trustee and as part of the Trust Property, and all deposits to
and withdrawals therefrom will be made subject to the terms hereof. The
Seller will be permitted to sell, transfer, convey or assign in any
manner its rights in the Reserve Account under this Section 4.1(d),
together with its rights to receive amounts under Section 4.7(c)(xi) of
this Agreement and Sections 5.4(b)(xiv) and 8.2(c)(xi) of the
Indenture, provided, that each of the following is satisfied:
(1) the Rating Agency Confirmation has been obtained with respect to such
action;
(2) such action will not, as evidenced by an Opinion of Counsel, cause the
Issuer to be characterized for federal or any Applicable Tax State
income tax purposes as an association taxable as a corporation; and
(3) the transferee or assignee agrees in writing to take positions for
federal and any Applicable Tax State income tax purposes consistent
with the tax positions taken previously by the Seller.
(ii) Following the payment in full of the aggregate principal amount of the
Notes and of all other amounts owing or to be distributed hereunder or
under the Indenture or the Trust Agreement to Noteholders and the
termination of the Trust, the Indenture Trustee will distribute any
remaining funds on deposit in the Reserve Account to the Seller.
(e) Compliance. Each of the 2005-C Bank Accounts will be established and
maintained at a Qualified Institution or Qualified Trust Institution
pursuant to an account agreement that specifies New York law as the
governing law. The Servicer, with respect to the Collection Account,
and the Seller, with respect to the Reserve Account, will ensure that
the account agreement establishing the Collection Account and the
Reserve Account, respectively, requires the Qualified Institution or
Qualified Trust Institution maintaining such account to comply with
entitlement orders (as defined in Article 8 of the UCC) originated by
the Indenture Trustee without further consent of the Issuer for so long
as the Notes are outstanding and to act as a securities intermediary in
accordance with the terms of the UCC. All deposits to and withdrawals
from the 2005-C Bank Accounts will be made only upon the terms and
conditions of the Basic Documents.
(f) Maintenance of Accounts. If at any time an institution maintaining one
of the 2005-C Bank Accounts ceases to be a Qualified Institution or
Qualified Trust Institution, the Servicer, with respect to the
Collection Account, including the Principal Distribution Account, and
the Seller, with respect to the Reserve Account, will, with the
Indenture Trustee's or Owner Trustee's assistance as necessary, within
ten (10) Business Days (or such longer period not to exceed thirty (30)
calendar days as to which each Rating Agency may consent), move such
2005-C Bank Account to a Qualified Institution or Qualified Trust
Institution.
SECTION 4.2 Investment of Funds on Deposit in the Reserve Account and the
Collection Account
(a) On the Closing Date, the Seller will deposit the Reserve Initial
Deposit into the Reserve Account from the net proceeds of the sale of
the Notes. For so long as no Default or Event of Default has occurred
and is continuing, funds on deposit in the Reserve Account will, to the
extent permitted by applicable law, rules and regulations, be invested
in Permitted Investments by the applicable Qualified Institution or
Qualified Trust Institution maintaining such account as directed by the
Seller, by any Person appointed by the Seller, or by such Qualified
Institution or Qualified Trust Institution in accordance with Section
4.2(d), in each case, without requiring any action from the Indenture
Trustee. Funds on deposit in the Reserve Account may be invested in
Permitted Investments that mature not later than the Business Day
preceding the next Payment Date, and such Permitted Investments will be
held to maturity (except with respect to the sale or liquidation of the
Indenture Trust Estate as provided in Section 5.4 of the Indenture);
provided, however, that upon receipt of Rating Agency Confirmation,
funds on deposit in the Reserve Account may be invested in Permitted
Investments that will not mature prior to the next Payment Date. All
interest and other income (net of losses and investment expenses) on
funds on deposit in the Reserve Account will be deposited into the
Reserve Account. In no event will the Servicer or the Qualified
Institution or Qualified Trust Institution maintaining such account be
liable for the selection of Permitted Investments or for losses
incurred thereon (other than in its capacity as obligor thereon, if
applicable). The Servicer hereby directs the Indenture Trustee to
withdraw all interest and other income (net of losses and investment
expenses) on funds on deposit in the Reserve Account from the Reserve
Account and pay such amounts to the Servicer on each Payment Date.
(b) For so long as no Default or Event of Default has occurred and is
continuing, funds on deposit held in the Collection Account will, to
the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the Qualified
Institution or Qualified Trust Institution maintaining such account in
Permitted Investments that mature not later than the Business Day
immediately prior to the Payment Date for the Collection Period to
which such amounts relate and such Permitted Investments will be held
to maturity (except with respect to the sale or liquidation of the
Indenture Trust Estate as provided in Section 5.4 of the Indenture).
The Servicer hereby directs the Indenture Trustee to withdraw all
interest and other income (net of losses and investment expenses) on
funds on deposit in the Collection Account and pay such amounts to the
Servicer on each Payment Date.
(c) Neither the Seller, with respect to the Reserve Account, nor the
Servicer, with respect to the Collection Account, will direct the
Qualified Institution or Qualified Trust Institution maintaining such
account to make any investment of any funds or to sell any investment
held in the Reserve Account or the Collection Account unless the
security interest Granted and perfected in the Reserve Account and the
Collection Account in favor of the Indenture Trustee will continue to
be perfected in such investment or the proceeds of such sale, in either
case without any further action by any Person. In connection with any
direction by the Seller or the Servicer, as applicable, to make any
such investment or sale, if requested by the Indenture Trustee (acting
at the direction of not less than 50% of the Controlling Note Class),
the Seller or the Servicer, as applicable, will deliver an Opinion of
Counsel to the Indenture Trustee, to such effect.
(d) If (i) the Seller or the Servicer, as applicable, has failed to give
investment directions for any funds on deposit in the Reserve Account
or the Collection Account to the Qualified Institution or Qualified
Trust Institution maintaining such accounts by 11:00 a.m. New York Time
(or such other time as may be agreed by the Issuer and such Qualified
Institution or Qualified Trust Institution) on the Business Day
preceding each Payment Date, (ii) a Default or Event of Default has
occurred and is continuing with respect to the Notes but the Notes have
not been declared due and payable pursuant to Section 5.2 of the
Indenture (notice of which will be provided to the Qualified
Institution or Qualified Trust Institution maintaining the Reserve
Account and the Collection Account by the Indenture Trustee) or (iii)
the Notes have been declared due and payable following an Event of
Default and amounts collected or received from the Indenture Trust
Estate are being applied in accordance with Section 5.4 of the
Indenture as if there had not been such a declaration (notice of which
will be provided to the Qualified Institution or Qualified Trust
Institution maintaining the Reserve Account and the Collection Account
by the Indenture Trustee), the Qualified Institution or Qualified Trust
Institution will, to the fullest extent practicable, invest and
reinvest funds in the Reserve Account and the Collection Account in one
or more Permitted Investments described in clause (b) of the definition
thereof.
(e) With respect to funds on deposit in the Reserve Account and the
Collection Account:
(1) any such funds or property in such accounts that is a "financial asset"
as defined in Section 8-102(a)(9) of the UCC will be physically
delivered to, or credited to an account in the name of, the Qualified
Institution or Qualified Trust Institution maintaining such account in
accordance with such institution's customary procedures such that such
institution establishes a "securities entitlement" in favor of the
Indenture Trustee with respect thereto; and
(2) any funds or property that are held in deposit accounts will be held
solely in the name of the Indenture Trustee at one or more depository
institutions having the Required Rating and each such deposit account
will be subject to the exclusive custody and control of the Indenture
Trustee and the Indenture Trustee has sole signature authority with
respect thereto.
(f) Except for any deposit accounts specified in clause (e)(2) above, the
funds on deposit in the Reserve Account and the Collection Account will
only be invested in securities or in other assets which the Qualified
Institution or Qualified Trust Institution maintaining such accounts
agrees to treat as "financial assets" as defined in Section 8-102(a)(9)
of the UCC.
SECTION 4.3 Remittances
(a) If Ford Credit's short term unsecured debt is rated at least "P-1" by
Moody's, "A-1" by Standard & Poor's and "F1" by Fitch (this rating
requirement, the "Monthly Remittance Condition"), Ford Credit may remit
Collections on the Business Day preceding each Payment Date or, with
Rating Agency Confirmation, on each Payment Date.
(b) If Ford Credit's short term unsecured debt is not rated at least equal
to the Monthly Remittance Condition, or if Ford Credit (or an assignee
of Ford Credit pursuant to Section 6.3) is not the Servicer:
(i) on the Closing Date, the Servicer will remit Collections to the
Collection Account that are posted to the Obligors' accounts during the
period from and including the Cutoff Date to and including the Business
Day preceding the Closing Date; and
(ii) following the Closing Date, Ford Credit will remit Collections to the
Collection Account within two Business Days of posting such Collections
to the Obligors' accounts in accordance with Ford Credit's policies and
procedures, unless Ford Credit satisfies the Monthly Remittance
Condition. For this purpose, Collections does not include Recoveries
and amounts that constitute the Supplemental Servicing Fee. Ford Credit
will remit Recoveries to the Collection Account no later than the
Business Day preceding each Payment Date or, with Rating Agency
Confirmation, each Payment Date. Ford Credit will be entitled to retain
amounts constituting the Supplemental Servicing Fee from Collections.
(c) If Ford Credit is not the Servicer or an Event of Servicing Termination
occurs, the Servicer will be required to remit Collections within two
Business Days of receipt.
At any time that Ford Credit's rating from one or more of the
Rating Agencies does not satisfy the Monthly Remittance Condition, Ford Credit
may remit Collections less frequently than the second Business Day after posting
of such Collections to the Obligors' accounts, but not later than the related
Payment Date, if it obtains Rating Agency Confirmation from that Rating Agency
or Rating Agencies.
Pending deposit into the Collection Account, amounts collected
by the Servicer may be used by the Servicer at its own risk and for its own
benefit and will not be segregated from its own funds. Ford Credit will remit
Purchase Amounts on the Business Day preceding each Payment Date or, with Rating
Agency Confirmation, on each Payment Date.
(d) The Issuer and the Indenture Trustee will not be deemed to have knowledge of
any failure to satisfy the Monthly Remittance Condition or the occurrence of any
Event of Servicing Termination that would require remittances to the Collection
Account within two Business Days of receipt unless the Issuer or the Indenture
Trustee has received notice of such event or circumstance from the Seller or the
Servicer in an Officer's Certificate or from the Noteholders of Notes evidencing
not less than 25% of the Note Balance of the Notes Outstanding or unless a
Trustee Officer has actual knowledge of such event or circumstance.
SECTION 4.4 Reserved
SECTION 4.5 Simple Interest Advances and Unreimbursable Advances
(a) (i) Simple Interest Advance by Servicer for early payment on the
Receivables. For each Collection Period, the Servicer will advance an
amount equal to the excess, if any, of 30 days of interest on a
Receivable over the amount of interest actually received on the
Receivable during that Collection Period (such amount, a "Simple
Interest Advance"), to the extent the Servicer, in its sole discretion,
expects to recoup the Simple Interest Advance from payments by or on
behalf of the related Obligor or any related Liquidation Proceeds. If
the Servicer subsequently determines that a Simple Interest Advance
will not be recoverable from these sources, the Servicer will be
entitled to recoup the Simple Interest Advance from any Collections
(excluding amounts constituting the Supplemental Servicing Fee) made on
the other Receivables in the Trust. The Servicer will be entitled to
retain all payments of interest on the Receivables in excess of 30 days
of interest.
(ii) No Simple Interest Advances of Principal on the Receivables. The
Servicer will not make any advance in respect of principal of the
Receivables.
(b) Unreimbursable Advance by Servicer for Full Prepayment on a Receivable.
If an Obligor prepays a Receivable in full, and the related contract
did not require such Obligor to pay a full month's interest, for the
month of prepayment, at the APR, the Servicer will make an
unreimbursable advance equal to the excess of (i) the amount of
interest that the Obligor would have been required to pay on the
scheduled due date during the month of prepayment if such Obligor had
not prepaid the Receivable over (ii) the amount of interest that the
Obligor is required to pay during the month of prepayment (an
"Unreimbursable Advance").
(c) Mechanics. The Servicer will deposit Simple Interest Advances and
Unreimbursable Advances into the Collection Account on the Business Day
preceding the Payment Date or, with Rating Agency Confirmation, on such
Payment Date. Outstanding Simple Interest Advances will be repaid in
accordance with Section 4.7(a). The Servicer may make such deposit net
of reimbursement for Simple Interest Advances made with respect to
prior Collection Periods.
(d) Payment of Simple Interest Advances from the Reserve Account. If the
Servicer determines on or before any Determination Date that it is
required to make a Simple Interest Advance or an Unreimbursable Advance
and does not do so from its own funds, the Servicer will promptly
instruct the Indenture Trustee in writing to withdraw funds, in an
amount specified by the Servicer from funds in the Reserve Account and
deposit them in the Collection Account to cover any shortfall. Such
payment will be deemed to have been made by the Servicer pursuant to
this Section 4.5 for purposes of making distributions pursuant to this
Agreement, but will not otherwise satisfy the Servicer's obligation to
deliver the amount of the Simple Interest Advances and Unreimbursable
Advances to the Indenture Trustee. The Servicer will replace any funds
in the Reserve Account so used within two Business Days by depositing
such funds directly into the Reserve Account.
SECTION 4.6 Additional Deposits to the Collection Account and Withdrawals
from the Reserve Account
(a) The Servicer and the Seller will deposit into the Collection Account
the aggregate Purchase Amounts with respect to Purchased Receivables
and the Servicer will deposit into the Collection Account all amounts
to be paid under Section 8.1. All such deposits with respect to a
Collection Period will be made, in immediately available funds, on the
Business Day preceding the Payment Date (or, with Rating Agency
Confirmation, on the Payment Date) related to such Collection Period.
(b) The Indenture Trustee will, on the Payment Date following each
Collection Period, make withdrawals from the Reserve Account:
(i) first, in an amount equal to the Reserve Account Release Amount,
(ii) second, in an amount equal to the amount (if positive), calculated by
the Servicer pursuant to Section 4.5(d),
(iii) third, in an amount equal to the amount (if positive) calculated by the
Servicer pursuant to Section 4.7(b)(ii),
(iv) fourth, in an amount equal to the amount (if positive) calculated by
the Servicer pursuant to the Section 4.7(b)(iii), and
(v) fifth in an amount equal to the amount (if positive) calculated by the
Servicer pursuant to the Section 4.7(b)(iv), and, in each case, will
deposit such funds in the Collection Account.
SECTION 4.7 Distributions
(a) On each Payment Date, the Servicer will instruct the Indenture Trustee
to withdraw from the Collection Account, in immediately available
funds, an amount equal to all outstanding Simple Interest Advances made
pursuant to Section 4.5(a), as set forth in the Monthly Investor Report
for such Payment Date prior to the distributions set forth in Section
4.7(c) and pay such amount to the Servicer, unless pursuant to Section
4.8, Ford Credit has netted such amounts from its remittances pursuant
to Sections 4.3(a), 4.3(b) and 4.5(c).
(b) Prior to each Payment Date, the Servicer will on or before each
Determination Date calculate:
(i) the Available Collections, the Reserve Account Release Amount, the
Available Funds, the Servicing Fee and all unpaid Servicing Fees from
prior Collection Periods, if any, the Accrued Class A Note Interest,
the First Priority Principal Distribution Amount, the Accrued Class B
Note Interest, the Second Priority Principal Distribution Amount, the
Accrued Class C Note Interest, the Third Priority Principal
Distribution Amount, the Accrued Class D Note Interest and the Regular
Principal Distribution Amount;
(ii) the excess, if any, of the Total Required Payment over the Available
Funds;
(iii) if such Determination Date is the Determination Date immediately
preceding the Final Scheduled Payment Date with respect to any Class of
Notes, the excess, if any, of (x) the amount required to pay such Class
of Notes in full in accordance with the priorities set forth in
Sections 4.7(c) and (d), over (y) the sum of the Available Funds plus
the amount calculated in accordance with clause (ii) above; and
(iv) (x) the sum of the Available Funds plus the amounts calculated in
accordance with Section 4.7(b) (ii) and (iii) plus the amount remaining
on deposit in the Reserve Account after subtraction of the amounts
calculated in Section 4.7(b) (ii) and (iii), and (y) the amount
required to pay the Servicing Fee and principal and interest of each
Class of Notes in full in accordance with the priorities set forth in
Sections 4.7(c) and (d).
(c) On each Payment Date, the Servicer will instruct the Indenture Trustee
(based on the information contained in the Monthly Investor Report
delivered on or before the related Determination Date pursuant to
Section 3.9), to make the following withdrawals from the Collection
Account and make deposits, distributions and payments, to the extent of
funds on deposit in the Collection Account with respect to the
Collection Period preceding such Payment Date (including funds, if any,
deposited therein from the Reserve Account pursuant to Section 4.6(b)),
in the following order of priority:
(i) first, to the Servicer, the Servicing Fee and all unpaid Servicing Fees
from prior Collection Periods;
(ii) second, to the Noteholders of the Class A Notes, the Accrued Class A
Note Interest; provided, that if there are not sufficient funds
available to pay the entire amount of the Accrued Class A Note
Interest, the amounts available will be applied to the payment of such
interest on the Class A Notes on a pro rata basis in accordance with
the aggregate Outstanding principal balances of the Class A Notes;
(iii) third, to the Principal Distribution Account, the First Priority
Principal Distribution Amount;
(iv) fourth, to the Noteholders of Class B Notes, the Accrued Class B Note
Interest; provided, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class B Note Interest, the amounts
available will be applied to the payment of such interest on the Class
B Notes on a pro rata basis;
(v) fifth, to the Principal Distribution Account, the Second Priority
Principal Distribution Amount, if any;
(vi) sixth, to the Noteholders of Class C Notes, the Accrued Class C Note
Interest; provided, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class C Note Interest, the amounts
available will be applied to the payment of such interest on the Class
C Notes on a pro rata basis;
(vii) seventh, to the Principal Distribution Account, the Third Priority
Principal Distribution Amount, if any;
(viii) eighth, to the Noteholders of Class D Notes, the Accrued Class D Note
Interest; provided, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class D Note Interest, the amounts
available will be applied to the payment of such interest on the Class
D Notes on a pro rata basis;
(ix) ninth, to the Reserve Account, the amount, if any, required to bring
the amount in the Reserve Account up to the Specified Reserve Balance;
(x) tenth, to the Principal Distribution Account, the Regular Principal
Distribution Amount; and
(xi) eleventh, to the Seller, any funds remaining on deposit in the
Collection Account with respect to the Collection Period preceding such
Payment Date.
Notwithstanding the foregoing,
(A) following the occurrence and during the continuation of an Event
of Default specified in Section 5.1(i), 5.1(ii), 5.1(iv) or 5.1(v) of
the Indenture that has resulted in an acceleration of the Notes
(including the occurrence of such an Event of Default following the
occurrence of an Event of Default specified in Section 5.1(iii) of the
Indenture that has resulted in an acceleration of the Notes), the
Servicer will instruct the Indenture Trustee to transfer the funds on
deposit in the Collection Account remaining after the distribution of
amounts pursuant to Section 4.7(c)(i) and (ii) above to the Principal
Distribution Account to the extent necessary to reduce the principal
amount of all the Class A Notes to zero, and then after payment of
amounts pursuant to Section 4.7(c)(iv) above, to the Principal
Distribution Account to the extent necessary to reduce the principal
amount of all the Class B Notes to zero, and then after payment of
amounts pursuant to Section 4.7(c)(vi) above, to the Principal
Distribution Account to the extent necessary to reduce the principal
amount of all the Class C Notes to zero, and then after payment of
amounts pursuant to Section 4.7(c)(viii) above, to the Principal
Distribution Account to the extent necessary to reduce the principal
amount of all the Class D Notes to zero,
(B) following the occurrence and during the continuation of an Event of
Default specified in Section 5.1(iii) of the Indenture that has
resulted in an acceleration of the Notes, the Servicer will instruct
the Indenture Trustee to transfer the funds on deposit in the
Collection Account remaining after the distribution of amounts pursuant
to Section 4.7(c) (i), (ii), (iii), (iv), (v), and (vi) above to the
Principal Distribution Account to the extent necessary to reduce the
principal amount of all the Notes to zero, and
(C) in the case of an event described in clause (A) or (B) above, the Class
D Noteholders will not receive any distributions of principal or
interest until the principal amount and accrued interest on the Class A
Notes, the Class B Notes and the Class C Notes has been paid in full.
(d) On each Payment Date, the Servicer will instruct the Indenture Trustee
(based on the information contained in the Monthly Investor Report
delivered on or before the related Determination Date pursuant to
Section 3.9), to withdraw the funds on deposit in the Principal
Distribution Account with respect to the Collection Period preceding
such Payment Date and make distributions and payments in the following
order of priority:
(i) first, to the Noteholders of the Class A-1 Notes in reduction of
principal until the principal amount of the Outstanding Class A-1 Notes
has been paid in full; provided, that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class A-1
Notes in full, the amounts available will be applied to the payment of
principal on the Class A 1 Notes on a pro rata basis;
(ii) second, to the Noteholders of the Class A-2 Notes in reduction of
principal until the principal amount of the Outstanding Class A-2 Notes
has been paid in full; provided, that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class A-2
Notes in full, the amounts available will be applied to the payment of
principal on the Class A 2 Notes on a pro rata basis;
(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 will 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 principal amount of the Outstanding Class A-4 Notes
has been paid in full; provided, that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class A-4
Notes in full, the amounts available will be applied to the payment of
principal on the Class A-4 Notes on a pro rata basis;
(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 will be applied to the payment of
principal on the Class B Notes on a pro rata basis;
(vi) sixth, to the Noteholders of the Class C Notes in reduction of
principal until the principal amount of the Outstanding Class C Notes
has been paid in full; provided, that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class C Notes
in full, the amounts available will be applied to the payment of
principal on the Class C Notes on a pro rata basis;
(vii) seventh, to the Noteholders of the Class D Notes in reduction of
principal until the principal amount of the Outstanding Class D Notes
has been paid in full; provided, that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class D Notes
in full, the amounts available will be applied to the payment of
principal on the Class D Notes on a pro rata basis;
(viii) eighth, to the Seller, any funds remaining on deposit in the Principal
Distribution Account.
SECTION 4.8 Net Deposits
Ford Credit may make the remittances pursuant to Sections
4.3(a), 4.3(b) and 4.5(c), net of Servicing Fees to be distributed to Ford
Credit pursuant to Section 4.7(c). Nonetheless, the Servicer will account for
all of the above described remittances and distributions in the Monthly Investor
Report as if the amounts were deposited and/or transferred separately.
ARTICLE V
THE SELLER
SECTION 5.1 Representations and Warranties of Seller
The Seller represents and warrants to the Issuer as of the
date of this Agreement and as of the Closing Date, which representations and
warranties the Issuer will be deemed to have relied in acquiring the Trust
Property and 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 Qualification. The Seller is duly organized and validly
existing as a limited liability company in good standing under the laws of the
State of Delaware. The Seller is qualified as a foreign limited liability
company in good standing and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership of this properties or the conduct of
its activities requires such qualification, license or approval, unless the
failure to obtain such qualifications, licenses or approvals would not have a
material adverse effect on the Seller's ability to perform its obligations under
this Agreement or the other Basic Documents to which it is a party.
(b) Power, Authorization and Enforceability. The Seller has full power and
authority to execute, deliver and perform the terms of this Agreement and the
other Basic Documents to which it is a party and to acquire, own and sell the
Receivables. The Seller has duly authorized the execution, delivery and
performance of the terms of this Agreement and the other Basic Documents to
which it is a party. Each of this Agreement and the other Basic Documents to
which the Seller is a party is the legal, valid, binding and enforceable
obligation of the Seller, except as may be limited by insolvency, bankruptcy,
reorganization or other laws relating to the enforcement of creditors' rights or
by general equitable principles. This Agreement evidences a valid sale,
transfer, assignment and conveyance of the Receivables and the other Trust
Property by the Seller to the Issuer, enforceable against creditors of and
purchasers from the Seller.
(c) No Conflicts and 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 of this Agreement and such other
Basic Documents, will not (i) conflict with or result in a breach of the terms
or provisions of, or constitute a default under any indenture, mortgage, deed of
trust, loan agreement, guarantee or similar agreement or instrument under which
the Seller is a debtor or guarantor, (ii) result in the creation or imposition
of any lien, charge or encumbrance upon any of the properties or assets of the
Seller pursuant to the terms of any such indenture, mortgage, deed of trust,
loan agreement, guarantee or similar agreement or instrument, (iii) violate the
Certificate of Formation or the Limited Liability Company Agreement of the
Seller, or (iv) violate any law or, to the Seller's knowledge, any order, rule
or regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller of its properties; in each case, which
conflict, breach, default, lien, or violation would have a material adverse
effect on the Seller's ability to perform its obligations under this Agreement
or such other Basic Documents.
(d) No Proceedings. To the Seller's 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 or the Notes, (ii)
seeking to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the other
Basic Documents, (iii) seeking any determination or ruling that would reasonably
be expected to have a material adverse effect on the Seller's ability to perform
its obligations under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents or the Notes, or (iv) relating to
the Seller that would reasonably be expected to (A) affect the treatment of the
Notes as indebtedness for U.S. federal income or Applicable Tax State income or
franchise tax purposes, (B) be deemed to cause a taxable exchange of the Notes
for U.S. federal income tax purposes, (C) cause the Issuer to be treated as an
association or publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes or (D) cause the Issuer to incur Michigan Single
Business Tax liability.
(e) Valid Security Interest. This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in the Receivables, in
favor of the Issuer which security interest is prior to all other Liens and is
enforceable as such as against all other creditors of and purchasers from the
Seller.
SECTION 5.2 Liability of Seller; Indemnities
The Seller will be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Seller under this
Agreement, and hereby agrees to the following:
(a) The Seller will indemnify, defend, and hold harmless the Issuer, the Owner
Trustee and the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to, and as of the date of,
the conveyance of the Receivables to the Issuer or the issuance and original
sale of the Notes, including any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes (but, in the case of the
Issuer, not including any taxes asserted with respect to ownership of the
Receivables or federal or other Applicable Tax State income taxes arising out of
the transactions contemplated by this Agreement and the other Basic Documents)
and costs and expenses in defending against the same.
(b) The Seller will indemnify, defend, and hold harmless the Issuer, the Owner
Trustee, the Indenture Trustee and the Noteholders 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.
(c) The Seller will indemnify, defend and hold harmless the Owner Trustee and
the Indenture Trustee and their respective officers, directors, employees and
agents from and against all costs, expenses, losses, claims, damages and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained herein and in the Trust
Agreement, in the case of the Owner Trustee, and in the Indenture, in the case
of the Indenture Trustee, except to the extent that such cost, expense, loss,
claim, damage or liability: (i) in the case of the Owner Trustee, is due to the
willful misfeasance, bad faith or negligence (except for errors in judgment) of
the Owner Trustee or, in the case of the Indenture Trustee, is due to the
willful misfeasance, bad faith or negligence (except for errors in judgment) of
the Indenture Trustee; or (ii) in the case of the Owner Trustee arises from the
breach by the Owner Trustee of any of its representations or warranties set
forth in Section 6.3 of the Trust Agreement or (iii) in the case of the
Indenture Trustee arises from the breach by the Indenture Trustee of any of its
representations and warranties set forth in the Indenture.
(d) The Seller will pay any and all taxes levied or assessed upon all or any
part of the Trust Property.
(e) The Seller will defend, indemnify, and hold harmless the Issuer from and
against any and all costs, expenses, losses, damages, claims and liabilities,
arising out of or resulting from the failure of a Receivable to be originated in
compliance with all requirements of law and for any breach of any of the
Seller's representations and warranties as set forth in Section 2.2, provided,
that any indemnification amounts owed pursuant to this Section 5.2 with respect
to a Receivable will give effect to and not be duplicative of the Purchase
Amount paid by the Seller pursuant to Section 2.3 hereof.
(f) Indemnification under this Section 5.2 will survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of
this Agreement and will include, without limitation, reasonable fees and
expenses of counsel and expenses of litigation. If the Seller has made any
indemnity payments pursuant to this Section 5.2 and the Person to or on behalf
of whom such payments are made thereafter collects any of such amounts from
others, such Person will promptly repay such amounts to the Seller, without
interest.
(g) The Seller's obligations under this Section 5.2 are obligations solely of
the Seller and will not constitute a claim against the Seller to the extent that
the Seller does not have funds sufficient to make payment of such obligations.
In furtherance of and not in derogation of the foregoing, the Issuer, the
Servicer, the Indenture Trustee and the Owner Trustee, by entering into or
accepting this Agreement, acknowledge and agree that they have no right, title
or interest in or to the Other Assets of the Seller. To the extent that,
notwithstanding the preceding sentence, the Issuer, Servicer, Indenture Trustee
or Owner Trustee either (i) asserts an interest or claim to, or benefit from,
Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit
in or from Other Assets, whether by operation of law, legal process, pursuant to
applicable provisions of insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), then such Issuer, Servicer, Indenture Trustee
or Owner Trustee further acknowledges and agrees that any such interest, claim
or benefit in or from Other Assets is and will be expressly subordinated to the
indefeasible payment in full of the other obligations and liabilities, which,
under the terms of the relevant documents relating to the securitization or
conveyance of such Other Assets, are entitled to be paid from, entitled to the
benefits of, or otherwise secured by such Other Assets (whether or not any such
entitlement or security interest is legally perfected or otherwise entitled to a
priority of distributions or application under applicable law, including
insolvency laws, and whether or not asserted against the Seller), including the
payment of post-petition interest on such other obligations and liabilities.
This subordination agreement will be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. The Issuer, Servicer,
Indenture Trustee and Owner Trustee each further acknowledges and agrees that no
adequate remedy at law exists for a breach of this Section 5.2(g) and the terms
of this Section 5.2(g) may be enforced by an action for specific performance.
The provisions of this Section 5.2(g) will be for the third party benefit of
those entitled to rely thereon and will survive the termination of this
Agreement.
SECTION 5.3 Merger or Consolidation of, or Assumption of the Obligations
of, Seller
Any Person (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Seller is a party, (iii) succeeding to the business of the Seller, or
(iv) more than 50% of the voting stock or voting power and 50% or more of the
economic equity of which is owned directly or indirectly by Ford Motor Company,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Seller under this Agreement, will be the
successor to the Seller under this Agreement without the execution or filing of
any document or any further act on the part of any of the parties to this
Agreement; provided, however, that (x) the Seller has delivered to the Owner
Trustee and the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such merger, conversion, consolidation or succession
and such agreement of assumption comply with this Section 5.3 and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with and (y) the Seller has delivered to the
Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Issuer and the
Indenture Trustee, respectively, in the Receivables and the other Trust
Property, and reciting the details of such filings, or (B) stating that, in the
opinion of such counsel, no such action is necessary to preserve and protect
such interest. The Seller will provide notice of any merger, conversion,
consolidation, or succession pursuant to this Section 5.3 to the Rating
Agencies. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (x) and (y) of
this Section 5.3 will be conditions to the consummation of the transactions
referred to in clauses (i), (ii) or (iii) of this Section 5.3.
SECTION 5.4 Limitation on Liability of Seller and Others
The Seller and any officer or employee or agent of the Seller
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Seller will not be under any obligation to appear in,
prosecute, or defend any legal action that is not incidental to its obligations
under this Agreement, and that in its opinion may involve it in any expense or
liability.
SECTION 5.5 Seller May Own Notes
The Seller, and any Affiliate of the Seller, may in its
individual or any other capacity become the owner or pledgee of Notes with the
same rights as it would have if it were not the Seller or an Affiliate thereof,
except as otherwise expressly provided herein or in the other Basic Documents.
Except as set forth herein or in the other Basic Documents, Notes so owned by or
pledged to the Seller or any such Affiliate will have an equal and proportionate
benefit under the provisions of this Agreement and the other Basic Documents,
without preference, priority, or distinction as among all of the Notes.
ARTICLE VI
THE SERVICER
SECTION 6.1 Representations of Servicer
The Servicer makes the following representations on which the
Issuer is deemed to have relied in acquiring the Trust Property. The
representations speak as of the execution and delivery of this Agreement and
will survive the conveyance of the Trust Property to the Issuer and the pledge
thereof by the Issuer pursuant to the Indenture:
(a) Organization and Qualification. The Servicer is duly incorporated and
validly existing as a corporation in good standing under the laws of the State
of Delaware. The Servicer is qualified as a foreign corporation in good standing
and has obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of its properties or the conduct of its activities
(including the servicing of the Receivables as required by this Agreement)
requires such qualification, license or approval, unless the failure to obtain
such qualifications, licenses or approvals would not have a material adverse
effect on the Servicer's ability to perform its obligations under this
Agreement.
(b) Power, Authorization and Enforceability. The Servicer has full power and
authority to execute, deliver and perform the terms of this Agreement and the
other Basic Documents to which it is a party and to acquire, own, hold, service
and sell the Receivables and to hold the Receivable Files as custodian on behalf
of the Issuer and the Indenture Trustee. The Servicer has duly authorized the
execution, delivery and performance of the terms of this Agreement and the other
Basic Documents to which the Servicer is a party. Each of this Agreement and the
other Basic Documents to which the Servicer is a party is the legal, valid,
binding and enforceable obligation of the Servicer, except as may be limited by
insolvency, bankruptcy, reorganization or other laws relating to the enforcement
of creditors' rights or by general equitable principles.
(c) No Conflicts and 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 of this Agreement and such
other Basic Documents, will not (i) conflict with or result in a breach of the
terms or provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument
under which the Servicer is a debtor or guarantor, (ii) result in the creation
or imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Servicer pursuant to the terms of any such indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument,
(iii) violate the Certificate of Incorporation or the Bylaws of the Servicer, or
(iv) violate any law or, to the Servicer's knowledge, any order, rule or
regulation applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer of its properties; in each case, which
conflict, breach, default, lien, or violation would have a material adverse
effect on the Servicer's ability to perform its obligations under this Agreement
or such other Basic Documents.
(d) No Proceedings. To the Servicer's 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 Servicer or its properties: (i) asserting the invalidity of this
Agreement, the Indenture, any of the other Basic Documents or the Notes, (ii)
seeking to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the other
Basic Documents, (iii) seeking any determination or ruling that would reasonably
be expected to have a material adverse effect on the Servicer's ability to
perform its obligations under, or the validity or enforceability of, this
Agreement, the Indenture, any of the other Basic Documents or the Notes, or (iv)
relating to the Servicer that would reasonably be expected to (A) affect the
treatment of the Notes as indebtedness for U.S. federal income or Applicable Tax
State income or franchise tax purposes, (B) be deemed to cause a taxable
exchange of the Notes for U.S. federal income tax purposes, (C) cause the Issuer
to be treated as an association or publicly traded partnership taxable as a
corporation for U.S. federal income tax purposes or (D) cause the Issuer to
incur Michigan Single Business Tax liability.
SECTION 6.2 Indemnities of Servicer
The Servicer will be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Servicer under this
Agreement, and hereby agrees to the following:
(a) The Servicer will defend, indemnify and hold harmless the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Seller from and against
any and all costs, expenses, losses, damages, claims and liabilities, arising
out of or resulting from the use, ownership or operation by the Servicer or any
Affiliate thereof of a Financed Vehicle.
(b) The Servicer will indemnify, defend and hold harmless the Issuer, the Owner
Trustee and the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to the transactions
contemplated herein or in the other Basic Documents, if any, including, without
limitation, any sales, gross receipts, general corporation, tangible personal
property, privilege, or license taxes (but, in the case of the Issuer, not
including any taxes asserted with respect to, and as of the date of, the
conveyance of the Receivables to the Issuer or the issuance and original sale of
the Notes, or asserted with respect to ownership of the Receivables, or federal
or other Applicable Tax State income taxes arising out of the transactions
contemplated by this Agreement and the other Basic Documents) and costs and
expenses in defending against the same.
(c) The Servicer will indemnify, defend and hold harmless the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Seller from and against
any and all costs, expenses, losses, claims, damages, and liabilities to the
extent that such cost, expense, loss, claim, damage, or liability arose out of,
or was imposed upon any such Person through, the negligence, willful
misfeasance, or bad faith (other than errors in judgment) of the Servicer in the
performance of its duties under this Agreement or any other Basic Document to
which it is a party, or by reason of reckless disregard of its obligations and
duties under this Agreement or any other Basic Document to which it is a party.
(d) The Servicer will indemnify, defend, and hold harmless the Owner Trustee and
the Indenture Trustee, as applicable, from and against all costs, expenses,
losses, claims, damages, and liabilities arising out of or incurred in
connection with the acceptance or performance of the trusts and duties contained
herein and in the other Basic Documents, if any, except to the extent that such
cost, expense, loss, claim, damage, or liability: (i) in the case of the Owner
Trustee, is due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of the Owner Trustee or, in the case of the Indenture
Trustee, is due to the willful misfeasance, bad faith, or negligence (except for
errors in judgment) of the Indenture Trustee; (ii) in the case of the Owner
Trustee, arises from the breach by the Owner Trustee of any of its
representations or warranties set forth in Section 6.3 of the Trust Agreement,
(iii) in the case of the Indenture Trustee, arises from the breach by the
Indenture Trustee of any of its representations or warranties set forth in the
Indenture; or (iv) in the case of the Indenture Trustee, arises out of or is
incurred in connection with the performance by the Indenture Trustee of the
duties of a Successor Servicer hereunder.
For purposes of this Section 6.2, in the event of the
termination of the rights and obligations of Ford Credit (or any successor
thereto pursuant to Section 7.2) as Servicer pursuant to Section 7.1, or a
resignation by such Servicer pursuant to this Agreement, such Servicer will be
deemed to continue to be the Servicer pending appointment of a Successor
Servicer (other than the Indenture Trustee) pursuant to Section 7.2.
(e) Indemnification under this Section 6.2 by Ford Credit (or any successor
thereto pursuant to Section 7.2) as Servicer, with respect to the period such
Person was (or was deemed to be) the Servicer, will survive the termination of
such Person as Servicer or a resignation by such Person as Servicer as well as
the termination of this Agreement or the resignation or removal of the Owner
Trustee or the Indenture Trustee and will include reasonable fees and expenses
of counsel and expenses of litigation. If the Servicer has made any indemnity
payments pursuant to this Section 6.2 and the Person to or on behalf of whom
such payments are made thereafter collects any of such amounts from others, such
Person will promptly repay such amounts to the Servicer, without interest.
SECTION 6.3 Merger or Consolidation of, or Assumption of the Obligations
of, Servicer
Any Person (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Servicer is a party, (iii) succeeding to the business of the Servicer,
or (iv) so long as Ford Credit acts as Servicer, any company or other business
entity of which Ford Motor Company owns, directly or indirectly, more than 50%
of the voting stock or voting power and 50% or more of the economic equity,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Servicer under this Agreement, will be the
successor to the Servicer under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement; provided, however, that (x) the Servicer has delivered to the Owner
Trustee and the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such merger, conversion, consolidation, or succession
and such agreement of assumption comply with this Section 6.3 and that all
conditions precedent provided for in this Agreement relating to such transaction
have been complied with and (y) the Servicer has delivered to the Owner Trustee
and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the
opinion of such counsel, all financing statements and continuation statements
and amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Issuer and the Indenture Trustee,
respectively, in the Receivables, and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action is necessary to
preserve and protect such interests. The Servicer will provide notice of any
merger, conversion, consolidation or succession pursuant to this Section 6.3 to
the Rating Agencies. Notwithstanding anything herein to the contrary, the
execution of the foregoing agreement or assumption and compliance with clauses
(x) and (y) of this Section 6.3 will be conditions to the consummation of the
transactions referred to in clauses (i), (ii), or (iii) this Section 6.3.
SECTION 6.4 Limitation on Liability of Servicer and Others
(a) Neither the Servicer nor any of the directors or officers or employees or
agents of the Servicer will be under any liability to the Issuer or the
Noteholders, except as provided under this Agreement, for any action taken or
for refraining from the taking of any action pursuant to this Agreement or for
errors in judgment; provided, however, that this provision will not protect the
Servicer or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance or bad faith in the performance of
duties or by reason of reckless disregard of obligations and duties under this
Agreement, or by reason of negligence in the performance of its duties under
this Agreement (except for errors in judgment). The Servicer and any director,
officer or employee or agent of the Servicer may rely in good faith on any
Opinion of Counsel or on any Officer's Certificate of the Seller or certificate
of auditors believed to be genuine and to have been signed by the proper party
in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer will not be under any
obligation to appear in, prosecute, or defend any legal action that is not
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties to this Agreement and the interests of the Noteholders
under this Agreement. In such event, the legal expenses and costs of such action
and any liability resulting therefrom will be expenses, costs and liabilities of
the Servicer.
SECTION 6.5 Delegation of Duties
So long as Ford Credit acts as Servicer, the Servicer may at
any time without notice or consent delegate some of or substantially all of its
duties under this Agreement to Ford Motor Company or any company or other
business entity of which Ford Motor Company owns, directly or indirectly, more
than 50% of the voting stock or voting power and 50% or more of the economic
equity. The Servicer may at any time perform specific duties as servicer under
the Agreement through sub-contractors; provided, that no such delegation or
subcontracting will relieve the Servicer of its responsibilities with respect to
such duties as to which the Servicer will remain primarily responsible with
respect thereto and the Servicer will be solely responsible for the fees of any
such sub-contractors.
SECTION 6.6 Ford Credit Not to Resign as Servicer
Subject to the provisions of Section 6.3, Ford Credit will not
resign from the obligations and duties hereby imposed on it as Servicer under
this Agreement except upon determination that the performance of its duties
under this Agreement is no longer permissible under applicable law. Notice of
any such determination permitting the resignation of Ford Credit will be
communicated to the Owner Trustee and the Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, will be
confirmed in writing at the earliest practicable time) and any such
determination will be evidenced by an Opinion of Counsel to such effect
delivered to the Owner Trustee and the Indenture Trustee concurrently with or
promptly after such notice. No such resignation will become effective until the
Indenture Trustee or a Successor Servicer has (i) taken the actions required by
Section 7.1(b), (ii) assumed the responsibilities and obligations of Ford Credit
in accordance with Section 7.2 and (iii) become, or replaced Ford Credit with a
successor as, the Administrator under the Administration Agreement pursuant to
Section 9 thereof.
SECTION 6.7 Servicer May Own Notes
The Servicer, and any Affiliate of the Servicer, may, in its
individual or any other capacity, become the owner or pledgee of Notes 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 so
owned by or pledged to the Servicer or such Affiliate will have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Notes.
ARTICLE VII
SERVICING TERMINATION
SECTION 7.1 Events of Servicing Termination
(a) If any one of the following events ("Events of Servicing Termination")
occur and be continuing:
(i) Any failure by the Servicer or the Seller to deliver to the Owner
Trustee or the Indenture Trustee any proceeds or payment required to be
so delivered under the terms of the Notes and this Agreement that
continues unremedied for a period of three (3) Business Days after
written notice of such failure is received by the Servicer or the
Seller, as the case may be, from the Owner Trustee or the Indenture
Trustee or after actual knowledge of such failure is obtained by an
Authorized Officer of the Servicer or of the Seller, as the case may
be; provided that such event will not be an Event of Servicing
Termination if:
(1) such failure or delay is caused by an event
outside the control of the Servicer or the Seller that
the Servicer or the Seller, as the case may be, could not have avoided through
the use of commercially reasonable efforts, (2) such failure or delay does not
continue for more than five (5) Business Days after the expiration of the cure
period in Section 7.1(a), (3) during such period the Servicer or the Seller, as
the case may be, uses all commercially reasonable efforts to perform its
obligations under this Agreement, and (4) the Servicer or the Seller provides
the Owner Trustee and the Indenture Trustee with prompt notice of such failure
or delay that includes a description of the Servicer's or Seller's efforts to
remedy such failure; or
(B) (1) such failure or delay could not reasonably be
expected to, or upon investigation and
quantification does not, result in the failure or delay in delivering to the
Owner Trustee and the Indenture Trustee any proceeds or payment required to be
so delivered in an amount greater than 0.05% of the aggregate Note Balance and
(2) such failure or delay is remedied within a reasonable period in light of the
circumstances, but in no event later than (x) as long as the Servicer's
long-term debt rating is at least "Baa3" by Xxxxx'x, "BBB-" by S&P or "BBB-" by
Fitch, ninety (90) days after an Authorized Officer of the Servicer obtains
actual knowledge of such failure or delay and (y) if the Servicer's long-term
debt rating does not satisfy the requirements of clause (x), ninety (90) days
after the proceeds or payment was required to be delivered; 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
or in this Agreement, which failure (a) materially and adversely
affects the rights of Noteholders and (b) continues unremedied for a
period of ninety (90) days after the date on which written notice of
such failure, requiring the same to be remedied, has been given (1) to
the Servicer or the Seller, as the case may be, by the Owner Trustee or
the Indenture Trustee, or (2) to the Owner Trustee, the Indenture
Trustee, the Seller and the Servicer by the Noteholders of Notes
evidencing not less than 25% of the Note Balance of the Controlling
Note Class; or
(iii) The entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver, or liquidator for the Servicer or the Seller in
any insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings, or for the winding up or
liquidation of its respective affairs, and the continuance of any such
decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
(iv) The consent by the Servicer or the Seller to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities, or similar proceedings
of or relating to the Servicer of or relating to substantially all of
its property; or the Servicer admits in writing its inability to pay
its debts generally as they become due, files a petition to take
advantage of any applicable insolvency or reorganization statute, makes
an assignment for the benefit of its creditors, or voluntary suspends
payment of its obligations or become insolvent;
then the Indenture Trustee will promptly notify each Rating Agency, and in each
and every case, so long as an Event of Servicing Termination has not been
remedied, either the Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the Note Balance of the Controlling Note Class (or,
if no Notes are outstanding, the Owner Trustee), by notice 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 or the Trust
Property or otherwise, will pass to and be vested in the Indenture Trustee or
such Successor Servicer as may be appointed under Section 7.2. In such event,
the Indenture Trustee and the Owner Trustee are hereby authorized and empowered
to execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise.
(b) Upon termination of the Servicer under Section 7.1(a), the predecessor
Servicer will cooperate with the Indenture Trustee, the Owner Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the predecessor Servicer under this Agreement, including the transfer
to the Indenture Trustee or such Successor Servicer for administration of all
cash amounts that are at the time held by the predecessor Servicer for deposit,
or will thereafter be received with respect to a Receivable and the delivery of
the Receivable Files and the related accounts and records maintained by the
Servicer. All reasonable costs and expenses (including attorneys' fees) incurred
in connection with transferring the Receivable Files to the Successor Servicer
and amending this Agreement to reflect such succession as Servicer pursuant to
this Section 7.1 will be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses.
SECTION 7.2 Appointment of Successor Servicer
(a) Upon the Servicer's receipt of notice of termination pursuant to Section 7.1
or the Servicer's resignation in accordance with the terms of this Agreement,
the predecessor Servicer will continue to perform its functions as Servicer
under this Agreement, in the case of termination, only until the date specified
in such termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation, until
the later of (x) the date 45 days from the delivery to the Indenture Trustee and
the Owner Trustee of written notice of such resignation (or written confirmation
of such notice) in accordance with the terms of this Agreement and (y) the date
upon which the predecessor Servicer is legally unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. If
the Servicer resigns or is terminated hereunder, the Issuer will appoint a
Successor Servicer, and the Successor Servicer will accept its appointment by a
written assumption in form acceptable to the Owner Trustee and the Indenture
Trustee (with a copy to each Rating Agency). If a Successor Servicer has not
been appointed at the time when the predecessor Servicer ceases to act as
Servicer in accordance with this Section 7.2, the Indenture Trustee without
further action will automatically be appointed the Successor Servicer.
Notwithstanding the above, the Indenture Trustee, if it is legally unable so to
act, will appoint, or petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than $100,000,000 and
whose regular business will include the servicing of automotive receivables, as
the successor to the Servicer under this Agreement.
(b) Upon appointment, the Successor Servicer will be the successor in all
respects to the predecessor Servicer and will be subject to all the
responsibilities, duties, and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, by the terms and provisions of this
Agreement.
(c) In connection with such appointment, the Indenture Trustee may make such
arrangements for the compensation of such Successor Servicer out of payments on
Receivables as it and such Successor Servicer will agree; provided, however,
that no such compensation will be in excess of the amount paid to the
predecessor Servicer under this Agreement. The Indenture Trustee and such
Successor Servicer will take such action, consistent with this Agreement, as
will be necessary to effectuate any such succession.
SECTION 7.3 Repayment of Simple Interest Advances
The predecessor Servicer will be entitled to receive, to the
extent of available funds, reimbursement for outstanding Simple Interest
Advances pursuant to Section 4.5, in the manner specified in Section 4.7(a),
with respect to all Simple Interest Advances made by the predecessor Servicer.
SECTION 7.4 Notification to Noteholders
Upon any termination of, or appointment of a successor to, the
Servicer pursuant to this Article VII, the Indenture Trustee will give prompt
written notice thereof to Noteholders at their respective addresses of record
and to each Rating Agency.
SECTION 7.5 Waiver of Past Events of Servicing Termination
The Noteholders of Notes evidencing not less than a majority
of the Note Balance of the Controlling Note Class (or, if no Notes are
outstanding, the Owner Trustee) may, on behalf of all Noteholders, waive any
Event of Servicing Termination hereunder and its consequences, except an event
resulting from the failure to make any required deposits to or payments from any
of the Trust Accounts in accordance with this Agreement. Upon any such waiver of
a past Event of Servicing Termination, such Event of Servicing Termination will
cease to exist, and will be deemed to have been remedied for every purpose of
this Agreement. No such waiver will extend to any subsequent or other event or
impair any right consequent thereon. The Issuer will provide written notice of
any such waiver to the Rating Agencies.
ARTICLE VIII
TERMINATION
SECTION 8.1 Optional Purchase of All Receivables
On the last day of any Collection Period as of which the Pool
Factor is equal to or less than the Optional Purchase Percentage, the Servicer
has the option to purchase the Trust Property (other than the amounts on deposit
in or invested in Permitted Investments maturing on or before the next Payment
Date in the 2005-C Bank Accounts). To exercise such option, the Servicer will
notify the Indenture Trustee, the Owner Trustee and the Rating Agencies and will
deposit into the Collection Account an amount equal to the aggregate Purchase
Amount for the Receivables pursuant to Section 4.6, and will succeed to all
interests in and to the Trust Property. Notwithstanding the foregoing, the
Servicer will not be permitted to exercise such option unless the amount to be
deposited in the Collection Account pursuant to the preceding sentence is
greater than or equal to the sum of the outstanding principal amount of the
Notes and all accrued but unpaid interest (including any overdue interest)
thereon after giving effect to the priorities in Section 4.7(c). The amount
deposited in the Collection Account pursuant to this Section 8.1 will be used on
the next Payment Date to make payments in full to Noteholders in the manner set
forth in Article IV.
SECTION 8.2 Succession Upon Satisfaction and Discharge of Indenture
Following the satisfaction and discharge of the Indenture and
the payment in full of the principal of and interest on the Notes, to the extent
permitted by applicable law, the Indenture Trustee will continue to carry out
its obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Collection Account in accordance with
Section 4.7 and making withdrawals from the Reserve Account in accordance with
Section 4.1(d) and Section 4.6(b).
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment
(a) This Agreement may be amended by the Seller, the Servicer and the Issuer,
with the consent of the Indenture Trustee and the Owner Trustee to the extent
that their respective rights or obligations may be affected thereby (which
consent may not be unreasonably withheld), but without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement, or to add any provisions to or change or eliminate any
provisions or to modify the rights of the Noteholders; provided, however, that
such action will not, as evidenced by an Opinion of Counsel delivered to the
Owner Trustee and the Indenture Trustee, materially and adversely affect the
interests of any Noteholder; provided, further, that such action will not, as
evidenced by an Opinion of Counsel, (A) cause the Issuer to be characterized for
federal or any then Applicable Tax State income tax purposes as an association
taxable as a corporation, (B) affect the treatment of the Notes as indebtedness
for U.S. federal income or Applicable Tax State income or franchise tax purposes
or (C) be deemed to cause a taxable exchange of the Notes for U.S. federal
income or Applicable Tax State income or franchise tax purposes.
(b) This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the consent (i) of the Owner Trustee to the extent
that its rights or obligations may be affected by such amendment (which consent
may not be unreasonably withheld), (ii) the Indenture Trustee, to the extent
that its rights or obligations would be affected by such amendment and (iii) the
Noteholders of Notes evidencing not less than a majority of the Note Balance of
each Class of the Notes (which consent of any Noteholder of a Note given
pursuant to this Section 9.1 or pursuant to any other provision of this
Agreement will be conclusive and binding on such Note and on all future
Noteholders of such Note and of any Note 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), for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Noteholders; provided, however, that
no such amendment may (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, or change the allocation or priority of,
collections of payments on Receivables or distributions that are required to be
made on any Note or change any Note Interest Rate or, without receipt of Rating
Agency Confirmation, the Specified Reserve Balance, without the consent of all
adversely affected Noteholders or (B) reduce the aforesaid percentage required
to consent to any such amendment, without the consent of the Noteholders of all
Notes affected thereby; provided, further, that such action will not, as
evidenced by an Opinion of Counsel, cause the Issuer to be characterized for
federal or any then Applicable Tax State income tax purposes as an association
taxable as a corporation.
(c) Prior to the execution of any such amendment or consent the Servicer will
provide, and the Owner Trustee will distribute, written notification of the
substance of such amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the Owner
Trustee will furnish written notification of the substance of such amendment or
consent to the Indenture Trustee and each Rating Agency and the Indenture
Trustee will provide notification of the substance of such amendment or consent
to each Noteholder. It will not be necessary for the consent of Noteholders
pursuant to this Section 9.1 to approve the particular form of any proposed
amendment or consent, but it will be sufficient if such consent approves the
substance thereof. The manner of obtaining such consents (and any other consents
of Noteholders provided for in this Agreement) and of evidencing the
authorization of the execution thereof by Noteholders will be subject to such
reasonable requirements as the Owner Trustee and the Indenture Trustee may
prescribe, including the establishment of record dates pursuant to paragraph
number 2 of the Note Depository Agreement.
(e) Prior to the execution of any amendment to this Agreement, the Owner Trustee
and the Indenture Trustee will be entitled to receive and rely upon an Opinion
of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
9.2(i)(1). The Owner Trustee or the Indenture Trustee may, but will not be
obligated to, enter into any such amendment which affects such Owner Trustee's
or Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 9.2 Protection of Title to Trust Property
(a) The Seller will execute and file such financing statements and cause to
be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve,
maintain, and protect the interest of the Issuer and the Indenture
Trustee for the benefit of the Noteholders in the Receivables and in
the proceeds thereof. The Seller will deliver (or cause to be
delivered) to the Owner Trustee and the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. The Seller
authorizes the Issuer and any assignee of the Issuer's rights in the
Trust Property hereunder to file such financing statements and
continuation statements.
(b) Neither the Seller nor the Servicer will change its name, identity, or
corporate structure in any manner that would, could, or might make any
financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the
meaning of ss. 9-506 of the UCC, unless it has given the Owner Trustee
and the Indenture Trustee at least five (5) days' prior written notice
thereof, with a copy to the Rating Agencies, and has promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller and the Servicer will give the Owner Trustee and the
Indenture Trustee at least sixty (60) days' prior written notice of any
change in its jurisdiction of organization and will promptly file (and
authorizes the Issuer and any assignee of the Issuer hereunder to file)
all amendments of any previously filed financing or continuation
statements and any new financing statement as may be necessary to
continue the perfection of the Issuer 's interest in the Trust
Property. The Servicer will at all times maintain each office from
which it will service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer will maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit the Issuer, the Owner
Trustee and the Indenture Trustee to review the relevant information
with respect to each Receivable: the Principal Balance, APR, scheduled
payment, maturity date and delinquency status of each Receivable.
(e) The Servicer will maintain its computer systems so that, from and after
the time of conveyance under this Agreement of the Receivables to the
Issuer, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable will indicate clearly the interest
of the Issuer and the Indenture Trustee in such Receivable and that
such Receivable is owned by the Issuer and has been pledged to the
Indenture Trustee pursuant to the Indenture. Indication of the Issuer's
and the Indenture Trustee's interest in a Receivable will not be
deleted from or modified on the Servicer's computer systems until, and
only until, the Receivable has been paid in full or repurchased.
(f) If at any time the Seller or the Servicer proposes to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender, or other transferee,
the Servicer will give to such prospective purchaser, lender, or other
transferee computer tapes, records, or print-outs (including any
restored from back-up archives) that, if they refer in any manner
whatsoever to any Receivable, will indicate clearly that such
Receivable has been conveyed to and is owned by the Issuer and has been
pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice, will permit the
Owner Trustee, the Indenture Trustee and their respective agents at any
time during normal business hours to inspect, audit, and make copies of
and to obtain abstracts from the Servicer's records regarding any
Receivable.
(h) Upon request, the Servicer will furnish to the Owner Trustee and the
Indenture Trustee, within twenty (20) Business Days, a list of all
Receivables (by contract number) then held as part of the Trust,
together with a reconciliation of such list to the Schedule of
Receivables and to each of the Monthly Investor Reports furnished
before such request indicating removal of Receivables from the Trust.
(i) The Servicer will deliver to the Owner Trustee and the Indenture
Trustee:
(1) promptly after the execution and delivery of this Agreement, an Opinion
of Counsel either (A) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of
the Issuer and the Indenture Trustee in the Receivables, and reciting
the details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (B) stating that, in the opinion of
such Counsel, no such action is necessary to preserve and protect such
interest; and
(2) within 120 days after the beginning of each calendar year beginning
with the first calendar year beginning more than three months after the
Cutoff Date, an Opinion of Counsel, dated as of a date during such
120-day period, either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee in the Receivables,
and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in the
opinion of such Counsel, no such action is necessary to preserve and
protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above will specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
(j) The Seller will, to the extent required by applicable law, cause the Notes
to be registered with the Securities and Exchange Commission pursuant to Section
12(b) or Section 12(g) of the Securities Exchange Act of 1934 within the time
periods specified in such sections.
(k) For the purpose of facilitating the execution of this Agreement and for
other purposes, this Agreement may be executed in any number of counterparts,
each of which counterparts will be deemed to be an original, and all of which
counterparts will constitute but one and the same instrument.
SECTION 9.3 Governing Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.4 Notices
All demands, notices, and communications under this Agreement
will be in writing, personally delivered, sent by telecopier, overnight courier,
registered mail, U.S. mail postage prepaid and will be deemed to have been duly
given upon receipt:
(a) in the case of the Servicer at the following address (or such other address
as may be designated by such party in a written notice to the other parties to
this Agreement):
Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Securitization Operations Supervisor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
(b) in the case of the Seller at the following address (or such other address as
may be designated by such party in a written notice to the other parties to this
Agreement):
Ford Credit Auto Receivables Two LLC
c/o Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Ford Credit SPE Management Office
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) in the case of the Owner Trustee, at the Corporate Trust Office of the Owner
Trustee,
(d) in the case of the Indenture Trustee, at the Corporate Trust Office of the
Indenture Trustee,
(e) 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,
(f) in the case of Standard & Poor's, at the following address: Standard &
Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset
Backed Surveillance Department, and
(g) in the case of Fitch, Inc., at the following address: Fitch, Inc., 0 Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance.
Any notice required or permitted to be mailed to a Noteholder
will be given by first class mail, postage prepaid, or sent by overnight
delivery at the address of such Person as shown in the Note Register. Any notice
so mailed within the time prescribed in this Agreement will be conclusively
presumed to have been duly given, whether or not the Noteholder receives such
notice.
SECTION 9.5 Severability of Provisions
If any one or more of the covenants, agreements, provisions,
or terms of this Agreement is for any reason whatsoever held invalid, then such
covenants, agreements, provisions, or terms will be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement and will
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Notes or the rights of the holders thereof.
SECTION 9.6 Assignment
Notwithstanding anything to the contrary contained herein,
except as provided in Sections 6.3 and 7.2 and as provided in the provisions of
this Agreement concerning the resignation of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer without the prior written consent
of the Owner Trustee, the Indenture Trustee, the Noteholders of Notes evidencing
not less than 66 ?% of the Note Balance of the Notes Outstanding.
SECTION 9.7 Further Assurances
The Seller and the Servicer agree to do and perform, from time
to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the Owner Trustee or the Indenture Trustee
more fully to effect the purposes of this Agreement, including the execution of
any financing statements or continuation statements relating to the Receivables
for filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 9.8 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part
of the Owner Trustee, the Indenture Trustee or the Noteholders, any right,
remedy, power or privilege hereunder, will operate as a waiver thereof; nor will
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges therein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 9.9 Third-Party Beneficiaries
This Agreement will inure to the benefit of and be binding
upon the parties hereto, the Noteholders, the Indenture Trustee and the Owner
Trustee and their respective successors and permitted assigns and each of the
Indenture Trustee and the Owner Trustee may enforce the provisions hereof as if
they were parties thereto. Except as otherwise provided in this Article IX, no
other Person will have any right or obligation hereunder. The parties hereto
hereby acknowledge and consent to the pledge of this Agreement by the Issuer to
the Indenture Trustee for the benefit of the Noteholders pursuant to the
Indenture.
SECTION 9.10 Actions by Noteholders
(a) Wherever in this Agreement a provision is made that an action may be taken
or a notice, demand, or instruction given by Noteholders, such action, notice,
or instruction may be taken or given by any Noteholder unless such provision
requires a specific percentage of Noteholders.
(b) Any request, demand, authorization, direction, notice, consent, waiver, or
other act by a Noteholder will bind such Noteholder and every subsequent holder
of such Note 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.
SECTION 9.11 Agent for Service
The agent for service of the Seller and the Servicer in
respect of this Agreement will be the person holding the office of Corporate
Secretary, of the Seller and the Servicer, Xxx Xxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxxx, Xxxxxxxx 00000.
SECTION 9.12 No Bankruptcy Petition
The Owner Trustee, the Indenture Trustee, the Issuer and the
Servicer each covenants and agrees that, prior to the date which is one year and
one day after the payment in full of all securities issued by the Seller or by a
trust for which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not institute
against, or join any other Person in instituting against, the Seller any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or State bankruptcy or similar law. This
Section 9.12 will survive the resignation or removal of the Owner Trustee under
the Trust Agreement or the Indenture Trustee under the Indenture or the
termination of this Agreement.
SECTION 9.13 Limitation of Liability of Owner Trustee and Indenture Trustee
(a) Notwithstanding anything contained herein to the contrary, this Agreement
has been countersigned by Wachovia Bank of Delaware, National Association not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event will Wachovia Bank of Delaware, National Association in
its individual capacity or, except as expressly provided in the Trust Agreement,
as Owner Trustee of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse will be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee will be subject to, and entitled to the benefits
of, the terms and provisions of Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this Agreement
has been accepted by The Bank of New York, not in its individual capacity but
solely as Indenture Trustee, and in no event will The Bank of New York have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse will be had
solely to the assets of the Issuer.
SECTION 9.14 Confidential Information
(a) The Issuer agrees to hold and treat all Confidential Information (defined in
Section 9.14(b)) provided to it under this Agreement in confidence and in
accordance with this Section 9.14, and will implement and maintain safeguards to
further assure the confidentiality of such Confidential Information. Such
Confidential Information will not, without instruction pursuant to this
Agreement or the prior written consent of the Servicer, be disclosed or used by
the Issuer or its officers, directors, employees, attorneys or agents
(collectively, the "Information Recipients") other than in connection with the
transactions contemplated by the Basic Documents and the issuance of the Notes.
Disclosure that is not in violation of the Right to Financial Privacy Act of
1978, the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "G-L-B Act") or any other law by
an Information Recipient of any Confidential Information (A) in connection with
the performance of the Issuer's duties hereunder or (B) at the request of the
Issuer's firm of nationally recognized Independent certified public accountants
or governmental regulatory authorities in connection with an examination of the
Issuer by any such authority or for the purposes specified in Sections 3.11 and
3.12 will not constitute a breach of its obligations under this Section 9.14,
and will not require the prior written consent of the Servicer.
(b) The Indenture Trustee agrees to comply with Section 11.21 of the Indenture
and the Owner Trustee agrees to comply with Section 10.12 of the Trust
Agreement.
(c) As used herein, "Confidential Information" means non-public personal
information (as defined in the G-L-B Act and its enabling regulations issued by
the Federal Trade Commission) regarding Obligors on the Receivables that is
identified as such by the Servicer. Confidential Information will not include
information that (i) is or becomes generally available to the public other than
as a result of disclosure by any of the Information Recipients, (ii) was
available to any of the Information Recipients on a non-confidential basis from
a Person or entity other than the Servicer prior to its disclosure to any of the
Information Recipients, (iii) is requested to be disclosed by a governmental
authority or related governmental, administrative, or regulatory or
self-regulatory agencies having or claiming authority to regulate or oversee any
aspect of the business of the Issuer or that of any of its Affiliates or is
otherwise required by law or by legal or regulatory process to be disclosed,
(iv) becomes available to any of the Information Recipients on a
non-confidential basis from a Person other than the Servicer who, to the
knowledge of such Information Recipient is not otherwise bound by a
confidentiality agreement with the Servicer and is not otherwise prohibited from
transmitting the information to the Information Recipients or (v) the Servicer
provides written permission to the Issuer to release.
SECTION 9.15 Savings Clause
It is the intention of the Seller and the Issuer that the
transfer of the Trust Property contemplated in this Agreement constitute an
absolute sale of the Trust Property, conveying good title to the Trust Property
from the Seller to the Issuer. However, in the event that such sale is deemed to
be a pledge, the Seller 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 the
sum of all amounts payable by the Seller under this Agreement, all principal
amounts payable under the Notes and all amounts payable as interest on the
Notes, and all amounts payable as servicing fees under this Agreement, and in
such event, this Agreement will constitute a security agreement under applicable
law.
IN WITNESS WHEREOF, the parties have caused this Sale and
Servicing Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES TWO LLC, as Seller
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
FORD CREDIT AUTO OWNER TRUST 2005-C,
as Issuer
By: WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner
Trustee
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
FORD MOTOR CREDIT COMPANY,
as Servicer
By: /s/ X. X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
Accepted and agreed:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture Trustee
By:/s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Treasurer
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By:/s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
SA-1
SCHEDULE A
SCHEDULE OF RECEIVABLES
Delivered to Indenture Trustee at Closing
SB-1
SCHEDULE B
Location of Receivable Files
at Third Party Custodians
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
MSX International, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Iron Mountain Records Management
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
AA-1
APPENDIX A
Definitions and Usage
See Tab 16
