Exhibit 99.1
SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 2000-F,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO L.P.,
as Seller,
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of October 1, 2000
SALE AND SERVICING AGREEMENT, dated as of October 1, 2000 (as
from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 2000-F (the
"Issuer"), a Delaware business trust, FORD CREDIT AUTO RECEIVABLES TWO L.P., a
Delaware limited partnership, as seller (the "Seller"), and FORD MOTOR CREDIT
COMPANY, a Delaware corporation, as servicer (the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of
receivables consisting of motor vehicle retail installment sale contracts
generated by Ford Motor Credit Company and PRIMUS in the ordinary course of
their business and conveyed and to be conveyed to Issuer by the Seller on the
Closing Date and on Subsequent Transfer Dates during the Revolving Period;
WHEREAS, the Seller is willing to sell such receivables and
related property to the Issuer; and
WHEREAS, Ford Motor Credit Company is willing to service
such receivables on behalf of the Issuer;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that shall
be applicable herein.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property. (a) In consideration of the
Issuer's delivery to, or upon the order of, the Seller of the Notes and the
Certificates in an aggregate principal amount equal to 94.63% of the Initial
Pool Balance, the Seller does hereby irrevocably transfer, assign and otherwise
convey to the Issuer without recourse (subject to the obligations herein) all
right, title and interest of the Seller, whether now owned or hereafter
acquired, in and to the following (collectively, the "Initial Trust Property"):
(i) the Initial Receivables; (ii) with respect to Initial Receivables that are
Actuarial Receivables, monies due thereunder on or after the Initial Cutoff Date
(including Payaheads) and, with respect to Initial Receivables that are Simple
Interest Receivables, monies due or received thereunder on or after the Initial
Cutoff Date; (iii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Initial Receivables and any other interest of the
Issuer in the Financed Vehicles; (iv) rights to receive proceeds with respect to
the Initial Receivables from claims on any physical damage, credit life, credit
disability, or other insurance policies covering Financed Vehicles or Obligors;
(v) Dealer Recourse with respect to the Initial Receivables; (vi) all of the
Seller's rights to the Receivable Files that relate to the Initial Receivables;
(vii) the Trust Accounts, the Certificate Interest Distribution Account, the
Certificate Principal Distribution Account and all amounts, securities,
investments, investment property and other property deposited in or credited to
any of the foregoing, all security entitlements relating to the foregoing and
all proceeds thereof; (viii) all of the Seller's rights under this Agreement,
including the right to purchase Additional Receivables during the Revolving
Period at a price equal to the Additional Receivables Purchase Price; (ix) all
of the Seller's rights under the Purchase Agreement, including the right of the
Seller to cause Ford Credit to repurchase Receivables from the Seller; (x)
payments and proceeds with respect to the Initial Receivables held by the
Servicer; (xi) all property (including the right to receive Liquidation
Proceeds) securing an Initial Receivable (other than an Initial Receivable
purchased by the Servicer or purchased by the Seller); (xii) rebates of premiums
and other amounts relating to insurance policies and other items financed under
the Initial Receivables in effect as of the Initial Cutoff Date; and (xiii) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing.
(b) Subject to satisfaction of the conditions set forth in Section
2.1(d), in consideration of the Issuer's delivery on or prior to any Subsequent
Transfer Date to the Seller of an amount equal to the Additional Receivables
Purchase Price, on each Subsequent Transfer Date the Seller shall, pursuant to
this Agreement and the related Second Tier Subsequent Assignment, irrevocably
sell, transfer, assign and otherwise convey to the Issuer, without recourse
(subject to the obligations herein and in the related Second Tier Subsequent
Assignment), on each Subsequent Transfer Date, all right, title and interest of
the Seller, whether now owned or hereafter acquired, in, to and under the
following (collectively, the "Subsequent Trust Property" and, together with the
Initial Trust Property, the "Trust Property")): (i) the Additional Receivables
listed on Schedule A to the related Second Tier Subsequent Assignment; (ii) with
respect to such Additional Receivables that are Actuarial Receivables, monies
due thereunder on or after the related Subsequent Cutoff Date (including
Payaheads) and, with respect to such Additional Receivables that are Simple
Interest Receivables, monies due or received thereunder on or after the related
Subsequent Cutoff Date; (iii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Additional Receivables and any other
interest of the Issuer in the Financed Vehicles; (iv) rights to receive proceeds
with respect to the Additional Receivables from claims on any physical damage,
credit life, credit disability, or other insurance policies covering Financed
Vehicles or Obligors; (v) Dealer Recourse with respect to the Additional
Receivables; (vi) all of the Seller's rights to the Receivable Files that relate
to the Additional Receivables; (vii) payments and proceeds with respect to the
Additional Receivables held by the Servicer; (viii) all property (including the
right to receive Liquidation Proceeds) securing an Additional Receivable (other
than an Additional Receivable purchased by the Servicer or purchased by the
Seller); (ix) all of the Seller's rights under the related First Tier Subsequent
Assignment; (x) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Additional Receivables in effect as
of the related Subsequent Cutoff Date; and (xi) all present and future claims,
demands, causes of action and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing.
(c) [Reserved]
(d) The Seller shall sell, transfer, assign and otherwise convey to the
Trust on the Subsequent Transfer Date the Additional Receivables and the other
property and rights related thereto described in Section 2.1(b) only upon the
satisfaction of each of the following conditions on or prior to such Subsequent
Transfer Date:
(i) the Seller shall have provided the Indenture Trustee, the
Owner Trustee and the Rating Agencies on or prior to the Subsequent
Transfer Date, a statement listing the approximate aggregate Principal
Balance of such Additional Receivables as of the related Subsequent
Cutoff Date and any other information reasonably requested by any of
the foregoing;
(ii) the Seller shall have delivered to each of the Owner
Trustee and the Indenture Trustee a duly executed written assignment in
substantially the form of Exhibit A hereto (the "Second Tier Subsequent
Assignment"), which shall include Schedule A attached thereto listing
the related Additional Receivables;
(iii) as of such Subsequent Transfer Date: (A) the Seller
shall not be insolvent and shall not become insolvent as a result of
the transfer of Additional Receivables on such Subsequent Transfer
Date, (B) the Seller shall not intend to incur or believe that it would
incur debts that would be beyond the Seller's ability to pay as such
debts matured, (C) such transfer shall not be made by the Seller with
actual intent to hinder, delay or defraud any Person and (D) the assets
of the Seller shall not constitute unreasonably small capital to carry
out its business as conducted;
(iv) with respect to the Additional Receivables, as of the
related Subsequent Cutoff Date, each Additional Receivable: (1) is
secured by a new or used vehicle; (2) was originated in the U.S.; (3)
provides for level monthly payments (except for the last payment, which
may be minimally different from the level payments) that fully amortize
the amount financed over its original term to maturity; (4) is an
Actuarial Receivable or a Simple Interest Receivable; (5) bears
interest at an APR of not less than 1.80% and not greater than 20.00%;
(6) has an original term not greater than 60 months; (7) is not more
than 30 days past due as of the applicable Subsequent Cutoff Date and
has never been extended; (8) was originated no more than 24 months
prior to the applicable Subsequent Cutoff Date; (9) has a final
maturity date no later than 6 months prior to the Final Scheduled
Distribution Date of the Class D Certificates; and (10) has a remaining
term to maturity not exceeding 60 months as of the applicable
Subsequent Cutoff Date.
(v) in addition to the criteria set forth in subclause (iv)
above, it will be required that the aggregate pool of Additional
Receivables sold to the Issuer on any Monthly Distribution Date
complies with the following: (1) the weighted average APR of the pool
of Additional Receivables added on such Monthly Distribution Date is
not less than 7.53%; (2) the weighted average remaining term of the
pool of Additional Receivables added on such Monthly Distribution Date
is not greater than 49.1 months; (3) the percentage of Additional
Receivables added on such Monthly Distribution Date with respect to
vehicles financed at new vehicle rates by principal balance is equal to
or greater than 69.00% of the aggregate principal balance of the
Additional Receivables acquired by the Trust on such Monthly
Distribution Date; and (4) the percentage of Additional Receivables
added on such Monthly Distribution Date purchased by Ford Credit (but
not by PRIMUS) by principal balance is greater than or equal to 87.59%
of the aggregate principal balance of the Additional Receivables
acquired by the Trust on such Monthly Distribution Date.
(vi) no Early Amortization Event shall have occurred;
(vii) each of the representations and warranties made by the
Seller pursuant to Sections 2.2 and 5.1 of this Agreement and by Ford
Credit pursuant to Section 3.2 of the Purchase Agreement, with respect
to the Seller, Ford Credit or the Additional Receivables, as
applicable, shall be true and correct as of the date as of which such
representations and warranties are made;
(viii) the Seller shall, at its own expense, on or prior to
the Subsequent Transfer Date, indicate in its computer files that the
Additional Receivables have been sold to the Issuer pursuant to this
Agreement and the related Second Tier Subsequent Assignment and deliver
to the Owner Trustee the related Schedule of Additional Receivables
certified by an officer of the Seller to be true, correct and complete;
(ix) the Seller shall have taken any action required to
maintain the first perfected ownership interest of the Issuer in the
Trust Property and the first perfected security interest of the
Indenture Trustee in the Collateral;
(x) no selection procedures believed by the Seller to be
adverse to the interests of the Issuer, the Noteholders or the
Certificateholders shall have been utilized in selecting the
Additional Receivables;
(xi) the addition of the Additional Receivables will not
result in any material adverse tax consequences to the Issuer, the
Noteholders or the Certificateholders;
(xii) on the twelfth Subsequent Transfer Date (expected to be
the October 2001 Monthly Distribution Date) and on the September 2002
Monthly Distribution Date (or, if an Early Amortization Event occurs,
the Monthly Distribution Date following such event), the Seller shall
have delivered to the Owner Trustee, the Indenture Trustee and the
Rating Agencies an Opinion of Counsel relating to the security
interests of the Owner Trustee and the Indenture Trustee in the
Additional Receivables transferred on such Subsequent Transfer Date and
on each other Subsequent Transfer Date since the Closing Date or since
the date of the last opinion delivered pursuant to this clause in
substantially the form of the Opinion of Counsel delivered to the Owner
Trustee, the Indenture Trustee and the Rating Agencies regarding such
matters on the Closing Date;
(xiii) on the twelfth Subsequent Transfer Date (expected to be
the October 2001 Monthly Distribution Date) and the September 2002
Monthly Distribution Date (or, if an Early Amortization Event occurs,
the Monthly Distribution Date following such event), the Seller shall
have delivered to the Owner Trustee, the Indenture Trustee and the
Rating Agencies an Opinion of Counsel relating to the sale
characterization of the Additional Receivables sold on such Subsequent
Transfer Date and other Subsequent Transfer Dates since the Closing
Date or since the date of the last Opinion of Counsel delivered
pursuant to this clause from Ford Credit to the Seller;
(xiv) the Seller shall have delivered to the Owner Trustee and
the Indenture Trustee an Officer's Certificate confirming the
satisfaction of each condition specified in this Section 2.1(d)
(substantially in the form attached hereto as Exhibit B);
(xv) all the conditions to the transfer of the Additional
Receivables by Ford Credit to the Seller specified in Section 4.1(b)
of the Purchase Agreement shall be satisfied; and
(xvi) the Servicer shall have provided to each of the
Issuer and the Indenture Trustee the Officer's Certificate required to
be provided by the Servicer pursuant to Section 2.4.
(e) On each Subsequent Transfer Date during the Revolving Period, the
Seller agrees to transfer to the Issuer, pursuant to Section 2.1(b), Additional
Receivables with an aggregate Principal Balance nearly equal to, but not greater
than, 105.67% of the amount of funds the Issuer has available for the purchase
of Additional Receivables as of the related Subsequent Cutoff Dates, subject
only to availability thereof.
(f) Any transfer, assignment and conveyance made under Section 2.1(a)
or 2.1(b) shall not constitute and is not intended to result in an assumption by
the Issuer of any obligation of the Seller to the Obligors, the Dealers or any
other Person in connection with the Receivables and the other Trust Property or
any agreement, document or instrument related thereto.
SECTION 2.2 Representations and Warranties of the Seller as to
the Receivables. The Seller makes the following representations and warranties
as to the Receivables on which the Issuer shall be deemed to have relied in
accepting the Receivables. Such representations and warranties speak as of the
Closing Date in the case of the Initial Receivables and as of the related
Subsequent Transfer Date in the case of the Additional Receivables, but in
either case shall survive the transfer, assignment and conveyance of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (a) shall
have been originated in the United States of America by a Dealer for
the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the
parties thereto, shall have been purchased either (X) by the Seller
from Ford Credit, which in turn shall have purchased such Receivable
from a Dealer under an existing dealer agreement with Ford Credit, and
which shall have been validly assigned by such Dealer to Ford Credit
and which in turn shall have been validly assigned by Ford Credit to
the Seller in accordance with its terms, or (Y) by the Seller from Ford
Credit, which shall have been assigned such Receivable by PRIMUS, which
in turn shall have purchased such Receivable from a Dealer or other
finance source (provided that such purchase relates to an individual
Receivable and not a bulk purchase) under an existing agreement with
PRIMUS, and which shall have been validly assigned by such Dealer or
other finance source to PRIMUS and shall have been validly assigned by
PRIMUS to Ford Credit in the ordinary course of business and which in
turn shall have been validly assigned by Ford Credit to the Seller in
accordance with its terms, (b) shall have created or shall create a
valid, subsisting, and enforceable first priority security interest in
favor of Ford Credit in the Financed Vehicle, which security interest
has been assigned by Ford Credit to the Seller, which in turn shall be
assignable by the Seller to the Issuer, (c) shall contain customary and
enforceable provisions such that the rights and remedies of the holder
thereof shall be adequate for realization against the collateral of the
benefits of the security, (d) shall provide for level monthly payments
(provided that the payment in the first or last month in the life of
the Receivable may be minimally different from the level payment) that
fully amortize the Amount Financed by maturity and yield interest at
the Annual Percentage Rate, (e) shall provide for, in the event that
such contract is prepaid, a prepayment that fully pays the Principal
Balance, and (f) is an Actuarial Receivable or a Simple Interest
Receivable.
(ii) Schedule of Receivables. The information set forth in
the Schedule of Initial Receivables and in each Schedule of Additional
Receivables shall be true and correct in all material respects as of
the opening of business on the related Cutoff Date, and no selection
procedures believed to be adverse to the Noteholders or the
Certificateholders shall have been utilized in selecting the
Receivables from those receivables which meet the criteria contained
herein. The computer tape or other listing regarding the Receivables
made available to the Issuer and its assigns (which computer tape or
other listing is required to be delivered as specified herein) is true
and correct in all material respects.
(iii) Compliance with Law. (1) Each Receivable and the sale
of the Financed Vehicle shall have complied at the time it was
originated or made and at the execution of this Agreement shall comply,
and (2) each Additional Receivable and the sale of the Financed Vehicle
shall have complied at the time it was originated or made and at the
execution of the related Second Tier Subsequent Assignment shall
comply, in each case in all material respects with all requirements of
applicable federal, State, and local laws, and regulations thereunder,
including, without limitation, usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission
Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z, and State adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code, and other consumer credit laws
and equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent the
genuine, legal, valid, and binding payment obligation of the Obligor,
enforceable by the holder thereof in accordance with its terms subject
to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally.
(v) No Government Obligor. None of the Receivables shall be
due from the United States of America or any State or from any agency,
department, or instrumentality of the United States of America, any
State or political subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior
to the transfer, assignment and conveyance thereof, each Receivable
shall be secured by a first priority, validly perfected security
interest in the Financed Vehicle in favor of Ford Credit as secured
party or all necessary and appropriate actions shall have been
commenced that would result in a first priority, validly perfected
security interest in the Financed Vehicle in favor of Ford Credit as
secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle
have been released from the lien granted by the related Receivable in
whole or in part.
(viii) No Waiver. No provision of a Receivable shall have
been waived.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened with
respect to any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens
or claims shall have been filed for work, labor, or materials relating
to a Financed Vehicle that shall be liens prior to, or equal with, the
security interest in the Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a
period of not more than thirty (30) days as of the related Cutoff Date,
no default, breach, violation, or event permitting acceleration under
the terms of any Receivable shall have occurred; and no continuing
condition that with notice or the lapse of time would constitute a
default, breach, violation, or event permitting acceleration under the
terms of any Receivable shall have arisen; and Ford Credit shall not
waive any of the foregoing.
(xii) Insurance. Ford Credit, in accordance with its
customary standards, policies and procedures, shall have determined
that, as of the date of origination of each Receivable, the Obligor had
obtained or agreed to obtain physical damage insurance covering the
Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute an absolute
sale, transfer, assignment and conveyance of the Receivables from the
Seller to the Issuer and that the beneficial interest in and title to
the Receivables not be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned,
conveyed or pledged by the Seller to any Person other than the Issuer.
Immediately prior to the transfer and assignment of any Receivable to
the Issuer, the Seller had good and marketable title to such Receivable
free and clear of all Liens, encumbrances, security interests,
participations and rights of others and, immediately upon the transfer
thereof, the Issuer shall have good and marketable title to such
Receivable, free and clear of all Liens, encumbrances, security
interests, participations and rights of others; and the transfer has
been perfected under the UCC.
(xiv) Valid Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer, assignment and conveyance of such
Receivable under this Agreement or pursuant to transfers of the Notes
or the Certificates shall be unlawful, void, or voidable. The Seller
has not entered into any agreement with any account debtor that
prohibits, restricts or conditions the assignment of any portion of the
Receivables.
(xv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Issuer a first priority, validly perfected ownership interest in the
Receivables, and to give the Indenture Trustee a first perfected
security interest therein, shall have been made on or prior to the
Closing Date with respect to the Initial Receivables and on or prior to
the applicable Subsequent Transfer Date with respect to the Additional
Receivables. .
(xvi) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(xvii) One Original. There shall be only one original
executed copy of each Receivable. The Seller, or its custodian, has
possession of such original with respect to each Receivable.
(xviii) New and Used Vehicles. 70.00% of the aggregate
Principal Balance of the Initial Receivables, constituting 63.04% of
the number of Initial Receivables as of the Initial Cutoff Date,
represent vehicles financed at new vehicle rates, and the remainder of
the Initial Receivables represent vehicles financed at used vehicle
rates. With respect to the Additional Receivables purchased on a
Subsequent Transfer Date during the Revolving Period, the percentage of
Additional Receivables added on such Subsequent Transfer Date with
respect to vehicles financed at new vehicle rates by Principal Balance
shall be equal to or greater than 69.00% of the aggregate Principal
Balance of the Additional Receivables acquired by the Trust on such
Subsequent Transfer Date.
(xix) Amortization Type. By aggregate Principal Balance as of
the Cutoff Date, 00.02% of the Initial Receivables constitute Actuarial
Receivables and 99.98% of the Initial Receivables constitute Simple
Interest Receivables.
(xx) Origination. Each Initial Receivable shall have an
origination date on or after October 1, 1998. Each Additional
Receivable shall have an origination date no more than 24 months prior
to the applicable Subsequent Cutoff Date.
(xxi) PRIMUS. 11.91% of the aggregate Principal Balance of
the Initial Receivables as of the Initial Cutoff Date, represent
Initial Receivables originated through PRIMUS and assigned to Ford
Credit, and the remainder of the Initial Receivables were originated
through Ford Credit (excluding PRIMUS). With respect to the Additional
Receivables purchased on a Subsequent Transfer Date during the
Revolving Period, the percentage of Additional Receivables added on
such Subsequent Transfer Date purchased by Ford Credit (but not by
PRIMUS) by principal balance shall be greater than or equal to 87.59%
of the aggregate Principal Balance of the Additional Receivables
acquired by the Issuer on such Subsequent Transfer Date.
(xxii) Maturity of Receivables. Each Initial Receivable shall
have an original maturity of not greater than sixty (60) months. Each
Additional Receivable shall have an original maturity not greater than
sixty (60) months and a final maturity date no later than 6 months
prior to the Class D Final Scheduled Distribution Date and a remaining
term to maturity not exceeding 60 months as of the applicable
Subsequent Cutoff Date. With respect to the Additional Receivables
purchased on a Subsequent Transfer Date during the Revolving Period,
the weighted average remaining term of the Additional Receivables
purchased on such Subsequent Transfer Date shall not be greater than
49.1 months.
(xxiii) Annual Percentage Rate. The Annual Percentage Rate of
each Receivable shall be not less than 1.80% and not greater than
20.00%. With respect to Additional Receivables purchased on a
Subsequent Transfer Date during the Revolving Period, the weighted
Annual Percentage Rate of the Additional Receivables purchased on such
Subsequent Transfer Date shall not be less than 7.53%.
(xxiv) Scheduled Payments. Each Receivable shall have a first
Scheduled Payment due, in the case of Actuarial Receivables, or a first
scheduled due date, in the case of the Simple Interest Receivables, on
or prior to the last calendar day of the month of the related Cutoff
Date and no Receivable shall have a payment that is more than thirty
(30) days overdue as of the related Cutoff Date.
(xxv) Location of Receivable Files. The Receivable Files
shall be kept at one or more of the locations listed in Schedule B-1
hereto or the offices of one of the custodians specified in Schedule
B-2 hereto.
(xxvi) No Extensions. The number of Scheduled Payments, in
the case of Actuarial Receivables, and the number of scheduled due
dates, in the case of Simple Interest Receivables, shall not have been
extended on or before the related Cutoff Date on any Receivable.
(xxvii) Rating Agencies. The rating agencies rating the Notes
and the Class C Certificates are Xxxxx'x, Standard & Poor's and Fitch
and the rating agencies rating the Class D Certificates are Standard &
Poor's and Fitch.
(xxviii) Agreement. The representations and warranties of the
Seller in Section 5.1 are true and correct.
(xxix) No Receivables Originated in Alabama or Pennsylvania.
No Receivable shall have been originated in Alabama or Pennsylvania.
SECTION 2.3 Repurchase upon Breach. The Seller, the Servicer,
the Issuer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement, the Indenture Trustee and Ford Credit promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties made by the Seller pursuant to Section 2.2. Unless the breach shall
have been cured by the last day of the second Collection Period following the
discovery, the Indenture Trustee shall enforce the obligation of the Seller
under this Section 2.3, and, if necessary, the Seller or the Indenture Trustee
shall enforce the obligation of Ford Credit under the Purchase Agreement, to
repurchase any Receivable materially and adversely affected by the breach as of
such last day (or, at the Seller's option, the last day of the first Collection
Period following the discovery). In consideration of the purchase of the
Receivable, the Seller shall remit the Purchase Amount, in the manner specified
in Section 4.6(a). The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the Seller's representations and warranties pursuant to Section 2.2
shall be to require the Seller to repurchase such Receivables pursuant to this
Section 2.3 or to enforce the obligation of Ford Credit to the Seller to
repurchase such Receivables pursuant to the Purchase Agreement. Neither the
Owner Trustee nor the Indenture Trustee shall have any duty to conduct an
affirmative investigation as to the occurrence of any condition requiring the
repurchase of any Receivable pursuant to this Section 2.3 or the eligibility of
any Receivable for purposes of this Agreement.
SECTION 2.4 Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Issuer, upon the execution and delivery of this Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to act
as the agent of the Issuer and the Indenture Trustee as custodian of the
following documents or instruments, which are hereby constructively delivered to
the Indenture Trustee or, with respect to Additional Receivables purchased on
Subsequent Transfer Dates, which will be constructively delivered to the
Indenture Trustee as of the applicable Subsequent Transfer Date as pledgee of
the Issuer pursuant to the Indenture (collectively, a "Receivable File"):
(i) The original Receivable.
(ii) The original credit application fully executed by the
Obligor or a photocopy thereof or a record thereof on a computer file,
diskette or on microfiche.
(iii) The original certificate of title or such documents that
the Servicer or Ford Credit shall keep on file, in accordance with its
customary standards, policies and procedures, evidencing the security
interest of Ford Credit in the Financed Vehicle.
(iv) Any and all other documents (including any computer file,
diskette or microfiche) that the Servicer or the Seller shall keep on
file, in accordance with its customary procedures, relating to a
Receivable, an Obligor, or a Financed Vehicle.
On the Closing Date (with respect to the Initial Receivables)
and on each Subsequent Transfer Date (with respect to the Additional Receivables
purchased by the Trust on such Subsequent Transfer Date) the Servicer shall
provide an Officer's Certificate to the Issuer and the Indenture Trustee
confirming that the Servicer has received on behalf of the Issuer and the
Indenture Trustee all the documents and instruments necessary for the Servicer
to act as the agent of the Issuer and the Indenture Trustee for the purposes set
forth in this Section 2.4, including the documents referred to herein, and the
Issuer and the Indenture Trustee are hereby authorized to rely on such Officer's
Certificate.
SECTION 2.5 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files
for the benefit of the Issuer and the Indenture Trustee and maintain such
accurate and complete accounts, records, and computer systems pertaining to each
Receivable File as shall enable the Servicer and the Issuer to comply with the
terms and conditions of this Agreement, and the Indenture Trustee to comply with
the terms and conditions of the Indenture. In performing its duties as custodian
the Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the receivable files
relating to all comparable automotive receivables that the Servicer services for
itself or others and, consistent with such reasonable care, the Servicer may
utilize the services of third parties to act as custodian of physical Receivable
Files, subject to Section 6.5. In accordance with its customary standards,
policies and procedures with respect to its retail installment sale contracts,
the Servicer shall conduct, or cause to be conducted, periodic audits of the
Receivable Files held by it under this Agreement, and of the related accounts,
records, and computer systems, in such a manner as shall enable the Issuer or
the Indenture Trustee to verify the accuracy of the Servicer's record keeping.
The Servicer shall promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its accounts,
records, and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Issuer, the Owner Trustee or the
Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B-1 to
this Agreement or the offices of one of its custodians specified in Schedule B-2
of this Agreement, or at such other office as shall be specified to the Issuer
and the Indenture Trustee by written notice not later than ninety (90) days
after any change in location. The Servicer shall make available to the Issuer
and the Indenture Trustee or their duly authorized representatives, attorneys,
or auditors a list of locations of the Receivable Files, the Receivable Files,
and the related accounts, records, and computer systems maintained by the
Servicer at such times as the Issuer or the Indenture Trustee shall instruct,
but only upon reasonable notice and during the normal business hours at the
respective offices of the Servicer.
(c) Release of Documents. Upon written instructions from the
Indenture Trustee, the Servicer shall release or cause to be released any
document in the Receivable Files to the Indenture Trustee, the Indenture
Trustee's agent or the Indenture Trustee's designee, as the case may be, at such
place or places as the Indenture Trustee may designate, as soon thereafter as is
practicable. Any document so released shall be handled by the Indenture Trustee
with due care and returned to the Servicer for safekeeping as soon as the
Indenture Trustee or its agent or designee, as the case may be, shall have no
further need therefor.
SECTION 2.6 Instructions; Authority to Act. All instructions
from the Indenture Trustee shall be in writing and signed by an Authorized
Officer of the Indenture Trustee, and the Servicer shall be deemed to have
received proper instructions with respect to the Receivable Files upon its
receipt of such written instructions.
SECTION 2.7 Custodian's Indemnification. The Servicer as
custodian shall indemnify the Issuer, the Owner Trustee and the Indenture
Trustee for any and all liabilities, obligations, losses, compensatory damages,
payments, costs, or expenses of any kind whatsoever that may be imposed on,
incurred, or asserted against the Issuer, the Owner Trustee or the Indenture
Trustee as the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the Receivable Files;
provided, however, that the Servicer shall not be liable (i) to the Issuer for
any portion of any such amount resulting from the willful misfeasance, bad
faith, or negligence of the Indenture Trustee, the Owner Trustee or the Issuer,
(ii) to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith, or negligence of the Indenture Trustee, the
Owner Trustee or the Issuer and (iii) to the Indenture Trustee for any portion
of any such amount resulting from the willful misfeasance, bad faith, or
negligence of the Indenture Trustee, the Owner Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section 2.8. If Ford Credit shall resign as Servicer in accordance with the
provisions of this Agreement or if all of the rights and obligations of the
Servicer shall have been terminated under Section 7.1, the appointment of the
Servicer as custodian hereunder may be terminated by the Indenture Trustee, or
by the Noteholders of Notes evidencing not less than 25% of the Note Balance of
the Notes Outstanding or, with the consent of Noteholders of Notes evidencing
not less than 25% of the Note Balance of the Notes Outstanding, by the Owner
Trustee or by Certificateholders of Certificates evidencing not less than 25% of
the Aggregate Certificate Balance, in the same manner as the Indenture Trustee
or such Securityholders may terminate the rights and obligations of the Servicer
under Section 7.1. As soon as practicable after any termination of such
appointment, the Servicer shall deliver to the Indenture Trustee or the
Indenture Trustee's agent the Receivable Files and the related accounts and
records maintained by the Servicer at such place or places as the Indenture
Trustee may reasonably designate.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall manage,
service, administer, and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable automotive receivables that it services for itself or
others. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections, furnishing monthly and annual statements
to the Owner Trustee and the Indenture Trustee with respect to distributions,
making Monthly Advances pursuant to Section 4.4 and, in its sole discretion,
making Servicer Liquidity Advances pursuant to Section 4.5. The Servicer shall
follow its customary standards, policies and procedures in performing its duties
as Servicer. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders, or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Financed Vehicles
securing such Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Owner Trustee (in the case of a Receivable other than
a Purchased Receivable) shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such Receivable to the Servicer.
If in any enforcement suit or legal proceeding it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Receivable, the Owner
Trustee shall, at the Servicer's expense and direction, take steps to enforce
the Receivable, including bringing suit in its name or the names of the
Indenture Trustee, the Noteholders, the Certificateholders, or any of them. The
Owner Trustee shall furnish the Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder. The Servicer, at its
expense, shall obtain on behalf of the Issuer or the Owner Trustee all licenses,
if any, required by the laws of any jurisdiction to be held by the Issuer or the
Owner Trustee in connection with ownership of the Receivables, and shall make
all filings and pay all fees as may be required in connection therewith during
the term hereof.
SECTION 3.2 Collection of Receivable Payments. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable receivables that it services for itself or others. Subject to
Sections 3.6(iii) and (iv), the Servicer may grant extensions, rebates, or
adjustments on a Receivable; provided, however, that if the Servicer extends the
date for final payment by the Obligor of any Receivable beyond 6 months past the
Final Scheduled Maturity Date of the Class D Certificates, it shall promptly
purchase the Receivable in the manner provided in Section 3.7. The Servicer may
in its discretion waive any late payment charge or any other fees that may be
collected in the ordinary course of servicing a Receivable.
SECTION 3.3 Realization Upon Receivables. On behalf of the
Issuer, the Servicer shall use reasonable efforts, consistent with its customary
standards, policies and procedures, to repossess or otherwise convert the
ownership of the Financed Vehicle securing any Receivable as to which the
Servicer shall have determined eventual payment in full is unlikely. The
Servicer shall follow such customary standards, policies and procedures as it
shall deem necessary or advisable in its servicing of comparable receivables,
which may include reasonable efforts to realize upon any Dealer Recourse and
selling the Financed Vehicle at public or private sale. The foregoing shall be
subject to the provision that, in any case in which the Financed Vehicle shall
have suffered damage, the Servicer shall not be required to expend funds in
connection with the repair or the repossession of such Financed Vehicle unless
it shall determine in its discretion that such repair and/or repossession will
increase the Liquidation Proceeds by an amount greater than the amount of such
expenses.
SECTION 3.4 Allocations of Collections. If an Obligor is
obligated under one or more Receivables and also under one or more other assets
owned by Ford Credit or assigned by Ford Credit to third parties, then any
payment on any such asset received from or on behalf of such Obligor shall, if
identified as being made with respect to a particular item or asset, be applied
to such item, and otherwise shall be allocated by Ford Credit in accordance with
its customary standards, policies and procedures.
SECTION 3.5 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary standards,
policies and procedures, take such steps as are necessary to maintain perfection
of the security interest created by each Receivable in the related Financed
Vehicle. The Issuer hereby authorizes the Servicer to take such steps as are
necessary to re-perfect such security interest on behalf of the Issuer and the
Indenture Trustee in the event of the relocation of a Financed Vehicle or for
any other reason.
SECTION 3.6 Covenants of Servicer. The Servicer shall not (i)
release the Financed Vehicle securing each such Receivable from the security
interest granted by such Receivable in whole or in part except in the event of
payment in full by or on behalf of the Obligor thereunder or repossession, (ii)
impair the rights of the Noteholders or the Certificateholders in the
Receivables, (iii) change the Annual Percentage Rate with respect to any
Receivable, or (iv) modify the Amount Financed or the total number of Scheduled
Payments (in the case of an Actuarial Receivable) or the total number of
originally scheduled due dates (in the case of a Simple Interest Receivable).
SECTION 3.7 Purchase of Receivables Upon Breach. (a) The
Seller, the Servicer or the Owner Trustee, as the case may be, promptly shall
inform the other parties to this Agreement, in writing, upon the discovery of
any breach pursuant to Section 3.2, 3.5 or 3.6. Unless the breach shall have
been cured by the last day of the second Collection Period following such
discovery (or, at the Servicer's election, the last day of the first following
Collection Period), the Servicer shall purchase any Receivable materially and
adversely affected by such breach as determined by the Indenture Trustee (which
shall include any Receivable as to which a breach of Section 3.6 has occurred)
at the Purchase Amount. In consideration of the purchase of such Receivable, the
Servicer shall remit the Purchase Amount in the manner specified in Section
4.6(a). For purposes of this Section 3.7, the Purchase Amount shall consist in
part of a release by the Servicer of all rights of reimbursement with respect to
Outstanding Monthly Advances on the Receivable. The sole remedy of the Issuer,
the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholders with respect to a breach pursuant to Section 3.2, 3.5 or 3.6
shall be to require the Servicer to purchase Receivables pursuant to this
Section 3.7.
(b) The Seller, the Servicer or the Owner Trustee, as the case
may be, promptly shall inform the other parties to this Agreement in writing,
upon the discovery of any breach of the representations and warranties of Ford
Credit, as seller, set forth in Section 3.2(b) of the Purchase Agreement. Unless
the breach shall have been cured by the last day of the second Collection Period
following the discovery, the Servicer shall enforce the obligation of Ford
Credit under the Purchase Agreement to repurchase any Receivable materially and
adversely affected by the breach as of such last day (or, at Ford Credit's
option, the last day of the first Collection Period following the discovery). In
consideration of the purchase of the Receivable, Ford Credit shall remit,
pursuant to Section 6.2 of the Purchase Agreement, the Purchase Amount to the
Servicer and the Servicer shall remit the Purchase Amount to the Collection
Account as specified in Section 4.6(a) hereof.
(c) With respect to all Receivables purchased pursuant to this
Section 3.7, the Issuer shall assign to the Servicer or the Seller, as
applicable, without recourse, representation or warranty, all of the Issuer's
right, title and interest in and to such Receivables and all security and
documents relating thereto.
SECTION 3.8 Servicer Fee. The Servicer shall be entitled to
any interest earned on the amounts deposited in the Collection Account and the
Payahead Account during each Collection Period plus all late fees, prepayment
charges and other administrative fees and expenses or similar charges allowed by
applicable law with respect to Receivables during each Collection Period (the
"Supplemental Servicing Fee"). The Servicer also shall be entitled to the
Servicing Fee, as provided herein.
SECTION 3.9 Servicer's Certificate. (a) On or about the tenth
day of each calendar month, the Servicer shall deliver to the Owner Trustee,
each Note Paying Agent and Certificate Paying Agent, the Indenture Trustee, each
Swap Counterparty and the Seller, with a copy to the Rating Agencies, a
Servicer's Certificate containing all information (including all specific dollar
amounts) necessary to make the transfers and distributions pursuant to Sections
4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 for the Collection Period preceding the date of
such Servicer's Certificate, together with the written statements to be
furnished by the Owner Trustee to Certificateholders pursuant to Section 4.10
and by the Indenture Trustee to the Noteholders pursuant to Section 4.10 hereof
and Section 6.6 of the Indenture. Receivables purchased or to be purchased by
the Servicer or the Seller shall be identified by the Servicer by the Seller's
account number with respect to such Receivable (as specified in the Schedule of
Initial Receivables or Schedule of Additional Receivables, as applicable).
(b) On or about the fifth (but in no event later than the
tenth) calendar day of each calendar month, the Servicer shall deliver to the
respective underwriters of the Notes the Note Pool Factor for each Class or
Subclass of Notes and, in the event that the Certificates have been sold by the
Seller subsequent to the date hereof, to the respective underwriters of the
Certificates (if applicable, and otherwise to the Holders thereof), the
Certificate Pool Factor for each Class of Certificates as of the close of
business on the Monthly Distribution Date occurring in that month.
SECTION 3.10 Annual Statement as to Compliance; Notice of
Event of Servicing Termination. (a) The Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and each Rating Agency on or before April 30 of
each year beginning April 30, 2001, an Officer's Certificate, dated as of
December 31 of the preceding calendar year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month (or shorter) period and
of its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. A copy of such Officer's Certificate and the report
referred to in Section 3.11 may be obtained by any Certificateholder by a
request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture
Trustee, in either case addressed to the applicable Corporate Trust Office. Upon
the telephone request of the Owner Trustee, the Indenture Trustee shall promptly
furnish the Owner Trustee a list of Noteholders as of the date specified by the
Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the
Indenture Trustee and each Rating Agency promptly after having obtained
knowledge thereof, but in no event later than five (5) Business Days thereafter,
written notice in an Officer's Certificate of any event which with the giving of
notice or lapse of time, or both, would become an Event of Servicing Termination
under Section 7.1. The Seller shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency promptly after having obtained knowledge thereof,
but in no event later than five (5) Business Days thereafter, written notice in
an Officer's Certificate of any event which with the giving of notice or lapse
of time, or both, would become an Event of Servicing Termination under clause
(a)(ii) of Section 7.1.
SECTION 3.11 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the Seller
or to Ford Credit, to deliver to the Owner Trustee and the Indenture Trustee on
or before April 30 of each year beginning April 30, 2001 with respect to the
prior calendar year a report addressed to the board of directors of the Servicer
and to the Owner Trustee and the Indenture Trustee, to the effect that such firm
has audited the financial statements of the Servicer and issued its report
thereon and that such audit (1) was made in accordance with generally accepted
auditing standards, (2) included tests relating to automotive loans serviced for
others in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers (the "Program"), to the extent the procedures in
such Program are applicable to the servicing obligations set forth in this
Agreement, and (3) except as described in the report, disclosed no exceptions or
errors in the records relating to automobile and light truck loans serviced for
others that such firm is required to report under the Program.
The report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 3.12 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders, the
Indenture Trustee and the Noteholders access to the Receivable Files in such
cases where the Certificateholders, the Indenture Trustee or the Noteholders
shall be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer. Nothing in this Section 3.12 shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section 3.12. The Servicer shall provide such information with respect to the
Receivables as the Rating Agencies may reasonably request, including as soon as
practicable a periodic report of the aggregate principal balance of Receivables
which become Liquidated Receivables during each Collection Period.
SECTION 3.13 Servicer Expenses. The Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the Owner Trustee and the Indenture Trustee,
independent accountants, taxes imposed on the Servicer and expenses incurred in
connection with distributions and reports to Noteholders and Certificateholders.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) The Servicer shall, prior to the
Closing Date, establish and maintain a segregated trust account in the name "The
Chase Manhattan Bank as Indenture Trustee, as secured party for Ford Credit Auto
Owner Trust 2000-F", at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "Collection Account". Initially, the
Collection Account shall be account number C-70927 and shall include any
successor or replacement accounts thereto. The Collection Account shall be under
the sole dominion and control of the Indenture Trustee; provided, that the
Servicer may make deposits to and direct the Indenture Trustee in writing to
make withdrawals from the Collection Account in accordance with the terms of the
Basic Documents. The Collection Account will be established and maintained
pursuant to an account agreement which specifies New York law as the governing
law. In addition, the Collection Account shall be established and maintained at
a Qualified Institution or Qualified Trust Institution which agrees in writing
that for so long as the Notes are outstanding it will comply with entitlement
orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee
without further consent of the Issuer. All monies deposited from time to time in
the Collection Account shall be held by the Indenture Trustee as secured party
for the benefit of the Noteholders and, after payment in full of the Notes, as
agent of the Owner Trustee and as part of the Trust Property. All deposits to
and withdrawals from the Collection Account shall be made only upon the terms
and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to
the first sentence of Section 4.2, all amounts held in the Collection Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Collection Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Monthly Distribution Date
for the Collection Period to which such amounts relate and such Permitted
Investments shall be held to maturity. All interest and other income (net of
losses and investment expenses) on funds on deposit in the Collection Account
shall be withdrawn from the Collection Account at the written direction of the
Servicer and shall be paid to the Servicer. In the event that the Collection
Account is no longer to be maintained at the corporate trust department of The
Chase Manhattan Bank, the Servicer shall, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, cause the Collection Account to be moved to a
Qualified Institution or a Qualified Trust Institution within ten (10) Business
Days (or such longer period not to exceed thirty (30) calendar days as to which
each Rating Agency may consent).
(b) The Servicer shall, prior to the Closing Date, establish
and maintain an administrative subaccount within the Collection Account at the
bank or trust company then maintaining the Collection Account, which subaccount
shall be designated as the "Principal Distribution Account". The Principal
Distribution Account is established and maintained solely for administrative
purposes.
(c) The Servicer shall, prior to the Closing Date, establish
and maintain two segregated trust accounts, each in the name "The Bank of New
York as Owner Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Bank of New
York), which shall be designated as the "Certificate Interest Distribution
Account" and the "Certificate Principal Distribution Account", respectively.
Each Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee. All monies deposited from time to time in each
Certificate Distribution Account pursuant to this Agreement and the Indenture
shall be held by the Owner Trustee as part of the Trust Property and shall be
applied as provided in the Basic Documents. In the event that either Certificate
Distribution Account is no longer to be maintained at the corporate trust
department of The Bank of New York the Servicer shall, with the Owner Trustee's
assistance as necessary, cause such Certificate Distribution Account to be moved
to a Qualified Institution or a Qualified Trust Institution within ten (10)
Business Days (or such longer period not to exceed thirty (30) calendar days as
to which each Rating Agency may consent). Each Certificate Distribution Account
will be established and maintained pursuant to an account agreement which
specifies New York law as the governing law.
(d) The Servicer shall, prior to the Closing Date, establish
and maintain a segregated trust account in the name of "The Chase Manhattan Bank
as Indenture Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "Payahead Account". The Payahead Account
shall be held in trust for the benefit of the Obligors. The Payahead Account
shall be under the sole dominion and control of the Indenture Trustee; provided
that the Servicer may make deposits to and direct the Indenture Trustee in
writing to make withdrawals from the Payahead Account in accordance with the
Basic Documents. The Payahead Account shall not be a part of the Trust Property.
All deposits to and withdrawals from the Payahead Account shall be made only
upon the terms and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to
the first sentence of Section 4.2, all amounts held in the Payahead Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Payahead Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Monthly Distribution Date
for the Collection Period to which such amounts relate and such Permitted
Investments shall be held to maturity. All interest and other income (net of
losses and investment expenses) on funds on deposit in the Payahead Account
shall be withdrawn from the Payahead Account at the direction of the Servicer
and shall be paid to the Servicer. In the event that the Payahead Account is no
longer to be maintained at the corporate trust department of The Chase Manhattan
Bank, the Servicer shall, with the Indenture Trustee's or Owner Trustee's
assistance as necessary, cause the Payahead Account to be moved to a Qualified
Institution or a Qualified Trust Institution within ten (10) Business Days (or
such longer period not to exceed thirty (30) calendar days as to which each
Rating Agency may consent).
(e) Notwithstanding the provisions of clause (d) above and of
Section 4.7(a)(ii), for so long as (i) Ford Credit is the Servicer, (ii) the
rating of Ford Credit's short-term unsecured debt is at least P-1 by Xxxxx'x, at
least A-1 by Standard & Poor's and at least F-1 by Fitch and (iii) no Event of
Servicing Termination shall have occurred (each, a "Monthly Remittance
Condition"), Payaheads need not be remitted to and deposited in the Payahead
Account but instead may be remitted to and held by the Servicer. So long as each
Monthly Remittance Condition is satisfied, the Servicer shall not be required to
segregate or otherwise hold separate any Payaheads remitted to the Servicer as
aforesaid but shall be required to remit Payaheads to the Collection Account in
accordance with Section 4.7(a)(i). At any time that any Monthly Remittance
Condition is not satisfied, the Servicer shall deposit in the Payahead Account
the amount of any Payaheads then held or received by it (which amount shall be
at least equal to the Payahead Balance as of the close of business on the last
day of the immediately preceding Collection Period). Notwithstanding the
foregoing, if a Monthly Remittance Condition is not satisfied the Servicer may
utilize, with respect to Payaheads, an alternative remittance schedule (which
may include the remittance schedule utilized by the Servicer before the Monthly
Remittance Condition became unsatisfied), if the Servicer provides to the Owner
Trustee and the Indenture Trustee written confirmation from each Rating Agency
that such alternative remittance schedule will not result in the downgrading or
withdrawal by such Rating Agency of the ratings then assigned to the Notes and
the Certificates. The Owner Trustee and the Indenture Trustee shall not be
deemed to have knowledge of any event or circumstance under clause (iii) of the
first sentence of this Section 4.1(e) that would require remittance of the
Payaheads to the Payahead Account unless the Owner Trustee or the Indenture
Trustee has received notice of such event or circumstance from the Seller or the
Servicer in an Officer's Certificate or from the Noteholders of Notes evidencing
not less than 25% of the Note Balance of the Notes Outstanding or from the
Certificateholders of Certificates evidencing not less than 25% of the Aggregate
Certificate Balance or unless a Trustee Officer in the Corporate Trust Office
with knowledge hereof and familiarity herewith has actual knowledge of such
event or circumstance.
(f) The Servicer shall, prior to the Closing Date, establish
and maintain an administrative subaccount within the Collection Account in the
name of "The Chase Manhattan Bank as Indenture Trustee" at a Qualified
Institution or Qualified Trust Institution (which shall initially be the
corporate trust department of The Chase Manhattan Bank), which subaccount shall
be designated as the "Accumulation Account". The Accumulation Account shall be
held in trust for the benefit of the Noteholders. The Accumulation Account shall
be under the sole dominion and control of the Indenture Trustee; provided that
the Servicer may make deposits to and direct the Indenture Trustee in writing to
make withdrawals from the Accumulation Account in accordance with the Basic
Documents. All monies deposited from time to time in the Accumulation Account
shall be held by the Indenture Trustee as part of the Trust Property and all
deposits to and withdrawals from the Accumulation Account shall be made only
upon the terms and conditions of the Basic Documents.
All amounts held in the Accumulation Account shall, to the
extent permitted by applicable law, rules and regulations, be invested, as
directed in writing by the Servicer, by the bank or trust company then
maintaining the Accumulation Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Monthly Distribution Date
for the Collection Period to which such amounts relate and such Permitted
Investments shall be held to maturity. All interest and other income on funds on
deposit in the Accumulation Account shall be withdrawn and deposited in the
Collection Account for distribution on each Monthly Distribution Date in
accordance with Section 4.7(c). In the event that the Accumulation Account is no
longer to be maintained at the corporate trust department of The Chase Manhattan
Bank, the Servicer shall, with the Indenture Trustee's or Owner Trustee's
assistance as necessary, cause the Accumulation Account to be moved to a
Qualified Institution or a Qualified Trust Institution within ten (10) Business
Days (or such longer period not to exceed thirty (30) calendar days as to which
each Rating Agency may consent).
(g) The Servicer shall, prior to the Closing Date, establish
and maintain a segregated trust account in the name of "The Chase Manhattan Bank
as Indenture Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "VPTN Proceeds Account". The VPTN
Proceeds Account shall be held in trust for the benefit of the holders of the
Subclass of Class A Notes to be paid on its Targeted Scheduled Distribution Date
or on any Monthly Distribution Date thereafter from the proceeds of issuance of
VPTNs deposited to such account from time to time. The VPTN Proceeds Account
shall be under the sole dominion and control of the Indenture Trustee; provided
that the Servicer may make deposits to and direct the Indenture Trustee in
writing to make withdrawals from the VPTN Proceeds Account in accordance with
the Basic Documents. All monies deposited from time to time in the VPTN Proceeds
Account shall be held by the Indenture Trustee as part of the Trust Property and
all deposits to and withdrawals from the VPTN Proceeds Account shall be made
only upon the terms and conditions of the Basic Documents.
(h) The Servicer shall, prior to the Closing Date, establish
and maintain a segregated trust account in the name of "The Chase Manhattan Bank
as Indenture Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "Class A Quarterly Interest Funding
Account". The Class A Quarterly Interest Funding Account shall be held in trust
for the benefit of the holders of the Class A Notes and the Swap Counterparties
for the Quarterly Pay Floating Rate Class A Note Interest Rate Swaps. The Class
A Quarterly Interest Funding Account shall be under the sole dominion and
control of the Indenture Trustee; provided that the Indenture Trustee may make
deposits to and withdrawals from the Class A Quarterly Interest Funding Account
in accordance with the Indenture and the other Basic Documents. All monies
deposited from time to time in the Class A Quarterly Interest Funding Account
shall be held by the Indenture Trustee as part of the Trust Property and all
deposits to and withdrawals from the Class A Quarterly Interest Funding Account
shall be made only upon the terms and conditions of the Basic Documents.
All amounts held in the Class A Quarterly Interest Funding
Account shall, to the extent permitted by applicable law, rules and regulations,
be invested, as directed in writing by the Servicer, by the bank or trust
company then maintaining the Class A Quarterly Interest Funding Account in
Permitted Investments that mature not later than the Business Day immediately
prior to the following Monthly Distribution Date and such Permitted Investments
shall be held to maturity. On each Quarterly Payment Date, the excess of all
amounts on deposit in the Class A Quarterly Interest Funding Account over the
Accrued Class A Quarterly Pay Interest (after giving effect to all deposits to
such account on such Quarterly Payment Date, including the deposit of any Net
Swap Receipts, to, and the withdrawal of any Net Swap Payments from, such
account, in each case with respect to the Quarterly Pay Floating Rate Class A
Note Interest Rate Swaps) shall be withdrawn and deposited in the Collection
Account for distribution on such Quarterly Payment Date in accordance with
Section 4.7(c). In the event that the Class A Quarterly Interest Funding Account
is no longer to be maintained at the corporate trust department of The Chase
Manhattan Bank, the Servicer shall, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, cause the Class A Quarterly Interest Funding
Account to be moved to a Qualified Institution or a Qualified Trust Institution
within ten (10) Business Days (or such longer period not to exceed thirty (30)
calendar days as to which each Rating Agency may consent).
SECTION 4.2 Remittance of Collections by the Servicer. The
Servicer shall remit to the Collection Account within two (2) Business Days of
the receipt thereof (i) all payments by or on behalf of the Obligors (including
Payaheads on the Receivables, but excluding Purchased Receivables) and (ii) all
Liquidation Proceeds, both as collected during the Collection Period. Ford
Credit, so long as it is acting as the Servicer, may make remittances of
collections on a less frequent basis than that specified in the immediately
preceding sentence. It is understood that such less frequent remittances may be
made only on the specific terms and conditions set forth below in this Section
4.2 and only for so long as such terms and conditions are fulfilled.
Accordingly, notwithstanding the provisions of the first sentence of this
Section 4.2, the Servicer shall remit collections received during a Collection
Period to the Collection Account in immediately available funds on the Business
Day preceding the related Monthly Distribution Date (or, with the prior consent
of the Rating Agencies, on the related Monthly Distribution Date) but only for
so long as each Monthly Remittance Condition is satisfied. Notwithstanding the
foregoing, if a Monthly Remittance Condition is not satisfied, the Servicer may
utilize an alternative remittance schedule (which may include the remittance
schedule utilized by the Servicer before the Monthly Remittance Condition became
unsatisfied), if the Servicer provides to the Owner Trustee and the Indenture
Trustee written confirmation from each Rating Agency that such alternative
remittance schedule will not result in the downgrading or withdrawal by such
Rating Agency of the ratings then assigned to the Notes and the Certificates.
The Owner Trustee or the Indenture Trustee shall not be deemed to have knowledge
of any event or circumstance under clause (iii) of the definition of Monthly
Remittance Condition that would require remittance by the Servicer to the
Collection Account within two Business Days of receipt as aforesaid unless the
Owner Trustee or the Indenture Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate or from
the Noteholders of Notes evidencing not less than 25% of the Note Balance of the
Notes Outstanding or from the Certificateholders of Certificates evidencing not
less than 25% of the Aggregate Certificate Balance or a Trustee Officer in the
Corporate Trust Office with knowledge hereof or familiarity herewith has actual
knowledge of such event or circumstance. For purposes of this Article IV the
phrase "payments by or on behalf of Obligors" shall mean payments made by
Persons other than the Servicer or by other means.
SECTION 4.3 Application of Collections. For the purposes of
this Agreement, as of the close of business on the last day of each Collection
Period, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied by the Servicer
as follows: (i) payments by or on behalf of the Obligor which are not late fees,
prepayment charges, or other administrative fees and expenses, or similar
charges which constitute the Supplemental Servicing Fee shall be applied first
to reduce Outstanding Monthly Advances made with respect to such Receivable, as
described in Sections 4.4(a) and (b) below and (ii) next, any excess shall be
applied (i) in the case of Simple Interest Receivables, to interest and
principal on the Receivable in accordance with the Simple Interest Method and
(ii) in the case of Actuarial Receivables, to the Scheduled Payment with respect
to such Receivable and any remaining excess (except for partial prepayments
which cause a reduction in the Obligor's periodic payment to below the Scheduled
Payment as of the Cutoff Date) shall be added to the Payahead Balance, and shall
be applied to prepay the Actuarial Receivable but only if the sum of such excess
and the previous Payahead Balance shall be sufficient to prepay the Actuarial
Receivable in full, otherwise such excess shall constitute a Payahead, and shall
increase the Payahead Balance.
SECTION 4.4 Monthly Advances. (a) As of the close of business
on the last day of each Collection Period, if the payments by or on behalf of
the Obligor on an Actuarial Receivable (other than a Purchased Receivable) after
application under Section 4.3 shall be less than the Scheduled Payment, whether
as a result of any extension granted to the Obligor or otherwise, the Payahead
Balance, if any, with respect to such Receivables shall be applied by the
Indenture Trustee to the extent of the shortfall, and such Payahead Balance
shall be reduced accordingly. Next, subject to the following sentence, the
Servicer shall make an advance of any remaining shortfall (such amount, an
"Actuarial Advance"). The Servicer will be obligated to make an Actuarial
Advance in respect of an Actuarial Receivable only to the extent that the
Servicer, in its sole discretion, shall determine that the Actuarial Advance
shall be recoverable from subsequent collections or recoveries on any Actuarial
Receivable. With respect to each Actuarial Receivable, the Actuarial Advance
shall increase Outstanding Actuarial Advances. Outstanding Actuarial Advances
shall be reduced by subsequent payments by or on behalf of the Obligor,
collections of Liquidation Proceeds and payments of the Purchase Amount.
If the Servicer shall determine that an Outstanding Actuarial
Advance with respect to any Actuarial Receivable shall not be recoverable, the
Servicer shall be reimbursed from any collections made on other Receivables in
the Trust, and Outstanding Actuarial Advances with respect to such Actuarial
Receivable shall be reduced accordingly.
(b) As of the close of business on the last day of each
Collection Period, the Servicer shall advance an amount equal to the amount of
interest due on the Simple Interest Receivables at their respective APRs for the
related Collection Period (assuming the Simple Interest Receivables pay on their
respective due dates) minus the amount of interest actually received on the
Simple Interest Receivables during the related Collection Period (such amount, a
"Simple Interest Advance"). With respect to each Simple Interest Receivable, the
Simple Interest Advance shall increase Outstanding Simple Interest Advances. If
such calculation results in a negative number, an amount equal to such negative
number shall be paid to the Servicer and the amount of Outstanding Simple
Interest Advances shall be reduced by such amount. In addition, in the event
that a Simple Interest Receivable becomes a Liquidated Receivable, Liquidation
Proceeds with respect to a Simple Interest Receivable attributable to accrued
and unpaid interest thereon (but not including interest for the then current
Collection Period) shall be paid to the Servicer to reduce Outstanding Simple
Interest Advances, but only to the extent of any Outstanding Simple Interest
Advances. The Servicer shall not make any advance in respect of principal of
Simple Interest Receivables.
If the Servicer shall determine that an Outstanding Simple
Interest Advance with respect to any Simple Interest Receivable shall not be
recoverable, the Servicer shall be reimbursed from any collections made on other
Receivables in the Trust, but only to the extent that such Outstanding Simple
Interest Advance represents accrued and unpaid interest on such Simple Interest
Receivable. Outstanding Simple Interest Advances with respect to such Simple
Interest Receivable shall be reduced by the amount of such reimbursement.
(c) In the event that an Obligor shall prepay a Receivable in
full, if the related contract did not require such Obligor to pay a full month's
interest, for the month of prepayment, at the APR, the Servicer shall make an
unreimbursable advance of the amount of such interest.
SECTION 4.5 Servicer Liquidity Advances. If, on a Targeted
Scheduled Distribution Date for any Subclass of Class A Notes or on any other
Monthly Distribution Date upon which a Subclass of Class A Notes which has
passed its Targeted Scheduled Distribution Date is not paid in full, the Issuer
has entered into a binding agreement with an Eligible Purchaser for the sale of
any VPTNs to be issued on such Targeted Scheduled Distribution Date or other
Monthly Distribution Date and the Servicer determines that the proceeds from
such sale will not be received by the Issuer on that date in time to make timely
payments on the related Subclass or Subclasses of Class A Notes on such date,
the Servicer may, in its sole discretion, make a liquidity advance in the amount
equal to the expected proceeds if it determines, in its sole discretion, that it
has received reasonable assurances from the purchaser or purchasers of the VPTNs
to the effect that the full amount of the expected proceeds will be delivered
not more than two Business Days after such Targeted Scheduled Distribution Date
or Monthly Distribution Date (such liquidity advance, a "Servicer Liquidity
Advance"). The Servicer shall deposit any such Servicer Liquidity Advance in the
VPTN Proceeds Account. If the Servicer makes a Servicer Liquidity Advance, then
promptly upon receipt by the Issuer of the purchase price of such VPTN
(including any accrued interest) from the Eligible Purchaser, the Indenture
Trustee shall apply such funds to reimburse the Servicer for that related
Servicer Liquidity Advance, with interest to the extent paid by the purchaser.
If the Servicer has made a Servicer Liquidity Advance, until the Eligible
Purchaser delivers the purchase price of the VPTN to the Issuer, the Servicer
will be the holder of the VPTN and will be entitled to payments thereon,
including interest, until the purchase price, together with accrued interest if
so provided in the agreement with the Eligible Purchaser, is received from the
Eligible Purchaser and paid to the Servicer.
SECTION 4.6 Additional Deposits to Collection Account and
Withdrawals from Reserve Account. (a) The Servicer shall deposit in the
Collection Account the aggregate Monthly Advances pursuant to Sections 4.4(a)
and (b) and the aggregate advances pursuant to Section 4.4(c). The Servicer and
the Seller shall deposit in the Collection Account the aggregate Purchase
Amounts with respect to Purchased Receivables and the Servicer shall deposit
therein all amounts to be paid under Section 8.1. All such deposits with respect
to a Collection Period shall be made, in immediately available funds, on the
Business Day preceding the Monthly Distribution Date (or, with the prior consent
of the Rating Agencies, on the Monthly Distribution Date) related to such
Collection Period.
(b) The Indenture Trustee shall, on the Monthly Distribution
Date relating to each Collection Period, make withdrawals from the Reserve
Account (i) first, in an amount equal to the Reserve Account Release Amount,
(ii) second, in an amount equal to the amount (if positive) calculated by the
Servicer pursuant to the second sentence of Section 4.7(b), (iii) third, in an
amount equal to the amount (if positive) calculated by the Servicer pursuant to
the third sentence of Section 4.7(b) and (iv) fourth, in an amount equal to the
amount (if positive) calculated by the Servicer pursuant to the fourth sentence
of Section 4.7(b), and, in each case, shall deposit such funds into the
Collection Account.
(c) On each Targeted Scheduled Distribution Date and on any
other Monthly Distribution Date on which a VPTN is issued, the purchaser of a
VPTN shall deposit in the VPTN Proceeds Account the purchase price of any VPTNs
issued by the Issuer on such Monthly Distribution Date pursuant to Section
2.2(d) of the Indenture and Section 2(b) of the Administration Agreement and the
Servicer shall deposit any Servicer Liquidity Advances made by the Servicer
pursuant to Section 4.5 in the VPTN Proceeds Account.
(d) On each Monthly Distribution Date, the Swap Counterparties
for the Monthly Pay Floating Rate Class A Note Interest Rate Swaps and Variable
Pay Term Notes Interest Rate Swaps shall deposit any Net Swap Receipts pursuant
to the respective Interest Rate Swap Agreements into the Collection Account.
SECTION 4.7 Distributions. (a) On each Monthly Distribution
Date, the Indenture Trustee shall cause to be made the following transfers and
distributions in the amounts set forth in the Servicer's Certificate for such
Monthly Distribution Date:
(i) From the Payahead Account, or from the Servicer in the
event the provisions of Section 4.1(e) above are applicable, to the
Collection Account, in immediately available funds, (x) the portion of
Payaheads constituting Scheduled Payments or prepayments in full,
required by Sections 4.3 and 4.4(a), and (y) the Payahead Balance, if
any, relating to any Purchased Receivable.
(ii) From the Collection Account to the Payahead Account, or
to the Servicer in the event the provisions of Section 4.1(e) above are
applicable, in immediately available funds, the aggregate Payaheads
required by Section 4.3 for the Collection Period related to such
Monthly Distribution Date.
(iii) From the Principal Distribution Account to the
Accumulation Account, in immediately available funds, the amount
specified as the deposit to the Accumulation Account in the Servicer's
Certificate required by Section 3.9 for the Collection Period related
to such Monthly Distribution Date.
(iv) From the Collection Account to the Servicer, in
immediately available funds, repayment of Outstanding Monthly Advances
pursuant to Sections 4.4(a) and (b).
(b) With respect to each Monthly Distribution Date, the
Servicer shall, on or before the related Determination Date, calculate the
Available Collections, the Reserve Account Release Amount, the Accumulation
Amount, the Available Funds, the Servicing Fee and all unpaid Servicing Fees
from prior Collection Periods, if any, any Net Swap Payments, any Net Swap
Receipts, any Swap Termination Payments, the Class A Quarterly Interest Funding
Account Deposit Amount, the Accrued Class A Note Interest, the Accrued VPTN
Interest, the First Priority Principal Distribution Amount, the Yield Supplement
Overcollateralization Amount, the Accrued Class B Note Interest, the Second
Priority Principal Distribution Amount, the Accrued Class C Certificate
Interest, the Accrued Class D Certificate Interest and the Regular Principal
Distribution Amount. In addition, with respect to each Monthly Distribution Date
during the Revolving Period, the Servicer shall on or before the related
Determination Date, calculate the aggregate Principal Balance of any Additional
Receivables to be purchased on such Monthly Distribution Date and the Additional
Receivables Purchase Price, the Three-Month Rolling Average Delinquency Ratio,
the Three-Month Rolling Average Realized Loss Ratio, the amount on deposit in
the Reserve Account as a percentage of the Specified Reserve Balance, the amount
of unreinvested Collections deposited to the Accumulation Account (after
withdrawals therefrom, if any, for payment to the Seller in consideration of
Additional Receivables purchased on such Monthly Distribution Date) as a
percentage of the aggregate Principal Balance of the Receivables (with such
Principal Balance calculated as though all amounts deposited into the
Accumulation Account had been invested in Receivables and not including any
earnings on Permitted Investments on deposit in the Accumulation Account), and
if such Monthly Distribution Date is a Targeted Scheduled Distribution Date or
any other date on which VPTNs are to be issued, the amount of any VPTN to be
issued. In addition, the Servicer shall calculate on or before each
Determination Date the difference, if any, between the Total Required Payment
and the Available Funds and, pursuant to Section 4.6(b), the Indenture Trustee
shall withdraw funds from the Reserve Account in an amount equal to the lesser
of such difference (if positive) or the balance of such Reserve Account.
On or before the Determination Date immediately preceding the
Final Scheduled Distribution Date with respect to any Class of Notes or either
Class of Certificates, the Servicer shall calculate the difference, if any,
between (i) the amount required to pay such Class of Notes or such Class of
Certificates in full in accordance with the priorities set forth in Sections
4.7(c) and (d), and (ii) the sum of the Available Funds plus the amount
withdrawn from the Reserve Account in accordance with the preceding sentence,
and pursuant to Section 4.6(b), the Indenture Trustee shall withdraw funds from
the Reserve Account in the amount of such difference (if positive).
The Servicer also shall calculate, on or before each
Determination Date, (i) the sum of the Available Funds plus the amounts
withdrawn from the Reserve Account in accordance with the two immediately
preceding sentences plus the amount remaining on deposit in the Reserve Account
after the withdrawal of such amounts, and (ii) the amount required to pay the
Servicing Fee and principal and interest of each Class of Notes and Certificates
in full in accordance with the priorities set forth in Sections 4.7(c) and (d),
and, if the amount determined pursuant to clause (i) of this sentence is greater
than the amount determined pursuant to clause (ii) of this sentence, the
Indenture Trustee, pursuant to Section 4.6(b), shall withdraw funds from the
Reserve Account in an amount which is, together with Available Funds and the
amounts withdrawn from the Reserve Account in accordance with the two
immediately preceding sentences, sufficient to pay the amount specified in
clause (ii) of this sentence.
(c) On each Monthly Distribution Date, the Servicer shall
instruct the Indenture Trustee (based on the information contained in the
Servicer's Certificate delivered on or before the related Determination Date
pursuant to Section 3.9), to make the following withdrawals from the Collection
Account and make deposits, distributions and payments, to the extent of
Available Funds on deposit in the Collection Account with respect to the
Collection Period preceding such Monthly Distribution Date (including investment
earnings, if any, transferred from the Accumulation Account pursuant to Section
4.1(f) and funds, if any, transferred from the Payahead Account pursuant to this
Section 4.7) and funds 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, with the same priority and ratably, in accordance
with the amounts of the respective payments or deposits, (a) to the
applicable Swap Counterparty, any Net Swap Payments payable by the
Trust on the Variable Pay Term Notes Interest Rate Swap, (b) to the
Class A Quarterly Interest Funding Account, the excess, if any, of (A)
if positive, (x) the total amount of the Accrued Fixed Rate Payments on
the Quarterly Pay Floating Rate Class A Note Interest Rate Swaps minus
(y) the aggregate amount accrued from the preceding Monthly
Distribution Date on the respective notional amounts of the Quarterly
Pay Floating Rate Class A Note Interest Rate Swaps, in each case at an
interest rate equal to LIBOR (calculated by reference to an Index
Maturity of three months, except that for the first Monthly
Distribution Date, such interest rates shall be equal to 6.71667%) plus
the Spreads on the related Subclasses of Floating Rate Class A Notes
over (B) the total amount on deposit in the Class A Quarterly Interest
Funding Account immediately prior to such Monthly Distribution Date,
and (c) to the applicable Swap Counterparties, any Net Swap Payments
payable by the Trust on the Monthly Pay Floating Rate Class A Note
Interest Rate Swaps, if any;
(iii) third, with the same priority and ratably, in accordance
with the outstanding principal balances of the Monthly Pay Class A
Notes, the Quarterly Pay Class A Notes and the VPTNs and the amounts of
any Swap Termination Payments due and payable by the Issuer to the Swap
Counterparties:
(1) to the Indenture Trustee for deposit into the
Class A Quarterly Interest Funding Account an amount
equal to the sum of:
(a) on each Monthly Distribution Date that is not a Quarterly
Payment Date, the aggregate of the Accrued Fixed Rate Payments on each of the
Quarterly Pay Floating Rate Class A Note Interest Rate Swaps minus the amount
deposited under clause (c)(ii)(b) above, provided, that on each Monthly
Distribution Date, if one or more of the Quarterly Pay Floating Rate Class A
Interest Rates Swaps have been terminated and no replacement Quarterly pay
Floating Rate Class A Note Interest Rate Swaps have been entered into, then the
portion of the Class A Quarterly Interest Funding Account Deposit Amount
deposited into the Class A Quarterly Interest Funding Account on such Monthly
Distribution Dates with respect to the related Subclasses of Quarterly Pay Class
A Notes will be equal to the amount of interest accrued on those Subclasses from
the preceding Monthly Distribution Date at the rate established as of the prior
Quarterly Payment Date;
(b) on each Quarterly Payment Date, an amount equal to the
excess of (I) the Accrued Class A Quarterly Pay Interest for such Quarterly
Payment Date over (II) the amount on deposit in the Class A Quarterly Interest
Funding Account on such Quarterly Payment Date after giving effect to all other
deposits to be made under clauses (c)(ii)(b) and (c)(iii)(1)(a) above and the
deposit of any Net Swap Receipts, and the withdrawal of any Net Swap Payments,
in each case with respect to the Quarterly Pay Class A Note Interest Rate Swaps,
pursuant to Section 4.7(d);
(2) to the Indenture Trustee for the Noteholders of the
Monthly Pay Class A Notes an amount equal to the Accrued Class
A Monthly Pay Interest;
(3) to the Indenture Trustee for the Noteholders of the
Variable Pay Term Notes an amount equal to the Accrued VPTN
Interest; and
(4) to the Swap Counterparties, the amount of any Swap
Termination Payments due and payable to them;
provided, that, after the allocations in subclauses (1), (2), (3) and (4) have
been made, any amounts remaining shall be deposited or paid to the Class A
Quarterly Interest Funding Account, the Noteholders of the Monthly Pay Class A
Notes, the VPTN Noteholders and the Swap Counterparty or Swap Counterparties,
pro rata, based on the amounts described in subclauses (1), (2), (3) and (4)
which were not deposited or paid, as applicable, after giving effect to such
allocations;
(iv) fourth, to the Principal Distribution Account, the First
Priority Principal Distribution Amount;
(v) fifth, to the Noteholders of Class B Notes, the Accrued
Class B Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class B Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class B Notes on a pro rata basis;
(vi) sixth, to the Principal Distribution Account, the Second
Priority Principal Distribution Amount;
(vii) seventh, to the Certificate Interest Distribution
Account, the Accrued Class C Certificate Interest;
(viii) eighth, to the Certificate Interest Distribution
Account, the Accrued Class D Certificate Interest;
(ix) ninth, to the Reserve Account, the amount, if any,
required to reinstate the amount in the Reserve Account up to the
Specified Reserve Balance (calculated after giving effect to all
amounts, including amounts pursuant to clause (x) below, deposited to
the Principal Distribution Account and then transferred to the
Accumulation Account on such Monthly Distribution Date);
(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 Monthly Distribution Date.
Notwithstanding the foregoing, (A) following the occurrence
and during the continuation of an Event of Default specified in Section 5.1(i),
5.1(ii), 5.1(iv) or 5.1(v) of the Indenture which has resulted in an
acceleration of the Notes (or following the occurrence of any such event after
an Event of Default specified in Section 5.1(iii) of the Indenture has occurred
and the Notes have been accelerated), the Servicer shall instruct the Indenture
Trustee to transfer the funds on deposit in the Collection Account remaining
after the application of clauses (i), (ii) and (iii) above to the Principal
Distribution Account to the extent necessary to reduce the principal amount of
all the Class A Notes and the VPTNs to zero, (B) following the occurrence and
during the continuation of an Event of Default specified in Section 5.1(iii) of
the Indenture which has resulted in an acceleration of the Notes, the Servicer
shall instruct the Indenture Trustee to transfer the funds on deposit in the
Collection Account remaining after the application of clauses (i), (ii), (iii),
(iv) and (v) above to the Principal Distribution Account to the extent necessary
to reduce the principal amount of all the Notes to zero, and (C) in the case of
an event described in clause (A) or (B), the Certificateholders will not receive
any distributions of principal or interest until the principal amount and
accrued interest on all the Notes has been paid in full.
(d) On each Quarterly Payment Date (or, on any other Monthly
Distribution Date that is not a Quarterly Payment Date if an Early Amortization
Event or an acceleration of the Notes due to an Event of Default has occurred on
or prior to the LIBOR Determination Date relating to such Monthly Distribution
Date), after giving effect to the deposit of any Net Swap Receipts into the
Floating Rate Class A Note Interest Rate Swap Agreements to, and the withdrawal
of the Net Swap Payments under the Floating Rate Class A Note Interest Rate Swap
Agreements from, the Class A Quarterly Interest Funding Account, the Trust will
apply amounts on deposit in the Class A Quarterly Interest Funding Account as
follows:
(1) first, to pay the holders of each Subclass of
Quarterly Pay Class A Notes amounts on deposit in the
Class A Quarterly Interest Funding Account, on pro
rata basis according to the amount of interest due to
each Subclass, to the extent necessary to pay the
full amount of interest due and payable on each such
Subclass; and
(2) second, to deposit any amounts remaining into
the Collection Account to be applied on such
Quarterly Payment Date or Monthly Distribution Date,
as applicable, in accordance with the priorities set
forth in Section 4.7(c).
(e) On each Subsequent Transfer Date during the Revolving
Period, the Servicer shall instruct the Indenture Trustee (based on the
information contained in the Servicer's Certificate delivered on or before the
related Determination Date pursuant to Section 3.9), to withdraw funds on
deposit in the Principal Distribution Account with respect to the Collection
Period preceding such Subsequent Transfer Date for payment of the Additional
Receivables Purchase Price to the Seller in consideration of Additional
Receivables sold by the Seller to the Issuer on such Subsequent Transfer Date.
After payment to the Seller of the Additional Receivables Purchase Price, the
Indenture Trustee, as instructed by the Servicer, shall transfer any funds
remaining in the Principal Distribution Account to the Accumulation Account.
(f) On each Monthly Distribution Date during the Amortization
Period, the Servicer shall instruct the Indenture Trustee (based on the
information contained in the Servicer's Certificate delivered on or before the
related Determination Date pursuant to Section 3.9), to withdraw the funds on
deposit in the Principal Distribution Account, any funds on deposit in the VPTN
Proceeds Account and, if such Monthly Distribution Date is a Targeted Scheduled
Distribution Date, any funds on deposit in the Accumulation Account and make
distributions and payments in the following order of priority:
(1) FIRST, to the holders of the Class A
Notes and VPTNs in reduction of principal until the
principal amounts of the outstanding Class A Notes
and VPTNs have been paid in full, in accordance with
the following:
(A) On each Targeted Scheduled
Distribution Date for a Subclass of Class A Notes
upon which the Trust is able to issue and does issue
VPTNs,
(i) first, from amounts on deposit in the
Principal Distribution Account to the
holders of the outstanding VPTNs, if any,
(excluding any VPTNs issued on such Targeted
Scheduled Distribution Date) until all
outstanding VPTNs are paid in full, and then
any remaining amounts to the holders of such
Subclass or Subclasses of Class A Notes that
have reached or passed their Targeted
Scheduled Distribution Dates until paid
in full; and
(ii) second, from amounts, if any, on deposit in
the Accumulation Account to the holders of
such Subclass of Class A Notes which has
reached its Targeted Scheduled Distribution
Date until paid in full;
(iii) third, from amounts on deposit in the VPTN
Proceeds Account to the holders of such
Subclass or Subclasses of Class A Notes that
have reached or passed their Targeted
Scheduled Distribution Dates until paid in
full; and
(iv) fourth, from any remaining amounts on
deposit in the Principal Distribution
Account to the holders of the VPTNs until
paid in full, and then any remaining amounts
will be deposited to the Accumulation
Account if any Subclasses of Class A Notes
are outstanding which have not reached or
passed their Targeted Scheduled Distribution
Dates;
(B) On each Targeted Scheduled
Distribution Date for a Subclass of Class A Notes
upon which the Trust is unable to issue VPTNs or on
any Monthly Distribution Date which is not a Targeted
Scheduled Distribution Date upon which a Subclass or
Subclasses of Class A Notes which have reached or
passed their Targeted Scheduled Distribution Dates
remain outstanding (and no Early Amortization Event
has occurred),
(i) first,
(a) from amounts on deposit in the
Principal Distribution Account to
the holders of the outstanding
Variable Pay Term Notes, if any, the
Variable Pay Term Note Percentage of
such amounts until all outstanding
Variable Pay Term Notes are paid in
full; and
(b) from amounts on deposit in the
Principal Distribution Account to
the holders of all of the
outstanding Subclasses of Class A
Notes which have reached or passed
their Targeted Scheduled
Distribution Dates, the Class A
Percentage of all amounts on deposit
in the Principal Distribution
Account until the principal amount
of all of such outstanding
Subclasses of Class A Notes has been
paid in full;
(ii) second, from amounts on deposit in the
Accumulation Account, if any, to the holders
of such Subclass of Class A Notes which has
reached its Targeted Scheduled Distribution
Date until paid in full;
(iii) third, from amounts on deposit in the VPTN
Proceeds Account (after the reimbursement of
any Servicer Liquidity Advances pursuant to
Section 4.5 hereof) to the holders of such
Subclass or Subclasses of Class A Notes
which have reached or passed their Targeted
Scheduled Distribution Date until paid in
full; and
(iv) fourth, from any remaining amounts on
deposit in the Principal Distribution
Account to the holders of the VPTNs until
paid in full, and then any remaining amounts
will be deposited to the Accumulation
Account if any Class A Notes are outstanding
which have not reached or passed their
Targeted Scheduled Distribution Date;
(C) On each Monthly Distribution
Date that is not a Targeted Scheduled Distribution
Date for a Subclass of Class A Notes and as of which
the Trust has paid in full each Subclass of Class A
Notes which has reached or passed its Targeted
Scheduled Distribution Date (and no Early
Amortization Event has occurred),
(i) first,
(a) from amounts on deposit in the
Principal Distribution Account to
the holders of the outstanding
VPTNs, if any, until all outstanding
VPTNs have been paid in full; and
(b) second, if any Class A Notes remain
outstanding, the remainder, if any,
to the Accumulation Account;
(D) On each Monthly Distribution
Date following an Early Amortization Event, to the
holders of the outstanding Subclasses of Class A
Notes until the principal balances of all such
outstanding Subclasses of Class A Notes have been
paid in full, in the following order of
priority:
(i) to the Class A-1 Notes until paid in full;
(ii) to the Class A-2 Notes until paid in full;
(iii) to the Class A-3 Notes until paid in full;
(iv) to the Class A-4 Notes until paid in full; and
(v) to the Class A-5 Notes until paid in full;
(2) SECOND, to the holders of
the Class B Notes in reduction of principal until
the principal amount of the outstanding Class B
Notes has been paid in full;
(3) THIRD to the Certificate
Principal Distribution Account, until the Certificate
Balance of the Class C Certificates has been paid in
full;
(4) FOURTH, to the Certificate
Principal Distribution Account, until the Certificate
Balance of the Class D Certificates has been paid in
full; and
(5) FIFTH, to the seller, any
funds remaining on deposit in the Principal
Distribution Account;
provided, in each case, that in the event there are not sufficient funds to pay
the principal amount of all Notes or Certificates within a Subclass or Class
having the same priority, principal payments shall be made to each holder within
such Subclass or Class on a pro rata basis, and provided, further, all of the
Subclasses of Class A Notes will be paid sequentially, so that no principal
payments will be made on any Subclass of Class A Notes, until all Subclasses of
Class A Notes with a lower numerical designation have been paid in full; and
provided further if at any time more than one VPTN is outstanding, principal
will be paid to the VPTNs sequentially, with the earliest issued VPTN being paid
in full before any principal is paid to any VPTN with a later issuance date.
SECTION 4.8 Reserve Account. (a) (i) The Seller shall, prior to
the Closing Date, establish and maintain an account in the name "The Chase
Manhattan Bank as Indenture Trustee, as secured party for Ford Credit Auto Owner
Trust 2000-F" at a Qualified Institution or Qualified Trust Institution, which
shall be designated as the "Reserve Account" (the Reserve Account, together with
the Collection Account (including the Principal Distribution Account), the
Accumulation Account, the VPTN Proceeds Account and the Class A Quarterly
Interest Funding Account, the "Trust Accounts"). The Reserve Account shall be
under the sole dominion and control of the Indenture Trustee; provided, that the
Servicer may make deposits to the Reserve Account in accordance with the Basic
Documents and so long as no Default or Event of Default shall have occurred and
be continuing all or a portion of the funds in the Reserve Account shall be
invested by the applicable Qualified Institution or Qualified Trust Institution
maintaining such account at the direction of the Seller in Permitted Investments
without requiring any action from the Indenture Trustee. The Seller shall not
direct the Qualified Institution or Qualified Trust Institution maintaining the
Reserve Account to make any investment of any funds or to sell any investment
held in the Reserve Account unless the security interest Granted and perfected
in such account in favor of the Indenture Trustee will continue to be perfected
in such investment or the proceeds of such sale, in either case without any
further action by any Person, and, in connection with any direction by the
Seller to make any such investment or sale, if requested by the applicable
Qualified Institution or Qualified Trust Institution, the Seller shall deliver
to such Qualified Institution or Qualified Trust Institution an Opinion of
Counsel, acceptable to such Qualified Institution or Qualified Trust
Institution, to such effect. If (i) the Seller shall have failed to give
investment directions for any funds on deposit in the Reserve Account to the
Qualified Institution or Qualified Trust Institution maintaining such account by
11:00 a.m. New York Time (or such other time as may be agreed by the Issuer and
such Qualified Institution or Qualified Trust Institution) on the Business Day
preceding each Monthly Distribution Date, (ii) a Default or Event of Default
shall have occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.2 of the
Indenture or (iii) the Notes shall have been declared due and payable following
an Event of Default, amounts collected or receivable from the Indenture Trust
Estate are being applied in accordance with Section 5.4 of the Indenture as if
there had not been such a declaration, then the Qualified Institution or
Qualified Trust Institution shall, to the fullest extent practicable, invest and
reinvest funds in the Reserve Account in one or more Permitted Investments
described in clause (b) of the definition thereof. The Reserve Account will be
established and maintained pursuant to an account agreement which specifies New
York law as the governing law. In addition, the Reserve Account shall be
established and maintained at a Qualified Institution or Qualified Trust
Institution which agrees in writing that for so long as the Notes are
outstanding it will comply with entitlement orders (as defined in Article 8 of
the UCC) originated by the Indenture Trustee without further consent of the
Issuer. On the Closing Date, the Seller shall deposit the Reserve Initial
Deposit into the Reserve Account from the net proceeds of the sale of the Notes
and the Certificates. The Reserve Account and all amounts, securities,
investments, financial assets and other property deposited in or credited to the
Reserve Account (such amounts, the "Reserve Account Property") shall be held by
the Indenture Trustee as secured party for the benefit of the Noteholders and,
after payment in full of the Notes, as agent of the Owner Trustee and as part of
the Trust Property, and all deposits to and withdrawals from therefrom shall be
made only upon the terms and conditions of the Basic Documents.
The Reserve Account Property shall, to the extent permitted by
applicable law, rules and regulations, be invested, as directed in writing by
the Seller, by the bank or trust company then maintaining the Reserve Account in
Permitted Investments that mature not later than the Business Day preceding the
next Monthly Distribution Date and such Permitted Investments shall be held to
maturity; provided, however, that upon satisfaction of the Rating Agency
Condition, funds in the Reserve Account may be invested in Permitted Investments
that will not mature prior to the next Monthly Distribution Date and will not be
required to be sold or liquidated to meet any shortfalls that may occur. All
interest and other income (net of losses and investment expenses) on funds on
deposit in the Reserve Account shall be deposited therein. In the event the
Reserve Account is no longer to be maintained at the corporate trust department
of The Chase Manhattan Bank, the Seller shall, with the Indenture Trustee's or
Owner Trustee's assistance as necessary, cause the Reserve Account to be moved
to a Qualified Institution or a Qualified Trust Institution within ten (10)
Business Days (or such longer period not to exceed thirty (30) calendar days as
to which each Rating Agency may consent).
(ii) With respect to Reserve Account Property:
(A) any Reserve Account Property
that is a "financial asset" as defined in Section
8-102(a)(9) of the UCC shall be physically delivered
to, or credited to an account in the name of, the
Qualified Institution or Qualified Trust Institution
maintaining the Reserve Account in accordance with
such institution's customary procedures such that
such institution establishes a "securities
entitlement" in favor of the Indenture Trustee with
respect thereto; and
(B) any Reserve Account Property
that is held in deposit accounts shall be held solely
in the name of the Indenture Trustee at one or more
depository institutions having the Required Rating
and each such deposit account shall be subject to the
exclusive custody and control of the Indenture
Trustee and the Indenture Trustee shall have sole
signature authority with respect thereto.
(iii) Except for any deposit accounts specified in clause
(ii)(B) above, the Reserve Account shall only be invested in securities
or in other assets which the Qualified Institution or Qualified Trust
Institution maintaining the Reserve Account agrees to treat as
"financial assets" as defined in Section 8-102(a)(9) of the UCC.
(b) If the Servicer pursuant to Section 4.4 determines on or
before any Determination Date that it is required to make a Monthly Advance and
does not do so from its own funds, the Servicer shall promptly instruct the
Indenture Trustee in writing to withdraw funds, in an amount specified by the
Servicer, from the Reserve Account and deposit them in the Collection Account to
cover any shortfall. Such payment shall be deemed to have been made by the
Servicer pursuant to Section 4.4 for purposes of making distributions pursuant
to this Agreement, but shall not otherwise satisfy the Servicer's obligation to
deliver the amount of the Monthly Advances to the Indenture Trustee, and the
Servicer shall within two Business Days replace any funds in the Reserve Account
so used.
(c) Following the payment in full of the aggregate principal
amount of the Notes and the Aggregate Certificate Balance and of all other
amounts owing or to be distributed hereunder or under the Indenture or the Trust
Agreement to Noteholders and Certificateholders and the termination of the
Trust, any remaining Reserve Account Property shall be distributed to the
Seller.
(d) The Seller shall be permitted to sell, transfer, convey or
assign in any manner its rights in the Reserve Account under this Section
4.8(c), together with its rights to receive amounts under Section 4.7(c)(xi) of
this Agreement and Sections 5.4(b)(ix) and 8.2(c)(xi) of the Indenture, provided
that each of the following conditions are satisfied:
(i) the Rating Agency Condition is satisfied with respect to
such action;
(ii) such action shall 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
(iii) the transferee or assignee agrees in writing to take
positions for federal and any Applicable Tax State income tax purposes
consistent with the tax positions taken previously by the Seller.
SECTION 4.9 Net Deposits. For so long as (i) Ford Credit shall be
the Servicer, (ii) the Servicer shall be entitled pursuant to Section 4.2 to
remit collections on a monthly basis rather than within two Business Days of
receipt, and (iii) the Servicer shall be entitled pursuant to Section 4.1(e) to
retain Payaheads rather than deposit them in the Payahead Account. Ford Credit
may make the remittances pursuant to Sections 4.2, 4.5 and 4.6 above, net of
amounts to be distributed to Ford Credit pursuant to Section 4.7(c).
Nonetheless, the Servicer shall account for all of the above described
remittances and distributions except for the Supplemental Servicing Fee in the
Servicer's Certificate as if the amounts were deposited and/or transferred
separately.
SECTION 4.10 Statements to Noteholders and Certificateholders. On
each Monthly Distribution Date, the Servicer shall provide to the Indenture
Trustee (with copies to the Rating Agencies and each Note Paying Agent) for the
Indenture Trustee to forward to each Noteholder of record as of the most recent
Record Date and to the Owner Trustee (with copies to the Rating Agencies and to
each Certificate Paying Agent) for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date and to the
Luxembourg Paying Agent to be made available to Noteholders in Luxembourg, a
statement based on information in the Servicer's Certificate furnished pursuant
to Section 3.9, setting forth for the Collection Period relating to such Monthly
Distribution Date the following information as to the Notes and the Certificates
to the extent applicable:
(i) the amount of such distribution allocable to interest
allocable to each Class or Subclass, as applicable, of the Notes and
the Certificates, the amount of such distribution deposited to the
Class A Quarterly Interest Funding Account Deposit Amount and the
amount thereof allocable to each Subclass of Class A Notes, and the
amount to be paid to each Subclass of Class A Notes from amounts on
deposit in the Class A Quarterly Interest Funding Account;
(ii) (a) during the Revolving Period, the amount deposited to
the Principal Distribution Account, the amount applied from the
Principal Distribution Account to purchase Additional Receivables, the
amount applied from the Accumulation Account to purchase Additional
Receivables, the aggregate principal balance of the Additional
Receivables purchased on such Monthly Distribution Date and the amount
deposited into the Accumulation Account after giving effect to all
purchases of Additional Receivables on such Monthly Distribution Date
and (b) during the Amortization Period, the amount allocable to
principal for each class of Notes and Certificates, including the Class
A Percentage and Variable Pay Term Note Percentage thereof;
(iii) the amount of any draws from the Reserve Account, if
any, separately stated by purpose, and the amount of any draws from the
Accumulation Account;
(iv) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(v) the Yield Supplement Overcollateralization Amount for
such Monthly Distribution Date;
(vi) the aggregate outstanding principal amount of each Class
of Notes, the Note Pool Factor for each Class of Notes, the Certificate
Balance of each Class of Certificates and the Certificate Pool Factor
for each Class of Certificates as of such Monthly Distribution Date
after giving effect to all principal payments on such Monthly
Distribution Date;
(vii) the amount of the Servicing Fee paid to the Servicer
with respect to the related Collection Period and the amount of any
unpaid Servicing Fees and the change in such amount from that of the
prior Monthly Distribution Date;
(viii) the amount of the aggregate Realized Losses, if any,
with respect to the related Collection Period;
(ix) the amounts of the Noteholders' Interest Carryover
Shortfall and the Certificateholders' Interest Carryover Shortfall, if
any, on such Monthly Distribution Date and the change in such amounts
from the preceding Monthly Distribution Date;
(x) the amount of any previously due and unpaid payment of
principal of the Notes or of the Certificate Balance, as applicable,
and the change in such amount from that of the prior Monthly
Distribution Date;
(xi) the aggregate Purchase Amount of Receivables repurchased
by the Seller or purchased by the Servicer, if any, with respect to the
related Collection Period;
(xii) the balance of the Reserve Account on such Monthly
Distribution Date (specifying any increase in the balance of the
Reserve Account due to an increase in the amounts on deposit in the
Accumulation Account), after giving effect to distributions made on
such Monthly Distribution Date and the change in such balance from the
preceding Monthly Distribution Date;
(xiii) the Specified Overcollateralization Amount and the
Specified Credit Enhancement Amount as of such Monthly Distribution
Date;
(xiv) the amount of Monthly Advances, if any, on such Monthly
Distribution Date (stating separately the amount of Actuarial Advances
and Simple Interest Advances);
(xv) for the first Monthly Distribution Date that is on or
immediately following the end of the Revolving Period, the amount
remaining in the Principal Distribution Account that has not been used
to fund the purchase of Additional Receivables;
(xvi) for any Targeted Scheduled Distribution Date or any
Monthly Distribution Date upon which a VPTN is to be issued, the
principal amount of any VPTN to be issued on such date;
(xvii) the amount, if any, to be deposited in the Accumulation
and the balance of the Accumulation Account on such Monthly
Distribution Date, after giving effect to distributions made on such
Monthly Distribution Date and the change in such balance from the
preceding Monthly Distribution Date;
(xviii) whether an Early Amortization Event has occurred;
(xix) if such Monthly Distribution Date is a Targeted Scheduled
Distribution Date, whether the related Subclass of Class A Notes will
be paid in full;
(xx) if such Monthly Distribution Date occurs after a Targeted
Scheduled Distribution Date on which the related Subclass of Class A
Notes has not been paid in full, whether such Subclass of Class A Notes
will be paid in full on such Monthly Distribution Date.
Each amount set forth on the Monthly Distribution Date statement
pursuant to clauses (i), (vii), (ix) and (x) above shall be expressed as a
dollar amount per $1,000 of original principal amount or original Certificate
Balance of a Note or a Certificate, as applicable.
Such statements will be sent by first-class mail, postage prepaid, to
the registered holders of such notes or certificates at their address appearing
in the Note Register and to the Luxembourg Paying Agent to the address specified
in Section 9.4.
ARTICLE V
THE SELLER
SECTION 5.1 Representations and Warranties of Seller. The Seller
makes the following representations and warranties on which the Issuer is deemed
to have relied in acquiring the Trust Property. The representations and
warranties speak as of the execution and delivery of this Agreement and as of
the execution and delivery of each Second Tier Subsequent Assignment, and shall
survive the conveyance of the Trust Property to the Issuer and the pledge
thereof by the Issuer to the Indenture Trustee pursuant to the Indenture:
(a) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a limited partnership in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and shall have, power, authority and legal right to acquire and
own the Receivables.
(b) Due Qualification. The Seller shall be duly qualified to do
business as a foreign limited partnership in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Seller shall have the power and
authority to execute and deliver this Agreement, the First Tier Subsequent
Assignments, the Second Tier Subsequent Assignments and the other Basic
Documents to which it is a party and to carry out their terms. The Seller shall
have full power and authority to convey and assign the property to be conveyed
and assigned to and deposited with the Issuer and has duly authorized such
conveyance and assignment to the Issuer by all necessary action; and the
execution, delivery, and performance of this Agreement, the First Tier
Subsequent Assignments, the Second Tier Subsequent Assignments and the other
Basic Documents to which it is a party shall have been duly authorized, executed
and delivered by the Seller by all necessary action.
(d) Valid Conveyance; Binding Obligation. This Agreement and each
Second Tier Subsequent Assignment shall evidence a valid transfer, assignment
and conveyance of the Receivables and the other Trust Property conveyed by the
Seller to the Issuer hereunder or thereunder, enforceable against creditors of
and purchasers from the Seller; and this Agreement, the First Tier Subsequent
Assignments, the Second Tier Subsequent Assignments and the other Basic
Documents to which the Seller is a party constitute legal, valid, and binding
obligations of the Seller, enforceable against the Seller in accordance with
their terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement, each executed First Tier Subsequent Assignment,
each executed Second Tier Subsequent Assignment and the other Basic Documents to
which the Seller is a party and the fulfillment of the terms hereof and thereof
will not conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or both) a default
under the Certificate of Limited Partnership or Limited Partnership Agreement,
any indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument to which the Seller is a
party or by which the Seller is bound; nor result in the creation or imposition
of any lien, charge or encumbrance upon any of its properties pursuant to the
terms of any such indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument; nor violate any
law or, to the best of the Seller's knowledge, any order, rule, or regulation
applicable to the Seller of any federal or State regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Seller or its properties.
(f) No Proceedings. As of the date of this Agreement and as of the
date of each Second Tier Subsequent Assignment, there are no proceedings or
investigations pending, or, to the Seller's best knowledge, threatened, before
any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties: (i)
asserting the invalidity of this Agreement, the Indenture, any First Tier
Subsequent Assignment, any Second Tier Subsequent Assignment or any of the other
Basic Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture, any First Tier
Subsequent Assignment, any Second Tier Subsequent Assignment or any of the other
Basic Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement, the Indenture, any First Tier
Subsequent Assignment, any Second Tier Subsequent Assignment, any of the other
Basic Documents, the Notes or the Certificates, or (iv) relating to the Seller
and which might adversely affect the federal or Applicable Tax State income,
excise, franchise or similar tax attributes of the Notes or the Certificates.
SECTION 5.2 Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement, and hereby agrees to the
following:
(a) The Seller shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee from and against any taxes
that may at any time be asserted against any such Person with respect to, and as
of the date of, the conveyance of the Receivables to the Issuer or the issuance
and original sale of the Notes and the Certificates, including any sales, gross
receipts, general corporation, tangible personal property, privilege, or license
taxes (but, in the case of the Issuer, not including any taxes asserted with
respect to ownership of the Receivables or federal or other Applicable Tax State
income taxes arising out of the transactions contemplated by this Agreement, the
Second Tier Subsequent Assignments and the other Basic Documents) and costs and
expenses in defending against the same.
(b) The Seller shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any loss, liability or expense incurred by
reason of (i) the Seller's willful misfeasance, bad faith, or negligence (other
than errors in judgment) in the performance of its duties under this Agreement,
or by reason of reckless disregard of its obligations and duties under this
Agreement and (ii) the Seller's violation of federal or State securities laws in
connection with the registration or the sale of the Notes or the Certificates.
(c) The Seller shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee and their respective officers, directors,
employees and agents from and against all costs, expenses, losses, claims,
damages and liabilities arising out of or incurred in connection with the
acceptance or performance of the trusts and duties contained herein and in the
Trust Agreement, in the case of the Owner Trustee, and in the Indenture, in the
case of the Indenture Trustee, except to the extent that such cost, expense,
loss, claim, damage or liability: (i) in the case of the Owner Trustee, shall be
due to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Owner Trustee or, in the case of the Indenture Trustee, shall
be due to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Indenture Trustee; or (ii) in the case of the Owner Trustee
shall arise from the breach by the Owner Trustee of any of its representations
or warranties set forth in Section 7.3 of the Trust Agreement or (iii) in the
case of the Indenture Trustee shall arise from the breach by the Indenture
Trustee of any of its representations and warranties set forth in the Indenture.
(d) The Seller shall pay any and all taxes levied or assessed upon
all or any part of the Owner Trust Estate.
(e) Indemnification under this Section 5.2 shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement and shall include, without limitation, reasonable
fees and expenses of counsel and expenses of litigation. If the Seller shall
have made any indemnity payments pursuant to this Section 5.2 and the Person to
or on behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Seller, without interest.
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 shall be a party, (iii) succeeding to the business of the
Seller, or (iv) more than 50% of the voting stock of which is owned directly or
indirectly by Ford Motor Company, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, will be the successor to the Seller under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement; provided, however, that (x) the Seller
shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger, conversion,
consolidation or succession and such agreement of assumption comply with this
Section 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 shall have delivered to the Owner Trustee and the Indenture Trustee an
Opinion of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee, respectively, in the
Receivables and the other Trust Property, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Seller shall
provide notice of any merger, conversion, consolidation, or succession pursuant
to this Section 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) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii) or (iii)
above.
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 shall not be under any obligation to appear in, prosecute, or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
SECTION 5.5 Seller May Own Notes or Certificates. The Seller, and
any Affiliate of the Seller, may in its individual or any other capacity become
the owner or pledgee of Notes or Certificates with the same rights as it would
have if it were not the Seller or an Affiliate thereof, except as otherwise
expressly provided herein or in the other Basic Documents. Except as set forth
herein or in the other Basic Documents, Notes and Certificates so owned by or
pledged to the Seller or any such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement and the other Basic
Documents, without preference, priority, or distinction as among all of the
Notes and Certificates.
ARTICLE 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 shall survive the conveyance of the Trust
Property to the Issuer and the pledge thereof by the Issuer pursuant to the
Indenture:
(a) Organization and Good Standing. The Servicer shall have been
duly organized and shall be validly existing as a corporation in good standing
under the laws of the State of its incorporation, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and shall have, power, authority, and legal right to acquire,
own, sell and service the Receivables and to hold the Receivable Files as
custodian on behalf of the Issuer and the Indenture Trustee.
(b) Due Qualification. The Servicer shall be duly qualified to do
business as a foreign corporation in good standing, and shall have obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) shall require such qualifications.
(c) Power and Authority. The Servicer shall have the power and
authority to execute and deliver this Agreement and the other Basic Documents to
which it is a party and to carry out their terms, and the execution, delivery
and performance of this Agreement and the other Basic Documents to which it is a
party shall have been duly authorized, executed and delivered by the Servicer by
all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which the Servicer is a party constitute legal, valid, and binding
obligations of the Servicer, enforceable against the Servicer in accordance with
their terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Servicer is a party and the fulfillment of the terms hereof and thereof shall
not conflict with, result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time or both) a default under
(in each case material to the Servicer and its subsidiaries considered as a
whole), the articles of incorporation or by-laws of the Servicer, or any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument to which the Servicer is a party or
by which it shall be bound, nor result in the creation or imposition of any
lien, charge or encumbrance (in each case material to the Servicer and its
subsidiaries considered as a whole) upon any of its properties pursuant to the
terms of any such indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument (other than this
Agreement); nor violate any law or, to the best of the Servicer's knowledge, any
order, rule, or regulation applicable to the Servicer of any court or any
federal or State regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Basic Documents,
the Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the transactions contemplated
by this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, or (iv) relating to the Servicer and
which might adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes or the Certificates.
SECTION 6.2 Indemnities of Servicer. The Servicer shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, and hereby agrees to the
following:
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders and the Seller from and against any and all
costs, expenses, losses, damages, claims and liabilities, arising out of or
resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee and the Indenture Trustee from
and against any taxes that may at any time be asserted against any such Person
with respect to the transactions contemplated herein or in the other Basic
Documents, if any, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to, and as of the date of, the conveyance of the Receivables to the Issuer or
the issuance and original sale of the Notes and the Certificates, or asserted
with respect to ownership of the Receivables, or federal or other Applicable Tax
State income taxes arising out of the transactions contemplated by this
Agreement and the other Basic Documents) and costs and expenses in defending
against the same.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders and the Seller from and against any and all
costs, expenses, losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon any such Person through, the negligence, willful misfeasance, or
bad faith (other than errors in judgment) of the Servicer in the performance of
its duties under this Agreement or any other Basic Document to which it is a
party, or by reason of reckless disregard of its obligations and duties under
this Agreement or any other Basic Document to which it is a party.
(d) The Servicer shall indemnify, defend, and hold harmless the
Owner Trustee, the Delaware Trustee and the Indenture Trustee, as applicable,
from and against all costs, expenses, losses, claims, damages, and liabilities
arising out of or incurred in connection with the acceptance or performance of
the trusts and duties contained herein and in the other Basic Documents, if any,
except to the extent that such cost, expense, loss, claim, damage, or liability:
(i) shall be due to the willful misfeasance, bad faith, or negligence (except
for errors in judgment) of the Owner Trustee, the Delaware Trustee or the
Indenture Trustee, as applicable; (ii) in the case of the Owner Trustee, shall
arise from the Owner Trustee's breach of any of its representations or
warranties set forth in Section 7.3 of the Trust Agreement or, in the case of
the Indenture Trustee, from the Indenture Trustee's breach of any of its
representations or warranties set forth in the Indenture; or (iii) in the case
of the Indenture Trustee, shall arise out of or be incurred in connection with
the performance by the Indenture Trustee of the duties of a Successor Servicer
hereunder.
For purposes of this Section 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 shall 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, shall survive the
termination of such Person as Servicer or a resignation by such Person as
Servicer as well as the termination of this Agreement or the resignation or
removal of the Owner Trustee, the Delaware Trustee or the Indenture Trustee and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section 6.2 and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the 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 shall be a party, (iii) succeeding to the business of the
Servicer, or (iv) so long as Ford Credit acts as Servicer, any corporation more
than 50% of the voting stock of which is owned directly or indirectly by Ford
Motor Company, which Person in any of the foregoing cases executes an agreement
of assumption to perform every obligation of the Servicer under this Agreement,
will be the successor to the Servicer under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties to
this Agreement; provided, however, that (x) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such merger, conversion, consolidation, or
succession and such agreement of assumption comply with this Section 6.3 and
that all conditions precedent provided for in this Agreement relating to such
transaction have been complied with and (y) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Issuer and the
Indenture Trustee, respectively, in the Receivables, and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interests. The Servicer
shall provide notice of any merger, conversion, consolidation or succession
pursuant to this Section 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) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), or (iii)
above.
SECTION 6.4 Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Issuer, the Noteholders or
the Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance or bad faith in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement, or by reason of negligence in the performance of
its duties under this Agreement (except for errors in judgment). The Servicer
and any director, officer or employee or agent of the Servicer may rely in good
faith on any Opinion of Counsel or on any Officer's Certificate of the Seller or
certificate of auditors believed to be genuine and to have been signed by the
proper party in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not
be under any obligation to appear in, prosecute, or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement and
the rights and duties of the parties to this Agreement and the interests of the
Noteholders and Certificateholders under this Agreement. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Servicer.
SECTION 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 any corporation
more than 50% of the voting stock of which is owned, directly or indirectly, by
Ford Motor Company. The Servicer may at any time perform specific duties as
servicer under the Agreement through sub-contractors; provided that no such
delegation or subcontracting shall relieve the Servicer of its responsibilities
with respect to such duties as to which the Servicer shall remain primarily
responsible with respect thereto and the Servicer shall be solely responsible
for the fees of any such sub-contractors.
SECTION 6.6 Ford Credit Not to Resign as Servicer. Subject to the
provisions of Section 6.3, Ford Credit shall not resign from the obligations and
duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law. Notice of any such determination
permitting the resignation of Ford Credit shall be communicated to the Owner
Trustee and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a Successor Servicer shall have
(i) taken the actions required by Section 7.1(b), (ii) assumed the
responsibilities and obligations of Ford Credit in accordance with Section 7.2
and (iii) become the Administrator under the Administration Agreement pursuant
to Section 8 thereof.
SECTION 6.7 Servicer May Own Notes or Certificates. The Servicer,
and any Affiliate of the Servicer, may, in its individual or any other capacity,
become the owner or pledgee of Notes or Certificates with the same rights as it
would have if it were not the Servicer or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Basic Documents. Except as
set forth herein or in the other Basic Documents, Notes and Certificates so
owned by or pledged to the Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Notes and Certificates.
ARTICLE 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 the
Certificates and this Agreement that shall continue unremedied for a
period of three (3) Business Days after written notice of such failure
is received by the Servicer or the Seller, as the case may be, from the
Owner Trustee or the Indenture Trustee or after discovery of such
failure by an officer of the Servicer or the Seller, as the case may
be; or
(ii) Failure on the part of the Servicer or the Seller duly to
observe or to perform in any material respect any other covenants or
agreements of the Servicer or the Seller, as the case may be, set forth
in the Notes, the Certificates or in this Agreement, which failure
shall (a) materially and adversely affect the rights of Noteholders or
Certificateholders and (b) continue unremedied for a period of ninety
(90) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (1) to the
Servicer or the Seller, as the case may be, by the Owner Trustee or the
Indenture Trustee, or (2) to the Owner Trustee, the Indenture Trustee,
the Seller and the Servicer by the Noteholders of Notes evidencing not
less than 25% of the Note Balance of the Controlling Note Class or, if
no Notes are outstanding, by Certificateholders of Certificates
evidencing not less than 25% of the Certificate Balance of the
Controlling Certificate Class; or
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, or liquidator for the Servicer
or the Seller in any insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings, or for the winding up
or liquidation of its respective affairs, and the continuance of any
such decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
(iv) The consent by the Servicer or the Seller to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the Servicer of
or relating to substantially all of its property; or the Servicer shall
admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntary suspend payment of its
obligations or become insolvent;
then the Indenture Trustee shall promptly notify each Rating Agency, and in each
and every case, so long as an Event of Servicing Termination shall not have been
remedied, either the Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the Note Balance of the Controlling Note Class (or,
if no Notes are outstanding, the Owner Trustee or Certificates evidencing not
less than a majority of the Certificate Balance of the Controlling Certificate
Class), by notice then given in writing to the Servicer (and to the Indenture
Trustee and the Owner Trustee if given by the Noteholders and to the Owner
Trustee if given by the Certificateholders) (with a copy to the Rating Agencies)
may terminate all of the rights and obligations of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Notes, the Certificates or the Trust Property or otherwise, shall pass to
and be vested in the Indenture Trustee or such Successor Servicer as may be
appointed under Section 7.2; and, without limitation, the Indenture Trustee and
the Owner Trustee are hereby authorized and empowered to execute and deliver, on
behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise.
(b) Upon termination of the Servicer under Section 7.1(a), the
predecessor Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Indenture Trustee or such Successor Servicer for
administration of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with respect
to a Receivable and the delivery of the Receivable Files and the related
accounts and records maintained by the Servicer. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section 7.1 shall 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 shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the later of
(x) the date 45 days from the delivery to the Indenture Trustee and the Owner
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (y) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of the Servicer's resignation or termination hereunder, the Issuer
shall appoint a Successor Servicer, and the Successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Owner Trustee and
the Indenture Trustee (with a copy to each Rating Agency). In the event that a
Successor Servicer has not been appointed at the time when the predecessor
Servicer has ceased to act as Servicer in accordance with this Section 7.2, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. Notwithstanding the above, the Indenture Trustee, if it
shall be legally unable so to act, shall appoint, or petition a court of
competent jurisdiction to appoint, any established institution, having a net
worth of not less than $100,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to the Servicer under this
Agreement.
(b) Upon appointment, the Successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties, and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, by the terms and provisions of this
Agreement.
(c) In connection with such appointment, the Indenture Trustee may
make such arrangements for the compensation of such Successor Servicer out of
payments on Receivables as it and such Successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
predecessor Servicer under this Agreement. The Indenture Trustee and such
Successor Servicer shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
SECTION 7.3 Repayment of Monthly Advances and Servicer Liquidity
Advances. If the identity of the Servicer shall change, the predecessor Servicer
shall be entitled to receive to the extent of available funds reimbursement for
Outstanding Monthly Advances pursuant to Section 4.3 and 4.4 or Outstanding
Servicer Liquidity Advances pursuant to Section 4.5, with respect to all Monthly
Advances or Servicer Liquidity Advances made by the predecessor Servicer.
SECTION 7.4 Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, the Servicer pursuant
to this Article VII, the Indenture Trustee shall give prompt written notice
thereof to Noteholders and to the Swap Counterparties, and the Owner Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses of record and to each Rating Agency.
SECTION 7.5 Waiver of Past Events of Servicing Termination. The
Noteholders of Notes evidencing not less than a majority of the Note Balance of
the Controlling Note Class (or, if no Notes are outstanding, the Owner Trustee
or Certificates evidencing not less than a majority of the Certificate Balance
of the Controlling Certificate Class) may, on behalf of all Noteholders and
Certificateholders, waive any Event of Servicing Termination hereunder and its
consequences, except an event resulting from the failure to make any required
deposits to or payments from any of the Trust Accounts, either Certificate
Distribution Account or the Payahead Account in accordance with this Agreement.
Upon any such waiver of a past Event of Servicing Termination, such Event of
Servicing Termination shall cease to exist, and shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other event or impair any right consequent thereon. The Issuer
shall provide written notice of any such waiver to the Rating Agencies and to
the Swap Counterparties.
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 shall be less than the
Optional Purchase Percentage, the Servicer shall have the option to purchase the
corpus of the Trust. To exercise such option, the Servicer shall deposit
pursuant to Section 4.6(a) in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables, plus the appraised value of any
other property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Servicer, the Owner Trustee and the Indenture
Trustee, and shall succeed to all interests in and to the Trust. Notwithstanding
the foregoing, the Servicer shall not be permitted to exercise such option
unless the amount to be deposited in the Collection Account pursuant to the
preceding sentence is greater than or equal to the sum of the outstanding
principal amount of the Notes and the Aggregate Certificate Balance and all
accrued but unpaid interest (including any overdue interest) thereon. The amount
deposited in the Collection Account pursuant to this Section 8.1 shall be used
on the next Monthly Distribution Date to make payments in full to Noteholders
and Certificateholders in the manner set forth in Article IV.
SECTION 8.2. Succession Upon Satisfaction and Discharge of
Indenture. Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, to the extent
permitted by applicable law, the Indenture Trustee will continue to carry out
its obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Payahead Account and the Collection
Account in accordance with Section 4.7 and making withdrawals from the Reserve
Account in accordance with Section 4.6(b) and Section 4.8.
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 and to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement, or to add any provisions to or change or eliminate
any provisions or to modify the rights of the Noteholders or Certificateholders;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interests of any Noteholder or Certificateholder or
adversely affect the rights or obligations of the Swap Counterparties under the
Interest Rate Swap Agreements or modify the obligations or, or impair the
ability of the Issuer to fully perform any of its obligations under the Interest
Rate Swap Agreements; and provided further that such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to be characterized for
federal or any then Applicable Tax State income tax purposes as an association
taxable as a corporation.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Issuer, with the consent of the Swap Counterparties
to the extent such amendment adversely affects the rights or obligations of the
Swap Counterparties under the Interest Rate Swap Agreements or modifies the
obligations of, or impairs the ability of the Issuer to fully perform any of its
obligations under the Interest Rate Swap Agreements, and with the consent of the
Indenture Trustee and the Owner Trustee to the extent that their respective
rights or obligations may be affected thereby (which consent may not be
unreasonably withheld) and with the consent of (i) the Indenture Trustee, to the
extent that its rights or obligations would be affected by such amendments, (ii)
the Noteholders of Notes evidencing not less than a majority of the Note Balance
of each Class of the Notes and (iii) the Certificateholders of Certificates
evidencing not less than a majority of the Aggregate Certificate Balance (which
consent of any Noteholder of a Note or Certificateholder of a Certificate given
pursuant to this Section 9.1 or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Note or Certificate, as the
case may be, and on all future Noteholders of such Note or Certificateholders of
such Certificate, as the case may be, and of any Note or Certificate, as
applicable, issued upon the transfer thereof or in exchange thereof or in lieu
thereof whether or not notation of such consent is made upon such Note or the
Certificate) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (A) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, or change the allocation or
priority of, collections of payments on Receivables or distributions that shall
be required to be made on any Note or Certificate or change any Note Interest
Rate or any Certificate Rate or, without satisfaction of the Rating Agency
Condition, the Specified Reserve Balance, without the consent of all adversely
affected Noteholders or Certificateholders or (B) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of the
Noteholders of all Notes and Certificateholders of all Certificates affected
thereby; and provided further that such action shall not, as evidenced by an
Opinion of Counsel, cause the Issuer to be characterized for federal or any then
Applicable Tax State income tax purposes as an association taxable as a
corporation.
(c) Prior to the execution of any such amendment or consent the
Servicer will provide, and the Owner Trustee shall distribute, written
notification of the substance of such amendment or consent to each Rating
Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall mail a copy to the Swap Counterparties and shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder, the Indenture Trustee and each Rating Agency and the
Indenture Trustee will provide notification of the substance of such amendment
or consent to each Noteholder and to the Luxembourg Paying Agent. It shall not
be necessary for the consent of Noteholders or the Certificateholders pursuant
to this Section 9.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Noteholders and Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Noteholders and
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee and the Indenture Trustee may prescribe, including the establishment of
record dates pursuant to paragraph number 2 of the Note Depository Agreement.
(e) Prior to the execution of any amendment to this Agreement, the
Owner Trustee and the Indenture Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel referred to
in Section 9.2(i)(1). The Owner Trustee or the Indenture Trustee may, but shall
not be obligated to, enter into any such amendment which affects such Owner
Trustee's or Indenture Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 9.2 Protection of Title to Trust Property. (a) The Seller
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain, and protect the interest of the
Issuer and the Indenture Trustee for the benefit of the Noteholders in the
Receivables and in the proceeds thereof. The Seller shall deliver (or cause to
be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning of
ss. 9-402(7) of the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least five (5) days' prior written notice thereof, with a
copy to the Rating Agencies, and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Owner Trustee and
the Indenture Trustee at least sixty (60) days' prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall promptly file any such amendment or new financing
statement. The Servicer shall at all times maintain each office from which it
shall service Receivables, and its principal executive office, within the United
States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, the Payahead Account and the Reserve Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of conveyance under this Agreement and under each Second Tier
Subsequent Assignment of the Receivables to the Issuer, the Servicer's master
computer records (including any back-up archives) that refer to a Receivable
shall indicate clearly the interest of the Issuer and the Indenture Trustee in
such Receivable and that such Receivable is owned by the Issuer and has been
pledged to the Indenture Trustee pursuant to the Indenture. Indication of the
Issuer's and the Indenture Trustee's interest in a Receivable shall not be
deleted from or modified on the Servicer's computer systems until, and only
until, the Receivable shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender, or other
transferee, the Servicer shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs (including any restored
from back-up archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been conveyed to and
is owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice, shall
permit the Owner Trustee, the Indenture Trustee and their respective agents at
any time during normal business hours to inspect, audit, and make copies of and
to obtain abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee
and the Indenture Trustee, within twenty (20) Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part of the
Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner
Trustee and the Indenture Trustee:
(1) promptly after the execution and delivery of
this Agreement and of each amendment thereto, and
after the execution and delivery of each Second
Tier Subsequent Assignment, an Opinion of
Counsel either (A) stating that, in the opinion
of such Counsel, all financing statements and
continuation statements have been executed and
filed that are necessary fully to preserve and
protect the interest of the Issuer and the
Indenture Trustee in the Receivables, and
reciting the details of such filings or referring
to prior Opinions of Counsel in which such details
are given, or (B) stating that, in the opinion
of such Counsel, no such action shall be necessary
to preserve and protect such interest; and
(2) within 120 days after the beginning of each
calendar year beginning with the first calendar year
beginning more than three months after the Initial
Cutoff Date, an Opinion of Counsel, dated as of a
date during such 120-day period, either (A) stating
that, in the opinion of such counsel, all financing
statements and continuation statements have been
executed and filed that are necessary fully to
preserve and protect the interest of the Issuer and
the Indenture Trustee in the Receivables, and
reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such
Counsel, no such action shall be necessary to
preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above shall specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable law,
cause the Notes and the Certificates to be registered with the Securities and
Exchange Commission pursuant to Section 12(b) or Section 12(g) of the Securities
Exchange Act of 1934 within the time periods specified in such sections.
(k) For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and all of which counterparts shall constitute but one and the same instrument.
SECTION 9.3 Governing Law. THIS AGREEMENT AND EACH SECOND TIER
SUBSEQUENT ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.4 Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller or the Servicer, to the agent for service as specified in
Section 9.11 hereof, or at such other address as shall be designated by the
Seller or the Servicer in a written notice to the Owner Trustee and the
Indenture Trustee, (b) in the case of the Owner Trustee, at the Corporate Trust
Office of the Owner Trustee, (c) in the case of the Indenture Trustee, at the
Corporate Trust Office of the Indenture Trustee, (d) in the case of Xxxxx'x
Investors Service, Inc., at the following address: Xxxxx'x Investors Service,
Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (e)
in the case of Standard & Poor's Ratings Services, at the following address:
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Surveillance Department, (f) in the case of
Fitch, Inc., at the following address: Fitch, Inc., 0 Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance, (g) in the case of
the Swap Counterparty, at the following address: Deutsche Bank AG, New York
Branch, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attn: Swap Group, Tel:
(1)(000)000-0000, Fax (1)(000) 000-0000, Telex: 429166; Answerback: DEUTNYK and
(h) in the case of the Luxembourg Paying Agent, at the following address: Banque
Internationale a Luxembourg S.A., 00, xxxxx x'Xxxx, X-0000 Xxxxxxxxxx. Any
notice required or permitted to be mailed to a Noteholder or Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Person as shown in the Note Register or the Certificate Register, as applicable.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder or
Certificateholder shall receive such notice.
SECTION 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement or of any Second
Tier Subsequent Assignment shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions, or terms shall be deemed severable from
the remaining covenants, agreements, provisions, or terms of this Agreement or
of such Second Tier Subsequent Assignment and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of such
Second Tier Subsequent Assignment or of the Notes, the Certificates 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 66b% of the Note Balance of the
Notes Outstanding and the Certificateholders of Certificates evidencing not less
than 66b% of the Aggregate Certificate Balance.
SECTION 9.7 Further Assurances. The Seller and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Owner Trustee or
the Indenture Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 9.8 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges therein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.9 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Noteholders, the
Certificateholders, the Indenture Trustee, the Delaware Trustee, the Owner
Trustee and the Swap Counterparties and their respective successors and
permitted assigns and each of the Indenture Trustee, the Delaware Trustee and
the Owner Trustee may enforce the provisions hereof as if they were parties
thereto. Except as otherwise provided in this Article IX, no other Person will
have any right or obligation hereunder. The parties hereto hereby acknowledge
and consent to the pledge of this Agreement by the Issuer to the Indenture
Trustee for the benefit of the Noteholders pursuant to the Indenture.
SECTION 9.10 Actions by Noteholders or Certificateholders. (a)
Wherever in this Agreement a provision is made that an action may be taken or a
notice, demand, or instruction given by Noteholders or Certificateholders, such
action, notice, or instruction may be taken or given by any Noteholder or
Certificateholder, as applicable, unless such provision requires a specific
percentage of Noteholders or Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver, or other act by a Noteholder or Certificateholder shall bind
such Noteholder or Certificateholder and every subsequent holder of such Note or
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or omitted to be done by
the Owner Trustee, the Indenture Trustee or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Note or Certificate.
SECTION 9.11 Agent for Service. The agent for service of the
Seller and the Servicer in respect of this Agreement shall be Xxxxxx X. Xxxxx,
Secretary, Ford Motor Credit Company, Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000.
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 or the General Partner any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law. This Section
9.12 shall survive the resignation or removal of the Owner Trustee under the
Trust Agreement or the Indenture Trustee under the Indenture or the termination
of this Agreement.
SECTION 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 The Bank of New York not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall The Bank of New York in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by The Chase Manhattan Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall The
Chase Manhattan Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 9.14 Savings Clause. It is the intention of the Seller and
the Issuer that each transfer of the Initial Trust Property and each transfer of
Subsequent Trust Property contemplated herein and in each Second Tier Subsequent
Assignment constitute an absolute transfer of such Trust Property, conveying
good title to such Trust Property from the Seller to the Issuer. However, in the
event that such transfer is deemed not to be a sale or for any reason such sale
is not effective, the Seller hereby grants to the Issuer a first priority
security interest in all of the Seller's right, title and interest in, to and
under the Initial Trust Property and all Subsequent Trust Property transferred
from time to time, and all proceeds thereof, to secure a loan in an amount equal
to all amounts payable under the Notes and the Certificates, and in such event,
this Agreement shall constitute a security agreement under applicable law.
IN WITNESS WHEREOF, the parties have caused this Sale and
Servicing Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES TWO L.P.,
as Seller
By: FORD CREDIT AUTO RECEIVABLES
TWO, INC., as General Partner
By:_______________________________________
Name:
Title:
FORD CREDIT AUTO OWNER TRUST 2000-F,
as Issuer
By: THE BANK OF NEW YORK, not in its
individual capacity but solely as
Owner Trustee
By:_______________________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By:________________________________________
Name:
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Indenture Trustee
By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee
By:
Name:
Title:
EXHIBIT A
FORM OF SECOND TIER SUBSEQUENT ASSIGNMENT
For value received, in accordance with and subject to the
Sale and Servicing Agreement, dated as of October 1, 2000 (the "Sale and
Servicing Agreement"), among Ford Credit Auto Owner Trust 2000-F (the "Trust"),
Ford Credit Auto Receivables Two L.P., as the Seller (the "Seller"), and Ford
Motor Credit Company, as the Servicer (the "Servicer"), the Seller hereby
irrevocably sells, transfers, assigns and otherwise conveys to the Trust,
without recourse (subject to the obligations herein), all right, title and
interest of the Seller, whether now owned or hereafter acquired, in, to and
under the following:
(a) the Additional Receivables listed on Schedule A hereto;
(b) with respect to the Additional Receivables listed on
Schedule A hereto that are Actuarial Receivables, monies due thereunder on or
after [_____] (the "Subsequent Cutoff Date") (including Payaheads), and, with
respect to Additional Receivables that are Simple Interest Receivables, monies
received thereunder on or after the Subsequent Cutoff Date;
(c) the security interests in Financed Vehicles granted by
Obligors pursuant to such Additional Receivables and any other interest of the
Trust in such Financed Vehicles;
(d) all rights to receive proceeds with respect to such
Additional Receivables from claims on any physical damage, theft, credit life or
disability insurance policies covering the related Financed Vehicles or related
Obligors;
(e) all rights to receive proceeds with respect to such
Additional Receivables from recourse to Dealers thereon pursuant to Dealer
Agreements;
(f) all of the Seller's rights to the Receivable Files that
relate to such Additional Receivables;
(g) all payments and proceeds with respect to such
Additional Receivables held by the Servicer;
(h) all property, guarantees and other collateral securing an
Additional Receivable (other than an Additional Receivable purchased by the
Servicer or repurchased by the Seller);
(i) all of the Seller's rights under the related First Tier
Subsequent Assignment dated as of the date hereof between Ford Credit Auto
Receivables Two L.P. and Ford Motor Credit Company;
(j) all rebates of premiums and other amounts relating to
insurance policies and other items financed under such Additional Receivables in
effect as of the Subsequent Cutoff Date; and
(k) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing.
The Seller hereby represents that as of the Subsequent Cutoff
Date, the aggregate Principal Balance of the Additional Receivables was $[_____]
and acknowledges that in consideration of such Additional Receivables, the Trust
has paid to the Seller an amount equal to $[_____] (the "Additional Receivables
Purchase Price").
The foregoing sale, transfer, assignment and conveyance shall
not constitute and is not intended to result in an assumption by the Trust of
any obligation of the Seller to the Obligors, the Dealers or any other Person
with respect the Additional Receivables set forth in Schedule A attached hereto
and the other Trust Property related thereto or any agreement, document or
instrument related thereto.
In the event that the foregoing sale, transfer, assignment
and conveyance is deemed to be a pledge, the Seller hereby grants to the Trust a
first priority security interest in all of the Seller's right to and interest in
the Additional Receivables and other property described in clauses (a) through
(k) above to secure a loan deemed to have been made by the Trust to the Seller
in an amount equal to the sum of the initial principal amount of the Notes plus
accrued interest thereon and the Initial Certificate Balance.
This Second Tier Subsequent Assignment shall be construed in
accordance with the laws of the State of New York and the obligations of the
Seller under this Second Tier Subsequent Assignment shall be determined in
accordance with such laws.
This Second Tier Subsequent Assignment is made pursuant to
and upon the representations, warranties and agreements on the part of the
Seller contained in the Sale and Servicing Agreement (including the Officer's
Certificate of the Seller accompanying this Second Tier Subsequent Assignment)
and is to be governed in all respects by the Sale and Servicing Agreement.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to them in the Sale and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Second
Tier Subsequent Assignment to be duly executed as of [_____].
FORD CREDIT AUTO RECEIVABLES TWO L.P.
By: _________________________________
Name:
Title:
[ATTACH SCHEDULE A OF ADDITIONAL RECEIVABLES PROVIDED TO THE INDENTURE TRUSTEE
ON THE SUBSEQUENT TRANSFER DATE, WHICH MAY BE ON COMPUTER TAPE, COMPACT DISK,
OR MICROFICHE]
EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
The undersigned officer of Ford Motor Credit Company, as
Administrator, (the "Administrator"), does hereby certify, pursuant to Section
2.1(d)(ix) of the Sale and Servicing Agreement, dated as of October 1, 2000,
among Ford Credit Auto Owner Trust 2000-F (the "Trust"), Ford Credit Auto
Receivables Two L.P., as the Seller, and Ford Motor Credit Company, as the
Servicer (as amended, supplemented or otherwise modified as of the date hereof,
the "Agreement") that all of the conditions to the transfer to the Trust of the
Additional Receivables listed on Schedule A to the Second Tier Subsequent
Assignment delivered herewith and the other property and rights related to such
Additional Receivable, as described in Section 2.1(d) of the Agreement, have
been satisfied on or prior to the related Subsequent Transfer Date.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this
certificate to be duly executed this [___] day of [_____].
By:_______________________
Name:
Title:
SCHEDULE A
[SCHEDULE OF INITIAL RECEIVABLES]
Delivered to Indenture Trustee at Closing
SCHEDULE B-1
Location of Receivable Files
at Ford Credit Branch Offices
Akron
175 Montrose Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Albany
0 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Albuquerque
0000 Xxxxxx Xxxx., X.X.
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Amarillo
0000 X. Xxxxxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxx, XX 00000
Anchorage
0000 X Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Appleton
00 Xxxx Xxxxx
Xxxxxxxx, XX
00000-0000
Athens
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Atlanta-North
North Park Town Center
Xxxx. 000, Xxxxx 000
0000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, XX 00000
Atlanta-South
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
Atlanta/CL
0000 Xxxxxxxxx Xxx. X
Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
Atlantic Region District Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Austin
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Baltimore
Xxxxxxxx Corporate Center One
0000 Xxxxxxxx Xxxx.
Suite 000
Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Baltimore Service Center
0000 Xxxxxxxx Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Beaumont
0000 Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Billings
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Birmingham
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx,XX 00000
Boston-North
Xxx Xxxx Xxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
Boston-South
Southboro Place
0xx Xxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Bristol
Landmark Center-
Suite A
000 Xxxxxxxx Xxxx
XX-0
Xxxxxxx, XX 00000
Buffalo
00 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Cape Girardeau
0000-X X. Xx. Xxxxxx Xx.
Xxxx Xxxxxxxxx, XX 00000
Charleston
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 XxXxxxx Xxxx
Xxxxx Xxxxxxxxxx, XX 00000
Charlotte
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Charlotte/CL
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Chattanooga
0 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Cheyenne
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Chicago-East
Xxx Xxxxx Xxxxx
Xxxxx X Xxxxxxx, XX 00000
Chicago-North
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Chicago-South
The Office of Waterfall Xxxx I
Suite 310
000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Chicago-West
0000 X. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Chicago/CL
000 XxXxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Cincinnati
0000 Xxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Cleveland
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000-0000
Colorado Springs
0000 Xxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Columbia
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Columbus
Metro V, Suite 470
000 Xxxxx Xxxxx X
Xxxxxx, XX 00000
Coral Springs
0000 X. Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Corpus Christi
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Xxxxxx
Xxxxxxxx Forum
Suite 600
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dallas/XX
Xxxxxxxx Forum
Suite 650
000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Davenport
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Decatur
000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Denver
0000 X. Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Des Moines
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
X. Xxx Xxxxxx, XX 00000
Detroit-North
0000 X. Xxxx Xxxx Xxxx
Xxxxx 000
Xxxx, XX 00000
Detroit-West
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Detroit/CL
Xxx Xxxxxxxx Xxxx.
Xxxxx 000X
Xxxxxxxx, XX 00000
Dothan
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
El Paso
0000 Xxxxxx Xxx Xxxxxx
Xxxxx 000
Xx Xxxx, XX 00000
Eugene
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Falls Church
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
XxXxxx, XX 00000
Fargo
0000 00xx Xxx. Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Fayetteville
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Findlay
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Ft. Xxxxx
00000 Xxxxxxx Xxxxx Xx.
Xxxx Xxxxx, XX 00000
Ft. Xxxxx
Xxxxxx Xxxx Xxxxx
Xxxxx 000
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Grand Junction
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxxxx, XX 00000
Grand Rapids
0000 Xxxxxxxxxx Xxxxx XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Greensboro
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Greenville Service Center
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Harlingen
0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Harrisburg
0000 Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Henderson
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Honolulu
Ala Moano Pacific Center
Xxxxx 000
0000 Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Houston-North
000 X. Xxx Xxxxxxx Xxxx. X.
Xxxxx 000
Xxxxxxx, XX 00000
Houston-West
000 Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Huntington
0000 X.X. Xxxxx 00 *
Xxx, XX 00000
Indianapolis
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Jackson
000 Xxxxx Xxxxxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
Jacksonville
Suite 310
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Jefferson City
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, XX 00000
Kansas City
0000 Xxxx 000xx Xxxxxx
Xxxx. #00, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Knoxville
0000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxxxxxx
Xxxxxx Xxxxxx Xxxx
Xxxxx 000
000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Lansing
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Las Vegas
000 X Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxx, XX 00000
Little Rock
0000 Xxxxxxxxxx Xx.
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Long Island
Xxx Xxxxxxx Xxxxx
0xx Xxxxx Xxxx X
Xxxxxxx, XX 00000
Louisville
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Lubbock
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Macon
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Manchester
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Memphis
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Miami
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Midland
00 Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Milwaukee
00000 X. Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Minneapolis
One Southwest Crossing
Suite 308
00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Mobile
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000-0000
Nashville
Highland Ridge
Xxxxx 000
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Nashville Service Center
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx XX 00000
National Recovery Center
0000 X. Xxxxxxxxx
Xxxx, XX 00000
New Haven
00 Xxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
New Jersey-Central
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
New Jersey-North
00 Xxxxx Xxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxxxxx, XX 00000
New Jersey-South
00000 XxxXxxxxxxx Xx.
Xxxxx 000 Xxxx
Xx. Xxxxxx, XX 00000
New Orleans
Lakeway III
0000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxx, XX 00000
Norfolk
Greenbrier Pointe
Suite 350
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Oklahoma City
Xxxxxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxxxxx Xxx Xx.
Xxxxxxxx Xxxx, XX 00000
Omaha
00000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Omaha Customer Service Center
00000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Nashville Customer
Service Center
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Orange
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orange/CL
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Orlando
0000 Xxxxxxxx Xxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Pasadena
000 X. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Pensacola
00 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xx 00000
Philadelphia
Bay Colony Executive Park
Suite 100
000 X. Xxxxxxxxxx Xx.
Xxxxx, XX 00000
Philadelphia/CL
000 X. Xxxxx Xx.
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Phoenix
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Pittsburgh
Xxxxxx Xxxxx 0
000 Xxxxxxx Xxxxx
0xx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Portland, ME
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Portland, OR
00000 X.X. Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Raleigh
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Richmond
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Roanoke
0000 Xxxxxx Xxxxxx Xxxx.
Xxxxx 0
Xxxxxxx, XX 00000
Sacramento
0000 Xxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Saginaw
0000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Salt Lake City
000 X. 0000 X.
Xxxxx 000
Xxxxxx, XX 00000
Santa Xxx Central Collections
000 Xxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
San Antonio
000 X.X. Xxxx 000
Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
San Bernardino
0000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
San Diego
0000 Xxxxxx Xxx Xxx X.
Xxxxx 0000
Xxx Xxxxx, XX 00000
San Francisco
0000 Xxxxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
San Francisco/CL
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx XX 00000
San Xxxx
0000 XxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Savannah
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Seattle
00000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Shreveport
Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
South Bay
000 X. Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
South Bend
0000 Xxxxxx Xxxxx
Xxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Spokane
000 Xxxxx Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000-0000
Springfield
0000 X. Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
St. Louis
0000 Xxxxx Xxxx Xxxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
St. Xxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Syracuse
0000 Xxxxxxxxxx Xxxx.
XxXxxx, XX 00000
Tampa
Lincoln Pointe, Suite 800
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Tampa Service Center
0000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Terre Haute
0000 X. Xxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Tulsa
0000 Xxxx 00xx Xx.
Xxxxx 000
Xxxxx, XX 00000
Tupelo
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Tyler
000 Xxxx XX Xxxx 000
Xxxxx 000
Xxxxx, XX 00000
Ventura
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Washington, D.C.
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Westchester
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Western Carolina
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Wichita
0000 Xxxx 00xx
Xxxxxxx, XX 00000
SCHEDULE C
Location of Receivable Files
at Third Party Custodians for Ford Credit
Security Archives
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
IKON Business Imaging Services
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
APPENDIX A
Definitions and Usage
SEE TAB 15
