EXHIBIT 10.5
SERVICING AGREEMENT
between
FORD MOTOR CREDIT COMPANY,
as Servicer
and
GS WHOLE LOAN TRUST,
as Purchaser
Dated as of March 1, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND USAGE......................................................................1
Section 1.1 Construction and Usage............................................................1
Section 1.2 Definitions.......................................................................2
ARTICLE II SERVICER AS CUSTODIAN......................................................................7
Section 2.1 Custody of Receivable Files.......................................................7
Section 2.2 Duties of Servicer as Custodian...................................................7
Section 2.3 Instructions; Authority to Act....................................................8
Section 2.4 Custodian's Indemnification.......................................................8
Section 2.5 Effective Period and Termination..................................................8
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND
PURCHASED PROPERTY.........................................................................9
Section 3.1 Duties of Servicer................................................................9
Section 3.2 Collection of Receivable Payments; Extensions, Rebates and
Adjustments on the Receivables ..................................................10
Section 3.3 Realization Upon Receivables.....................................................10
Section 3.4 Application and Allocations of Collections.......................................10
Section 3.5 Maintenance of Security Interests in Financed Vehicles...........................10
Section 3.6 No Impairment....................................................................10
Section 3.7 Repurchase of Receivables Upon Breach by the Servicer............................10
Section 3.8 Repurchase of Receivables After Occurrence of Deferred
Repurchase Trigger Event.........................................................11
Section 3.9 Servicer Enforcement of Repurchase Obligations of the Seller.....................12
Section 3.10 Servicing Fees...................................................................12
Section 3.11 Annual Statement as to Compliance; Notice of Event of
Servicing Termination............................................................13
Section 3.12 Annual Independent Certified Public Accountants' Report..........................13
Section 3.13 Servicer Expenses................................................................14
Section 3.14 Future Securitization or Other Disposition of the Receivables....................14
Section 3.15 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.......................................................15
Section 3.16 Audit of Servicer's Records......................................................15
ARTICLE IV DISTRIBUTIONS; STATEMENTS.................................................................15
Section 4.1 Establishment of Collection Account by the Purchaser.............................15
Section 4.2 Remittances......................................................................15
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PAGE
Section 4.3 Net Remittances to Purchaser.....................................................16
Section 4.4 Statements to Purchaser..........................................................17
ARTICLE V THE SERVICER..............................................................................17
Section 5.1 Representations of Servicer......................................................17
Section 5.2 Indemnification..................................................................18
Section 5.3 Limitation on Liability of Servicer and Others...................................18
Section 5.4 Delegation of Duties.............................................................19
Section 5.5 Merger or Consolidation of, or Assumption of the Obligations
of, Servicer.....................................................................19
Section 5.6 Ford Credit Not to Resign as Servicer............................................20
ARTICLE VI SERVICING TERMINATION.....................................................................20
Section 6.1 Events of Servicing Termination..................................................21
Section 6.2 Agreement to Cooperate Upon Termination or Resignation of
the Servicer.....................................................................22
Section 6.3 Waiver of Events of Servicing Termination........................................22
Section 6.4 Termination Date.................................................................22
ARTICLE VII MISCELLANEOUS PROVISIONS..................................................................23
Section 7.1 Amendment........................................................................23
Section 7.2 Counterparts.....................................................................23
Section 7.3 GOVERNING LAW....................................................................23
Section 7.4 Headings.........................................................................23
Section 7.5 Severability of Provisions.......................................................23
Section 7.6 Waivers..........................................................................23
Section 7.7 Assignment.......................................................................23
Section 7.8 Notices..........................................................................23
Section 7.9 Third-Party Beneficiaries........................................................24
EXHIBITS
EXHIBIT A SCHEDULE OF RECEIVABLES
EXHIBIT B FORM OF MONTHLY SERVICER REPORT
EXHIBIT C SERVICER'S ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
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This SERVICING AGREEMENT (this "AGREEMENT"), is made as of March 1,
2005 between FORD MOTOR CREDIT COMPANY, a Delaware corporation, as servicer (in
such capacity, the "SERVICER"), and GS WHOLE LOAN TRUST, a Delaware statutory
trust, as purchaser (the "PURCHASER").
RECITALS:
The Purchaser has purchased a portfolio of receivables consisting of
motor vehicle retail installment sale contracts and related property acquired by
the Seller in its ordinary course of business.
The Purchaser and the Servicer wish to provide the terms on which the
Servicer will service and act as custodian of, on behalf of the Purchaser, such
receivables.
In consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained in this Agreement,
the parties agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Section 1.1 CONSTRUCTION AND USAGE. The following rules of
construction and usage apply to this Agreement.
(a) Accounting tennis used and not defined in this Agreement or
used and not defined in any certificate or other document delivered under this
Agreement, and accounting terms partly defined in this Agreement, or in any such
certificate or other document to the extent not defined, have the respective
meanings given to them under U.S. generally accepted accounting principles as in
effect on the date of this Agreement or of such certificate or document. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under U.S. generally accepted accounting principles, the definitions contained
in this Agreement or in any such certificate or other document control.
(b) The term "including" means "including without limitation."
(c) The definitions contained in this Agreement apply to both the
singular and plural forms of such terms.
(d) Any agreement, instrument or statute defined or referred to in
this Agreement means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and includes (in the case of agreements or
instruments) references to all attachments to such agreements or instruments and
instruments incorporated by reference. References to a Person are also to its
permitted successors and assigns.
Section 1.2 DEFINITIONS. The following words and phrases have the
following meanings:
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" 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.
"AMOUNT FINANCED" means, with respect to a Receivable, the amount of
credit extended under the Receivable 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, and other related costs.
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the annual rate
of finance charges stated in the Receivable.
"AUTHORIZED OFFICER" means:
(a) with respect to the Servicer, any Person designated by the
Servicer from time to time as authorized to act for the Servicer and named in an
Officer's Certificate distributed to, or electronically posted to a password
protected website for which access has been provided to, the Purchaser; or
(b) with respect to the Purchaser, any officer of the Purchaser,
including any vice president, assistant vice president, secretary, assistant
secretary or any other officer of the Purchaser, 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.
"AVAILABLE COLLECTIONS" means, for any Distribution Date, the sum of
the following amounts with respect to the Collection Period preceding such
Distribution Date: (a) all Collections; and (b) Repurchase Amounts received with
respect to Receivables that became Repurchased Receivables during such
Collection Period; MINUS amounts constituting the Supplemental Servicing Fee.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in New York, New York are
authorized or obligated by law, regulation or executive order to remain closed.
"CLOSING DATE" means March 30, 2005, or such other date as the Servicer
and the Purchaser may otherwise agree.
"COLLECTION ACCOUNT" will have the meaning as set forth in Section 4.1.
"COLLECTION PERIOD" means each calendar month during the term of this
Agreement or, in the case of the initial Collection Period, the period from and
including the Cutoff Date to and
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including the last day of the month in which the Cutoff Date occurred. Any
amount stated "as of the close of business of the last day of a Collection
Period" gives effect to all applications of Collections and all remittances,
nettings or distributions as of the end of the day on such last day.
"COLLECTIONS" means, with respect to a Collection Period, all amounts
received from any source and posted by the Servicer during such Collection
Period on or with respect to the Receivables, including (a) payments from
Obligors, (b) payments on behalf of Obligors, including amounts from extended
warranty protection plans, physical damage, credit life and disability insurance
policies and similar products, (c) Liquidation Proceeds, (d) Recoveries and (e)
rebates of costs or premiums for cancelled items originally included in the
Amount Financed, such as extended warranty protection plans, physical damage,
credit life and disability insurance policies and similar products; BUT
EXCLUDING amounts with respect to any Receivable for which the Repurchase Amount
has been included in Available Collections in a prior Collection Period, MINUS
the sum of (i) any amounts expended by the Servicer for the account of the
Obligor in accordance with the Credit and Collection Policy plus (ii) any
amounts required by law or under the Credit and Collection Policy to be remitted
to the Obligor (in each case to the extent such amounts have not been netted
from Liquidation Proceeds or Recoveries).
"CREDIT AND COLLECTION POLICY" means the credit and collection
standards, policies, procedures and practices of Ford Credit from time to time
relating to retail installment sale contracts serviced by Ford Credit.
"CUTOFF DATE" means the open of business on March 1, 2005.
"DEALER" means the dealer who sold a Financed Vehicle and who
originated and assigned the respective Receivable to the Seller under an
agreement between such dealer and the Seller.
"DEALER RECOURSE" means, with respect to a Receivable, all recourse
rights relating to misrepresentation or fraud against the Dealer that originated
the Receivable and any successor Dealer.
"DEFERRED REPURCHASE AMOUNT" means, with respect to a Receivable, all
Collections (including Recoveries) on such Receivable in any Collection Period
from time to time after the occurrence of a Deferred Repurchase Trigger Event.
"DEFERRED REPURCHASE TRIGGER EVENT" means, with respect to any
Receivable, the occurrence of any of the following: (a) the related Obligor
becomes a debtor in a bankruptcy proceeding, (b) the related Obligor is engaged
in litigation with the Servicer or any of its Affiliates or (c) the Servicer
charges off that Receivable in accordance with the Credit and Collection Policy.
"DELINQUENT RECEIVABLE" means a Receivable for which the scheduled
monthly payment due under the Receivable (determined without giving effect to
any extension granted by the Servicer or any rescheduling in any bankruptcy
proceeding) has not been received by the Servicer, as determined in accordance
with the Credit and Collection Policy, by the payment due date specified in the
Receivable.
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"DISTRIBUTION DATE" means the 15th day of each calendar month or, if
such day is not a Business Day, the next succeeding Business Day, beginning
April 15, 2005.
"EVENT OF SERVICING TERMINATION" means an event specified in Section
6.1.
"FINANCED VEHICLE" means a new or used automobile or light duty truck
securing an Obligor's indebtedness under the respective Receivable.
"FORD CREDIT" means Ford Motor Credit Company, a Delaware corporation.
"FORD CREDIT'S RETAIL PORTFOLIO" means the Seller's entire portfolio of
receivables originated and serviced by the Seller (other than any receivables
originated or acquired by PRIMUS).
"INFORMATION AGREEMENT" means an agreement acceptable to the Seller,
between the Purchaser and a Person (a) requiring such Person to maintain the
confidentiality of any confidential information provided to such Person and (b)
imposing appropriate restrictions on the use of such confidential information
under the circumstances including, if appropriate, that such confidential
information may not be used to make any investment decision other than the
investment decision with respect to the Receivables being evaluated in
connection with the provision of such information.
"LIEN" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than tax liens, mechanics' liens, and any liens
that attach to the respective Receivable by operation of law.
"LIQUIDATED RECEIVABLE" means a Receivable as to which the Servicer has
received and posted the proceeds of the sale by auction or other disposition of
the related Financed Vehicle.
"LIQUIDATION PROCEEDS" means, with respect to a Collection Period, all
amounts received from any source and posted by the Servicer during such
Collection Period (but excluding Recoveries) on or with respect to (a) a
Liquidated Receivable and (b) any other Receivable that is charged off during
such Collection Period in accordance with the Credit and Collection Policy, in
each case, net of (i) any amounts expended by the Servicer for the account of
the Obligor and (ii) any amounts required by law or under the Credit and
Collection Policy to be remitted to the Obligor.
"MONTHLY REMITTANCE CONDITION" has the meaning as set forth in Section
4.2(a).
"MONTHLY SERVICER REPORT" has the meaning as set forth in Section 4.4.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"OBLIGOR" means, with respect to any Receivable, the purchaser or
co-purchasers of a new or used automobile or light duty truck or any other
Person who owes payments under the Receivable (not including any Dealer in
respect of Dealer Recourse).
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"OFFICER'S CERTIFICATE" means, with respect to the Servicer and the
Purchaser, as applicable, a certificate signed by the chairman of the board, the
president, any executive vice president, any vice president, the treasurer, any
assistant treasurer, any secretary, any assistant secretary, or the controller
of the Servicer or the Purchaser, as applicable.
"OPINION OF COUNSEL" means a written opinion of counsel, which counsel
may be internal or external counsel to the Servicer.
"PERSON" means any legal person, including any corporation, estate,
natural person, firm, joint venture, joint stock company, limited liability
company, limited liability partnership, partnership (limited or general), trust,
business trust, unincorporated organization, association, enterprise,
government, any department or agency of any government or any other entity of
whatever nature.
"POOL BALANCE" means, as of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables at the end
of the preceding Collection Period (or in the case of the first Collection
Period, the Cutoff Date) as reduced by all Collections allocable to principal
for the current Collection Period and by all Realized Losses during the current
Collection Period.
"PRINCIPAL BALANCE" of a Receivable, as of the close of business on the
last day of a Collection Period, means the Amount Financed MINUS the sum of: (a)
all amounts received and posted on the Receivable on or prior to such date
allocable to principal and (b) any payment of the Repurchase Amount with respect
to the Receivable allocable to principal.
"PURCHASE AND SALE AGREEMENT" means the Purchase and Sale Agreement
dated as of March 1, 2005, between the Purchaser and the Seller.
"PURCHASED PROPERTY" has the meaning set forth in the Purchase and Sale
Agreement.
"REALIZED LOSS" means with respect to a Receivable that is charged off
by the Servicer in accordance with the Credit and Collection Policy in any
Collection Period, the excess of the Principal Balance of any such Receivable
(as of the close of business on the last day of the prior Collection Period)
over Liquidation Proceeds received and posted in the Collection Period (if any)
to the extent allocable to principal.
"RECEIVABLE" means any retail installment sale contract listed on the
Schedule of Receivables. The term "Receivable" does not include any Repurchased
Receivable.
"RECEIVABLE FILES" means the documents specified in Section 2.1.
"RECOVERIES" mean with respect to a Collection Period, all amounts
received from any source and posted by the Servicer during such Collection
Period on or with respect to a Receivable after the date the Receivable has been
charged off by the Servicer in accordance with the Credit and Collection Policy
(whether or not such Receivable is a Liquidated Receivable, including any
amounts received pursuant to a sale in accordance with Section 3.8(b) of this
Agreement), net of (i) any amounts expended by the Servicer for the account of
the Obligor and
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(ii) any amounts required by law or under the Credit and Collection Policy to be
remitted to the Obligor.
"REPORTING DATE" means the 10th day of each calendar month or, if such
day is not a Business Day, the next succeeding Business Day.
"REPURCHASE AMOUNT" means, with respect to any Receivable and
Collection Period, an amount equal to (a) the Principal Balance of the
Receivable (as of the close of business on the last day of the prior Collection
Period) plus accrued interest at the APR of the Receivable through the
Receivable's scheduled due date during the Collection Period in which the
repurchase occurs or (b) in the case of a Receivable that was charged off by the
Servicer in a previous Collection Period, the Realized Loss with respect to the
Receivable MINUS any Recoveries with respect to the Receivable.
"REPURCHASED RECEIVABLE" means, with respect to a Collection Period, a
Receivable repurchased by the Seller pursuant to Section 3.3 of the Purchase and
Sale Agreement or by the Servicer pursuant to Section 3.7 of this Agreement, as
of the close of business on the last day of such Collection Period.
"SCHEDULE OF RECEIVABLES" means the list identifying the Receivables
attached as Exhibit A to this Agreement (which list may be in the form of an
electronic file or other format reasonably acceptable to the Purchaser).
"SECURITIZATION" means a transaction that involves the transfer of the
Receivables by the Purchaser to an entity that issues one or more classes of
securities supported by the cashflow generated by the Receivables.
"SELLER" means Ford Credit, in its capacity as seller of the
Receivables.
"SERVICER" means Ford Credit, in its capacity as the servicer of the
Receivables.
"SERVICING FEE" means, with respect to a Collection Period, the fee
payable to the Servicer for services rendered during such Collection Period,
which will be equal to one-twelfth of the Servicing Fee Rate multiplied by the
Pool Balance as of the first day of the Collection Period.
"SERVICING FEE RATE" means 1.0% per annum.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"SUPPLEMENTAL SERVICING FEE" means, with respect to a Collection
Period, all late fees, extension fees and other administrative fees and expenses
or similar charges with respect to the Receivables.
"TERMINATION DATE" means January 28, 2012.
"UCC" means the Uniform Commercial Code as in effect in any relevant
jurisdiction.
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Capitalized terms used in this Agreement and not otherwise defined have
the meanings given to them in the Purchase and Sale Agreement.
ARTICLE II
SERVICER AS CUSTODIAN
Section 2.1 CUSTODY OF RECEIVABLE FILES. The Purchaser appoints the
Servicer, and the Servicer accepts such appointment, to act as the agent of the
Purchaser as custodian of the following documents or instruments, which are
constructively delivered to the Purchaser (collectively, the "RECEIVABLE FILES")
with respect to each Receivable:
(a) The original Receivable.
(b) The original credit application fully executed by the Obligor
or a photocopy or a record of such original credit application on a computer
file.
(c) The original certificate of title or such documents that the
Servicer keeps on file in accordance with the Credit and Collection Policy
evidencing the security interest of Ford Credit in the Financed Vehicle.
(d) Any and all other documents (including any computer file or
diskette) that the Servicer keeps on file, in accordance with the Credit and
Collection Policy, relating to a Receivable, an Obligor or a Financed Vehicle.
The Servicer confirms that it has received on behalf of the Purchaser
the Receivable Files for all the Receivables and all other documents and
instruments necessary for the Servicer to act as the agent of the Purchaser for
the purposes set forth in this Section 2.1.
Section 2.2 DUTIES OF SERVICER AS CUSTODIAN.
(a) SAFEKEEPING. The Servicer will hold the Receivable Files as
custodian for the benefit of the Purchaser and maintain accurate and complete
accounts, records, and computer systems pertaining to the Receivable Files. In
performing its duties as custodian the Servicer will act with reasonable care,
using that degree of skill and attention that the Servicer exercises with
respect to the Receivable Files relating to all comparable automotive
receivables that the Servicer services for itself and others. The Servicer may
utilize the services of third parties to act as custodian of the Receivable
Files, subject to Section 5.5. In accordance with the Credit and Collection
Policy, the Servicer as Custodian will maintain the Receivable Files in such a
manner as will enable the Purchaser to verify the accuracy of the Servicer's
record keeping.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer will
provide the Purchaser access to the Receivable Files, and the related accounts,
records, and computer systems maintained by the Servicer but only upon
reasonable notice and during the normal business hours at the offices designated
by the Servicer. Any such access will be at the expense of the Purchaser. Upon
request from the Purchaser and subject to applicable privacy and confidentiality
laws, the Servicer will release any document in the Receivable Files to the
Purchaser or its designee; PROVIDED that (i) such release of documents will not
cause undue disruption of the
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Servicer's ordinary business operations and (ii) if an Event of Servicing
Termination does not exist, the Purchaser will reimburse the Servicer for any
reasonable costs and expenses incurred in effecting such release. Any document
so released will be handled by the Purchaser or its designee with due care and
returned to the Servicer as soon as the Purchaser no longer has a need for such
document.
Section 2.3 INSTRUCTIONS; AUTHORITY TO ACT. All instructions from
the Purchaser must be in writing and signed by an Authorized Officer of the
Purchaser, and the Servicer will be deemed to have received proper instructions
with respect to the Receivable Files upon its receipt of such written
instructions.
Section 2.4 CUSTODIAN'S INDEMNIFICATION. The Servicer as custodian
will defend, indemnify and hold harmless the Purchaser from and against any and
all costs, losses, claims and liabilities (including reasonable legal fees and
expenses) arising out of any improper act or omission in the maintenance and
custody by the Servicer as custodian of the Receivable Files. The Servicer will
not be liable to the Purchaser for any costs, losses, claims or liabilities
resulting from the willful misfeasance, bad faith, negligence or failure to
comply with applicable laws or regulations by the Purchaser.
Section 2.5 EFFECTIVE PERIOD AND TERMINATION.
(a) The Servicer's appointment as custodian will become effective
as of the Cutoff Date and will continue until terminated pursuant to this
Section 2.5. If Ford Credit resigns as Servicer in accordance with Section 6.2
of this Agreement or if all of the rights and obligations of the Servicer are
terminated under Section 6.1, the appointment of the Servicer as custodian under
this Agreement may be terminated by the Purchaser after 60 days' notice to the
Servicer. As soon as practicable after any termination under this Section 2.5,
the Servicer will deliver to the Purchaser, or the Purchaser's designee, the
Receivable Files and the related accounts and records maintained by the Servicer
at such place or places as the Purchaser may reasonably designate. The Purchaser
will reimburse the Servicer for all costs and expenses incurred by the Servicer
in connection with any such termination and transfer, other than in connection
with the Servicer's resignation or a termination of the Servicer under Section
6.1.
(b) Notwithstanding any termination as Custodian pursuant to
Section 2.5(a), the Servicer will be entitled to access the Receivable Files
and, upon request from the Servicer, the successor custodian will promptly
release any document in the Receivable Files to the Servicer. The Purchaser will
indemnify, defend and hold harmless the Servicer against any and all costs,
losses, claims and liabilities resulting from the failure by the successor
custodian to release Receivable Files to the Servicer in a timely manner.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND PURCHASED PROPERTY
Section 3.1 DUTIES OF SERVICER. The Servicer will manage, service,
administer and make collections on the Receivables in accordance with the Credit
and Collection Policy, using
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that degree of skill and attention that the Servicer exercises with respect to
all comparable automotive receivables that it services for itself or others. The
Servicer's duties will include:
(a) collecting and posting of all payments;
(b) responding to inquiries of Obligors on such Receivables;
(c) investigating delinquencies;
(d) sending payment coupons or invoices to Obligors;
(e) accounting for Collections; and
(f) furnishing monthly and annual statements to the Purchaser with
respect to distributions.
In performing its duties as servicer of the Receivables, the Servicer
will comply with (i) all requirements of federal, State and local laws and (ii)
the Credit and Collection Policy. The Servicer is authorized and empowered to
execute and deliver, on behalf of itself, or the Purchaser, any and all
instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Vehicles securing such Receivables.
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 Purchaser will, at the Servicer's
expense and direction, take steps to enforce the Receivable, including bringing
suit in the name of the Purchaser. The Purchaser 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.
Section 3.2 COLLECTION OF RECEIVABLE PAYMENTS; EXTENSIONS, REBATES
AND ADJUSTMENTS ON THE RECEIVABLES. The Servicer (i) will make reasonable
efforts to collect all payments called for under the terms and provisions of the
Receivables as and when the same becomes due, (ii) may grant extensions,
rebates, or adjustments on a Receivable and (iii) in its discretion waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable.
Section 3.3 REALIZATION UPON RECEIVABLES. On behalf of the
Purchaser, the Servicer will use reasonable efforts to repossess or otherwise
convert the ownership of the Financed Vehicle securing any Receivable as to
which the Servicer has determined eventual payment in full is unlikely. In any
case in which the Financed Vehicle has suffered damage, the Servicer will not be
required to expend funds in connection with the repair or the repossession of
such Financed Vehicle unless it determines in its discretion that such repair
and/or repossession will
9
increase the Liquidation Proceeds in respect of such vehicle by an amount
greater than the amount of such expenses.
Section 3.4 APPLICATION AND ALLOCATIONS OF COLLECTIONS. The Servicer
will apply and allocate Collections received on the Receivables in accordance
with the Credit and Collection Policy.
Section 3.5 MAINTENANCE OF SECURITY INTERESTS IN FINANCED VEHICLES.
The Servicer will take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Purchaser authorizes the Servicer to take such steps as are necessary to
re-perfect such security interest on behalf of the Purchaser if a Financed
Vehicle is relocated or for any other reason. The Servicer will not release the
Financed Vehicle securing any such Receivable from the security interest granted
by such Receivable in whole or in part except in the event of payment in full by
or on behalf of the Obligor under such Receivable, satisfaction of the payment
obligation evidenced by such Receivable, repossession, discounted settlement,
abandonment or by operation of law, in each case in accordance with the Credit
and Collection Policy.
Section 3.6 NO IMPAIRMENT. The Servicer will not impair the rights
of the Purchaser in the Receivables except in accordance with the Credit and
Collection Policy and as otherwise permitted by this Agreement.
Section 3.7 REPURCHASE OF RECEIVABLES UPON BREACH BY THE SERVICER.
(a) If an Authorized Officer of the Servicer has actual knowledge,
or receives notice from the Purchaser, of a breach of the covenants set forth in
Section 3.5 or Section 3.6 that materially and adversely affects any Receivable,
and such breach has not been cured in all material respects by the end of the
second Collection Period following the Collection Period in which an Authorized
Officer of the Servicer obtained actual knowledge, or was notified, of such
breach, the Servicer will purchase such Receivable materially and adversely
affected as of such last day (or, at the Servicer's option, the end of the first
Collection Period following the Collection Period in which an Authorized Officer
of the Servicer obtained actual knowledge, or was notified, of such breach). The
Servicer will remit the Repurchase Amount in accordance with Section 4.2.
(b) The sole remedy (except as provided in Section 5.2) of the
Purchaser with respect to a breach of the covenants contained in Section 3.5 and
3.6 are as set forth in Section 3.7(a). The Servicer has no duty to conduct any
investigation as to the occurrence of any condition requiring it to purchase any
Receivable pursuant to Section 3.7(a).
(c) Upon the Servicer's payment of the Repurchase Amount with
respect to any Receivable purchased pursuant to Section 3.7(a), the Purchaser
will be deemed to have assigned to the Servicer without recourse, representation
or warranty, all of the Purchaser's right, title and interest in and to such
Receivables and all security and documents relating to such Receivables. Upon
such sale, the Servicer may ▇▇▇▇ its computer files indicating that the
receivable is no longer a Receivable, may file UCC termination or amendment
statements or take any other
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action necessary or appropriate to evidence the transfer of ownership of the
Repurchased Receivable free from any Lien of the Purchaser.
Section 3.8 REPURCHASE OF RECEIVABLES AFTER OCCURRENCE OF DEFERRED
REPURCHASE TRIGGER EVENT.
(a) To the extent necessary, in the Servicer's sole discretion, to
effect the liquidation of a Receivable after the occurrence of a Deferred
Repurchase Trigger Event, the Servicer will repurchase such Receivable as of the
date of the occurrence of the Deferred Repurchase Trigger Event for the Deferred
Repurchase Amount. In consideration for the repurchase of such Receivable, the
Servicer will distribute the Deferred Repurchase Amount to the Purchaser in
accordance with Section 4.2. With respect to all Receivables repurchased
pursuant to this Section 3.8, the Purchaser will be deemed to have automatically
assigned to the Servicer, without recourse, representation or warranty, all the
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating to such Receivables, provided that the Servicer
will continue to remit any Deferred Repurchase Amounts in accordance with
Section 4.2.
(b) On behalf of the Purchaser, the Servicer, in its sole
discretion, may sell a Receivable that it has charged off in accordance with the
Credit and Collection Policy and has elected to repurchase pursuant to Section
3.8(a) as part of a bulk sale by the Servicer of charged off retail installment
sale contracts that it services for itself and others. Proceeds of any such bulk
sale allocable to the Receivables, determined by the Servicer in its discretion,
will constitute Recoveries that will be the final payment of Deferred Repurchase
Amounts relating to such Receivables. The sole right of the Purchaser with
respect to Receivables sold pursuant to this Section 3.8(b) will be the
Recoveries as described above. Upon such sale, the Servicer may ▇▇▇▇ its
computer files indicating that the receivable is no longer a Receivable, may
file UCC termination or amendment statements or take any other action necessary
or appropriate to evidence the transfer of ownership of the sold receivable free
from any Lien of the Purchaser.
Section 3.9 SERVICER ENFORCEMENT OF REPURCHASE OBLIGATIONS OF THE
SELLER. If an Authorized Officer of the Servicer has actual knowledge, or
receives notice from the Purchaser, of any breach of the representations and
warranties of the Seller set forth in Section 3.2(b) of the Purchase and Sale
Agreement that materially and adversely affects any Receivable, and such breach
has not been cured in all material respects by the last day of the second
Collection Period following the Collection Period in which an Authorized Officer
of the Servicer obtained actual knowledge, or was notified, of the breach, the
Servicer will enforce the obligation of the Seller to repurchase such Receivable
pursuant to Section 3.3 of the Purchase and Sale Agreement.
Section 3.10 SERVICING FEES.
(a) SERVICING FEE. To compensate the Servicer for services
rendered under this Agreement, the Purchaser will pay the Servicer the Servicing
Fee from the Cutoff Date until the earliest to occur of:
(i) resignation of the Servicer pursuant to Section 5.6;
(ii) termination of the Servicer pursuant to Section 6.1;
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(iii) the Termination Date; and
(iv) the final payment or liquidation of all the
Receivables.
Such Servicing Fee will be payable by netting from the amounts remitted to the
Purchaser pursuant to Section 4.3, or, at the Servicer's option, within one
Business Day of the Purchaser's receipt of the Servicer's electronic invoice for
such Servicing Fee.
(b) SUPPLEMENTAL SERVICING FEE. In addition to the Servicing Fee,
and as additional compensation for its services rendered under this Agreement,
the Servicer will retain all amounts constituting the Supplemental Servicing
Fee.
(c) SCOPE. The Purchaser acknowledges that the Servicing Fee
covers the Servicer's expenses only in connection with responding to Purchaser's
reasonable (in number and nature) inquiries regarding the Receivables as a whole
and does not cover expenses related to Purchaser's inquiries with respect to
individual Receivables. The Servicer will be entitled to compensation for
responding to Purchaser's inquiries regarding individual Receivables at a rate
equal to $250.00 per Receivable, per inquiry. The Purchaser further acknowledges
that the Servicing Fee only covers the Servicer's expenses in servicing the
Receivables in a manner consistent with its practices and procedures for
servicing retail installment sale contracts owned by Ford Credit. If the
Purchaser requests that the Servicer provide services or information beyond what
the Servicer typically provides in connection with servicing retail installment
sale contracts owned by Ford Credit, the Purchaser and the Servicer will
mutually agree on an additional fee for such services and/or information and any
other relevant terms for such services and/or information. The Servicer will
have no obligation to perform such additional services or provide such
additional information until such fee and other terms have been agreed by the
parties. Any amounts payable to the Servicer under this Section 3.10(c) will be
payable as set forth in Section 3.10(a).
Section 3.11 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF EVENT OF
SERVICING TERMINATION.
(a) The Servicer will deliver to the Purchaser on or before March
30 of each year beginning, March 30, 2006, an Officer's Certificate, dated as of
December 31 of the preceding calendar year, stating, as to the Authorized
Officer signing such Officer's Certificate, that:
(i) a review of the Servicer's activities and of its
performance under this Agreement during the preceding calendar year (or
since the Closing Date if such Closing Date occurred in the preceding
calendar year) has been made under such Authorized Officer's
supervision; and
(ii) to such Authorized Officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this
Agreement throughout such calendar year (or since the Closing Date if
such Closing Date occurred in the preceding calendar year) in all
material respects, or, if there has been a default in the fulfillment
of any such obligation in any material respect, specifying each such
default known to such Authorized Officer and the nature and status of
such default;
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PROVIDED, that if the Purchaser (and any assignee of the Purchaser in a
Securitization) is not required to file periodic reports under the Securities
Exchange Act of 1934, 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.
(b) Promptly after having obtained knowledge of the occurrence of
an Event of Servicing Termination under Section 6.1, the Servicer will deliver
to the Purchaser notice of such occurrence.
Section 3.12 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORT.
The Servicer will cause a firm of independent certified public accountants, who
may also render services to the Servicer or to Ford Credit, to deliver to the
Purchaser on or before March 30 of each year beginning March 30, 2006, with
respect to the prior calendar year, a report addressed to the board of directors
of the Servicer and to the Purchaser, to the effect that such firm has conducted
tests relating to automotive loans serviced for Ford Credit or others in
accordance with the requirements of the Uniform Single Attestation Program for
Mortgage Bankers or any successor program applicable to automotive loans (the
"PROGRAM"), to the extent the procedures in such Program are applicable to the
servicing obligations set forth in this Agreement, and except as described in
the report, disclosed no exceptions or errors in the records relating to
automobile and light-duty truck loans serviced for others that such firm is
required to report under the Program; provided, that if the Purchaser (and any
assignee of the Purchaser in a Securitization) is not required to file periodic
reports under the Securities Exchange Act of 1934 or otherwise required by law
to file such report, the firm may deliver such report on or before April 30 of
each calendar year.
The report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
Section 3.13 SERVICER EXPENSES. The Servicer will be required to 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 to the Purchaser.
Section 3.14 FUTURE SECURITIZATION OR OTHER DISPOSITION OF THE
RECEIVABLES.
(a) The Servicer acknowledges that the Purchaser may sell the
Receivables to third Persons in the form of one or more Securitizations, whole
loan or other transactions after at least 30 days' prior notice to the Servicer.
The Servicer agrees to reasonably assist the Purchaser in such regard, including
taking reasonable action required by any rating agency or credit enhancement
provider to effect any such transaction. The Purchaser will promptly reimburse
the Servicer for all reasonable costs and expenses (including the allocable
portion of any general administrative expense as determined by the Servicer)
incurred by the Servicer in providing such assistance. The Servicer will not be
required to furnish any information or provide other assistance in connection
with a Securitization, whole loan or other transaction if it would cause the
Servicer to incur an unreasonable burden or cost or to reallocate personnel or
other resources in a manner that could reasonably be expected to disrupt the
Servicer's business.
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(b) In connection with any Securitization, the Servicer will
assist the Purchaser in creating appropriate narrative disclosure regarding the
Servicer and the servicing of its retail installment sale contracts which
disclosure will be substantially similar to and not any broader than the
disclosure included by the Servicer in offering documents relating to its public
securitizations of retail installment sale contracts (as updated to the time of
such Securitization). The Servicer will have the right to approve the final form
of any such disclosure, which approval will not be unreasonably withheld. Prior
to the use of such disclosure in the Securitization, the Seller will deliver to
the Purchaser upon request an Officer's Certificate, signed by any Vice
President or Assistant Treasurer of the Servicer to the effect that such
disclosure (a copy of which will be attached to such certificate) is true and
correct in all material respects and does not omit to state a material fact
required to be stated in such disclosure or necessary to make the statements in
such disclosure not misleading in light of the circumstances under which they
are made. The Officer's Certificate may state that the scope of such disclosure
is limited to a public securitization of retail installment sale contracts where
the securities sold are rated investment grade.
(c) In the event of any Securitization or other disposition of all
or a portion of the Receivables, the Servicer will continue to service the
Receivables in accordance with this Agreement, but will do so, with respect to
the Receivables securitized or disposed of, in the capacity of a subservicer
acting on behalf of the master servicer for such securitization vehicle or for
such other transferee of the Receivables.
Section 3.15 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT OF 2002. To the extent the
Receivables have been included in a Securitization for which an Annual Report on
Form 10-K will be filed, the Servicer will provide to the Purchaser a
certificate substantially in the form of Exhibit C (revised to conform to any
amendments to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) within 30 days of Purchaser's
written request for such certificate, but in no event earlier than March 15 of
any calendar year.
Section 3.16 AUDIT OF SERVICER'S RECORDS. The Servicer will, upon
receipt by the Servicer of 30 days' prior notice and at the respective expense
of each party, permit the Purchaser and its agents once per year at a time and
on a date, mutually agreeable to the Servicer and the Purchaser, during normal
business hours to inspect, audit, and make copies of and abstracts from the
Servicer's records regarding any Receivable. No such inspection or audit may
cause undue disruption of the Servicer's ordinary business functions. Such
audits will include: (i) a review of the Servicer's Credit and Collection Policy
as it relates to collection, bankruptcy, repossession and charge off policy and
procedure, (ii) a review of the following for up to 70 Receivables per category:
(A) collection files (including collection notes and payment histories), (B)
Receivable Files for Receivables with respect to which the Financed Vehicle has
been repossessed and (C) Receivable Files for Receivables with respect to which
the related Obligor has become a debtor in a bankruptcy proceeding and (iii)
side-by-side reviews with customer service representatives on live customer
service calls relating to retail installment sale contracts.
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ARTICLE IV
DISTRIBUTIONS; STATEMENTS
Section 4.1 ESTABLISHMENT OF COLLECTION ACCOUNT BY THE PURCHASER.
The Purchaser will, prior to the Closing Date, establish and maintain an account
in the name of Purchaser (the "COLLECTION ACCOUNT") at a bank in the United
States of America. The Purchaser certifies that the Collection Account has been
established with account number ▇▇▇▇▇▇▇▇ at Citibank, ABA #▇▇▇▇▇▇▇▇▇. The
Servicer will deposit into the Collection Account all remittances required by
Section 4.2 by wire transfer in immediately available funds. All monies on
deposit in the Collection Account will be property of the Purchaser. Pending
deposit into the Collection Account, any monies collected by the Servicer with
respect to the Receivables may be used by the Servicer as its own risk and for
its own benefit and are not required to be segregated from its own funds.
Section 4.2 REMITTANCES.
(a) If Ford Credit's short term unsecured debt is rated at least
"P-1" by ▇▇▇▇▇'▇ and at least "A-1" by Standard & Poor's (this rating
requirement, the "MONTHLY REMITTANCE CONDITION"), Ford Credit may remit
Collections on the Business Day preceding each Distribution Date.
(b) Even if Ford Credit's short term unsecured debt is not rated
at least equal to the Monthly Remittance Condition, the Servicer may remit
Collections monthly until the Purchaser has notified the Servicer of the closing
date of a Securitization and has requested daily remittance. Then after such
closing date the Servicer will remit Collections within two Business Days of
posting to the Obligors' accounts in accordance with the Credit and Collection
Policy. For this purpose, Collections does not include Recoveries.
(c) If Ford Credit (or an assignee of Ford Credit pursuant to
Section 5.3) is not the Servicer or an Event of Servicing Termination occurs,
the Servicer will be required to remit Collections within two Business Days of
posting to the Obligors' accounts.
(d) Ford Credit will remit Recoveries and Repurchase Amounts with
respect to each Collection Period no later than the Business Day preceding the
related Distribution Date.
(e) The Purchaser may waive any failure to satisfy any Monthly
Remittance Condition and upon such waiver such failure will be deemed not to
have occurred for the purposes of this Article IV for the time period specified
in such waiver.
(f) For any Collection Period in which the Servicer is making
daily remittances, the Servicer will prepare and provide to the Purchaser as
part of the Monthly Servicing Report, a report reconciling its daily remittances
with Available Collections for such Collection Period and the other monthly data
for such Collection Period. If the Servicer's aggregate daily remittances exceed
Available Collections for the related Collection Period, the Purchaser will
remit to the Servicer on or before such Distribution Date the amount of such
excess. If Available Collections for the related Collection Period exceed the
aggregate of the Servicer's daily remittances, the Servicer will deposit on or
before such Distribution Date an amount equal to such excess in the Collection
Account. To the extent not already paid, the Servicer, at its option, may net
the Servicing Fee for the period from any such reconciliation payment.
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(g) If the Servicer is making remittances daily because it does
not meet the Monthly Remittance Condition under Section 4.2(a) or as a result of
a Securitization by the Purchaser as described in Section 4.2(b), the Servicer
may resume monthly remittances at such time as it once again satisfies the
Monthly Remittance Condition or the Securitization has terminated.
Section 4.3 NET REMITTANCES TO PURCHASER. If the Servicer is making
monthly remittances pursuant to Section 4.2(a), it may net the Servicing Fee
owed to the Servicer from such remittances. If the Servicer is making daily
remittances as specified in Section 4.2(b), the Servicer may make such
remittances net of the Servicing Fee until the Servicing Fee is paid in full for
the Collection Period. In either case, such amounts will be listed separately on
the Monthly Servicer Report as if such amounts were distributed to the Servicer
separately.
Section 4.4 STATEMENTS TO PURCHASER. On or before each Reporting
Date, commencing on the Reporting Date in April 2005, the Servicer will deliver
to the Purchaser with respect to all of the Receivables on an aggregate basis a
monthly servicer report substantially in the form of Exhibit B (each, a "MONTHLY
SERVICER REPORT") and a monthly data file (setting forth account-level data
identified by account number) in a form similar to Attachment A, with such
changes to the information provided in Attachment A as will be mutually agreed
to by the Servicer and the Purchaser (the "MONTHLY DATA FILE"). The Purchaser
(or any designee who has entered into an Information Agreement in form
satisfactory to the Seller) may use the information in the Monthly Data File to
prepare investor reports for any Securitization. Such investor reports may only
be prepared on a blended basis for all receivables included in such
Securitization (unless the Securitization includes only Receivables) and may not
contain information that is any more specific than that included in the Monthly
Servicer Report.
ARTICLE V
THE SERVICER
Section 5.1 REPRESENTATIONS OF SERVICER. The Servicer makes the
following representations as of the date of this Agreement and as of the Closing
Date:
(a) ORGANIZATION AND QUALIFICATION. The Servicer is duly
incorporated and validly existing as a corporation in good standing under the
laws of the State of Delaware. The Servicer is qualified as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities (including the servicing of the Receivables as
required by this Agreement) requires such qualification, license or approval,
unless the failure to obtain such qualifications, licenses or approvals would
not have a material adverse effect on the Servicer's ability to perform its
obligations under this Agreement.
(b) POWER, AUTHORIZATION AND ENFORCEABILITY. The Servicer has
power and authority to execute, deliver and perform the terms of this Agreement
and to acquire, own and sell the Receivables and to hold the Receivable Files as
custodian on behalf of the Purchaser. The Servicer has duly authorized the
execution, delivery and performance of the terms of this Agreement. This
Agreement is the legal, valid and binding obligation of the Servicer,
enforceable in accordance with its terms, except as enforceability may be
limited by insolvency,
16
bankruptcy, reorganization or other laws relating to the enforcement of
creditors' rights or by general equitable principles.
(c) NO CONFLICTS AND NO VIOLATION. The execution and delivery of
this Agreement and the performance of the transactions contemplated by this
Agreement by the Servicer will not (i) conflict with, result in a breach of nor
constitute a default under any indenture, mortgage, deed of trust, loan
agreement, guarantee or similar agreement or instrument under which the Servicer
is a debtor or guarantor, (ii) result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of the Servicer
pursuant to the terms of any such indenture, mortgage, deed of trust, loan
agreement, guarantee or similar agreement or instrument, (iii) violate the
certificate of incorporation or the bylaws of the Servicer, or (iv) violate any
law or, to the Servicer's knowledge, any order, rule or regulation applicable to
the Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Servicer of its properties; in each case, which conflict, breach,
default, lien, or violation would have a material adverse effect on the
Servicer's ability to perform its obligations under this Agreement.
(d) NO PROCEEDINGS. To the Servicer's knowledge, there are no
proceedings or investigations pending or threatened, before any court,
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, or (iii) seeking any
determination or ruling that would reasonably be expected to have a material
adverse effect on the Servicer's ability to perform its obligations under, or
the validity or enforceability of, this Agreement.
Section 5.2 INDEMNIFICATION.
(a) The Servicer will indemnify, defend and hold harmless the
Purchaser from and against any and all costs, losses, claims and liabilities
(including reasonable legal fees and expenses), to the extent that such costs,
losses, claims and liabilities arose out of, or was imposed upon the Purchaser
through, the willful misfeasance, or bad faith (other than errors in judgment)
of the Servicer in the performance of its servicing duties or failure to perform
its servicing duties under this Agreement, or by reason of reckless disregard of
its obligations and servicing duties under this Agreement. The Servicer will not
indemnify the Purchaser if the losses or claims constitute or are caused by
fraud, negligence, bad faith, or willful misconduct by the Purchaser, and the
Servicer will not indemnify the Purchaser for any costs, losses and liabilities
arising under any tax law, including any federal, state, local or foreign income
or franchise taxes or any other tax imposed on or measured by income.
(b) Indemnification under this Section 5.2 will include reasonable
fees and expenses of counsel and expenses of litigation and is in addition to
any other remedy available to the Purchaser under this Agreement. If the
Servicer made any indemnity payments pursuant to this Section 5.2 and the
recipient thereafter collects any of such amounts from others, the recipient
will promptly repay such amounts to the Servicer, without interest. Nothing
contained in this Section 5.2 will prohibit the Purchaser from bringing an
action against the Servicer, or relieve the Servicer of any liability to the
Purchaser, for a breach of any provision of this Agreement. This Section 5.2
will survive termination of this Agreement.
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Section 5.3 LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
(a) The Servicer will be liable under this Agreement only to the
extent of the obligations specifically undertaken by the Servicer in this
Agreement. The Servicer will not be under any liability to the Purchaser, except
with respect to a breach of any provision of this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment. This provision will not protect the Servicer against
any liability that would otherwise be imposed by reason of fraud, willful
misfeasance or bad faith in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Servicer may rely
in good faith on any Opinion of Counsel or on any Officer's Certificate of the
Purchaser or certificate of auditors believed to be genuine and to have been
signed by the proper party in respect of any matters arising under this
Agreement.
(b) 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, employee or agent of the
Servicer or their successors or assigns in their individual capacities or any
holder of a beneficial interest in the Servicer except for any liability that
would otherwise be imposed by reason of such Person's fraud, willful misfeasance
or bad faith.
(c) Except as provided in this Agreement, the Servicer will not be
under any obligation to appear in, prosecute, or defend any legal action that is
not incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability.
The Servicer may undertake any reasonable action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the parties
to this Agreement and the interests of the Purchaser under this Agreement. In
such event, the legal expenses and costs of such action and any liability
resulting from such action will be expenses, costs and liabilities of the
Servicer.
(d) 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.
Section 5.4 DELEGATION OF DUTIES. The Servicer may at any time
without notice to or consent of the Purchaser delegate some or substantially all
its duties under this Agreement to any Person more than 50% of the voting
control of which is owned, directly or indirectly, by Ford Motor Company. The
Servicer may at any time perform specific duties as servicer under the Agreement
through sub-contractors. However, no such delegation or subcontracting will
relieve the Servicer of its responsibilities with respect to such duties as to
which the Servicer will remain primarily responsible with respect to such
duties.
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Section 5.5 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SERVICER.
(a) SUCCESSOR UNDER THIS AGREEMENT. Subject to Section 5.5(b), a
Person will be the successor to the Servicer under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties to this Agreement, if: (i) the Servicer merges or consolidates with the
Person, (ii) the Person results from any merger, conversion, or consolidation,
to which the Servicer is a party, (iii) the Person succeeds to the business of
the Servicer or (iv) so long as Ford Credit acts as Servicer, the Person is an
entity with more than 50% of the voting control owned directly or indirectly by
Ford Motor Company.
(b) REQUIREMENTS. The following conditions must be met before the
consummation of any of the transactions listed under Section 5.5(a):
(i) the Person executes an agreement of assumption to
perform every obligation of the Servicer under this Agreement;
(ii) the Servicer delivers to the Purchaser an Officer's
Certificate and an Opinion of Counsel each stating that such merger,
conversion, consolidation, or succession and such agreement of
assumption comply with this Section 5.5 and that all conditions
precedent provided for in this Agreement relating to such transaction
have been complied with; and
(iii) the Servicer delivers to the Purchaser an Opinion of
Counsel stating that, in the opinion of such counsel, either:
(1) all financing statements and continuation
statements and amendments to such financing statements and
continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the
Purchaser, respectively, in the Receivables, and reciting the
details of such filings; or
(2) no such action will be necessary to preserve
and protect such interests.
Section 5.6 FORD CREDIT NOT TO RESIGN AS SERVICER. Subject to the
provisions of Section 5.5, the Servicer will not resign from the obligations and
duties imposed on it as Servicer under this Agreement except:
(i) with the written consent of the Purchaser; or
(ii) upon determination that the performance of its duties
under this Agreement is no longer permissible under applicable law.
Upon any determination under (ii) of the preceding sentence, notice of such
determination will be communicated to the Purchaser at the earliest practicable
time and such determination will be evidenced by an Opinion of Counsel to such
effect delivered to the Purchaser concurrently with or promptly after such
notice.
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ARTICLE VI
SERVICING TERMINATION
Section 6.1 EVENTS OF SERVICING TERMINATION. The Purchaser may
terminate all of the rights and obligations of the Servicer under this
Agreement, by notice to the Servicer, if any one or more of the following events
("EVENTS OF SERVICING TERMINATION") occurs and is continuing:
(a) Any failure by the Servicer to deliver to the Purchaser any
proceeds or payment required to be so delivered under the terms of this
Agreement that continues unremedied for a period of five (5) Business Days after
notice of such failure is received by the Servicer from the Purchaser or after
actual knowledge of such failure is obtained by an Authorized Officer of the
Servicer provided that such event will not be an Event of Servicing Termination
if:
(i) (A) such failure or delay is caused by an event
outside the control of the Servicer that the Servicer could not have
avoided through the use of commercially reasonable efforts, (B) such
failure or delay does not continue for more than five (5) Business Days
after the expiration of the cure period in Section 6.1(a), (C) during
such period the Servicer uses all commercially reasonable efforts to
perform its obligations under this Agreement and (D) the Servicer
provides the Purchaser with prompt notice of such failure or delay that
includes a description of the Servicer's efforts to remedy such failure
or delay if such failure or delay could reasonably be expected to
materially and adversely affect the rights of the Purchaser; or
(ii) (A) such failure or delay could not reasonably be
expected to, or upon investigation and quantification does not, result
in the failure or delay in delivering to the Purchaser any proceeds or
payment required to be so delivered in an amount greater than 0.05% of
the Pool Balance and (B) such failure or delay is remedied within a
reasonable period in light of the circumstances, but in no event later
than (x) as long as the Servicer's long-term debt rating is at least
"Baa3" by ▇▇▇▇▇'▇, "BBB-" by S&P or "BBB-" by Fitch, Inc., ninety (90)
days after an Authorized Officer of the Servicer obtains actual
knowledge of such failure or delay and (y) if the Servicer's long-term
debt rating does not satisfy the requirements of clause (x), ninety
(90) days after the proceeds or payment was required to be delivered.
(b) Failure on the part of the Servicer duly to observe or to
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement, which failure:
(i) materially and adversely affects the rights of the
Purchaser; and
(ii) continues unremedied for a period of 90 days after
the date on which notice of such failure, requiring the same to be
remedied, has been given to the Servicer by the Purchaser;
(c) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver, or liquidator for the Servicer in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or
20
similar proceedings, or for the winding up or liquidation of its respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(d) The consent by the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or relating to
the Servicer of or relating to substantially all of its property; or the
Servicer admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its creditors, or
voluntarily suspends payment of its obligations or becomes insolvent.
On or after the receipt by the Servicer of such notice, all authority and power
of the Servicer under this Agreement, will pass to and be vested in the
Purchaser or the Purchaser's designee. This Section 6.1 provides the sole rights
of the Purchaser to terminate the Servicer under this Agreement.
Section 6.2 AGREEMENT TO COOPERATE UPON TERMINATION OR RESIGNATION
OF THE SERVICER. Upon termination under Section 6.1 or resignation under Section
5.6, the Servicer will cooperate with the Purchaser or Purchaser's designee in
effecting the termination of the responsibilities and rights of the Servicer
under this Agreement, including, as soon as practicable, the transfer to the
Purchaser or the Purchaser's designee for administration of all cash amounts
that are at the time held by the Servicer for deposit or are thereafter received
with respect to a Receivable and the delivery of the Receivable Files and the
related accounts and records maintained by the Servicer. The Servicer will
remain obligated to perform its obligations under this Agreement until a
successor Servicer has accepted appointment as Servicer under this Agreement.
The Purchaser is authorized to take any action appropriate to transfer the
servicing duties under this Agreement to a successor servicer. In no event,
however, will the Servicer be obligated to license its proprietary servicing
software or other applications to any successor servicer or any other third
party. All reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Receivable Files to the Purchaser or
Purchaser's designee pursuant to this Section 6.2 will be paid by the Servicer
upon presentation of reasonable documentation of such costs and expenses.
Section 6.3 WAIVER OF EVENTS OF SERVICING TERMINATION. The Purchaser
may waive any Event of Servicing Termination and its consequences. 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
of this Agreement. No such waiver will extend to any subsequent or other event
or impair any right consequent thereon.
Section 6.4 TERMINATION DATE. This Agreement will terminate on the
Distribution Date in the month following the final payment or liquidation of all
the Receivables. However, so long as Ford Credit is the Servicer, this Agreement
will terminate on the earlier of (a) such Distribution Date and (b) the
Distribution Date immediately succeeding the Termination Date. However, the
Purchaser will have no rights to Collections on the Receivables after the end of
the Collection Period that precedes the final Distribution Date. At the end of
the Collection Period preceding the final Distribution Date, the Purchaser (and
its assignees) will be deemed to have
21
automatically assigned, without recourse, representation or warranty, to Ford
Credit all the Purchaser's or such assignee's right, title and interest in the
Receivables and all security and documents related to such Receivables, and all
Collections realized from the Receivables thereafter will be paid to Ford Credit
and will be property of Ford Credit, and the Purchaser will not be entitled to
such Collections or have any remaining interest in the Receivables.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 AMENDMENT. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Servicer and the
Purchaser.
Section 7.2 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which will be an original, and all of which together will constitute but one
and the same instrument.
Section 7.3 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.4 HEADINGS. The headings in this Agreement are included
for convenience only and will not affect the meaning or interpretation of any
provision of this Agreement.
Section 7.5 SEVERABILITY OF PROVISIONS. If any provision of this
Agreement is invalid or unenforceable, then, to the extent such invalidity or
unenforceability will not deprive either party of any material benefit intended
to be provided by this Agreement, all of the remaining provisions of this
Agreement will remain in full force and effect and will be binding upon the
parties to this Agreement.
Section 7.6 WAIVERS. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement will
operate as a waiver of any such power, right or remedy, nor will any single or
partial exercise of any such power, right or remedy preclude any other or
further exercise of such power, right or remedy or the exercise of any other
power, right or remedy.
Section 7.7 ASSIGNMENT. Except as provided in Section 5.5, this
Agreement may not be assigned by the Servicer without the prior written consent
of the Purchaser. The Purchaser's disposition of the Receivables to one or more
third parties in a Securitization or otherwise will not diminish the Purchaser's
right to enforce any other provisions of this Agreement.
Section 7.8 NOTICES. All communications and notices pursuant to this
Agreement to either party must be in writing and addressed or delivered to it at
its address as shown below or at such other address as may be designated by it
by notice to the other party and will be deemed given upon receipt at the
address or fax number for each party set forth below:
22
To Servicer: Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Securitization Operations Supervisor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Purchaser: GS Whole Loan Trust
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.9 THIRD-PARTY BENEFICIARIES. This Agreement does not
create, and will not be deemed to create, a relationship between the parties or
either of them and any third party in the nature of a third party beneficiary or
fiduciary relationship.
23
EXECUTED:
FORD MOTOR CREDIT COMPANY,
as Servicer
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
GS WHOLE LOAN TRUST,
as Purchaser
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real
Estate Funding Corp., as the General
Partner of ▇▇▇▇▇▇▇ Sachs Mortgage
Company as Administrator of the
Purchaser
EXHIBIT A
SCHEDULE OF RECEIVABLES
[Provided to Purchaser as Electronic File]
A-1
EXHIBIT B
FORM OF MONTHLY SERVICING REPORT
Ford Motor Credit Company
[ ]
MONTHLY SERVICING REPORT
Collection Period
Distribution Date
Transaction Month 1
I. ORIGINAL PORTFOLIO INFORMATION
Initial Pool Balance $0.00
Number of Receivables 0
Weighted Average Coupon 0.00%
Weighted Average Maturity 0
II. COLLECTIONS
INTEREST:
Interest Collections $0.00
Repurchased Receivables -- Repurchased Amounts Related to Interest 0.00
-----
Total $0.00
PRINCIPAL:
Principal Collections $0.00
Prepayments in Full 0.00
Repurchased Receivables - Repurchased Amounts Related to Principal 0.00
Liquidation Proceeds 0.00
-----
Total $0.00
Recoveries 0.00
-----
Total Collections $0.00
Principal Adjustment:
Principal Losses for Collection Period 0.00
-----
Total Regular Principal Reduction $0.00
III. SERVICING FEE
Servicing Fee Due $0.00
Servicing Fee Paid 0.00
-----
Servicing Fee Shortfall $0.00
IV. DISTRIBUTIONS
Available Collections $0.00
Servicing Fee Paid 0.00
Daily Collections Remitted 0.00
-----
Net Distribution Owed to (Servicer)/Purchaser $0.00
B-1
V. PORTFOLIO INFORMATION
BEGINNING OF PERIOD END OF PERIOD
Pool Balance 0.00 0.00
Weighted Average Coupon (WAC) 0.00% 0.00%
Weighted Average Maturity (WAM) 0 0.00
Remaining Number of Receivables 0 0
Accrued Interest
VI. NET LOSS AND DELINQUENCY ACCOUNT ACTIVITY
LOSSES:
Total Losses for Collection Period $0.00
Liquidation Proceeds 0.00
Liquidated Receivables
Recoveries 0.00
Net Losses for Collection Period 0.00
Cumulative Net Losses
DELINQUENT RECEIVABLES: # OF CONTRACTS AMOUNT
31-60 Days Delinquent 0 $0.00
61-90 Days Delinquent 0 0.00
91-120 Days Delinquent 0 0.00
Over 120 Days Delinquent 0 0.00
- -----
Total 0 $0.00
VII. REPOSSESSIONS AND BANKRUPTCIES
REPOSSESSIONS: # OF VEHICLES AMOUNT
Current Period Repossessions 0 $0.00
Current Period Repossessions Accrued Interest 0.00
Repossessions Inventory Principal Collected 0.00
Repossessions Inventory Liquidation Proceeds 0.00
Repossessions Inventory Vehicles Disposed 0
Ending Repossession Inventory 0 $0.00
BANKRUPTCIES: # OF CONTRACTS AMOUNT
Current Period Bankruptcies 0 $0.00
Current Period Bankruptcies Accrued Interest 0.00
Current Period Proceeds from Bankruptcies 0.00
Ending Bankruptcies Inventory 0 $0.00
B-2
EXHIBIT C
FORM OF SERVICER'S ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
Re: Servicing Agreement dated as of March 1, 2005 (the "Servicing
Agreement") between GS Whole Loan Trust, as Purchaser and
Ford MOTOR CREDIT COMPANY, AS SERVICER
I, [identify the certifying individual], certify to GS Whole Loan Trust
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the servicing reports delivered to GS Whole Loan Trust
under the Servicing Agreement for [state relevant period];
2. To the best of my knowledge, based on such review, the information in
each of these reports, taken as a whole, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made in light of the circumstances under which such statements were
made, not misleading as of the last day of the period covered by such report;
3. Based on my knowledge, the servicing information required to be
provided to GS Whole Loan Trust by the servicer under the Servicing Agreement is
included in these reports;
4. I am responsible for reviewing the activities performed by the servicer
under the Servicing Agreement and based upon my knowledge and the annual
compliance review required under the Servicing Agreement, and except as
disclosed in the report, the servicer has fulfilled its obligations under the
Servicing Agreement; and
5. I have disclosed in Schedule A attached to this certification, all
significant deficiencies relating to the servicer's compliance with the minimum
servicing standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in the
Servicing Agreement.
-----------------------------------
-----------------------------------
[Signature]
[Title]
Date:
C-1