SALE AND SERVICING AGREEMENT, dated as of May 1, 2001 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), by and among FORD CREDIT AUTO OWNER TRUST 2001-C (the "Issuer"), a
Delaware business trust, FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware
limited liability company, as seller (the "Seller"), and FORD MOTOR CREDIT
COMPANY, a Delaware corporation, as servicer (the "Servicer").
WHEREAS, the Issuer desires to purchase a portfolio of
receivables and related property consisting of motor vehicle retail installment
sale contracts generated by Ford Motor Credit Company and PRIMUS in the ordinary
course of their business and conveyed to the Seller;
WHEREAS, the Seller is willing to sell such portfolio of
receivables and related property to the Issuer; and
WHEREAS, Ford Motor Credit Company is willing to service such
receivables on behalf of the Issuer;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that shall
be applicable herein.
ARTICLE II
TRUST PROPERTY
SECTION 2.1 Conveyance of Trust Property . In consideration of
the Issuer's delivery to, or upon the order of, the Seller of the Notes and the
Certificates in an aggregate principal amount equal to 98.86% of the Initial
Pool Balance, the Seller does hereby irrevocably transfer, assign and otherwise
convey to the Issuer without recourse (subject to the obligations herein) all
right, title and interest of the Seller, whether now owned or hereafter
acquired, in and to the Trust Property. The transfer, assignment and conveyance
made hereunder shall not constitute and is not intended to result in an
assumption by the Issuer of any obligation of the Seller to the Obligors, the
Dealers or any other Person in connection with the Receivables and the other
Trust Property or any agreement, document or instrument related thereto.
SECTION 2.2 Representations and Warranties of the Seller as to
the Receivables . The Seller makes the following representations and warranties
as to the Receivables on which the Issuer shall be deemed to have relied in
accepting the Receivables. Such representations and warranties speak as of the
Closing Date, but shall survive the transfer, assignment and conveyance of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (a) shall
have been originated in the United States of America by a Dealer for the retail
sale of a Financed Vehicle in the ordinary course of such Dealer's business,
shall have been fully and properly executed by the parties thereto, shall have
been purchased either (X) by the Seller from Ford Credit, which in turn shall
have purchased such Receivable from a Dealer under an existing dealer agreement
with Ford Credit, and which shall have been validly assigned by such Dealer to
Ford Credit and which in turn shall have been validly assigned by Ford Credit to
the Seller in accordance with its terms, or (Y) by the Seller from Ford Credit,
which shall have been assigned such Receivable by PRIMUS, which in turn shall
have purchased such Receivable from a Dealer or other finance source (provided
that such purchase relates to an individual Receivable and not a bulk purchase)
under an existing agreement with PRIMUS, and which shall have been validly
assigned by such Dealer or other finance source to PRIMUS and shall have been
validly assigned by PRIMUS to Ford Credit in the ordinary course of business and
which in turn shall have been validly assigned by Ford Credit to the Seller in
accordance with its terms, (b) shall have created or shall create a valid,
subsisting, and enforceable first priority security interest in favor of Ford
Credit in the Financed Vehicle, which security interest has been assigned by
Ford Credit to the Seller, which in turn shall be assignable by the Seller to
the Issuer, (c) shall contain customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for realization
against the collateral of the benefits of the security, (d) shall provide for
level monthly payments (provided that the payment in the first or last month in
the life of the Receivable may be minimally different from the level payment)
that fully amortize the Amount Financed by maturity and yield interest at the
Annual Percentage Rate, (e) shall provide for, in the event that such contract
is prepaid, a prepayment that fully pays the Principal Balance, and (f) is an
Actuarial Receivable or a Simple Interest Receivable.
(ii) Schedule of Receivables. The information set forth in the
Schedule of Receivables shall be true and correct in all material respects as of
the opening of business on the Cutoff Date, and no selection procedures believed
to be adverse to the Noteholders or the Certificateholders shall have been
utilized in selecting the Receivables from those receivables which meet the
criteria contained herein. The computer tape or other listing regarding the
Receivables made available to the Issuer and its assigns (which computer tape or
other listing is required to be delivered as specified herein) is true and
correct in all material respects.
(iii) Compliance with Law. Each Receivable and the sale of the
Financed Vehicle shall have complied at the time it was originated or made and
at the execution of this Agreement shall comply in all material respects with
all requirements of applicable federal, State, and local laws, and regulations
thereunder, including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations B and Z, and State adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code, and other consumer credit laws and equal
credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent the
genuine, legal, valid, and binding payment obligation of the Obligor,
enforceable by the holder thereof in accordance with its terms subject to the
effect of bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally.
(v) No Government Obligor. None of the Receivables shall be
due from the United States of America or any State or from any agency,
department, or instrumentality of the United States of America, any State or
political subdivision of either thereof.
(vi) Security Interest in Financed Vehicle. Immediately prior
to the transfer, assignment and conveyance thereof, each Receivable shall be
secured by a first priority, validly perfected security interest in the Financed
Vehicle in favor of Ford Credit as secured party or all necessary and
appropriate actions shall have been commenced that would result in a first
priority, validly perfected security interest in the Financed Vehicle in favor
of Ford Credit as secured party.
(vii) Receivables in Force. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle have been
released from the lien granted by the related Receivable in whole or in part.
(viii) No Waiver. No provision of a Receivable shall have
been waived.
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense shall have been asserted or threatened with respect to
any Receivable.
(x) No Liens. To the best of the Seller's knowledge, no liens
or claims shall have been filed for work, labor, or materials relating to a
Financed Vehicle that shall be liens prior to, or equal with, the security
interest in the Financed Vehicle granted by the Receivable.
(xi) No Default. Except for payment defaults continuing for a
period of not more than thirty (30) days as of the Cutoff Date, no default,
breach, violation, or event permitting acceleration under the terms of any
Receivable shall have occurred; and no continuing condition that with notice or
the lapse of time would constitute a default, breach, violation, or event
permitting acceleration under the terms of any Receivable shall have arisen; and
Ford Credit shall not waive any of the foregoing.
(xii) Insurance. Ford Credit, in accordance with its customary
standards, policies and procedures, shall have determined that, as of the date
of origination of each Receivable, the Obligor had obtained or agreed to obtain
physical damage insurance covering the Financed Vehicle.
(xiii) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute an absolute sale,
transfer, assignment and conveyance of the Receivables from the Seller to the
Issuer and that the beneficial interest in and title to the Receivables not be
part of the Seller's estate in the event of the filing of a bankruptcy petition
by or against the Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, conveyed or pledged by the Seller to any Person other
than the Issuer. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each Receivable free
and clear of all Liens, encumbrances, security interests, participations and
rights of others and, immediately upon the transfer thereof, the Issuer shall
have good and marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests, participations and rights of others; and the
transfer has been perfected under the UCC.
(xiv) Valid Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction under which
the sale, transfer, assignment and conveyance of such Receivable under this
Agreement or pursuant to transfers of the Notes or the Certificates shall be
unlawful, void, or voidable. The Seller has not entered into any agreement with
any account debtor that prohibits, restricts or conditions the assignment of any
portion of the Receivables.
(xv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Issuer a
first priority, validly perfected ownership interest in the Receivables, and to
give the Indenture Trustee a first perfected security interest therein, shall
have been made.
(xvi) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(xvii) One Original. There shall be only one original
executed copy of each Receivable. The Seller, or its custodian, has possession
of such original with respect to each Receivable.
(xviii) New and Used Vehicles. 70.00% of the aggregate
Principal Balance of the Receivables, constituting 66.15% of the number of
Receivables as of the Cutoff Date, represent vehicles financed at new vehicle
rates, and the remainder of the Receivables represent vehicles financed at used
vehicle rates.
(xix) Amortization Type. By aggregate Principal Balance as
of the Cutoff Date, 0.48% of the Receivables constitute Actuarial Receivables
and 99.52% of the Receivables constitute Simple Interest Receivables.
(xx) Origination. Each Receivable shall have an origination
date on or after May 4, 1995.
(xxi) PRIMUS. 12.58% of the aggregate Principal Balance of the
Receivables as of the Cutoff Date represent Receivables originated through
PRIMUS and assigned to Ford Credit, and the remainder of the Receivables were
originated through Ford Credit (excluding PRIMUS).
(xxii) Maturity of Receivables. Each Receivable shall have an
original maturity of not greater than seventy (72) months. The percentage of
Receivables by Principal Balance with original terms greater than 60 months is
10.45%. The percentage of Receivables by Principal Balance with remaining terms
greater than 60 months is 5.42%.
(xxiii) Annual Percentage Rate. The Annual Percentage Rate
of each Receivable shall be not less than 0.01% and not greater than 29.99%.
(xxiv) Scheduled Payments. Each Receivable shall have a first
Scheduled Payment due, in the case of Actuarial Receivables, or a first
scheduled due date, in the case of Simple Interest Receivables, on or prior to
May 1, 2001 and no Receivable shall have a payment that is more than thirty (30)
days overdue as of the Cutoff Date.
(xxv) Location of Receivable Files. The Receivable Files shall
be kept at one or more of the locations listed in Schedule B-1 hereto or the
offices of one of the custodians specified in Schedule B-2 hereto.
(xxvi) No Extensions. The number of Scheduled Payments, in the
case of Actuarial Receivables, and the number of scheduled due dates, in the
case of Simple Interest Receivables, shall not have been extended on or before
the Cutoff Date on any Receivable.
(xxvii) Rating Agencies. The rating agencies rating the Notes
and the Class C Certificates are ▇▇▇▇▇'▇, Standard & Poor's and Fitch and the
rating agencies rating the Class D Certificates are Standard & Poor's and Fitch.
(xxviii) Agreement. The representations and warranties of
the Seller in Section 6.1 are true and correct.
(xxix) No Receivables Originated in Alabama or Pennsylvania.
No Receivable shall have been originated in Alabama or Pennsylvania.
SECTION 2.3 Repurchase upon Breach . The Seller, the Servicer,
the Issuer or the Owner Trustee, as the case may be, shall inform the other
parties to this Agreement, the Indenture Trustee and Ford Credit promptly, in
writing, upon the discovery of any breach of the Seller's representations and
warranties made by the Seller pursuant to Section 2.2. Unless the breach shall
have been cured by the last day of the second Collection Period following the
discovery, the Indenture Trustee shall enforce the obligation of the Seller
under this Section 2.3, and, if necessary, the Seller or the Indenture Trustee
shall enforce the obligation of Ford Credit under the Purchase Agreement, to
repurchase any Receivable materially and adversely affected by the breach as of
such last day (or, at the Seller's option, the last day of the first Collection
Period following the discovery). In consideration of the purchase of the
Receivable, the Seller shall remit the Purchase Amount, in the manner specified
in Section 4.5. The sole remedy of the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders with respect to a breach of
the Seller's representations and warranties pursuant to Section 2.2 shall be to
require the Seller to repurchase such Receivables pursuant to this Section 2.3
or to enforce the obligation of Ford Credit to the Seller to repurchase such
Receivables pursuant to the Purchase Agreement. Neither the Owner Trustee nor
the Indenture Trustee shall have any duty to conduct an affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Receivable pursuant to this Section 2.3 or the eligibility of any Receivable
for purposes of this Agreement.
SECTION 2.4 Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Issuer, upon the execution and delivery of this Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to act
as the agent of the Issuer and the Indenture Trustee as custodian of the
following documents or instruments, which are hereby constructively delivered to
the Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture, with
respect to each Receivable:
(i) The original Receivable.
(ii) The original credit application fully executed
by the Obligor or a photocopy thereof or a record thereof on a computer
file, diskette or on microfiche.
(iii) The original certificate of title or such
documents that the Servicer or Ford Credit shall keep on file, in
accordance with its customary standards, policies and procedures,
evidencing the security interest of Ford Credit in the Financed
Vehicle.
(iv) Any and all other documents (including any
computer file, diskette or microfiche) that the Servicer or the Seller
shall keep on file, in accordance with its customary procedures,
relating to a Receivable, an Obligor, or a Financed Vehicle.
The Servicer shall provide an Officer's Certificate to the
Issuer and the Indenture Trustee confirming that the Servicer has received on
behalf of the Issuer and the Indenture Trustee all the documents and instruments
necessary for the Servicer to act as the agent of the Issuer and the Indenture
Trustee for the purposes set forth in this Section 2.4, including the documents
referred to herein, and the Issuer and the Indenture Trustee are hereby
authorized to rely on such Officer's Certificate.
SECTION 2.5 Duties of Servicer as Custodian .
(a) Safekeeping. The Servicer shall hold the Receivable Files
for the benefit of the Issuer and the Indenture Trustee and maintain such
accurate and complete accounts, records, and computer systems pertaining to each
Receivable File as shall enable the Servicer and the Issuer to comply with the
terms and conditions of this Agreement, and the Indenture Trustee to comply with
the terms and conditions of the Indenture. In performing its duties as custodian
the Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the receivable files
relating to all comparable automotive receivables that the Servicer services for
itself or others and, consistent with such reasonable care, the Servicer may
utilize the services of third parties to act as custodian of physical Receivable
Files, subject to Section 7.5. In accordance with its customary standards,
policies and procedures with respect to its retail installment sale contracts,
the Servicer shall conduct, or cause to be conducted, periodic audits of the
Receivable Files held by it under this Agreement, and of the related accounts,
records, and computer systems, in such a manner as shall enable the Issuer or
the Indenture Trustee to verify the accuracy of the Servicer's record keeping.
The Servicer shall promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its accounts,
records, and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Issuer, the Owner Trustee or the
Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule B-1 to
this Agreement or the offices of one of its custodians specified in Schedule B-2
of this Agreement, or at such other office as shall be specified to the Issuer
and the Indenture Trustee by written notice not later than ninety (90) days
after any change in location. The Servicer shall make available to the Issuer
and the Indenture Trustee or their duly authorized representatives, attorneys,
or auditors a list of locations of the Receivable Files, the Receivable Files,
and the related accounts, records, and computer systems maintained by the
Servicer at such times as the Issuer or the Indenture Trustee shall instruct,
but only upon reasonable notice and during the normal business hours at the
respective offices of the Servicer.
(c) Release of Documents. Upon written instructions from the
Indenture Trustee, the Servicer shall release or cause to be released any
document in the Receivable Files to the Indenture Trustee, the Indenture
Trustee's agent or the Indenture Trustee's designee, as the case may be, at such
place or places as the Indenture Trustee may designate, as soon thereafter as is
practicable. Any document so released shall be handled by the Indenture Trustee
with due care and returned to the Servicer for safekeeping as soon as the
Indenture Trustee or its agent or designee, as the case may be, shall have no
further need therefor.
SECTION 2.6 Instructions; Authority to Act. All instructions
from the Indenture Trustee shall be in writing and signed by an Authorized
Officer of the Indenture Trustee, and the Servicer shall be deemed to have
received proper instructions with respect to the Receivable Files upon its
receipt of such written instructions.
SECTION 2.7 Custodian's Indemnification. The Servicer as
custodian shall indemnify the Issuer, the Owner Trustee and the Indenture
Trustee for any and all liabilities, obligations, losses, compensatory damages,
payments, costs, or expenses of any kind whatsoever that may be imposed on,
incurred, or asserted against the Issuer, the Owner Trustee or the Indenture
Trustee as the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the Receivable Files;
provided, however, that the Servicer shall not be liable (i) to the Issuer for
any portion of any such amount resulting from the willful misfeasance, bad
faith, or negligence of the Indenture Trustee, the Owner Trustee or the Issuer,
(ii) to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith, or negligence of the Indenture Trustee, the
Owner Trustee or the Issuer and (iii) to the Indenture Trustee for any portion
of any such amount resulting from the willful misfeasance, bad faith, or
negligence of the Indenture Trustee, the Owner Trustee or the Issuer.
SECTION 2.8 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section 2.8.
If Ford Credit shall resign as Servicer in accordance with the provisions of
this Agreement or if all of the rights and obligations of the Servicer shall
have been terminated under Section 8.1, the appointment of the Servicer as
custodian hereunder may be terminated by the Indenture Trustee, or by the
Noteholders of Notes evidencing not less than 25% of the Note Balance of the
Notes Outstanding or, with the consent of Noteholders of Notes evidencing not
less than 25% of the Note Balance of the Notes Outstanding, by the Owner Trustee
or by Certificateholders of Certificates evidencing not less than 25% of the
Aggregate Certificate Balance, in the same manner as the Indenture Trustee or
such Securityholders may terminate the rights and obligations of the Servicer
under Section 8.1. As soon as practicable after any termination of such
appointment, the Servicer shall deliver to the Indenture Trustee or the
Indenture Trustee's agent the Receivable Files and the related accounts and
records maintained by the Servicer at such place or places as the Indenture
Trustee may reasonably designate.
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY
SECTION 3.1 Duties of Servicer. The Servicer shall manage,
service, administer, and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable automotive receivables that it services for itself or
others. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections, furnishing monthly and annual statements
to the Owner Trustee and the Indenture Trustee with respect to distributions,
and making Advances pursuant to Section 4.4. The Servicer shall follow its
customary standards, policies and procedures in performing its duties as
Servicer. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholders, or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Financed Vehicles
securing such Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Owner Trustee (in the case of a Receivable other than
a Purchased Receivable) shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such Receivable to the Servicer.
If in any enforcement suit or legal proceeding it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce the Receivable, the Owner
Trustee shall, at the Servicer's expense and direction, take steps to enforce
the Receivable, including bringing suit in its name or the names of the
Indenture Trustee, the Noteholders, the Certificateholders, or any of them. The
Owner Trustee shall furnish the Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties hereunder. The Servicer, at its
expense, shall obtain on behalf of the Issuer or the Owner Trustee all licenses,
if any, required by the laws of any jurisdiction to be held by the Issuer or the
Owner Trustee in connection with ownership of the Receivables, and shall make
all filings and pay all fees as may be required in connection therewith during
the term hereof.
SECTION 3.2 Collection of Receivable Payments. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable receivables that it services for itself or others. Subject to
Sections 3.6(iii) and (iv), the Servicer may grant extensions, rebates, or
adjustments on a Receivable; provided, however, that if the Servicer extends the
date for final payment by the Obligor of any Receivable beyond 6 months past the
Final Scheduled Maturity Date, it shall promptly purchase the Receivable in the
manner provided in Section 3.7. The Servicer may in its discretion waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Receivable.
SECTION 3.3 Realization Upon Receivables. On behalf of the
Issuer, the Servicer shall use reasonable efforts, consistent with its customary
standards, policies and procedures, to repossess or otherwise convert the
ownership of the Financed Vehicle securing any Receivable as to which the
Servicer shall have determined eventual payment in full is unlikely. The
Servicer shall follow such customary standards, policies and procedures as it
shall deem necessary or advisable in its servicing of comparable receivables,
which may include reasonable efforts to realize upon any Dealer Recourse and
selling the Financed Vehicle at public or private sale. The foregoing shall be
subject to the provision that, in any case in which the Financed Vehicle shall
have suffered damage, the Servicer shall not be required to expend funds in
connection with the repair or the repossession of such Financed Vehicle unless
it shall determine in its discretion that such repair and/or repossession will
increase the Liquidation Proceeds by an amount greater than the amount of such
expenses.
SECTION 3.4 Allocations of Collections. If an Obligor is
obligated under one or more Receivables and also under one or more other assets
owned by Ford Credit or assigned by Ford Credit to third parties, then any
payment on any such asset received from or on behalf of such Obligor shall, if
identified as being made with respect to a particular item or asset, be applied
to such item, and otherwise shall be allocated by Ford Credit in accordance with
its customary standards, policies and procedures.
SECTION 3.5 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary standards,
policies and procedures, take such steps as are necessary to maintain perfection
of the security interest created by each Receivable in the related Financed
Vehicle. The Issuer hereby authorizes the Servicer to take such steps as are
necessary to re-perfect such security interest on behalf of the Issuer and the
Indenture Trustee in the event of the relocation of a Financed Vehicle or for
any other reason.
SECTION 3.6 Covenants of Servicer. The Servicer shall not (i)
release the Financed Vehicle securing each such Receivable from the security
interest granted by such Receivable in whole or in part except in the event of
payment in full by or on behalf of the Obligor thereunder or repossession, (ii)
impair the rights of the Noteholders or the Certificateholders in the
Receivables, (iii) change the Annual Percentage Rate with respect to any
Receivable, or (iv) modify the Amount Financed or the total number of Scheduled
Payments (in the case of an Actuarial Receivable) or the total number of
originally scheduled due dates (in the case of a Simple Interest Receivable).
SECTION 3.7 Purchase of Receivables Upon Breach. (a) The
Seller, the Servicer or the Owner Trustee, as the case may be, promptly shall
inform the other parties to this Agreement, in writing, upon the discovery of
any breach pursuant to Section 3.2, 3.5 or 3.6. Unless the breach shall have
been cured by the last day of the second Collection Period following such
discovery (or, at the Servicer's election, the last day of the first following
Collection Period), the Servicer shall purchase any Receivable materially and
adversely affected by such breach as determined by the Indenture Trustee (which
shall include any Receivable as to which a breach of Section 3.6 has occurred)
at the Purchase Amount. In consideration of the purchase of such Receivable, the
Servicer shall remit the Purchase Amount in the manner specified in Section 4.5.
For purposes of this Section 3.7, the Purchase Amount shall consist in part of a
release by the Servicer of all rights of reimbursement with respect to
Outstanding Advances on the Receivable. The sole remedy of the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders or the Certificateholders with
respect to a breach pursuant to Section 3.2, 3.5 or 3.6 shall be to require the
Servicer to purchase Receivables pursuant to this Section 3.7.
(b) The Seller, the Servicer or the Owner Trustee, as the case
may be, promptly shall inform the other parties to this Agreement in writing,
upon the discovery of any breach of the representations and warranties of Ford
Credit, as seller, set forth in Section 3.2(b) of the Purchase Agreement. Unless
the breach shall have been cured by the last day of the second Collection Period
following the discovery, the Servicer shall enforce the obligation of Ford
Credit under the Purchase Agreement to repurchase any Receivable materially and
adversely affected by the breach as of such last day (or, at Ford Credit's
option, the last day of the first Collection Period following the discovery). In
consideration of the purchase of the Receivable, Ford Credit shall remit,
pursuant to Section 6.2 of the Purchase Agreement, the Purchase Amount to the
Servicer and the Servicer shall remit the Purchase Amount to the Collection
Account as specified in Section 4.5 hereof.
(c) With respect to all Receivables purchased pursuant to this
Section 3.7, the Issuer shall assign to the Servicer or the Seller, as
applicable, without recourse, representation or warranty, all of the Issuer's
right, title and interest in and to such Receivables and all security and
documents relating thereto.
SECTION 3.8 Servicer Fee. The Servicer shall be entitled to
any interest earned on the amounts deposited in the Collection Account and the
Payahead Account during each Collection Period plus all late fees, prepayment
charges and other administrative fees and expenses or similar charges allowed by
applicable law with respect to Receivables during each Collection Period (the
"Supplemental Servicing Fee"). The Servicer also shall be entitled to the
Servicing Fee, as provided herein.
SECTION 3.9 Servicer's Certificate. (a) On or about the tenth
day of each calendar month, the Servicer shall deliver to the Owner Trustee,
each Note Paying Agent and Certificate Paying Agent, the Indenture Trustee and
the Seller, with a copy to the Rating Agencies, a Servicer's Certificate
containing all information (including all specific dollar amounts) necessary to
make the transfers and distributions pursuant to Sections 4.3, 4.4, 4.5, 4.6 and
4.7 for the Collection Period preceding the date of such Servicer's Certificate,
together with the written statements to be furnished by the Owner Trustee to
Certificateholders pursuant to Section 4.9 and by the Indenture Trustee to the
Noteholders pursuant to Section 4.9 hereof and Section 6.6 of the Indenture.
Receivables purchased or to be purchased by the Servicer or the Seller shall be
identified by the Servicer by the Seller's account number with respect to such
Receivable (as specified in the Schedule of Receivables).
(b) On or about the fifth (but in no event later than the
tenth) calendar day of each calendar month, the Servicer shall deliver to the
respective underwriters of the Notes the Note Pool Factor for each Class of
Notes as of the close of business on the Distribution Date occurring in that
month.
SECTION 3.10 Annual Statement as to Compliance; Notice of
Event of Servicing Termination. (a) The Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and each Rating Agency on or before April 30 of
each year beginning April 30, 2002, an Officer's Certificate, dated as of
December 31 of the preceding calendar year, stating that (i) a review of the
activities of the Servicer during the preceding 12-month (or shorter) period and
of its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. A copy of such Officer's Certificate and the report
referred to in Section 3.11 may be obtained by any Certificateholder by a
request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture
Trustee, in either case addressed to the applicable Corporate Trust Office. Upon
the telephone request of the Owner Trustee, the Indenture Trustee shall promptly
furnish the Owner Trustee a list of Noteholders as of the date specified by the
Owner Trustee.
(b) The Servicer shall deliver to the Owner Trustee, the
Indenture Trustee and each Rating Agency promptly after having obtained
knowledge thereof, but in no event later than five (5) Business Days thereafter,
written notice in an Officer's Certificate of any event which with the giving of
notice or lapse of time, or both, would become an Event of Servicing Termination
under Section 8.1. The Seller shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency promptly after having obtained knowledge thereof,
but in no event later than five (5) Business Days thereafter, written notice in
an Officer's Certificate of any event which with the giving of notice or lapse
of time, or both, would become an Event of Servicing Termination under clause
(a)(ii) of Section 8.1.
SECTION 3.11 Annual Independent Certified Public Accountant's
Report. The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the Seller
or to Ford Credit, to deliver to the Owner Trustee and the Indenture Trustee on
or before April 30 of each year beginning April 30, 2002 with respect to the
prior calendar year a report addressed to the board of directors of the Servicer
and to the Owner Trustee and the Indenture Trustee, to the effect that such firm
has audited the financial statements of the Servicer and issued its report
thereon and that such audit (1) was made in accordance with generally accepted
auditing standards, (2) included tests relating to automotive loans serviced for
others in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers (the "Program"), to the extent the procedures in
such Program are applicable to the servicing obligations set forth in this
Agreement, and (3) except as described in the report, disclosed no exceptions or
errors in the records relating to automobile and light truck loans serviced for
others that such firm is required to report under the Program.
The report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 3.12 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Certificateholders, the
Indenture Trustee and the Noteholders access to the Receivable Files in such
cases where the Certificateholders, the Indenture Trustee or the Noteholders
shall be required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer. Nothing in this Section 3.12 shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section 3.12. The Servicer shall provide such information with respect to the
Receivables as the Rating Agencies may reasonably request, including as soon as
practicable a periodic report of the aggregate principal balance of Receivables
which become Liquidated Receivables during each Collection Period.
SECTION 3.13 Servicer Expenses. The Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the Owner Trustee and the Indenture Trustee,
independent accountants, taxes imposed on the Servicer and expenses incurred in
connection with distributions and reports to Noteholders and Certificateholders.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 4.1 Accounts. (a) The Servicer shall, prior to the
Closing Date, establish and maintain a segregated trust account in the name "The
Chase Manhattan Bank as Indenture Trustee, as secured party for Ford Credit Auto
Owner Trust 2001-C", at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "Collection Account". Initially, the
Collection Account shall be account number 160292.1 and shall include any
successor or replacement accounts thereto. The Collection Account shall be under
the sole dominion and control of the Indenture Trustee; provided, that the
Servicer may make deposits to and direct the Indenture Trustee in writing to
make withdrawals from the Collection Account in accordance with the terms of the
Basic Documents. The Collection Account will be established and maintained
pursuant to an account agreement which specifies New York law as the governing
law. In addition, the Collection Account shall be established and maintained at
a Qualified Institution or Qualified Trust Institution which agrees in writing
that for so long as the Notes are outstanding it will comply with entitlement
orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee
without further consent of the Issuer. All monies deposited from time to time in
the Collection Account shall be held by the Indenture Trustee as secured party
for the benefit of the Noteholders and, after payment in full of the Notes, as
agent of the Owner Trustee and as part of the Trust Property. All deposits to
and withdrawals from the Collection Account shall be made only upon the terms
and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to
the first sentence of Section 4.2, all amounts held in the Collection Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Collection Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Distribution Date for the
Collection Period to which such amounts relate and such Permitted Investments
shall be held to maturity. All interest and other income (net of losses and
investment expenses) on funds on deposit in the Collection Account shall be
withdrawn from the Collection Account at the written direction of the Servicer
and shall be paid to the Servicer. In the event that the Collection Account is
no longer to be maintained at the corporate trust department of The Chase
Manhattan Bank, the Servicer shall, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, cause the Collection Account to be moved to a
Qualified Institution or a Qualified Trust Institution within ten (10) Business
Days (or such longer period not to exceed thirty (30) calendar days as to which
each Rating Agency may consent).
(b) The Servicer shall, prior to the Closing Date, establish
and maintain an administrative subaccount within the Collection Account at the
bank or trust company then maintaining the Collection Account, which subaccount
shall be designated as the "Principal Distribution Account". The Principal
Distribution Account is established and maintained solely for administrative
purposes.
(c) The Servicer shall, prior to the Closing Date, establish
and maintain two segregated trust accounts, each in the name "The Bank of New
York as Owner Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Bank of New
York), which shall be designated as the "Certificate Interest Distribution
Account" and the "Certificate Principal Distribution Account", respectively.
Each Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee. All monies deposited from time to time in each
Certificate Distribution Account pursuant to this Agreement and the Indenture
shall be held by the Owner Trustee as part of the Trust Property and shall be
applied as provided in the Basic Documents. In the event that either Certificate
Distribution Account is no longer to be maintained at the corporate trust
department of The Bank of New York the Servicer shall, with the Owner Trustee's
assistance as necessary, cause such Certificate Distribution Account to be moved
to a Qualified Institution or a Qualified Trust Institution within ten (10)
Business Days (or such longer period not to exceed thirty (30) calendar days as
to which each Rating Agency may consent). Each Certificate Distribution Account
will be established and maintained pursuant to an account agreement which
specifies New York law as the governing law.
(d) The Servicer shall, prior to the Closing Date, establish
and maintain a segregated trust account in the name of "The Chase Manhattan Bank
as Indenture Trustee" at a Qualified Institution or Qualified Trust Institution
(which shall initially be the corporate trust department of The Chase Manhattan
Bank), which shall be designated as the "Payahead Account". The Payahead Account
shall be held in trust for the benefit of the Obligors. The Payahead Account
shall be under the sole dominion and control of the Indenture Trustee; provided
that the Servicer may make deposits to and direct the Indenture Trustee in
writing to make withdrawals from the Payahead Account in accordance with the
Basic Documents. The Payahead Account shall not be a part of the Trust Property.
All deposits to and withdrawals from the Payahead Account shall be made only
upon the terms and conditions of the Basic Documents.
If the Servicer is required to remit collections pursuant to
the first sentence of Section 4.2, all amounts held in the Payahead Account
shall, to the extent permitted by applicable law, rules and regulations, be
invested, as directed in writing by the Servicer, by the bank or trust company
then maintaining the Payahead Account in Permitted Investments that mature not
later than the Business Day immediately prior to the Distribution Date for the
Collection Period to which such amounts relate and such Permitted Investments
shall be held to maturity. All interest and other income (net of losses and
investment expenses) on funds on deposit in the Payahead Account shall be
withdrawn from the Payahead Account at the direction of the Servicer and shall
be paid to the Servicer. In the event that the Payahead Account is no longer to
be maintained at the corporate trust department of The Chase Manhattan Bank, the
Servicer shall, with the Indenture Trustee's or Owner Trustee's assistance as
necessary, cause the Payahead Account to be moved to a Qualified Institution or
a Qualified Trust Institution within ten (10) Business Days (or such longer
period not to exceed thirty (30) calendar days as to which each Rating Agency
may consent).
(e) Notwithstanding the provisions of clause (d) above and of
Section 4.6(a)(ii), for so long as (i) Ford Credit is the Servicer, (ii) the
rating of Ford Credit's short-term unsecured debt is at least P-1 by ▇▇▇▇▇'▇, is
at least A-1 by Standard & Poor's and is at least F-1 by Fitch and (iii) no
Event of Servicing Termination shall have occurred (each, a "Monthly Remittance
Condition"), Payaheads need not be remitted to and deposited in the Payahead
Account but instead may be remitted to and held by the Servicer. So long as each
Monthly Remittance Condition is satisfied, the Servicer shall not be required to
segregate or otherwise hold separate any Payaheads remitted to the Servicer as
aforesaid but shall be required to remit Payaheads to the Collection Account in
accordance with Section 4.6(a)(i). At any time that any Monthly Remittance
Condition is not satisfied, the Servicer shall deposit in the Payahead Account
the amount of any Payaheads then held or received by it (which amount shall be
at least equal to the Payahead Balance as of the close of business on the last
day of the immediately preceding Collection Period). Notwithstanding the
foregoing, if a Monthly Remittance Condition is not satisfied the Servicer may
utilize, with respect to Payaheads, an alternative remittance schedule (which
may include the remittance schedule utilized by the Servicer before the Monthly
Remittance Condition became unsatisfied), if the Servicer provides to the Owner
Trustee and the Indenture Trustee written confirmation from each Rating Agency
that such alternative remittance schedule will not result in the downgrading or
withdrawal by such Rating Agency of the ratings then assigned to the Notes and
the Certificates. The Owner Trustee and the Indenture Trustee shall not be
deemed to have knowledge of any event or circumstance under clause (iii) of the
first sentence of this Section 4.1(e) that would require remittance of the
Payaheads to the Payahead Account unless the Owner Trustee or the Indenture
Trustee has received notice of such event or circumstance from the Seller or the
Servicer in an Officer's Certificate or from the Noteholders of Notes evidencing
not less than 25% of the Note Balance of the Notes Outstanding or from the
Certificateholders of Certificates evidencing not less than 25% of the Aggregate
Certificate Balance or unless a Trustee Officer in the Corporate Trust Office
with knowledge hereof and familiarity herewith has actual knowledge of such
event or circumstance.
SECTION 4.2 Collections. The Servicer shall remit to the
Collection Account within two (2) Business Days of the receipt thereof (i) all
payments by or on behalf of the Obligors (including Payaheads on the
Receivables, but excluding Purchased Receivables) and (ii) all Liquidation
Proceeds, both as collected during the Collection Period. Ford Credit, so long
as it is acting as the Servicer, may make remittances of collections on a less
frequent basis than that specified in the immediately preceding sentence. It is
understood that such less frequent remittances may be made only on the specific
terms and conditions set forth below in this Section 4.2 and only for so long as
such terms and conditions are fulfilled. Accordingly, notwithstanding the
provisions of the first sentence of this Section 4.2, the Servicer shall remit
collections received during a Collection Period to the Collection Account in
immediately available funds on the Business Day preceding the related
Distribution Date (or, with the prior consent of the Rating Agencies, on the
related Distribution Date) but only for so long as each Monthly Remittance
Condition is satisfied. Notwithstanding the foregoing, if a Monthly Remittance
Condition is not satisfied the Servicer may utilize an alternative remittance
schedule (which may include the remittance schedule utilized by the Servicer
before the Monthly Remittance Condition became unsatisfied), if the Servicer
provides to the Owner Trustee and the Indenture Trustee written confirmation
from each Rating Agency that such alternative remittance schedule will not
result in the downgrading or withdrawal by such Rating Agency of the ratings
then assigned to the Notes and the Certificates. The Owner Trustee or the
Indenture Trustee shall not be deemed to have knowledge of any event or
circumstance under clause (iii) of the definition of Monthly Remittance
Condition that would require remittance by the Servicer to the Collection
Account within two Business Days of receipt as aforesaid unless the Owner
Trustee or the Indenture Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate or from
the Noteholders of Notes evidencing not less than 25% of the Note Balance of the
Notes Outstanding or from the Certificateholders of Certificates evidencing not
less than 25% of the Aggregate Certificate Balance or a Trustee Officer in the
Corporate Trust Office with knowledge hereof or familiarity herewith has actual
knowledge of such event or circumstance. For purposes of this Article IV the
phrase "payments by or on behalf of Obligors" shall mean payments made by
Persons other than the Servicer or by other means.
SECTION 4.3 Application of Collections. For the purposes of
this Agreement, as of the close of business on the last day of each Collection
Period, all collections for the Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied by the Servicer
as follows:
Payments by or on behalf of the Obligor which are not late fees,
prepayment charges, or other administrative fees and expenses, or
similar charges which constitute the Supplemental Servicing Fee shall
be applied first to reduce Outstanding Advances made with respect to
such Receivable, as described in Sections 4.4(a) and (b) below. Next,
any excess shall be applied (i) in the case of Simple Interest
Receivables, to interest and principal on the Receivable in accordance
with the Simple Interest Method and (ii) in the case of Actuarial
Receivables, to the Scheduled Payment with respect to such Receivable
and any remaining excess (except for partial prepayments which cause a
reduction in the Obligor's periodic payment to below the Scheduled
Payment as of the Cutoff Date) shall be added to the Payahead Balance,
and shall be applied to prepay the Actuarial Receivable but only if the
sum of such excess and the previous Payahead Balance shall be
sufficient to prepay the Actuarial Receivable in full, otherwise such
excess shall constitute a Payahead, and shall increase the Payahead
Balance.
SECTION 4.4 Advances. (a) As of the close of business on the
last day of each Collection Period, if the payments by or on behalf of the
Obligor on an Actuarial Receivable (other than a Purchased Receivable) after
application under Section 4.3 shall be less than the Scheduled Payment, whether
as a result of any extension granted to the Obligor or otherwise, the Payahead
Balance, if any, with respect to such Receivables shall be applied by the
Indenture Trustee to the extent of the shortfall, and such Payahead Balance
shall be reduced accordingly. Next, subject to the following sentence, the
Servicer shall make an advance of any remaining shortfall (such amount, an
"Actuarial Advance"). The Servicer will be obligated to make an Actuarial
Advance in respect of an Actuarial Receivable only to the extent that the
Servicer, in its sole discretion, shall determine that the Actuarial Advance
shall be recoverable from subsequent collections or recoveries on any Actuarial
Receivable. With respect to each Actuarial Receivable, the Actuarial Advance
shall increase Outstanding Actuarial Advances. Outstanding Actuarial Advances
shall be reduced by subsequent payments by or on behalf of the Obligor,
collections of Liquidation Proceeds and payments of the Purchase Amount.
If the Servicer shall determine that an Outstanding Actuarial
Advance with respect to any Actuarial Receivable shall not be recoverable, the
Servicer shall be reimbursed from any collections made on other Receivables in
the Trust, and Outstanding Actuarial Advances with respect to such Actuarial
Receivable shall be reduced accordingly.
(b) As of the close of business on the last day of each
Collection Period, the Servicer shall advance an amount equal to the amount of
interest due on the Simple Interest Receivables at their respective APRs for the
related Collection Period (assuming the Simple Interest Receivables pay on their
respective due dates) minus the amount of interest actually received on the
Simple Interest Receivables during the related Collection Period (such amount, a
"Simple Interest Advance"). With respect to each Simple Interest Receivable, the
Simple Interest Advance shall increase Outstanding Simple Interest Advances. If
such calculation results in a negative number, an amount equal to such negative
number shall be paid to the Servicer and the amount of Outstanding Simple
Interest Advances shall be reduced by such amount. In addition, in the event
that a Simple Interest Receivable becomes a Liquidated Receivable, Liquidation
Proceeds with respect to a Simple Interest Receivable attributable to accrued
and unpaid interest thereon (but not including interest for the then current
Collection Period) shall be paid to the Servicer to reduce Outstanding Simple
Interest Advances, but only to the extent of any Outstanding Simple Interest
Advances. The Servicer shall not make any advance in respect of principal of
Simple Interest Receivables.
If the Servicer shall determine that an Outstanding Simple
Interest Advance with respect to any Simple Interest Receivable shall not be
recoverable, the Servicer shall be reimbursed from any collections made on other
Receivables in the Trust, but only to the extent that such Outstanding Simple
Interest Advance represents accrued and unpaid interest on such Simple Interest
Receivable. Outstanding Simple Interest Advances with respect to such Simple
Interest Receivable shall be reduced by the amount of such reimbursement.
(c) In the event that an Obligor shall prepay a Receivable in
full, if the related contract did not require such Obligor to pay a full month's
interest, for the month of prepayment, at the APR, the Servicer shall make an
unreimbursable advance of the amount of such interest.
SECTION 4.5 Additional Deposits to Collection Account and
Withdrawals from Reserve Account. (a) The Servicer shall deposit in the
Collection Account the aggregate Advances pursuant to Sections 4.4(a) and (b)
and the aggregate advances pursuant to Section 4.4(c). The Servicer and the
Seller shall deposit in the Collection Account the aggregate Purchase Amounts
with respect to Purchased Receivables and the Servicer shall deposit therein all
amounts to be paid under Section 9.1. All such deposits with respect to a
Collection Period shall be made, in immediately available funds, on the Business
Day preceding the Distribution Date (or, with the prior consent of the Rating
Agencies, on the Distribution Date) related to such Collection Period.
(b) The Indenture Trustee shall, on the Distribution Date
relating to each Collection Period, make withdrawals from the Reserve Account
(i) first, in an amount equal to the Reserve Account Release Amount, (ii)
second, in an amount equal to the amount (if positive) calculated by the
Servicer pursuant to the second sentence of Section 4.6(b), (iii) third, in an
amount equal to the amount (if positive) calculated by the Servicer pursuant to
the third sentence of Section 4.6(b) and (iv) fourth, in an amount equal to the
amount (if positive) calculated by the Servicer pursuant to the fourth sentence
of Section 4.6(b), and, in each case, shall deposit such funds into the
Collection Account.
SECTION 4.6 Distributions. (a) On each Distribution Date, the
Indenture Trustee shall cause to be made the following transfers and
distributions in the amounts set forth in the Servicer's Certificate for such
Distribution Date:
(i) From the Payahead Account, or from the Servicer
in the event the provisions of Section 4.1(e) above are applicable, to
the Collection Account, in immediately available funds, (x) the portion
of Payaheads constituting Scheduled Payments or prepayments in full,
required by Sections 4.3 and 4.4(a), and (y) the Payahead Balance, if
any, relating to any Purchased Receivable.
(ii) From the Collection Account to the Payahead
Account, or to the Servicer in the event the provisions of Section
4.1(e) above are applicable, in immediately available funds, the
aggregate Payaheads required by Section 4.3 for the Collection Period
related to such Distribution Date.
(iii) From the Collection Account to the Servicer, in
immediately available funds, repayment of Outstanding Advances pursuant
to Sections 4.4(a) and (b).
(b) Prior to each Distribution Date, the Servicer shall on or
before each Determination Date calculate the Available Collections, the Reserve
Account Release Amount, the Available Funds, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods, if any, the Accrued Class A Note
Interest, the First Priority Principal Distribution Amount, the Accrued Class B
Note Interest, the Second Priority Principal Distribution Amount, the Accrued
Class C Certificate Interest, the Accrued Class D Certificate Interest and the
Regular Principal Distribution Amount. In addition, the Servicer shall calculate
on or before each Determination Date the difference, if any, between the Total
Required Payment and the Available Funds and, pursuant to Section 4.5(b), the
Indenture Trustee shall withdraw funds from the Reserve Account in an amount
equal to the lesser of such difference (if positive) or the balance of such
Reserve Account. On or before the Determination Date immediately preceding the
Final Scheduled Distribution Date with respect to any Class of Notes or either
Class of Certificates, the Servicer shall calculate the difference, if any,
between (i) the amount required to pay such Class of Notes or such Class of
Certificates in full in accordance with the priorities set forth in Sections
4.6(c) and (d), and (ii) the sum of the Available Funds plus the amount
withdrawn from the Reserve Account in accordance with the preceding sentence,
and pursuant to Section 4.5(b), the Indenture Trustee shall withdraw funds from
the Reserve Account in the amount of such difference (if positive). The Servicer
also shall calculate, on or before each Determination Date, (i) the sum of the
Available Funds plus the amounts withdrawn from the Reserve Account in
accordance with the two immediately preceding sentences plus the amount
remaining on deposit in the Reserve Account after the withdrawal of such
amounts, and (ii) the amount required to pay the Servicing Fee and principal and
interest of each Class of Notes and Certificates in full in accordance with the
priorities set forth in Sections 4.6(c) and (d), and, if the amount determined
pursuant to clause (i) of this sentence is greater than the amount determined
pursuant to clause (ii) of this sentence, the Indenture Trustee, pursuant to
Section 4.5(b), shall withdraw funds from the Reserve Account in an amount which
is, together with Available Funds and the amounts withdrawn from the Reserve
Account in accordance with the two immediately preceding sentences, sufficient
to pay the amount specified in clause (ii) of this sentence.
(c) On each Distribution Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on or before the related Determination Date pursuant to
Section 3.9), to make the following withdrawals from the Collection Account and
make deposits, distributions and payments, to the extent of funds on deposit in
the Collection Account with respect to the Collection Period preceding such
Distribution Date (including funds, if any, deposited therein from the Reserve
Account pursuant to Section 4.5(b) and from the Payahead Account pursuant to
this Section 4.6), in the following order of priority:
(i) first, to the Servicer, the Servicing Fee and
all unpaid Servicing Fees from prior Collection Periods;
(ii) second, to the Noteholders of Class A Notes,
the Accrued Class A Note Interest;
provided, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class A Note Interest,
the amounts available shall be applied to the payment of such
interest on the Class A Notes on a pro rata basis;
(iii) third, to the Principal Distribution Account,
the First Priority Principal Distribution Amount;
(iv) fourth, to the Noteholders of Class B Notes, the
Accrued Class B Note Interest; provided that if there are not
sufficient funds available to pay the entire amount of the Accrued
Class B Note Interest, the amounts available shall be applied to the
payment of such interest on the Class B Notes on a pro rata basis;
(v) fifth, to the Principal Distribution Account,
the Second Priority Principal Distribution Amount;
(vi) sixth, to the Certificate Interest Distribution
Account, the Accrued Class C Certificate Interest;
(vii) seventh, to the Certificate Interest
Distribution Account, the Accrued Class D Certificate Interest;
(viii) eight, to the Reserve Account, the amount, if
any, required to reinstate the amount in the Reserve Account up to the
Specified Reserve Balance;
(ix) ninth, to the Principal Distribution Account,
the Regular Principal Distribution Amount; and
(x) tenth, to the Seller, any funds remaining on
deposit in the Collection Account with respect to the Collection Period
preceding such Distribution Date.
Notwithstanding the foregoing, (A) following the occurrence
and during the continuation of an Event of Default specified in Section 5.1(i),
5.1(ii), 5.1(iv) or 5.1(v) of the Indenture which has resulted in an
acceleration of the Notes (or following the occurrence of any such event after
an Event of Default specified in Section 5.1(iii) of the Indenture has occurred
and the Notes have been accelerated), the Servicer shall instruct the Indenture
Trustee to transfer the funds on deposit in the Collection Account remaining
after the application of clauses (i) and (ii) above to the Principal
Distribution Account to the extent necessary to reduce the principal amount of
all the Class A Notes to zero, (B) following the occurrence and during the
continuation of an Event of Default specified in Section 5.1(iii) of the
Indenture, which has resulted in an acceleration of the Notes, the Servicer
shall instruct the Indenture Trustee to transfer the funds on deposit in the
Collection Account remaining after the application of clauses (i), (ii), (iii)
and (iv) above to the Principal Distribution Account to the extent necessary to
reduce the principal amount of all the Notes to zero, and (C) in the case of an
event described in clause (A) or (B), the Certificateholders will not receive
any distributions of principal or interest until the principal amount and
accrued interest on all the Notes has been paid in full.
(d) On each Distribution Date, the Servicer shall instruct the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered on or before the related Determination Date pursuant to
Section 3.9), to withdraw the funds on deposit in the Principal Distribution
Account with respect to the Collection Period preceding such Distribution Date
and make distributions and payments in the following order of priority:
(i) first, to the Noteholders of the Class A-1 Notes
in reduction of principal until the principal amount of the Outstanding
Class A-1 Notes has been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-1 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-1 Notes on a pro
rata basis;
(ii) second, to the Noteholders of the Class A-2
Notes in reduction of principal until the principal amount of the
Outstanding Class A-2 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal amount of
the Outstanding Class A-2 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-2 Notes on a pro
rata basis;
(iii) third, to the Noteholders of the Class A-3
Notes in reduction of principal until the principal amount of the
Outstanding Class A-3 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal amount of
the Outstanding Class A-3 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-3 Notes on a pro
rata basis;
(iv) fourth, to the Noteholders of the Class A-4
Notes in reduction of principal until the principal amount of the
Outstanding Class A-4 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal amount of
the Outstanding Class A-4 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-4 Notes on a pro
rata basis;
(v) fifth, to the Noteholders of the Class A-5 Notes
in reduction of principal until the principal amount of the Outstanding
Class A-5 Notes has been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-5 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-5 Notes on a pro
rata basis;
(vi) sixth, to the Noteholders of the Class B Notes
in reduction of principal until the principal amount of the Outstanding
Class B Notes has been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class B Notes in full, the amounts available shall be
applied to the payment of principal on the Class B Notes on a pro rata
basis;
(vii) seventh, to the Certificate Principal
Distribution Account, in reduction of the Certificate Balance of the
Class C Certificates, until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(viii) eighth, to the Certificate Principal
Distribution Account, in reduction of the Certificate Balance of the
Class D Certificates, until the Certificate Balance of the Class D
Certificates has been reduced to zero; and
(ix) ninth, to the Seller, any funds remaining on
deposit in the Principal Distribution Account.
SECTION 4.7 Reserve Account. (a) (i) The Seller shall, prior
to the Closing Date, establish and maintain an account in the name "The Chase
Manhattan Bank as Indenture Trustee, as secured party from Ford Credit Auto
Owner Trust 2001-C" at a Qualified Institution or Qualified Trust Institution,
which shall be designated as the "Reserve Account" (the Reserve Account,
together with the Collection Account (including the Principal Distribution
Account), the "Trust Accounts"). The Reserve Account shall be under the sole
dominion and control of the Indenture Trustee; provided, that the Servicer may
make deposits to the Reserve Account in accordance with the Basic Documents and
so long as no Default or Event of Default shall have occurred and be continuing
all or a portion of the funds in the Reserve Account shall be invested by the
applicable Qualified Institution or Qualified Trust Institution maintaining such
account at the direction of the Seller in Permitted Investments without
requiring any action from the Indenture Trustee. The Seller shall not direct the
Qualified Institution or Qualified Trust Institution maintaining the Reserve
Account to make any investment of any funds or to sell any investment held in
the Reserve Account unless the security interest Granted and perfected in such
account in favor of the Indenture Trustee will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction by the Seller to
make any such investment or sale, if requested by the applicable Qualified
Institution or Qualified Trust Institution, the Seller shall deliver to such
Qualified Institution or Qualified Trust Institution an Opinion of Counsel,
acceptable to such Qualified Institution or Qualified Trust Institution, to such
effect. If (i) the Seller shall have failed to give investment directions for
any funds on deposit in the Reserve Account to the Qualified Institution or
Qualified Trust Institution maintaining such account by 11:00 a.m. New York Time
(or such other time as may be agreed by the Issuer and such Qualified
Institution or Qualified Trust Institution) on the Business Day preceding each
Distribution Date, (ii) a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been declared
due and payable pursuant to Section 5.2 of the Indenture or (iii) the Notes
shall have been declared due and payable following an Event of Default, amounts
collected or receivable from the Indenture Trust Estate are being applied in
accordance with Section 5.4 of the Indenture as if there had not been such a
declaration, then the Qualified Institution or Qualified Trust Institution
shall, to the fullest extent practicable, invest and reinvest funds in the
Reserve Account in one or more Permitted Investments described in clause (b) of
the definition thereof. The Reserve Account will be established and maintained
pursuant to an account agreement which specifies New York law as the governing
law. In addition, the Reserve Account shall be established and maintained at a
Qualified Institution or Qualified Trust Institution which agrees in writing
that for so long as the Notes are outstanding it will comply with entitlement
orders (as defined in Article 8 of the UCC) originated by the Indenture Trustee
without further consent of the Issuer. On the Closing Date, the Seller shall
deposit the Reserve Initial Deposit into the Reserve Account from the net
proceeds of the sale of the Notes and the Certificates. The Reserve Account and
all amounts, securities, investments, financial assets and other property
deposited in or credited to the Reserve Account (such amounts, the "Reserve
Account Property") shall be held by the Indenture Trustee as secured party for
the benefit of the Noteholders and, after payment in full of the Notes, as agent
of the Owner Trustee and as part of the Trust Property, and all deposits to and
withdrawals from therefrom shall be made only upon the terms and conditions of
the Basic Documents.
The Reserve Account Property shall, to the extent permitted by
applicable law, rules and regulations, be invested, as directed in writing by
the Seller, by the bank or trust company then maintaining the Reserve Account in
Permitted Investments that mature not later than the Business Day preceding the
next Distribution Date, and such Permitted Investments shall be held to
maturity; provided, however, that upon satisfaction of the Rating Agency
Condition, funds in the Reserve Account may be invested in Permitted Investments
that will not mature prior to the next Distribution Date and will not be
required to be sold or liquidated to meet any shortfalls that may occur. All
interest and other income (net of losses and investment expenses) on funds on
deposit in the Reserve Account shall be deposited therein. In the event the
Reserve Account is no longer to be maintained at the corporate trust department
of The Chase Manhattan Bank, the Seller shall, with the Indenture Trustee's or
Owner Trustee's assistance as necessary, cause the Reserve Account to be moved
to a Qualified Institution or a Qualified Trust Institution within ten (10)
Business Days (or such longer period not to exceed thirty (30) calendar days as
to which each Rating Agency may consent).
(ii) With respect to Reserve Account Property:
(A) any Reserve Account Property that is a
"financial asset" as defined in Section 8-102(a)(9)
of the UCC shall be physically delivered to, or
credited to an account in the name of, the Qualified
Institution or Qualified Trust Institution
maintaining the Reserve Account in accordance with
such institution's customary procedures such that
such institution establishes a "securities
entitlement" in favor of the Indenture Trustee with
respect thereto; and
(B) any Reserve Account Property that is
held in deposit accounts shall be held solely in the
name of the Indenture Trustee at one or more
depository institutions having the Required Rating
and each such deposit account shall be subject to the
exclusive custody and control of the Indenture
Trustee and the Indenture Trustee shall have sole
signature authority with respect thereto.
(iii) Except for any deposit accounts specified in
clause (ii)(B) above, the Reserve Account shall only be invested in
securities or in other assets which the Qualified Institution or
Qualified Trust Institution maintaining the Reserve Account agrees to
treat as "financial assets" as defined in Section 8-102(a)(9) of the
UCC.
(b) If the Servicer pursuant to Section 4.4 determines on or
before any Determination Date that it is required to make an Advance and does
not do so from its own funds, the Servicer shall promptly instruct the Indenture
Trustee in writing to withdraw funds, in an amount specified by the Servicer,
from the Reserve Account and deposit them in the Collection Account to cover any
shortfall. Such payment shall be deemed to have been made by the Servicer
pursuant to Section 4.4 for purposes of making distributions pursuant to this
Agreement, but shall not otherwise satisfy the Servicer's obligation to deliver
the amount of the Advances to the Indenture Trustee, and the Servicer shall
within two Business Days replace any funds in the Reserve Account so used.
(c) Following the payment in full of the aggregate principal
amount of the Notes and the Aggregate Certificate Balance and of all other
amounts owing or to be distributed hereunder or under the Indenture or the Trust
Agreement to Noteholders and Certificateholders and the termination of the
Trust, any remaining Reserve Account Property shall be distributed to the
Seller.
(d) The Seller shall be permitted to sell, transfer, convey or
assign in any manner its rights in the Reserve Account under this Section
4.7(c), together with its rights to receive amounts under Section 4.6(c)(x) of
this Agreement and Sections 5.4(b)(xii) and 8.2(c)(x) of the Indenture, provided
that each of the following:
(i) the Rating Agency Condition is satisfied with
respect such action;
(ii) such action shall not, as evidenced by an
Opinion of Counsel, cause the Issuer to be characterized for federal or
any then Applicable Tax State income tax purposes as an association
taxable as a corporation; and
(iii) the transferee or assignee agrees in writing to
take positions for federal and any Applicable Tax State income tax
purposes consistent with the tax positions taken previously by the
Seller.
SECTION 4.8 Net Deposits. For so long as (i) Ford Credit shall
be the Servicer, (ii) the Servicer shall be entitled pursuant to Section 4.2 to
remit collections on a monthly basis rather than within two Business Days of
receipt, and (iii) the Servicer shall be entitled pursuant to Section 4.1(e) to
retain Payaheads rather than deposit them in the Payahead Account, Ford Credit
may make the remittances pursuant to Sections 4.2 and 4.5 above, net of amounts
to be distributed to Ford Credit pursuant to Section 4.6(c). Nonetheless, the
Servicer shall account for all of the above described remittances and
distributions except for the Supplemental Servicing Fee in the Servicer's
Certificate as if the amounts were deposited and/or transferred separately.
SECTION 4.9 Statements to Noteholders and Certificateholders.
On each Distribution Date, the Servicer shall provide to the Indenture Trustee
(with copies to the Rating Agencies and each Note Paying Agent) for the
Indenture Trustee to forward to each Noteholder of record as of the most recent
Record Date and to the Owner Trustee (with copies to the Rating Agencies and to
each Certificate Paying Agent) for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date a statement based
on information in the Servicer's Certificate furnished pursuant to Section 3.9,
setting forth for the Collection Period relating to such Distribution Date the
following information as to the Notes and the Certificates to the extent
applicable:
(i) the amount of such distribution allocable to
principal allocable to the Notes and to the Certificate Balance;
(ii) the amount of such distribution allocable to
interest allocable to the Notes and the Certificates;
(iii) the amount of such distribution allocable to
draws from the Reserve Account, if any;
(iv) the Pool Balance as of the close of business
on the last day of the preceding Collection Period;
(v) the Specified Overcollateralization Amount and
the Specified Credit Enhancement Amount as of such Distribution Date;
(vi) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period and the amount
of any unpaid Servicing Fees and the change in such amount from that of
the prior Distribution Date;
(vii) the amounts of the Noteholders' Interest
Carryover Shortfall and the Certificateholders' Interest Carryover
Shortfall, if any, on such Distribution Date and the change in such
amounts from the preceding Distribution Date;
(viii) the aggregate outstanding principal amount of
each Class of Notes, the Note Pool Factor for each Class of Notes, the
Certificate Balance of each Class of Certificates and the Certificate
Pool Factor for each Class of Certificates as of such Distribution
Date;
(ix) the amount of any previously due and unpaid
payment of principal of the Notes or of the Certificate Balance, as
applicable, and the change in such amount from that of the prior
Distribution Date;
(x) the balance of the Reserve Account on such
Distribution Date, after giving effect to distributions made on such
Distribution Date and the change in such balance from the preceding
Distribution Date;
(xi) the amount of the aggregate Realized Losses,
if any, with respect to the related Collection Period;
(xii) the aggregate Purchase Amount of Receivables
repurchased by the Seller or purchased by the Servicer, if any, with
respect to the related Collection Period; and
(xiii) the amount of Advances, if any, on such
Distribution Date (stating separately the amount of Actuarial Advances
and Simple Interest Advances).
Each amount set forth on the Distribution Date statement
pursuant to clauses (i), (ii), (vi), (vii) and (ix) above shall be expressed as
a dollar amount per $1,000 of original principal amount or original Certificate
Balance of a Note or a Certificate, as applicable.
ARTICLE V
Intentionally Omitted
ARTICLE VI
THE SELLER
SECTION 6.1 Representations and Warranties of Seller. The
Seller makes the following representations and warranties on which the Issuer is
deemed to have relied in acquiring the Trust Property. The representations and
warranties speak as of the execution and delivery of this Agreement and shall
survive the conveyance of the Trust Property to the Issuer and the pledge
thereof by the Issuer to the Indenture Trustee pursuant to the Indenture:
(a) Organization and Good Standing. The Seller shall have been
duly organized and shall be validly existing as a limited liability company in
good standing under the laws of the State of Delaware, with power and authority
to own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and shall have, power, authority and legal right to acquire and
own the Receivables.
(b) Due Qualification. The Seller shall be duly qualified to
do business as a foreign limited liability company in good standing, and shall
have obtained all necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business shall require
such qualifications.
(c) Power and Authority. The Seller shall have the power and
authority to execute and deliver this Agreement and the other Basic Documents to
which it is a party and to carry out their terms. The Seller shall have full
power and authority to convey and assign the property to be conveyed and
assigned to and deposited with the Issuer and has duly authorized such
conveyance and assignment to the Issuer by all necessary action; and the
execution, delivery, and performance of this Agreement and the other Basic
Documents to which it is a party shall have been duly authorized, executed and
delivered by the Seller by all necessary action.
(d) Valid Conveyance; Binding Obligation. This Agreement shall
evidence a valid transfer, assignment and conveyance of the Receivables and the
other Trust Property conveyed by the Seller to the Issuer hereunder, enforceable
against creditors of and purchasers from the Seller; and this Agreement and the
other Basic Documents to which the Seller is a party constitute legal, valid,
and binding obligations of the Seller, enforceable against the Seller in
accordance with their terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the Seller
is a party and the fulfillment of the terms hereof and thereof will not conflict
with, result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time or both) a default under the
Certificate of Formation or Limited Liability Company Agreement, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument to which the Seller is a party or by which the
Seller is bound; nor result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument; nor violate any law or, to the
best of the Seller's knowledge, any order, rule, or regulation applicable to the
Seller of any federal or State regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Seller's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over the Seller or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Basic Documents,
the Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the transactions contemplated
by this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, or (iv) relating to the Seller and
which might adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes or the Certificates.
SECTION 6.2 Liability of Seller; Indemnities. The Seller shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement, and hereby agrees to
the following:
(a) The Seller shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee from and against any taxes
that may at any time be asserted against any such Person with respect to, and as
of the date of, the conveyance of the Receivables to the Issuer or the issuance
and original sale of the Notes and the Certificates, including any sales, gross
receipts, general corporation, tangible personal property, privilege, or license
taxes (but, in the case of the Issuer, not including any taxes asserted with
respect to ownership of the Receivables or federal or other Applicable Tax State
income taxes arising out of the transactions contemplated by this Agreement and
the other Basic Documents) and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any loss, liability or expense incurred by
reason of (i) the Seller's willful misfeasance, bad faith, or negligence (other
than errors in judgment) in the performance of its duties under this Agreement,
or by reason of reckless disregard of its obligations and duties under this
Agreement and (ii) the Seller's violation of federal or State securities laws in
connection with the registration or the sale of the Notes or the Certificates.
(c) The Seller shall indemnify, defend and hold harmless the
Owner Trustee and the Indenture Trustee and their respective officers,
directors, employees and agents from and against all costs, expenses, losses,
claims, damages and liabilities arising out of or incurred in connection with
the acceptance or performance of the trusts and duties contained herein and in
the Trust Agreement, in the case of the Owner Trustee, and in the Indenture, in
the case of the Indenture Trustee, except to the extent that such cost, expense,
loss, claim, damage or liability: (i) in the case of the Owner Trustee, shall be
due to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Owner Trustee or, in the case of the Indenture Trustee, shall
be due to the willful misfeasance, bad faith or negligence (except for errors in
judgment) of the Indenture Trustee; or (ii) in the case of the Owner Trustee
shall arise from the breach by the Owner Trustee of any of its representations
or warranties set forth in Section 7.3 of the Trust Agreement or (iii) in the
case of the Indenture Trustee shall arise from the breach by the Indenture
Trustee of any of its representations and warranties set forth in the Indenture.
(d) The Seller shall pay any and all taxes levied or assessed
upon all or any part of the Owner Trust Estate.
(e) Indemnification under this Section 6.2 shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement and shall include, without limitation, reasonable
fees and expenses of counsel and expenses of litigation. If the Seller shall
have made any indemnity payments pursuant to this Section 6.2 and the Person to
or on behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Seller, without interest.
(f) The Seller's obligations under this Section 6.2 are
obligations solely of the Seller and shall not constitute a claim against the
Seller to the extent that the Seller does not have funds sufficient to make
payment of such obligations. In furtherance of and not in derogation of the
foregoing, the Issuer, the Servicer, the Indenture Trustee and the Owner
Trustee, by entering into or accepting this agreement, acknowledge and agree
that they shall have no right, title or interest in or to the Other Assets of
the Seller. To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentence, the Issuer, Servicer, Indenture Trustee or
Owner Trustee either (i) asserts an interest or claim to, or benefit from, Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or
from Other Assets, whether by operation of law, legal process, pursuant to
applicable provisions of insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), then such Issuer, Servicer, Indenture Trustee
or Owner Trustee further acknowledges and agrees that any such interest, claim
or benefit in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full, which, under the terms of the relevant documents
relating to the securitization or conveyance of such Other Assets, are entitled
to be paid from, entitled to the benefits of, or otherwise secured by such Other
Assets (whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to a priority of distributions or application
under applicable law, including insolvency laws, and whether or not asserted
against the Seller), including the payment of post-petition interest on such
other obligations and liabilities. This subordination agreement shall be deemed
a subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. The Issuer, Servicer, Indenture Trustee and Owner Trustee each further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 6.2(f) and the terms of this Section 6.2(f) may be enforced by an
action for specific performance. The provision of this Section 6.2(f) shall be
for the third party benefit of those entitled to rely thereon and shall survive
the termination of this Agreement.
SECTION 6.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (i) into which the Seller may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Seller shall be a party, (iii) succeeding to the business of the
Seller, or (iv) more than 50% of the voting stock of which is owned directly or
indirectly by Ford Motor Company, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, will be the successor to the Seller under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement; provided, however, that (x) the Seller
shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger, conversion,
consolidation or succession and such agreement of assumption comply with this
Section 6.3 and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with and (y) the
Seller shall have delivered to the Owner Trustee and the Indenture Trustee an
Opinion of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee, respectively, in the
Receivables and the other Trust Property, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Seller shall
provide notice of any merger, conversion, consolidation, or succession pursuant
to this Section 6.3 to the Rating Agencies. Notwithstanding anything herein to
the contrary, the execution of the foregoing agreement of assumption and
compliance with clauses (x) and (y) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii) or (iii)
above.
SECTION 6.4 Limitation on Liability of Seller and Others. The
Seller and any officer or employee or agent of the Seller may rely in good faith
on the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Seller shall not be under any obligation to appear in, prosecute, or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
SECTION 6.5 Seller May Own Notes or Certificates. The Seller,
and any Affiliate of the Seller, may in its individual or any other capacity
become the owner or pledgee of Notes or Certificates with the same rights as it
would have if it were not the Seller or an Affiliate thereof, except as
otherwise expressly provided herein or in the other Basic Documents. Except as
set forth herein or in the other Basic Documents, Notes and Certificates so
owned by or pledged to the Seller or any such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement and the other Basic
Documents, without preference, priority, or distinction as among all of the
Notes and Certificates.
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer. The Servicer makes
the following representations on which the Issuer is deemed to have relied in
acquiring the Trust Property. The representations speak as of the execution and
delivery of this Agreement and shall survive the conveyance of the Trust
Property to the Issuer and the pledge thereof by the Issuer pursuant to the
Indenture:
(a) Organization and Good Standing. The Servicer shall have
been duly organized and shall be validly existing as a corporation in good
standing under the laws of the State of its incorporation, with power and
authority to own its properties and to conduct its business as such properties
shall be currently owned and such business is presently conducted, and had at
all relevant times, and shall have, power, authority, and legal right to
acquire, own, sell and service the Receivables and to hold the Receivable Files
as custodian on behalf of the Issuer and the Indenture Trustee.
(b) Due Qualification. The Servicer shall be duly qualified to
do business as a foreign corporation in good standing, and shall have obtained
all necessary licenses and approvals in all jurisdictions in which the ownership
or lease of property or the conduct of its business (including the servicing of
the Receivables as required by this Agreement) shall require such
qualifications.
(c) Power and Authority. The Servicer shall have the power and
authority to execute and deliver this Agreement and the other Basic Documents to
which it is a party and to carry out their terms, and the execution, delivery
and performance of this Agreement and the other Basic Documents to which it is a
party shall have been duly authorized, executed and delivered by the Servicer by
all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which the Servicer is a party constitute legal, valid, and binding
obligations of the Servicer, enforceable against the Servicer in accordance with
their terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and other
similar laws and to general equitable principles.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents to which the
Servicer is a party and the fulfillment of the terms hereof and thereof shall
not conflict with, result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time or both) a default under
(in each case material to the Servicer and its subsidiaries considered as a
whole), the articles of incorporation or by-laws of the Servicer, or any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument to which the Servicer is a party or
by which it shall be bound, nor result in the creation or imposition of any
lien, charge or encumbrance (in each case material to the Servicer and its
subsidiaries considered as a whole) upon any of its properties pursuant to the
terms of any such indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument (other than this
Agreement); nor violate any law or, to the best of the Servicer's knowledge, any
order, rule, or regulation applicable to the Servicer of any court or any
federal or State regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Basic Documents,
the Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the transactions contemplated
by this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, or (iv) relating to the Servicer and
which might adversely affect the federal or Applicable Tax State income, excise,
franchise or similar tax attributes of the Notes or the Certificates.
SECTION 7.2 Indemnities of Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, and hereby agrees to the
following:
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders and the Seller from and against any and all
costs, expenses, losses, damages, claims and liabilities, arising out of or
resulting from the use, ownership or operation by the Servicer or any Affiliate
thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee and the Indenture Trustee from
and against any taxes that may at any time be asserted against any such Person
with respect to the transactions contemplated herein or in the other Basic
Documents, if any, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege, or license taxes
(but, in the case of the Issuer, not including any taxes asserted with respect
to, and as of the date of, the conveyance of the Receivables to the Issuer or
the issuance and original sale of the Notes and the Certificates, or asserted
with respect to ownership of the Receivables, or federal or other Applicable Tax
State income taxes arising out of the transactions contemplated by this
Agreement and the other Basic Documents) and costs and expenses in defending
against the same.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders and the Seller from and against any and all
costs, expenses, losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon any such Person through, the negligence, willful misfeasance, or
bad faith (other than errors in judgment) of the Servicer in the performance of
its duties under this Agreement or any other Basic Document to which it is a
party, or by reason of reckless disregard of its obligations and duties under
this Agreement or any other Basic Document to which it is a party.
(d) The Servicer shall indemnify, defend, and hold harmless
the Owner Trustee, the Delaware Trustee and the Indenture Trustee, as
applicable, from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained herein and in the other Basic
Documents, if any, except to the extent that such cost, expense, loss, claim,
damage, or liability: (i) shall be due to the willful misfeasance, bad faith, or
negligence (except for errors in judgment) of the Owner Trustee, the Delaware
Trustee or the Indenture Trustee, as applicable; (ii) in the case of the Owner
Trustee, shall arise from the Owner Trustee's breach of any of its
representations or warranties set forth in Section 7.3 of the Trust Agreement
or, in the case of the Indenture Trustee, from the Indenture Trustee's breach of
any of its representations or warranties set forth in the Indenture; or (iii) in
the case of the Indenture Trustee, shall arise out of or be incurred in
connection with the performance by the Indenture Trustee of the duties of a
Successor Servicer hereunder.
For purposes of this Section 7.2, in the event of the
termination of the rights and obligations of Ford Credit (or any successor
thereto pursuant to Section 8.2) as Servicer pursuant to Section 8.1, or a
resignation by such Servicer pursuant to this Agreement, such Servicer shall be
deemed to continue to be the Servicer pending appointment of a Successor
Servicer (other than the Indenture Trustee) pursuant to Section 8.2.
(e) Indemnification under this Section 7.2 by Ford Credit (or
any successor thereto pursuant to Section 8.2) as Servicer, with respect to the
period such Person was (or was deemed to be) the Servicer, shall survive the
termination of such Person as Servicer or a resignation by such Person as
Servicer as well as the termination of this Agreement or the resignation or
removal of the Owner Trustee, the Delaware Trustee or the Indenture Trustee and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section 7.2 and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Servicer, without interest.
SECTION 7.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger, conversion, or consolidation to
which the Servicer shall be a party, (iii) succeeding to the business of the
Servicer, or (iv) so long as Ford Credit acts as Servicer, any corporation more
than 50% of the voting stock of which is owned directly or indirectly by Ford
Motor Company, which Person in any of the foregoing cases executes an agreement
of assumption to perform every obligation of the Servicer under this Agreement,
will be the successor to the Servicer under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties to
this Agreement; provided, however, that (x) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such merger, conversion, consolidation, or
succession and such agreement of assumption comply with this Section 7.3 and
that all conditions precedent provided for in this Agreement relating to such
transaction have been complied with and (y) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Issuer and the
Indenture Trustee, respectively, in the Receivables, and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interests. The Servicer
shall provide notice of any merger, conversion, consolidation or succession
pursuant to this Section 7.3 to the Rating Agencies. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement or assumption
and compliance with clauses (x) and (y) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), or (iii)
above.
SECTION 7.4 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or employees or
agents of the Servicer shall be under any liability to the Issuer, the
Noteholders or the Certificateholders, except as provided under this Agreement,
for any action taken or for refraining from the taking of any action pursuant to
this Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance or bad faith in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement, or by reason of negligence in the performance of
its duties under this Agreement (except for errors in judgment). The Servicer
and any director, officer or employee or agent of the Servicer may rely in good
faith on any Opinion of Counsel or on any Officer's Certificate of the Seller or
certificate of auditors believed to be genuine and to have been signed by the
proper party in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall
not be under any obligation to appear in, prosecute, or defend any legal action
that shall not be incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may involve it in any
expense or liability; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties to this Agreement and the
interests of the Noteholders and Certificateholders under this Agreement. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Servicer.
SECTION 7.5 Delegation of Duties. So long as Ford Credit acts
as Servicer, the Servicer may at any time without notice or consent delegate
some of or substantially all of its duties under this Agreement to any
corporation more than 50% of the voting stock of which is owned, directly or
indirectly, by Ford Motor Company. The Servicer may at any time perform specific
duties as servicer under the Agreement through sub-contractors; provided that no
such delegation or subcontracting shall relieve the Servicer of its
responsibilities with respect to such duties as to which the Servicer shall
remain primarily responsible with respect thereto and the Servicer shall be
solely responsible for the fees of any such sub-contractors.
SECTION 7.6 Ford Credit Not to Resign as Servicer. Subject to
the provisions of Section 7.3, Ford Credit shall not resign from the obligations
and duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law. Notice of any such determination
permitting the resignation of Ford Credit shall be communicated to the Owner
Trustee and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a Successor Servicer shall have
(i) taken the actions required by Section 8.1(b), (ii) assumed the
responsibilities and obligations of Ford Credit in accordance with Section 8.2
and (iii) become the Administrator under the Administration Agreement pursuant
to Section 9 thereof.
SECTION 7.7 Servicer May Own Notes or Certificates. The
Servicer, and any Affiliate of the Servicer, may, in its individual or any other
capacity, become the owner or pledgee of Notes or Certificates with the same
rights as it would have if it were not the Servicer or an Affiliate thereof,
except as otherwise expressly provided herein or in the other Basic Documents.
Except as set forth herein or in the other Basic Documents, Notes and
Certificates so owned by or pledged to the Servicer or such Affiliate shall have
an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of the Notes and
Certificates.
ARTICLE VIII
SERVICING TERMINATION
SECTION 8.1 Events of Servicing Termination. (a) If any one
of the following events ("Events of Servicing Termination") occur and be
continuing:
(i) Any failure by the Servicer or the Seller to
deliver to the Owner Trustee or the Indenture Trustee any proceeds or
payment required to be so delivered under the terms of the Notes and
the Certificates and this Agreement that shall continue unremedied for
a period of three (3) Business Days after written notice of such
failure is received by the Servicer or the Seller, as the case may be,
from the Owner Trustee or the Indenture Trustee or after discovery of
such failure by an officer of the Servicer or the Seller, as the case
may be; or
(ii) Failure on the part of the Servicer or the
Seller duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer or the Seller, as the case may
be, set forth in the Notes, the Certificates or in this Agreement,
which failure shall (a) materially and adversely affect the rights of
Noteholders or Certificateholders and (b) continue unremedied for a
period of ninety (90) days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given
(1) to the Servicer or the Seller, as the case may be, by the Owner
Trustee or the Indenture Trustee, or (2) to the Owner Trustee, the
Indenture Trustee, the Seller and the Servicer by the Noteholders of
Notes evidencing not less than 25% of the Note Balance of the
Controlling Note Class or, if no Notes are outstanding, by
Certificateholders of Certificates evidencing not less than 25% of the
Certificate Balance of the Controlling Certificate Class; or
(iii) The entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver, or liquidator for the
Servicer or the Seller in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings, or for
the winding up or liquidation of its respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of sixty (60) consecutive days; or
(iv) The consent by the Servicer or the Seller to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the Servicer of
or relating to substantially all of its property; or the Servicer shall
admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntary suspend payment of its
obligations or become insolvent;
then the Indenture Trustee shall promptly notify each Rating Agency, and in each
and every case, so long as an Event of Servicing Termination shall not have been
remedied, either the Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the Note Balance of the Controlling Note Class (or,
if no Notes are outstanding, the Owner Trustee or Certificates evidencing not
less than a majority of the Certificate Balance of the Controlling Certificate
Class), by notice then given in writing to the Servicer (and to the Indenture
Trustee and the Owner Trustee if given by the Noteholders and to the Owner
Trustee if given by the Certificateholders) (with a copy to the Rating Agencies)
may terminate all of the rights and obligations of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Notes, the Certificates or the Trust Property or otherwise, shall pass to
and be vested in the Indenture Trustee or such Successor Servicer as may be
appointed under Section 8.2; and, without limitation, the Indenture Trustee and
the Owner Trustee are hereby authorized and empowered to execute and deliver, on
behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise.
(b) Upon termination of the Servicer under Section 8.1(a), the
predecessor Servicer shall cooperate with the Indenture Trustee, the Owner
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Indenture Trustee or such Successor Servicer for
administration of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with respect
to a Receivable and the delivery of the Receivable Files and the related
accounts and records maintained by the Servicer. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section 8.1 shall be paid
by the predecessor Servicer upon presentation of reasonable documentation of
such costs and expenses.
SECTION 8.2 Appointment of Successor Servicer. (a) Upon the Servicer's
receipt of notice of termination pursuant to Section 8.1 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the later of
(x) the date 45 days from the delivery to the Indenture Trustee and the Owner
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (y) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of the Servicer's resignation or termination hereunder, the Issuer
shall appoint a Successor Servicer, and the Successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Owner Trustee and
the Indenture Trustee (with a copy to each Rating Agency). In the event that a
Successor Servicer has not been appointed at the time when the predecessor
Servicer has ceased to act as Servicer in accordance with this Section 8.2, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. Notwithstanding the above, the Indenture Trustee, if it
shall be legally unable so to act, shall appoint, or petition a court of
competent jurisdiction to appoint, any established institution, having a net
worth of not less than $100,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to the Servicer under this
Agreement.
(b) Upon appointment, the Successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties, and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, by the terms and provisions of this
Agreement.
(c) In connection with such appointment, the Indenture Trustee
may make such arrangements for the compensation of such Successor Servicer out
of payments on Receivables as it and such Successor Servicer shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the predecessor Servicer under this Agreement. The Indenture Trustee
and such Successor Servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
SECTION 8.3 Repayment of Advances. If the identity of the
Servicer shall change, the predecessor Servicer shall be entitled to receive to
the extent of available funds reimbursement for Outstanding Advances pursuant to
Section 4.3 and 4.4, in the manner specified in Section 4.6, with respect to all
Advances made by the predecessor Servicer.
SECTION 8.4 Notification to Noteholders and
Certificateholders. Upon any termination of, or appointment of a successor to,
the Servicer pursuant to this Article VIII, the Indenture Trustee shall give
prompt written notice thereof to Noteholders, and the Owner Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses of record and to each Rating Agency.
SECTION 8.5 Waiver of Past Events of Servicing Termination.
The Noteholders of Notes evidencing not less than a majority of the Note Balance
of the Controlling Note Class (or, if no Notes are outstanding, the Owner
Trustee or Certificates evidencing not less than a majority of the Certificate
Balance of the Controlling Certificate Class) may, on behalf of all Noteholders
and Certificateholders, waive any Event of Servicing Termination hereunder and
its consequences, except an event resulting from the failure to make any
required deposits to or payments from any of the Trust Accounts, either
Certificate Distribution Account or the Payahead Account in accordance with this
Agreement. Upon any such waiver of a past Event of Servicing Termination, such
Event of Servicing Termination shall cease to exist, and shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other event or impair any right consequent thereon. The
Issuer shall provide written notice of any such waiver to the Rating Agencies.
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables. On the last
day of any Collection Period as of which the Pool Factor shall be less than the
Optional Purchase Percentage, the Servicer shall have the option to purchase the
corpus of the Trust. To exercise such option, the Servicer shall deposit
pursuant to Section 4.5 in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables, plus the appraised value of any
other property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Servicer, the Owner Trustee and the Indenture
Trustee, and shall succeed to all interests in and to the Trust. Notwithstanding
the foregoing, the Servicer shall not be permitted to exercise such option
unless the amount to be deposited in the Collection Account pursuant to the
preceding sentence is greater than or equal to the sum of the outstanding
principal amount of the Notes and the Aggregate Certificate Balance and all
accrued but unpaid interest (including any overdue interest) thereon. The amount
deposited in the Collection Account pursuant to this Section 9.1 shall be used
on the next Distribution Date to make payments in full to Noteholders and
Certificateholders in the manner set forth in Article IV.
SECTION 9.2. Succession Upon Satisfaction and Discharge of
Indenture. Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, to the extent
permitted by applicable law, the Indenture Trustee will continue to carry out
its obligations hereunder as agent for the Owner Trustee, including without
limitation making distributions from the Payahead Account and the Collection
Account in accordance with Section 4.6 and making withdrawals from the Reserve
Account in accordance with Section 4.5(b) and Section 4.7.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment. (a) This Agreement may be amended by
the Seller, the Servicer and the Issuer, with the consent of the Indenture
Trustee and the Owner Trustee to the extent that their respective rights or
obligations may be affected thereby (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement, or to add any provisions to or change or eliminate
any provisions or to modify the rights of the Noteholders or Certificateholders;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interests of any Noteholder or Certificateholder; and
provided further that such action shall not, as evidenced by an Opinion of
Counsel, cause the Issuer to be characterized for federal or any then Applicable
Tax State income tax purposes as an association taxable as a corporation.
(b) This Agreement may also be amended from time to time by
the Seller, the Servicer and the Issuer, with the consent of the Owner Trustee
to the extent that its rights or obligations may be affected thereby (which
consent may not be unreasonably withheld) and with the consent of (i) the
Indenture Trustee, to the extent that its rights or obligations would be
affected by such amendment, (ii) the Noteholders of Notes evidencing not less
than a majority of the Note Balance of each Class of the Notes and (iii) the
Certificateholders of Certificates evidencing not less than a majority of the
Aggregate Certificate Balance (which consent of any Noteholder of a Note or
Certificateholder of a Certificate given pursuant to this Section 10.1 or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Note or Certificate, as the case may be, and on all future
Noteholders of such Note or Certificateholders of such Certificate, as the case
may be, and of any Note or Certificate, as applicable, issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon such Note or the Certificate), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such amendment
shall (A) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that shall be required to be made on any Note or
Certificate or change any Note Interest Rate or any Certificate Rate or, without
satisfaction of the Rating Agency Condition, the Specified Reserve Balance,
without the consent of all adversely affected Noteholders or Certificateholders
or (B) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Noteholders of all Notes and
Certificateholders of all Certificates affected thereby; and provided further
that such action shall not, as evidenced by an Opinion of Counsel, cause the
Issuer to be characterized for federal or any then Applicable Tax State income
tax purposes as an association taxable as a corporation.
(c) Prior to the execution of any such amendment or consent
the Servicer will provide, and the Owner Trustee shall distribute, written
notification of the substance of such amendment or consent to each Rating
Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to each Certificateholder, the Indenture Trustee
and each Rating Agency and the Indenture Trustee will provide notification of
the substance of such amendment or consent to each Noteholder. It shall not be
necessary for the consent of Noteholders or the Certificateholders pursuant to
this Section 10.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Noteholders and Certificateholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Noteholders and
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee and the Indenture Trustee may prescribe, including the establishment of
record dates pursuant to paragraph number 2 of the Note Depository Agreement.
(e) Prior to the execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel referred to
in Section 10.2(i)(1). The Owner Trustee or the Indenture Trustee may, but shall
not be obligated to, enter into any such amendment which affects such Owner
Trustee's or Indenture Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 10.2 Protection of Title to Trust Property. (a) The
Seller shall execute and file such financing statements and cause to be executed
and filed such continuation statements, all in such manner and in such places as
may be required by law fully to preserve, maintain, and protect the interest of
the Issuer and the Indenture Trustee for the benefit of the Noteholders in the
Receivables and in the proceeds thereof. The Seller shall deliver (or cause to
be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning of
ss. 9-402(7) of the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least five (5) days' prior written notice thereof, with a
copy to the Rating Agencies, and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller and the Servicer shall give the Owner Trustee
and the Indenture Trustee at least sixty (60) days' prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall promptly file any such amendment or new financing
statement. The Servicer shall at all times maintain each office from which it
shall service Receivables, and its principal executive office, within the United
States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection
Account, the Payahead Account and the Reserve Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of conveyance under this Agreement of the Receivables to
the Issuer, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly the interest of the
Issuer and the Indenture Trustee in such Receivable and that such Receivable is
owned by the Issuer and has been pledged to the Indenture Trustee pursuant to
the Indenture. Indication of the Issuer's and the Indenture Trustee's interest
in a Receivable shall not be deleted from or modified on the Servicer's computer
systems until, and only until, the Receivable shall have been paid in full or
repurchased.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
automotive receivables to any prospective purchaser, lender, or other
transferee, the Servicer shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs (including any restored
from back-up archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been conveyed to and
is owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer, upon receipt of reasonable prior notice,
shall permit the Owner Trustee, the Indenture Trustee and their respective
agents at any time during normal business hours to inspect, audit, and make
copies of and to obtain abstracts from the Servicer's records regarding any
Receivable.
(h) Upon request, the Servicer shall furnish to the Owner
Trustee and the Indenture Trustee, within twenty (20) Business Days, a list of
all Receivables (by contract number and name of Obligor) then held as part of
the Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificates furnished before such
request indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee:
(1) promptly after the execution and
delivery of this Agreement and of each amendment thereto, an
Opinion of Counsel either (A) stating that, in the opinion of
such Counsel, all financing statements and continuation
statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Issuer and
the Indenture Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that,
in the opinion of such Counsel, no such action shall be
necessary to preserve and protect such interest; and
(2) within 120 days after the beginning of
each calendar year beginning with the first calendar year
beginning more than three months after the Cutoff Date, an
Opinion of Counsel, dated as of a date during such 120-day
period, either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements
have been executed and filed that are necessary fully to
preserve and protect the interest of the Issuer and the
Indenture Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the
opinion of such Counsel, no such action shall be necessary to
preserve and protect such interest.
Each Opinion of Counsel referred to in clause (i)(1) or (i)(2)
above shall specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
(j) The Seller shall, to the extent required by applicable
law, cause the Notes and the Certificates to be registered with the Securities
and Exchange Commission pursuant to Section 12(b) or Section 12(g) of the
Securities Exchange Act of 1934 within the time periods specified in such
sections.
(k) For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and all of which counterparts shall constitute but one and the same instrument.
SECTION 10.3 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.4 Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller or the Servicer, to the agent for service as specified in
Section 10.11 hereof, or at such other address as shall be designated by the
Seller or the Servicer in a written notice to the Owner Trustee and the
Indenture Trustee, (b) in the case of the Owner Trustee, at the Corporate Trust
Office of the Owner Trustee, (c) in the case of the Indenture Trustee, at the
Corporate Trust Office of the Indenture Trustee, (d) in the case of ▇▇▇▇▇'▇
Investors Service, Inc., at the following address: ▇▇▇▇▇'▇ Investors Service,
Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (e)
in the case of Standard & Poor's Ratings Services, at the following address:
Standard & Poor's Ratings Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department and, (f) in the case
of Fitch, Inc., at the following address: Fitch, Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance. Any notice required
or permitted to be mailed to a Noteholder or Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Person as shown in the
Note Register or the Certificate Register, as applicable. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Noteholder or Certificateholder shall
receive such notice.
SECTION 10.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the Notes, the
Certificates or the rights of the holders thereof.
SECTION 10.6 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 7.3 and 8.2 and as
provided in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Seller or the Servicer
without the prior written consent of the Owner Trustee, the Indenture Trustee,
the Noteholders of Notes evidencing not less than 662/3% of the Note Balance of
the Notes Outstanding and the Certificateholders of Certificates evidencing not
less than 662/3% of the Aggregate Certificate Balance.
SECTION 10.7 Further Assurances. The Seller and the Servicer
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the Owner
Trustee or the Indenture Trustee more fully to effect the purposes of this
Agreement, including, without limitation, the execution of any financing
statements or continuation statements relating to the Receivables for filing
under the provisions of the UCC of any applicable jurisdiction.
SECTION 10.8 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
therein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
SECTION 10.9 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Noteholders,
the Certificateholders, the Indenture Trustee, the Delaware Trustee and the
Owner Trustee and their respective successors and permitted assigns and each of
the Indenture Trustee, the Delaware Trustee and the Owner Trustee may enforce
the provisions hereof as if they were parties thereto. Except as otherwise
provided in this Article X, no other Person will have any right or obligation
hereunder. The parties hereto hereby acknowledge and consent to the pledge of
this Agreement by the Issuer to the Indenture Trustee for the benefit of the
Noteholders pursuant to the Indenture.
SECTION 10.10 Actions by Noteholders or Certificateholders.
(a) Wherever in this Agreement a provision is made that an action may be taken
or a notice, demand, or instruction given by Noteholders or Certificateholders,
such action, notice, or instruction may be taken or given by any Noteholder or
Certificateholder, as applicable, unless such provision requires a specific
percentage of Noteholders or Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver, or other act by a Noteholder or Certificateholder shall bind
such Noteholder or Certificateholder and every subsequent holder of such Note or
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or omitted to be done by
the Owner Trustee, the Indenture Trustee or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Note or Certificate.
SECTION 10.11 Agent for Service. The agent for service of the
Seller and the Servicer in respect of this Agreement shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Assistant Secretary of Ford Credit and Counsel - Corporate, Financing Operations
of Ford Motor Company, Ford Motor Credit Company, Ford Motor Company World
Headquarters, Office of the General Counsel, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 10.12 No Bankruptcy Petition. The Owner Trustee, the
Indenture Trustee, the Issuer and the Servicer each covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization it will not institute against, or join any other Person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
State bankruptcy or similar law. This Section 10.12 shall survive the
resignation or removal of the Owner Trustee under the Trust Agreement or the
Indenture Trustee under the Indenture or the termination of this Agreement.
SECTION 10.13 Limitation of Liability of Owner Trustee and
Indenture Trustee. (a) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by The Bank of New York not in
its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event shall The Bank of New York in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by The Chase Manhattan Bank, not in its
individual capacity but solely as Indenture Trustee, and in no event shall The
Chase Manhattan Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 10.14 Savings Clause. It is the intention of the
Seller and the Issuer that the transfer of the Trust Property contemplated
herein constitute an absolute transfer of the Trust Property, conveying good
title to the Trust Property from the Seller to the Issuer. However, in the event
that such transfer is deemed to be a pledge, the Seller hereby grants to the
Issuer a first priority security interest in all of the Seller's right, title
and interest in, to and under the Trust Property, and all proceeds thereof, to
secure a loan in an amount equal to all amounts payable under the Notes and the
Certificates, and in such event, this Agreement shall constitute a security
agreement under applicable law.
IN WITNESS WHEREOF, the parties have caused this Sale and
Servicing Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES TWO LLC, as Seller
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. Smth-▇▇▇▇▇▇▇
Title: Assistant Secretary
FORD CREDIT AUTO OWNER TRUST 2001-C, as Issuer
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
FORD MOTOR CREDIT COMPANY, as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Assistant Secretary
Accepted and agreed:
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
SA-1
SCHEDULE A
SCHEDULE OF RECEIVABLES
Delivered to Indenture Trustee at Closing
SB-9
SCHEDULE B-1
Location of Receivable Files
at Ford Credit Branch Offices
Akron
175 Montrose ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Albany
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Albuquerque
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Amarillo
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Anchorage
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Appleton
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Athens
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atlanta-North
North Park Town Center
▇▇▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atlanta-South
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atlanta/CL
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atlantic Region District ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Austin
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Baltimore
▇▇▇▇▇▇▇▇ Corporate
Center One
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
Suite ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Baltimore Service Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Beaumont
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Billings
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Birmingham
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
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Boston-North
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▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Boston-South
Southboro Place
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bristol
Landmark Center-
Suite A
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Buffalo
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cape Girardeau
▇▇▇▇-▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Charleston
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▇▇▇▇▇ ▇▇▇
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Charlotte
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Charlotte/CL
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chattanooga
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cheyenne
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chicago-East
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chicago-North
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chicago-West
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chicago/CL
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cincinnati
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Cleveland
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Colorado Springs
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Columbia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Columbus
Metro V, Suite 470
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Coral Springs
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Corpus Christi
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Forum
Suite 600
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dallas/▇▇
▇▇▇▇▇▇▇▇ Forum
Suite 650
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Davenport
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Decatur
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Denver
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Des Moines
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Detroit-North
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Detroit-West
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Detroit/CL
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dothan
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
El Paso
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eugene
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Falls Church
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fargo
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fayetteville
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Findlay
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ft. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ft. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Grand Junction
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Grand Rapids
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Greensboro
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Greenville Service Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Harlingen
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Harrisburg
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Henderson
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Service Center
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Honolulu
Ala Moano Pacific Center
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Houston-North
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Houston-West
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Huntington
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇ *
▇▇▇, ▇▇ ▇▇▇▇▇
Indianapolis
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Irving Service Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jackson
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jacksonville
Suite 310
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jefferson City
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Kansas City
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇. #▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Knoxville
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lansing
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Las Vegas
▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Little Rock
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Long Island
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Louisville
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lubbock
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Macon
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Manchester
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Memphis
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Miami
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Midland
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Milwaukee
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Minneapolis
One Southwest Crossing
Suite 308
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mobile
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Nashville
Highland Ridge
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nashville Service Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
National Recovery Center
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
New Haven
▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New Jersey-Central
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New Jersey-North
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New Jersey-South
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
New Orleans
Lakeway III
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Norfolk
Greenbrier Pointe
Suite 350
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Oklahoma City
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Omaha
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Omaha Customer Service Center
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nashville Customer Service Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Orange
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Orange/CL
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Orlando
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pasadena
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pensacola
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Philadelphia
Bay Colony Executive Park
Suite 100
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Philadelphia/CL
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phoenix
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pittsburgh
▇▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Portland, ME
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Portland, OR
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Raleigh
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Richmond
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Roanoke
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sacramento
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Saginaw
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Salt Lake City
▇▇▇ ▇. ▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Santa ▇▇▇ Central Collections
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Antonio
▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
San Bernardino
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Diego
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Francisco
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Francisco/CL
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
San ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Savannah
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Seattle
▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Shreveport
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
South Bay
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
South Bend
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Spokane
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Springfield
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
St. Louis
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
St. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Syracuse
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tampa
Lincoln Pointe, Suite 800
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tampa Service Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Terre Haute
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tulsa
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ventura
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Washington, D.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
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Westchester
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B2-1
Schedule B-2
Location of Receivable Files
at Third Party Custodians for Ford Credit
Security Archives
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B2-1
APPENDIX A
Definitions and Usage
See Tab 14
SALE AND SERVICING AGREEMENT
by and among
FORD CREDIT AUTO OWNER TRUST 2001-C,
as Issuer,
FORD CREDIT AUTO RECEIVABLES TWO LLC,
as Seller,
and
FORD MOTOR CREDIT COMPANY,
as Servicer
Dated as of May 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE...............................................................................1
ARTICLE II
TRUST PROPERTY......................................................................................1
SECTION 2.1 Conveyance of Trust Property...................................................1
SECTION 2.2 Representations and Warranties of the Seller as to the
Receivables....................................................................2
SECTION 2.3 Repurchase upon Breach.........................................................6
SECTION 2.4 Custody of Receivable Files....................................................7
SECTION 2.5 Duties of Servicer as Custodian................................................8
SECTION 2.6 Instructions; Authority to Act.................................................9
SECTION 2.7 Custodian's Indemnification....................................................9
SECTION 2.8 Effective Period and Termination...............................................9
ARTICLE III
ADMINISTRATION AND SERVICING OF
RECEIVABLES AND TRUST PROPERTY.....................................................................10
SECTION 3.1 Duties of Servicer............................................................10
SECTION 3.2 Collection of Receivable Payments.............................................11
SECTION 3.3 Realization Upon Receivables..................................................11
SECTION 3.4 Allocations of Collections....................................................11
SECTION 3.5 Maintenance of Security Interests in Financed Vehicles........................12
SECTION 3.6 Covenants of Servicer.........................................................12
SECTION 3.7 Purchase of Receivables Upon Breach...........................................12
SECTION 3.8 Servicer Fee..................................................................13
SECTION 3.9 Servicer's Certificate........................................................13
SECTION 3.10 Annual Statement as to Compliance; Notice of Event of
Servicing Termination.........................................................14
SECTION 3.11 Annual Independent Certified Public Accountant's Report.......................14
SECTION 3.12 Access to Certain Documentation and Information Regarding
Receivables...................................................................15
SECTION 3.13 Servicer Expenses.............................................................15
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS...................................................16
SECTION 4.1 Accounts..................................................................... 16
SECTION 4.2 Collections...................................................................19
SECTION 4.3 Application of Collections....................................................20
SECTION 4.4 Advances......................................................................20
SECTION 4.5 Additional Deposits to Collection Account and Withdrawals
from Reserve Account..........................................................22
SECTION 4.6 Distributions.................................................................22
SECTION 4.7 Reserve Account...............................................................27
SECTION 4.8 Net Deposits..................................................................30
SECTION 4.9 Statements to Noteholders and Certificateholders..............................30
ARTICLE V
Intentionally Omitted..............................................................................32
ARTICLE VI
THE SELLER.........................................................................................32
SECTION 6.1 Representations and Warranties of Seller......................................32
SECTION 6.2 Liability of Seller; Indemnities..............................................34
SECTION 6.3 Merger or Consolidation of, or Assumption of the
Obligations of, Seller........................................................36
SECTION 6.4 Limitation on Liability of Seller and Others..................................37
SECTION 6.5 Seller May Own Notes or Certificates..........................................37
ARTICLE VII
THE SERVICER.......................................................................................37
SECTION 7.1 Representations of Servicer...................................................37
SECTION 7.2 Indemnities of Servicer.......................................................39
SECTION 7.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer......................................................41
SECTION 7.4 Limitation on Liability of Servicer and Others................................41
SECTION 7.5 Delegation of Duties..........................................................42
SECTION 7.6 Ford Credit Not to Resign as Servicer.........................................42
SECTION 7.7 Servicer May Own Notes or Certificates........................................43
ARTICLE VIII
SERVICING TERMINATION..............................................................................43
SECTION 8.1 Events of Servicing Termination...............................................43
SECTION 8.2 Appointment of Successor Servicer.............................................45
SECTION 8.3 Repayment of Advances.........................................................46
SECTION 8.4 Notification to Noteholders and Certificateholders............................46
SECTION 8.5 Waiver of Past Events of Servicing Termination................................46
ARTICLE IX
TERMINATION........................................................................................47
SECTION 9.1 Optional Purchase of All Receivables..........................................47
SECTION 9.2. Succession Upon Satisfaction and Discharge of Indenture.......................47
ARTICLE X
MISCELLANEOUS PROVISIONS...........................................................................47
SECTION 10.1 Amendment.....................................................................47
SECTION 10.2 Protection of Title to Trust Property.........................................49
SECTION 10.3 Governing Law.................................................................52
SECTION 10.4 Notices.......................................................................52
SECTION 10.5 Severability of Provisions....................................................53
SECTION 10.6 Assignment....................................................................53
SECTION 10.7 Further Assurances............................................................53
SECTION 10.8 No Waiver; Cumulative Remedies................................................53
SECTION 10.9 Third-Party Beneficiaries.....................................................53
SECTION 10.10 Actions by Noteholders or Certificateholders..................................54
SECTION 10.11 Agent for Service.............................................................54
SECTION 10.12 No Bankruptcy Petition........................................................54
SECTION 10.13 Limitation of Liability of Owner Trustee and Indenture
Trustee.......................................................................55
SECTION 10.14 Savings Clause................................................................55
Schedule A Schedule of Receivables........................................................SA-1
Schedule B-1 Location of Receivable Files...................................................SB-1
Schedule B-2 Custodians for Receivable Files................................................B2-1
Appendix A Definitions and Usage..........................................................AA-1