SALE AND SERVICING AGREEMENT among FORD CREDIT AUTO OWNER TRUST 2006-C, as Issuer, FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor and FORD MOTOR CREDIT COMPANY, as Servicer Dated as of November 1, 2006
among
as
Issuer,
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
and
FORD
MOTOR CREDIT COMPANY,
as
Servicer
Dated
as
of November 1, 2006
TABLE
OF CONTENTS
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Page
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| ARTICLE I USAGE AND DEFINITIONS |
1
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| ARTICLE II TRUST PROPERTY; REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR; CUSTODIAN |
1
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Section
2.1
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Sale
of Trust Property
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1
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Section
2.2
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Savings
Clause
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1
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Section
2.3
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Representations
and Warranties of the Depositor About the Receivables
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2
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Section
2.4
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Repurchase
of Receivables Upon Breach of Representations or Warranties by the
Depositor
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2
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Section
2.5
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Custodian
|
3
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| ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES AND OTHER TRUST PROPERTY |
4
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Section
3.1
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Appointment;
Duties of the Servicer with Respect to the Servicing of the
Receivables
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4
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Section
3.2
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Purchase
of Receivables Upon Breach by the Servicer
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6
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Section
3.3
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Sales
of Charged off Receivables
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7
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Section
3.4
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Duties
of the Servicer with Respect to the Servicing of the Transaction;
Annual
Reports and Notices
|
7
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Section
3.5
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Servicer's
Fees
|
8
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Section
3.6
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Servicer's
Expenses
|
8
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| ARTICLE IV TRUST ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO NOTEHOLDERS AND THE DEPOSITOR |
8
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Section
4.1
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Accounts
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8
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Section
4.2
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Investment
of Funds on Deposit in the Bank Accounts
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10
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Section
4.3
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Remittances
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11
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Section
4.4
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Calculations
and Distributions; Withdrawals from the Reserve Account
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12
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| ARTICLE V THE DEPOSITOR |
12
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Section
5.1
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Representations
and Warranties of the Depositor
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12
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Section
5.2
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Liability
of the Depositor
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13
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Section
5.3
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Merger
or Consolidation of, or Assumption of the Obligations of, the
Depositor
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14
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Section
5.4
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Depositor
May Own Notes
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14
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Section
5.5
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Depositor's
Designation of the Rating Agencies
|
14
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|
i
| ARTICLE VI THE SERVICER |
14
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|
Section
6.1
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Representations
and Warranties of the Servicer
|
14
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Section
6.2
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Liability
of the Servicer
|
15
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Section
6.3
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Indemnities
of the Servicer
|
16
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|
Section
6.4
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Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer;
Assignment to Affiliate
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16
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Section
6.5
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Delegation
of Duties
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17
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Section
6.6
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Ford
Credit Not to Resign as Servicer
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17
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Section
6.7
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Servicer
May Own Notes
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17
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| ARTICLE VII SERVICING TERMINATION |
17
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Section
7.1
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Events
of Servicing Termination
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17
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Section
7.2
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Appointment
of Successor Servicer
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19
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Section
7.3
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Notification
to Secured Parties and the Holder of the Residual Interest
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20
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Section
7.4
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Waiver
of Events of Servicing Termination
|
20
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| ARTICLE VIII TERMINATION |
21
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Section
8.1
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Clean-Up
Call
|
21
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| ARTICLE IX MISCELLANEOUS PROVISIONS |
21
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Section
9.1
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Amendment
|
21
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Section
9.2
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Protection
of Right, Title and Interest to the Trust Property
|
22
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Section
9.3
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Notices
|
23
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Section
9.4
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Assignment
by the Depositor or the Servicer
|
24
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Section
9.5
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Third-Party
Beneficiaries
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24
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Section
9.6
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GOVERNING
LAW
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24
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Section
9.7
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Submission
to Jurisdiction
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24
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Section
9.8
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WAIVER
OF JURY TRIAL
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24
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Section
9.9
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Severability
|
24
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Section
9.10
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Counterparts
|
24
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Section
9.11
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Headings
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24
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Section
9.12
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No
Waiver; Cumulative Remedies
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24
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Section
9.13
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Agent
for Service
|
25
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Section
9.14
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No
Petition
|
25
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Section
9.15
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Limitation
of Liability of Owner Trustee and Indenture Trustee
|
25
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|
Schedule
A
|
Schedule
of Receivables
|
SA-1
|
|
Schedule
B
|
Notice
Addresses
|
SB-1
|
|
Appendix
A
|
Usage
and Definitions
|
AA-1
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|
Exhibit
A
|
Form
of Monthly Investor Report
|
EA-1
|
ii
SALE
AND
SERVICING AGREEMENT, dated as of November 1, 2006 (this "Agreement"),
among
FORD CREDIT AUTO OWNER TRUST 2006-C, a Delaware statutory trust, as Issuer,
FORD
CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited liability company, as
Depositor, and FORD MOTOR CREDIT COMPANY, a Delaware corporation, as
Servicer.
BACKGROUND
The
Depositor has purchased a pool of retail installment sale contracts secured
by
new and used cars and light trucks from Ford Credit.
The
Depositor wishes to sell and the Issuer wishes to purchase from the Depositor
such contracts and related property on the terms and conditions in this
Agreement.
The
Issuer wishes to appoint the Servicer to service the contracts and the Servicer
is willing to service the contracts for the Issuer.
ARTICLE
I
USAGE
AND
DEFINITIONS
Capitalized
terms used but not otherwise defined in this Agreement are defined in Appendix
A. Appendix A also contains rules as to usage applicable to this Agreement.
Appendix A is incorporated by reference into this Agreement.
ARTICLE
II
TRUST
PROPERTY; REPRESENTATIONS AND WARRANTIES
OF
THE
DEPOSITOR; CUSTODIAN
Section
2.1
Sale
of Trust Property. In
consideration of the Issuer's delivery to the Depositor of Notes with an
aggregate Note Balance of $3,019,017,000 and the rights to distributions under
Section 8.2 of the Indenture, the Depositor irrevocably sells to the Issuer,
without recourse (subject to the obligations of the Depositor under this
Agreement), all right, title and interest of the Depositor, whether now owned
or
hereafter acquired, in and to the Receivables and the other Trust Property.
The
sale made under this Agreement does not constitute and is not intended to result
in an assumption by the Issuer of any obligation of the Depositor or Ford Credit
to the Obligors, the Dealers or any other Person in connection with the
Receivables and the other Trust Property.
Section
2.2
Savings
Clause. It
is the
intention of the Depositor and the Issuer that (i) the sale pursuant to Section
2.1 constitutes an absolute sale of the Trust Property, conveying good title
free and clear of any Lien other than Permitted Liens, from the Depositor to
the
Issuer and (ii) the Trust Property not be a part of the Depositor’s estate in
the event of a bankruptcy or insolvency of the Depositor. If, notwithstanding
the intention of the Depositor and the Issuer, such transfer is deemed to be
a
pledge in connection with a financing or is otherwise deemed not to be a sale,
the Depositor grants, and the parties intend that the Depositor grant, to the
Issuer a first priority perfected security interest in all of the Depositor’s
right, title and interest in the Trust Property to secure a loan in an amount
equal to all amounts payable by the Depositor under this Agreement, all amounts
payable as principal and interest on the Notes and all amounts payable as
servicing fees under this Agreement and all fees and expenses of the Indenture
Trustee or the Owner Trustee, and in such event, this Agreement will constitute
a security agreement under applicable law and the Issuer will have all of the
rights and remedies of a secured party and creditor under the UCC.
1
Section
2.3
Representations
and Warranties of the Depositor About the Receivables.
(a) Representations
and Warranties from the Purchase Agreement.
Ford
Credit made the representations and warranties set forth in Section 3.2 of
the
Purchase Agreement to the Depositor, and has consented to the transfer by the
Depositor to the Issuer of the Depositor’s rights with respect to such
representations and warranties on which the Issuer is relying in acquiring
the
Receivables. Pursuant to Section 2.1, the Depositor has transferred to the
Issuer all of the Depositor’s rights under the Purchase Agreement, including the
right to require Ford Credit to repurchase Receivables in accordance with the
Purchase Agreement if there is a breach of Ford Credit's representations and
warranties. In addition, the Depositor represents and warrants as of the Closing
Date, which representations and warranties the Issuer has relied on in
purchasing the Receivables and will survive the sale of the Receivables to
the
Issuer and the pledge of the Receivables to the Indenture Trustee pursuant
to
the Indenture, that the representations and warranties set forth in Section
3.2
of the Purchase Agreement are true and correct in all material respects.
(b) Representations
and Warranties of the Depositor.
The
Depositor represents and warrants as of the Closing Date, which representations
and warranties the Issuer has relied on in purchasing the Receivables and will
survive the sale of the Receivables to the Issuer and the pledge of the
Receivables to the Indenture Trustee pursuant to the Indenture,
that:
(i)
the
Depositor has not previously sold, assigned, pledged or granted a security
interest in the Receivables or other Trust Property to any Person other than
the
Issuer,
(ii)
immediately
before the sale under this Agreement, the Depositor had good and marketable
title to the Receivables and other Trust Property free and clear of any Lien
other than Permitted Liens, and
(iii) immediately
upon the sale under this Agreement, the Issuer will have good and marketable
title to the Receivables and other Trust Property, free and clear of any
Lien
other than Permitted Liens.
(a) If
a Responsible Person
of the Depositor has actual knowledge, or receives notice from the Issuer,
the
Owner Trustee or the Indenture Trustee, of a breach of the representations
or
warranties made by the Depositor pursuant to Section 2.3 that materially and
adversely affects any Receivable and such breach has not been cured in all
material respects by the last day of the second full Collection Period after
the
Responsible Person obtains actual knowledge or is notified of such breach,
the
Depositor will repurchase such Receivable as of such last day (or, at the
Depositor's option, the last day of the first full Collection Period after
the
Responsible Person obtains actual knowledge or is notified of such breach)
at a
price equal to the Purchase Amount. The Depositor will deposit or cause to
be
deposited into the Collection Account the Purchase Amount for any Receivable
that it is repurchasing on the Business Day immediately preceding the Payment
Date (or, with Rating Agency Confirmation, on such Payment Date) related to
the
Collection Period as of which such repurchase occurs.
(b) The
sole remedy for a
breach of the representations and warranties of the Depositor contained in
Section 2.3 and Section 5.1 is (i) to require the Depositor to repurchase such
materially and adversely affected Receivable or (ii) to require the Depositor
or
the Indenture Trustee to enforce the obligation of Ford Credit to repurchase
such materially and adversely affected Receivable pursuant to Section 3.3(a)
of
the Purchase Agreement. None of the Servicer, the Owner Trustee, the Indenture
Trustee, the Depositor or the Administrator will have any duty to conduct an
investigation as to the occurrence of any condition requir-ing the repurchase
of
any Receivable pursuant to Section 2.4(a).
2
(c) Upon
the Depositor's
payment of the Purchase Amount into the Collection Account, the Issuer will,
without further action, be deemed to have sold and assigned to the Depositor
all
of the Issuer's right, title and interest in and to the Receivable repurchased
by the Depositor pursuant to Section 2.4(a) and security and documents relating
to such Receivable. Such sale will not require any action by the Issuer and
will
be without recourse, representation or warranty by the Issuer except the
representation that the Issuer owns the Receivable free and clear of any Liens
other than Permitted Liens. Upon such sale, the Servicer will ▇▇▇▇ its computer
records to indicate that such receivable is no longer a Receivable and take
any
action necessary or appropriate to evidence the sale of such receivable, free
from any Lien of the Issuer or the Indenture Trustee.
Section
2.5
Custodian.
(a) Appointment
of Custodian.
To
reduce administrative costs and facilitate the servicing of the Receivables
by
the Servicer, the Issuer appoints Ford Credit, in its capacity as the Servicer,
to act as the custodian of the Receivables for the Issuer and the Indenture
Trustee. Ford Credit accepts such appointment and agrees to perform the
custodial duties set forth in this Section 2.5. Ford Credit in its capacity
as
custodian under this Agreement is referred to as the "Custodian."
(b) Custody
of Receivables Files.
The
Custodian will hold and maintain in safekeeping the following documents and
instruments for each Receivable (the "Receivables
Files")
for
the benefit of the Issuer and the Indenture Trustee:
(i)
the
original Receivable;
(ii) the
credit application executed by the Obligor;
(iii)
the
original certificate of title or such other documents evidencing the security
interest of Ford Credit in the Financed Vehicle; and
(iv)
all
other
documents, notices and correspondence that the Servicer generates relating
to
the Receivable, the Obligor or the Financed Vehicle.
(c) Maintenance
and Safekeeping of the Receivables Files.
The
Custodian will accurately maintain and keep current the Receivables Files,
including any computer systems on which the Receivables Files are electronically
stored, all in a manner that will permit the Servicer and the Issuer to comply
with this Agreement and the Indenture Trustee to comply with the Indenture.
The
Custodian will act with reasonable care and in accordance with the Credit and
Collection Policy in performing its duties as custodian. The Custodian will
promptly take appropriate action to remedy any material failure on its part
to
hold the Receivables Files and maintain its computer systems as provided in
this
Agreement and will report to the Issuer and the Indenture Trustee any such
material failure that it is unable to remedy within a reasonable time. The
Custodian may destroy any document (other than the original Receivable or
certificate of title) in any Receivable File and store such document in an
electronic format in accordance with the Credit and Collection
Policy.
3
(d) Location
of Receivables Files.
The
Custodian will maintain the Receivables Files (or access to any Receivables
Files stored in an electronic format) at one of its offices or the offices
of
one of its custodians in the United States. Upon request, the Custodian will
provide a list of locations of the Receivables Files to the Depositor, the
Issuer and the Indenture Trustee, or their representatives, attorneys or
auditors.
(e) Access
to Receivables Files.
The
Custodian will provide the Depositor, the Issuer and the Indenture Trustee
with
access to the Receivables Files and the related computer systems at offices
designated by the Custodian without charge, but only upon reasonable request,
during normal business hours. Such access will be subject to the Custodian's
security and confidentiality procedures and the terms and conditions of a
confidentiality agreement satisfactory to the Custodian. Nothing in this Section
2.5(e) will affect the obligation of the Indenture Trustee or the Custodian
to
observe any applicable privacy and confidentiality law prohibiting disclosures
of information regarding the Obligors and the failure of the Custodian to
provide access as a result of such obligations will not constitute a breach
of
this Section 2.5(e).
(f) Effective
Period and Termination of Custodian.
Ford
Credit's appointment as custodian is effective as of the Cutoff Date and will
continue until terminated pursuant to this Section 2.5(f). If Ford Credit
resigns as Servicer in accordance with Section 6.6 or the Servicer is terminated
pursuant to Section 7.1, the appointment of Ford Credit as custodian under
this
Agreement may be terminated in the same manner as the Servicer may be terminated
under Section 7.1. As soon as practicable after any termination of its
appointment as custodian, the Custodian will deliver to the Indenture Trustee
or
its agent or designee the Receivables Files maintained by the Custodian at
such
place as the Indenture Trustee may reasonably designate. All reasonable costs
and expenses incurred in connection with transferring the Receivables Files
to
the successor custodian and amending this Agreement to reflect such successor
as
custodian will be paid by the predecessor custodian upon presentation of
documentation of such costs and expenses.
(g) Servicer's
Access to Receivables Files; Indemnity.
Notwithstanding any termination of the Custodian pursuant to Section 2.5(f),
the
Servicer will be entitled to access the Receivables Files and, upon request
from
the Servicer, the successor custodian will promptly release any document in
the
Receivables Files to the Servicer. The Issuer will indemnify, defend and hold
harmless the Servicer against any and all costs, expenses, losses, claims and
liabilities resulting from the failure by a successor custodian to release
Receivables Files to the Servicer in a timely manner.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF RECEIVABLES AND OTHER TRUST PROPERTY
Section
3.1
Appointment;
Duties of the Servicer with Respect to the Servicing of the
Receivables.
(a) Appointment
and General Duties.
The
Issuer appoints Ford Credit to act as the Servicer of the Receivables for the
Issuer and the Indenture Trustee. The Servicer will manage, service, administer
and collect on the Receivables with reasonable care using that degree of skill
and attention that the Servicer exercises with respect to all comparable
automotive receivables that it services for itself or others and in accordance
with the Credit and Collection Policy. The Servicer's duties will
include:
(i)
collecting
and applying all payments made on the Receivables,
(ii) investigating
delinquencies,
(iii) sending
invoices and responding to inquiries of Obligors,
(iv) processing
requests for extensions and modifications,
(v) administering
payoffs, defaults and delinquencies,
4
(vi) reporting
tax information to Obligors,
(vii)
repossessing
and then selling the Financed Vehicle securing any Receivable that the Servicer
determines is unlikely to eventually be paid in full,
(viii)
maintaining
accurate and complete accounts and computer systems pertaining to servicing
the
Receivables,
(ix) providing
to the Custodian copies, or access to, any documents, instruments, notices and
correspondence that modify information contained in the Receivables Files,
and
(x) furnishing
Monthly Investor Reports and any other periodic reports required by the
transaction documents.
In
performing its duties as servicer of the Receivables, the Servicer will comply
with all material requirements of federal and State laws and
regulations.
(b) Collection
of Receivable Payments; Extensions, Rebates and Adjustments on
Receivables.
The
Servicer will make reasonable efforts to collect all payments due under the
terms of the Receivables. The Servicer may waive any late payment charge or
any
other fees that may be collected in the ordinary course of servicing a
Receivable and may grant extensions, refunds, rebates or adjustments with
respect to any Receivable or amend any Receivable, in each case in accordance
with the Credit and Collection Policy, except that if the Servicer (i) grants
payment extensions on a Receivable that extend the final payment date of the
Receivable more than six months past the last original scheduled payment date
of
any Receivable in the securitized pool, (ii) modifies the Amount Financed under
a Receivable, (iii) modifies the APR of a Receivable, or (iv) increases the
number of originally scheduled due dates of the Receivable, it will purchase
the
Receivable in the manner provided in Section 3.2, unless it is required to
take
such action under law or pursuant to a court order.
(c) Maintenance
of Security Interests in Financed Vehicles.
The
Servicer will take all necessary steps to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle. The Issuer
authorizes the Servicer to take all actions necessary to continue perfection
of
such security interest on behalf of the Issuer and the Indenture Trustee if
a
Financed Vehicle is relocated to another State or for any other reason. Unless
required by law or court order, the Servicer will not release any Financed
Vehicle from the security interest granted by the related Receivable, except
(i)
upon payment in full of the Receivable, (ii) in order to receive proceeds from
insurance covering such Financed Vehicle, (iii) upon repossession, (iv) upon
discounted settlement of the Receivable, or (v) upon abandonment, in each case
in accordance with the Credit and Collection Policy.
(d) No
Impairment.
The
Servicer will not impair in any material respect the rights of the Issuer or
the
Indenture Trustee in the Receivables except in accordance with the Credit and
Collection Policy and as otherwise permitted by this Agreement.
(e) Other
Action.
(i) Effective
as of the date of this Agreement, all Receivables are assigned to the Servicer
solely for the purpose of fulfilling the Servicer's duties under this Agreement,
including commencement of or participation in legal proceedings to enforce
a
Receivable or otherwise related to a Receivable. If in any enforcement suit
or
legal proceeding it is held that the Servicer may not enforce a Receivable
on
the ground that it is not a real party in interest or a holder entitled to
enforce the Receivable, the Owner Trustee, on behalf of the Issuer, will, at
the
Servicer's expense and direction, assign the Receivable to the Servicer solely
for such purpose or take steps to enforce the Receivable, including bringing
suit in the names of the Indenture Trustee, the Noteholders, the Issuer or
any
of them. On request of the Servicer, the Owner Trustee will furnish the Servicer
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
5
(ii) The
Servicer is
authorized to execute and deliver, on behalf of itself, the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders, or any of them, any instruments
of satisfaction, cancellation, partial or full release or discharge, and any
other comparable instruments, with respect to the Receivables and the Financed
Vehicles.
Section
3.2
Purchase
of Receivables Upon Breach by the Servicer
(a) (i) If
a
Responsible Person of the Servicer has actual knowledge, or receives notice
from
the Depositor, the Issuer, the Owner Trustee or the Indenture Trustee, of a
breach of the covenants set forth in Sections 3.1 (c) or (d) and such breach
is
not cured in all material respects by the end of the second full Collection
Period after the Responsible Person obtained actual knowledge or was notified
of
such breach, the Servicer will purchase each Receivable materially and adversely
affected by such breach as of such last day (or, at the Servicer's option,
the
end of the first full Collection Period after the Responsible Person obtained
actual knowledge or was notified of such breach).
(ii)
Upon
the
occurrence of any of the conditions requiring purchase of a Receivable set
forth
in Section 3.1(b), the Servicer will repurchase the Receivable affected by
such
occurrence as of the last day of the Collection Period in which such
modification is made.
(iii) If
the
Servicer, in its sole discretion, determines that as a result of a computer
systems error or computer systems limitation or for any other reason the
Servicer is unable to service any Receivable in accordance with the Credit
and
Collection Policy and the terms of this Agreement, the Servicer may purchase
such Receivable as of the last day of the Collection Period in which such
determination is made.
(iv) The
purchase price for each Receivable purchased by the Servicer pursuant to this
Section 3.2(a) will be the Purchase Amount for such Receivable as of such last
day. The Servicer will deposit such Purchase Amount into the Collection Account
on the Business Day preceding the Payment Date (or, with Rating Agency
Confirmation, on the Payment Date) related to the Collection Period during
which
such purchase occurs.
(b) The
sole remedy (except
as provided in Section 6.3) of the Issuer, the Indenture Trustee, the Owner
Trustee and the Secured Parties with respect to a breach of the covenants made
by the Servicer in Section 3.1(c) or (d) or the occurrence of a condition
specified in Section 3.1(b) is to require the Servicer to purchase the
Receivable as set forth in 3.2(a). None of the Owner Trustee, the Indenture
Trustee, the Servicer, the Depositor or the Administrator will have any duty
to
conduct an investigation as to the occurrence of any condition requiring the
purchase of any Receivable pursuant to Section 3.2(a).
(c) Upon
Servicer's payment
of the Purchase Amount, the Issuer will be deemed to have sold and assigned
all
of the Issuer's right, title and interest in and to any Receivable purchased
by
the Servicer pursuant to Section 3.2(a), and all security and documents relating
to such Receivable. Such sale will not require any action by the Issuer and
will
be without recourse, representation or warranty by the Issuer except the
representation that the Issuer owns the Receivable free and clear of any Liens
other than Permitted Liens. Upon such sale, the Servicer will ▇▇▇▇ its computer
records indicating that any receivable purchased pursuant to Section 3.2(a)
is
no longer a Receivable and take any action necessary or appropriate to evidence
the transfer of ownership of the Purchased Receivable free from any Lien of
the
Issuer or the Indenture Trustee.
6
Section
3.3
Sales
of Charged off Receivables.
The
Servicer, in its sole discretion, may sell a Receivable that has been charged
off in accordance with the Credit and Collection Policy. Proceeds of any such
sale allocable to the Receivable will constitute Recoveries. The sole right
of
the Issuer and the Indenture Trustee with respect to any Receivables sold
pursuant to this Section 3.3 will be to receive the Recoveries. Upon such sale,
the Servicer will ▇▇▇▇ its computer records indicating that any such receivable
sold is no longer a Receivable and take any action necessary or appropriate
to
evidence the sale of the receivable free from any Lien of the Issuer or the
Indenture Trustee.
Section
3.4
Duties
of the Servicer with Respect to the Servicing of the Transaction; Annual Reports
and Notices.
(a) Monthly
Investor Report.
On or
about the 10th day of each calendar month, the Servicer will deliver to the
Owner Trustee, the Note Paying Agent, the Indenture Trustee, the Swap
Counterparties, the Depositor and the Rating Agencies, a servicing report
substantially in the form of Exhibit A (the "Monthly
Investor Report")
with
respect to the preceding Collection Period and the related Payment Date. A
Responsible Person of the Servicer will certify the accuracy of the information
in each Monthly Investor Report.
(b) Annual
Statement as to Compliance.
To the
extent required by Regulation AB, the Servicer will deliver to the Depositor,
the Owner Trustee, the Indenture Trustee and each Rating Agency within 90 days
after the end of each calendar year beginning in 2008, an Officer's Certificate,
dated as of December 31 of the preceding calendar year, signed by a Responsible
Person of the Servicer to the effect that (i) a review of the Servicer's
activities during the preceding calendar year (or, in the case of the first
certificate, the portion of the preceding calendar year since the Closing Date)
and of its performance under this Agreement has been made under such Responsible
Person's supervision and (ii) to such
Responsible Person's knowledge, based on such review, the Servicer has fulfilled
in all material respects all of its obligations under this Agreement throughout
such calendar year (or applicable portion of such calendar year), or, if there
has been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such Responsible Person
and
the nature and status of such failure. If the Issuer is not required to file
periodic reports under the Exchange Act or otherwise required by law to file
an
Officer's Certificate of the Servicer as to compliance, such Officer's
Certificate may be delivered on or before April 30 of each calendar year. A
copy
of the Officer's Certificate referred to in this Section 3.4(b) may be obtained
by any Noteholder or Person certifying it is a Note Owner by a request in
writing to the Indenture Trustee at its Corporate Trust Office.
(c) Notice
of Event of Servicing Termination.
The
Servicer will notify the Depositor, the Owner Trustee, the Indenture Trustee
and
each Rating Agency of any event that with the giving of notice or lapse of
time,
or both, would become an Event of Servicing Termination under Section 7.1,
no
later than 5 Business Days after a Responsible Person of the Servicer obtains
actual knowledge of such event.
(d) Compliance
with Obligations under ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
If
directed by the Administrator, the Servicer will prepare, execute and deliver
all certificates or other documents required to be delivered by the Issuer
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(e) Report
on Assessment of Compliance with Servicing Criteria and
Attestation.
The
Servicer will:
(i)
deliver
to the Depositor, the Owner Trustee, the Indenture Trustee and each Rating
Agency, a report, dated as of December 31 of the preceding calendar year, on
its
assessment of compliance with the minimum servicing criteria during the
preceding calendar year, including disclosure of any identified material
instance of non-compliance identified by the Servicer, as specified by Rule
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB under
the
Securities Act.
7
(ii) cause
a
firm of registered public accountants that is qualified and independent within
the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver
to the Depositor, Owner Trustee and the Indenture Trustee an attestation report
that satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange
Act and Item 1122 of Regulation AB, as applicable, on the assessment of
compliance with servicing criteria with respect to the prior calendar year.
Such
attestation report will be addressed to the board of directors of the Servicer
and to the Issuer, the Owner Trustee, the Depositor and the Indenture Trustee.
Such attestation will be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act. The firm may
render other services to the Servicer, the Depositor or Ford Credit, but the
firm must indicate in each attestation report that it is qualified and
independent within the meaning of Rule 2-01 of Regulation S-X under the
Securities Act.
(iii) The
reports referred to in this Section 3.4(e) will be delivered within 90 days
after the end of each calendar year unless the Issuer is not required to file
periodic reports under the Exchange Act or any other law, in which case the
reports may be delivered on or before April 30 of each calendar year, beginning
April 30, 2008. A copy of the reports referred to in this Section 3.4(e) may
be
obtained by any Noteholder or Person certifying it is a Note Owner by a request
in writing to the Indenture Trustee at its Corporate Trust Office.
(f) Delivery
of Tax Related Information.
To the
extent required by law, the Servicer will deliver to the Owner Trustee for
distribution to the holder of the Residual Interest information for the
preparation of the holder of the Residual Interest's federal and State income
tax returns.
(g) Termination
of Reporting Obligation.
The
Servicer's obligation to deliver or cause the delivery of reports under this
Section 3.4, other than tax reports under 3.4(f) will terminate upon the payment
in full of the Notes, including by redemption in whole as contemplated by
Section 8.1.
Section
3.5
Servicer's
Fees.
On each
Payment Date, the Issuer will pay the Servicing Fee to the Servicer in
accordance with Section 8.2 of the Indenture. In addition, the Servicer will
be
entitled to retain from Collections all Supplemental Servicing Fees and receive
investment earnings (net of investment losses and expenses) on funds deposited
into the Bank Accounts during each Collection Period.
Section
3.6
Servicer's
Expenses.
Except
as otherwise set forth in this Agreement, the Servicer will pay all expenses
incurred by it in connection with its activities under this Agreement, including
fees and disbursements of independent accountants, taxes imposed on the Servicer
and expenses incurred in connection with distributions and reports. The Servicer
may charge Obligors, and be reimbursed, for collection, repossession,
transportation and remarketing expenses in accordance with the Credit and
Collection Policy.
ARTICLE
IV
TRUST
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS
TO NOTEHOLDERS AND THE DEPOSITOR
Section
4.1
Accounts.
(a) Collection
Account.
The
Servicer will, before the Closing Date, establish and maintain a segregated
trust account in the name "The Bank of New York as Indenture Trustee, as secured
party for Ford Credit Auto Owner Trust 2006-C" at a Qualified Institution or
Qualified Trust Institution (initially the corporate trust department of The
Bank of New York), that is designated as the "Collection
Account".
The
Collection Account will initially be account number 879441. The Collection
Account will be under the sole dominion and control of the Indenture Trustee,
except that the Servicer may make deposits to and direct the Indenture Trustee
to make withdrawals from the Collection Account in accordance with this
Agreement. The Servicer may direct the Indenture Trustee to withdraw from the
Collection Account and pay to the Indenture Trustee or the Servicer, as
applicable, amounts that do not constitute Available Funds for any Collection
Period or that were deposited into the Collection Account in error.
8
(b) Principal
Payment Account.
The
Servicer will, before the Closing Date, establish and maintain a segregated
subaccount within the Collection Account or a separate trust account that is
designated as the "Principal
Payment Account".
The
Principal Payment Account will initially be subaccount or account number 879443.
The Principal Payment Account is established and maintained solely for
administrative purposes.
(c) Reserve
Account.
(i)
The
Depositor or the Servicer acting on behalf of the Depositor will, before the
Closing Date, establish and maintain a segregated trust account in the name
"The
Bank of New York as Indenture Trustee, as secured party for Ford Credit Auto
Owner Trust 2006-C" at a Qualified Institution or Qualified Trust Institution
(initially the corporate trust department of The Bank of New York), that is
designated as the "Reserve
Account".
The
Reserve Account will initially be account number 879442. On the Closing Date,
the Depositor will deposit or cause to be deposited the Specified Reserve
Balance into the Reserve Account from the net proceeds of the sale of the Notes.
The Reserve Account will be under the sole dominion and control of the Indenture
Trustee, except that the Servicer may make deposits to and direct the Indenture
Trustee to make withdrawals from the Reserve Account in accordance with this
Agreement.
(ii)
The
Indenture Trustee will transfer all funds on deposit in the Reserve Account
to
the Depositor, or if the Depositor has notified the Indenture Trustee of the
establishment of the Trust Distribution Account, to the Trust Distribution
Account, on the earlier of: (i) the first Payment Date on or after which the
Servicer has deposited into the Collection Account the amount specified in
Section 8.1(a) in connection with its exercising its option to acquire the
Trust
Property pursuant to Section 8.1 and (ii) the date on which the Note Balance
of
the Notes and of all other amounts owing or to be distributed to the Secured
Parties under the Indenture and this Agreement are paid in full.
(d) Benefit
of Accounts; Deposits and Withdrawals.
The
Collection Account and the Reserve Account and all amounts, securities,
investments, financial assets and other property deposited in or credited to
them will be held by the Indenture Trustee as secured party for the benefit
of
the Secured Parties and, after payment in full of the Notes, as agent of the
Issuer and as part of the Trust Property. All deposits to and withdrawals from
the Collection Account, Principal Payment Account and the Reserve Account will
be made in accordance with the Basic Documents.
(e) Maintenance
of Accounts.
If an
institution maintaining one of the Bank Accounts ceases to be a Qualified
Institution or Qualified Trust Institution, the Servicer, with respect to the
Collection Account and the Principal Payment Account, or the Depositor, with
respect to the Reserve Account, will, with the Indenture Trustee's or Owner
Trustee's assistance as necessary, within 30 calendar days, move such Bank
Account to a Qualified Institution or Qualified Trust Institution.
(f) Compliance.
Each
Bank Account will be established and maintained pursuant to the Control
Agreement. The Servicer, with respect to the Collection Account and the
Principal Payment Account, and the Depositor, with respect to the Reserve
Account, will ensure that the Control Agreement establishing each Bank Account
requires the Qualified Institution or Qualified Trust Institution maintaining
each such account to comply with entitlement orders (as defined in Article
8 of
the UCC) originated by the Indenture Trustee without further consent of the
Issuer for so long as the Notes are Outstanding and to act as a securities
intermediary in accordance with the UCC.
9
(g) Trust
Distribution Account.
The
Depositor may establish and maintain a segregated trust account in the name
"U.S. Bank Trust National Association as Owner Trustee," that is designated
as
the "Trust
Distribution Account"
and
will promptly notify the Owner Trustee and the Indenture Trustee after the
establishment of the Trust Distribution Account. The Trust Distribution Account
will be under the sole dominion and control of the Owner Trustee, except that
the Indenture Trustee may make deposits to the Trust Distribution Account in
accordance with the Basic Documents. All deposits to and withdrawals from the
Trust Distribution Account will be made in accordance with the Indenture and
the
Trust Agreement.
Section
4.2 Investment
of Funds on Deposit in the Bank Accounts.
(a) For
so long as no Default
or Event of Default has occurred and is continuing, Collections on deposit
in
the Collection Account (but not amounts in the Principal Payment Account) and
funds on deposit in the Reserve Account will, to the extent permitted by law,
be
invested in Permitted Investments by the Qualified Institution or Qualified
Trust Institution maintaining such accounts as directed by the Servicer with
respect to the Collection Account, and as directed by the Depositor or by any
Person appointed by the Depositor with respect to the Reserve Account, in each
case without requiring any action by the Indenture Trustee. The Servicer and
the
Depositor, as applicable, may direct the Indenture Trustee to consent, vote,
waive or take any other action, or not to take any such action, with respect
to
any matters available to the holder of such Permitted Investments.
(b) If
(i) the Servicer, with
respect to the Collection Account and the Principal Payment Account, or the
Depositor, with respect to the Reserve Account, fails to give investment
directions for any funds on deposit in a Bank Account to the Qualified
Institution or Qualified Trust Institution maintaining such Bank Account by
11:00 a.m. New York time (or such other time as may be agreed by the Issuer
and
such Qualified Institution or Qualified Trust Institution) on the Business
Day
preceding a Payment Date or (ii) a Default or Event of Default has occurred
and
is continuing with respect to the Notes and the Indenture Trustee has provided
notice to the Qualified Institution or Qualified Trust Institution maintaining
such Bank Account, the Qualified Institution or Qualified Trust Institution
maintaining such Bank Account will, pursuant to the Control Agreement, to the
fullest extent practicable, invest and reinvest funds on deposit in such Bank
Account in one or more investments described in clause (b) of the definition
of
Permitted Investments.
(c) Permitted
Investments of
Collections on deposit in the Collection Account (or any reinvestments of such
Permitted Investments) will mature no later than the Business Day preceding
the
Payment Date on which such Collections are required to be distributed under
the
Indenture. Permitted Investments of funds on deposit in the Reserve Account
will
mature no later than the Business Day preceding the first Payment Date following
the date of investment, except that such funds may be invested in Permitted
Investments that will not mature before the next Payment Date if Rating Agency
Confirmation has been obtained with respect to the investment. Permitted
Investments will be held to their maturity, except that Permitted Investments
may be sold or disposed of before their maturity in connection with the sale
or
liquidation of the Collateral following an Event of Default as provided in
Section 5.6 of the Indenture. All interest and other income (net of losses
and
investment expenses) on funds on deposit in the Bank Accounts will be paid
to
the Servicer on each Payment Date pursuant to Section 3.5.
(d) None
of the Depositor,
the Servicer or the Qualified Institution or Qualified Trust Institution
maintaining any Bank Account will be liable for the selection of Permitted
Investments or for investment losses incurred thereon (other than in the
capacity as obligor thereon, if applicable).
10
(e) Neither
the Servicer,
with respect to the Collection Account and the Principal Payment Account, nor
the Depositor, with respect to the Reserve Account, will direct the Qualified
Institution or Qualified Trust Institution maintaining such account to make
any
investment of any funds or to sell any investment held in such account unless
the security interest Granted and perfected in such account in favor of the
Indenture Trustee will continue to be perfected in such investment or the
proceeds of such sale, in each case without any further action by any
Person.
(f) With
respect to funds on
deposit in the Bank Accounts:
(i)
any
such
funds or property in such accounts that is a "financial asset" as defined in
Section 8-102(a)(9) of the UCC will be physically delivered to, or credited
to
an account in the name of, the Qualified Institution or Qualified Trust
Institution maintaining the applicable account in accordance with such
institution's customary procedures such that the institution establishes a
"securities entitlement" in favor of the Indenture Trustee with respect to
such
funds or property; and
(ii) any
funds
or property that are held in deposit accounts will be held solely in the name
of
the Indenture Trustee at one or more depository institutions having the Required
Ratings, each such deposit account will be subject to the exclusive custody
and
control of the Indenture Trustee and the Indenture Trustee will have sole
signature authority with respect to each such deposit account.
(g) The
Servicer, with
respect to the Collection Account and the Principal Payment Account, and the
Depositor, with respect to the Reserve Account, will ensure that the Qualified
Institution or Qualified Trust Institution maintaining each such account, in
its
capacity as securities intermediary, agrees in the Control Agreement that each
item of property credited to each such account will be treated as a "financial
asset" within the meaning of Section 8-102(a)(9) of the UCC.
Section
4.3
Remittances.
(a) If
Ford Credit's short
term unsecured debt is rated at least "P-1" by ▇▇▇▇▇'▇, "A-1" by Standard &
Poor's and "F1" by Fitch (this rating requirement, the "Monthly
Remittance Required Ratings"),
Ford
Credit may remit Collections on the Business Day preceding each Payment Date
or,
with Rating Agency Confirmation, on each Payment Date.
(b) If
Ford Credit’s short
term unsecured debt is not rated at least equal to the Monthly Remittance
Required Ratings:
(i)
on
the
Closing Date, the Servicer will remit Collections to the Collection Account
that
are received and applied to the Obligors' accounts during the period from the
Cutoff Date to two Business Days preceding the Closing Date and
(ii) on
and
after the Closing Date, Ford Credit will remit Collections to the Collection
Account within two Business Days after the receipt and application of such
Collections to the Obligors' accounts in accordance with the Credit and
Collection Policy. For this purpose, Collections does not include Recoveries
and
amounts that constitute the Supplemental Servicing Fee. Ford Credit will remit
Recoveries to the Collection Account no later than the Business Day preceding
each Payment Date or, with Rating Agency Confirmation, each Payment
Date.
(c) Ford
Credit will remit
Purchase Amounts on the Business Day preceding each Payment Date or, with Rating
Agency Confirmation, on each Payment Date.
11
(d) Ford
Credit may retain
amounts constituting the Supplemental Servicing Fee from Collections and make
the remittances pursuant to this Section 4.3 net of Servicing Fees to be paid
to
Ford Credit. Nonetheless, the Servicer will account for all of the above
described remittances and distributions in the Monthly Investor Report as if
the
amounts were deposited and/or transferred separately.
(e) If
Ford Credit (or a
successor of Ford Credit pursuant to Section 6.4) is not the Servicer or an
Event of Servicing Termination occurs, the Servicer will be required to remit
Collections to the Collection Account within 2 Business Days after
receipt.
(f) Pending
deposit into the
Collection Account, amounts collected by the Servicer may be used by the
Servicer at its own risk and for its own benefit and will not be segregated
from
its own funds.
Section
4.4
Calculations
and Distributions; Withdrawals from the Reserve Account.
(a) On
or before each
Determination Date, the Servicer will calculate the Reserve Account Draw Amount
for the following Payment Date and will instruct the Indenture Trustee to
withdraw from the Reserve Account and deposit the Reserve Account Draw Amount
into the Collection Account on such Payment Date.
(b) On
or before each
Determination Date, the Servicer will instruct the Indenture Trustee (based
on
the most recent Monthly Investor Report) to make the withdrawals, deposits,
distributions and payments required to be made on the following Payment Date
pursuant to Section 8.2 of the Indenture.
ARTICLE
V
THE
DEPOSITOR
Section
5.1
Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Issuer as of the date of this Agreement
and as of the Closing Date, on which the Issuer is relying in acquiring the
Trust Property and which will survive the sale of the Trust Property to the
Issuer and the pledge of the Trust Property by the Issuer to the Indenture
Trustee pursuant to the Indenture:
(a) Organization
and Qualification.
The
Depositor is duly organized and validly existing as a limited liability company
in good standing under the laws of the State of Delaware. The Depositor is
qualified as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which
the
ownership or lease of its properties or the conduct of its activities requires
such qualification, license or approval, unless the failure to obtain such
qualifications, licenses or approvals could not reasonably be expected to have
a
material adverse effect on the Depositor's ability to perform its obligations
under this Agreement or the other Basic Documents to which it is a
party.
(b) Power,
Authorization and Enforceability.
The
Depositor has the power and authority to execute deliver and perform the terms
of each of the Basic Documents to which it is a party and to acquire, own and
sell the Receivables and the other Trust Property and has duly authorized the
sale of the Receivables and other Trust Property to the Issuer by all necessary
action. The Depositor has authorized the execution, delivery and performance
of
the terms of each of the Basic Documents to which it is a party. Each of the
Basic Documents to which the Depositor is a party is the legal, valid and
binding obligation of the Depositor enforceable against the Depositor, except
as
may be limited by insolvency, bankruptcy, reorganization or other laws relating
to the enforcement of creditors' rights or by general equitable
principles.
(c) Valid
Sale.
This
Agreement evidences a valid sale of the Trust Property from the Depositor to
the
Issuer, enforceable against creditors of and purchasers from the
Depositor.
12
(d) No
Conflicts and No Violation.
The
consummation of the transactions contemplated by the Basic Documents to which
the Depositor is a party and the fulfillment of the terms of the Basic Documents
to which the Depositor is a party will not (i) conflict with or result in a
breach of the terms or provisions of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Depositor is a debtor or guarantor,
(ii)
result in the creation or imposition of any lien, charge or encumbrance upon
any
of the properties or assets of the Depositor pursuant to the terms of any such
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument (other than this Agreement), (iii) violate the
Certificate of Formation or Limited Liability Company Agreement, or (iv) violate
any law or, to the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties, in each case which conflict,
breach, default, lien, or violation would reasonably be expected to have a
material adverse effect on the Depositor's ability to perform its obligations
under the Basic Documents.
(e) No
Proceedings.
To the
Depositor's knowledge, there are no proceedings or investigations pending or
overtly threatened in writing, before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Depositor or its properties: (i) asserting the invalidity of any of the Basic
Documents or the Notes, (ii) seeking to prevent the issuance of the Notes or
the
consummation of any of the transactions contemplated by any of the Basic
Documents, (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse effect on the Depositor's ability to perform
its obligations under, or the validity or enforceability of, any of the Basic
Documents or the Notes, or (iv) relating to Ford Credit or the Depositor that
would reasonably be expected to (A) affect the treatment of the Notes as
indebtedness for U.S. federal income or Applicable Tax State income or franchise
tax purposes, (B) be deemed to cause a taxable exchange of the Notes for U.S.
federal income tax purposes, (C) cause the Issuer to be treated as an
association or publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes, or (D) cause the Issuer to incur Michigan Single
Business Tax liability other than such proceedings that would not reasonably
be
expected to have a material adverse effect upon the Depositor or materially
and
adversely affect the performance by the Depositor of its obligations under,
or
the validity and enforceability of, the Basic Documents or the
Notes.
(f) Valid
Security Interest.
This
Agreement creates a valid and continuing security interest (as defined in the
applicable UCC) in the Trust Property in favor of the Issuer that is prior
to
all other Liens other than Permitted Liens and is enforceable as such against
all other creditors of and purchasers from the Depositor.
Section
5.2
Liability
of the Depositor.
The
Depositor will be liable in accordance with this Agreement only to the extent
of
the obligations specifically undertaken by the Depositor under this
Agreement.
(a) The
Depositor will not be
liable to the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders,
the Servicer or any other Person for any action taken, or not taken, in good
faith pursuant to this Agreement or for errors in judgment. All such liability
is expressly waived and released as a condition of, and consideration for,
the
execution of this Agreement by the Depositor and the issuance of the Notes.
Notwithstanding the preceding two sentences, this Section 5.2 will not protect
the Depositor against any liability that would otherwise be imposed by reason
of
Depositor’s, willful misconduct, bad faith or negligence in the performance of
its duties under this Agreement.
(b) The
Depositor will pay
any and all taxes levied or assessed upon the Issuer or upon all or any part
of
the Trust Property.
(c) The
Depositor and any
officer, director, employee or agent of the Depositor may rely in good faith
on
the advice of counsel or on any document believed to be genuine and to have
been
executed by the proper party in respect of any matters arising under this
Agreement.
13
(d) The
Depositor will be
under no obligation to appear in, prosecute or defend any legal action that
is
unrelated to its obligations under this Agreement and that, in its opinion,
may
cause it to incur any expense or liability.
Section
5.3
Merger
or Consolidation of, or Assumption of the Obligations of, the
Depositor.
Any
Person (a) into which the Depositor is merged or consolidated, (b) resulting
from any merger or consolidation to which the Depositor is a party or (c)
succeeding to the business of the Depositor, if more than 50% of the voting
stock or voting power and 50% or more of the economic equity of such Person
is
owned, directly or indirectly, by Ford Motor Company, will be the successor
to
the Depositor under this Agreement without the execution or filing of any
document or any further act except those actions required under this Section
5.3. Within 15 Business Days after any such merger, consolidation or succession
such Person will (i) execute an agreement of assumption to perform every
obligation of the Depositor under this Agreement, (ii) deliver to the Owner
Trustee and the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such merger, consolidation or succession and such
agreement of assumption comply with this Section 5.3, (iii) deliver to the
Owner
Trustee and the Indenture Trustee an Opinion of Counsel to the effect that
either (A) upon the later of the attachment of the security interest and the
filing of the necessary financing statements, the security interest in favor
of
the Issuer in the Trust Property and the Indenture Trustee in the Collateral
will be perfected or (B) no such action is necessary to preserve and protect
such security interest, and (iv) provide notice of such merger, consolidation
or
succession to the Swap Counterparties and to the Rating Agencies.
Section
5.4
Depositor
May Own Notes.
The
Depositor and any Affiliate of the Depositor, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights as
it
would have if it were not the Depositor or an Affiliate of the Depositor except
as otherwise provided in any Basic Document. Notes owned by or pledged to the
Depositor or any Affiliate of the Depositor will have an equal and proportionate
benefit under the Basic Document, without preference, priority or distinction,
except as otherwise provided in any Basic Document.
Section
5.5
Depositor's
Designation of the Rating Agencies.
The
Depositor designates Fitch, ▇▇▇▇▇'▇ and Standard & Poor's as the Rating
Agencies rating the Notes.
ARTICLE
VI
THE
SERVICER
Section
6.1
Representations
and Warranties of the Servicer.
The
Servicer represents and warrants to the Issuer as of the date of this Agreement,
on which the Issuer is relying in acquiring the Trust Property and which will
survive the sale of the Trust Property to the Issuer and the pledge of the
Trust
Property by the Issuer to the Indenture Trustee pursuant to the
Indenture:
(a) Organization
and Qualification.
The
Servicer is duly incorporated and validly existing as a corporation in good
standing under the laws of the State of Delaware. The Servicer is qualified
as a
foreign corporation in good standing and has obtained all necessary licenses
and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect
on
the Servicer's ability to perform its obligations under this Agreement or the
other Basic Documents to which it is a party.
(b) Power,
Authorization and Enforceability.
The
Servicer has the power and authority to execute deliver and perform the terms
of
each of the Basic Documents to which it is a party and to acquire, own, hold,
service and sell the Receivables and to hold the Receivables Files as custodian
on behalf of the Issuer and the Indenture Trustee. The Servicer has authorized
the execution, delivery and performance of the terms of each of the Basic
Documents to which it is a party. Each of the Basic Documents to which the
Servicer is a party is the legal, valid and binding obligation of the Servicer
enforceable against the Servicer, except as may be limited by insolvency,
bankruptcy, reorganization or other laws relating to the enforcement of
creditors' rights or by general equitable principles.
14
(c) No
Conflicts and No Violation.
The
consummation of the transactions contemplated by the Basic Documents to which
the Servicer is a party and the fulfillment of the terms of the Basic Documents
to which the Servicer is a party will not (i) conflict with or result in a
breach of the terms or provision of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Servicer is a debtor or guarantor (other
than this Agreement), (ii) result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of the Servicer
pursuant to the terms of any such indenture, mortgage, deed of trust, loan
agreement, guarantee or similar agreement, (iii) violate the Certificate of
Incorporation or the Bylaws of the Servicer, or (iv) violate any law or, to
the
Servicer's knowledge, any order, rule or regulation applicable to the Servicer
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Servicer
or
its properties; in each case, which conflict, breach, default, lien, or
violation would reasonably be expected to have a material adverse effect on
the
Servicer's ability to perform its obligations under the Basic
Documents.
(d) No
Proceedings.
To the
Servicer's knowledge, there are no proceedings or investigations pending or
overtly threatened in writing before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Servicer or its properties: (i) asserting the invalidity of any of the Basic
Documents or the Notes, (ii) seeking to prevent the issuance of the Notes or
the
consummation of any of the transactions contemplated by any of the Basic
Documents, (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse effect on the Servicer's ability to perform
its obligations under, or the validity or enforceability of, any of the Basic
Documents or the Notes, or (iv) relating to the Servicer that would reasonably
be expected to (A) affect the treatment of the Notes as indebtedness for U.S.
federal income or Applicable Tax State income or franchise tax purposes, (B)
be
deemed to cause a taxable exchange of the Notes for U.S. federal income tax
purposes, (C) cause the Issuer to be treated as an association or publicly
traded partnership taxable as a corporation for U.S. federal income tax purposes
or (D) cause the Issuer to incur Michigan Single Business Tax liability other
than such proceedings that, to the Servicer's knowledge, would not reasonably
be
expected to have a material adverse effect upon the Servicer and its
subsidiaries considered as a whole or materially and adversely affect the
performance by the Servicer of its obligations under, or the validity and
enforceability of, any of the Basic Documents or the Notes.
Section
6.2
Liability
of the Servicer.
(a) The
Servicer will be
liable to the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders
and to the Depositor only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement. All other liability is
expressly waived and released as a condition of, and consideration for, the
execution of this Agreement by the Servicer. This Section 6.2 will not protect
the Servicer against any liability that would otherwise be imposed by reason
of
the Servicer's willful misconduct, bad faith or negligence in the performance
of
its duties under this Agreement. The Servicer and any subservicer may rely
in
good faith on any document of any kind that appears on its face to be properly
executed and submitted by any Person with respect to any matters arising under
this Agreement.
(b) The
obligations of the
Servicer under this Agreement are solely corporate obligations of the Servicer,
and no recourse may be taken, directly or indirectly, with respect to the
obligations of the Servicer against any owner, beneficiary, agent, officer,
director, or employee of the Servicer in their individual capacities except
for
any liability that would otherwise be imposed by reason of such Person's willful
misconduct, bad faith or negligence in the performance of its
duties.
15
(c) The
Servicer will not be
under any obligation to appear in, prosecute or defend any legal action that
is
not incidental to its duties to service the Receivables in accordance with
this
Agreement and that in its opinion may involve it in any expense or liability.
The Servicer may in its sole discretion (but will not be required to) undertake
any legal action that it may deem necessary or desirable to protect the
interests of the Noteholders or the Depositor under the Basic Documents. In
such
event, the legal expenses, costs and liabilities of such action and any
liability resulting from such action will be expenses, costs and liabilities
of
the Servicer.
(d) The
Servicer will not be
in default under this Agreement if it is unable to perform any of its
obligations as a result of an act of God, act of war, terrorism, fires,
earthquake or other natural disaster. The Servicer will make commercially
reasonable efforts to resume the performance of its obligations under this
Agreement as soon as reasonably practicable after any such event.
Section
6.3
Indemnities
of the Servicer.
(a) The
Servicer will
indemnify, defend and hold harmless the Issuer, the Owner Trustee and the
Indenture Trustee, and their respective officers, directors, employees and
agents from and against any and all costs, losses, claims and liabilities
arising out of, or imposed upon any such Person through the Servicer's
(including in its capacity as Custodian) willful misconduct, bad faith or
negligence (except for errors in judgment) in the performance of its duties
under any Basic Document to which it is a party.
(b) Promptly
upon receipt by
the Issuer, the Owner Trustee or the Indenture Trustee or any of their
respective officers, directors, employees and agents (each, for purposes of
this
Section 6.3(b), an "Indemnified
Person")
of
notice of the commencement of any Proceeding against any such Indemnified
Person, such Indemnified Person will, if a claim in respect of such Proceeding
will be made against the Servicer under this Section 6.3, notify the Servicer
of
the commencement of such Proceeding. The Servicer may participate in and assume
the defense and settlement of any such Proceeding at the Servicer's expense.
No
settlement of such Proceeding may be made without the approval of the Servicer
and such Indemnified Person, which approvals will not be unreasonably withheld,
delayed or conditioned. The Servicer's indemnification obligation will include
the reasonable fees and expenses of counsel and the expenses of litigation.
After notice from the Servicer to such Indemnified Person of the Servicer's
intention to assume the defense of such Proceeding with counsel reasonably
satisfactory to such Indemnified Person, and so long as the Servicer so assumes
the defense of such Proceeding in a manner reasonably satisfactory to such
Indemnified Person, the Servicer will not be liable for any legal expenses
of
counsel to such Indemnified Person unless there is a conflict between the
interests of the Servicer and such Indemnified Person, in which case the
Servicer will pay for the separate counsel to such Indemnified
Person.
(c) For
purposes of this
Section 6.3, if the Servicer is terminated pursuant to Section 7.1 or if the
Servicer resigns pursuant to Section 6.6, such Servicer will be deemed to
continue to be the Servicer until a Successor Servicer (other than the Indenture
Trustee) has assumed the obligations of the Servicer in accordance with Section
7.2.
(d) The
Servicer's
obligations under this Section 6.3 with respect to the period such Person was
(or was deemed to be) the Servicer will survive the termination of or
resignation by such Person as Servicer, the termination of this Agreement and
the resignation or removal of the Owner Trustee or the Indenture Trustee or
the
termination of the Issuer. If the Servicer makes any indemnity payments pursuant
to this Section 6.3 and the Person to or on behalf of whom such payments are
made thereafter collects any of such amounts from others, such Person will
promptly repay such amounts to the Servicer, without interest.
Section
6.4
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer;
Assignment to Affiliate.
Any
Person (a) into which the Servicer is merged or consolidated, (b) resulting
from
any merger or consolidation to which the Servicer is a party, (c) succeeding
to
the business of the Servicer or (d) that is an Affiliate of the Servicer to
whom
the Servicer has assigned this Agreement, will be the successor to the Servicer
under this Agreement without the execution or filing of any document or any
further act except those actions required under this Section 6.4. Within 15
Business Days after any such merger, consolidation, succession or assignment,
such Person will (i) execute an agreement of assumption to perform every
obligation of the Servicer under this Agreement, (ii) deliver to the Owner
Trustee and the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such merger, consolidation, succession or assignment
and such agreement of assumption comply with this Section 6.4, (iii) deliver
to
the Owner Trustee and the Indenture Trustee an Opinion of Counsel to the effect
that either (A) upon the later of the attachment of the security interest and
the filing of the necessary financing statements, the security interest in
favor
of the Issuer in the Trust Property and the Indenture Trustee in the Collateral
will be perfected or (B) no such action is necessary to preserve and protect
such security interest, and (iv) provide notice of such merger, consolidation,
succession or assignment to the Rating Agencies.
16
Section
6.5
Delegation
of Duties.
So long
as Ford Credit acts as Servicer or Custodian, the Servicer or Custodian may
without notice or consent delegate any or all of its duties under this Agreement
to Ford Motor Company or any company or other business entity of which Ford
Motor Company owns, directly or indirectly, more than 50% of the voting stock
or
voting power and 50% or more of the economic equity. The Servicer or Custodian
may perform any of its duties through subcontractors. No such delegation or
subcontracting will relieve the Servicer or Custodian of its responsibilities
with respect to such duties and the Servicer will remain primarily responsible
with respect to such duties. The Servicer or Custodian will be responsible
for
the fees of any such subcontractors.
Section
6.6
Ford
Credit Not to Resign as Servicer.
Neither
Ford Credit nor any successor Servicer will resign as Servicer under this
Agreement except upon determining that the performance of its duties under
this
Agreement is no longer permissible under law. Notice of any determination
permitting the resignation of Ford Credit as Servicer or a successor Servicer
will be delivered to the Owner Trustee and the Indenture Trustee as soon as
practicable (and, if not given in writing, will be confirmed in writing as
soon
as practicable). Any determination permitting the resignation of Ford Credit
as
Servicer or a successor Servicer will be evidenced by an Opinion of Counsel
to
such effect delivered to the Owner Trustee and the Indenture Trustee with or
promptly following delivery of such notice.
Section
6.7
Servicer
May Own Notes.
The
Servicer and any Affiliate of the Servicer, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights as
it
would have if it were not the Servicer or an Affiliate of the Servicer, except
as otherwise provided in any Basic Document. Notes owned by or pledged to the
Servicer or any Affiliate of the Servicer will have an equal and proportionate
benefit under the Basic Document, without preference, priority or distinction,
except as otherwise provided in any Basic Document.
ARTICLE
VII
SERVICING
TERMINATION
Section
7.1
Events
of Servicing Termination.
(a) The
occurrence and
continuation of any of the following events will be an "Event
of Servicing Termination":
(i)
Any
failure by the Servicer to deliver to the Owner Trustee or the Indenture Trustee
any proceeds or payment required to be delivered under this Agreement that
continues unremedied for a period of 5 Business Days after the earlier of the
date on which (x) notice of such failure is given to the Servicer by the Owner
Trustee or the Indenture Trustee or (y) a Responsible Person of the Servicer
learns of such failure, unless:
(1) (A)
such failure is
caused by an event outside the control of the Servicer that the Servicer could
not have avoided through the exercise of due care, (B) such failure does not
continue for more than 10 Business Days after the earlier of the date on which
notice of such failure is given to the Servicer by the Owner Trustee or the
Indenture Trustee or a Responsible Person of the Servicer learns of such
failure, (C) during such period the Servicer uses all commercially reasonable
efforts to perform its obligations under this Agreement and (D) the Servicer
provides the Owner Trustee, the Indenture Trustee, the Depositor and the
Noteholders with prompt notice of such failure that includes a description
of
the Servicer's efforts to remedy such failure, or
17
(2) (A)
such failure would
not reasonably be expected to, or upon investigation and quantification does
not, result in the failure in paying or depositing an amount greater than 0.05%
of the sum of the Note Balances of all Notes and (B) such failure is remedied
(i) if the Servicer's long-term debt is rated investment grade by all Rating
Agencies rating the Notes, not later than 90 days after a Responsible Person
of
the Servicer learns of such failure or (ii) if the Servicer's long-term debt
is
not so rated, then not later than 90 days after such failure,
(ii) Any
failure by the Servicer to observe or to perform in any material respect any
other covenants or agreements of the Servicer set forth in this Agreement,
which
failure materially and adversely affects the rights of the Noteholders and
continues unremedied for a period of 90 days after the Servicer receives notice
of such failure from the Owner Trustee, the Indenture Trustee or the Noteholders
of at least 25% of the Note Balance of the Controlling Class, or
(iii) The
occurrence of an Insolvency Event with respect to the Servicer.
(b) If
an Event of Servicing
Termination occurs, the Indenture Trustee will promptly notify each Rating
Agency. So long as such Event of Servicing Termination has not been remedied,
either the Indenture Trustee or the Noteholders of at least a majority of the
Note Balance of the Controlling Class (or, if no Notes are Outstanding, the
Owner Trustee, at the direction of the holder of the Residual Interest), by
notice to the Servicer and the Rating Agencies (and to the Indenture Trustee
and
the Owner Trustee if given by the Noteholders), may terminate all of the rights
and obligations (other than the obligations set forth in Section 6.3 and the
rights set forth in Section 6.2) of the Servicer under this Agreement. Upon
the
receipt by the Servicer of such notice (or such later date as may be specified
in such notice of termination), all authority and power of the Servicer under
this Agreement will pass to and be vested in the Indenture Trustee or such
Successor Servicer as may be appointed under Section 7.2. In such event, the
Indenture Trustee and the Owner Trustee are authorized to execute and deliver,
on behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any
and
all documents and other instruments, and to do or accomplish all other acts
or
things necessary or appropriate to effect the termination of the predecessor
Servicer and to complete the transfer of the Receivables Files and related
documents to the Indenture Trustee or the successor Servicer or the successor
Custodian.
(c) Upon
termination of the
Servicer under this Section 7.1, the predecessor Servicer will cooperate with
the Indenture Trustee, the Owner Trustee and the Successor Servicer in effecting
the termination of the responsibilities and rights of the predecessor Servicer
under this Agreement, including, as soon as practicable, the transfer to the
Indenture Trustee or such Successor Servicer of all cash amounts that are held
by the predecessor Servicer for deposit, or thereafter received with respect
to
a Receivable and the delivery of the Receivables Files and the related accounts
and records maintained by the Servicer. In no event, however, will the Servicer
be obligated to provide, license or assign its processes, procedures, models,
servicing software or other applications to any Successor Servicer or any other
third party, or provide anything covered by a restriction on transfer or
assignment or a confidentiality agreement. All reasonable costs and expenses
(including attorneys' fees) incurred by the Indenture Trustee, the Owner Trustee
and the Successor Servicer associated with (i) the transition of servicing
duties to the Successor Servicer, and (ii) amending this Agreement to reflect
a
succession of the Servicer pursuant to this Section 7.1 will be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs
and expenses.
18
Section
7.2
Appointment
of Successor Servicer.
(a) If
the Servicer is
terminated pursuant to Section 7.1, it will continue to perform its functions
as
Servicer under this Agreement until the date specified in the notice of
termination. If the Servicer resigns pursuant to Section 6.6, it will continue
to perform its functions as Servicer under this Agreement until (i) if the
resigning Servicer is Ford Credit, the earlier to occur of (A) the Indenture
Trustee or a Successor Servicer assuming the responsibilities and obligations
of
Ford Credit as Servicer in accordance with this Section 7.2 and as the
Administrator in accordance with Section 5.2 of the Administration Agreement
or
(B) the date upon which any regulatory authority requires such resignation
and
(ii) if the resigning Servicer is not Ford Credit, the earlier to occur of
(A)
the date 45 days from the delivery to the Indenture Trustee and the Owner
Trustee of the notice of such resignation in accordance with Section 6.6 or
(B)
the date upon which the Servicer is legally unable to act as Servicer as
specified in the notice of resignation and accompanying Opinion of
Counsel.
(b) If
the Servicer resigns
or is terminated under this Agreement, the Indenture Trustee will (i) provide
notice of such termination or resignation to the Issuer and (ii) as promptly
as
possible, appoint an institution having a net worth of not less than $50,000,000
whose business includes the servicing of motor vehicle receivables, as the
successor to the Servicer under this Agreement. Such successor will accept
its
appointment (including its appointment as Administrator under the Administration
Agreement as set forth in Section 7.2(d)) by (x) entering into a servicing
agreement with the Issuer having substantially the same provisions as the
provisions of this Agreement applicable to the Servicer, in a form acceptable
to
the Owner Trustee and the Indenture Trustee and (y) delivering a copy of such
servicing agreement to the Indenture Trustee and the Issuer (such a successor,
a
"Successor
Servicer").
Promptly following a Successor Servicer's acceptance of its appointment, the
Indenture Trustee will notify the Issuer of such appointment, specifying in
such
notice the name and address of the Successor Servicer.
(c) If
no Person has accepted
its appointment as Successor Servicer when the predecessor Servicer ceases
to
act as Servicer in accordance with this Section 7.2, the Indenture Trustee,
without further action, will be automatically appointed the Successor Servicer.
However, if the Indenture Trustee is unwilling or legally unable to act as
Successor Servicer, it will appoint, or petition a court of competent
jurisdiction to appoint, an institution having a net worth of not less than
$50,000,000 whose business includes the servicing of motor vehicle receivables,
as successor. The Indenture Trustee will be released from its duties and
obligations as Successor Servicer on the date that a new servicer enters into
a
servicing agreement with the Issuer and delivers a copy of such servicing
agreement to the Indenture Trustee and the Issuer as provided in Section
7.2(b).
(d) Upon
acceptance of its
appointment as Successor Servicer, the Successor Servicer will (i) be the
successor in all respects to the predecessor Servicer and will be subject to
all
of the responsibilities, duties, and liabilities following such Successor
Servicer's appointment placed on the predecessor Servicer relating to such
predecessor Servicer's performance of its duties as Servicer and (ii) become
the
Administrator under the Administration Agreement in accordance with Section
5.2
of the Administration Agreement.
(e) In
connection with any
appointment of a Successor Servicer, the Indenture Trustee may make such
arrangements for the compensation of such Successor Servicer out of payments
on
Receivables as it and such Successor Servicer may agree, provided that no such
compensation will be in excess of the amount paid to the predecessor Servicer
under this Agreement. The Indenture Trustee and such Successor Servicer will
take such action, consistent with this Agreement, as will be necessary to
effectuate any such succession.
19
(f) If
the Indenture Trustee
succeeds to the Servicer's duties as provided in Section 7.2(c), it will do
so
in its individual capacity and not in its capacity as Indenture Trustee and,
accordingly, Article VI of the Indenture will be inapplicable to the Indenture
Trustee in its duties as Successor Servicer. In case the Indenture Trustee
becomes Successor Servicer pursuant to Section 7.2(c), the Indenture Trustee
will be entitled to appoint as Servicer any one of its Affiliates, provided
that
the Indenture Trustee, in its capacity as Successor Servicer, will be liable
for
the actions and omissions of such Affiliate in its capacity as
Servicer.
Section
7.3
Notification
to Secured Parties and the Holder of the Residual Interest.
Upon
any termination of the Servicer, or appointment of a Successor Servicer pursuant
to this Article VII, the Indenture Trustee will promptly notify the Secured
Parties and each Rating Agency, and the Owner Trustee will promptly notify
the
holder of the Residual Interest.
Section
7.4
Waiver
of Events of Servicing Termination.
The
Noteholders of at least a majority of the Note Balance of the Controlling Class
or, if no Notes are Outstanding, the Owner Trustee, at the direction of the
holder of the Residual Interest, may waive any Event of Servicing Termination
and its consequences, except an event resulting from the failure to make any
required deposits to or payments from any of the Bank Accounts in accordance
with this Agreement that resulted in an Event of Default in the payment of
principal or interest on any of the Notes (other than an Event of Default
relating to failure to pay principal due only by reason of acceleration) under
the Indenture. Upon any such waiver of an Event of Servicing Termination, such
Event of Servicing Termination will cease to exist and will be deemed to have
been remedied for every purpose under this Agreement. No such waiver will extend
to any subsequent or other event or impair any right resulting from such waiver.
The Issuer will notify the Rating Agencies of any such waiver.
20
ARTICLE
VIII
TERMINATION
Section
8.1
Clean-Up
Call.
(a) If
the Pool Balance is
equal to or less than 5% of the Initial Pool Balance on the last day of any
Collection Period, the Servicer has the option to purchase the Trust Property
(other than the amounts on deposit in or invested in Permitted Investments
maturing on or before the following Payment Date in the Trust Accounts). The
Servicer may exercise its option to purchase the Trust Property by (i) notifying
the Indenture Trustee, the Owner Trustee
and the
Rating Agencies at least 10 days before the Payment Date related to such
Collection Period and (ii) depositing into the Collection Account an amount
equal to the aggregate Principal Balance of the Receivables as of the last
day
of the preceding Collection Period plus 30 days of interest at a rate equal
to
the weighted average APR of the Receivables as of the last day of the preceding
Collection Period, in immediately available funds on the Business Day preceding
the Payment Date (or, with Rating Agency Confirmation, on the Payment Date)
related to such Collection Period. Notwithstanding the foregoing, the Servicer
will not be permitted to purchase the Trust Property unless all amounts due
paid
on and the amount specified above is greater than or equal to the sum of the
Note Balance of the Notes Outstanding and all accrued but unpaid interest
thereon and all amounts due under the Interest Rate Swaps from the Issuer to
the
Swap Counterparties. The amount deposited into the Collection Account pursuant
to this Section 8.1(a) will be used on the related Payment Date to make payments
in full to the Noteholders in the manner set forth in Section 8.2 of the
Indenture.
(b) Upon
Servicer's payment
of the amount specified in Section 8.1(a), the Issuer will be deemed to have
sold and assigned all of the Issuer's right, title and interest in and to any
Receivable purchased by the Servicer pursuant to Section 8.1(a), and all
security and documents relating to such Receivable. Such sale will not require
any action by the Issuer and will be without recourse, representation or
warranty by the Issuer except the representation that the Issuer owns the
Receivable free and clear of any Liens other than Permitted Liens. Upon such
sale, the Servicer will ▇▇▇▇ its computer records indicating that any
receivables purchased pursuant to Section 8.1(a) are no longer Receivables,
file
UCC termination or amendment statements or take any other action necessary
or
appropriate to evidence the transfer of ownership of the purchased Receivables
free from any Lien of the Issuer or the Indenture Trustee. The Issuer, the
Owner
Trustee or the Indenture Trustee, as applicable, will execute such documents
and
instruments and any and all further instruments, including any authorizations
to
file UCC financing statement amendments, required or reasonably requested by
the
Servicer to effect such transfer.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.1
Amendment.
(a) Subject
to Section
9.1(f), this Agreement may be amended by the Depositor, the Servicer and the
Issuer, with prior notice to the Rating Agencies (and the consent of the
Indenture Trustee and the Owner Trustee to the extent that their respective
rights or obligations will be materially and adversely affected, which consent
may not be unreasonably withheld, delayed or conditioned), but without the
consent of any of the Noteholders subject to the following
conditions:
(i)
the
Depositor, the Servicer or the Issuer delivers an Officer's Certificate to
the
Indenture Trustee and the Owner Trustee to the effect that such amendment will
not materially and adversely affect the interest of any Noteholder,
and
21
(ii) the
Depositor, the Servicer or the Issuer delivers an Opinion of Counsel to the
Indenture Trustee and the Owner Trustee to the effect that such amendment will
not (A) cause any Note to be deemed sold or exchanged for purposes of Section
1001 of the Code, (B) cause the Issuer to be treated as an association or
publicly traded partnership taxable as a corporation for U.S. federal income
tax
purposes or (C) adversely affect the treatment of the Notes as debt for U.S.
federal income tax purposes.
(b) Subject
to Section
9.1(f), this Agreement also may be amended by the Depositor, the Servicer and
the Issuer, with prior notice to the Rating Agencies and with the consent of
(i)
the Indenture Trustee, to the extent that its rights or obligations will be
materially and adversely affected by such amendment (which consent may not
be
unreasonably withheld, delayed or conditioned), (ii) the Owner Trustee, to
the
extent that its rights and obligations will be materially and adversely affected
by such amendment (which consent may not be unreasonably withheld, delayed
or
conditioned) and (iii) the Noteholders of at least a majority of the Note
Balance of each Class of the Notes Outstanding (with each Class voting
separately, except that all Noteholders of Class A Notes will vote together
as a
single class).
(c) Notwithstanding
anything
else stated in Section 9.1(a) or (b), no such amendment: (i) may (A) increase
or
reduce in any manner the amount of, or accelerate or delay the timing of, or
change the allocation or priority of, Collections or distributions that are
required to be made for the benefit of the Secured Parties or (B) reduce the
percentage of the Note Balance of the Notes Outstanding required to consent
to
any such amendment without the consent of all affected Noteholders or (ii)
may
change the Specified Reserve Balance without receipt of Rating Agency
Confirmation and the consent of all affected Noteholders.
(d) Promptly
upon the
execution of any amendment in accordance with this Section 9.1, the Owner
Trustee will send a copy of such amendment to the Indenture Trustee and each
Rating Agency, and the Indenture Trustee will notify each Noteholder of the
substance of such amendment.
(e) If
the consent of the
Owner Trustee, the Indenture Trustee or the Noteholders is required, they do
not
need to approve the particular form of any proposed amendment so long as their
consent approves the substance of the proposed amendment.
(f) Before
executing any
amendment to this Agreement, the Owner Trustee and the Indenture Trustee will
be
entitled to request, receive and rely upon an Opinion of Counsel delivered
by
the Depositor stating that the execution of such amendment is authorized or
permitted by this Agreement.
Section
9.2
Protection
of Right, Title and Interest to the Trust Property.
(a) The
Depositor will file
financing statements and continuation statements, in the manner and place
required by law to preserve, maintain and protect the interest of the Issuer
and
the Indenture Trustee for the benefit of the Secured Parties in the Trust
Property. The Depositor will deliver to the Issuer and the Indenture Trustee
file-stamped copies of, or filing receipts for, any financing statement and
continuation statement promptly upon such document becoming available following
filing. The Depositor authorizes the Issuer and the Indenture Trustee to file
any financing or continuation statements, and amendments to such statements,
in
all jurisdictions and with all filing offices as the Issuer or the Indenture
may
determine are necessary or advisable to preserve, maintain and protect the
interest of the Issuer and the Indenture Trustee in the Trust Property. Such
financing and continuation statements may describe the Trust Property in any
manner as the Issuer or the Indenture Trustee may reasonably determine to ensure
the perfection of the interest of the Issuer and the Indenture Trustee in the
Trust Property. The Issuer or the Indenture Trustee, as applicable, will deliver
to the Depositor file-stamped copies of, or filing receipts for, any such
financing statement and continuation statement promptly upon such document
becoming available following filing.
22
(b) The
(i) Depositor, the
Issuer and the Indenture Trustee, if required or reasonably requested by the
other or by the Owner Trustee or the Indenture Trustee and (ii) Owner Trustee,
if required or reasonably requested by the Indenture Trustee, agree to do and
perform any and all acts and to execute any and all further instruments to
more
fully effect the purposes of this Agreement.
(c) Each
of the Depositor and
the Servicer will give the Owner Trustee and the Indenture Trustee at least
60
days' prior notice of any change in its corporate structure, form of
organization or jurisdiction of organization if, as a result of such relocation
or change, Section 9-307 of the UCC could require the filing of a new financing
statement or an amendment to a previously filed financing or continuation
statement and will promptly file any such new financing statement or amendment.
Each of the Depositor and the Servicer will maintain its chief executive office,
and the Servicer will maintain each office from which it will service the
Receivables, within the United States and will maintain its jurisdiction of
organization in only one State.
(d) Neither
the Depositor nor
the Servicer will change its name in any manner that could make any financing
statement or continuation statement filed by the Depositor, the Issuer or the
Indenture Trustee in accordance with Section 9.2(a) seriously misleading within
the meaning of Section 9-506 of the UCC, unless it has given the Owner Trustee
and the Indenture Trustee at least 5 days' prior notice thereof and promptly
files appropriate amendments to all previously filed financing
statements.
(e) On
and after the Closing
Date until a Receivable has been paid in full or repurchased, the Servicer
will
maintain its computer systems to indicate clearly that such Receivable is owned
by the Issuer and has been pledged to the Indenture Trustee pursuant to the
Indenture.
(f) At
any time the Owner
Trustee or the Indenture Trustee has reasonable grounds to believe that a list
of all Receivables (by contract number) then included in the Trust Property
is
necessary in connection with the performance of its duties under any Basic
Agreement, the Owner Trustee or the Indenture Trustee may request such a list
from the Depositor and the Depositor will furnish such list to the Owner Trustee
and the Indenture Trustee within 30 Business Days of the request.
(g) The
Depositor will, to
the extent required by applicable law, cause the Notes to be registered with
the
Securities and Exchange Commission pursuant to Section 12(b) or Section 12(g)
of
the Exchange Act, within the time periods specified in such
sections.
Section
9.3
Notices.
(a) All
notices, requests,
demands, consents, waivers or other communications to or from the parties to
this Agreement must be in writing and will be deemed to have been given and
made:
(i)
upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 3 days after deposit in the mail,
(ii) in
the
case of a fax, when receipt is confirmed by telephone, reply email or reply
fax
from the recipient,
(iii) in
the
case of an email, when receipt is confirmed by telephone or reply email from
the
recipient, and
(iv) in
the
case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
23
Any
such
notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to this Agreement or at such other address
as any party may designate by notice to the other parties.
(b) Any
notice required or
permitted to be mailed to a Noteholder must be sent by overnight delivery,
mailed by registered first class mail, postage prepaid, or sent by fax, to
the
address of such Person as shown in the Note Register. Any notice so mailed
within the time prescribed in this Agreement will be conclusively presumed
to
have been properly given, whether or not the Noteholder receives such
notice.
Section
9.4
Assignment
by the Depositor or the Servicer.
Except
as provided in Sections 6.4, 6.6 and 7.2, this Agreement may not be assigned
by
the Depositor or the Servicer without the prior consent of the Owner Trustee,
the Indenture Trustee, the holder of the Residual Interest and the Noteholders
of at least 66 2/3% of the Note Balance of the Notes Outstanding.
Section
9.5
Third-Party
Beneficiaries.
This
Agreement will inure to the benefit of and be binding upon the parties to this
Agreement. The Owner Trustee and the Indenture Trustee for the benefit of the
Secured Parties will be third-party beneficiaries of this Agreement entitled
to
enforce this Agreement against the Depositor and the Servicer. Except as
otherwise provided in this Agreement, no other Person will have any right or
obligation under this Agreement.
Section
9.6
GOVERNING
LAW.
THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
Section
9.7
Submission
to Jurisdiction.
The
parties submit to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State Court
sitting in New York, New York for purposes of all legal proceedings arising
out
of or relating to this Agreement. The parties irrevocably waive, to the fullest
extent they may do so, any objection that they may now or hereafter have to
the
laying of the venue of any such proceeding brought in such a court and any
claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section
9.8
WAIVER
OF JURY TRIAL. EACH
PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY
THIS AGREEMENT.
Section
9.9
Severability.
If any
of the covenants, agreements or terms of this Agreement is held invalid, illegal
or unenforceable, then it will be deemed severable from the remaining covenants,
agreements or terms of this Agreement and will in no way affect the validity,
legality or enforceability of the remaining Agreement.
Section
9.10 Counterparts.
This
Agreement may be executed in any number of counterparts. Each counterpart will
be an original, and all counterparts will together constitute one and the same
instrument.
Section
9.11 Headings.
The
headings in this Agreement are included for convenience only and will not affect
the meaning or interpretation of this Agreement.
Section
9.12 No
Waiver; Cumulative Remedies.
No
failure or delay of the Owner Trustee, the Indenture Trustee or the Noteholders
in exercising any power, right or remedy under this Agreement will operate
as a
waiver. No single or partial exercise of any power, right or remedy precludes
any other or further exercise of such power, right or remedy or the exercise
of
any other power, right or remedy. The powers, rights and remedies provided
in
this Agreement are in addition to any powers, rights and remedies provided
by
law.
24
Section
9.13 Agent
for Service.
(a) The
agent for service of
the Depositor in respect of this Agreement will be the person holding the office
of Corporate Secretary of the Depositor, at the following address:
Ford
Credit Auto Receivables Two LLC
c/o
Ford
Motor Credit Company
World
Headquarters
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Attention:
Securitization Operations Supervisor
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(b) The
agent for service of
the Servicer in respect of this Agreement will be the person holding the office
of Corporate Secretary of the Servicer, at the following address:
Ford
Motor Credit Company
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Attention:
Corporate Secretary
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Section
9.14 No
Petition.
The
Owner Trustee, the Indenture Trustee, the Issuer and the Servicer each covenants
and agrees that, before the date that is 1 year and 1 day after the payment
in
full of all securities issued by the Depositor or by a trust for which the
Depositor was the depositor, it will not institute against, or join any other
Person in instituting against, the Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any federal or State bankruptcy or similar law in connection with any
obligations relating to the Notes or any of the Basic Documents. This Section
9.14 will survive the resignation or removal of the Owner Trustee under the
Trust Agreement or the Indenture Trustee under the Indenture and the termination
of this Agreement.
Section
9.15 Limitation
of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding
anything
contained in this Agreement to the contrary, this Agreement has been
countersigned by U.S. Bank Trust National Association, not in its individual
capacity but solely as Owner Trustee of the Issuer and in no event will U.S.
Bank Trust National Association in its individual capacity or, except as
provided in the Trust Agreement, as Owner Trustee of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer under this Agreement or in any of the certificates,
notices or agreements delivered pursuant to this Agreement. For all purposes
of
this Agreement, in the performance of its duties or obligations under this
Agreement or in the performance of any duties or obligations of the Issuer
under
this Agreement, the Owner Trustee will be subject to, and entitled to the
benefits of, Articles V, VI and VII of the Trust Agreement.
(b) Notwithstanding
anything
contained in this Agreement to the contrary, this Agreement has been accepted
by
The Bank of New York, not in its individual capacity but solely as Indenture
Trustee, and in no event will The Bank of New York have any liability for the
representations, warranties, covenants, agreements or other obligations of
the
Issuer under this Agreement or in any of the certificates, notices or agreements
delivered pursuant to this Agreement.
25
EXECUTED
BY:
|
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
|
|||
|
as
Depositor
|
|||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
Secretary
|
|||
|
as
Issuer
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee
|
|||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
Trust Officer
|
|||
|
FORD
MOTOR CREDIT COMPANY,
|
|||
|
as
Servicer
|
|||
|
By:
|
/s/
▇. ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
Assistant Treasurer
|
|||
AGREED
AND ACCEPTED BY:
|
THE
BANK OF NEW YORK,
|
||
|
not
in its individual capacity
|
||
|
but
solely as Indenture Trustee
|
||
|
By:
|
/s/
▇. ▇▇▇
|
|
|
Name: ▇▇▇▇▇▇▇
▇▇▇
|
||
|
Title:
Assistant Vice President
|
||
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
||
|
not
in its individual capacity
|
||
|
but
solely as Owner Trustee
|
||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title:
Trust Officer
|
||
|
FORD
MOTOR CREDIT COMPANY,
|
||
|
as
Custodian
|
||
|
By:
|
/s/
▇. ▇. ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Title:
Assistant Treasurer
|
||
SCHEDULE
A
Schedule
of Receivables
Delivered
on CD-ROM to Indenture Trustee at Closing
SA-1
SCHEDULE
B
Notice
Addresses
|
1.
|
If
to Ford Credit, in its individual capacity or as Servicer, Custodian,
Administrator or Sponsor under the Purchase
Agreement:
|
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Securitization Operations Supervisor
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
Ford
Motor Credit Company
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Secretary
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
2.
|
If
to the Depositor:
|
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ford Credit SPE Management Office
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
Ford
Motor Credit Company
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Secretary
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
3.
|
If
to the Issuer:
|
c/o
the
Owner Trustee at the Corporate Trust Office of the Owner Trustee
SB-1
With
copies to:
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ford Credit SPE Management Office
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
and
Ford
Motor Credit Company
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Secretary
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
4.
|
If
to the Owner Trustee, at the Corporate Trust Office of the Owner
Trustee
|
|
5.
|
If
to the Indenture Trustee, at the Corporate Trust Office of the Indenture
Trustee;
|
|
6.
|
If
to ▇▇▇▇▇'▇ Investors Service, Inc.:
|
▇▇▇▇▇'▇
Investors Service, Inc.
ABS
Monitoring Department
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
7.
|
If
to Standard & Poor's:
|
Standard
& Poor's
▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Asset Backed Surveillance Department
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
8.
|
If
to Fitch, Inc.:
|
Fitch,
Inc.
▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Asset Backed Surveillance
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
SB-2
|
9.
|
If
to the Swap Counterparties:
|
Barclays
Bank PLC
5
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone:
▇▇ (▇▇) ▇▇▇ ▇▇▇▇▇
Fax:
▇▇
(▇▇) ▇▇▇ ▇▇▇▇▇
SB-3
ANNEX
A
USAGE
AND
DEFINITIONS
FORD
CREDIT AUTO OWNER TRUST ▇▇▇▇-▇
▇▇▇▇▇
The
following rules of construction and usage apply to this Appendix, any agreement
that incorporates this Appendix and any document made or delivered pursuant
to
any such agreement:
(a) The
term
“documents” includes any and all documents, agreements, instruments,
certificates, notices, reports, statements or other writings however evidenced,
whether in electronic or physical form.
(b) Accounting
terms not defined or not completely defined in this Appendix will be construed
in conformity with U.S. generally accepted accounting principles as in effect
on
the date of the document that incorporates this Appendix.
(c) References
to “Article,” “Section,” “Exhibit,” “Schedule” or another subdivision of or to
an attachment are, unless otherwise specified, to an article, section, exhibit,
schedule or subdivision of or an attachment to the document in which such
reference appears.
(d) Any
document defined or referred to in this Appendix or in any document that
incorporates this Appendix means such document as from time to time amended,
modified, supplemented or replaced, including by waiver or consent, and includes
all attachments to and instruments incorporated in such document.
(e) Any
statute defined or referred to in this Appendix or in any document that
incorporates this Appendix means such statute as from time to time amended,
modified, supplemented or replaced, including by succession of comparable
successor statutes, and includes any rules and regulations promulgated under
such statute and any judicial and administrative interpretations of such
statute.
(f)
Calculation
of any amount on or as of any date will be determined at or as of the close
of
business on such day after the application of any monies, payments and other
transactions to be applied on such day, except that calculations as of the
Cutoff Date will be determined as of the open of business on such day prior
to
the application of any monies, payments and other transactions to be applied
on
such day.
(g) In
the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including,” the word “to” means “to but
excluding” and the word “through” means “to and including.”
(h) All
terms
defined in this Appendix apply to the singular and plural forms of such terms
and the term “including” means “including without limitation.”
AA-1
(i)
References
to a Person are also to its permitted successors and assigns.
Definitions
“Accrued
Note Interest”
means,
for a Class and a Payment Date, the sum of the Note Monthly Interest and the
Note Interest Shortfall.
“Act
of
Noteholders”
has
the
meaning specified in Section 11.3(a) of the Indenture.
“Adjusted
Pool Balance”
means,
on the Closing Date, an amount equal to:
|
(a)
|
the
Initial Pool Balance, minus
|
|
(b)
|
the
Yield Supplement Overcollateralization Amount,
|
and
means, on a Payment Date, an amount (not less than zero) equal to:
|
(a)
|
the
Pool Balance as of the last day of the preceding Collection Period,
minus
|
|
(b)
|
the
Yield Supplement Overcollateralization
Amount.
|
“Administration
Agreement”
means
the Administration Agreement, dated as of the Cutoff Date, among the
Administrator, the Issuer and the Indenture Trustee.
“Administrator”
means
Ford Credit, in its capacity as administrator under the Administration
Agreement.
“Affiliate”
means,
for a specified Person, any other Person controlling, controlled by or under
common control with such specified Person. For the purposes of this definition,
“control” when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise.
“Amount
Financed”
means,
for a Receivable, the amount financed by the Obligor for the purchase of the
Financed Vehicle, the purchase of extended warranty protection plans, physical
damage, credit life and disability insurance policies and similar products,
prior balances on trade-in vehicles and other related fees and
charges.
“Annual
Percentage Rate”
or
“APR”
of
a
Receivable means the annual rate of finance charges stated in the Receivable
or
in any federal Truth In Lending Act correction notice related to the
Receivable.
“Applicable
Tax State”
means
the State in which the Owner Trustee maintains its Corporate Trust Office,
the
State in which the Owner Trustee maintains its principal executive offices
and
the State of Michigan.
“Authenticating
Agent”
has
the
meaning specified in Section 2.12(a) of the Indenture.
“Available
Collections”
means,
for a Payment Date, the sum of the following amounts for such Payment Date
or
the preceding Collection Period:
|
(a)
|
Collections,
plus
|
AA-2
|
(b)
|
Purchase
Amounts received on Receivables that became Purchased Receivables
during
such Collection Period, plus
|
|
(c)
|
any
amounts deposited by the Servicer to purchase the Trust Property
on such
Payment Date pursuant to Section 8.1 of the Sale and Servicing Agreement,
minus
|
|
(d)
|
the
Supplemental Servicing Fee.
|
“Available
Funds”
means,
for a Payment Date, the sum of the following amounts for such Payment
Date:
|
(a)
|
Available
Collections,
|
|
(b)
|
the
Reserve Account Draw Amount,
|
|
(c)
|
any
Net Swap Receipts, and
|
|
(d)
|
any
Swap Termination Payments paid by each Swap Counterparty to the Issuer
and
not paid by the Issuer to a replacement Swap
Counterparty.
|
“Bank
Accounts”
means
the Reserve Account, the Collection Account and the Principal Payment
Account.
“Bankruptcy
Code”
means
the United States Bankruptcy Code, 11 U.S.C. 101 et seq.
“Basic
Documents”
means
the Certificate of Formation, the Limited Liability Company Agreement, the
Certificate of Trust, the Trust Agreement, the Purchase Agreement, the Sale
and
Servicing Agreement, the Indenture, the Administration Agreement, the Interest
Rate Swaps, the DTC Letter and the Control Agreement.
“Book-Entry
Note”
means
a
beneficial interest in any of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes
and
the Class D Notes, in each case issued in book-entry form as described in
Section 2.10 of the Indenture.
“Business
Day”
means
any day other than a Saturday, a Sunday or a day on which banking institutions
or trust companies in New York, New York or the State of Delaware are authorized
or obligated by law, regulation or executive order to close.
“Calculation
Agent”
has
the
meaning specified in Section 3.19 of the Indenture.
“Certificate
of Formation”
means
the Amended and Restated Certificate of Formation of Ford Credit Auto
Receivables Two LLC.
“Certificate
of Trust”
means
the Amended and Restated Certificate of Trust of Ford Credit Auto Owner Trust
2006-C.
“Class”
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class B Notes, the Class C Notes or the Class D Notes, as
applicable.
“Class
A-1 Note Transfer”
has
the
meaning specified in Section 2.4(i) of the Indenture.
AA-3
“Class
A Notes”
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4
Notes.
“Class
A-1 Note Purchase Agreement”
means
the Class A-1 Note Purchase Agreement, dated as of November 16, 2006, among
Barclays Capital Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as the "Class
A-1 Note Purchasers,"
and
the Depositor.
“Class
A-1 Notes”
means
the $664,000,000 Class A-1 5.3574%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-1
to
the Indenture.
“Class
A-2 Notes”
means
the Class A-2a Notes and the Class A-2b Notes, collectively.
“Class
A-2a Notes”
means
the $205,000,000 Class A-2a 5.29% Asset Backed Notes issued by the Issuer,
substantially in the form of Exhibit A-2a to the Indenture.
“Class
A-2b Interest Rate Swap”
means
the swap transaction entered into between the Issuer as Party B, and the Class
A-2b Swap Counterparty, as Party A, pursuant to the ISDA Master Agreement,
the
related schedule thereto and the confirmation, each dated as of November 16,
2006, together with any additional or replacement swap entered into by the
Issuer on or after the Closing Date, in respect of the Class A-2b
Notes.
“Class
A-2b Notes”
means
the $856,441,000 Class A-2b Floating Rate Asset Backed Notes issued by the
Issuer, substantially in the form of Exhibit A-2b to the Indenture.
“Class
A-2b Swap Counterparty”
means
Barclays Bank PLC under the Class A-2b Interest Rate Swap.
“Class
A-3 Notes”
means
the $509,551,000 Class A-3 5.16%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-3
to
the Indenture.
“Class
A-4 Notes”
means
the Class A-4a Notes and the Class A-4b Notes, collectively.
“Class
A-4a Notes”
means
the $325,000,000 Class A-4a 5.15%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit A-4a
to
the Indenture.
“Class
A-4b Interest Rate Swap”
means
the swap transaction entered into between the Issuer as Party B, and the Class
A-4b Swap Counterparty, as Party A, pursuant to the ISDA Master Agreement,
the
related schedule thereto and the confirmation, each dated as of November 16,
2006, together with any additional or replacement swap entered into by the
Issuer on or after the Closing Date, in respect of the Class A-4b
Notes.
“Class
A-4b Notes”
means
the $251,838,000 Class A-4b Floating Rate Asset Backed Notes issued by the
Issuer, substantially in the form of Exhibit A-4b to the Indenture.
“Class
A-4b Swap Counterparty”
means
initially Barclays Bank PLC under the Class A-4b Interest Rate
Swap.
“Class
B Notes”
means
the $88,795,000 Class B 5.30%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit B to
the
Indenture.
AA-4
“Class
C Notes”
means
the $59,196,000 Class C 5.47%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit C to
the
Indenture.
“Class
D Note Purchase Agreement”
means
the Class D Note Purchase Agreement, dated as of November 16, 2006, between
Barclays Capital Inc., as the "Class
D Note Purchaser",
and
the Depositor.
“Class
D Note Transfer”
has
the
meaning specified in Section 2.4(i) of the Indenture.
“Class
D Notes”
means
the $59,196,000 Class D 6.89%
Asset
Backed Notes issued by the Issuer, substantially in the form of Exhibit D to
the
Indenture.
“Clearing
Agency”
means
an organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act.
“Closing
Date”
means
November 22, 2006.
“Code”
means
the Internal Revenue Code of 1986.
“Collateral”
means
(a) the Trust Property, (b) the Issuer's rights under the Sale and Servicing
Agreement, (c) the Issuer's rights under the Interest Rate Swaps, (d) all
present and future claims, demands, causes of action and choses in action in
respect of the foregoing, and (e) all payments on or under and all proceeds
of
the foregoing, but
excluding,
the
Trust Distribution Account (if established) and all funds deposited in the
Trust
Distribution Account, if any.
“Collection
Account”
means
the account or accounts established and maintained pursuant to Section 4.1(a)
of
the Sale and Servicing Agreement.
“Collection
Period”
means
each calendar month commencing with the Cutoff Date. For any Payment Date and
Determination Date or for purposes of determining the Principal Balance, Pool
Balance or Note Pool Factor, the related Collection Period means the Collection
Period preceding (a) such Payment Date or Determination Date or (b) the month
in
which the Principal Balance, Pool Balance or Note Pool Factor is
determined.
“Collections”
means,
for a Collection Period, all amounts received and applied by the Servicer on
the
Receivables during such Collection Period, including, without
duplication:
|
(a)
|
payments
received from Obligors, plus
|
|
(b)
|
payments
received on behalf of Obligors, including amounts under physical
damage,
credit life and disability insurance policies, plus
|
|
(c)
|
partial
prepayments due to refunds of cancelled items originally included
in the
Amount Financed, such as extended warranty protection plan costs
or
physical damage, credit life, disability insurance premiums and similar
products, plus
|
|
(d)
|
Liquidation
Proceeds, plus
|
|
(e)
|
Recoveries,
|
AA-5
but
excluding
amounts
on any Receivable for which the Purchase Amount has been included in the
Available Funds in a prior Collection Period.
“Control
Agreement”
means
the Collateral Account Control Agreement, dated as of the Cutoff Date, among
the
Depositor, the Issuer, the Indenture Trustee and The Bank of New York, in its
capacity as a securities intermediary.
“Controlling
Class”
means
(a) the Outstanding Class A Notes, (b) if no Class A Notes are Outstanding,
the
Outstanding Class B Notes, (c) if no Class B Notes are Outstanding, the
Outstanding Class C Notes, and (d) if no Class C Notes are Outstanding, the
Outstanding Class D Notes.
“Corporate
Trust Office”
means,
|
(a)
|
with
respect to the Owner Trustee:
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
or
at
such other address in the State of Delaware as the Owner Trustee may designate
by notice to the Indenture Trustee, the Administrator and the Depositor, or
the
principal corporate trust office of any successor Owner Trustee (the address
of
which the successor Owner Trustee will notify the Indenture Trustee, the
Administrator and the Depositor), and
|
(b)
|
with
respect to the Indenture Trustee:
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured
Finance
Services - Asset Backed Securities
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
or
at
such other address as the Indenture Trustee may designate by notice to the
Owner
Trustee and the Administrator, or the principal corporate trust office of any
successor Indenture Trustee (the address of which the successor Indenture
Trustee will notify the Owner Trustee and the Administrator).
“Credit
and Collection Policy”
means
the credit and collection policies and procedures of Ford Credit relating to
retail installment sale contracts originated or purchased and serviced by Ford
Credit as they may change from time to time.
“Custodian”
has
the
meaning specified in Section 2.5 of the Sale and Servicing
Agreement.
“Cutoff
Date”
means
November 1, 2006.
AA-6
“Dealer”
means
the seller of a Financed Vehicle, originator of the related Receivable and
seller of the Receivable to Ford Credit.
“Dealer
Recourse”
means
all recourse rights against the originating Dealer on a Receivable.
“Default”
means
any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.
“Definitive
Notes”
has
the
meaning specified in Section 2.10 of the Indenture.
“Delaware
Limited Liability Company Act”
means
Chapter 18 of Title 6 of the Delaware Code.
“Delaware
Statutory Trust Act”
means
Chapter 38 of Title 12 of the Delaware Code.
“Delinquent”
means
a
Receivable on which more than $49.99 of the scheduled payment required to be
paid by the Obligor is past due.
“Depositor”
means
Ford Credit Auto Receivables Two LLC.
“Determination
Date”
means,
for a Collection Period, the Business Day immediately preceding the related
Payment Date.
“DTC
Letter”
means
the letter of representations for the Notes, dated November 21, 2006 among
the
Issuer, the Indenture Trustee and The Depository Trust Company.
“Event
of Default”
has
the
meaning specified in Section 5.1(a) of the Indenture.
“Event
of Servicing Termination”
has
the
meaning specified in Section 7.1 of the Sale and Servicing
Agreement.
“Exchange
Act”
means
the Securities Exchange Act of 1934.
“Final
Scheduled Payment Date”
means,
for each Class, the Payment Date specified below:
|
Class
|
Final
Scheduled Payment Date
|
|
Class
A-1
|
December
15, 2007
|
|
Class
A-2a
|
December
15, 2009
|
|
Class
A-2b
|
December
15, 2009
|
|
Class
A-3
|
November
15, 2010
|
|
Class
A-4a
|
February
15, 2012
|
|
Class
A-4b
|
February
15, 2012
|
|
Class
B
|
June
15, 2012
|
|
Class
C
|
September
15, 2012
|
|
Class
D
|
May
15, 2013
|
“Financed
Vehicle”
means
a
new or used car or light truck and all related accessories securing an Obligor's
indebtedness under a Receivable.
AA-7
“First
Priority Principal Payment”
means,
for a Payment Date, the greater of:
|
(a)
|
an
amount (not less than zero) equal to the Note Balance of the Class
A Notes
as of the preceding Payment Date minus
the Adjusted Pool Balance, and
|
|
(b)
|
on
and after the Final Scheduled Payment Date of any Class A Notes,
the Note
Balance of such Class A Notes.
|
“Fitch”
means
Fitch, Inc., d/b/a Fitch Ratings.
“Floating
Rate Notes”
means
the Class A-2b Notes and the Class A-4b Notes.
“Ford
Credit”
means
Ford Motor Credit Company, a Delaware corporation.
“Grant”
means
to mortgage, pledge, assign and to ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security interest
in
the relevant property.
“Indemnified
Person”
has
the
meaning specified in Section 6.7(c) of the Indenture, Section 6.3(b) of the
Sale
and Servicing Agreement and Section 7.2(b) of the Trust Agreement, as
applicable.
“Indenture”
means
the Indenture, dated as of the Cutoff Date, between the Issuer and the Indenture
Trustee.
“Indenture
Trustee”
means
The Bank of New York, a New York banking corporation, not in its individual
capacity but solely as Indenture Trustee under the Indenture.
“Independent”
means
that the relevant Person (a) is independent of the Issuer, the Depositor and
their Affiliates, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, the Depositor or their
Affiliates, and (c) is not an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions of or for the Issuer,
the Depositor or their Affiliates.
“Independent
Certificate”
means
a
certificate or opinion to be delivered to the Indenture Trustee under Section
11.1 of the Indenture, signed by an Independent appraiser or other expert
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and stating that the signer has read the definition
of “Independent” and that the signer is Independent.
“Initial
Pool Balance”
means
$3,299,999,280.06, the aggregate Principal Balance of the Receivables as of
the
Cutoff Date.
“Initial
Purchaser”
means
Ford Credit Auto Receivables Two LLC.
“Insolvency
Event”
means,
for a Person, (a) the making of a general assignment for the benefit of
creditors, (b) the filing of a voluntary petition in bankruptcy, (c) being
adjudged bankrupt or insolvent, or having had an order entered against such
Person for relief in any bankruptcy or insolvency proceeding, (d) the filing
by
such Person of a petition or answer seeking reorganization, liquidation,
dissolution or similar relief under any statute, law or regulation, (e) seeking,
consenting to or acquiescing in the appointment of a trustee, liquidator,
receiver or similar official of such Person or of all or any substantial part
of
such Person’s assets, (f) the failure to obtain dismissal or a stay within 60
days of the commence-ment of or the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against such Person in any proceeding against such Person seeking (i)
reorganization, liquidation, dissolution or similar relief under any statute,
law or regulation or (ii) the appointment of a trustee, liquidator, receiver
or
similar official of such Person or of all or any substantial part of such
Person's assets, or (g) the failure by such Person generally to pay its debts
as
such debts become due.
AA-8
“Interest
Period”
means,
for a Payment Date, (a) for the Class A-1 Notes and the Floating Rate Notes,
from the preceding Payment Date (or the Closing Date in the case of the first
Payment Date) to the following Payment Date and (b) for each other Class of
Notes, from the 15th day of the calendar month preceding each Payment Date
(or
the Closing Date in the case of the first Payment Date) to the 15th day of
the
following calendar month.
“Interest
Rate Swaps”
means
the Class A-2b Interest Rate Swap and the Class A-4b Interest Rate
Swap.
“Issuer”
means
Ford Credit Auto Owner Trust 2006-C.
“Issuer
Order”
and
“Issuer
Request”
has
the
meaning specified in Section 11.1(a) of the Indenture.
“LIBOR”
means
(i) with respect to the first Interest Period, 5.32% and (ii) with respect
to
any subsequent Interest Period, the following rate, as determined by the
Calculation Agent:
|
(a)
|
the
rate for U.S. dollar deposits for a period of one month which appears
on
the Telerate Page 3750 (or any replacement page) as of 11:00 a.m.,
London
time, on the LIBOR Determination Date;
and
|
|
(b)
|
if
such rate does not appear on the Telerate Page 3750, the rate determined
on the basis of the rates at which deposits in U.S. Dollars are offered
by
the LIBOR Reference Banks at approximately 11:00 a.m., London time,
on the
LIBOR Determination Date to prime banks in the London interbank market
for
a period of one month commencing on such LIBOR Determination Date
and in a
principal amount of at least U.S.$1,000,000, the Calculation Agent
will
request the principal London office of each of the LIBOR Reference
Banks
to provide a quotation of its rate. If at least two such quotations
are
provided, the rate will be the arithmetic mean of the quotations.
If fewer
than two quotations are provided as requested, the rate will be the
arithmetic mean of the rates quoted by three major banks in New York
City,
selected by the Calculation Agent, at approximately 11:00 a.m., New
York
City time, on that LIBOR Determination Date for loans in U.S. Dollars
to
leading European banks for a period of one month commencing on the
LIBOR
Determination Date and in a principal amount of at least U.S.$1,000,000;
provided however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting rates as mentioned in this sentence,
LIBOR for such Interest Period will be the same as LIBOR for the
immediately preceding Interest
Period.
|
“LIBOR
Determination Date”
means,
the date that is two London Banking Days prior to the first day of the
applicable Interest Period.
“LIBOR
Reference Banks”
means
four major banks in the London interbank market selected by the Calculation
Agent.
AA-9
“Lien”
means
a
security interest, lien, charge, pledge or encumbrance.
“Limited
Liability Company Agreement”
means
the Amended and Restated Limited Liability Company Agreement of the Depositor,
dated as of March 1, 2001, executed by Ford Credit, as sole member.
“Liquidated
Receivable”
means
a
Receivable for which the Servicer has received and applied the proceeds of
a
sale by auction or other disposition of the related Financed
Vehicle.
“Liquidation
Proceeds”
means,
for a Collection Period and any Liquidated Receivable and any other Receivable
that is charged off during such Collection Period in accordance with the Credit
and Collection Policy, an amount equal to:
|
(a)
|
all
amounts received and applied by the Servicer with respect to such
Receivable from whatever source, whether allocable to interest or
principal, during such Collection Period, minus
|
|
(b)
|
Recoveries
with respect to such Receivable, minus
|
|
(c)
|
the
sum of any amounts expended by the Servicer for the account of the
related
Obligor in accordance with the Credit and Collection Policy, including
collection expenses and all amounts paid to third parties in connection
with the repossession, transportation, reconditioning and disposition
of
the related Financed Vehicle, minus
|
|
(d)
|
any
amounts required by law or under the Credit and Collection Policy
to be
remitted to the related Obligor.
|
“London
Banking Day”
shall
mean any day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits) in
London.
“Monthly
Investor Report”
has
the
meaning specified in Section 3.4(a) of the Sale and Servicing
Agreement.
“Monthly
Remittance Required Ratings”
has
the
meaning specified in Section 4.3(a) of the Sale and Servicing
Agreement.
“Moody's”
means
▇▇▇▇▇'▇ Investors Service, Inc.
“Net
Swap Payment”
means,
for any Payment Date, the net amount, if any, payable by the Issuer to a Swap
Counterparty on such Payment Date, excluding any Swap Termination
Payment.
“Net
Swap Receipt”
means,
for any Payment Date, the net amount, if any, payable by a Swap Counterparty
to
the Issuer on such Payment Date, excluding any Swap Termination
Payment.
“Note
Balance”
means,
for a Note or Class of Notes, the initial aggregate principal amount of such
Note or Class of Notes minus
all
amounts distributed on such Note or Class of Notes that is allocable to
principal.
“Note
Interest Rate”
means,
for each Class, the interest rate per annum specified below:
AA-10
|
Class
|
Note
Interest Rate
|
|
Class
A-1
|
5.3574%
|
|
Class
A-2a
|
5.29%
|
|
Class
A-2b
|
one-month
LIBOR + 0.02%
|
|
Class
A-3
|
5.16%
|
|
Class
A-4a
|
5.15%
|
|
Class
A-4b
|
one-month
LIBOR + 0.04%
|
|
Class
B
|
5.30%
|
|
Class
C
|
5.47%
|
|
Class
D
|
6.89%
|
“Note
Interest Shortfall”
means,
for a Class of Notes and a Payment Date, an amount equal to:
|
(a)
|
the
Note Monthly Interest for the preceding Payment Date for such Class,
plus
|
|
(b)
|
any
outstanding Note Interest Shortfall for that Class for the preceding
Payment Date together with interest on such Note Interest Shortfall,
to
the extent lawful, at the Note Interest Rate for such Class for the
related Interest Period, minus
|
|
(c)
|
the
amount of interest that was paid to the Noteholders of such Class
on such
preceding Payment Date.
|
“Note
Monthly Interest”
means,
for a Class of Notes and a Payment Date, the aggregate amount of interest
accrued on the Note Balance of that Class at the Note Interest Rate for such
Class for the related Interest Period.
“Note
Owner”
means,
for a Book-Entry Note, the Person who is the beneficial owner of a Book-Entry
Note as reflected on the books of the Clearing Agency or on the books of a
Person maintaining an account with such Clearing Agency (as a direct participant
or as an indirect participant, in each case in accordance with the rules of
such
Clearing Agency).
“Note
Paying Agent”
means
the Indenture Trustee and any other Person appointed as Note Paying Agent
pursuant to Section 2.13 of the Indenture.
“Note
Pool Factor”
means,
for a Class of Notes and a Payment Date, a seven-digit decimal figure equal
to
the Note Balance of such Class after giving effect to any principal payments
to
be made on that Class on that Payment Date divided by the initial Note Balance
of such Class.
“Note
Register”
and
“Note
Registrar”
have
the meanings specified in Section 2.4 of the Indenture.
“Noteholder”
means
the Person in whose name a Note is registered on the Note Register.
“Notes”
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class B Notes, the Class C Notes and the Class D Notes,
collectively.
“Obligor”
means
the purchaser or co-purchasers of the Financed Vehicle or any guarantor or
other
Person who owes payments under the related Receivable (not including any Dealer
for Dealer Recourse).
AA-11
“Officer's
Certificate”
means
(a) for the Issuer, a certificate signed by a Responsible Person of the Issuer
and (b) for the Depositor or the Servicer, a certificate signed by any officer
of the Depositor or the Servicer, as applicable.
“Opinion
of Counsel”
means
a
written opinion of counsel which counsel is reasonably acceptable to the
Indenture Trustee, the Owner Trustee and the Rating Agencies, as
applicable.
“Other
Assets”
means
any assets or interests in any assets (other than the Trust Property) conveyed
or purported to be conveyed by the Depositor to any Person other than the
Issuer, whether by way of a sale, capital contribution, the Grant of a Lien
or
otherwise.
“Outstanding”
means,
as of any date, all Notes authenticated and delivered under the Indenture on
or
before such date except (a) Notes that have been cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation, (b) Notes or portions
of
Notes to the extent an amount necessary to pay all or a portion of such Notes
has been deposited with the Indenture Trustee or any Note Paying Agent in trust
for the Noteholders of such Notes on or before such date, provided that
if such
Notes are to be redeemed, notice of such redemption has been given pursuant
to
the Indenture or provision for such notice has been made in a manner
satisfactory to the Indenture Trustee, and (c) Notes in exchange for or in
lieu
of which other Notes have been authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture Trustee is presented that
any such Notes are held by a bona fide purchaser, provided that
in
determining (i) whether Noteholders evidencing the required Note Balance have
given any request, demand, authorization, direction, notice, consent or waiver
under any Basic Document, Notes owned by the Issuer, the Depositor, the Servicer
or their Affiliates will be deemed not to be Outstanding and (ii) whether the
Indenture Trustee is protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Person of the Indenture Trustee knows to be so owned will be deemed
not to be Outstanding. Notes owned by the Issuer, the Depositor, the Servicer
or
their Affiliates that have been pledged in good faith will be treated as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Issuer, the Depositor, the Servicer or their
Affiliate.
“Owner
Trustee”
means
U.S. Bank Trust National Association, a national banking association, not in
its
individual capacity but solely as Owner Trustee under the Trust
Agreement.
“Payment
Date”
means
the 15th day of each calendar month or, if not a Business Day, the next Business
Day, commencing in the first full month after the Closing Date.
“Permitted
Investments”
means
book-entry securities, negotiable instru-ments or securities represented by
instruments in bearer or registered form that evidence:
(a) direct
non-callable obligations of, and obligations fully guaranteed as to timely
payment by, the United States,
(b) demand
deposits, time deposits, certificates of deposit or bankers' acceptances of
any
depository institution or trust company (i) incorporated under the laws of
the
United States or any State or any United States branch or agency of a foreign
bank, (ii) subject to supervision and examination by federal or State banking
or
depository institution authorities, and (iii) that at the time the investment
or
contractual commitment to invest is made, the commercial paper or other
short-term unsecured debt obligations (other than obligations with a rating
based on the credit of a Person other than such depository institution or trust
company) of such depository institution or trust company have the Required
Rating,
AA-12
(c) commercial
paper, including asset-backed commercial paper, having, at the time the
investment or contractual commitment to invest is made, the Required
Rating,
(d) investments
in money market funds having, at the time the investment or contractual
commitment to invest is made, a rating in the highest investment grade category
from each of the Rating Agencies (including funds for which the Indenture
Trustee or the Owner Trustee or any of their Affiliates is investment manager
or
advisor),
(e) repurchase
obligations with respect to any security that is a direct non-callable
obligation of, or fully guaranteed by, the United States or any agency or
instrumentality of the United States the obligations of which are backed by
the
full faith and credit of the United States, in either case entered into with
a
depository institution or trust com-pany (acting as principal) described in
clause (b) above, and
(f)
any
other
investment for which the Issuer or the Administrator has received Rating Agency
Confirmation.
“Permitted
Lien”
means
a
tax, mechanics' or other Lien that attaches by operation of law, or any security
interest of the Depositor in the Purchased Property under the Purchase
Agreement, the Issuer in the Trust Property under the Sale and Servicing
Agreement or the Indenture Trustee in the Collateral under the Indenture.
“Person”
means
any legal person, including any corporation, natural person, joint venture,
limited liability company, partnership, trust, business trust, association,
government, any department or agency of any government or any other entity
of
whatever nature.
“Pool
Balance”
means,
on the last day of a Collection Period, an amount equal to the aggregate
Principal Balance of the Receivables as of such day, excluding Purchased
Receivables.
“Preliminary
Prospectus”
means
the preliminary prospectus supplement, dated November 14, 2006, as supplemented
by the supplement to the prospectus supplement, dated November 16, 2006, to
the
Depositor's prospectus, dated November 14, 2006.
“Principal
Balance”
means,
for a Receivable as of the close of business on the last day of a Collection
Period, an amount (not less than zero) equal to:
|
(a)
|
the
Amount Financed, minus
|
|
(b)
|
the
portion of all Collections applied on or prior to such date allocable
to
principal, minus
|
|
(c)
|
Realized
Losses.
|
“Principal
Payment Account”
means
the administrative subaccount of the Collection Account established and
maintained pursuant to Section 4.1(b) of the Sale and Servicing
Agreement.
“Proceeding”
means
any suit in equity, action at law or other judicial or administrative
proceeding, or governmental investigation.
AA-13
“Prospectus”
means
(a) the Preliminary Prospectus, together with the final prospectus supplement,
dated November 17, 2006, to the Depositor's prospectus, dated November 17,
2006,
relating to the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes,
the
Class B Notes and the Class C Notes, (b) the preliminary offering memorandum,
dated November 14, 2006, and the final offering memorandum, dated November
17,
2006, relating to the Class A-1 Notes and (c) the preliminary offering
memorandum, dated November 14, 2006, and the final offering memorandum, dated
November 17, 2006, relating to the Class D Notes.
“Purchase
Agreement”
means
the Purchase Agreement, dated as of the Cutoff Date, between the Sponsor and
the
Depositor.
“Purchase
Amount”
means,
for a Receivable, the Principal Balance of the Receivable as of the last day
of
the preceding Collection Period plus 30 days of interest at the applicable
APR
or, if such Receivable has been charged off, an amount equal to the Realized
Loss on such Receivable minus any Recoveries through the last day of the
preceding Collection Period.
“Purchased
Property”
means
(a) the Receivables, (b) all amounts received and applied on the Receivables
on
or after the Cutoff Date, (c) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of Ford
Credit in the Financed Vehicles, (d) rights to receive proceeds from claims
on
any physical damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors, (e) Dealer Recourse, (f) the Receivables
Files, (g) all property securing the Receivables, (h) rebates of premiums and
other amounts relating to insurance policies and other items financed under
the
Receivables in effect as of the Cutoff Date, (i) all present and future claims,
demands, causes of action and choses in action in respect of any of the
foregoing, and (j) all payments on or under and all proceeds in respect of
any
of the foregoing.
“Purchased
Receivable”
means,
for a Collection Period, a Receivable (a) purchased by the Servicer pursuant
to
Section 3.2(a) of the Sale and Servicing Agreement, (b) repurchased by the
Depositor pursuant to Section 2.4(a) of the Sale and Servicing Agreement, or
(c)
repurchased by Ford Credit pursuant to Section 3.3(a) of the Purchase
Agreement.
“QIB”
has
the
meaning specified in Section 2.4 of the Indenture.
“Qualified
Institution”
means
any bank or depository institution organized under the laws of the United States
or any State or any United States branch or agency of a foreign bank or
depository institution that (a) is subject to supervision and examination by
federal or State banking authorities, (b) has a short-term deposit rating of
“P-1” by Moody's and “A-1+” by Standard & Poor's, (c) if such institution
holds any Bank Accounts other than as segregated trust accounts and the deposits
are to be held in such accounts more than 30 days, has a long-term unsecured
debt rating or issuer rating of not less than “AA-” by Standard & Poor's,
and (d) if such institution is organized under the laws of the United States,
whose deposits are insured by the Federal Deposit Insurance
Corporation.
“Qualified
Trust Institution”
means
the corporate trust department of The Bank of New York, U.S. Bank Trust National
Association, or any other bank or depository institution organized under the
laws of the United States or any State or any United States branch or agency
of
a foreign bank or depository institution that is subject to supervision and
examination by federal or State banking authorities that (a) is authorized
under
such laws to act as a trustee or in any other fiduciary capacity and (b) has
a
long-term deposit rating of not less than “Baa3” from ▇▇▇▇▇'▇.
“Rating
Agency”
means,
as of any date, each nationally recognized statistical rating organization
that
has been designated by the Depositor to provide a rating on the Notes and is
then rating the Notes.
AA-14
“Rating
Agency Confirmation”
means,
for an action or request, that each of the Rating Agencies has notified the
Depositor, the Servicer, the Owner Trustee and the Indenture Trustee that such
action or request will not result in a reduction or with-drawal of its then
current rating of the Notes.
“Realized
Loss”
means,
for a Receivable that is charged off by the Servicer in accordance with the
Credit and Collection Policy, an amount (not less than zero) equal
to:
|
(a)
|
the
Principal Balance of such Receivable as of the last day of the Collection
Period preceding the Collection Period in which the Receivable is
charged
off, minus
|
|
(b)
|
any
Liquidation Proceeds received in the Collection Period in which the
Receivable is charged off.
|
“Receivable”
means
any retail installment sale contract listed on the Schedule of Receivables,
excluding Purchased Receivables.
“Receivables
Files”
has
the
meaning specified in Section 2.5 of the Sale and Servicing
Agreement.
“Record
Date”
means,
for a Payment Date and a Note in global form, the close of business on the
day
before such Payment Date and, for a Payment Date and a Definitive Note, the
last
day of the month preceding the month in which such Payment Date
occurs.
“Recoveries”
means,
for a Receivable that has been charged off in accordance with the Credit and
Collection Policy (whether or not such Receivable is a Liquidated Receivable)
and a Collection Period, an amount equal to:
|
(a)
|
all
amounts received and applied by the Servicer during such Collection
Period
with respect to such Receivable from whatever source, whether allocable
to
interest or principal, after the date it was charged off, minus
|
|
(b)
|
the
sum of any amounts expended by the Servicer for the account of the
related
Obligor in accordance with the Credit and Collection Policy, including
collection expenses and all amounts paid to third parties in connection
with the repossession, transportation, reconditioning and disposition
of
the related Financed Vehicle to the extent such amounts have not
been
included in calculating Liquidation Proceeds for such Collection
Period,
minus
|
|
(c)
|
any
amounts required by law or under the Credit and Collection Policy
to be
remitted to the Obligor.
|
“Redemption
Date”
means
the Payment Date specified by the Servicer for a redemption of the Notes
pursuant to Section 10.1 of the Indenture.
“Registered
Noteholder”
means
the Person in whose name a Note is registered on the Note Register on the
applicable Record Date.
“Regular
Principal Payment”
means,
for a Payment Date, an amount (not less than zero) equal to:
AA-15
|
(a)
|
the
greater of:
|
(i) the
Note
Balance of the Class A-1 Notes as of the preceding Payment Date or the Closing
Date, as the case may be, and
(ii) an
amount
equal to:
|
(A)
|
the
aggregate Note Balances of all Notes as of the preceding Payment
Date or
the Closing Date, as the case may be, minus
|
|
(B)
|
the
Pool Balance as of the last day of the preceding Collection Period
minus
the Targeted Overcollateralization
Amount,
|
minus
|
(b)
|
the
sum of the First Priority Principal Payment, the Second Priority
Principal
Payment and the Third Priority Principal
Payment;
|
except
that on and after the Final Scheduled Payment Date of the Class D Notes, the
Regular Principal Payment will be the Note Balance of the Class D
Notes.
“Regulation
AB”
means
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as clarified and interpreted by the Securities and Exchange
Commission or its staff.
“Residual
Interest”
means
a
beneficial ownership interest in the Issuer, as recorded on the Trust
Register.
“Required
Rating”
means,
for short-term unsecured debt obligations, a rating of (a) “P-1” by Moody's, (b)
“A-1+” by Standard & Poor's and (c) if rated by Fitch, “F1+” by
Fitch.
“Reserve
Account”
means
the account established and maintained pursuant to Section 4.1(c) of the Sale
and Servicing Agreement.
“Reserve
Account Draw Amount”
means,
for a Payment Date, the least of:
|
(a)
|
an
amount (not less than zero) equal to the Total Required Payment
minus
the Available Collections, and
|
|
(b)
|
the
amount in the Reserve Account minus
any investment earnings.
|
“Responsible
Person”
means:
(a) for
the
Administrator, the Depositor, the Sponsor and the Servicer, any Person
designated in an Officer's Certificate of such Person or other notice signed
by
an officer of such Person as authorized to act for such Person, which Officer's
Certificate or other notice has been sent to all other transaction parties
including the Owner Trustee and the Indenture Trustee,
(b) with
respect to the Issuer, any officer within the Corporate Trust Office of the
Owner Trustee, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of the Owner Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge
of
and familiarity with the particular subject, and for so long as the
Administration Agreement is in effect, any Responsible Person of the
Administrator, and
AA-16
(c) with
respect to the Indenture Trustee or the Owner Trustee, any officer within the
Corporate Trust Office of the Indenture Trustee or the Owner Trustee, as the
case may be, including any vice president, assistant vice president, secretary,
assistant secretary or any other officer of the Indenture Trustee or the Owner
Trustee, as the case may be, customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to
a
particular matter, any other officer to whom such matter is referred because
of
such officer's knowledge of and familiarity with the particular subject and
also
means, with respect to the Owner Trustee, for so long as the Administration
Agreement is in effect, any Responsible Person of the
Administrator.
“Rule
144A”
means
Rule 144A under the Securities Act.
“Rule
144A Information”
has
the
meaning specified in Section 2.4 of the Indenture.
“Sale
and Servicing Agreement”
means
the Sale and Servicing Agreement, dated as of the Cutoff Date, among the Issuer,
the Depositor and the Servicer.
“Schedule
of Receivables”
means
the schedule or file identifying the Receivables attached as Exhibit A to the
Purchase Agreement and Schedule A to the Sale and Servicing Agreement and the
Indenture.
“Second
Priority Principal Payment”
means,
for a Payment Date, the greater of:
|
(a)
|
an
amount (not less than zero) equal
to:
|
(i)
the
aggregate Note Balances of the Class A Notes and the Class B Notes as of the
preceding Payment Date, minus
(ii) the
Adjusted Pool Balance, minus
(iii) the
First
Priority Principal Payment,
and
|
(b)
|
on
and after the Final Scheduled Payment Date of the Class B Notes,
the Note
Balance of such Class B Notes.
|
“Secured
Parties”
means
the Noteholders and the Swap Counterparties.
“Securities
Account”
means
each account established and maintained pursuant to Section 1 of the Control
Agreement.
“Securities
Act”
means
the Securities Act of 1933.
“Servicer”
means
Ford Credit or the Successor Servicer.
“Servicing
Fee”
means,
for a Collection Period, the fee payable to the Servicer for services rendered
during such Collection Period in an amount equal to the product of:
AA-17
|
(a)
|
one-twelfth
of 1.0%, times
|
|
(b)
|
the
Pool Balance as of the last day of the preceding Collection
Period.
|
“Specified
Reserve Balance”
means
$16,499,996.40, or 0.50% of the Initial Pool Balance.
“Sponsor”
means
Ford Credit.
“Standard
& Poor's”
means
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“State”
means
any state or commonwealth of the United States, or the District of
Columbia.
“Successor
Servicer”
means
a
successor Servicer appointed pursuant to Section 7.2 of the Sale and Servicing
Agreement.
“Supplemental
Servicing Fee”
means,
for a Collection Period, all late fees, prepayment charges, extension fees
and
other administrative fees or similar charges on the Receivables.
“Swap
Counterparties”
means
Class A-2b Swap Counterparty and Class A-4b Swap Counterparty.
“Swap
Required Ratings”
means
ratings at least equal to (i) a short term unsecured unsubordinated debt rating
of “A-1” by Standard & Poor's and a long term unsecured unsubordinated debt
rating of “A” by Standard & Poor's (or, if the applicable Swap Counterparty
has no short term unsecured debt rating by Standard & Poor's, a long term
unsecured debt rating of “A+” by Standard & Poor's), (ii) either a long term
unsecured unsubordinated debt rating of “Aa3” by Moody's, or a short term
unsecured unsubordinated debt rating of at least “P-1” by Moody's together with
a long term unsecured unsubordinated debt rating of “A1” by Moody's and (iii) a
long term unsecured and unsubordinated debt rating of “A” by Fitch.
“Swap
Termination Payment”
means
any termination payment payable by the Issuer to a Swap Counterparty or by
a
Swap Counterparty to the Issuer under any Interest Rate Swap.
“Targeted
Credit Enhancement Amount”
means,
for a Payment Date, the greater of:
|
(a)
|
the
Specified Reserve Balance, and
|
|
(b)
|
1%
of the Pool Balance as of the last day of the preceding Collection
Period.
|
“Targeted
Overcollateralization Amount”
means,
for a Payment Date, an amount equal to:
|
(a)
|
the
Yield Supplement Overcollateralization Amount, plus
|
|
(b)
|
the
Targeted Credit Enhancement Amount, minus
|
|
(c)
|
the
Specified Reserve Balance.
|
“Third
Priority Principal Payment”
means,
for a Payment Date, the greater of:
AA-18
|
(a)
|
an
amount (not less than zero) equal
to:
|
(i)
the
aggregate Note Balances of the Class A Notes, the Class B Notes
and
the Class C Notes as of the preceding Payment Date, minus
(ii) the
Adjusted Pool Balance, minus
(iii) the
sum
of the First Priority Principal Payment and the Second Priority Principal
Payment,
and
|
(b)
|
on
and after the Final Scheduled Payment Date of the Class C Notes,
the Note
Balance of the Class C Notes.
|
“Total
Required Payment”
means,
for a Payment Date, the sum of
|
(a)
|
the
amount, up to a maximum of $150,000, due and payable to the Indenture
Trustee under Section 6.7 of the Indenture and to the Owner Trustee
under
Sections 7.1 and 7.2 of the Trust Agreement, plus
|
|
(b)
|
the
Servicing Fee and all unpaid Servicing Fees from preceding Collection
Periods, plus
|
|
(c)
|
the
Accrued Note Interest for all Classes of Notes, plus
|
|
(d)
|
any
Net Swap Payment payable to the Swap Counterparties, plus
|
|
(e)
|
any
Swap Termination payment payable to the Swap Counterparties, plus
|
|
(d)
|
the
First Priority Principal Payment, plus
|
|
(e)
|
the
Second Priority Principal Payment, plus
|
|
(f)
|
the
Third Priority Principal Payment, plus
|
|
(g)
|
on
or after the Final Scheduled Payment Date of the Class D Notes, the
Note
Balance of the Class D Notes.
|
Following
an Event of Default and an acceleration of the Notes or an Insolvency Event
or
dissolution of the Depositor, until the Note Balances of all Notes have been
paid in full, the Total Required Payment will also include the aggregate Note
Balances of all Notes.
“Trust
Accounts”
means
the Bank Accounts and the Trust Distribution Account (if
established).
“Trust
Agreement”
means
the Amended and Restated Trust Agreement dated as of the Cutoff Date, between
the Depositor and the Owner Trustee.
“Trust
Distribution Account”
means
the account that may be established and maintained pursuant to Section 4.1(g)
of
the Sale and Servicing Agreement.
AA-19
“Trust
Indenture Act”
or
“TIA”
means
the Trust Indenture Act of 1939.
“Trust
Property”
means
(a) the Purchased Property, (b) the Depositor's rights under the Purchase
Agreement, (c) the Depositor's rights under the Sale and Servicing Agreement,
(d) all security entitlements relating to the Trust Accounts and the property
deposited in or credited to any of the Trust Accounts, (e) all present and
future claims, demands, causes of action and choses in action in respect of
any
of the foregoing, and (f) all payments on or under and all proceeds in respect
of any of the foregoing.
“Trust
Register”
and
“Trust
Registrar”
have
the meanings specified in Section 3.2 of the Trust Agreement.
“UCC”
means
the Uniform Commercial Code as in effect in any relevant
jurisdiction.
“Underwriting
Agreement”
means
the Underwriting Agreement, dated November 16, 2006, between the Depositor
and
Barclays Capital Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as the representatives of the underwriters named in such
agreement.
“U.S.
Bank Trust”
means
U.S. Bank Trust National Association, a national banking
association.
“Void
Class A-1 Note Transfer”
has
the
meaning specified in Section 2.4(i) of the Indenture.
“Void
Class D Note Transfer”
has
the
meaning specified in Section 2.4(i) of the Indenture.
“Yield
Supplement Overcollateralization Amount”
means,
for the Closing Date and each Payment Date, the amount specified on the Yield
Supplement Overcollateralization Schedule for such date. The Yield Supplement
Overcollateralization Amount has been calculated for the Closing Date and each
Payment Date as the sum for each Receivable of the amount (not less than zero)
equal to:
|
(a)
|
the
future payments on such Receivable discounted to present value as
of the
last day of the preceding Collection Period (or the Cutoff Date,
for the
Closing Date) at the APR of the Receivable, minus
|
|
(b)
|
such
future payments on such Receivable discounted to present value as
of the
last day of the preceding Collection Period at
8.5%.
|
For
purposes of this calculation, the future payments on each Receivable are the
equal monthly payments that would reduce the Receivable's outstanding Principal
Balance as of the Cutoff Date to zero on the Receivable's final scheduled
payment date, at an interest rate equal to the APR of the Receivable and without
any delays, defaults or prepayments.
“Yield
Supplement Overcollateralization Schedule”
means,
for the Closing Date and each Payment Date, the following schedule:
AA-20
|
Closing
Date
|
$
|
340,178,356.58
|
||
|
December
2006
|
329,740,886.29
|
|||
|
January
2007
|
319,466,363.09
|
|||
|
February
2007
|
309,356,172.46
|
|||
|
March
2007
|
299,410,740.33
|
|||
|
April
2007
|
289,630,906.12
|
|||
|
May
2007
|
280,017,671.50
|
|||
|
June
2007
|
270,571,722.97
|
|||
|
July
2007
|
261,293,756.88
|
|||
|
August
2007
|
252,184,424.40
|
|||
|
September
2007
|
243,244,288.08
|
|||
|
October
2007
|
234,472,386.65
|
|||
|
November
2007
|
225,865,880.58
|
|||
|
December
2007
|
217,421,992.29
|
|||
|
January
2008
|
209,139,544.20
|
|||
|
February
2008
|
201,018,399.94
|
|||
|
March
2008
|
193,058,460.77
|
|||
|
April
2008
|
185,259,791.46
|
|||
|
May
2008
|
177,623,385.44
|
|||
|
June
2008
|
170,150,230.54
|
|||
|
July
2008
|
162,841,173.95
|
|||
|
August
2008
|
155,696,988.54
|
|||
|
September
2008
|
148,718,444.84
|
|||
|
October
2008
|
141,906,131.87
|
|||
|
November
2008
|
135,260,519.78
|
|||
|
December
2008
|
128,782,199.67
|
|||
|
January
2009
|
122,471,805.24
|
|||
|
February
2009
|
116,330,016.65
|
|||
|
March
2009
|
110,357,654.64
|
|||
|
April
2009
|
104,555,368.09
|
|||
|
May
2009
|
98,923,221.64
|
|||
|
June
2009
|
93,461,034.17
|
|||
|
July
2009
|
88,168,403.26
|
|||
|
August
2009
|
83,044,431.09
|
|||
|
September
2009
|
78,087,197.85
|
|||
|
October
2009
|
73,294,636.68
|
|||
|
November
2009
|
68,664,223.38
|
|||
|
December
2009
|
64,194,613.22
|
|||
|
January
2010
|
59,884,346.73
|
|||
|
February
2010
|
55,734,243.55
|
|||
|
March
2010
|
51,744,999.21
|
|||
|
April
2010
|
47,917,402.11
|
|||
|
May
2010
|
44,251,897.45
|
|||
|
June
2010
|
40,748,537.01
|
|||
|
July
2010
|
37,407,259.88
|
|||
|
August
2010
|
34,227,833.52
|
|||
|
September
2010
|
31,209,456.66
|
|||
|
October
2010
|
28,350,257.37
|
|||
|
November
2010
|
25,648,016.97
|
|||
|
December
2010
|
23,101,120.90
|
|||
|
January
2011
|
20,708,342.97
|
|||
|
February
2011
|
18,469,892.01
|
|||
|
March
2011
|
16,386,011.68
|
|||
|
April
2011
|
14,457,157.86
|
|||
|
May
2011
|
12,683,163.14
|
AA-21
|
June
2011
|
11,062,827.81
|
|||
|
July
2011
|
9,593,395.93
|
|||
|
August
2011
|
8,268,631.24
|
|||
|
September
2011
|
7,077,591.50
|
|||
|
October
2011
|
6,005,715.77
|
|||
|
November
2011
|
5,038,658.75
|
|||
|
December
2011
|
4,167,342.68
|
|||
|
January
2012
|
3,379,123.77
|
|||
|
February
2012
|
2,674,002.85
|
|||
|
March
2012
|
2,052,240.67
|
|||
|
April
2012
|
1,514,241.59
|
|||
|
May
2012
|
1,060,276.49
|
|||
|
June
2012
|
690,077.79
|
|||
|
July
2012
|
402,867.92
|
|||
|
August
2012
|
196,295.12
|
|||
|
September
2012
|
66,183.15
|
|||
|
October
2012
|
5,906.98
|
AA-22
EXHIBIT
A
Monthly
Investor Report
Collection
Period
Payment
Date
Transaction
Month
Additional
information about the structure, cashflows, defined terms and parties for this
transaction can be found in the prospectus supplement,
available on the SEC website (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) under the registration number
333-131003 and at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇▇.
|
I.
ORIGINAL DEAL PARAMETERS
|
Weighted
Avg Remaining
|
|||||||||
|
Dollar
Amount
|
#
of Receivables
|
Term
at Cutoff
|
||||||||
|
Initial
Pool Balance
|
||||||||||
|
Original
Securities:
|
Dollar
Amount
|
Note
Interest Rate
|
Legal
Final Maturity
|
|||||||
|
Class
A-1 Notes
|
% | |||||||||
|
Class
A-2a Notes
|
% | |||||||||
|
Class
A-2b Notes
|
% | |||||||||
|
Class
A-3 Notes
|
% | |||||||||
|
Class
A-4a Notes
|
% | |||||||||
|
Class
A-4b Notes
|
% | |||||||||
|
Class
B Notes
|
% | |||||||||
|
Class
C Notes
|
% | |||||||||
|
Class
D Notes
|
% | |||||||||
|
Total
|
||||||||||
|
II.
AVAILABLE FUNDS
|
||||||||||
|
Interest:
|
||||||||||
|
Interest
Collections
|
||||||||||
|
Principal:
|
||||||||||
|
Principal
Collections
|
||||||||||
|
Prepayments
in Full
|
||||||||||
|
Liquidation
Proceeds
|
||||||||||
|
Recoveries
|
||||||||||
|
Sub
Total
|
||||||||||
|
Collections
|
||||||||||
|
Purchase
Amounts:
|
||||||||||
|
Purchase
Amounts Related to Principal
|
||||||||||
|
Purchase
Amounts Related to Interest
|
||||||||||
|
Sub
Total
|
||||||||||
|
Clean-up
Call
|
||||||||||
|
Available
Collections
|
||||||||||
|
Reserve
Account Draw Amount
|
||||||||||
|
Net
Swap Receipt - Tranche ▇-▇▇
|
||||||||||
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇-▇▇
|
||||||||||
|
Available
Funds
|
||||||||||
EA-1
Ford
Credit Auto Owner Trust 2006-C
Monthly
Investor Report
Collection
Period
Payment
Date
Transaction
Month
|
III.
DISTRIBUTIONS
|
||||||||||||||||
|
Calculated
Amount
|
Amount
Paid
|
Shortfall
|
Carryover
Shortfall
|
Remaining
Available Funds
|
||||||||||||
|
Owner
Trustee Fees and Expenses
|
||||||||||||||||
|
Indenture
Trustee Fees and Expenses
|
||||||||||||||||
|
Servicing
Fee
|
||||||||||||||||
|
Net
Swap Payment - Tranche ▇-▇▇
|
||||||||||||||||
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇-▇▇
|
||||||||||||||||
|
Interest
- Class A-1 Notes
|
||||||||||||||||
|
Interest
- Class A-2a Notes
|
||||||||||||||||
|
Interest
- Class A-2b Notes
|
||||||||||||||||
|
Interest
- Class A-3 Notes
|
||||||||||||||||
|
Interest
- Class A-4a Notes
|
||||||||||||||||
|
Interest
- Class A-4b Notes
|
||||||||||||||||
|
Pay
Swap Term Payment
|
||||||||||||||||
|
First
Priority Principal Payment
|
||||||||||||||||
|
Interest
- Class B Notes
|
||||||||||||||||
|
Second
Priority Principal Payment
|
||||||||||||||||
|
Interest
- Class C Notes
|
||||||||||||||||
|
Third
Priority Principal Payment
|
||||||||||||||||
|
Interest
- Class D Notes
|
||||||||||||||||
|
Reserve
Account Deposit
|
||||||||||||||||
|
Regular
Principal Payment
|
||||||||||||||||
|
Additional
Trustee Fees and Expenses
|
||||||||||||||||
|
Residual
Released to Depositor
|
||||||||||||||||
|
Total
|
||||||||||||||||
|
Principal
Payment:
|
||||
|
First
Priority Principal Payment
|
||||
|
Second
Priority Principal Payment
|
||||
|
Third
Priority Principal Payment
|
||||
|
Regular
Principal Payment
|
||||
|
Total
|
IV.
NOTEHOLDER PAYMENTS
|
Noteholder
Principal
Payments
|
Noteholder
Interest
Payments
|
Total
Payment
|
|||||||||||||||||
|
Actual
|
Per
$1,000 of
Original
Balance
|
Actual
|
Per
$1,000 of
Original
Balance
|
Actual
|
Per
$1,000 of
Original
Balance
|
||||||||||||||
|
Class
A-1 Notes
|
|||||||||||||||||||
|
Class
A-2a Notes
|
|||||||||||||||||||
|
Class
A-2b Notes
|
|||||||||||||||||||
|
Class
A-3 Notes
|
|||||||||||||||||||
|
Class
A-4a Notes
|
|||||||||||||||||||
|
Class
A-4b Notes
|
|||||||||||||||||||
|
Class
B Notes
|
|||||||||||||||||||
|
Class
C Notes
|
|||||||||||||||||||
|
Class
D Notes
|
|||||||||||||||||||
|
Total
|
|||||||||||||||||||
EA-2
Ford
Credit Auto Owner Trust 2006-C
Monthly
Investor Report
Collection
Period
Payment
Date
Transaction
Month
|
V.
NOTE BALANCE AND POOL INFORMATION
|
|||||||||||||
|
Beginning
of Period
|
End
of Period
|
||||||||||||
|
Balance
|
Note
Factor
|
Balance
|
Note
Factor
|
||||||||||
|
Class
A-1 Notes
|
|||||||||||||
|
Class
A-2a Notes
|
|||||||||||||
|
Class
A-2b Notes
|
|||||||||||||
|
Class
A-3 Notes
|
|||||||||||||
|
Class
A-4a Notes
|
|||||||||||||
|
Class
A-4b Notes
|
|||||||||||||
|
Class
B Notes
|
|||||||||||||
|
Class
C Notes
|
|||||||||||||
|
Class
D Notes
|
|||||||||||||
|
Total
|
|||||||||||||
|
Pool
Information
|
|||||||||||||
|
Weighted
Average APR
|
|||||||||||||
|
Weighted
Average Remaining Term
|
|||||||||||||
|
Number
of Receivables Outstanding
|
|||||||||||||
|
Pool
Balance
|
|||||||||||||
|
Adjusted
Pool Balance (Pool Balance - YSOC Amount)
|
|||||||||||||
|
Pool
Factor
|
|||||||||||||
|
VI.
OVERCOLLATERALIZATION INFORMATION
|
||||
|
Specified
Reserve Balance
|
||||
|
Targeted
Credit Enhancement Amount
|
||||
|
Yield
Supplement Overcollateralization Amount
|
||||
|
Targeted
Overcollateralization Amount
|
||||
|
Actual
Overcollateralization Amount (EOP Pool Balance -EOP Note
Balance)
|
||||
|
VII.
RECONCILIATION OF RESERVE ACCOUNT
|
||||
|
Beginning
Reserve Account Balance
|
||||
|
Reserve
Account Deposits Made
|
||||
|
Reserve
Account Draw Amount
|
||||
|
Ending
Reserve Account Balance
|
||||
|
Change
in Reserve Account Balance
|
||||
|
Specified
Reserve Balance
|
||||
EA-3
Ford
Credit Auto Owner Trust 2006-C
Monthly
Investor Report
Collection
Period
Payment
Date
Transaction
Month
|
VIII.
NET LOSSES AND DELINQUENT ACCOUNTS
|
|||||||
|
#
of Receivables
|
Amount
|
||||||
|
Realized
Loss
|
|||||||
|
(Recoveries)
|
|||||||
|
Net
Losses for Current Collection Period
|
|||||||
|
Cumulative
Net Losses Last Collection
|
|||||||
|
Cumulative
Net Losses for all Collection Periods
|
|||||||
Ratio
of
Net Losses for Current Collection Period to Beginning of Period Pool Balance
(annualized)
Delinquent
Receivables:
|
%
of EOP Pool
|
#
of Receivables
|
Amount
|
|
|||||||
|
31-60
Days Delinquent
|
||||||||||
|
61-90
Days Delinquent
|
||||||||||
|
Over
120 Days Delinquent
|
||||||||||
|
Total
Delinquent Receivables
|
||||||||||
|
Repossesion
Inventory:
|
||||
|
Repossesed
in Current Collection Period
|
||||
|
Total
Repossesed Inventory
|
||||
|
Ratio
of Net Losses to the Average Pool Balance for the Collection
Period:
|
||||
|
Second
Preceding Collection Period
|
||||
|
Preceding
Collection Period
|
||||
|
Current
Collection Period
|
||||
|
Three
Month Average
|
||||
|
Number
of 61+ Delinquent Receivables to EOP Number of Outstanding
Receivables:
|
||||
|
Second
Preceding Collection Period
|
||||
|
Preceding
Collection Period
|
||||
|
Current
Collection Period
|
||||
|
Three
Month Average
|
EA-4