SALE AND SERVICING AGREEMENT among FORD CREDIT AUTO OWNER TRUST 2006-B, as Issuer, FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor and FORD MOTOR CREDIT COMPANY, as Servicer Dated as of August 1, 2006
Β
Β
Β
among
Β
as
Issuer,
Β
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
Β
and
Β
FORD
MOTOR CREDIT COMPANY,
as
Servicer
Β
Dated
as
of August 1, 2006
Β
Β
Β
Β
TABLE
OF CONTENTS
Β |
Page
|
|
Β | Β | |
ARTICLE
IΒ USAGE AND DEFINITIONS
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1
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|
Β | Β | |
ARTICLE
IIΒ TRUST PROPERTY; REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR;
CUSTODIAN
|
1
|
|
Β | Β | |
Section
2.1
|
Sale
of Trust Property
|
1
|
Section
2.2
|
Savings
Clause
|
1
|
Section
2.3
|
Representations
and Warranties of the Depositor About the Receivables
|
2
|
Section
2.4
|
Repurchase
of Receivables Upon Breach of Representations or Warranties by
the
Depositor
|
2
|
Section
2.5
|
Custodian
|
3
|
Β | Β | Β |
ARTICLE
IIIΒ ADMINISTRATION AND SERVICING OF RECEIVABLES AND OTHER TRUST
PROPERTY
|
5
|
|
Β | Β | |
Section
3.1
|
Appointment;
Duties of the Servicer with Respect to the Servicing of the
Receivables
|
5
|
Section
3.2
|
Purchase
of Receivables Upon Breach by the Servicer
|
7
|
Section
3.3
|
Sales
of Charged off Receivables
|
8
|
Section
3.4
|
Duties
of the Servicer with Respect to the Servicing of the Transaction;
Annual
Reports and Notices
|
8
|
Section
3.5
|
Servicer's
Fees
|
10
|
Section
3.6
|
Servicer's
Expenses
|
10
|
Β | Β | Β |
ARTICLE
IV Β TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND THE
DEPOSITOR
|
10
|
|
Β | Β | |
Section
4.1
|
Accounts
|
10
|
Section
4.2
|
Investment
of Funds on Deposit in the Bank Accounts
|
12
|
Section
4.3
|
Remittances
|
14
|
Section
4.4
|
Calculations
and Distributions; Withdrawals from the Reserve Account
|
14
|
Β | Β | Β |
ARTICLE
VΒ THE DEPOSITOR
|
15
|
|
Β | Β | |
Section
5.1
|
Representations
and Warranties of the Depositor
|
15
|
Section
5.2
|
Liability
of the Depositor
|
16
|
Section
5.3
|
Merger
or Consolidation of, or Assumption of the Obligations of, the
Depositor
|
17
|
Section
5.4
|
Depositor
May Own Notes
|
17
|
Section
5.5
|
Depositor's
Designation of the Rating Agencies
|
17
|
Β
i
ARTICLE
VIΒ THE SERVICER
|
17
|
|
Β | Β | |
Section
6.1
|
Representations
and Warranties of the Servicer
|
17
|
Section
6.2
|
Liability
of the Servicer
|
19
|
Section
6.3
|
Indemnities
of the Servicer
|
19
|
Section
6.4
|
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer;
Assignment to Affiliate
|
20
|
Section
6.5
|
Delegation
of Duties
|
21
|
Section
6.6
|
Ford
Credit Not to Resign as Servicer
|
21
|
Section
6.7
|
Servicer
May Own Notes
|
21
|
Β | Β | Β |
ARTICLE
VIIΒ SERVICING TERMINATION
|
21
|
|
Β | Β | |
Section
7.1
|
Events
of Servicing Termination
|
21
|
Section
7.2
|
Appointment
of Successor Servicer
|
23
|
Section
7.3
|
Notification
to Noteholders and the Holder of the Residual Interest
|
24
|
Section
7.4
|
Waiver
of Events of Servicing Termination
|
24
|
Β | Β | Β |
ARTICLE
VIIIΒ TERMINATION
|
25
|
|
Β | Β | |
Section
8.1
|
Clean-Up
Call
|
25
|
Β | Β | Β |
ARTICLE
IXΒ MISCELLANEOUS PROVISIONS
|
25
|
|
Β | Β | |
Section
9.1
|
Amendment
|
25
|
Section
9.2
|
Protection
of Right, Title and Interest to the Trust Property
|
27
|
Section
9.3
|
Notices
|
28
|
Section
9.4
|
Assignment
by the Depositor or the Servicer
|
28
|
Section
9.5
|
Third-Party
Beneficiaries
|
29
|
Section
9.6
|
GOVERNING
LAW
|
29
|
Section
9.7
|
Submission
to Jurisdiction
|
29
|
Section
9.8
|
WAIVER
OF JURY TRIAL
|
29
|
Section
9.9
|
Severability
|
29
|
Section
9.10
|
Counterparts
|
29
|
Section
9.11
|
Headings
|
29
|
Section
9.12
|
No
Waiver; Cumulative Remedies
|
29
|
Section
9.13
|
Agent
for Service
|
30
|
Section
9.14
|
No
Petition
|
30
|
Section
9.15
|
Limitation
of Liability of Owner Trustee and Indenture Trustee
|
30
|
Schedule
A
|
Schedule
of Receivables
|
SA-1
|
Schedule
B
|
Notice
Addresses
|
SB-1
|
Appendix
A
|
Usage
and Definitions
|
AA-1
|
Exhibit
A
|
Form
of Monthly Investor Report
|
EA-1
|
Β
ii
SALE
AND
SERVICING AGREEMENT, dated as of August 1, 2006 (this "Agreement"),
among
FORD CREDIT AUTO OWNER TRUST 2006-B, a Delaware statutory trust, as Issuer,
FORD
CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited liability company, as
Depositor, and FORD MOTOR CREDIT COMPANY, a Delaware corporation, as
Servicer.
Β
Β
BACKGROUND
Β
The
Depositor has purchased a pool of retail installment sale contracts secured
by
new and used cars and light trucks from Ford Credit.
Β
The
Depositor wishes to sell and the Issuer wishes to purchase from the Depositor
such contracts and related property on the terms and conditions in this
Agreement.
Β
The
Issuer wishes to appoint the Servicer to service the contracts and the Servicer
is willing to service the contracts for the Issuer.
Β
ARTICLE
I
USAGE
AND
DEFINITIONS
Β
Capitalized
terms used but not otherwise defined in this Agreement are defined in Appendix
A. Appendix A also contains rules as to usage applicable to this Agreement.
Appendix A is incorporated by reference into this Agreement.
Β
ARTICLE
II
TRUST
PROPERTY; REPRESENTATIONS AND WARRANTIES
OF
THE
DEPOSITOR; CUSTODIAN
Β
Section
2.1Β Β Β Β Sale
of Trust Property.
In
consideration of the Issuer's delivery to the Depositor of Notes with an
aggregate Note Balance of $2,969,337,000 and the rights to distributions
under
Section 8.2 of the Indenture, the Depositor irrevocably sells to the Issuer,
without recourse (subject to the obligations of the Depositor under this
Agreement), all right, title and interest of the Depositor, whether now owned
or
hereafter acquired, in and to the Receivables and the other Trust Property.
The
sale made under this Agreement does not constitute and is not intended to
result
in an assumption by the Issuer of any obligation of the Depositor or Ford
Credit
to the Obligors, the Dealers or any other Person in connection with the
Receivables and the other Trust Property.
Β
Section
2.2Β Β Β Β Savings
Clause.
It is
the intention of the Depositor and the Issuer that (i) the sale pursuant
to
Section 2.1 constitutes an absolute sale of the Trust Property, conveying
good
title free and clear of any Lien other than Permitted Liens, from the Depositor
to the Issuer and (ii) the Trust Property not be a part of the Depositorβs
estate in the event of a bankruptcy or insolvency of the Depositor. If,
notwithstanding the intention of the Depositor and the Issuer, such transfer
is
deemed to be a pledge in connection with a financing or is otherwise deemed
not
to be a sale, the Depositor grants, and the parties intend that the Depositor
grant, to the Issuer a first priority perfected security interest in all
of the
Depositorβs right, title and interest in the Trust Property to secure a loan in
an amount equal to all amounts payable by the Depositor under this Agreement,
all amounts payable as principal and interest on the Notes and all amounts
payable as servicing fees under this Agreement and all fees and expenses
of the
Indenture Trustee or the Owner Trustee, and in such event, this Agreement
will
constitute a security agreement under applicable law and the Issuer will
have
all of the rights and remedies of a secured party and creditor under the
UCC.
Β
Section
2.3Β Β Β Β Representations
and Warranties of the Depositor About the Receivables
Β
(a)Β Β Β Β Representations
and Warranties from the Purchase Agreement.
Ford
Credit made the representations and warranties set forth in Section 3.2 of
the
Purchase Agreement to the Depositor, and has consented to the transfer by
the
Depositor to the Issuer of the Depositorβs rights with respect to such
representations and warranties on which the Issuer is relying in acquiring
the
Receivables. Pursuant to Section 2.1, the Depositor has transferred to the
Issuer all of the Depositorβs rights under the Purchase Agreement, including the
right to require Ford Credit to repurchase Receivables in accordance with
the
Purchase Agreement if there is a breach of Ford Credit's representations
and
warranties. In addition, the Depositor represents and warrants as of the
Closing
Date, which representations and warranties the Issuer has relied on in
purchasing the Receivables and will survive the sale of the Receivables to
the
Issuer and the pledge of the Receivables to the Indenture Trustee pursuant
to
the Indenture, that the representations and warranties set forth in Section
3.2
of the Purchase Agreement are true and correct in all material respects.
Β
(b)Β Β Β Β Representations
and Warranties of the Depositor.
The
Depositor represents and warrants as of the Closing Date, which representations
and warranties the Issuer has relied on in purchasing the Receivables and
will
survive the sale of the Receivables to the Issuer and the pledge of the
Receivables to the Indenture Trustee pursuant to the Indenture,
that:
Β
(i)Β Β Β Β the
Depositor has not previously sold, assigned, pledged or granted a security
interest in the Receivables or other Trust Property to any Person other than
the
Issuer,
Β
(ii)Β Β Β immediately
before the sale under this Agreement, the Depositor had good and marketable
title to the Receivables and other Trust Property free and clear of any Lien
other than Permitted Liens, and
Β
(iii)Β Β Β Β Β Β Β Β Β
immediately
upon the sale under this Agreement, the Issuer will have good and marketable
title to the Receivables and other Trust Property, free and clear of any
Lien
other than Permitted Liens.
Β
Section
2.4Β Β Β Β Repurchase
of Receivables Upon Breach of Representations or Warranties by the
Depositor
Β
(a)Β Β Β Β If
a
Responsible Person of the Depositor has actual knowledge, or receives notice
from the Issuer, the Owner Trustee or the Indenture Trustee, of a breach
of the
representations or warranties made by the Depositor pursuant to Section 2.3
that
materially and adversely affects any Receivable and such breach has not been
cured in all material respects by the last day of the second full Collection
Period after the Responsible Person obtains actual knowledge or is notified
of
such breach, the Depositor will repurchase such Receivable as of such last
day
(or, at the Depositor's option, the last day of the first full Collection
Period
after the Responsible Person obtains actual knowledge or is notified of such
breach) at a price equal to the Purchase Amount. The Depositor will deposit
or
cause to be deposited into the Collection Account the Purchase Amount for
any
Receivable that it is repurchasing on the Business Day immediately preceding
the
Payment Date (or, with Rating Agency Confirmation, on such Payment Date)
related
to the Collection Period as of which such repurchase occurs.
Β
2
(b)Β Β Β Β The
sole
remedy for a breach of the representations and warranties of the Depositor
contained in Section 2.3 and Section 5.1 is (i) to require the Depositor
to
repurchase such materially and adversely affected Receivable or (ii) to require
the Depositor or the Indenture Trustee to enforce the obligation of Ford
Credit
to repurchase such materially and adversely affected Receivable pursuant
to
Section 3.3(a) of the Purchase Agreement. None of the Servicer, the Owner
Trustee, the Indenture Trustee, the Depositor or the Administrator will have
any
duty to conduct an investigation as to the occurrence of any condition
requir-ing the repurchase of any Receivable pursuant to Section
2.4(a).
Β
(c)Β Β Β Β Upon
the
Depositor's payment of the Purchase Amount
into the
Collection Account, the Issuer will, without further action, be deemed to
have
sold and assigned to the Depositor all of the Issuer's right, title and interest
in and to the Receivable repurchased by the Depositor pursuant to Section
2.4(a)
and security and documents relating to such Receivable. Such sale will not
require any action by the Issuer and will be without recourse, representation
or
warranty by the Issuer except the representation that the Issuer owns the
Receivable free and clear of any Liens other than Permitted Liens. Upon such
sale, the Servicer will xxxx its computer records to indicate that such
receivable is no longer a Receivable and take any action necessary or
appropriate to evidence the sale of such receivable, free from any Lien of
the
Issuer or the Indenture Trustee.
Β
Section
2.5Β Β Β Β Custodian.
Β
(a)Β Β Β Β Appointment
of Custodian.
To
reduce administrative costs and facilitate the servicing of the Receivables
by
the Servicer, the Issuer appoints Ford Credit, in its capacity as the Servicer,
to act as the custodian of the Receivables for the Issuer and the Indenture
Trustee. Ford Credit accepts such appointment and agrees to perform the
custodial duties set forth in this Section 2.5. Ford Credit in its capacity
as
custodian under this Agreement is referred to as the "Custodian."
Β
(b)Β Β Β Β Custody
of Receivables Files.
The
Custodian will hold and maintain in safekeeping the following documents and
instruments for each Receivable (the "Receivables
Files")
for
the benefit of the Issuer and the Indenture Trustee:
Β
(i)Β Β Β Β the
original Receivable;
Β
(ii)Β Β Β Β the
credit application executed by the Obligor;
Β
(iii)Β Β Β the
original certificate of title or such other documents evidencing the security
interest of Ford Credit in the Financed Vehicle; and
Β
3
(iv)Β Β Β all
other
documents, notices and correspondence that the Servicer generates relating
to
the Receivable, the Obligor or the Financed Vehicle.
Β
Unless
otherwise indicated above, any document or instrument in the Receivables
Files
may be a photocopy or in electronic format. The Receivables Files are
constructively delivered to the Indenture Trustee, as pledgee of the Issuer
pursuant to the Indenture, and the Custodian confirms to the Issuer and the
Indenture Trustee that it has received the Receivables Files. No initial
review
or any periodic review of the Receivables Files by the Issuer, the Owner
Trustee
or the Indenture Trustee is required.
Β
(c)Β Β Β Β Maintenance
and Safekeeping of the Receivables Files.
The
Custodian will accurately maintain and keep current the Receivables Files,
including any computer systems on which the Receivables Files are electronically
stored, all in a manner that will permit the Servicer and the Issuer to comply
with this Agreement and the Indenture Trustee to comply with the Indenture.
The
Custodian will act with reasonable care and in accordance with the Credit
and
Collection Policy in performing its duties as custodian. The Custodian will
promptly take appropriate action to remedy any material failure on its part
to
hold the Receivables Files and maintain its computer systems as provided
in this
Agreement and will report to the Issuer and the Indenture Trustee any such
material failure that it is unable to remedy within a reasonable time. The
Custodian may destroy any document (other than the original Receivable or
certificate of title) in any Receivable File and store such document in an
electronic format in accordance with the Credit and Collection
Policy.
Β
(d)Β Β Β Β Location
of Receivables Files.
The
Custodian will maintain the Receivables Files (or access to any Receivables
Files stored in an electronic format) at one of its offices or the offices
of
one of its custodians in the United States. Upon request, the Custodian will
provide a list of locations of the Receivables Files to the Depositor, the
Issuer and the Indenture Trustee, or their representatives, attorneys or
auditors.
Β
(e)Β Β Β Β Access
to Receivables Files.
The
Custodian will provide the Depositor, the Issuer and the Indenture Trustee
with
access to the Receivables Files and the related computer systems at offices
designated by the Custodian without charge, but only upon reasonable request,
during normal business hours. Such access will be subject to the Custodian's
security and confidentiality procedures and the terms and conditions of a
confidentiality agreement satisfactory to the Custodian. Nothing in this
Section
2.5(e) will affect the obligation of the Indenture Trustee or the Custodian
to
observe any applicable privacy and confidentiality law prohibiting disclosures
of information regarding the Obligors and the failure of the Custodian to
provide access as a result of such obligations will not constitute a breach
of
this Section 2.5(e).
Β
(f)Β Β Β Β Effective
Period and Termination of Custodian.
Ford
Credit's appointment as custodian is effective as of the Cutoff Date and
will
continue until terminated pursuant to this Section 2.5(f). If Ford Credit
resigns as Servicer in accordance with Section 6.6 or the Servicer is terminated
pursuant to Section 7.1, the appointment of Ford Credit as custodian under
this
Agreement may be terminated in the same manner as the Servicer may be terminated
under Section 7.1. As soon as practicable after any termination of its
appointment as custodian, the Custodian will deliver to the Indenture Trustee
or
its agent or designee the Receivables Files maintained by the Custodian at
such
place as the Indenture Trustee may reasonably designate. All reasonable costs
and expenses incurred in connection with transferring the Receivables Files
to
the successor custodian and amending this Agreement to reflect such successor
as
custodian will be paid by the predecessor custodian upon presentation of
documentation of such costs and expenses.
Β
4
(g)Β Β Β Β Servicer's
Access to Receivables Files; Indemnity.
Notwithstanding any termination of the Custodian pursuant to Section 2.5(f),
the
Servicer will be entitled to access the Receivables Files and, upon request
from
the Servicer, the successor custodian will promptly release any document
in the
Receivables Files to the Servicer. The Issuer will indemnify, defend and
hold
harmless the Servicer against any and all costs, expenses, losses, claims
and
liabilities resulting from the failure by a successor custodian to release
Receivables Files to the Servicer in a timely manner.
Β
ARTICLE
III
ADMINISTRATION
AND SERVICING OF RECEIVABLES AND OTHER TRUST PROPERTY
Β
Section
3.1Β Β Β Β Appointment;
Duties of the Servicer with Respect to the Servicing of the
Receivables.
Β
(a)Β Β Β Β Appointment
and General Duties.
The
Issuer appoints Ford Credit to act as the Servicer of the Receivables for
the
Issuer and the Indenture Trustee. The Servicer will manage, service, administer
and collect 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 and in accordance
with the Credit and Collection Policy. The Servicer's duties will
include:
Β
(i)Β Β Β Β collecting
and applying all payments made on the Receivables,
Β
(ii)Β Β Β Β investigating
delinquencies,
Β
(iii)Β Β Β sending
invoices and responding to inquiries of Obligors,
Β
(iv)Β Β Β processing
requests for extensions and modifications,
Β
(v)Β Β Β Β administering
payoffs, defaults and delinquencies,
Β
(vi)Β Β Β reporting
tax information to Obligors,
Β
(vii)Β Β Β Β Β Β Β Β Β
repossessing
and then selling the Financed Vehicle securing any Receivable that the Servicer
determines is unlikely to eventually be paid in full,
Β
(viii)Β Β Β Β Β Β Β Β
maintaining accurate and complete accounts and computer systems pertaining to
servicing the Receivables,
Β
5
(ix)Β Β Β Β providing
to the Custodian copies, or access to, any documents, instruments, notices
and
correspondence that modify information contained in the Receivables Files,
and
Β
(x)Β Β Β Β furnishing
Monthly Investor Reports and any other periodic reports required by the
transaction documents.
Β
In
performing its duties as servicer of the Receivables, the Servicer will comply
with all material requirements of federal and State laws and
regulations.
Β
(b)Β Β Β Β Collection
of Receivable Payments; Extensions, Rebates and Adjustments on
Receivables.
The
Servicer will make reasonable efforts to collect all payments due under the
terms of the Receivables. The Servicer may waive any late payment charge
or any
other fees that may be collected in the ordinary course of servicing a
Receivable and may grant extensions, refunds, rebates or adjustments with
respect to any Receivable or amend any Receivable, in each case in accordance
with the Credit and Collection Policy, except that if the Servicer (i) grants
payment extensions on a Receivable that extend the final payment date of
the
Receivable more than six months past the last original scheduled payment
date of
any Receivable in the securitized pool, (ii) modifies the Amount Financed
under
a Receivable, (iii) modifies the APR of a Receivable, or (iv) increases the
number of originally scheduled due dates of the Receivable, it will purchase
the
Receivable in the manner provided in Section 3.2, unless it is required to
take
such action under law or pursuant to a court order.
Β
(c)Β Β Β Β Maintenance
of Security Interests in Financed Vehicles.
The
Servicer will take all necessary steps to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle. The
Issuer
authorizes the Servicer to take all actions necessary to continue perfection
of
such security interest on behalf of the Issuer and the Indenture Trustee
if a
Financed Vehicle is relocated to another State or for any other reason. Unless
required by law or court order, the Servicer will not release any Financed
Vehicle from the security interest granted by the related Receivable, except
(i)
upon payment in full of the Receivable, (ii) in order to receive proceeds
from
insurance covering such Financed Vehicle, (iii) upon repossession, (iv) upon
discounted settlement of the Receivable, or (v) upon abandonment, in each
case
in accordance with the Credit and Collection Policy.
Β
(d)Β Β Β Β No
Impairment.
The
Servicer will not impair in any material respect the rights of the Issuer
or the
Indenture Trustee in the Receivables except in accordance with the Credit
and
Collection Policy and as otherwise permitted by this Agreement.
Β
(e)Β Β Β Β Other
Action.
Β
(i)Β Β Β Β Effective
as of the date of this Agreement, all Receivables are assigned to the Servicer
solely for the purpose of fulfilling the Servicer's duties under this Agreement,
including commencement of or participation in legal proceedings to enforce
a
Receivable or otherwise related to a Receivable. If in any enforcement suit
or
legal proceeding it is held that the Servicer may not enforce a Receivable
on
the ground that it is not a real party in interest or a holder entitled to
enforce the Receivable, the Owner Trustee, on behalf of the Issuer, will,
at the
Servicer's expense and direction, assign the Receivable to the Servicer solely
for such purpose or take steps to enforce the Receivable, including bringing
suit in the names of the Indenture Trustee, the Noteholders, the Issuer or
any
of them. On request of the Servicer, the Owner Trustee will furnish the Servicer
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
Β
6
(ii)Β Β Β Β The
Servicer
is authorized to execute and deliver, on behalf of itself, the Issuer, the
Owner
Trustee, the Indenture Trustee, the Noteholders, or any of them, any instruments
of satisfaction, cancellation, partial or full release or discharge, and
any
other comparable instruments, with respect to the Receivables and the Financed
Vehicles.
Β
Section
3.2Β Β Β Β Purchase
of Receivables Upon Breach by the Servicer.
Β
(a)
Β Β (i)
Β Β If
a Responsible Person of the
Servicer has actual knowledge, or receives notice from the Depositor, the
Issuer, the Owner Trustee or the Indenture Trustee, of a breach of the covenants
set forth in Sections 3.1 (c) or (d) and such breach is not cured in all
material respects by the end of the second full Collection Period after the
Responsible Person obtained actual knowledge or was notified of such breach,
the
Servicer will purchase each Receivable materially and adversely affected
by such
breach as of such last day (or, at the Servicer's option, the end of the
first
full Collection Period after the Responsible Person obtained actual knowledge
or
was notified of such breach).
Β
(ii)Β Β Upon
the
occurrence of any of the conditions requiring purchase of a Receivable set
forth
in Section 3.1(b), the Servicer will repurchase the Receivable affected by
such
occurrence as of the last day of the Collection Period in which such
modification is made.
Β
(iii)Β Β If
the
Servicer, in its sole discretion, determines that as a result of a computer
systems error or computer systems limitation or for any other reason the
Servicer is unable to service any Receivable in accordance with the Credit
and
Collection Policy and the terms of this Agreement, the Servicer may purchase
such Receivable as of the last day of the Collection Period in which such
determination is made.
Β
(iv)Β Β The
purchase price for each Receivable purchased by the Servicer pursuant to
this
Section 3.2(a) will be the Purchase Amount for such Receivable as of such
last
day. The Servicer will deposit such Purchase Amount into the Collection Account
on the Business Day preceding the Payment Date (or, with Rating Agency
Confirmation, on the Payment Date) related to the Collection Period during
which
such purchase occurs.
Β
(b)Β Β Β Β The
sole
remedy (except as provided in Section 6.3) of the Issuer, the Indenture Trustee,
the Owner Trustee and the Secured Parties with respect to a breach of the
covenants made by the Servicer in Section 3.1(c) or (d) or the occurrence
of a
condition specified in Section 3.1(b) is to require the Servicer to purchase
the
Receivable as set forth in 3.2(a). None of the Owner Trustee, the Indenture
Trustee, the Servicer, the Depositor or the Administrator will have any duty
to
conduct an investigation as to the occurrence of any condition requiring
the
purchase of any Receivable pursuant to Section 3.2(a).
Β
7
(c)Β Β Β Β Upon
Servicer's payment of the Purchase Amount, the Issuer will be deemed to have
sold and assigned all of the Issuer's right, title and interest in and to
any
Receivable purchased by the Servicer pursuant to Section 3.2(a), and all
security and documents relating to such Receivable. Such sale will not require
any action by the Issuer and will be without recourse, representation or
warranty by the Issuer except the representation that the Issuer owns the
Receivable free and clear of any Liens other than Permitted Liens. Upon
such
sale, the Servicer will xxxx its computer records indicating that any receivable
purchased pursuant to Section 3.2(a) is no longer a Receivable and take any
action necessary or appropriate to evidence the transfer of ownership of
the
Purchased Receivable free from any Lien of the Issuer or the Indenture
Trustee.
Β
Section
3.3Β Β Β Β Sales
of Charged off Receivables.
The
Servicer, in its sole discretion, may sell a Receivable that has been charged
off in accordance with the Credit and Collection Policy. Proceeds of any
such
sale allocable to the Receivable will constitute Recoveries. The sole right
of
the Issuer and the Indenture Trustee with respect to any Receivables sold
pursuant to this Section 3.3 will be to receive the Recoveries. Upon such
sale,
the Servicer will xxxx its computer records indicating that any such receivable
sold is no longer a Receivable and take any action necessary or appropriate
to
evidence the sale of the receivable free from any Lien of the Issuer or the
Indenture Trustee.
Β
Section
3.4Β Β Β Β Duties
of the Servicer with Respect to the Servicing of the Transaction; Annual
Reports
and Notices.
Β
(a)Β Β Β Β Monthly
Investor Report.
On or
about the 10th day of each calendar month, the Servicer will deliver to the
Owner Trustee, the Note Paying Agent, the Indenture Trustee, the Swap
Counterparty, the Depositor and the Rating Agencies, a servicing report
substantially in the form of Exhibit A (the "Monthly
Investor Report")
with
respect to the preceding Collection Period and the related Payment Date.
A
Responsible Person of the Servicer will certify the accuracy of the information
in each Monthly Investor Report.
Β
(b)Β Β Β Β Annual
Statement as to Compliance.
To the
extent required by Regulation AB, the Servicer will deliver to the Depositor,
the Owner Trustee, the Indenture Trustee and each Rating Agency within 90
days
after the end of each calendar year, an Officer's Certificate, dated as of
December 31 of the preceding calendar year, signed by a Responsible Person
of
the Servicer to the effect that (i) a review of the Servicer's activities
during
the preceding calendar year (or, in the case of the first certificate, the
portion of the preceding calendar year since the Closing Date) and of its
performance under this Agreement has been made under such Responsible Person's
supervision and (ii) toΒ such
Responsible Person's knowledge, based on such review, the Servicer has fulfilled
in all material respects all of its obligations under this Agreement throughout
such calendar year (or applicable portion of such calendar year), or, if
there
has been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such Responsible Person
and
the nature and status of such failure. If the Issuer is not required to file
periodic reports under the Exchange Act or otherwise required by law to file
an
Officer's Certificate of the Servicer as to compliance, such Officer's
Certificate may be delivered on or before April 30 of each calendar year.
A copy
of the Officer's Certificate referred to in this Section 3.4(b) may be obtained
by any Noteholder or Person certifying it is a Note Owner by a request in
writing to the Indenture Trustee at its Corporate Trust Office.
Β
8
(c)Β Β Β Β Notice
of Event of Servicing Termination.
The
Servicer will notify the Depositor, the Owner Trustee, the Indenture Trustee
and
each Rating Agency of any event that with the giving of notice or lapse of
time,
or both, would become an Event of Servicing Termination under Section 7.1,
no
later than 5 Business Days after a Responsible Person of the Servicer obtains
actual knowledge of such event.
Β
(d)Β Β Β Β Compliance
with Obligations under Xxxxxxxx-Xxxxx Act.
If
directed by the Administrator, the Servicer will prepare, execute and deliver
all certificates or other documents required to be delivered by the Issuer
pursuant to the Xxxxxxxx-Xxxxx Act of 2002.
Β
(e)Β Β Β Β Report
on Assessment of Compliance with Servicing Criteria and
Attestation.
The
Servicer will:
Β
(i)Β Β Β Β Β deliver
to the Depositor, the Owner Trustee, the Indenture Trustee and each Rating
Agency, a report, dated as of December 31 of the preceding calendar year,
on its
assessment of compliance with the minimum servicing criteria during the
preceding calendar year,
including disclosure of any identified material instance of non-compliance
identified by the Servicer, as specified by Rule 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB under the Securities Act.
Β
(ii)Β Β Β Β Β cause
a
firm of registered public accountants that is qualified and independent within
the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver
to the Depositor, Owner Trustee and the Indenture Trustee an attestation
report
that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange
Act and Item 1122 of Regulation AB, as applicable, on the assessment of
compliance with servicing criteria with respect to the prior calendar year.
Such
attestation report will be addressed to the board of directors of the Servicer
and to the Issuer, the Owner Trustee, the Depositor and the Indenture Trustee.
Such attestation will be in accordance with Rules 1-02(a)(3) and 2-02(g)
of
Regulation S-X under the Securities Act and the Exchange Act. The firm may
render other services to the Servicer, the Depositor or Ford Credit, but
the
firm must indicate in each attestation report that it is qualified and
independent within the meaning of Rule 2-01 of Regulation S-X under the
Securities Act.
Β
(iii)Β Β Β Β The
reports referred to in this Section 3.4(e) will be delivered within 90 days
after the end of each calendar year unless the Issuer is not required to
file
periodic reports under the Exchange Act or any other law, in which case the
reports may be delivered on or before April 30 of each calendar year, beginning
April 30, 2007. A copy of the reports referred to in this Section 3.4(e)
may be
obtained by any Noteholder or Person certifying it is a Note Owner by a request
in writing to the Indenture Trustee at its Corporate Trust Office.
Β
9
Β
(f)Β Β Β Β Delivery
of Tax Related Information.
To the
extent required by law, the Servicer will deliver to the Owner Trustee for
distribution to the holder of the Residual Interest information for the
preparation of the holder of the Residual Interest's federal and State income
tax returns.
Β
(g)Β Β Β Β Termination
of Reporting Obligation.
The
Servicer's obligation to deliver or cause the delivery of reports under this
Section 3.4, other than tax reports under 3.4(f) will terminate upon the
payment
in full of the Notes, including by redemption in whole as contemplated by
Section 8.1.
Β
Section
3.5Β Β Β Β Servicer's
Fees.
On each
Payment Date, the Issuer will pay the Servicing Fee to the Servicer in
accordance with Section 8.2 of the Indenture. In addition, the Servicer will
be
entitled to retain from Collections all Supplemental Servicing Fees and receive
investment earnings (net of investment losses and expenses) on funds deposited
into the Bank Accounts during each Collection Period.
Β
Section
3.6Β Β Β Β Servicer's
Expenses.
Except
as otherwise set forth in this Agreement, the Servicer will pay all expenses
incurred by it in connection with its activities under this Agreement, including
fees and disbursements of independent accountants, taxes imposed on the Servicer
and expenses incurred in connection with distributions and reports. The Servicer
may charge Obligors, and be reimbursed, for collection, repossession,
transportation and remarketing expenses in accordance with the Credit and
Collection Policy.
Β
ARTICLE
IV
TRUST
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS
TO NOTEHOLDERS AND THE DEPOSITOR
Β
Section
4.1Β Β Β Β Accounts
Β
(a)Β Β Β Β Collection
Account.
The
Servicer will, before the Closing Date, establish and maintain a segregated
trust account in the name "The Bank of New York as Indenture Trustee, as
secured
party for Ford Credit Auto Owner Trust 2006-B" at a Qualified Institution
or
Qualified Trust Institution (initially the corporate trust department of
The
Bank of New York), that is designated as the "Collection
Account".
The
Collection Account will initially be account number 879431. The Collection
Account will be under the sole dominion and control of the Indenture Trustee,
except that the Servicer may make deposits to and direct the Indenture Trustee
to make withdrawals from the Collection Account in accordance with this
Agreement. The Servicer may direct the Indenture Trustee to withdraw from
the
Collection Account and pay to the Indenture Trustee or the Servicer, as
applicable, amounts that do not constitute Available Funds for any Collection
Period or that were deposited into the Collection Account in error.
Β
(b)Β Β Β Β Principal
Payment Account.
The
Servicer will, before the Closing Date, establish and maintain a segregated
subaccount within the Collection Account or a separate trust account that
is
designated as the "Principal
Payment Account".
The
Principal Payment Account will initially be subaccount or account number
879433.
The Principal Payment Account is established and maintained solely for
administrative purposes.
Β
10
(c)Β Β Β Β Reserve
Account.
Β
(i)Β Β Β Β Β The
Depositor or the Servicer acting on behalf of the Depositor will, before
the
Closing Date, establish and maintain a segregated trust account in the name
"The
Bank of New York as Indenture Trustee, as secured party for Ford Credit Auto
Owner Trust 2006-B" at a Qualified Institution or Qualified Trust Institution
(initially the corporate trust department of The Bank of New York), that
is
designated as the "Reserve
Account".
The
Reserve Account will initially be account number 879432. On the Closing Date,
the Depositor will deposit or cause to be deposited the Specified Reserve
Balance into the Reserve Account from the net proceeds of the sale of the
Notes.
The Reserve Account will be under the sole dominion and control of the Indenture
Trustee, except that the Servicer may make deposits to and direct the Indenture
Trustee to make withdrawals from the Reserve Account in accordance with this
Agreement.
Β
(ii)Β Β Β Β Β The
Indenture Trustee will transfer all funds on deposit in the Reserve Account
to
the Depositor, or if the Depositor has notified the Indenture Trustee of
the
establishment of the Trust Distribution Account, to the Trust Distribution
Account, on the earlier of: (i) the first Payment Date on or after which
the
Servicer has deposited into the Collection Account the amount specified in
Section 8.1(a) in connection with its exercising its option to acquire the
Trust
Property pursuant to Section 8.1 and (ii) the date on which the Note Balance
of
the Notes and of all other amounts owing or to be distributed to the Secured
Parties under the Indenture and this Agreement are paid in full.
Β
(d)Β Β Β Β Benefit
of Accounts; Deposits and Withdrawals.
The
Collection Account and the Reserve Account and all amounts, securities,
investments, financial assets and other property deposited in or credited
to
them will be held by the Indenture Trustee as secured party for the benefit
of
the Secured Parties and, after payment in full of the Notes, as agent of
the
Issuer and as part of the Trust Property. All deposits to and withdrawals
from
the Collection Account, Principal Payment Account and the Reserve Account
will
be made in accordance with the Basic Documents.
Β
(e)Β Β Β Β Maintenance
of Accounts.
If an
institution maintaining one of the Bank Accounts ceases to be a Qualified
Institution or Qualified Trust Institution, the Servicer, with respect to
the
Collection Account and the Principal Payment Account, or the Depositor, with
respect to the Reserve Account, will, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, within 30 calendar days, move such Bank
Account to a Qualified Institution or Qualified Trust Institution.
Β
(f)Β Β Β Β Compliance.
Each
Bank Account will be established and maintained pursuant to the Control
Agreement. The Servicer, with respect to the Collection Account and the
Principal Payment Account, and the Depositor, with respect to the Reserve
Account, will ensure that the Control Agreement establishing each Bank Account
requires the Qualified Institution or Qualified Trust Institution maintaining
each such account to comply with entitlement orders (as defined in Article
8 of
the UCC) originated by the Indenture Trustee without further consent of the
Issuer for so long as the Notes are Outstanding and to act as a securities
intermediary in accordance with the UCC.
Β
11
(g)Β Β Β Β Trust
Distribution Account.
The
Depositor may establish and maintain a segregated trust account in the name
"U.S. Bank Trust National Association as Owner Trustee," that is designated
as
the "Trust
Distribution Account"
and
will promptly notify the Owner Trustee and the Indenture Trustee after the
establishment of the Trust Distribution Account. The Trust Distribution Account
will be under the sole dominion and control of the Owner Trustee, except
that
the Indenture Trustee may make deposits to the Trust Distribution Account
in
accordance with the Basic Documents. All deposits to and withdrawals from
the
Trust Distribution Account will be made in accordance with the Indenture
and the
Trust Agreement.
Β
Section
4.2Β Β Β Β Investment
of Funds on Deposit in the Bank Accounts.
Β
(a)Β Β Β Β For
so long
as no Default or Event of Default has occurred and is continuing, Collections
on
deposit in the Collection Account (but not amounts in the Principal Payment
Account) and funds on deposit in the Reserve Account will, to the extent
permitted by law, be invested in Permitted Investments by the Qualified
Institution or Qualified Trust Institution maintaining such accounts as directed
by the Servicer with respect to the Collection Account, and as directed by
the
Depositor or by any Person appointed by the Depositor with respect to the
Reserve Account, in each case without requiring any action by the Indenture
Trustee. The Servicer and the Depositor, as applicable, may direct the Indenture
Trustee to consent, vote, waive or take any other action, or not to take
any
such action, with respect to any matters available to the holder of such
Permitted Investments.
Β
(b)Β Β Β Β If
(i) the
Servicer, with respect to the Collection Account and the Principal Payment
Account, or the Depositor, with respect to the Reserve Account, fails to
give
investment directions for any funds on deposit in a Bank Account to the
Qualified Institution or Qualified Trust Institution maintaining such Bank
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 a Payment Date or (ii) a Default or Event of Default
has
occurred and is continuing with respect to the Notes and the Indenture Trustee
has provided notice to the Qualified Institution or Qualified Trust Institution
maintaining such Bank Account, the Qualified Institution or Qualified Trust
Institution maintaining such Bank Account will, pursuant to the Control
Agreement, to the fullest extent practicable, invest and reinvest funds on
deposit in such Bank Account in one or more investments described in clause
(b)
of the definition of Permitted Investments.
Β
(c)Β Β Β Β Permitted
Investments of Collections on deposit in the Collection Account (or any
reinvestments of such Permitted Investments) will mature no later than the
Business Day preceding the Payment Date on which such Collections are required
to be distributed under the Indenture. Permitted Investments of funds on
deposit
in the Reserve Account will mature no later than the Business Day preceding
the
first Payment Date following the date of investment, except that such funds
may
be invested in Permitted Investments that will not mature before the next
Payment Date if Rating Agency Confirmation has been obtained with respect
to the
investment. Permitted Investments will be held to their maturity, except
that
Permitted Investments may be sold or disposed of before their maturity in
connection with the sale or liquidation of the Collateral following an Event
of
Default as provided in Section 5.6 of the Indenture. All interest and other
income (net of losses and investment expenses) on funds on deposit in the
Bank
Accounts will be paid to the Servicer on each Payment Date pursuant to Section
3.5.
Β
12
(d)Β Β Β Β None
of the
Depositor, the Servicer or the Qualified Institution or Qualified Trust
Institution maintaining any Bank Account will be liable for the selection
of
Permitted Investments or for investment losses incurred thereon (other than
in
the capacity as obligor thereon, if applicable).
Β
(e)Β Β Β Β Neither
the
Servicer, with respect to the Collection Account and the Principal Payment
Account, nor the Depositor, with respect to the Reserve Account, will direct
the
Qualified Institution or Qualified Trust Institution maintaining such account
to
make any investment of any funds or to sell any investment held in such 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 each case without any further action by any
Person.
Β
(f)Β Β Β Β With
respect
to funds on deposit in the Bank Accounts:
Β
(i)Β Β Β Β any
such
funds or property in such accounts that is a "financial asset" as defined
in
Section 8-102(a)(9) of the UCC will be physically delivered to, or credited
to
an account in the name of, the Qualified Institution or Qualified Trust
Institution maintaining the applicable account in accordance with such
institution's customary procedures such that the institution establishes
a
"securities entitlement" in favor of the Indenture Trustee with respect to
such
funds or property; and
Β
(ii)Β Β Β Β any
funds
or property that are held in deposit accounts will be held solely in the
name of
the Indenture Trustee at one or more depository institutions having the Required
Ratings, each such deposit account will be subject to the exclusive custody
and
control of the Indenture Trustee and the Indenture Trustee will have sole
signature authority with respect to each such deposit account.
Β
(g)Β Β Β Β The
Servicer,
with respect to the Collection Account and the Principal Payment Account,
and
the Depositor, with respect to the Reserve Account, will ensure that the
Qualified Institution or Qualified Trust Institution maintaining each such
account, in its capacity as securities intermediary, agrees in the Control
Agreement that each item of property credited to each such account will be
treated as a "financial asset" within the meaning of Section 8-102(a)(9)
of the
UCC.
Β
13
Β
Section
4.3Β Β Β Β Remittances
Β
(a)Β Β Β Β If
Ford
Credit's short term unsecured debt is rated at least "P-1" by Xxxxx'x, "A-1"
by
Standard & Poor's and "F1" by Fitch (this rating requirement, the
"Monthly
Remittance Required Ratings"),
Ford
Credit may remit Collections on the Business Day preceding each Payment Date
or,
with Rating Agency Confirmation, on each Payment Date.
Β
(b)Β Β Β Β If
Ford
Creditβs short term unsecured debt is not rated at least equal to the Monthly
Remittance Required Ratings:
Β
(i)Β Β Β Β on
the
Closing Date, the Servicer will remit Collections to the Collection Account
that
are received and applied to the Obligors' accounts during the period from
the
Cutoff Date to two Business Days preceding the Closing Date and
Β
(ii)Β Β Β Β on
and
after the Closing Date, Ford Credit will remit Collections to the Collection
Account within two Business Days after the receipt and application of such
Collections to the Obligors' accounts in accordance with the Credit and
Collection Policy. For this purpose, Collections does not include Recoveries
and
amounts that constitute the Supplemental Servicing Fee. Ford Credit will
remit
Recoveries to the Collection Account no later than the Business Day preceding
each Payment Date or, with Rating Agency Confirmation, each Payment
Date.
Β
(c)Β Β Β Β Ford
Credit
will remit Purchase Amounts on the Business Day preceding each Payment Date
or,
with Rating Agency Confirmation, on each Payment Date.
Β
(d)Β Β Β Β Ford
Credit
may
retain
amounts constituting the Supplemental Servicing Fee from Collections and
make
the remittances pursuant to this Section 4.3 net of Servicing Fees to be
paid to
Ford Credit. Nonetheless, the Servicer will account for all of the above
described remittances and distributions in the Monthly Investor Report as
if the
amounts were deposited and/or transferred separately.
Β
(e)Β Β Β Β If
Ford
Credit (or a successor of Ford Credit pursuant to Section 6.4) is not the
Servicer or an Event of Servicing Termination occurs, the Servicer will be
required to remit Collections to the Collection Account within 2 Business
Days
after receipt.
Β
(f)Β Β Β Β Pending
deposit into the Collection Account, amounts collected by the Servicer may
be
used by the Servicer at its own risk and for its own benefit and will not
be
segregated from its own funds.
Β
Section
4.4Β Β Β Β Calculations
and Distributions; Withdrawals from the Reserve Account
Β
(a)Β Β Β Β On
or before
each Determination Date, the Servicer will calculate the Reserve Account
Draw
Amount for the following Payment Date and will instruct the Indenture Trustee
to
withdraw from the Reserve Account and deposit the Reserve Account Draw Amount
into the Collection Account on such Payment Date.
Β
14
(b)Β Β Β Β On
or before
each Determination Date, the Servicer will instruct the Indenture Trustee
(based
on the most recent Monthly Investor Report) to make the withdrawals, deposits,
distributions and payments required to be made on the following Payment Date
pursuant to Section 8.2 of the Indenture.
Β
ARTICLE
V
THE
DEPOSITOR
Β
Section
5.1Β Β Β Β Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Issuer as of the date of this Agreement
and as of the Closing Date, on which the Issuer is relying in acquiring the
Trust Property and which will survive the sale of the Trust Property to the
Issuer and the pledge of the Trust Property by the Issuer to the Indenture
Trustee pursuant to the Indenture:
Β
(a)Β Β Β Β Organization
and Qualification.
The
Depositor is duly organized and validly existing as a limited liability company
in good standing under the laws of the State of Delaware. The Depositor is
qualified as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which
the
ownership or lease of its properties or the conduct of its activities requires
such qualification, license or approval, unless the failure to obtain such
qualifications, licenses or approvals could not reasonably be expected to
have a
material adverse effect on the Depositor's ability to perform its obligations
under this Agreement or the other Basic Documents to which it is a
party.
Β
(b)Β Β Β Β Power,
Authorization and Enforceability.
The
Depositor has the power and authority to execute deliver and perform the
terms
of each of the Basic Documents to which it is a party and to acquire, own
and
sell the Receivables and the other Trust Property and has duly authorized
the
sale of the Receivables and other Trust Property to the Issuer by all necessary
action. The Depositor has authorized the execution, delivery and performance
of
the terms of each of the Basic Documents to which it is a party. Each of
the
Basic Documents to which the Depositor is a party is the legal, valid and
binding obligation of the Depositor enforceable against the Depositor, except
as
may be limited by insolvency, bankruptcy, reorganization or other laws relating
to the enforcement of creditors' rights or by general equitable
principles.
Β
(c)Β Β Β Β Valid
Sale.
This
Agreement evidences a valid sale of the Trust Property from the Depositor
to the
Issuer, enforceable against creditors of and purchasers from the
Depositor.
Β
(d)Β Β Β Β No
Conflicts and No Violation.
The
consummation of the transactions contemplated by the Basic Documents to which
the Depositor is a party and the fulfillment of the terms of the Basic Documents
to which the Depositor is a party will not (i) conflict with or result in
a
breach of the terms or provisions of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Depositor is a debtor or guarantor,
(ii)
result in the creation or imposition of any lien, charge or encumbrance upon
any
of the properties or assets of the Depositor pursuant to the terms of any
such
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument (other than this Agreement), (iii) violate the
Certificate of Formation or Limited Liability Company Agreement, or (iv)
violate
any law or, to the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties, in each case which conflict,
breach, default, lien, or violation would reasonably be expected to have
a
material adverse effect on the Depositor's ability to perform its obligations
under the Basic Documents.
Β
15
(e)Β Β Β Β No
Proceedings.
To the
Depositor's knowledge, there are no proceedings or investigations pending
or
overtly threatened in writing, before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Depositor or its properties: (i) asserting the invalidity of any of the Basic
Documents or the Notes, (ii) seeking to prevent the issuance of the Notes
or the
consummation of any of the transactions contemplated by any of the Basic
Documents, (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse effect on the Depositor's ability to
perform
its obligations under, or the validity or enforceability of, any of the Basic
Documents or the Notes, or (iv) relating to Ford Credit or the Depositor
that
would reasonably be expected to (A) affect the treatment of the Notes as
indebtedness for U.S. federal income or Applicable Tax State income or franchise
tax purposes, (B) be deemed to cause a taxable exchange of the Notes for
U.S.
federal income tax purposes, (C) cause the Issuer to be treated as an
association or publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes, or (D) cause the Issuer to incur Michigan Single
Business Tax liability other than such proceedings that would not reasonably
be
expected to have a material adverse effect upon the Depositor or materially
and
adversely affect the performance by the Depositor of its obligations under,
or
the validity and enforceability of, the Basic Documents or the
Notes.
Β
(f)Β Β Β Β Valid
Security Interest.
This
Agreement creates a valid and continuing security interest (as defined in
the
applicable UCC) in the Trust Property in favor of the Issuer that is prior
to
all other Liens other than Permitted Liens and is enforceable as such against
all other creditors of and purchasers from the Depositor.
Β
Section
5.2Β Β Β Β Liability
of the Depositor
Β
.
The
Depositor will be liable in accordance with this Agreement only to the extent
of
the obligations specifically undertaken by the Depositor under this
Agreement.
Β
(a)Β Β Β Β The
Depositor
will not be liable to the Issuer, the Owner Trustee, the Indenture Trustee,
the
Noteholders, the Servicer or any other Person for any action taken, or not
taken, in good faith pursuant to this Agreement or for errors in judgment.
All
such liability is expressly waived and released as a condition of, and
consideration for, the execution of this Agreement by the Depositor and the
issuance of the Notes. Notwithstanding the preceding two sentences, this
Section
5.2 will not protect the Depositor against any liability that would otherwise
be
imposed by reason of Depositorβs, willful misconduct, bad faith or negligence in
the performance of its duties under this Agreement.
Β
(b)Β Β Β Β The
Depositor
will pay any and all taxes levied or assessed upon the Issuer or upon all
or any
part of the Trust Property.
Β
16
(c)Β Β Β Β The
Depositor
and any officer, director, employee or agent of the Depositor may rely in
good
faith on the advice of counsel or on any document believed to be genuine
and to
have been executed by the proper party in respect of any matters arising
under
this Agreement.
Β
(d)Β Β Β Β The
Depositor
will be under no obligation to appear in, prosecute or defend any legal action
that is unrelated to its obligations under this Agreement and that, in its
opinion, may cause it to incur any expense or liability.
Β
Section
5.3Β Β Β Β Merger
or Consolidation of, or Assumption of the Obligations of, the
Depositor.
Any
Person (a) into which the Depositor is merged or consolidated, (b) resulting
from any merger or consolidation to which the Depositor is a party or (c)
succeeding to the business of the Depositor, if more than 50% of the voting
stock or voting power and 50% or more of the economic equity of such Person
is
owned, directly or indirectly, by Ford Motor Company, will be the successor
to
the Depositor under this Agreement without the execution or filing of any
document or any further act except those actions required under this Section
5.3. Within 15 Business Days after any such merger, consolidation or succession
such Person will (i) execute an agreement of assumption to perform every
obligation of the Depositor under this Agreement, (ii) deliver to the Owner
Trustee and the Indenture Trustee an Officer's Certificate and an Opinion
of
Counsel each stating that such merger, consolidation or succession and such
agreement of assumption comply with this Section 5.3, (iii) deliver to the
Owner
Trustee and the Indenture Trustee an Opinion of Counsel to the effect that
either (A) upon the later of the attachment of the security interest and
the
filing of the necessary financing statements, the security interest in favor
of
the Issuer in the Trust Property and the Indenture Trustee in the Collateral
will be perfected or (B) no such action is necessary to preserve and protect
such security interest, and (iv) provide notice of such merger, consolidation
or
succession to the Swap Counterparty and to the Rating Agencies.
Β
Section
5.4Β Β Β Β Depositor
May Own Notes.
The
Depositor and any Affiliate of the Depositor, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights as
it
would have if it were not the Depositor or an Affiliate of the Depositor
except
as otherwise provided in any Basic Document. Notes owned by or pledged to
the
Depositor or any Affiliate of the Depositor will have an equal and proportionate
benefit under the Basic Document, without preference, priority or distinction,
except as otherwise provided in any Basic Document.
Β
Section
5.5Β Β Β Β Depositor's
Designation of the Rating Agencies.
The
Depositor designates Fitch, Xxxxx'x and Standard & Poor's as the Rating
Agencies rating the Notes.
Β
ARTICLE
VI
THE
SERVICER
Β
Section
6.1Β Β Β Β Representations
and Warranties of the Servicer.
The
Servicer represents and warrants to the Issuer as of the date of this Agreement,
on which the Issuer is relying in acquiring the Trust Property and which
will
survive the sale of the Trust Property to the Issuer and the pledge of the
Trust
Property by the Issuer to the Indenture Trustee pursuant to the
Indenture:
17
Β
(a)Β Β Β Β Organization
and Qualification.
The
Servicer is duly incorporated and validly existing as a corporation in good
standing under the laws of the State of Delaware. The Servicer is qualified
as a
foreign corporation in good standing and has obtained all necessary licenses
and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect
on
the Servicer's ability to perform its obligations under this Agreement or
the
other Basic Documents to which it is a party.
Β
(b)Β Β Β Β Power,
Authorization and Enforceability.
The
Servicer has the power and authority to execute deliver and perform the terms
of
each of the Basic Documents to which it is a party and to acquire, own, hold,
service and sell the Receivables and to hold the Receivables Files as custodian
on behalf of the Issuer and the Indenture Trustee. The Servicer has authorized
the execution, delivery and performance of the terms of each of the Basic
Documents to which it is a party. Each of the Basic Documents to which the
Servicer is a party is the legal, valid and binding obligation of the Servicer
enforceable against the Servicer, except as may be limited by insolvency,
bankruptcy, reorganization or other laws relating to the enforcement of
creditors' rights or by general equitable principles.
Β
(c)Β Β Β Β No
Conflicts and No Violation.
The
consummation of the transactions contemplated by the Basic Documents to which
the Servicer is a party and the fulfillment of the terms of the Basic Documents
to which the Servicer is a party will not (i) conflict with or result in
a
breach of the terms or provision of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Servicer is a debtor or guarantor
(other
than this Agreement), (ii) result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of the Servicer
pursuant to the terms of any such indenture, mortgage, deed of trust, loan
agreement, guarantee or similar agreement, (iii) violate the Certificate
of
Incorporation or the Bylaws of the Servicer, or (iv) violate any law or,
to the
Servicer's knowledge, any order, rule or regulation applicable to the Servicer
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Servicer
or
its properties; in each case, which conflict, breach, default, lien, or
violation would reasonably be expected to have a material adverse effect
on the
Servicer's ability to perform its obligations under the Basic
Documents.
Β
(d)Β Β Β Β No
Proceedings.
To the
Servicer's knowledge, there are no proceedings or investigations pending
or
overtly threatened in writing before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Servicer or its properties: (i) asserting the invalidity of any of the Basic
Documents or the Notes, (ii) seeking to prevent the issuance of the Notes
or the
consummation of any of the transactions contemplated by any of the Basic
Documents, (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse effect on the Servicer's ability to perform
its obligations under, or the validity or enforceability of, any of the Basic
Documents or the Notes, or (iv) relating to the Servicer that would reasonably
be expected to (A) affect the treatment of the Notes as indebtedness for
U.S.
federal income or Applicable Tax State income or franchise tax purposes,
(B) be
deemed to cause a taxable exchange of the Notes for U.S. federal income tax
purposes, (C) cause the Issuer to be treated as an association or publicly
traded partnership taxable as a corporation for U.S. federal income tax purposes
or (D) cause the Issuer to incur Michigan Single Business Tax liability other
than such proceedings that, to the Servicer's knowledge, would not reasonably
be
expected to have a material adverse effect upon the Servicer and its
subsidiaries considered as a whole or materially and adversely affect the
performance by the Servicer of its obligations under, or the validity and
enforceability of, any of the Basic Documents or the Notes.
Β
18
Β
Section
6.2Β Β Β Β Liability
of the Servicer
Β
(a)Β Β Β Β The
Servicer
will be liable to the Issuer, the Owner Trustee, the Indenture Trustee, the
Noteholders and to the Depositor only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement. All other
liability is expressly waived and released as a condition of, and consideration
for, the execution of this Agreement by the Servicer. This Section 6.2 will
not
protect the Servicer against any liability that would otherwise be imposed
by
reason of the Servicer's willful misconduct, bad faith or negligence in the
performance of its duties under this Agreement. The Servicer and any subservicer
may rely in good faith on any document of any kind that appears on its face
to
be properly executed and submitted by any Person with respect to any matters
arising under this Agreement.
Β
(b)Β Β Β Β The
obligations of the Servicer under this Agreement are solely corporate
obligations of the Servicer, and no recourse may be taken, directly or
indirectly, with respect to the obligations of the Servicer against any owner,
beneficiary, agent, officer, director, or employee of the Servicer in their
individual capacities except for any liability that would otherwise be imposed
by reason of such Person's willful misconduct, bad faith or negligence in
the
performance of its duties.
Β
(c)Β Β Β Β The
Servicer
will not be under any obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to service the Receivables in
accordance with this Agreement and that in its opinion may involve it in
any
expense or liability. The Servicer may in its sole discretion (but will not
be
required to) undertake any legal action that it may deem necessary or desirable
to protect the interests of the Noteholders or the Depositor under the Basic
Documents. In such event, the legal expenses, costs and liabilities of such
action and any liability resulting from such action will be expenses, costs
and
liabilities of the Servicer.
Β
(d)Β Β Β Β The
Servicer
will not be in default under this Agreement if it is unable to perform any
of
its obligations as a result of an act of God, act of war, terrorism, fires,
earthquake or other natural disaster. The Servicer will make commercially
reasonable efforts to resume the performance of its obligations under this
Agreement as soon as reasonably practicable after any such event.
Β
Section
6.3Β Β Β Β Indemnities
of the Servicer
Β
(a)Β Β Β Β The
Servicer
will indemnify, defend and hold harmless the Issuer, the Owner Trustee and
the
Indenture Trustee, and their respective officers, directors, employees and
agents from and against any and all costs, losses, claims and liabilities
arising out of, or imposed upon any such Person through the Servicer's
(including
in its capacity as Custodian) willful misconduct, bad faith or negligence
(except for errors in judgment) in the performance of its duties under any
Basic
Document to which it is a party.
Β
19
(b)Β Β Β Β Promptly
upon
receipt by the Issuer, the Owner Trustee or the Indenture Trustee or any
of
their respective officers, directors, employees and agents (each, for purposes
of this Section 6.3(b), an "Indemnified
Person")
of
notice of the commencement of any Proceeding against any such Indemnified
Person, such Indemnified Person will, if a claim in respect of such Proceeding
will be made against the Servicer under this Section 6.3, notify the Servicer
of
the commencement of such Proceeding. The Servicer may participate in and
assume
the defense and settlement of any such Proceeding at the Servicer's expense.
No
settlement of such Proceeding may be made without the approval of the Servicer
and such Indemnified Person, which approvals will not be unreasonably withheld,
delayed or conditioned. The Servicer's indemnification obligation will include
the reasonable fees and expenses of counsel and the expenses of litigation.
After notice from the Servicer to such Indemnified Person of the Servicer's
intention to assume the defense of such Proceeding with counsel reasonably
satisfactory to such Indemnified Person, and so long as the Servicer so assumes
the defense of such Proceeding in a manner reasonably satisfactory to such
Indemnified Person, the Servicer will not be liable for any legal expenses
of
counsel to such Indemnified Person unless there is a conflict between the
interests of the Servicer and such Indemnified Person, in which case the
Servicer will pay for the separate counsel to such Indemnified
Person.
Β
(c)Β Β Β Β For
purposes
of this Section 6.3, if the Servicer is terminated pursuant to Section 7.1
or if
the Servicer resigns pursuant to Section 6.6, such Servicer will be deemed
to
continue to be the Servicer until a Successor Servicer (other than the Indenture
Trustee) has assumed the obligations of the Servicer in accordance with Section
7.2.
Β
(d)Β Β Β Β The
Servicer's obligations under this Section 6.3 with respect to the period
such
Person was (or was deemed to be) the Servicer will survive the termination
of or
resignation by such Person as Servicer, the termination of this Agreement
and
the resignation or removal of the Owner Trustee or the Indenture Trustee
or the
termination of the Issuer. If the Servicer makes any indemnity payments pursuant
to this Section 6.3 and the Person to or on behalf of whom such payments
are
made thereafter collects any of such amounts from others, such Person will
promptly repay such amounts to the Servicer, without interest.
Β
Section
6.4Β Β Β Β Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer;
Assignment to Affiliate.
Any
Person (a) into which the Servicer is merged or consolidated, (b) resulting
from
any merger or consolidation to which the Servicer is a party, (c) succeeding
to
the business of the Servicer or (d) that is an Affiliate of the Servicer
to whom
the Servicer has assigned this Agreement, will be the successor to the Servicer
under this Agreement without the execution or filing of any document or any
further act except those actions required under this Section 6.4. Within
15
Business Days after any such merger, consolidation, succession or assignment,
such Person will (i) execute an agreement of assumption to perform every
obligation of the Servicer under this Agreement, (ii) deliver to the Owner
Trustee and the Indenture Trustee an Officer's Certificate and an Opinion
of
Counsel each stating that such merger, consolidation, succession or assignment
and such agreement of assumption comply with this Section 6.4, (iii) deliver
to
the Owner Trustee and the Indenture Trustee an Opinion of Counsel to the
effect
that either (A) upon the later of the attachment of the security interest
and
the filing of the necessary financing statements, the security interest in
favor
of the Issuer in the Trust Property and the Indenture Trustee in the Collateral
will be perfected or (B) no such action is necessary to preserve and protect
such security interest, and (iv) provide notice of such merger, consolidation,
succession or assignment to the Rating Agencies.
Β
20
Β
Section
6.5Β Β Β Β Delegation
of Duties.
So long
as Ford Credit acts as Servicer or Custodian, the Servicer or Custodian may
without notice or consent delegate any or all of its duties under this Agreement
to Ford Motor Company or any company or other business entity of which Ford
Motor Company owns, directly or indirectly, more than 50% of the voting stock
or
voting power and 50% or more of the economic equity. The Servicer or Custodian
may perform any of its duties through subcontractors. No such delegation
or
subcontracting will relieve the Servicer or Custodian of its responsibilities
with respect to such duties and the Servicer will remain primarily responsible
with respect to such duties. The Servicer or Custodian will be responsible
for
the fees of any such subcontractors.
Β
Section
6.6Β Β Β Β Ford
Credit Not to Resign as Servicer.
Neither
Ford Credit nor any successor Servicer will resign as Servicer under this
Agreement except upon determining that the performance of its duties under
this
Agreement is no longer permissible under law. Notice of any determination
permitting the resignation of Ford Credit as Servicer or a successor Servicer
will be delivered to the Owner Trustee and the Indenture Trustee as soon
as
practicable (and, if not given in writing, will be confirmed in writing as
soon
as practicable). Any determination permitting the resignation of Ford Credit
as
Servicer or a successor Servicer will be evidenced by an Opinion of Counsel
to
such effect delivered to the Owner Trustee and the Indenture Trustee with
or
promptly following delivery of such notice.
Β
Section
6.7Β Β Β Β Servicer
May Own Notes.
The
Servicer and any Affiliate of the Servicer, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights as
it
would have if it were not the Servicer or an Affiliate of the Servicer, except
as otherwise provided in any Basic Document. Notes owned by or pledged to
the
Servicer or any Affiliate of the Servicer will have an equal and proportionate
benefit under the Basic Document, without preference, priority or distinction,
except as otherwise provided in any Basic Document.
Β
ARTICLE
VII
SERVICING
TERMINATION
Β
Section
7.1Β Β Β Β Events
of Servicing Termination
Β
(a)Β Β Β Β The
occurrence and continuation of any of the following events will be an
"Event
of Servicing Termination":
Β
(i)Β Β Β Β Any
failure by the Servicer to deliver to the Owner Trustee or the Indenture
Trustee
any proceeds or payment required to be delivered under this Agreement that
continues unremedied for a period of 5 Business Days after the earlier of
the
date on which (x) notice of such failure is given to the Servicer by the
Owner
Trustee or the Indenture Trustee or (y) a Responsible Person of the Servicer
learns of such failure, unless:
Β
21
Β
(1)Β
Β Β Β (A) such failure is caused by an event outside the control of
the Servicer that the Servicer could not have avoided through the exercise
of
due care, (B) such failure does not continue for more than 10 Business Days
after the earlier of the date on which notice of such failure is given to
the
Servicer by the Owner Trustee or the Indenture Trustee or a Responsible Person
of the Servicer learns of such failure, (C) during such period the Servicer
uses
all commercially reasonable efforts to perform its obligations under this
Agreement and (D) the Servicer provides the Owner Trustee, the Indenture
Trustee, the Depositor and the Noteholders with prompt notice of such failure
that includes a description of the Servicer's efforts to remedy such failure,
or
Β
(2)Β Β Β
Β (A) such failure would not reasonably be expected to, or upon
investigation and quantification does not, result in the failure in paying
or
depositing an amount greater than 0.05% of the sum of the Note Balances of
all
Notes and (B) such failure is remedied (i) if the Servicer's
long-term debt is rated investment grade by all Rating Agencies rating the
Notes, not later than 90 days after a Responsible Person of the Servicer
learns
of such failure or (ii) if the Servicer's long-term debt is not so rated,
then
not later than 90 days after such failure,
Β
(ii)Β Β Β Β Any
failure by the Servicer to observe or to perform in any material respect
any
other covenants or agreements of the Servicer set forth in this Agreement,
which
failure materially and adversely affects the rights of the Noteholders and
continues unremedied for a period of 90 days after the Servicer receives
notice
of such failure from the Owner Trustee, the Indenture Trustee or the Noteholders
of at least 25% of the Note Balance of the Controlling Class, or
Β
(iii)Β Β Β The
occurrence of an Insolvency Event with respect to the Servicer.
Β
(b)Β Β Β Β If
an Event
of Servicing Termination occurs, the Indenture Trustee will promptly notify
each
Rating Agency. So long as such Event of Servicing Termination has not been
remedied, either the Indenture Trustee or the Noteholders of at least a majority
of the Note Balance of the Controlling Class (or, if no Notes are Outstanding,
the Owner Trustee, at the direction of the holder of the Residual Interest),
by
notice to the Servicer and the Rating Agencies (and to the Indenture Trustee
and
the Owner Trustee if given by the Noteholders), may terminate all of the
rights
and obligations (other than the obligations set forth in Section 6.3 and
the
rights set forth in Section 6.2) of the Servicer under this Agreement. Upon
the
receipt by the Servicer of such notice (or such later date as may be specified
in such notice of termination), all authority and power of the Servicer under
this Agreement will pass to and be vested in the Indenture Trustee or such
Successor Servicer as may be appointed under Section 7.2. In such event,
the
Indenture Trustee and the Owner Trustee are authorized 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 termination of the predecessor
Servicer and to complete the transfer of the Receivables Files and related
documents to the Indenture Trustee or the successor Servicer or the successor
Custodian.
Β
22
(c)Β Β Β Β Upon
termination of the Servicer under this Section 7.1, the predecessor Servicer
will cooperate with the Indenture Trustee, the Owner Trustee and the Successor
Servicer in effecting the termination of the responsibilities and rights
of the
predecessor Servicer under this Agreement, including, as soon as practicable,
the transfer to the Indenture Trustee or such Successor Servicer of all cash
amounts that are held by the predecessor Servicer for deposit, or thereafter
received with respect to a Receivable and the delivery of the Receivables
Files
and the related accounts and records maintained by the Servicer. In no event,
however, will the Servicer be obligated to provide, license or assign its
processes, procedures, models, servicing software or other applications to
any
Successor Servicer or any other third party, or provide anything covered
by a
restriction on transfer or assignment or a confidentiality agreement. All
reasonable costs and expenses (including attorneys' fees) incurred by the
Indenture Trustee, the Owner Trustee and the Successor Servicer associated
with
(i) the transition of servicing duties to the Successor Servicer, and (ii)
amending this Agreement to reflect a succession of the Servicer pursuant
to this
Section 7.1 will be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses.
Β
Section
7.2Β Β Β Β Appointment
of Successor Servicer
Β
(a)Β Β Β Β If
the
Servicer is terminated pursuant to Section 7.1, it will continue to perform
its
functions as Servicer under this Agreement until the date specified in the
notice of termination. If the Servicer resigns pursuant to Section 6.6, it
will
continue to perform its functions as Servicer under this Agreement until
(i) if
the resigning Servicer is Ford Credit, the earlier to occur of (A) the Indenture
Trustee or a Successor Servicer assuming the responsibilities and obligations
of
Ford Credit as Servicer in accordance with this Section 7.2 and as the
Administrator in accordance with Section 5.2 of the Administration Agreement
or
(B) the date upon which any regulatory authority requires such resignation
and
(ii) if the resigning Servicer is not Ford Credit, the earlier to occur of
(A)
the date 45 days from the delivery to the Indenture Trustee and the Owner
Trustee of the notice of such resignation in accordance with Section 6.6
or (B)
the date upon which the Servicer is legally unable to act as Servicer as
specified in the notice of resignation and accompanying Opinion of
Counsel.
Β
(b)Β Β Β Β If
the
Servicer resigns or is terminated under this Agreement, the Indenture Trustee
will (i) provide notice of such termination or resignation to the Issuer
and
(ii) as promptly as possible, appoint an institution having a net worth of
not
less than $50,000,000 whose business includes the servicing of motor vehicle
receivables, as the successor to the Servicer under this Agreement. Such
successor will accept its appointment (including its appointment as
Administrator under the Administration Agreement as set forth in Section
7.2(d))
by (x) entering into a servicing agreement with the Issuer having substantially
the same provisions as the provisions of this Agreement applicable to the
Servicer, in a form acceptable to the Owner Trustee and the Indenture Trustee
and (y) delivering a copy of such servicing agreement to the Indenture Trustee
and the Issuer (such a successor, a "Successor
Servicer").
Promptly following a Successor Servicer's acceptance of its appointment,
the
Indenture Trustee will notify the Issuer of such appointment, specifying
in such
notice the name and address of the Successor Servicer.
Β
(c)Β Β Β Β If
no Person
has accepted its appointment as Successor Servicer when the predecessor Servicer
ceases to act as Servicer in accordance with this Section 7.2, the Indenture
Trustee, without further action, will be automatically appointed the Successor
Servicer. However, if the Indenture Trustee is unwilling or legally unable
to
act as Successor Servicer, it will appoint, or petition a court of competent
jurisdiction to appoint, an institution having a net worth of not less than
$50,000,000 whose business includes the servicing of motor vehicle receivables,
as successor. The Indenture Trustee will be released from its duties and
obligations as Successor Servicer on the date that a new servicer enters
into a
servicing agreement with the Issuer and delivers a copy of such servicing
agreement to the Indenture Trustee and the Issuer as provided in Section
7.2(b).
Β
23
(d)Β Β Β Β Upon
acceptance of its appointment as Successor Servicer, the Successor Servicer
will
(i) be the successor in all respects to the predecessor Servicer and will
be
subject to all of the responsibilities, duties, and liabilities following
such
Successor Servicer's appointment placed on the predecessor Servicer relating
to
such predecessor Servicer's performance of its duties as Servicer and (ii)
become the Administrator under the Administration Agreement in accordance
with
Section 5.2 of the Administration Agreement.
Β
(e)Β Β Β Β In
connection
with any appointment of a Successor Servicer, 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 may agree, provided
that no such compensation will be in excess of the amount paid to the
predecessor Servicer under this Agreement. The Indenture Trustee and such
Successor Servicer will take such action, consistent with this Agreement,
as
will be necessary to effectuate any such succession.
Β
(f)Β Β Β Β If
the
Indenture Trustee succeeds to the Servicer's duties as provided in Section
7.2(c), it will do so in its individual capacity and not in its capacity
as
Indenture Trustee and, accordingly, Article VI of the Indenture will be
inapplicable to the Indenture Trustee in its duties as Successor Servicer.
In
case the Indenture Trustee becomes Successor Servicer pursuant to Section
7.2(c), the Indenture Trustee will be entitled to appoint as Servicer any
one of
its Affiliates, provided that the Indenture Trustee, in its capacity as
Successor Servicer, will be liable for the actions and omissions of such
Affiliate in its capacity as Servicer.
Β
Section
7.3Β Β Β Β Notification
to Secured Parties and the Holder of the Residual Interest.
Upon
any termination of the Servicer, or appointment of a Successor Servicer pursuant
to this Article VII, the Indenture Trustee will promptly notify the Secured
Parties and each Rating Agency, and the Owner Trustee will promptly notify
the
holder of the Residual Interest.
Β
Section
7.4Β Β Β Β Waiver
of Events of Servicing Termination.
The
Noteholders of at least a majority of the Note Balance of the Controlling
Class
or, if no Notes are Outstanding, the Owner Trustee, at the direction of the
holder of the Residual Interest, may waive any Event of Servicing Termination
and its consequences, except an event resulting from the failure to make
any
required deposits to or payments from any of the Bank Accounts in accordance
with this Agreement that resulted in an Event of Default in the payment of
principal or interest on any of the Notes (other than an Event of Default
relating to failure to pay principal due only by reason of acceleration)
under
the Indenture. Upon any such waiver of an Event of Servicing Termination,
such
Event of Servicing Termination will cease to exist and will be deemed to
have
been remedied for every purpose under this Agreement. No such waiver will
extend
to any subsequent or other event or impair any right resulting from such
waiver.
The Issuer will notify the Rating Agencies of any such waiver.
Β
24
Β
ARTICLE
VIII
TERMINATION
Β
Section
8.1Β Β Β Β Clean-Up
Call.
Β
(a)Β Β Β Β If
the Pool
Balance is equal to or less than 5% of the Initial Pool Balance on the last
day
of any Collection Period, the Servicer has the option to purchase the Trust
Property (other than the amounts on deposit in or invested in Permitted
Investments maturing on or before the following Payment Date in the Trust
Accounts). The Servicer may exercise its option to purchase the Trust Property
by (i) notifying the Indenture Trustee, the Owner Trustee and the Rating
Agencies at least 10 days before the Payment Date related to such Collection
Period and (ii) depositing into the Collection Account an amount equal to
the
aggregate Principal Balance of the Receivables as of the last day of the
preceding Collection Period plus 30 days of interest at a rate equal to the
weighted average APR of the Receivables as of the last day of the preceding
Collection Period, in immediately available funds on the Business Day preceding
the Payment Date (or, with Rating Agency Confirmation, on the Payment Date)
related to such Collection Period. Notwithstanding the foregoing, the Servicer
will not be permitted to purchase the Trust Property unless the
Interest Rate Swap has been terminated and all amounts due paid on and the
amount specified above is greater than or equal to the sum of the Note Balance
of the Notes Outstanding and all accrued but unpaid interest thereon. The
amount
deposited into the Collection Account pursuant to this Section 8.1(a) will
be
used on the related Payment Date to make payments in full to the Noteholders
in
the manner set forth in Section 8.2 of the Indenture.
Β
(b)Β Β Β Β Upon
Servicer's payment of the amount specified in Section 8.1(a), the Issuer
will be
deemed to have sold and assigned all of the Issuer's right, title and interest
in and to any Receivable purchased by the Servicer pursuant to Section 8.1(a),
and all security and documents relating to such Receivable. Such sale will
not
require any action by the Issuer and will be without recourse, representation
or
warranty by the Issuer except the representation that the Issuer owns the
Receivable free and clear of any Liens other than Permitted Liens. Upon such
sale, the Servicer will xxxx its computer records indicating that any
receivables purchased pursuant to Section 8.1(a) are no longer Receivables,
file
UCC termination or amendment statements or take any other action necessary
or
appropriate to evidence the transfer of ownership of the purchased Receivables
free from any Lien of the Issuer or the Indenture Trustee. The Issuer, the
Owner
Trustee or the Indenture Trustee, as applicable, will execute such documents
and
instruments and any and all further instruments, including any authorizations
to
file UCC financing statement amendments, required or reasonably requested
by the
Servicer to effect such transfer.
Β
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Β
Section
9.1Β Β Β Β Amendment
Β
(a)Β Β Β Β Subject
to
Section 9.1(f), this Agreement may be amended by the Depositor, the Servicer
and
the Issuer, with prior notice to the Rating Agencies (and the consent of
the
Indenture Trustee and the Owner Trustee to the extent that their respective
rights or obligations will be materially and adversely affected, which consent
may not be unreasonably withheld, delayed or conditioned), but without the
consent of any of the Noteholders subject to the following
conditions:
Β
25
Β
(i)Β Β Β Β Β the
Depositor, the Servicer or the Issuer delivers an Officer's Certificate to
the
Indenture Trustee and the Owner Trustee to the effect that such amendment
will
not materially and adversely affect the interest of any Noteholder,
and
Β
(ii)Β Β Β Β Β the
Depositor, the Servicer or the Issuer delivers an Opinion of Counsel to the
Indenture Trustee and the Owner Trustee to the effect that such amendment
will
not (A) cause any Note to be deemed sold or exchanged for purposes of Section
1001 of the Code, (B) cause the Issuer to be treated as an association or
publicly traded partnership taxable as a corporation for U.S. federal income
tax
purposes
or (C)
adversely affect the treatment of the Notes as debt for U.S. federal income
tax
purposes.
Β
(b)Β Β Β Β Subject
to
Section 9.1(f), this Agreement also may be amended by the Depositor, the
Servicer and the Issuer, with prior notice to the Rating Agencies and with
the
consent of (i) the Indenture Trustee, to the extent that its rights or
obligations will be materially and adversely affected by such amendment (which
consent may not be unreasonably withheld, delayed or conditioned), (ii) the
Owner Trustee, to the extent that its rights and obligations will be materially
and adversely affected by such amendment (which consent may not be unreasonably
withheld, delayed or conditioned) and (iii) the Noteholders of at least a
majority of the Note Balance of each Class of the Notes Outstanding (with
each
Class voting separately, except that all Noteholders of Class A Notes will
vote
together as a single class).
Β
(c)Β Β Β Β Notwithstanding
anything else stated in Section 9.1(a) or (b), no such amendment: (i) may
(A)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, Collections or distributions
that are required to be made for the benefit of the Secured Parties or (B)
reduce the percentage of the Note Balance of the Notes Outstanding required
to
consent to any such amendment without the consent of all affected Noteholders
or
(ii) may change the Specified Reserve Balance without receipt of Rating Agency
Confirmation and the consent of all affected Noteholders.
Β
(d)Β Β Β Β Promptly
upon
the execution of any amendment in accordance with this Section 9.1, the Owner
Trustee will send a copy of such amendment to the Indenture Trustee and each
Rating Agency, and the Indenture Trustee will notify each Noteholder of the
substance of such amendment.
Β
(e)Β Β Β Β If
the
consent of the Owner Trustee, the Indenture Trustee or the Noteholders is
required, they do not need to approve the particular form of any proposed
amendment so long as their consent approves the substance of the proposed
amendment.
Β
(f)Β Β Β Β Before
executing any amendment to this Agreement, the Owner Trustee and the Indenture
Trustee will be entitled to request, receive and rely upon an Opinion of
Counsel
delivered by the Depositor stating that the execution of such amendment is
authorized or permitted by this Agreement.
Β
26
Β
Section
9.2Β Β Β Β Protection
of Right, Title and Interest to the Trust Property
Β
(a)Β Β Β Β The
Depositor
will file financing statements and continuation statements, in the manner
and
place required by law to preserve, maintain and protect the interest of the
Issuer and the Indenture Trustee for the benefit of the Secured Parties in
the
Trust Property. The Depositor will deliver to the Issuer and the Indenture
Trustee file-stamped copies of, or filing receipts for, any financing statement
and continuation statement promptly upon such document becoming available
following filing. The Depositor authorizes the Issuer and the Indenture Trustee
to file any financing or continuation statements, and amendments to such
statements, in all jurisdictions and with all filing offices as the Issuer
or
the Indenture may determine are necessary or advisable to preserve, maintain
and
protect the interest of the Issuer and the Indenture Trustee in the Trust
Property. Such financing and continuation statements may describe the Trust
Property in any manner as the Issuer or the Indenture Trustee may reasonably
determine to ensure the perfection of the interest of the Issuer and the
Indenture Trustee in the Trust Property. The Issuer or the Indenture Trustee,
as
applicable, will deliver to the Depositor file-stamped copies of, or filing
receipts for, any such financing statement and continuation statement promptly
upon such document becoming available following filing.
Β
(b)Β Β Β Β The
(i)
Depositor, the Issuer and the Indenture Trustee, if required or reasonably
requested by the other or by the Owner Trustee or the Indenture Trustee and
(ii)
Owner Trustee, if required or reasonably requested by the Indenture Trustee,
agree to do and perform any and all acts and to execute any and all further
instruments to more fully effect the purposes of this Agreement.
Β
(c)Β Β Β Β Each
of the
Depositor and the Servicer will give the Owner Trustee and the Indenture
Trustee
at least 60 days' prior notice of any change in its corporate structure,
form of
organization or jurisdiction of organization if, as a result of such relocation
or change, Section 9-307 of the UCC could require the filing of a new financing
statement or an amendment to a previously filed financing or continuation
statement and will promptly file any such new financing statement or amendment.
Each of the Depositor and the Servicer will maintain its chief executive
office,
and the Servicer will maintain each office from which it will service the
Receivables, within the United States and will maintain its jurisdiction
of
organization in only one State.
Β
(d)Β Β Β Β Neither
the
Depositor nor the Servicer will change its name in any manner that could
make
any financing statement or continuation statement filed by the Depositor,
the
Issuer or the Indenture Trustee in accordance with Section 9.2(a) seriously
misleading within the meaning of Section 9-506 of the UCC, unless it has
given
the Owner Trustee and the Indenture Trustee at least 5 days' prior notice
thereof and promptly files appropriate amendments to all previously filed
financing statements.
Β
(e)Β Β Β Β On
and after
the Closing Date until a Receivable has been paid in full or repurchased,
the
Servicer will maintain its computer systems to indicate clearly that such
Receivable is owned by the Issuer and has been pledged to the Indenture Trustee
pursuant to the Indenture.
27
Β
(f)Β Β Β Β At
any time
the Owner Trustee or the Indenture Trustee has reasonable grounds to believe
that a list of all Receivables (by contract number) then included in the
Trust
Property is necessary in connection with the performance of its duties under
any
Basic Agreement, the Owner Trustee or the Indenture Trustee may request such
a
list from the Depositor and the Depositor will furnish such list to the Owner
Trustee and the Indenture Trustee within 30 Business Days of the
request.
Β
(g)Β Β Β Β The
Depositor
will, to the extent required by applicable law, cause the Notes to be registered
with the Securities and Exchange Commission pursuant to Section 12(b) or
Section
12(g) of the Exchange Act, within the time periods specified in such
sections.
Β
Section
9.3Β Β Β Β Notices
Β
(a)Β Β Β Β All
notices,
requests, demands, consents, waivers or other communications to or from the
parties to this Agreement must be in writing and will be deemed to have been
given and made:
Β
(i)Β Β Β Β upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 3 days after deposit in the mail,
Β
(ii)Β Β Β Β in
the
case of a fax, when receipt is confirmed by telephone, reply email or reply
fax
from the recipient,
Β
(iii)Β Β Β in
the
case of an email, when receipt is confirmed by telephone or reply email from
the
recipient, and
Β
(iv)Β Β Β in
the
case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Β
Any
such
notice, request, demand, consent or other communication must be delivered
or
addressed as set forth on Schedule B to this Agreement or at such other address
as any party may designate by notice to the other parties.
Β
(b)Β Β Β Β Any
notice
required or permitted to be mailed to a Noteholder must be sent by overnight
delivery, mailed by registered first class mail, postage prepaid, or sent
by
fax, to the address of such Person as shown in the Note Register. Any notice
so
mailed within the time prescribed in this Agreement will be conclusively
presumed to have been properly given, whether or not the Noteholder receives
such notice.
Β
Section
9.4Β Β Β Β Assignment
by the Depositor or the Servicer.
Except
as provided in Sections 6.4, 6.6 and 7.2, this Agreement may not be assigned
by
the Depositor or the Servicer without the prior consent of the Owner Trustee,
the Indenture Trustee, the holder of the Residual Interest and the Noteholders
of at least 66 2/3% of the Note Balance of the Notes Outstanding.
Β
28
Β
Section
9.5Β Β Β Β Third-Party
Beneficiaries.
This
Agreement will inure to the benefit of and be binding upon the parties to
this
Agreement. The Owner Trustee and the Indenture Trustee for the benefit of
the
Secured Parties will be third-party beneficiaries of this Agreement entitled
to
enforce this Agreement against the Depositor and the Servicer. Except as
otherwise provided in this Agreement, no other Person will have any right
or
obligation under this Agreement.
Β
Section
9.6Β Β Β Β GOVERNING
LAW.
THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
Β
Section
9.7Β Β Β Β Submission
to Jurisdiction.
The
parties submit to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State Court
sitting in New York, New York for purposes of all legal proceedings arising
out
of or relating to this Agreement. The parties irrevocably waive, to the fullest
extent they may do so, any objection that they may now or hereafter have
to the
laying of the venue of any such proceeding brought in such a court and any
claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Β
Section
9.8Β Β Β Β WAIVER
OF JURY TRIAL.
EACH
PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY
THIS AGREEMENT.
Β
Section
9.9Β Β Β Β Severability.
If any
of the covenants, agreements or terms of this Agreement is held invalid,
illegal
or unenforceable, then it will be deemed severable from the remaining covenants,
agreements or terms of this Agreement and will in no way affect the validity,
legality or enforceability of the remaining Agreement.
Β
Section
9.10Β Β Β Counterparts.
This
Agreement may be executed in any number of counterparts. Each counterpart
will
be an original, and all counterparts will together constitute one and the
same
instrument.
Β
Section
9.11Β Β Β Headings.
The
headings in this Agreement are included for convenience only and will not
affect
the meaning or interpretation of this Agreement.
Β
Section
9.12Β Β Β No
Waiver; Cumulative Remedies.
No
failure or delay of the Owner Trustee, the Indenture Trustee or the Noteholders
in exercising any power, right or remedy under this Agreement will operate
as a
waiver. No single or partial exercise of any power, right or remedy precludes
any other or further exercise of such power, right or remedy or the exercise
of
any other power, right or remedy. The powers, rights and remedies provided
in
this Agreement are in addition to any powers, rights and remedies provided
by
law.
Β
Section
9.13Β Β Β Β Agent
for Service.
Β
(a)Β Β Β Β The
agent for
service of the Depositor in respect of this Agreement will be the person
holding
the office of Corporate Secretary of the Depositor, at the following
address:
Β
29
Β
Ford
Credit Auto Receivables Two LLC
c/o
Ford
Motor Credit Company
World
Headquarters
Xxx
Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
Xxxxxxxx 00000.
Attention:
Securitization Operations Supervisor
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
(b)Β Β Β Β The
agent for
service of the Servicer in respect of this Agreement will be the person holding
the office of Corporate Secretary of the Servicer, at the following
address:
Β
Ford
Motor Credit Company
Xxx
Xxxxxxxx Xxxx
Xxxxx
0000, Xxxxxx 000-000
Xxxxxxxx,
Xxxxxxxx 00000.
Attention:
Corporate Secretary
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Section
9.14Β Β Β No
Petition.
The
Owner Trustee, the Indenture Trustee, the Issuer and the Servicer each covenants
and agrees that, before the date that is 1 year and 1 day after the payment
in
full of all securities issued by the Depositor or by a trust for which the
Depositor was the depositor, it will not institute against, or join any other
Person in instituting against, the Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any federal or State bankruptcy or similar law in connection with any
obligations relating to the Notes or any of the Basic Documents. This Section
9.14 will survive the resignation or removal of the Owner Trustee under the
Trust Agreement or the Indenture Trustee under the Indenture and the termination
of this Agreement.
Β
Section
9.15Β Β Β Limitation
of Liability of Owner Trustee and Indenture Trustee.
Β
(a)Β Β Β Β Notwithstanding
anything contained in this Agreement to the contrary, this Agreement has
been
countersigned by U.S. Bank Trust National Association, not in its individual
capacity but solely as Owner Trustee of the Issuer and in no event will U.S.
Bank Trust National Association in its individual capacity or, except as
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 under this Agreement or in any of the certificates,
notices or agreements delivered pursuant to this Agreement. For all purposes
of
this Agreement, in the performance of its duties or obligations under this
Agreement or in the performance of any duties or obligations of the Issuer
under
this Agreement, the Owner Trustee will be subject to, and entitled to the
benefits of, Articles V, VI and VII of the Trust Agreement.
Β
(b)Β Β Β Β Notwithstanding
anything contained in this Agreement to the contrary, this Agreement has
been
accepted by The Bank of New York, not in its individual capacity but solely
as
Indenture Trustee, and in no event will The Bank of New York have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Issuer under this Agreement or in any of the certificates, notices
or
agreements delivered pursuant to this Agreement.
Β
30
EXECUTED
BY:
Β |
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
|
Β | ||
Β |
as
Depositor
|
Β | ||
Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β |
Β |
By:Β Β
|
/s/
Xxxxx X. Xxxxxx
|
Β | |
Β | Β |
Name:
Xxxxx X. Xxxxxx
|
Β | |
Β | Β |
Title:Β Β
Secretary
|
Β | |
Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β |
Β | Β | |||
Β |
as
Issuer
|
Β | ||
Β | Β | Β | Β | Β |
Β |
By:Β Β
|
U.S.
BANK TRUST
|
Β | |
Β | Β |
NATIONAL
ASSOCIATION,
|
Β | |
Β | Β |
not
in its individual capacity but solely as Owner Trustee
|
||
Β | Β | Β | ||
Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β |
Β | Β |
By:Β Β
|
/s/
Xxxxxxxx X. Xxxxxxx
|
Β |
Β | Β | Β |
Name:
Xxxxxxxx X. Xxxxxxx
|
Β |
Β | Β | Β |
Title:Β Β
Authorized Person
|
Β |
Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β |
Β |
FORD
MOTOR CREDIT COMPANY,
|
Β | ||
Β |
as
Servicer
|
Β | ||
Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β |
Β |
By:Β Β
|
/s/
X. X. Xxxxxx
|
Β | |
Β | Β |
Name:
Xxxxx X. Xxxxxx
|
Β | |
Β | Β |
Title:Β Β
Assistant Treasurer
|
Β |
Β
AGREED
AND ACCEPTED BY:
THE
BANK OF NEW YORK,
|
Β | |
Β
not in its individual capacity
|
Β | |
Β
but solely as Indenture Trustee
|
Β | |
Β | Β | Β |
Β | Β | Β |
By:Β Β
|
/s/
Xxxxxxx Xxx
|
Β |
Β |
Name:
Xxxxxxx Xxx
|
Β |
Β |
Title:Β Β
Assistant Vice President
|
Β |
Β | Β | Β |
Β | Β | Β |
U.S.
BANK TRUSTΒ
|
Β | |
NATIONAL
ASSOCIATION,
|
Β | |
Β
not in its individual capacity
|
Β | |
Β
but solely as Owner Trustee
|
Β | |
Β | Β | Β |
Β | Β | Β |
By:Β Β
|
/s/
Xxxxxxxx X. Xxxxxxx
|
Β |
Β |
Name:
Xxxxxxxx X. Xxxxxxx
|
Β |
Β |
Title:Β Β
Authorized Person
|
Β |
Β | Β | Β |
Β | Β | Β |
FORD
MOTOR CREDIT COMPANY,
|
Β | |
Β
as Custodian
|
Β | |
Β | Β | Β |
Β | Β | Β |
By:Β Β
|
/s/
X. X. Xxxxxx
|
Β |
Β |
Name:
Xxxxx X. Xxxxxx
|
Β |
Β |
Title:Β Β
Assistant Treasurer
|
Β |
Β
SCHEDULE
A
Β
Schedule
of Receivables
Delivered
on CD-ROM to Indenture Trustee at Closing
SA-1
SCHEDULE
B
Notice
Addresses
1.
|
If
to Ford Credit, in its individual capacity or as Servicer, Custodian,
Administrator or Sponsor under the Purchase
Agreement:
|
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
Xxx
Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Securitization Operations Supervisor
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
With
a
copy to:
Ford
Motor Credit Company
Xxx
Xxxxxxxx Xxxx
Xxxxx
0000, Xxxxxx 000-000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Secretary
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
2.
|
If
to the Depositor:
|
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
Xxx
Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Ford Credit SPE Management Office
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
With
a
copy to:
Ford
Motor Credit Company
Xxx
Xxxxxxxx Xxxx
Xxxxx
0000, Xxxxxx 000-000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Secretary
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
SB-1
3.
|
If
to the Issuer:
|
c/o
the
Owner Trustee at the Corporate Trust Office of the Owner Trustee
With
copies to:
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
Xxx
Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Ford Credit SPE Management Office
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
and
Ford
Motor Credit Company
Xxx
Xxxxxxxx Xxxx
Xxxxx
0000, Xxxxxx 000-000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Secretary
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
4.
|
If
to the Owner Trustee, at the Corporate Trust Office of the Owner
Trustee
|
5.
|
If
to the Indenture Trustee, at the Corporate Trust Office of the
Indenture
Trustee;
|
6.
|
If
to Xxxxx'x Investors Service, Inc.:
|
Xxxxx'x
Investors Service, Inc.
ABS
Monitoring Department
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
SB-2
7.
|
If
to Standard & Poor's:
|
Standard
& Poor's
00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Asset Backed Surveillance Department
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
8.
|
If
to Fitch, Inc.:
|
Fitch,
Inc.
0
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Asset Backed Surveillance
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
9.
|
If
to the Swap Counterparty:
|
The
Royal
Bank of Scotland plc
x/x
XXX
Xxxxxxxxx Xxxxxxx,
Xxxxx
0,
135
Xxxxxxxxxxx,
Xxxxxx,
XX0X 0XX
Attention:Β Head
of
Legal, Financial Markets
Telephone:
00 000 000 0000
Fax:
00
000 000 0000
With
a
copy to:
The
Royal
Bank of Scotland plc
c/o
Greenwich Capital Markets
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Legal Department- Derivatives Documentation
Telephone:
(000) 000-0000/32
Fax:
(000) 000-0000/34
SB-3
APPENDIX
A
Β
USAGE
AND
DEFINITIONS
Β
Β
Usage
Β
The
following rules of construction and usage apply to this Appendix, any agreement
that incorporates this Appendix and any document made or delivered pursuant
to
any such agreement:
Β
(a)Β Β Β Β The
term
βdocumentsβ includes any and all documents, agreements, instruments,
certificates, notices, reports, statements or other writings however evidenced,
whether in electronic or physical form.
Β
(b)Β Β Β Β Accounting
terms not defined or not completely defined in this Appendix will be construed
in conformity with U.S. generally accepted accounting principles as in effect
on
the date of the document that incorporates this Appendix.
Β
(c)Β Β Β Β References
to βArticle,β βSection,β βExhibit,β βScheduleβ or another subdivision of or to
an attachment are, unless otherwise specified, to an article, section, exhibit,
schedule or subdivision of or an attachment to the document in which such
reference appears.
Β
(d)Β Β Β Β Any
document defined or referred to in this Appendix or in any document that
incorporates this Appendix means such document as from time to time amended,
modified, supplemented or replaced, including by waiver or consent, and includes
all attachments to and instruments incorporated in such document.
Β
(e)Β Β Β Β Any
statute defined or referred to in this Appendix or in any document that
incorporates this Appendix means such statute as from time to time amended,
modified, supplemented or replaced, including by succession of comparable
successor statutes, and includes any rules and regulations promulgated under
such statute and any judicial and administrative interpretations of such
statute.
Β
(f)Β Β Β Β Calculation
of any amount on or as of any date will be determined at or as of the close
of
business on such day after the application of any monies, payments and other
transactions to be applied on such day, except that calculations as of the
Cutoff Date will be determined as of the open of business on such day prior
to
the application of any monies, payments and other transactions to be applied
on
such day.
Β
(g)Β Β Β Β In
the
computation of periods of time from a specified date to a later specified
date,
the word βfromβ means βfrom and including,β the word βtoβ means βto but
excludingβ and the word βthroughβ means βto and including.β
Β
AA-1
(h)Β Β Β Β All
terms
defined in this Appendix apply to the singular and plural forms of such terms
and the term βincludingβ means βincluding without limitation.β
Β
(i)Β Β Β Β References
to a Person are also to its permitted successors and assigns.
Β
Definitions
Β
βAccrued
Note Interestβ
means,
for a Class and a Payment Date, the sum of the Note Monthly Interest and
the
Note Interest Shortfall.
Β
βAct
of
Noteholdersβ
has
the
meaning specified in Section 11.3(a) of the Indenture.
Β
βAdjusted
Pool Balanceβ
means,
on the Closing Date, an amount equal to:
Β
Β |
(a)
|
the
Initial Pool Balance, minus
|
Β
Β |
(b)
|
the
Yield Supplement Overcollateralization Amount,
|
Β
and
means, on a Payment Date, an amount (not less than zero) equal to:
Β
Β |
(a)
|
the
Pool Balance as of the last day of the preceding Collection Period,
minus
|
Β
Β |
(b)
|
the
Yield Supplement Overcollateralization
Amount.
|
Β
βAdministration
Agreementβ
means
the Administration Agreement, dated as of the Cutoff Date, among the
Administrator, the Issuer and the Indenture Trustee.
Β
βAdministratorβ
means
Ford Credit, in its capacity as administrator under the Administration
Agreement.
Β
βAffiliateβ
means,
for a specified Person, any other Person controlling, controlled by or under
common control with such specified Person. For the purposes of this definition,
βcontrolβ when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise.
Β
βAmount
Financedβ
means,
for a Receivable, the amount financed by the Obligor for the purchase of
the
Financed Vehicle, the purchase of extended warranty protection plans, physical
damage, credit life and disability insurance policies and similar products,
prior balances on trade-in vehicles and other related fees and
charges.
Β
βAnnual
Percentage Rateβ
or
βAPRβ
of
a
Receivable means the annual rate of finance charges stated in the Receivable
or
in any federal Truth In Lending Act correction notice related to the
Receivable.
Β
AA-2
βApplicable
Tax Stateβ
means
the State in which the Owner Trustee maintains its Corporate Trust Office,
the
State in which the Owner Trustee maintains its principal executive offices
and
the State of Michigan.
Β
βAuthenticating
Agentβ
has
the
meaning specified in Section 2.12(a) of the Indenture.
Β
βAvailable
Collectionsβ
means,
for a Payment Date, the sum of the following amounts for such Payment Date
or
the preceding Collection Period:
Β
Β |
(a)
|
Collections,
plus
|
Β
Β |
(b)
|
Purchase
Amounts received on Receivables that became Purchased Receivables
during
such Collection Period, plus
|
Β
Β |
(c)
|
any
amounts deposited by the Servicer to purchase the Trust Property
on such
Payment Date pursuant to Section 8.1 of the Sale and Servicing
Agreement,
minus
|
Β
Β |
(d)
|
the
Supplemental Servicing Fee.
|
Β
βAvailable
Fundsβ
means,
for a Payment Date, the sum of the following amounts for such Payment
Date:
Β
Β |
(a)
|
Available
Collections,
|
Β
Β |
(b)
|
the
Reserve Account Draw Amount,
|
Β
Β |
(c)
|
any
Net Swap Receipts, and
|
Β
Β |
(d)
|
any
Swap Termination Payments paid by a Swap Counterparty to the Issuer
and
not paid by the Issuer to a replacement Swap
Counterparty.
|
Β
βBank
Accountsβ
means
the Reserve Account, the Collection Account and the Principal Payment
Account.
Β
βBankruptcy
Codeβ
means
the United States Bankruptcy Code, 11 U.S.C. 101 etΒ seq.
Β
βBasic
Documentsβ
means
the Certificate of Formation, the Limited Liability Company Agreement, the
Certificate of Trust, the Trust Agreement, the Purchase Agreement, the Sale
and
Servicing Agreement, the Indenture, the Administration Agreement, the Interest
Rate Swap, the DTC Letter and the Control Agreement.
Β
βBook-Entry
Noteβ
means
a
beneficial interest in any of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes
and
the Class D Notes, in each case issued in book-entry form as described in
Section 2.10 of the Indenture.
Β
AA-3
βBusiness
Dayβ
means
any day other than a Saturday, a Sunday or a day on which banking institutions
or trust companies in New York, New York or the State of Delaware are authorized
or obligated by law, regulation or executive order to close.
Β
βCalculation
Agentβ
has
the
meaning specified in Section 3.19 of the Indenture.
Β
βCertificate
of Formationβ
means
the Amended and Restated Certificate of Formation of Ford Credit Auto
Receivables Two LLC.
Β
βCertificate
of Trustβ
means
the Amended and Restated Certificate of Trust of Ford Credit Auto Owner Trust
2006-B.
Β
βClassβ
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4
Notes, the Class B Notes, the Class C Notes or the Class D Notes, as
applicable.
Β
βClass
A Notesβ
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4
Notes.
Β
βClass
A-1 Note Purchase Agreementβ
means
the Class A-1 Note Purchase Agreement, dated as of August 22, 2006, among
Credit
Suisse Securities (USA) LLC, Greenwich Capital Markets, Inc. and X.X. Xxxxxx
Securities Inc., as the "Class
A-1 Note Purchasers,"
and
the Depositor.
Β
βClass
A-1 Notesβ
means
the $657,000,000 Class A-1 5.4048%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-1
to
the Indenture.
Β
βClass
A-2 Notesβ
means
the Class A-2a Notes and the Class A-2b Notes, collectively.
Β
βClass
A-2a Notesβ
means
the $470,000,000 Class A-2a 5.42 %
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-2
to
the Indenture.
Β
βClass
A-2b Notesβ
means
the $470,000,000 Class A-2b Floating Rate Asset Backed Notes issued by the
Issuer, substantially in the form of Exhibit A-2 to the Indenture.
Β
βClass
A-3 Notesβ
means
the $730,000,000 Class A-3 5.26%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-3
to
the Indenture.
Β
βClass
A-4 Notesβ
means
the $438,560,000 Class A-4 5.25%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-4
to
the Indenture.Β
Β
βClass
B Notesβ
means
the $87,333,000 Class B 5.43 %
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit B
to the
Indenture.
Β
βClass
C Notesβ
means
the $58,222,000 Class C 5.68 %
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit C
to the
Indenture.
Β
AA-4
βClass
D Note Purchase Agreementβ
means
the Class D Note Purchase Agreement, dated as of August 22, 2006, between
Credit
Suisse Securities (USA) LLC, as the "Class
D Note Purchaser",
and
the Depositor.
Β
βClass
D Note Transferβ
has
the
meaning specified in Section 2.4(i) of the Indenture.
Β
βClass
D Notesβ
means
the $58,222,000 Class D 7.12 %
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit D
to the
Indenture.
Β
βClearing
Agencyβ
means
an organization registered as a βclearing agencyβ pursuant to Section 17A of the
Exchange Act.
Β
βClosing
Dateβ
means
August 29, 2006.
Β
βCodeβ
means
the Internal Revenue Code of 1986.
Β
βCollateralβ
means
(a) the Trust Property, (b) the Issuer's rights under the Sale and Servicing
Agreement, (c) the Issuer's rights under the Interest Rate Swap, (d) all
present
and future claims, demands, causes of action and choses in action in respect
of
the foregoing, and (e) all payments on or under and all proceeds of the
foregoing, but
excluding,
the
Trust Distribution Account (if established) and all funds deposited in the
Trust
Distribution Account, if any.
Β
βCollection
Accountβ
means
the account or accounts established and maintained pursuant to Section 4.1(a)
of
the Sale and Servicing Agreement.
Β
βCollection
Periodβ
means
each calendar month commencing with the Cutoff Date. For any Payment Date
and
Determination Date or for purposes of determining the Principal Balance,
Pool
Balance or Note Pool Factor, the related Collection Period means the Collection
Period preceding (a) such Payment Date or Determination Date or (b) the month
in
which the Principal Balance, Pool Balance or Note Pool Factor is
determined.
Β
βCollectionsβ
means,
for a Collection Period, all amounts received and applied by the Servicer
on the
Receivables during such Collection Period, including, without
duplication:
Β
Β |
(a)
|
payments
received from Obligors, plus
|
Β
Β |
(b)
|
payments
received on behalf of Obligors, including amounts under physical
damage,
credit life and disability insurance policies, plus
|
Β
Β |
(c)
|
partial
prepayments due to refunds of cancelled items originally included
in the
Amount Financed, such as extended warranty protection plan costs
or
physical damage, credit life, disability insurance premiums and
similar
products, plus
|
Β
Β |
(d)
|
Liquidation
Proceeds, plus
|
Β
Β |
(e)
|
Recoveries,
|
Β
AA-5
Β
but
excluding
amounts
on any Receivable for which the Purchase Amount has been included in the
Available Funds in a prior Collection Period.
βControl
Agreementβ
means
the Collateral Account Control Agreement, dated as of the Cutoff Date, among
the
Depositor, the Issuer, the Indenture Trustee and The Bank of New York, in
its
capacity as a securities intermediary.
Β
βControlling
Classβ
means
(a) the Outstanding Class A Notes, (b) if no Class A Notes are Outstanding,
the
Outstanding Class B Notes, (c) if no Class B Notes are Outstanding, the
Outstanding Class C Notes, and (d) if no Class C Notes are Outstanding, the
Outstanding Class D Notes.
Β
βCorporate
Trust Officeβ
means,
Β
Β |
(a)
|
with
respect to the Owner Trustee:
|
Β
000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
or
at
such other address in the State of Delaware as the Owner Trustee may designate
by notice to the Indenture Trustee, the Administrator and the Depositor,
or the
principal corporate trust office of any successor Owner Trustee (the address
of
which the successor Owner Trustee will notify the Indenture Trustee, the
Administrator and the Depositor), and
Β
Β |
(b)
|
with
respect to the Indenture Trustee:
|
Β
000
Xxxxxxx Xxxxxx
Xxxxx
0
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Structured Finance Services - Asset Backed Securities
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Ford
Credit Auto Owner Trust 2006-B
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
or
at
such other address as the Indenture Trustee may designate by notice to the
Owner
Trustee and the Administrator, or the principal corporate trust office of
any
successor Indenture Trustee (the address of which the successor Indenture
Trustee will notify the Owner Trustee and the Administrator).
Β
βCredit
and Collection Policyβ
means
the credit and collection policies and procedures of Ford Credit relating
to
retail installment sale contracts originated or purchased and serviced by
Ford
Credit as they may change from time to time.
Β
AA-6
βCustodianβ
has
the
meaning specified in Section 2.5 of the Sale and Servicing
Agreement.
Β
βCutoff
Dateβ
means
August 1, 2006.
Β
βDealerβ
means
the seller of a Financed Vehicle, originator of the related Receivable and
seller of the Receivable to Ford Credit.
Β
βDealer
Recourseβ
means
all recourse rights against the originating Dealer on a Receivable.
Β
βDefaultβ
means
any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.
Β
βDefinitive
Notesβ
has
the
meaning specified in Section 2.10 of the Indenture.
Β
βDelaware
Limited Liability Company Actβ
means
Chapter 18 of Title 6 of the Delaware Code.
Β
βDelaware
Statutory Trust Actβ
means
Chapter 38 of Title 12 of the Delaware Code.
Β
βDelinquentβ
means
a
Receivable on which more than $49.99 of the scheduled payment required to
be
paid by the Obligor is past due.
Β
βDepositorβ
means
Ford Credit Auto Receivables Two LLC.
Β
βDetermination
Dateβ
means,
for a Collection Period, the Business Day immediately preceding the related
Payment Date.
Β
βDTC
Letterβ
means
the letter of representations for the Notes, dated August 28, 2006 among
the
Issuer, the Indenture Trustee and The Depository Trust Company.
Β
βEvent
of Defaultβ
has
the
meaning specified in Section 5.1(a) of the Indenture.
Β
βEvent
of Servicing Terminationβ
has
the
meaning specified in Section 7.1 of the Sale and Servicing
Agreement.
Β
βExchange
Actβ
means
the Securities Exchange Act of 1934.
Β
βFinal
Scheduled Payment Dateβ
means,
for each Class, the Payment Date specified below:
Β
Class
|
Β |
Final
Scheduled Payment Date
|
Class
A-1
|
Β |
September
15, 2007
|
Class
A-2a
|
Β |
July
15, 2009
|
Class
A-2b
|
Β |
July
15, 2009
|
Class
A-3
|
Β |
October
15, 2010
|
Class
A-4
|
Β |
September
15, 2011
|
Class
B
|
Β |
February
15, 2012
|
Class
C
|
Β |
June
15, 2012
|
Class
D
|
Β |
February
15, 2013
|
Β
AA-7
βFinanced
Vehicleβ
means
a
new or used car or light truck and all related accessories securing an Obligor's
indebtedness under a Receivable.
Β
βFirst
Priority Principal Paymentβ
means,
for a Payment Date, the greater of:
Β
Β |
(a)
|
an
amount (not less than zero) equal to the Note Balance of the Class
A Notes
as of the preceding Payment Date minus
the Adjusted Pool Balance, and
|
Β
Β |
(b)
|
on
and after the Final Scheduled Payment Date of any Class A Notes,
the Note
Balance of such Class A Notes.
|
Β
βFitchβ
means
Fitch, Inc., d/b/a Fitch Ratings.
Β
βFloating
Rate Notesβ
means
the Class A-2b Notes.
Β
βFord
Creditβ
means
Ford Motor Credit Company, a Delaware corporation.
Β
βGrantβ
means
to mortgage, pledge, assign and to xxxxx x xxxx upon and a security interest
in
the relevant property.
Β
βIndemnified
Personβ
has
the
meaning specified in Section 6.7(c) of the Indenture, Section 6.3(b) of the
Sale
and Servicing Agreement and Section 7.2(b) of the Trust Agreement, as
applicable.
Β
βIndentureβ
means
the Indenture, dated as of the Cutoff Date, between the Issuer and the Indenture
Trustee.
Β
βIndenture
Trusteeβ
means
The Bank of New York, a New York banking corporation, not in its individual
capacity but solely as Indenture Trustee under the Indenture.
Β
βIndependentβ
means
that the relevant Person (a) is independent of the Issuer, the Depositor
and
their Affiliates, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, the Depositor or their
Affiliates, and (c) is not an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions of or for the Issuer,
the Depositor or their Affiliates.
Β
βIndependent
Certificateβ
means
a
certificate or opinion to be delivered to the Indenture Trustee under Section
11.1 of the Indenture, signed by an Independent appraiser or other expert
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and stating that the signer has read the definition
of βIndependentβ and that the signer is Independent.
Β
AA-8
βInitial
Pool Balanceβ
means
$3,149,999,909.60, the aggregate Principal Balance of the Receivables as
of the
Cutoff Date.
Β
βInitial
Purchaserβ
means
Ford Credit Auto Receivables Two LLC.
Β
βInsolvency
Eventβ
means,
for a Person, (a) the making of a general assignment for the benefit of
creditors, (b) the filing of a voluntary petition in bankruptcy, (c) being
adjudged bankrupt or insolvent, or having had an order entered against such
Person for relief in any bankruptcy or insolvency proceeding, (d) the filing
by
such Person of a petition or answer seeking reorganization, liquidation,
dissolution or similar relief under any statute, law or regulation, (e) seeking,
consenting to or acquiescing in the appointment of a trustee, liquidator,
receiver or similar official of such Person or of all or any substantial
part of
such Personβs assets, (f) the failure to obtain dismissal or a stay within 60
days of the commence-ment of or the filing by such Person of an answer or
other
pleading admitting or failing to contest the material allegations of a petition
filed against such Person in any proceeding against such Person seeking (i)
reorganization, liquidation, dissolution or similar relief under any statute,
law or regulation or (ii) the appointment of a trustee, liquidator, receiver
or
similar official of such Person or of all or any substantial part of such
Person's assets, or (g) the failure by such Person generally to pay its debts
as
such debts become due.
Β
βInterest
Periodβ
means,
for a Payment Date, (a) for the Class A-1 Notes and the Floating Rate Notes,
from the preceding Payment Date (or the Closing Date in the case of the first
Payment Date) to the following Payment Date and (b) for each other Class
of
Notes, from the 15th day of the calendar month preceding each Payment Date
(or
the Closing Date in the case of the first Payment Date) to the 15th day of
the
following calendar month.
Β
βInterest
Rate Swapβ
means
the swap transaction entered into between the Issuer as Party B, and the
Swap
Counterparty, as Party A, pursuant to the ISDA Master Agreement, the related
schedule thereto and the confirmation, each dated as of August 22, 2006,
together with any additional swap entered into by the Issuer on or after
the
Closing Date.
Β
βIssuerβ
means
Ford Credit Auto Owner Trust 2006-B.
Β
βIssuer
Orderβ
and
βIssuer
Requestβ
has
the
meaning specified in Section 11.1(a) of the Indenture.
Β
βLIBORβ
means
(i) with respect to the first Interest Period, 5.32813% and (ii) with respect
to
any subsequent Interest Period, the following rate, as determined by the
Calculation Agent:
Β
Β |
(a)
|
the
rate for U.S. dollar deposits for a period of one month which appears
on
the Telerate Page 3750 (or any replacement page) as of 11:00 a.m.,
London
time, on the LIBOR Determination Date;
and
|
Β
Β |
(b)
|
if
such rate does not appear on the Telerate Page 3750, the rate determined
on the basis of the rates at which deposits in U.S. Dollars are
offered by
the LIBOR Reference Banks at approximately 11:00 a.m., London time,
on the
LIBOR Determination Date to prime banks in the London interbank
market for
a period of one month commencing on such LIBOR Determination Date
and in a
principal amount of at least U.S.$1,000,000, the Calculation Agent
will
request the principal London office of each of the LIBOR Reference
Banks
to provide a quotation of its rate. If at least two such quotations
are
provided, the rate will be the arithmetic mean of the quotations.
If fewer
than two quotations are provided as requested, the rate will be
the
arithmetic mean of the rates quoted by three major banks in New
York City,
selected by the Calculation Agent, at approximately 11:00 a.m.,
New York
City time, on that LIBOR Determination Date for loans in U.S. Dollars
to
leading European banks for a period of one month commencing on
the LIBOR
Determination Date and in a principal amount of at least U.S.$1,000,000;
provided however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting rates as mentioned in this sentence,
LIBOR for such Interest Period will be the same as LIBOR for the
immediately preceding Interest
Period.
|
Β
AA-9
Β
βLIBOR
Determination Dateβ
means,
the date that is two London Banking Days prior to the first day of the
applicable Interest Period.
Β
βLIBOR
Reference Banksβ
means
four major banks in the London interbank market selected by the Calculation
Agent.
Β
βLienβ
means
a
security interest, lien, charge, pledge or encum-brance.
Β
βLimited
Liability Company Agreementβ
means
the Amended and Restated Limited Liability Company Agreement of the Depositor,
dated as of March 1, 2001, executed by Ford Credit, as sole member.
Β
βLiquidated
Receivableβ
means
a
Receivable for which the Servicer has received and applied the proceeds of
a
sale by auction or other disposition of the related Financed
Vehicle.
Β
βLiquidation
Proceedsβ
means,
for a Collection Period and any Liquidated Receivable and any other Receivable
that is charged off during such Collection Period in accordance with the
Credit
and Collection Policy, an amount equal to:
Β
Β |
(a)
|
all
amounts received and applied by the Servicer with respect to such
Receivable from whatever source, whether allocable to interest
or
principal, during such Collection Period, minus
|
Β
Β |
(b)
|
Recoveries
with respect to such Receivable, minus
|
Β
Β |
(c)
|
the
sum of any amounts expended by the Servicer for the account of
the related
Obligor in accordance with the Credit and Collection Policy, including
collection expenses and all amounts paid to third parties in connection
with the repossession, transportation, reconditioning and disposition
of
the related Financed Vehicle, minus
|
Β
AA-10
Β
Β |
(d)
|
any
amounts required by law or under the Credit and Collection Policy
to be
remitted to the related Obligor.
|
Β
βLondon
Banking Dayβ
shall
mean any day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits) in
London.
Β
βMonthly
Investor Reportβ
has
the
meaning specified in Section 3.4(a) of the Sale and Servicing
Agreement.
Β
βMonthly
Remittance Required Ratingsβ
has
the
meaning specified in Section 4.3(a) of the Sale and Servicing
Agreement.
Β
βMoody'sβ
means
Xxxxx'x Investors Service, Inc.
Β
βNet
Swap Paymentβ
means,
for any Payment Date, the net amount, if any, payable by the Issuer to the
Swap
Counterparty on such Payment Date, excluding any Swap Termination
Payment.
Β
βNet
Swap Receiptβ
means,
for any Payment Date, the net amount, if any, payable by the Swap Counterparty
to the Issuer on such Payment Date, excluding any Swap Termination
Payment.
Β
βNote
Balanceβ
means,
for a Note or Class of Notes, the initial aggregate principal amount of such
Note or Class of Notes minus
all
amounts distributed on such Note or Class of Notes that is allocable to
principal.
Β
βNote
Interest Rateβ
means,
for each Class, the interest rate per annum specified below:
Β
Class
|
Β |
Note
Interest Rate
|
Class
A-1
|
Β |
5.4048%
|
Class
A-2a
|
Β |
5.42%
|
Class
A-2b
|
Β |
one-month
LIBOR + 0.02%
|
Class
A-3
|
Β |
5.26%
|
Class
A-4
|
Β |
5.25%
|
Class
B
|
Β |
5.43%
|
Class
C
|
Β |
5.68%
|
Class
D
|
Β |
7.12%
|
βNote
Interest Shortfallβ
means,
for a Class of Notes and a Payment Date, an amount equal to:
Β
Β |
(a)
|
the
Note Monthly Interest for the preceding Payment Date for such Class,
plus
|
Β
AA-11
Β |
(b)
|
any
outstanding Note Interest Shortfall for that Class for the preceding
Payment Date together with interest on such Note Interest Shortfall,
to
the extent lawful, at the Note Interest Rate for such Class for
the
related Interest Period, minus
|
Β
Β |
(c)
|
the
amount of interest that was paid to the Noteholders of such Class
on such
preceding Payment Date.
|
Β
βNote
Monthly Interestβ
means,
for a Class of Notes and a Payment Date, the aggregate amount of interest
accrued on the Note Balance of that Class at the Note Interest Rate for such
Class for the related Interest Period.
Β
βNote
Ownerβ
means,
for a Book-Entry Note, the Person who is the beneficial owner of a Book-Entry
Note as reflected on the books of the Clearing Agency or on the books of
a
Person maintaining an account with such Clearing Agency (as a direct participant
or as an indirect participant, in each case in accordance with the rules
of such
Clearing Agency).
Β
βNote
Paying Agentβ
means
the Indenture Trustee and any other Person appointed as Note Paying Agent
pursuant to Section 2.13 of the Indenture.
Β
βNote
Pool Factorβ
means,
for a Class of Notes and a Payment Date, a seven-digit decimal figure equal
to
the Note Balance of such Class after giving effect to any principal payments
to
be made on that Class on that Payment Date divided by the initial Note Balance
of such Class.
Β
βNote
Registerβ
and
βNote
Registrarβ
have
the meanings specified in Section 2.4 of the Indenture.
Β
βNoteholderβ
means
the Person in whose name a Note is registered on the Note Register.
Β
βNotesβ
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4
Notes, the Class B Notes, the Class C Notes and the Class D Notes,
collectively.
Β
βObligorβ
means
the purchaser or co-purchasers of the Financed Vehicle or any guarantor or
other
Person who owes payments under the related Receivable (not including any
Dealer
for Dealer Recourse).
Β
βOfficer's
Certificateβ
means
(a) for the Issuer, a certificate signed by a Responsible Person of the Issuer
and (b) for the Depositor or the Servicer, a certificate signed by any officer
of the Depositor or the Servicer, as applicable.
Β
βOpinion
of Counselβ
means
a
written opinion of counsel which counsel is reasonably acceptable to the
Indenture Trustee, the Owner Trustee and the Rating Agencies, as
applicable.
Β
AA-12
βOther
Assetsβ
means
any assets or interests in any assets (other than the Trust Property) conveyed
or purported to be conveyed by the Depositor to any Person other than the
Issuer, whether by way of a sale, capital contribution, the Grant of a Lien
or
otherwise.
Β
βOutstandingβ
means,
as of any date, all Notes authenticated and delivered under the Indenture
on or
before such date except (a) Notes that have been cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation, (b) Notes or portions
of
Notes to the extent an amount necessary to pay all or a portion of such Notes
has been deposited with the Indenture Trustee or any Note Paying Agent in
trust
for the Noteholders of such Notes on or before such date, providedΒ that
if such
Notes are to be redeemed, notice of such redemption has been given pursuant
to
the Indenture or provision for such notice has been made in a manner
satisfactory to the Indenture Trustee, and (c) Notes in exchange for or in
lieu
of which other Notes have been authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture Trustee is presented
that
any such Notes are held by a bona fide purchaser, providedΒ that
in
determining (i) whether Noteholders evidencing the required Note Balance
have
given any request, demand, authorization, direction, notice, consent or waiver
under any Basic Document, Notes owned by the Issuer, the Depositor, the Servicer
or their Affiliates will be deemed not to be Outstanding and (ii) whether
the
Indenture Trustee is protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Person of the Indenture Trustee knows to be so owned will be
deemed
not to be Outstanding. Notes owned by the Issuer, the Depositor, the Servicer
or
their Affiliates that have been pledged in good faith will be treated as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Issuer, the Depositor, the Servicer or their
Affiliate.
Β
βOwner
Trusteeβ
means
U.S. Bank Trust National Association, a national banking association, not
in its
individual capacity but solely as Owner Trustee under the Trust
Agreement.
Β
βPayment
Dateβ
means
the 15th day of each calendar month or, if not a Business Day, the next Business
Day, commencing in the first full month after the Closing Date.
Β
βPermitted
Investmentsβ
means
book-entry securities, negotiable instru-ments or securities represented
by
instruments in bearer or registered form that evidence:
Β
(a)Β Β Β Β direct
non-callable obligations of, and obligations fully guaranteed as to timely
payment by, the United States,
Β
(b)Β Β Β Β demand
deposits, time deposits, certificates of deposit or bankers' acceptances
of any
depository institution or trust company (i) incorporated under the laws of
the
United States or any State or any United States branch or agency of a foreign
bank, (ii) subject to supervision and examination by federal or State banking
or
depository institution authorities, and (iii) that at the time the investment
or
contractual commitment to invest is made, the commercial paper or other
short-term unsecured debt obligations (other than obligations with a rating
based on the credit of a Person other than such depository institution or
trust
company) of such depository institution or trust company have the Required
Rating,
Β
AA-13
(c)Β Β Β Β commercial
paper, including asset-backed commercial paper, having, at the time the
investment or contractual commitment to invest is made, the Required
Rating,
Β
(d)Β Β Β Β investments
in money market funds having, at the time the investment or contractual
commitment to invest is made, a rating in the highest investment grade category
from each of the Rating Agencies (including funds for which the Indenture
Trustee or the Owner Trustee or any of their Affiliates is investment manager
or
advisor),
Β
(e)Β Β Β Β repurchase
obligations with respect to any security that is a direct non-callable
obligation of, or fully guaranteed by, the United States or any agency or
instrumentality of the United States the obligations of which are backed
by the
full faith and credit of the United States, in either case entered into with
a
depository institution or trust com-pany (acting as principal) described
in
clause (b) above, and
Β
(f)Β Β Β Β any
other
investment for which the Issuer or the Administrator has received Rating
Agency
Confirmation.
Β
βPermitted
Lienβ
means
a
tax, mechanics' or other Lien that attaches by operation of law, or any security
interest of the Depositor in the Purchased Property under the Purchase
Agreement, the Issuer in the Trust Property under the Sale and Servicing
Agreement or the Indenture Trustee in the Collateral under the Indenture.
Β
βPersonβ
means
any legal person, including any corporation, natural person, joint venture,
limited liability company, partnership, trust, business trust, association,
government, any department or agency of any government or any other entity
of
whatever nature.
Β
βPool
Balanceβ
means,
on the last day of a Collection Period, an amount equal to the aggregate
Principal Balance of the Receivables as of such day, excluding Purchased
Receivables.
Β
βPreliminary
Prospectusβ
means
the preliminary prospectus supplement, dated August 21, 2006, to the Depositor's
prospectus, dated August 21, 2006.
Β
βPrincipal
Balanceβ
means,
for a Receivable as of the close of business on the last day of a Collection
Period, an amount (not less than zero) equal to:
Β
Β |
(a)
|
the
Amount Financed, minusΒ
|
Β
Β |
(b)
|
the
portion of all Collections applied on or prior to such date allocable
to
principal, minus
|
Β
Β |
(c)
|
Realized
Losses.
|
Β
βPrincipal
Payment Accountβ
means
the administrative subaccount of the Collection Account established and
maintained pursuant to Section 4.1(b) of the Sale and Servicing
Agreement.
Β
AA-14
βProceedingβ
means
any suit in equity, action at law or other judicial or administrative
proceeding, or governmental investigation.
Β
βProspectusβ
means
(a) the Preliminary Prospectus, together with the final prospectus supplement,
dated August 22, 2006, to the Depositor's prospectus, dated August 21, 2006,
relating to the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the
Class B Notes and the Class C Notes, (b) the preliminary offering memorandum,
dated August 21, 2006, and the final offering memo-randum, dated August 22,
2006, relating to the Class A-1 Notes and (c) the preliminary offering
memorandum, dated August 21, 2006, and the final offering memo-randum, dated
August 22, 2006, relating to the Class D Notes.
Β
βPurchase
Agreementβ
means
the Purchase Agreement, dated as of the Cutoff Date, between the Sponsor
and the
Depositor.
Β
βPurchase
Amountβ
means,
for a Receivable, the Principal Balance of the Receivable as of the last
day of
the preceding Collection Period plus 30 days of interest at the applicable
APR
or, if such Receivable has been charged off, an amount equal to the Realized
Loss on such Receivable minus any Recoveries through the last day of the
preceding Collection Period.
Β
βPurchased
Propertyβ
means
(a) the Receivables, (b) all amounts received and applied on the Receivables
on
or after the Cutoff Date, (c) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of
Ford
Credit in the Financed Vehicles, (d) rights to receive proceeds from claims
on
any physical damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors, (e) Dealer Recourse, (f) the Receivables
Files, (g) all property securing the Receivables, (h) rebates of premiums
and
other amounts relating to insurance policies and other items financed under
the
Receivables in effect as of the Cutoff Date, (i) all present and future claims,
demands, causes of action and choses in action in respect of any of the
foregoing, and (j) all payments on or under and all proceeds in respect of
any
of the foregoing.
Β
βPurchased
Receivableβ
means,
for a Collection Period, a Receivable (a) purchased by the Servicer pursuant
to
Section 3.2(a) of the Sale and Servicing Agreement, (b) repurchased by the
Depositor pursuant to Section 2.4(a) of the Sale and Servicing Agreement,
or (c)
repurchased by Ford Credit pursuant to Section 3.3(a) of the Purchase
Agreement.
Β
βQIBβ
has
the
meaning specified in Section 2.4 of the Indenture.
Β
βQualified
Institutionβ
means
any bank or depository institution organized under the laws of the United
States
or any State or any United States branch or agency of a foreign bank or
depository institution that (a) is subject to supervision and examination
by
federal or State banking authorities, (b) has a short-term deposit rating
of
βP-1β by Moody's and βA-1+β by Standard & Poor's, (c) if such institution
holds any Bank Accounts other than as segregated trust accounts and the deposits
are to be held in such accounts more than 30 days, has a long-term unsecured
debt rating or issuer rating of not less than βAA-β by Standard & Poor's,
and (d) if such institution is organized under the laws of the United States,
whose deposits are insured by the Federal Deposit Insurance
Corporation.
Β
AA-15
βQualified
Trust Institutionβ
means
the corporate trust department of The Bank of New York, U.S. Bank Trust National
Association, or any other bank or depository institution organized under
the
laws of the United States or any State or any United States branch or agency
of
a foreign bank or depository institution that is subject to supervision and
examination by federal or State banking authorities that (a) is authorized
under
such laws to act as a trustee or in any other fiduciary capacity and (b)
has a
long-term deposit rating of not less than βBaa3β from Xxxxx'x.
Β
βRating
Agencyβ
means,
as of any date, each nationally recognized statistical rating organization
that
has been designated by the Depositor to provide a rating on the Notes and
is
then rating the Notes.
Β
βRating
Agency Confirmationβ
means,
for an action or request, that each of the Rating Agencies has notified the
Depositor, the Servicer, the Owner Trustee and the Indenture Trustee that
such
action or request will not result in a reduction or with-drawal of its then
current rating of the Notes.
Β
βRealized
Lossβ
means,
for a Receivable that is charged off by the Servicer in accordance with the
Credit and Collection Policy, an amount (not less than zero) equal
to:
Β
Β |
(a)
|
the
Principal Balance of such Receivable as of the last day of the
Collection
Period preceding the Collection Period in which the Receivable
is charged
off, minus
|
Β
Β |
(b)
|
any
Liquidation Proceeds received in the Collection Period in which
the
Receivable is charged off.
|
Β
βReceivableβ
means
any retail installment sale contract listed on the Schedule of Receivables,
excluding Purchased Receivables.
Β
βReceivables
Filesβ
has
the
meaning specified in Section 2.5 of the Sale and Servicing
Agreement.
Β
βRecord
Dateβ
means,
for a Payment Date and a Note in global form, the close of business on the
day
before such Payment Date and, for a Payment Date and a Definitive Note, the
last
day of the month preceding the month in which such Payment Date
occurs.
Β
βRecoveriesβ
means,
for a Receivable that has been charged off in accordance with the Credit
and
Collection Policy (whether or not such Receivable is a Liquidated Receivable)
and a Collection Period, an amount equal to:
Β
Β |
(a)
|
all
amounts received and applied by the Servicer during such Collection
Period
with respect to such Receivable from whatever source, whether allocable
to
interest or principal, after the date it was charged off, minus
|
Β
Β |
(b)
|
the
sum of any amounts expended by the Servicer for the account of
the related
Obligor in accordance with the Credit and Collection Policy, including
collection expenses and all amounts paid to third parties in connection
with the repossession, transportation, reconditioning and disposition
of
the related Financed Vehicle to the extent such amounts have not
been
included in calculating Liquidation Proceeds for such Collection
Period,
minus
|
Β
AA-16
Β |
(c)
|
any
amounts required by law or under the Credit and Collection Policy
to be
remitted to the Obligor.
|
Β
βRedemption
Dateβ
means
the Payment Date specified by the Servicer for a redemption of the Notes
pursuant to Section 10.1 of the Indenture.
Β
βRegistered
Noteholderβ
means
the Person in whose name a Note is registered on the Note Register on the
applicable Record Date.
Β
βRegular
Principal Paymentβ
means,
for a Payment Date, an amount (not less than zero) equal to:
Β
Β |
(a)
|
the
greater of:
|
Β
(i) |
the
Note Balance of the Class A-1 Notes as of the preceding Β Payment
Date or the Closing Date, as the case may be,
and
|
Β
(ii) |
an
amount equal to:
|
Β
Β |
(A)
|
the
aggregate Note Balances of all Notes as of the preceding Payment
Date or
the Closing Date, as the case may be, minus
|
Β
Β |
(B)
|
the
Pool Balance as of the last day of the preceding Collection Period
minus
the Targeted Overcollateralization
Amount,
|
Β
minus
Β
Β |
(b)
|
the
sum of the First Priority Principal Payment, the Second Priority
Principal
Payment and the Third Priority Principal
Payment;
|
Β
except
that on and after the Final Scheduled Payment Date of the Class D Notes,
the
Regular Principal Payment will be the Note Balance of the Class D
Notes.
Β
βRegulation
ABβ
means
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as clarified and interpreted by the Securities and Exchange
Commission or its staff.
Β
βResidual
Interestβ
means
a
beneficial ownership interest in the Issuer, as recorded on the Trust
Register.
Β
AA-17
βRequired
Ratingβ
means,
for short-term unsecured debt obligations, a rating of (a) βP-1β by Moody's, (b)
βA-1+β by Standard & Poor's and (c)Β if rated by Fitch, βF1+β by
Fitch.
Β
βReserve
Accountβ
means
the account established and maintained pursuant to Section 4.1(c) of the
Sale
and Servicing Agreement.
Β
βReserve
Account Draw Amountβ
means,
for a Payment Date, the least of:
Β
Β |
(a)
|
an
amount (not less than zero) equal to the Total Required Payment
minus
the Available Collections, and
|
Β
Β |
(b)
|
the
amount in the Reserve Account minus
any investment earnings.
|
Β
βResponsible
Personβ
means:
Β
(a)Β Β Β Β for
the
Administrator, the Depositor, the Sponsor and the Servicer, any Person
designated in an Officer's Certificate of such Person or other notice signed
by
an officer of such Person as authorized to act for such Person, which Officer's
Certificate or other notice has been sent to the all other transaction parties
including the Owner Trustee and the Indenture Trustee,
Β
(b)Β Β Β Β with
respect to the Issuer, any officer within the Corporate Trust Office of the
Owner Trustee, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of the Owner Trustee
customarily performing functions similar to those performed by any of the
above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge
of
and familiarity with the particular subject, and for so long as the
Administration Agreement is in effect, any Responsible Person of the
Administrator, and
Β
(c)Β Β Β Β with
respect to the Indenture Trustee or the Owner Trustee, any officer within
the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as
the
case may be, including any vice president, assistant vice president, secretary,
assistant secretary or any other officer of the Indenture Trustee or the
Owner
Trustee, as the case may be, customarily performing functions similar to
those
performed by any of the above designated officers and also, with respect
to a
particular matter, any other officer to whom such matter is referred because
of
such officer's knowledge of and familiarity with the particular subject and
also
means, with respect to the Owner Trustee, for so long as the Administration
Agreement is in effect, any Responsible Person of the
Administrator.
Β
βRule
144Aβ
means
Rule 144A under the Securities Act.
Β
βRule
144A Informationβ
has
the
meaning specified in Section 2.4 of the Indenture.
Β
βSale
and Servicing Agreementβ
means
the Sale and Servicing Agreement, dated as of the Cutoff Date, among the
Issuer,
the Depositor and the Servicer.
Β
AA-18
βSchedule
of Receivablesβ
means
the schedule or file identifying the Receivables attached as Exhibit A to
the
Purchase Agreement and Schedule A to the Sale and Servicing Agreement and
the
Indenture.
Β
βSecond
Priority Principal Paymentβ
means,
for a Payment Date, the greater of:
Β
Β |
(a)
|
an
amount (not less than zero) equal
to:
|
Β
Β |
(i)
|
the
aggregate Note Balances of the Class A Notes and the Class B Notes
as of
the preceding Payment Date, minus
|
Β
Β |
(ii)
|
the
Adjusted Pool Balance, minus
|
Β
Β |
(iii)
|
the
First Priority Principal Payment,
|
Β
and
Β
Β |
(b)
|
on
and after the Final Scheduled Payment Date of the Class B Notes,
the Note
Balance of such Class B Notes.
|
Β
βSecured
Partiesβ
means
the Noteholders and the Swap Counterparty.
Β
βSecurities
Accountβ
means
each account established and maintained pursuant to Section 1 of the Control
Agreement.
Β
βSecurities
Actβ
means
the Securities Act of 1933.
Β
βServicerβ
means
Ford Credit or the Successor Servicer.
Β
βServicing
Feeβ
means,
for a Collection Period, the fee payable to the Servicer for services rendered
during such Collection Period in an amount equal to the product of:
Β
Β |
(a)
|
one-twelfth
of 1.0%, times
|
Β
Β |
(b)
|
the
Pool Balance as of the last day of the preceding Collection
Period.
|
Β
βSpecified
Reserve Balanceβ
means
$15,749,999.55, or 0.50% of the Initial Pool Balance.
Β
βSponsorβ
means
Ford Credit.
Β
βStandard
& Poor'sβ
means
Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
Β
βStateβ
means
any state or commonwealth of the United States, or the District of
Columbia.
Β
βSuccessor
Servicerβ
means
a
successor Servicer appointed pursuant to Section 7.2 of the Sale and Servicing
Agreement.
Β
AA-19
βSupplemental
Servicing Feeβ
means,
for a Collection Period, all late fees, prepayment charges, extension fees
and
other administrative fees or similar charges on the Receivables.
Β
βSwap
Counterpartyβ
means
initially The Royal Bank of Scotland plc under the Interest Rate
Swap.
Β
βSwap
Required Ratingsβ
means
ratings at least equal to (i) a short term unsecured unsubordinated debt
rating
of βA-1β by Standard & Poor's and a long term unsecured unsubordinated debt
rating of βAβ by Standard & Poor's (or, if the Swap Counterparty has no
short term unsecured debt rating by Standard & Poor's, a long term unsecured
debt rating of βA+β by Standard & Poor's), (ii) either a long term unsecured
unsubordinated debt rating of βAa3β by Moody's, or a short term unsecured
unsubordinated debt rating of at least βP-1β by Moody's together with a long
term unsecured unsubordinated debt rating of βA1β by Moody's and (iii) a long
term unsecured and unsubordinated debt rating of βAβ by Fitch.
Β
βSwap
Termination Paymentβ
means
any termination payment payable by the Issuer to a Swap Counterparty or by
a
Swap Counterparty to the Issuer under the Interest Rate Swap.
Β
βTargeted
Credit Enhancement Amountβ
means,
for a Payment Date, the greater of:
Β
Β |
(a)
|
the
Specified Reserve Balance, and
|
Β
Β |
(b)
|
1%
of the Pool Balance as of the last day of the preceding Collection
Period.
|
Β
βTargeted
Overcollateralization Amountβ
means,
for a Payment Date, an amount equal to:
Β
Β |
(a)
|
the
Yield Supplement Overcollateralization Amount, plus
|
Β
Β |
(b)
|
the
Targeted Credit Enhancement Amount, minus
|
Β
Β |
(c)
|
the
Specified Reserve Balance.
|
Β
βThird
Priority Principal Paymentβ
means,
for a Payment Date, the greater of:
Β
Β |
(a)
|
an
amount (not less than zero) equal
to:
|
Β
(i) |
the
aggregate Note Balances of the Class A Notes, the Class B Β Notes
and the Class C Notes as of the preceding Payment Date, Β minus
|
Β
Β |
(ii)
|
the
Adjusted Pool Balance, minusΒ
|
Β
AA-20
Β
Β |
(iii)
|
the
sum of the First Priority Principal Payment and the Second Priority
Principal Payment,
|
Β
and
Β
Β |
(b)
|
on
and after the Final Scheduled Payment Date of the Class C Notes,
the Note
Balance of the Class C Notes.
|
Β
βTotal
Required Paymentβ
means,
for a Payment Date, the sum of
Β
Β |
(a)
|
the
amount, up to a maximum of $150,000, due and payable to the Indenture
Trustee under Section 6.7 of the Indenture and to the Owner Trustee
under
Sections 7.1 and 7.2 of the Trust Agreement, plus
|
Β
Β |
(b)
|
the
Servicing Fee and all unpaid Servicing Fees from preceding Collection
Periods, plus
|
Β
Β |
(c)
|
the
Accrued Note Interest for all Classes of Notes, plus
|
Β
Β |
(d)
|
any
Net Swap Payment payable to the Swap Counterparty, plus
|
Β
Β |
(e)
|
any
Swap Termination payment payable to the Swap Counterparty, plus
|
Β
Β |
(d)
|
the
First Priority Principal Payment, plus
|
Β
Β |
(e)
|
the
Second Priority Principal Payment, plus
|
Β
Β |
(f)
|
the
Third Priority Principal Payment, plus
|
Β
Β |
(g)
|
on
or after the Final Scheduled Payment Date of the Class D Notes,
the Note
Balance of the Class D Notes.
|
Β
Following
an Event of Default and an acceleration of the Notes or an Insolvency Event
or
dissolution of the Depositor, until the Note Balances of all Notes have been
paid in full, the Total Required Payment will also include the aggregate
Note
Balances of all Notes.
Β
βTrust
Accountsβ
means
the Bank Accounts and the Trust Distribution Account (if
established).
Β
βTrust
Agreementβ
means
the Amended and Restated Trust Agreement dated as of the Cutoff Date, between
the Depositor and the Owner Trustee.
Β
βTrust
Distribution Accountβ
means
the account that may be established and maintained pursuant to Section 4.1(g)
of
the Sale and Servicing Agreement.
Β
βTrust
Indenture Actβ
or
βTIAβ
means
the Trust Indenture Act of 1939.
Β
βTrust
Propertyβ
means
(a) the Purchased Property, (b) the Depositor's rights under the Purchase
Agreement, (c) the Depositor's rights under the Sale and Servicing Agreement,
(d) all security entitlements relating to the Trust Accounts and the property
deposited in or credited to any of the Trust Accounts, (e) all present and
future claims, demands, causes of action and choses in action in respect
of any
of the foregoing, and (f) all payments on or under and all proceeds in respect
of any of the foregoing.
Β
AA-21
βTrust
Registerβ
and
βTrust
Registrarβ
have
the meanings specified in Section 3.2 of the Trust Agreement.
Β
βUCCβ
means
the Uniform Commercial Code as in effect in any relevant
jurisdiction.
Β
βUnderwriting
Agreementβ
means
the Underwriting Agreement, dated August 22, 2006, between the Depositor
and
Credit Suisse Securities (USA) LLC, Greenwich Capital Markets, Inc. and X.X.
Xxxxxx Securities Inc., as the representatives of the underwriters named
in such
agreement.
Β
βU.S.
Bank Trustβ
means
U.S. Bank Trust National Association, a national banking
association.
Β
βVoid
Class D Note Transferβ
has
the
meaning specified in Section 2.4(i) of the Indenture.
Β
βYield
Supplement Overcollateralization Amountβ
means,
for the Closing Date and each Payment Date, the amount specified on the Yield
Supplement Overcollateralization Schedule for such date. The Yield Supplement
Overcollateralization Amount has been calculated for the Closing Date and
each
Payment Date as the sum for each Receivable of the amount (not less than
zero)
equal to:
Β
Β |
(a)
|
the
future payments on such Receivable discounted to present value
as of the
last day of the preceding Collection Period (or the Cutoff Date,
for the
Closing Date) at the APR of the Receivable, minus
|
Β
Β |
(b)
|
such
future payments on such Receivable discounted to present value
as of the
last day of the preceding Collection Period at
8.75%.
|
Β
For
purposes of this calculation, the future payments on each Receivable are
the
equal monthly payments that would reduce the Receivable's outstanding Principal
Balance as of the Cutoff Date to zero on the Receivable's final scheduled
payment date, at an interest rate equal to the APR of the Receivable and
without
any delays, defaults or prepayments.
Β
AA-22
Β
βYield
Supplement Overcollateralization Scheduleβ
means,
for the Closing Date and each Payment Date, the following schedule:
Β
Closing
Date
|
$
|
238,883,784.58
|
Β |
December
2008
|
$
|
69,562,330.19
|
September
2006
|
Β |
231,041,262.06
|
Β
|
January
2009
|
Β |
65,501,015.77
|
October
2006
|
Β |
223,329,829.43
|
Β |
February
2009
|
Β |
61,579,539.33
|
November
2006
|
Β |
215,750,726.45
|
Β |
March
2009
|
Β |
57,798,343.44
|
December
2006
|
Β |
208,304,183.77
|
Β |
April
2009
|
Β |
54,157,486.89
|
January
2007
|
Β |
200,987,571.09
|
Β |
May
2009
|
Β |
50,655,637.29
|
February
2007
|
Β |
193,799,843.36
|
Β |
June
2009
|
Β |
47,290,948.01
|
March
2007
|
Β |
186,741,470.11
|
Β |
July
2009
|
Β |
44,061,431.13
|
April
2007
|
Β |
179,813,159.10
|
Β |
August
2009
|
Β |
40,963,949.83
|
May
2007
|
Β |
173,015,779.61
|
Β |
September
2009
|
Β |
37,993,540.56
|
June
2007
|
Β |
166,349,899.67
|
Β |
October
2009
|
Β |
35,145,363.80
|
July
2007
|
Β |
159,816,072.31
|
Β |
November
2009
|
Β |
32,419,540.86
|
August
2007
|
Β |
153,414,856.86
|
Β |
December
2009
|
Β |
29,815,907.79
|
September
2007
|
Β |
147,147,029.82
|
Β |
January
2010
|
Β |
27,334,491.37
|
October
2007
|
Β |
141,013,427.78
|
Β |
February
2010
|
Β |
24,975,426.19
|
November
2007
|
Β |
135,014,691.19
|
Β |
March
2010
|
Β |
22,738,542.05
|
December
2007
|
Β |
129,151,293.40
|
Β |
April
2010
|
Β |
20,623,815.81
|
January
2008
|
Β |
123,423,952.93
|
Β |
May
2010
|
Β |
18,630,677.10
|
February
2008
|
Β |
117,833,499.88
|
Β |
June
2010
|
Β |
16,757,665.84
|
March
2008
|
Β |
112,380,580.06
|
Β |
July
2010
|
Β |
15,003,112.20
|
April
2008
|
Β |
107,065,880.97
|
Β |
August
2010
|
Β |
13,364,937.24
|
May
2008
|
Β |
101,890,003.75
|
Β |
September
2010
|
Β |
11,840,128.41
|
June
2008
|
Β |
96,853,346.84
|
Β |
October
2010
|
Β |
10,424,785.39
|
July
2008
|
Β |
91,956,186.49
|
Β |
November
2010
|
Β |
9,118,104.26
|
August
2008
|
Β |
87,198,684.91
|
Β |
December
2010
|
Β |
7,919,313.13
|
September
2008
|
Β |
82,580,822.26
|
Β |
January
2011
|
Β |
6,827,727.60
|
October
2008
|
Β |
78,102,385.72
|
Β |
February
2011
|
Β |
5,842,357.63
|
March
2011
|
Β |
73,762,955.01
|
Β |
November
2011
|
Β |
4,962,248.12
|
April
2011
|
Β |
4,186,548.43
|
Β |
December
2011
|
Β |
868,109.60
|
May
2011
|
Β |
3,513,467.17
|
Β |
January
2012
|
Β |
653,459.94
|
June
2011
|
Β |
2,939,436.02
|
Β |
February
2012
|
Β |
470,392.94
|
July
2011
|
Β |
2,457,570.08
|
Β |
March
2012
|
Β |
318,360.47
|
August
2011
|
Β |
2,054,545.44
|
Β |
April
2012
|
Β |
197,208.73
|
September
2011
|
Β |
1,708,680.57
|
Β |
May
2012
|
Β |
106,688.23
|
October
2011
|
Β |
1,395,621.99
|
Β |
June
2012
|
Β |
45,807.85
|
November
2011
|
Β |
1,115,424.80
|
Β |
July
2012
|
Β |
12,095.07
|
Β
AA-23
Β
EXHIBIT
A
Ford
Credit Auto Owner Trust 2006-B
Monthly
Investor Report
Β
Collection
Period
Payment
Date
Transaction
MonthΒ
Β
Additional
information about the structure, cashflows, defined terms and parties for
this
transaction can be found in the prospectus supplement,
available on the SEC website (xxxx://xxx.xxx.xxx) under the registration
number
333-131003 and at xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxxxxxxxxxxxxxxxxxxx/xxxxx.xxxxx.
Β
I.
ORIGINAL DEAL PARAMETERS
|
Β | Β | Β | Β | Β |
Weighted
Avg Remaining
|
Β | Β |
Dollar
Amount
|
Β |
#
of Receivables
|
Β |
Term
at Cutoff
|
Initial
Pool Balance
|
Β |
Β
|
Β |
Β
|
Β |
Β
|
Original
Securities:
|
Β |
Dollar
Amount
|
Β
|
Note
Interest Rate
|
Β
|
Legal
Final Maturity
|
Class
A-1 Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
A-2a Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
A-2b Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
A-3 Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
A-4 Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
B Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
C Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Class
D Notes
|
Β |
Β
|
Β |
%
|
Β |
Β
|
Total
|
Β |
Β
|
Β | Β | Β | Β |
Β
II.
AVAILABLE FUNDS
Interest:
Interest
Collections
Β
Principal:
Principal
Collections
Prepayments
in Full
Liquidation
Proceeds
Recoveries
Sub
Total
Β
Collections
Β
Purchase
Amounts:
Purchase
Amounts Related to Principal
Purchase
Amounts Related to Interest
Sub
Total
Clean-up
Call
Available
Collections
Reserve
Account Draw Amount
Net
Swap
Receipt - Tranche A-2b
Available
Funds
EA-1
Β
Ford
Credit Auto Owner Trust 2006-B
Monthly
Investor Report
Β
Collection
Period
Payment
Date
Transaction
Month
Β
III. DISTRIBUTIONS | Β |
Calculated
Amount
|
Β |
Amount
Paid
|
Β |
Shortfall
|
Β |
Carryover
Shortfall
|
Β |
Remaining
Available
Funds
|
Owner
Trustee Fees and Expenses
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Indenture
Trustee Fees and Expenses
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Servicing
Fee
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Net
Swap Payment - Tranche A-2b
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class A-1 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class A-2a Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class A-2b Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class A-3 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class A-4 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Pay
Swap Term Payment
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
First
Priority Principal Payment
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class B Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Second
Priority Principal Payment
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class C Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Third
Priority Principal Payment
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Interest
- Class D Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Reserve
Account Deposit
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Regular
Principal Payment
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Additional
Trustee Fees and Expenses
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Residual
Released to Depositor
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Total
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Β
Β
Β |
Principal
Payment:
|
|
Β
|
Β | Β |
Β | Β |
First
Priority Principal Payment
|
Β | Β |
Second
Priority Principal Payment
|
Β | Β |
Third
Priority Principal Payment
|
Β | Β |
Regular
Principal Payment
|
Β
|
Β | Β |
Β | Β |
Total
|
Β
Β
IV.
NOTEHOLDER PAYMENTS
Β
Β | Β |
Noteholder
Principal Payments
|
Β |
Noteholder
Interest Payments
|
Β |
Total
Payment
|
||||||
Β
|
Β
|
Actual
|
Β
|
Per
$1,000 of
Original
Balance
|
Β
|
Actual
|
Β |
Per
$1,000 of
Original
Balance
|
Β |
Actual
|
Β |
Β Per
$1,000 of
Original
Balance
|
Class
A-1 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-2a Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-2b Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-3 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-4 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
B Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
C Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Class
D Notes
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Total
|
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Β
EA-2
Ford
Credit Auto Owner Trust 2006-B
Monthly
Investor Report
Β
Collection
Period
Payment
Date
Transaction
Month
V.
NOTE BALANCE AND POOL INFORMATION
|
Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β |
Beginning
of Period
Balance
|
Β |
Note
Factor
|
Β |
End
of Period
Balance
|
Β |
Note
Factor
|
Class
A-1 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-2a Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-2b Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-3 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
A-4 Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
B Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
C Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Class
D Notes
|
Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β |
Total
|
Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β |
Pool
Information
|
Β | Β | Β | Β | Β | Β | Β | Β |
Weighted
Average APR
|
Β | Β | Β | Β | Β | Β | Β | Β |
Weighted
Average Remaining Term
|
Β | Β | Β | Β | Β | Β | Β | Β |
Number
of Receivables Outstanding
|
Β | Β | Β | Β | Β | Β | Β | Β |
Pool
Balance
|
Β | Β | Β | Β | Β | Β | Β | Β |
Adjusted
Pool Balance (Pool Balance - YSOC Amount)
|
Β | Β | Β | Β | Β | Β | Β | Β |
Pool
Factor
|
Β | Β | Β | Β | Β | Β | Β | Β |
Β
VI.
OVERCOLLATERALIZATION INFORMATION
Β
Specified
Reserve Balance
Targeted
Credit Enhancement Amount
Yield
Supplement Overcollateralization Amount
Targeted
Overcollateralization Amount
Actual
Overcollateralization Amount (EOP Pool Balance -EOP Note Balance)
Β
VII.
RECONCILIATION OF RESERVE ACCOUNT
Β
Beginning
Reserve Account Balance
Reserve
Account Deposits Made
Reserve
Account Draw Amount
Β
Ending
Reserve Account Balance
Change
in
Reserve Account Balance
Β
Specified
Reserve Balance
EA-3
Β
Ford
Credit Auto Owner Trust 2006-B
Monthly
Investor Report
Β
Collection
Period
Payment
Date
Transaction
Month
VIII.
NET LOSSES AND DELINQUENT ACCOUNTS
|
Β | Β | Β | Β |
Β | Β |
#
of Receivables
|
Β
|
Amount
|
Realized
Loss
|
Β | Β | Β | Β |
(Recoveries)
|
Β | Β | Β | Β |
Net
Losses for Current Collection Period
|
Β | Β | Β | Β |
Cumulative
Net Losses Last Collection
|
Β | Β | Β | Β |
Cumulative
Net Losses for all Collection Periods
|
Β | Β | Β | Β |
Ratio
of Net Losses for Current Collection Period to Beginning of Period
Pool
Balance (annualized)
|
Β | Β | Β | Β |
Β
Delinquent
Receivables:
Β
Β | Β |
%
of EOP Pool
|
Β
|
#
of Receivables
|
Β
|
Amount
|
31-60
Days Delinquent
|
Β | Β | Β | Β | Β | Β |
61-90
Days Delinquent
|
Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β |
Over
120 Days Delinquent
|
Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β |
Total
Delinquent Receivables
|
Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β |
Repossesion
Inventory:
|
Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | Β |
Repossesed
in Current Collection Period
|
Β | Β | Β | Β | Β | Β |
Total
Repossesed Inventory
|
Β | Β | Β | Β | Β | Β |
Β
Ratio
of Net Losses to the Average Pool Balance for the Collection
Period:
Second
Preceding Collection Period
Preceding
Collection Period
Current
Collection Period
Three
Month Average
Β
Number
of 61+ Delinquent Receivables to EOP Number of Outstanding
Receivables:
Second
Preceding Collection Period
Preceding
Collection Period
Current
Collection Period
Three
Month Average
Β
Β
EA-4