FORD CREDIT FLOORPLAN CORPORATION
and
FORD CREDIT FLOORPLAN LLC
Transferors
THE BANK OF NEW YORK (DELAWARE)
Delaware Trustee
THE BANK OF NEW YORK
Owner Trustee
-----------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of August 1, 2001
-----------------------------------
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions..................................................................................1
Section 1.02. Other Definitional Provisions................................................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name.........................................................................................4
Section 2.02. Offices......................................................................................4
Section 2.03. Purpose and Powers...........................................................................4
Section 2.04. Appointment of Owner Trustee.................................................................5
Section 2.04.A Appointment of Delaware Trustee.............................................................5
Section 2.05. Initial Capital Contribution of Trust Estate.................................................6
Section 2.06. Declaration of Trust.........................................................................6
Section 2.07. Title to Trust Property......................................................................6
Section 2.08. Situs of Trust...............................................................................6
Section 2.09. Representations and Warranties of Transferors................................................7
Section 2.10. Liability of Certificateholders..............................................................8
ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership............................................................................8
Section 3.02. Form of Certificates.........................................................................8
Section 3.03. Authentication of Certificates...............................................................9
Section 3.04. Restrictions on Transfer.....................................................................9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.............................................9
Section 3.06. Issuance of New Certificates................................................................10
ARTICLE III A
A TRANSFEROR INTEREST ACCOUNT
Section 3A.01. Establishment of Transferor Interest Account...................................................11
Section 3A.02. Distribution...................................................................................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to Certain Matters..........................11
Section 4.02. Restrictions on Power.......................................................................12
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority...........................................................................12
Section 5.02. General Duties..............................................................................12
Section 5.03. Action upon Instruction.....................................................................13
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions..........................14
Section 5.05. No Action Except Under Specified Documents or Instructions..................................14
Section 5.06. Restrictions................................................................................14
ARTICLE VI
CONCERNING THE OWNER TRUSTEE AND THE DELAWARE TRUSTEE
Section 6.01. Acceptance of Trusts and Duties.............................................................14
Section 6.02. Furnishing of Documents.....................................................................16
Section 6.03. Representations and Warranties of the Co-Trustees...........................................16
Section 6.04. Reliance; Advice of Counsel.................................................................17
Section 6.05. Not Acting in Individual Capacity...........................................................18
Section 6.06. Co-Trustees Not Liable for Certificates, Notes or Receivables...............................18
Section 6.07. Co-Trustees May Own Notes...................................................................19
ARTICLE VII
COMPENSATION AND INDEMNITY OF CO-TRUSTEES
Section 7.01. Co-Trustees' Fees and Expenses..............................................................19
Section 7.02. Indemnification.............................................................................19
Section 7.03. Payments to Co-Trustees.....................................................................20
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement....................................................................20
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES;
SUCCESSOR DELAWARE TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee and Delaware Trustee.............................20
Section 9.02. Resignation or Removal of Owner Trustee or Delaware Trustee.................................21
Section 9.03. Successor Co-Trustees.......................................................................22
Section 9.04. Merger or Consolidation of Co-Trustee.......................................................22
Section 9.05. Appointment of Co-Trustee or Separate Trustee...............................................23
Section 9.06. Compliance with Delaware Business Trust Statute.............................................24
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments..................................................................24
Section 10.02. No Legal Title to Trust Estate in Transferors...............................................25
Section 10.03. Limitations on Rights of Others.............................................................26
Section 10.04. Notices.....................................................................................26
Section 10.05. Severability................................................................................26
Section 10.06. Separate Counterparts.......................................................................26
Section 10.07. Successors and Assigns......................................................................26
Section 10.08. Nonpetition Covenants.......................................................................27
Section 10.09. No Recourse.................................................................................27
Section 10.10. Headings....................................................................................27
Section 10.11. Governing Law...............................................................................27
Section 10.12. Transferor Payment Obligation...............................................................27
Section 10.13. Acceptance of Terms of Agreement............................................................27
Section 10.14. Integration of Documents....................................................................28
EXHIBITS
Exhibit A Form of Certificate
Amended and Restated Trust Agreement, dated as of August 1, 2001, by
and among FORD CREDIT FLOORPLAN CORPORATION, a Delaware corporation formerly
known as FORD CREDIT AUTO RECEIVABLES CORPORATION, and FORD CREDIT FLOORPLAN
LLC, a Delaware limited liability company formerly known as FORD CREDIT AUTO
RECEIVABLES LLC, as Transferors, each having its principal executive office at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; THE BANK OF NEW YORK (DELAWARE), a
Delaware banking corporation, not in its individual capacity but solely as
Delaware Trustee under this Agreement, having its principal corporate trust
office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and THE BANK OF
NEW YORK, a New York banking corporation, not in its individual capacity but
solely as Owner Trustee under this Agreement, having its principal corporate
trust office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITAL
The parties to this Agreement hereby intend to amend and restate that
certain Trust Agreement, dated as of June 29, 2001, among Ford Credit Auto
Receivables Corporation, Ford Credit Auto Receivables LLC, the Delaware Trustee
and the Owner Trustee on the terms and conditions hereinafter set forth.
In consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows.
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
Whenever used in this Agreement, the following words and phrases have
the following meanings, and the definitions of such terms are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
"Administration Agreement" means the Administration Agreement, dated as
of August 1, 2001, between the Issuer and the Administrator.
"Administrator" means Ford Credit, in its capacity as administrator
under the Administration Agreement and its successors and permitted assigns in
such capacity.
"Agreement" means this Amended and Restated Trust Agreement, as the
same may be amended, modified or otherwise supplemented from time to time.
"Certificateholder" or "Holder" means, with respect to the Transferor
Interest, a Person in whose name the Certificates are registered or a Person in
whose name ownership of the uncertificated interest in the Transferor Interest
is recorded in the books and records of the Owner Trustee.
"Certificates" means the Transferors' uncertificated interest in the
Transferor Interest; provided, however, if either Transferor elects to evidence
its interest in the Transferor Interest in certificated form pursuant to this
Agreement, the certificates will be executed by such Transferor and
authenticated by or on behalf of the Owner Trustee, substantially in the form of
Exhibit A.
"Certificate Supplement" has the meaning specified in Section 3.06(b).
"Corporate Trust Office" means, with respect to the Delaware Trustee,
the principal corporate trust office of the Delaware Trustee located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 273, P.O. Box 6973, Newark, Delaware 19711, or such
other address as the Delaware Trustee may designate by notice to the
Certificateholders, or the principal corporate trust office of any successor
Delaware Trustee (whose address will be designated by notice from the successor
Delaware Trustee to the Certificateholders); and with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address
as the Owner Trustee may designate by notice to the Certificateholders, or the
principal corporate trust office of any successor Owner Trustee (whose address
will be designated by notice from the successor Owner Trustee to each of the
Certificateholders).
"Co-Trustee" means each of the Owner Trustee and the Delaware Trustee.
"Delaware Trustee" means The Bank of New York (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as Delaware
Trustee under this Agreement, and any successor Delaware Trustee hereunder.
"Expenses" has the meaning specified in Section 7.02.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation.
"Foreclosure Remedy" has the meaning specified in the Indenture.
"Indemnified Parties" has the meaning specified in Section 7.02.
"Indenture" means the Indenture, dated as of August 1, 2001, between
the Issuer and the Indenture Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
under the Indenture, and any successor Indenture Trustee under the Indenture.
"Issuer" means Ford Credit Floorplan Master Owner Trust A, the trust
created by this Agreement acting by and through the Owner Trustee.
"Owner Trustee" means The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement (unless otherwise specified herein), and any successor Owner
Trustee hereunder.
"Percentage Interest" means the portion of the Transferor Interest,
expressed as a percentage, as stated on the face of each Certificate, if
certificated, and otherwise as indicated in the books and records of the Owner
Trustee.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Servicer" means Ford Credit, in its capacity as servicer under the
Transfer and Servicing Agreements and its successors and permitted assigns in
such capacity.
"Supplemental Certificate" has the meaning specified in subsection
3.06(b).
"Transfer and Servicing Agreements" means the Transfer and Servicing
Agreements, each of which is dated as of August 1, 2001, among the Issuer, the
applicable Transferor and the Servicer, as the same may be amended, supplemented
or otherwise modified from time to time.
"Transferor" means each of Ford Credit Floorplan Corporation, a
Delaware corporation, and Ford Credit Floorplan LLC, a Delaware limited
liability company, in its capacity as transferor hereunder and its successors
and permitted assigns in such capacity.
"Transferor Interest" has the meaning specified in subsection 3.06(a).
"Transferor Interest Account" has the meaning specified in Section
3A.01.
"Trust Estate" means all right, title and interest of the Owner Trustee
in and to the property and rights assigned to the Owner Trustee pursuant to
Section 2.05 hereof and Section 2.01 of the Transfer and Servicing Agreements,
all monies, securities, instruments and other property on deposit from time to
time in the Collection Account, the Excess Funding Account and the Series
Accounts and all other property of the Issuer from time to time, including any
rights of the Owner Trustee pursuant to the Transfer and Servicing Agreements.
"Trust Termination Date" has the meaning specified in Section 8.01.
Section 1.02. Other Definitional Provisions.
(a) All terms used herein and not otherwise defined herein have meanings
ascribed to them in the Transfer and Servicing Agreements or the Indenture, as
applicable, and, with respect to any Series, the related Indenture Supplement.
(b) All terms defined in this Agreement have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, have the respective meanings given to them under
generally accepted accounting principles or regulatory accounting principles, as
applicable and as in effect on the date of this Agreement. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory accounting principles in
the United States, the definitions contained in this Agreement or in any such
certificate or other document control.
(d) Any reference to each Rating Agency only applies to any specific rating
agency if such rating agency is then rating any outstanding Series.
(e) Unless otherwise specified, references to any dollar amount on any
particular date means such amount at the close of business on such day.
(f) The words "hereof," "herein" and "hereunder" and words of similar import
when used in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. References to any subsection, Section,
Schedule or Exhibit are references to subsections, Sections, Schedules and
Exhibits in or to this Agreement, unless otherwise specified. The term
"including" means "including without limitation."
ARTICLE II
ORGANIZATION
Section 2.01. Name.
The trust created hereby, referred to herein as the Issuer, is to be
known as "Ford Credit Floorplan Master Owner Trust A," in which name the Owner
Trustee may conduct the business of the Issuer, make and execute contracts and
other instruments on behalf of the Issuer and ▇▇▇ and be sued on behalf of the
Issuer.
Section 2.02. Offices.
The Delaware office of the Issuer will be in care of the Delaware
Trustee at the Corporate Trust Office of the Delaware Trustee or at such other
address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Indenture Trustee and the Certificateholders. The New York
office of the Issuer will be in care of the Owner Trustee at the Corporate Trust
Office of the Owner Trustee or at such other address in the State of New York as
the Owner Trustee may designate by written notice to the Indenture Trustee and
the Certificateholders.
Section 2.03. Purpose and Powers.
The purpose of the Issuer is, and the Issuer has the power and
authority, to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement and to sell the Notes and the Certificates
upon the written order of the related Transferor;
(ii) with the proceeds of the sale of the Notes and the Certificates, to pay
the organizational, start-up and transactional expenses of the Issuer,
to acquire the Receivables and to pay the Transferors the amounts owed
pursuant to Section 2.01 of each of the Transfer and Servicing
Agreements;
(iii) to assign, grant, pledge and mortgage the Trust Estate to the Indenture
Trustee pursuant to the Indenture and to hold, manage and distribute to
the Transferors pursuant to the terms of this Agreement and the
Transaction Documents any portion of the Trust Estate released from the
lien of, and remitted to the Issuer pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Transaction
Documents to which it is to be a party;
(v) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to engage in such
other activities as are required in connection with conservation of the
Trust Estate and the making of payments to the Noteholders and
distributions to the Certificateholders.
The Issuer may not engage in any activity other than in connection with
the foregoing or other than as required or authorized by the terms of this
Agreement or the other Transaction Documents.
Section 2.04. Appointment of Owner Trustee.
The Transferors hereby appoint the Owner Trustee as trustee of the
Issuer effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
Section 2.04.A Appointment of Delaware Trustee.
The Delaware Trustee is appointed to serve as the trustee of the Issuer
in the State of Delaware for the sole and limited purpose of satisfying the
requirement of Section 3807 of the Delaware Business Trust Statute that the
Issuer have at least one trustee with a principal place of business in Delaware.
It is understood and agreed by the parties hereto and by the Certificateholders
that the Delaware Trustee has none of the duties or liabilities of the Owner
Trustee. The duties of the Delaware Trustee are limited to (a) accepting legal
process served on the Issuer in the State of Delaware and (b) executing and
filing any certificates with the Secretary of State of the State of Delaware
that the Delaware Trustee is required to execute and file pursuant to Section
3811 of the Delaware Business Trust Statute. The Delaware Trustee shall provide
prompt notice to the Owner Trustee of its performance of any such acts. The
Delaware Trustee shall take such action or refrain from taking such action under
this Agreement as it may be directed by Certificateholders representing an
aggregate Percentage Interest of at least 51%, in accordance with Section 5.03.
The parties to this Agreement and the Certificateholders understand and agree
that the Delaware Trustee is not entitled to exercise any powers, nor has the
Delaware Trustee any of the duties and liabilities, of the Owner Trustee. The
Delaware Trustee is not liable for the acts or omissions of the Owner Trustee,
the Transferors, the Certificateholders or the Issuer. To the extent that, at
law or in equity, the Delaware Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Issuer or to the Certificateholders, it
is hereby understood and agreed by the other parties hereto and by the
Certificateholders that such duties and liabilities are replaced by the duties
and liabilities of the Delaware Trustee expressly set forth in this Agreement.
The Delaware Trustee owes no fiduciary or other duties to the Issuer, the
Transferors or the Certificateholders except as expressly provided for in this
Agreement.
Section 2.05. Initial Capital Contribution of Trust Estate.
As of June 29, 2001, each Transferor sold, assigned, transferred,
conveyed and set over to the Owner Trustee the sum of $0.50. The Owner Trustee
hereby acknowledges receipt in trust from the Transferors, as of such date, of
the foregoing contribution, which constitutes the initial Trust Estate and will
be held by the Owner Trustee. The Transferors will pay organizational expenses
of the Issuer as they may arise or will, upon the request of the Owner Trustee
or the Delaware Trustee, promptly reimburse the Owner Trustee or the Delaware
Trustee, as applicable, for any such expenses paid by the Owner Trustee or the
Delaware Trustee.
Section 2.06. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Trust Estate in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Transferors, subject to the obligations of the Issuer under the
Transaction Documents to which it is a party. It is the intention of the parties
hereto that (i) the Issuer constitute a statutory business trust under the laws
of the State of Delaware and that this Agreement constitute the governing
instrument of such business trust and (ii) for income and franchise tax
purposes, the Issuer will be treated as a security device and disregarded as an
entity and each of its assets treated as owned by the Transferor that
transferred such asset to the Issuer. The parties hereto agree that they will
take no action contrary to the foregoing intention. Effective as of the date
hereof, the Owner Trustee has all rights, powers and duties set forth herein
with respect to accomplishing the purposes of the Issuer. Together with the
Delaware Trustee, the Owner Trustee has filed the Certificate of Trust with the
Secretary of State of the State of Delaware.
Section 2.07. Title to Trust Property.
Legal title to all the Trust Estate will be vested at all times in the
Issuer as a separate legal entity, except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, in which case it will be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.08. Situs of Trust.
The Issuer will be located and administered in the State of Delaware.
All bank accounts maintained by the Owner Trustee on behalf of the Issuer will
be located in the State of Delaware or the State of New York. The Issuer will
not have any employees in any state other than Delaware; provided, however, that
nothing herein will restrict or prohibit The Bank of New York, in its capacity
as Owner Trustee or otherwise, or The Bank of New York (Delaware), in its
capacity as Delaware Trustee or otherwise, from having employees within or
without the State of Delaware. Payments will be received by the Issuer only in
the State of Delaware or the State of New York, and payments will be made by the
Issuer only from Delaware or New York. The principal office of the Issuer will
be at the Corporate Trust Office of the Owner Trustee.
Section 2.09. Representations and Warranties of Transferors.
Each Transferor hereby represents and warrants to the Owner Trustee and
the Delaware Trustee that:
(a) Such Transferor is a Delaware corporation or limited liability company, as
applicable, duly organized and validly existing in good standing under the laws
of the State of Delaware and has full corporate or company power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and to execute,
deliver and perform its obligations under this Agreement and any other document
related hereto to which it is a party and to perform its obligations as
contemplated hereby and thereby.
(b) Such Transferor is duly qualified to do business and is in good standing (or
is exempt from such requirement) in any state required in order to conduct its
business, and has obtained all necessary licenses and approvals with respect to
such Transferor, in each jurisdiction where failure to so qualify or to obtain
such licenses and approvals would have a material adverse effect on its ability
to perform its obligations under this Agreement or any other document related
hereto to which such Transferor is a party.
(c) The execution and delivery of this Agreement and the consummation of the
transactions provided for in this Agreement and in the other Transaction
Documents to which such Transferor is a party have been duly authorized by it by
all necessary corporate or other action on its part and each of this Agreement
and the other Transaction Documents to which it is a party will remain, from the
time of its execution, an official record of such Transferor. Such Transferor
has the power and authority to assign the property to be assigned to and
deposited with the Issuer pursuant to Section 2.05 of this Agreement and Section
2.01 of the applicable Transfer and Servicing Agreement.
(d) The execution and delivery of this Agreement, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which such Transferor is a party or by
which it or any of its properties are bound (other than violations of such
indentures, contracts, agreements, mortgages, deeds of trust or other
instruments which, individually or in the aggregate, would not have a material
adverse effect on its ability to perform its obligations under this Agreement).
(e) The execution and delivery of this Agreement, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with or violate any Requirements of Law applicable to
such Transferor.
(f) There are no proceedings pending or, to the best knowledge of such
Transferor, proceedings threatened or investigations pending or threatened
against it before or by any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality having jurisdiction over it (i)
asserting the invalidity of any of the Transaction Documents to which it is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Documents to which it is a party, (iii)
seeking any determination or ruling that, in the reasonable judgment of such
Transferor, would materially and adversely affect the performance by it of its
obligations under the Transaction Documents to which it is a party or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of the Transaction Documents to which it is a
party.
Section 2.10. Liability of Certificateholders.
The holders of the Certificates and any Supplemental Certificates will
not be personally liable for the debts or other obligations of the Issuer except
to the extent provided otherwise in the Transaction Documents.
ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership.
Upon the formation of the Issuer by the contribution pursuant to
Section 2.05, the Transferors will be the sole beneficial owners of the Issuer.
Section 3.02. Form of Certificates.
(a) A Transferor or any Subsequent Transferor may elect at any time, by written
notice to the Owner Trustee, to have its interest in the Transferor Interest be
(i) an uncertificated interest or (ii) evidenced by a certificate. The
Certificate, if certificated, will be issued in registered form, substantially
in the form of Exhibit A, and will, upon issue, be executed and delivered by
such Transferor to the Owner Trustee for authentication and redelivery as
provided in Section 3.03. If a Transferor or any Subsequent Transferor elects to
have its interest in the Transferor Interest be uncertificated, it will deliver
to the Owner Trustee for cancellation any Certificate or Supplemental
Certificate, as the case may be, previously issued and the Owner Trustee will
make appropriate entries in its books and records to evidence such
uncertificated interest in the Transferor Interest. The Owner Trustee will keep
with the books and records of the Issuer a register, in book-entry form, of each
Person owning any uncertificated interest in the Transferor Interest. The
Certificates, if in certificated form, will consist of two certificates that
together initially will represent the entire Transferor Interest.
(b) The Certificates will be executed by manual or facsimile signature of the
Owner Trustee. The Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Issuer, will, when duly authenticated pursuant to
Section 3.03, be validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of the Certificates or did
not hold such offices at the date of authentication and delivery of the
Certificates.
Section 3.03. Authentication of Certificates.
On the Closing Date, the Owner Trustee will authenticate and deliver
the Certificates, if certificated, upon the written order of the related
Transferor, signed by its chairman of the board, its president, any vice
president, secretary, any assistant treasurer or any authorized signer, without
further corporate or other action by such Transferor. No Certificate will be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by or on behalf of the
Owner Trustee by the manual signature of a duly authorized signer, and such
certificate upon any Certificate will be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. Each Certificate will be dated the date of its authentication.
Section 3.04. Restrictions on Transfer.
To the fullest extent permitted by applicable law, the Certificates (or
any interest therein) may not be sold, transferred, assigned, participated,
pledged or otherwise disposed of to any Person; provided, however, that a
Certificate (or any interest therein) may be sold, transferred, assigned,
participated, pledged or otherwise disposed of if (i) the transferor thereof has
provided the Owner Trustee and the Indenture Trustee with a Tax Opinion and (ii)
the Rating Agency Condition has been satisfied, in each case relating to such
sale, transfer, assignment, participation, pledge or other disposition.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.
If (a) any mutilated Certificate is surrendered to the Owner Trustee,
or the Owner Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Owner
Trustee such security or indemnity as it may require to hold it harmless, then,
in the absence of notice to the Owner Trustee that such Certificate has been
acquired by a protected purchaser, the Owner Trustee on behalf of the Issuer
will execute, and the Owner Trustee will authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
replacement Certificate of like tenor (including the same date of issuance) and
Percentage Interest. In connection with the issuance of any replacement
Certificate under this Section, the Owner Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses connected therewith. Every
replacement Certificate issued pursuant to this Section in replacement of any
mutilated, destroyed, lost or stolen Certificate will constitute complete and
indefeasible evidence of an ownership interest in the Issuer, as if originally
issued, whether or not the mutilated, destroyed, lost or stolen Certificate is
found at any time.
Section 3.06. Issuance of New Certificates.
(a) Taken together, the Certificates represent a 100% Percentage Interest in the
beneficial ownership of the Trust Estate not allocated to the Noteholders'
Collateral pursuant to the Transaction Documents. The beneficial ownership of
the Trust Estate includes the right to receive Collections with respect to the
Receivables and other amounts at the times and in the amounts specified in any
Indenture Supplement to be paid to the Transferors on behalf of all Holders of
the Certificates (the "Transferor Interest") and the other Trust Assets subject
to the lien of the Indenture; provided, however, that such rights with respect
to the Collection Account, the Excess Funding Account, any Series Account or any
Series Enhancement are subject to the lien of the Notes and are limited as
specifically provided in the Transfer and Servicing Agreements, the Indenture or
any Indenture Supplement.
(b) In connection with the issuance of a new Series of Notes, the designation of
a Subsequent Transferor pursuant to Section 4.05 of the Transfer and Servicing
Agreements, if applicable, or at any other time, a Transferor may surrender its
certificated or uncertificated Certificate to the Owner Trustee in exchange for
a newly issued certificated or uncertificated Certificate and a second
certificated or uncertificated interest in the Transferor Interest (a
"Supplemental Certificate"), the terms of which will be defined in a supplement
(a "Certificate Supplement") to this Agreement (which Certificate Supplement
will be subject to Section 10.01 to the extent that it amends any of the terms
of this Agreement), to be delivered to or upon the order of such Transferor (or
the Holder of a Supplemental Certificate, in the case of the transfer and
exchange thereof). Notwithstanding anything contained herein, any exchange of a
certificated Certificate for an uncertificated Certificate or an uncertificated
Certificate for a certificated Certificate by the Holder of such Certificate
will not be subject to the conditions set forth in clauses (i) through (vi)
below. Except as set forth in the immediately preceding sentence, the issuance
of any such Supplemental Certificate will be subject to satisfaction of the
following conditions:
(i) on or before the fifth day immediately preceding the Certificate
surrender and exchange, the requesting Transferor has given the Owner
Trustee, the Servicer, the Indenture Trustee and each Rating Agency
notice (unless such notice requirement is otherwise waived) of such
Certificate surrender and exchange;
(ii) such Transferor has delivered to the Owner Trustee and the Indenture
Trustee any related Certificate Supplement in form satisfactory to the
Owner Trustee and the Indenture Trustee, executed by each party to this
Agreement (other than the Owner Trustee, the Indenture Trustee and the
Holder of the Supplemental Certificate, if any);
(iii) such surrender and exchange will not result in any Adverse Effect and
such Transferor has delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate, dated the date of such surrender and
exchange, to the effect that such Transferor reasonably believes that
such surrender and exchange will not, based on the facts known to such
officer at the time of such certification, have an Adverse Effect;
(iv) such Transferor has delivered to the Owner Trustee and Indenture
Trustee (with a copy to each Rating Agency) a Tax Opinion, dated the
date of such surrender and exchange with respect to such surrender and
exchange; and
(v) the Net Adjusted Pool Balance as of the date of such surrender and
exchange is greater than the Required Pool Balance as of the date of
such surrender and exchange after giving effect to such surrender and
exchange.
(c) Any Supplemental Certificate held by any Person may be transferred or
exchanged only upon the delivery to the Trustee of a Tax Opinion dated as of the
date of such transfer or exchange, as the case may be, with respect to such
transfer or exchange.
ARTICLE III A
TRANSFEROR INTEREST ACCOUNT
Section 3A.01. Establishment of Transferor Interest Account.
The Owner Trustee will establish and maintain a Qualified Account in
the name of "Ford Credit Floorplan Corporation and Ford Credit Floorplan LLC for
the benefit of the Certificateholders" (or such other name as the Transferors
may direct in writing) to be designated as the "Transferor Interest Account."
The Transferor Interest Account will be established and maintained initially
with the Corporate Trust Office of The Bank of New York. The Transferor Interest
Account will be established and maintained pursuant to an account agreement that
specifies New York law as the governing law.
Section 3A.02. Distribution.
All monies distributed to the Owner Trustee by the Indenture Trustee
from time to time for distribution to the Certificateholders will be deposited
in the Transferor Interest Account and the Transferors, in turn, will cause
distributions to be made therefrom to the Certificateholders at such times and
in such amounts as the Transferors mutually agree.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to Certain
Matters.
With respect to the following matters, unless otherwise instructed by
Certificateholders representing at least 51% of the Percentage Interest of the
Transferor Interest, the Owner Trustee need not take action unless at least
thirty (30) days before the taking of such action the Owner Trustee has given
notice to each of the Certificateholders of:
(a) the initiation of any claim or lawsuit by the Issuer or the Owner Trustee
(other than an action to collect on the Trust Estate) and the settlement of any
action, claim or lawsuit brought by or against the Issuer or the Owner Trustee
(other than an action to collect on the Trust Estate);
(b) the election by the Issuer to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Delaware Business
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in circumstances
where the consent of any Noteholder is not required and such amendment
materially adversely affects the interest of the Certificateholders taken as a
whole;
(e) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
that would not materially adversely affect the interests of the
Certificateholders taken as a whole; or
(f) the appointment pursuant to the Indenture of a replacement or successor Note
Registrar or Indenture Trustee, or the consent to the assignment by the Note
Registrar, Administrator or Indenture Trustee of its obligations under the
Indenture.
Section 4.02. Restrictions on Power.
The Owner Trustee will not be required to take or refrain from taking
any action if such action or inaction is contrary to any obligation of the Owner
Trustee under any of the Transaction Documents or contrary to Section 2.03.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority.
The Owner Trustee is authorized and directed to execute and deliver on
behalf of the Issuer the Transaction Documents and each certificate or other
document attached as an exhibit to or contemplated by the Transaction Documents
to which the Issuer is to be a party, or any amendment thereto or other
agreement, in each case, in such form as the Transferors approve as evidenced
conclusively by the Owner Trustee's execution thereof and the Transferors'
execution of the related documents. The Owner Trustee is further authorized from
time to time to take such action on behalf of the Issuer as is permitted by this
Agreement and the other Transaction Documents and which Certificateholders
representing at least 51% of the Percentage Interest of the Transferor Interest
or the Administrator directs in writing with respect to the Transaction
Documents.
Section 5.02. General Duties.
Subject to Section 4.01 hereof, it is the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Issuer is a party and to administer the Issuer in the interest of the
Certificateholders taken as a whole, subject to the Transaction Documents and in
accordance with the provisions of this Agreement. Notwithstanding anything else
to the contrary in this Agreement, the Owner Trustee will be deemed to have
discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee or the Issuer hereunder or under any other Transaction Document,
and the Owner Trustee will not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
Except as expressly provided in the Transaction Documents, the Owner Trustee has
no obligation to administer, service or collect the Receivables or to maintain,
monitor or otherwise supervise the administration, servicing or collection of
the Receivables.
Section 5.03. Action upon Instruction.
(a) The Owner Trustee will not be required to take any action hereunder or under
any other Transaction Document if the Owner Trustee reasonably determines, or is
advised by counsel, that such action is likely to result in liability on the
part of the Owner Trustee or is contrary to the terms hereof or of any other
Transaction Document or is otherwise contrary to law.
(b) Whenever the Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Agreement or any other
Transaction Document, the Owner Trustee will promptly give notice (in such form
as is appropriate under the circumstances) to each of the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction received from Certificateholders representing at least 51% of the
Percentage Interest of the Transferor Interest, the Owner Trustee will not be
liable on account of such action to any Person. If the Owner Trustee does not
receive appropriate instruction within ten (10) days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but will be under no duty to, take
or refrain from taking such action, not in violation of this Agreement or the
other Transaction Documents, as it deems to be in the best interest of the
Transferors taken as a whole, and will have no liability to any Person for such
action or inaction.
(c) If the Owner Trustee is unsure as to the application of any provision of
this Agreement or any other Transaction Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or if this Agreement permits any determination by
the Owner Trustee or is silent or is incomplete as to the course of action that
the Owner Trustee is required to take with respect to a particular set of facts,
the Owner Trustee may give notice (in such form as is appropriate under the
circumstances) to each of the Certificateholders requesting instruction and, to
the extent that the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received from Certificateholders
representing at least 51% of the Percentage Interest of the Transferor Interest,
the Owner Trustee will not be liable, on account of such action or inaction, to
any Person. If the Owner Trustee does not receive appropriate instruction within
ten (10) days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but will be under no duty to, take or refrain from taking
such action, not in violation of this Agreement or the other Transaction
Documents, as it deems to be in the best interest of the Transferors taken as a
whole, and will have no liability to any Person for such action or inaction.
Section 5.04. No Duties Except as Specified in this Agreement or in
Instructions.
The Owner Trustee has no duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with the
Issuer or the Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Owner Trustee is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 5.03; and no implied duties or obligations are to be
read into this Agreement or any other Transaction Document against the Owner
Trustee. The Owner Trustee has no responsibility for any filing or recording,
including filing any financing or continuation statement in any public office at
any time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to prepare or file any Commission
filing for the Issuer or to record this Agreement or any other Transaction
Document. The Bank of New York nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Trust Estate that result from actions by, or claims against,
the Owner Trustee that are not related to the ownership or the administration of
the Trust Estate.
Section 5.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee may not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except (a) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (b) in accordance with the other Transaction
Documents to which the Issuer or the Owner Trustee is a party and (c) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03. Neither the Transferors nor the Certificateholders may
direct the Owner Trustee to take any action that would violate the provisions of
this Section 5.05.
Section 5.06. Restrictions.
The Owner Trustee may not take any action (i) that would violate the
purposes of the Issuer set forth in Section 2.03 or (ii) that, to the actual
knowledge of the Owner Trustee, would result in the Issuer becoming an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. Neither the Transferors nor the Certificateholders
may direct the Owner Trustee to take action that would violate the provisions of
this Section 5.06.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE AND THE DELAWARE TRUSTEE
Section 6.01. Acceptance of Trusts and Duties.
Each of the Owner Trustee and the Delaware Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such
trusts, but only upon the terms of this Agreement. Each Co-Trustee also agrees
to disburse all monies actually received by it constituting part of the Trust
Estate upon the terms of this Agreement and the other Transaction Documents to
which such Co-Trustee is a party. Each Co-Trustee shall not be answerable or
accountable hereunder or under any other Transaction Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 6.03 expressly made by such Co-Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Co-Trustees will not be liable for any error of judgment made by a
responsible officer of either of the Co-Trustees;
(b) the Co-Trustees will not be liable with respect to any action taken or
omitted to be taken by them in accordance with the instructions of the
Administrator or Certificateholders representing at least 51% of the Percentage
Interest of the Transferor Interest;
(c) no provision of this Agreement or any other Transaction Document will
require the Co-Trustees to expend or risk funds or otherwise incur any financial
liability in the performance of any of their rights or powers hereunder or under
any other Transaction Document, if the Co-Trustees have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to them;
(d) under no circumstances will the Co-Trustees be liable for indebtedness
evidenced by or arising under any of the Transaction Documents, including the
principal of and interest on the Notes or amounts distributable on the
Certificates;
(e) the Co-Trustees will not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Transferors
or for the form, character, genuineness, sufficiency, value or validity of any
of the Trust Estate or for or in respect of the validity or sufficiency of the
other Transaction Documents, other than the genuineness of the signature and
countersignature of the Owner Trustee on the certificate of authentication on
the Certificates, and the Co-Trustees will in no event assume or incur any
liability, duty, or obligation to any Noteholder or to the Transferors or to the
Certificateholders, other than as expressly provided for herein or expressly
agreed to in the other Transaction Documents;
(f) the Co-Trustees will not be liable for the default or misconduct of the
Transferors, the Servicer, the Administrator or the Indenture Trustee under any
of the other Transaction Documents or otherwise, and the Co-Trustees will have
no obligation or liability to perform the obligations of the Owner Trustee
hereunder or under the other Transaction Documents that are required to be
performed by the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture or the Servicer under the Transfer and Servicing
Agreements;
(g) the Co-Trustees will be under no obligation to exercise any of the rights or
powers vested in them by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement or
any other Transaction Document, at the request, order or direction of
Certificateholders representing at least 51% of the Percentage Interest of the
Transferor Interest, unless such Certificateholders have offered to the
Co-Trustees security or indemnity satisfactory to them against the costs,
expenses and liabilities that may be incurred by the Co-Trustees therein or
thereby. The right of the Co-Trustees to perform any discretionary act
enumerated in this Agreement or in any other Transaction Document is not to be
construed as a duty, and the Co-Trustees will not be answerable for, other than
the negligence or willful misconduct of either of them in the performance of,
any such act; and
(h) notwithstanding anything contained herein to the contrary, the Delaware
Trustee will not be required to take any action in any jurisdiction other than
in the State of Delaware if the taking of such action (i) requires the
registration with, licensing by or the taking of any other similar action in
respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Delaware
Trustee (other than any registration, licensing or taking of any other similar
action that at the time of such action is in effect or has been taken); (ii)
results in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivisions thereof in existence on the date
hereof other than the State of Delaware becoming payable by the Delaware
Trustee; or (iii) subjects the Delaware Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from
acts unrelated to the consummation of the transactions by the Delaware Trustee
contemplated hereby. The Delaware Trustee will be entitled to obtain advice of
counsel (which advice will be an expense of the Transferors) to determine
whether any action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
If said counsel advises the Delaware Trustee that such action will result in
such consequences, Certificateholders representing at least 51% of the
Percentage Interest of the Transferor Interst will appoint an additional trustee
pursuant to Section 9.05 hereof to proceed with such action.
Section 6.02. Furnishing of Documents.
The Owner Trustee will furnish to each of the Transferors, the
Certificateholders and the Indenture Trustee, promptly upon written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
Section 6.03. Representations and Warranties of the Co-Trustees.
(a) The Owner Trustee hereby represents and warrants to the Transferors and
each Certificateholder that:
(i) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of New York. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal, New York or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default under
its charter documents or by-laws or, any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
(b) The Delaware Trustee hereby represents and warrants to the Transferors
and each Certificateholder that:
(i) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Delaware Trustee or any
judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
Section 6.04. Reliance; Advice of Counsel.
(a) The Co-Trustees may rely upon, will be protected in relying upon, and will
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond, or
other document or paper (whether in its original or facsimile form) reasonably
believed by them to be genuine and reasonably believed by them to be signed by
the proper party or parties. The Co-Trustees may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein, the
Co-Trustees may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officers
of the relevant party, as to such fact or matter, and such certificate will
constitute full protection to the Co-Trustees for any action taken or omitted to
be taken by them in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of their duties and obligations under this Agreement or the other
Transaction Documents, the Co-Trustees (i) may act directly or through their
agents or attorneys pursuant to agreements entered into with any of them, and
the Co-Trustees will not be liable for the conduct or misconduct of such agents
or attorneys if such agents or attorneys are selected by the Co-Trustees with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled Persons to be selected with reasonable care and employed by them. The
Co-Trustees will not be liable for anything done, suffered or omitted in good
faith by them in accordance with the written opinion or written advice of any
such counsel, accountants or other such Persons and not contrary to this
Agreement or any other Transaction Document.
Section 6.05. Not Acting in Individual Capacity.
Except as expressly provided in this Article VI, in accepting the
trusts hereby created The Bank of New York acts solely as Owner Trustee
hereunder and The Bank of New York (Delaware) acts solely as Delaware Trustee
hereunder and not in their individual capacities, and all Persons having any
claim against the Co-Trustees by reason of the transactions contemplated by this
Agreement or any other Transaction Document may look only to the Trust Estate
for payment or satisfaction thereof.
Section 6.06. Co-Trustees Not Liable for Certificates, Notes or Receivables.
The recitals contained herein and in the Certificates (other than the
genuineness of the signature and counter-signature of the Owner Trustee on the
Certificates and the representations and warranties of the Co-Trustees in
Section 6.03) will be taken as the statements of the Transferors, and the
Co-Trustees assume no responsibility for the correctness thereof. The
Co-Trustees make no representations as to the validity or sufficiency of this
Agreement, any other Transaction Document or the Certificates (other than the
genuineness of the signature and countersignature of the Owner Trustee on the
Certificates), the Notes, or of any Receivable or related documents. The Owner
Trustee, the Delaware Trustee, The Bank of New York and The Bank of New York
(Delaware) will at no time have any responsibility or liability for or with
respect to (a) the legality, validity and enforceability of the Receivables; or
(b) unless otherwise required in accordance with the terms of the Transaction
Documents, the perfection and priority of any security interest in the
Receivables or the maintenance of any such perfection and priority; or (c) for
or with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to the Noteholders under the Indenture,
including, without limitation, the existence, condition and ownership of the
Receivables; the existence and contents of the Receivables on any computer or
other record thereof; the validity of the assignment of the Receivables to the
Issuer or of any intervening assignment; the completeness of the Receivables;
the performance or enforcement of the Receivables; the compliance by the
Transferors with any warranty or representation made under any Transaction
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Servicer or the Indenture
Trustee taken in the name of the Owner Trustee or the Delaware Trustee;
provided, however, that if the Owner Trustee is appointed by the Administrator
to perform the actions specified in clause (b) of this sentence and the Owner
Trustee accepts such appointment, then with respect to the actions specified in
such clause (b), this sentence will have no effect with regard to the Owner
Trustee.
Section 6.07. Co-Trustees May Own Notes.
The Bank of New York and The Bank of New York (Delaware), in their
individual or any other capacities may become the owner or pledgee of Notes and
may deal with the Transferors, the Administrator, the Servicer and the Indenture
Trustee in banking transactions with the same rights as they would have if they
were not the Owner Trustee and the Delaware Trustee, respectively.
ARTICLE VII
COMPENSATION AND INDEMNITY OF CO-TRUSTEES
Section 7.01. Co-Trustees' Fees and Expenses.
The Co-Trustees will receive as compensation for their services
hereunder such fees as have been separately agreed upon before the date hereof
between each of the Transferors and the Co-Trustees, and the Co-Trustees will be
entitled to be reimbursed, jointly and severally, by the Transferors for their
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Co-Trustees may employ in connection with the exercise and performance of
their rights and their duties hereunder; provided, however, that the
Co-Trustees' rights to enforce such obligation is subject to the provisions of
Section 10.08. Such amounts will be treated for tax purposes as having been
contributed to the Issuer by the respective Transferors and the tax deduction
for such amounts will be allocated to the respective Transferors in accordance
with the actual payments made by each Transferor.
Section 7.02. Indemnification.
The Transferors will be liable, jointly and severally, as primary
obligor for, and will indemnify the Co-Trustees, The Bank of New York, The Bank
of New York (Delaware) and their respective successors, assigns, agents,
employees and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Co-Trustees, The Bank of New York, The Bank of New York
(Delaware) or any Indemnified Party in any way relating to or arising out of
this Agreement, the other Transaction Documents, the Trust Estate, the
acceptance and administration of the Trust Estate or the action or inaction of
the Owner Trustee hereunder; provided that the Transferors will not be liable
for or required to indemnify any Indemnified Party from and against Expenses
arising or resulting from (i) the Indemnified Party's own willful misconduct,
bad faith or negligence, (ii) the inaccuracy of any representation or warranty
contained in Section 6.03 made by the Indemnified Party or (iii) taxes imposed
on The Bank of New York or The Bank of New York (Delaware) in connection with
the fees earned by either of them pursuant to this Agreement. An Indemnified
Party's right to enforce such obligation is subject to the provisions of Section
10.08. The indemnities contained in this Section will survive the resignation or
removal of the Co-Trustees or the termination of this Agreement. In the event of
any claim, action or proceeding for which indemnity is sought pursuant to this
Section, the Co-Trustees' choice of legal counsel will be subject to the
approval of the Transferors, which approval may not be unreasonably withheld.
Section 7.03. Payments to Co-Trustees.
Any amounts paid to the Co-Trustees pursuant to this Article VII will
be deemed not to be a part of the Trust Estate immediately after such payment.
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement.
The legal existence of the Issuer will terminate upon the earlier of
(i) December 31, 2016 and (ii) at the option of the Transferors, the day
following the day on which the right of all Series of Notes to receive payments
from the Trust Estate has terminated (the "Trust Termination Date"). Any money
or other property held as part of the Trust Estate following such termination
will be distributed to the Transferors. The bankruptcy, liquidation,
dissolution, termination, death or incapacity of either Transferor will not (1)
operate to terminate this Agreement or the legal existence of the Issuer or (2)
entitle either Transferor's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Issuer or Trust Estate or (3) otherwise
affect the rights, obligations and liabilities of the parties hereto. Upon
dissolution of the Issuer, the Owner Trustee will wind up the business and
affairs of the Issuer as required by Section 3808 of the Delaware Business Trust
Statute.
Except as provided in this Section 8.01, the Transferors will not be
entitled to revoke or terminate the legal existence of the Issuer or this
Agreement.
Upon the winding up of the Issuer, this Agreement (other than Article
VII) will terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES;
SUCCESSOR DELAWARE TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee and Delaware
Trustee.
(a) The Owner Trustee will at all times (i) be a corporation authorized to
exercise corporate trust powers; (ii) have a combined capital and surplus of at
least $50,000,000 and be subject to supervision or examination by federal or
state authorities; and (iii) have (or have a parent that has) a rating of at
least Baa3 by Moody's, at least BBB- by Standard & Poor's and, if rated by
Fitch, at least BBB- by Fitch, or be otherwise satisfactory to each Rating
Agency. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation will be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Owner Trustee ceases to be eligible in accordance with the
provisions of this Section, the Owner Trustee will resign immediately in the
manner and with the effect specified in Section 9.02.
(b) The Delaware Trustee will at all time be a corporation satisfying the
provisions of Section 3807(a) of the Delaware Business Trust Statute. If at any
time the Delaware Trustee ceases to be eligible in accordance with the
provisions of this Section, the Delaware Trustee will resign immediately in the
manner and with the effect specified in Section 9.02.
Section 9.02. Resignation or Removal of Owner Trustee or Delaware Trustee.
(a) The Owner Trustee or the Delaware Trustee may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Administrator. Upon receiving such notice of resignation, the Administrator
will promptly appoint a successor Owner Trustee or the Delaware Trustee, as
applicable, by written instrument, in duplicate, one copy of which instrument
will be delivered to the resigning Owner Trustee or the Delaware Trustee and one
copy to the successor Owner Trustee or the Delaware Trustee. If no successor
Owner Trustee or the Delaware Trustee has been appointed and accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee or the Delaware Trustee may, at the expense of the
Transferors, petition any court of competent jurisdiction for the appointment of
a successor Owner Trustee or the Delaware Trustee, as applicable, provided,
however, that such right to appoint or to petition for the appointment of any
such successor will in no event relieve the resigning Owner Trustee or the
Delaware Trustee from any obligations otherwise imposed on it under the
Transaction Documents until such successor has in fact assumed such appointment.
(b) If at any time a Co-Trustee ceases to be eligible in accordance with the
provisions of Section 9.01, or if a Co-Trustee resigns pursuant to this Section
9.02, or if a Co-Trustee fails to resign after written request therefor by the
Administrator, or if at any time a Co-Trustee is legally unable to act, or is
adjudged bankrupt or insolvent, or a receiver of a Co-Trustee or of its property
is appointed, or any public officer takes charge or control of a Co-Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may, but will not be required to, remove
such Co-Trustee or may remove both Co-Trustees. If the Administrator removes one
or both of the Co-Trustees under the authority of the immediately preceding
sentence, the Administrator will promptly (i) appoint a successor Co-Trustee or
Co-Trustees, as applicable, by written instrument, in duplicate, one copy of
which instrument will be delivered to the outgoing Co-Trustee or Co-Trustees, as
applicable, so removed and one copy to the successor Co-Trustee or Co-Trustees,
as applicable, and (ii) pay all fees owed to the outgoing Co-Trustee or
Co-Trustees, as applicable.
(c) Any resignation or removal of a Co-Trustee and appointment of a successor
Co-Trustee or Co-Trustees pursuant to any of the provisions of this Section will
not become effective until acceptance of appointment by the successor Co-Trustee
or Co-Trustees pursuant to Section 9.03 and payment of all fees and expenses
owed to the outgoing Co-Trustee or Co-Trustees and the filing of a certificate
of amendment to the Certificate of Trust if required by the Delaware Business
Trust Statute. The Administrator will provide notice of such resignation or
removal of the Co-Trustee or Co-Trustees to any remaining Co-Trustee and to each
Rating Agency.
Section 9.03. Successor Co-Trustees.
(a) Any successor Co-Trustee appointed pursuant to Section 9.02 will execute,
acknowledge and deliver to the Administrator and to its predecessor Co-Trustee
an instrument accepting such appointment under this Agreement. Upon the
resignation or removal of the predecessor Co-Trustee becoming effective pursuant
to Section 9.02 such successor Co-Trustee, without any further act, deed or
conveyance, will become fully vested with all the rights, powers, duties, and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee or Delaware Trustee, as applicable. The
predecessor Co-Trustee will, upon payment of its fees and expenses, deliver to
the successor Co-Trustee all documents and statements and monies held by it
under this Agreement, and the Administrator and the predecessor Co-Trustee will
execute and deliver such instruments and do such other things as are reasonably
required for fully and certainly vesting and confirming in the successor
Co-Trustee all such rights, powers, duties, and obligations.
(b) No successor Co-Trustee may accept appointment as provided in this Section,
unless at the time of such acceptance such successor Co-Trustee is eligible
pursuant to Section 9.01.
(c) Upon acceptance of appointment by a successor Co-Trustee pursuant to this
Section, the Administrator will provide notice of such acceptance of appointment
including the name of such successor Co-Trustee Trustee to each of the
Transferors, the Certificateholders, the Indenture Trustee, the Noteholders, any
remaining Co-Trustee and each Rating Agency. If the Administrator fails to
provide such notice within ten (10) days after acceptance of appointment by the
successor Co-Trustee Trustee, the successor Co-Trustee will cause such notice to
be provided at the expense of the Administrator.
(d) Any successor Delaware Trustee appointed hereunder will prepare, execute and
file an amendment to the Certificate of Trust with the Secretary of State of the
State of Delaware identifying the name and principal place of business of such
successor Delaware Trustee in the State of Delaware.
Section 9.04. Merger or Consolidation of Co-Trustee.
Notwithstanding anything herein to the contrary, any corporation into
which a Co-Trustee is merged or converted or with which it is consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
such Co-Trustee will be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of such Co-Trustee, will be
the successor of such Co-Trustee hereunder without the execution or filing of
any instrument or any further act on the part of any of the parties hereto;
provided that such corporation is required to meet the eligibility requirements
set forth in Section 9.01; and provided, further, that such Co-Trustee (i)
provide notice of such merger or consolidation to each Rating Agency not less
than fifteen (15) days prior to the effective date thereof and (ii) file an
amendment to the Certificate of Trust as required by Section 9.03.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Administrator and
the Owner Trustee acting jointly will have the power and will execute and
deliver all instruments to appoint one or more Persons approved by each of the
Administrator and the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust Estate, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator has not joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone will have the power
to make such appointment. No co-trustee or separate trustee under this Agreement
will be required to meet the terms of eligibility as a successor trustee
pursuant to Section 9.01 and no notice of the appointment of any co-trustee or
separate trustee will be required pursuant to Section 9.03.
Each separate trustee and co-trustee will, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed upon
the Owner Trustee will be conferred upon and exercised or performed by
the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Owner Trustee
is incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties, and obligations (including the
holding of title to the Issuer or any portion thereof in any such
jurisdiction) will be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no trustee appointed under this Section 9.05 will be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-
trustee.
Any notice, request or other writing given to the Owner Trustee will be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee will refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, will be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument will be filed with the Owner Trustee and a
copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
dies, becomes incapable of acting, resigns or is removed, all of its estates,
properties, rights, remedies and trusts will vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
Section 9.06. Compliance with Delaware Business Trust Statute.
Notwithstanding anything herein to the contrary, the Issuer will at all
times have at least one trustee that meets the requirements of Section 3807(a)
of the Delaware Business Trust Statute.
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time, by a written amendment duly
executed and delivered by the Transferors and the Owner Trustee, with the
written consent of the Indenture Trustee, but without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or modifying in
any manner the rights of the Noteholders; provided, however, that such
amendment:
(i) may not, as evidenced by an Officer's Certificate of each Transferor
addressed and delivered to the Owner Trustee and the Indenture Trustee,
materially and adversely affect the interest of any Noteholder or such
Transferor; and
(ii) may not, as evidenced by an Opinion of Counsel addressed and delivered
to the Owner Trustee and the Indenture Trustee, cause the Issuer to be
classified as an association (or a publicly traded partnership) taxable
as a corporation for federal income tax purposes.
(b) Additionally, notwithstanding Section 10.01(a), this Agreement will be
amended by the Transferors and the Owner Trustee without the consent of the
Indenture Trustee or any of the Noteholders to add, modify or eliminate such
provisions as may be necessary or advisable in order to enable all or a portion
of the Issuer (1) to qualify as, and to permit an election to be made to cause
the Issuer to be treated as, a "financial asset securitization investment trust"
as described in the provisions of Section 860L of the Code, and (2) to avoid the
imposition of state or local income or franchise taxes imposed on the Issuer's
property or its income; provided, however, that:
(i) each Transferor delivers to the Indenture Trustee and the Owner Trustee
an Officer's Certificate to the effect that the proposed amendments
meet the requirements set forth in this subsection;
(ii) the Rating Agency Condition has been satisfied; and
(iii) such amendment does not affect the rights, duties or obligations of the
Owner Trustee hereunder.
(c) This Agreement may also be amended from time to time by a written amendment
duly executed and delivered by the Transferors and the Owner Trustee, with the
consent of the Indenture Trustee and the Holders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders; provided, however, that without the consent of all Noteholders, no
such amendment may:
(i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, distributions that are required to be made for the
benefit of the Noteholders; or
(ii) reduce the aforesaid percentage of the Outstanding Amount of the Notes,
the Holders of which are required to consent to any such amendment; and
provided, further, any such amendment will be subject to delivery to the
Indenture Trustee of a Tax Opinion.
(d) Promptly after the execution of any such amendment or consent, the
Transferors will furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each Rating Agency. The Noteholders must
consent to and approve the substance of all proposed amendments and consents,
but they need not consent to and approve in writing the particular form of such
amendment or consent. Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee will cause the filing of such amendment
with the Secretary of State.
(e) The Owner Trustee is entitled to receive, and will be fully protected in
relying upon, an Officer's Certificate of each Transferor or the Administrator
to the effect that the conditions to such Amendment have been satisfied. The
Owner Trustee may, but is not obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
(f) No amendment to this Agreement may be made that affects the rights and
liabilities of the Delaware Trustee without the consent of the Delaware Trustee.
(g) No amendment to this Agreement may be made that affects the Certificate of
Trust without the consent of the Delaware Trustee.
Section 10.02. No Legal Title to Trust Estate in Transferors.
The Transferors do not have legal title to any part of the Trust
Estate. No transfer, by operation of law or otherwise, of any right, title, and
interest of either Transferor to and in its beneficial ownership interest in the
Trust Estate will operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
Section 10.03. Limitations on Rights of Others.
The provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Delaware Trustee, the Transferors, the Certificateholders,
the Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, whether express or
implied, is to be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 10.04. Notices.
Unless otherwise expressly specified or permitted by the terms hereof,
all notices must be in writing and will be sufficiently given if delivered in
person or by overnight courier service at, or sent by facsimile transmission or
other electronic transmission, followed by first class mail, to (i) in the case
of the Owner Trustee at its Corporate Trust Office, Attention: ________________
(facsimile: 212-815-5544), (ii) in the case of the Delaware Trustee at its
Corporate Office, Attention: Corporate Trust Administration (facsimile:
302-283-8279), (iii) in the case of Ford Credit Floorplan Corporation at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary, Office of the
General Counsel (facsimile: 313-248-7613), (iv) in the case of Ford Credit
Floorplan LLC at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary, Office of the General Counsel (facsimile: 313-248-7613), or (v) as to
each other party, at such other address as may be designated by such party in a
written notice to each other party. All notices will be effective on receipt.
Section 10.05. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction will, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 10.06. Separate Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an original,
but all such counterparts will together constitute but one and the same
instrument.
Section 10.07. Successors and Assigns.
All covenants and agreements contained herein are binding upon, and
inure to the benefit of, the Owner Trustee and its successors, the Delaware
Trustee and its successors and the Transferors and their respective successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Transferor will bind the
successors and assigns of such Transferor.
Section 10.08. Nonpetition Covenants.
Notwithstanding any prior termination of the legal existence of the
Issuer or this Agreement, the Owner Trustee (not in its individual capacity but
solely as Owner Trustee) may not at any time with respect to the Issuer or any
Transferor, acquiesce, petition or otherwise invoke or cause the Issuer or such
Transferor to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Issuer or such Transferor
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or such Transferor or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Issuer or such Transferor; provided, however, that this Section is not intended
to preclude any remedy described in Article V of the Indenture.
Section 10.09. No Recourse.
Each of the Transferors by accepting the Certificates acknowledges that
the Certificates do not represent interests in or obligations of the Servicer,
the Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture, except as expressly provided in
the Transaction Documents.
Section 10.10. Headings.
The headings of the various Articles and Sections herein are for
convenience of reference only and are not intended to define or limit any of the
terms or provisions hereof.
Section 10.11. Governing Law.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER ARE TO BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Transferor Payment Obligation.
The Transferors are jointly and severally responsible for payment of
the Administrator's fees under the Administration Agreement (to the extent not
paid pursuant to [Section 4.04(a) of the applicable Indenture Supplement]) and
will reimburse the Administrator for all expenses and liabilities of the
Administrator incurred thereunder.
Section 10.13. Acceptance of Terms of Agreement.
THE RECEIPT AND ACCEPTANCE OF A CERTIFICATE BY ANY TRANSFEROR, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY SUCH TRANSFEROR OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT,
AND CONSTITUTE THE AGREEMENT OF THE ISSUER THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT ARE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER AND SUCH
TRANSFEROR.
Section 10.14. Integration of Documents.
This Agreement constitutes the entire agreement of the parties hereto
and thereto with respect to the subject matter hereof and thereof and supersedes
all prior agreements relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the Transferors, the Owner Trustee and the Delaware
Trustee have caused this Trust Agreement to be duly executed by their respective
duly authorized officers, all as of the day and year first above written.
FORD CREDIT FLOORPLAN CORPORATION,
as Transferor
By
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
FORD CREDIT FLOORPLAN LLC,
as Transferor
By
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
THE BANK OF NEW YORK,
as Owner Trustee
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By
---------------------------------
Name:
Title:
Exhibit A
Form of Certificate
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY BE OFFERED
OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. _________ Percentage Interest ___%
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
CERTIFICATE
Evidencing an interest in a trust, the corpus of which consists
primarily of an interest in receivables arising from time to time in connection
with dealer floorplan financing accounts transferred by Ford Credit Floorplan
Corporation, a Delaware corporation, and Ford Credit Floorplan LLC, a Delaware
limited liability company, as transferors (collectively, the "Transferors" and,
individually, a "Transferor").
(Not an interest in or obligation of the Transferors or any affiliate thereof)
This certifies that [FORD CREDIT FLOORPLAN CORPORATION] [FORD CREDIT
FLOORPLAN LLC] is the registered owner of a beneficial ownership interest in the
assets of a trust (the "Trust") subject to the lien of the Noteholders pursuant
to the Indenture, dated as of August 1, 2001 (as amended and supplemented, the
"Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee, and not allocated to the interest of any Holder of a Supplemental
Certificate pursuant to the Amended and Restated Trust Agreement, dated as of
August 1, 2001 (as amended and supplemented, the "Trust Agreement"), among the
Transferors, The Bank of New York, as owner trustee (the "Owner Trustee"), and
The Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee").
The corpus of the Issuer consists of (a) a portfolio of certain receivables (the
"Receivables") arising from time to time in connection with dealer floorplan
financing accounts identified under the Transfer and Servicing Agreements, each
dated as of August 1, 2001 (as amended and supplemented, the "Transfer and
Servicing Agreements"), among the applicable Transferor, Ford Motor Credit
Company, as servicer (the "Servicer"), and the Issuer from time to time (the
"Accounts"), (b) certain Receivables generated under the Accounts from time to
time thereafter, (c) certain funds collected or to be collected from account
holders in respect of the Receivables, (d) all funds which are from time to time
on deposit in the Collection Account and in the Series Accounts, (e) the
benefits of any Series Enhancements issued and to be issued by Series Enhancers
with respect to one or more Series of Notes and (f) all other assets and
interests constituting the Issuer. Although a summary of certain provisions of
the Transfer and Servicing Agreements, the Trust Agreement and the Indenture
(collectively, the "Agreements") is set forth below, this Certificate does not
purport to summarize the Agreements and reference is made to the Agreements for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Owner Trustee. A copy of the Agreements may be requested from the Owner
Trustee by writing to the Owner Trustee at its Corporate Trust Office. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreements.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreements, to which Agreements, as amended and
supplemented from time to time, the Transferor named above by virtue of its
acceptance hereof assents and is bound.
The Receivables consist of receivables that arise from time to time in
connection with the purchase and financing by various retail motor vehicle
dealers of their new and used automobile and light-duty truck inventory.
This Certificate is one of the Certificates representing the ownership
interest in the Transferor Interest, including the right to receive a portion of
the Collections and other amounts at the times and in the amounts specified in
the Indenture. The aggregate interest represented by the Certificates at any
time in the Receivables in the Issuer may not exceed the Transferor Interest at
such time. In addition to the Certificates, (a) Notes will be issued to
investors pursuant to the Indenture, which will represent obligations of the
Issuer, and (b) Supplemental Certificates may be issued pursuant to the Trust
Agreement, which will represent that portion of the Transferor Interest not
allocated to the Transferors. This Certificate represents an interest in the
Collection Account or the Series Accounts, subject to the lien of the Notes and
only as expressly provided in the Agreements, or any Series Enhancements.
Unless otherwise specified in an Indenture Supplement with respect to a
particular Series the Transferors have entered into the Transfer and Servicing
Agreements, and the Certificates representing the Transferor Interest are
issued, with the intention that, for federal, state and local income and
franchise tax purposes, (a) the Notes of each Series that characterized as
indebtedness at the time of their issuance will qualify as indebtedness of the
Transferors secured by the Receivables and (b) the Issuer will not be treated as
an association taxable as a corporation. Each Transferor, by entering into the
applicable Transfer and Servicing Agreement and by the acceptance of this
Certificate, agrees to treat the Notes for federal, state and local income and
franchise tax purposes as indebtedness of such Transferor.
Subject to certain conditions and exceptions specified in the
Agreements, the obligations created by the Agreements and the Issuer created
thereby will terminate upon the earlier of (a) December 31, 2016 and (b) the day
following the day on which the right of all Series of Notes to receive payments
from the Issuer has terminated (the "Trust Termination Date"); provided that the
Transferors have delivered a written notice to the Owner Trustee electing to
terminate the Issuer.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Owner Trustee, by manual signature, this Certificate will not
be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, this Certificate has been duly executed by a duly
authorized officer of the Owner Trustee.
Dated: ____________
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Owner Trustee
By ___________________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Certificates described in the within mentioned Trust
Agreement.
THE BANK OF NEW YORK,
not in its individual capacity but solely as Owner Trustee
By ___________________________________________
Authorized Signatory