EXHIBIT 99.4
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ACCOUNT CONTROL AGREEMENT
between
FORD CREDIT AUTO OWNER TRUST 2007-X,
as Grantor
and
THE BANK OF NEW YORK
as Indenture Trustee,
Dated as of [__________], 2007
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TABLE OF CONTENTS
ARTICLE I USAGE AND DEFINITIONS............................................. 1
ARTICLE II ESTABLISHMENT OF COLLATERAL ACCOUNTS............................. 1
Section 2.1 Description of Account....................................... 1
Section 2.2 Account Modifications........................................ 1
Section 2.3 Type of Account.............................................. 1
Section 2.4 Securities Account Provisions................................ 1
ARTICLE III SECURED PARTY CONTROL........................................... 2
Section 3.1 Control for Purposes of UCC.................................. 2
Section 3.2 Conflicting Orders or Instructions........................... 2
ARTICLE IV INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS................... 2
Section 4.1 Investment of Funds.......................................... 2
ARTICLE V SUBORDINATION OF FINANCIAL INSTITUTION'S LIEN; WAIVER OF SET-OFF.. 2
Section 5.1 Subordination................................................ 2
Section 5.2 Set-off and Recoupment....................................... 2
ARTICLE VI OTHER AGREEMENTS................................................. 3
Section 6.1 Adverse Claim................................................ 3
Section 6.2 Correspondence, Statements and Confirmations................. 3
Section 6.3 Representation of the Financial Institution.................. 3
Section 6.4 Release of Financial Institution............................. 3
Section 6.5 Termination.................................................. 3
Section 6.6 Existence of Other Agreements................................ 3
Section 6.7 Notice....................................................... 4
ARTICLE VII MISCELLANEOUS................................................... 4
Section 7.1 Amendment.................................................... 4
Section 7.2 Conflict With Other Agreement................................ 4
Section 7.3 Location of Financial Institution............................ 4
Section 7.4 GOVERNING LAW................................................ 4
Section 7.5 Submission to Jurisdiction................................... 4
Section 7.6 WAIVER OF JURY TRIAL......................................... 4
Section 7.7 Successors................................................... 4
Section 7.8 Notices...................................................... 4
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Section 7.9 Severability................................................. 5
Section 7.10 Counterparts................................................ 5
Section 7.11 Headings.................................................... 5
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ACCOUNT CONTROL AGREEMENT
ACCOUNT CONTROL AGREEMENT dated as of [__________], 2007 (this
"Agreement") among FORD CREDIT AUTO OWNER TRUST 2007-X, a Delaware statutory
trust, as Grantor, THE BANK OF NEW YORK, a New York banking corporation, as
Indenture Trustee for the benefit of the Noteholders, in such capacity, (the
"Secured Party") and THE BANK OF NEW YORK in its capacity as both a "securities
intermediary" as defined in Section 8-102 of the UCC and a "bank" as defined in
Section 9-102 of the UCC (in such capacities, the "Financial Institution").
ARTICLE I
USAGE AND DEFINITIONS
Capitalized terms used but not otherwise defined in this Agreement are
defined in Appendix A to the Sale and Servicing Agreement. Appendix A also
contains rules as to usage applicable to this Agreement. Appendix A is
incorporated by reference into this Agreement. All references to the "UCC" mean
the Uniform Commercial Code as in effect in the State of New York.
ARTICLE II
ESTABLISHMENT OF COLLATERAL ACCOUNTS
Section 2.1 Description of Account. The Financial Institution has
established the following accounts (each, a "Collateral Account"):
"Collection Account-The Bank of New York as Indenture Trustee, as
secured party for Ford Credit Auto Owner Trust 2007-X" with account number
[___];
"Reserve Account-The Bank of New York as Indenture Trustee, as secured
party for Ford Credit Auto Owner Trust 2007-X" with account number [___]; and
"Principal Payment Account-The Bank of New York as Indenture Trustee,
as secured party for Ford Credit Auto Owner Trust 2007-X" with account number
[___].
Section 2.2 Account Modifications. Neither the Financial Institution nor
the Grantor will change the name or account number of any Collateral Account
without the prior written consent of the Secured Party.
Section 2.3 Type of Account. The Financial Institution agrees that each
Collateral Account is, and will be maintained as, either (i) a "securities
account" (as defined in Section 8-501 of the UCC) or (ii) a "deposit account,"
as defined in Section 9-102(a)(29) of the UCC).
Section 2.4 Securities Account Provisions. If and to the extent any
Collateral Account is a securities account (within the meaning of Section 8-501
of the UCC) the Financial Institution agrees that:
(a) all securities, financial assets or other investment property
(other than cash) credited to each Collateral Account will be registered in the
name of the Financial Institution, indorsed to the Financial Institution or in
blank or credited to another securities account maintained in the name of the
Financial Institution. In no case will any financial asset credited to any
Collateral Account be registered in the name of the Grantor, payable to the
order of the
Grantor or specially indorsed to the Grantor unless the foregoing have been
specially indorsed to the Financial Institution or in blank;
(b) all financial assets delivered to the Financial Institution
pursuant to the Indenture will be promptly credited to the appropriate
Collateral Account; and each item of property (whether investment property,
financial asset, security or instrument) credited to any Collateral Account will
be treated as a "financial asset" within the meaning of Section 8-102(a)(9) of
the UCC.
ARTICLE III
SECURED PARTY CONTROL
Section 3.1 Control for Purposes of UCC. If the Financial Institution
receives any order from the Secured Party or its authorized agent (i) directing
disposition of funds in any Collateral Account or (ii) directing transfer or
redemption of the financial assets relating to the Collateral Accounts (a
"Secured Party Order"), the Financial Institution will comply with the Secured
Party Order without further consent by the Grantor or any other person.
Section 3.2 Conflicting Orders or Instructions. Notwithstanding anything to
the contrary contained herein, if at any time, the Financial Institution
receives conflicting orders or instructions from the Secured Party and the
Grantor, the Financial Institution will follow the orders or instructions of the
Secured Party and not the Grantor.
ARTICLE IV
INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS
Section 4.1 Investment of Funds. If (i) the Financial Institution has not
otherwise received a Secured Party Order regarding the investment of funds held
in the Collateral Accounts by 11:00 a.m. New York time (or such other time as
may be agreed between the Financial Institution and the Grantor) 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 of such continuing Default or Event of Default to the Financial
Institution, the Financial Institution will, to the fullest extent practicable,
invest and reinvest funds on deposit in such Collateral Account in one or more
investments described in clause (b) of the definition of Permitted Investments.
ARTICLE V
SUBORDINATION OF FINANCIAL INSTITUTION'S LIEN; WAIVER OF SET-OFF
Section 5.1 Subordination. If the Financial Institution has, or
subsequently obtains, by agreement, by operation of law or otherwise a security
interest in any Collateral Account (or any portion thereof), the Financial
Institution agrees that such security interest will be subordinate to the
security interest of the Secured Party.
Section 5.2 Set-off and Recoupment. The financial assets, money and other
items credited to each Collateral Account will not be subject to deduction,
set-off, recoupment, banker's lien, or any other right in favor of any person
other than the Secured Party. However, the Financial Institution may set off (i)
all amounts due to the Financial Institution in respect of customary fees and
expenses for the routine maintenance and operation of each Collateral Account,
(ii) the face amount of any checks which have been credited to a Collateral
Account but are subsequently returned unpaid because of uncollected or
insufficient funds and (iii) any
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advances made in connection with the settlement of any investment made with
respect to the Collateral Accounts.
ARTICLE VI
OTHER AGREEMENTS
Section 6.1 Adverse Claim. Except for the claims and interests of the
Secured Party and the Grantor, the Financial Institution does not know of any
lien on, or claim to, or interest in, any Collateral Account or in any
"financial asset" (as defined in Section 8-102(a) of the UCC), cash or funds
credited thereto.
Section 6.2 Correspondence, Statements and Confirmations. The Financial
Institution will promptly send copies of all statements, confirmations and other
correspondence concerning any Collateral Account and, if applicable, any
financial assets credited thereto, simultaneously to the Grantor and the Secured
Party.
Section 6.3 Representation of the Financial Institution. The Financial
Institution represents that this Agreement is the valid and legally binding
obligation of the Financial Institution.
Section 6.4 Release of Financial Institution. The Grantor and the Secured
Party agree that the Financial Institution is released from any and all
liabilities to the Grantor and the Secured Party arising from the terms of this
Agreement and the compliance of the Financial Institution with the terms hereof,
except to the extent that such liabilities arise from the Financial
Institution's negligence.
Section 6.5 Termination. The obligations of the Financial Institution to
the Secured Party pursuant to this Agreement will continue in effect until the
security interests of the Secured Party in each Collateral Account have been
terminated pursuant to the terms of the Indenture and the Secured Party has
notified the Financial Institution of such termination in writing. The Financial
Institution may terminate its obligations under this Agreement if the Secured
Party resigns or is removed as Indenture Trustee pursuant to the Indenture,
provided that such termination will not be effective until the Collateral
Accounts have been established with, and transferred to, another securities
intermediary which has agreed to assume the obligations of the Financial
Institution under this Agreement. The termination of this Agreement will not
terminate any Collateral Account or alter the obligations of the Financial
Institution to the Grantor pursuant to any other agreement with respect to any
Collateral Account.
Section 6.6 Existence of Other Agreements. The Financial Institution
confirms and agrees that:
(a) There are no other agreements entered into between the Financial
Institution and the Grantor with respect to any Collateral Account other than
the Indenture;
(b) The Financial Institution has not entered into, and until the
termination of this Agreement will not enter into, any agreement with any other
person relating any Collateral Account pursuant to which it has agreed to comply
with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) or
instructions (within the meaning of Section 9-104 of the UCC) of such other
person; and
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(c) The Financial Institution has not entered into, and until the
termination of this Agreement will not enter into, any agreement purporting to
limit or condition the obligation of the Financial Institution to comply with
entitlement orders or instructions.
Section 6.7 Notice. If any person asserts any lien, encumbrance or adverse
claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against any Collateral Account (or in any
financial asset, cash or funds carried therein), the Financial Institution will
promptly notify the Secured Party.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment. No amendment or modification of this Agreement or
waiver of any right under this Agreement will be binding on any party to this
Agreement unless it is in writing and is signed by all of the parties to this
Agreement.
Section 7.2 Conflict With Other Agreement. In the event of any conflict
between this Agreement (or any portion thereof) and any other agreement now
existing or hereafter entered into, the terms of this Agreement will prevail.
Section 7.3 Location of Financial Institution. Regardless of any provision
in any other agreement, for purposes of the UCC, New York will be the location
of the bank for purposes of Sections 9-301, 9-304 and 9-305 of the UCC and the
securities intermediary for purposes of Sections 9-301 and 9-305 and Section
8-110 of the UCC.
Section 7.4 GOVERNING LAW. THIS AGREEMENT AND EACH COLLATERAL ACCOUNT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 7.5 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 7.6 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 7.7 Successors. The terms of this Agreement will be binding upon,
and will be for the benefit of, the parties hereto and their respective
successors and assigns and will apply to any successor account to any Collateral
Account.
Section 7.8 Notices. 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:
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(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, 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.
Any such notice, request, demand, consent or other communication must be
delivered or addressed as set forth on Schedule B to the Sale and Servicing
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 7.9 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 7.10 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 7.11 Headings. The headings in this Agreement are included for
convenience only and will not affect the meaning or interpretation of this
Agreement.
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EXECUTED:
FORD CREDIT AUTO OWNER TRUST 2007-X,
as Grantor
By: U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
of Ford Credit Auto Owner Trust
2007-X
By:
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Name:
----------------------------------
Title:
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THE BANK OF NEW YORK, solely in its
capacity as "Indenture Trustee" for the
"Noteholders"
By:
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Name:
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Title:
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THE BANK OF NEW YORK,
as securities intermediary
By:
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Name:
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Title:
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