FORD CREDIT FLOORPLAN LLC
Transferor
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
Issuer
FORD MOTOR CREDIT COMPANY
Servicer
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TRANSFER AND SERVICING
AGREEMENT
Dated as of August 1, 2001
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Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions........................................................... 1
Section 1.02. Other Definitional Provisions.........................................15
ARTICLE II
TRANSFER OF RECEIVABLES
Section 2.01. Transfer of Receivables...............................................16
Section 2.02. Acceptance by Owner Trustee...........................................19
Section 2.03. Representations and Warranties of Transferor Relating to Itself and
This Agreement........................................................19
Section 2.04. Representations and Warranties of Transferor Relating to Receivables
and Accounts..........................................................22
Section 2.05. Covenants of Transferor...............................................24
Section 2.06. Designation of Additional Accounts....................................26
Section 2.07. Addition of Interests in Other Floorplan Assets.......................28
Section 2.08. Removal of Receivables in Eligible Accounts...........................29
Section 2.09. Removal of Receivables in Ineligible Accounts.........................31
Section 2.10. Transfer of Ineligible Receivables....................................32
Section 2.11. Exchanges of Certain Receivables......................................32
Section 2.12. Treatment of Cash Management Account Deposits and Withdrawals.........32
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to
Servicer..............................................................33
Section 3.02. Servicing Compensation................................................35
Section 3.03. Representations, Warranties and Covenants of Servicer.................36
Section 3.04. Preparation of Distribution Date Statements...........................39
Section 3.05. Annual Servicer's Certificate.........................................39
Section 3.06. Annual Independent Public Accountants' Servicing Report...............39
Section 3.07. Notices to Ford Credit................................................40
Section 3.08. Adjustments...........................................................40
Section 3.09. Reports to Securities and Exchange Commission.........................40
ARTICLE IV
OTHER MATTERS RELATING TO TRANSFEROR
Section 4.01. Liability of Transferor...............................................41
Section 4.02. Merger or Consolidation of, or Assumption of, Obligations of
Transferor............................................................41
Section 4.03. Limitation on Liability of Transferor.................................42
Section 4.04. Transferor Indemnification of Issuer and Trustees.....................42
Section 4.05. Subsequent Transferors................................................43
ARTICLE V
OTHER MATTERS RELATING TO SERVICER
Section 5.01. Liability of Servicer.................................................44
Section 5.02. Merger or Consolidation of, or Assumption of, Obligations of Servicer.44
Section 5.03. Limitation on Liability of Servicer and Others........................45
Section 5.04. Servicer Indemnification of Issuer and Trustees.......................45
Section 5.05. Resignation of Servicer...............................................46
Section 5.06. Access to Certain Documentation and Information Regarding Receivables.46
Section 5.07. Examination of Records................................................47
ARTICLE VI
SERVICER DEFAULTS
Section 6.01. Servicer Defaults.....................................................47
Section 6.02. Indenture Trustee to Act; Appointment of Successor....................50
Section 6.03. Notification to Noteholders...........................................51
ARTICLE VII
TERMINATION
Section 7.01. Termination of Agreement..............................................52
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment; Waiver of Past Defaults....................................52
Section 8.02. Protection of Right, Title and Interest to Trust Assets...............54
Section 8.03. Tax Treatment.........................................................55
Section 8.04. No Petition...........................................................56
Section 8.05. Governing Law.........................................................56
Section 8.06. Notices...............................................................56
Section 8.07. Severability of Provisions............................................57
Section 8.08. Further Assurances....................................................57
Section 8.09. No Waiver; Cumulative Remedies........................................57
Section 8.10. Counterparts..........................................................57
Section 8.11. Third-Party Beneficiaries.............................................57
Section 8.12. Rule 144A Information.................................................58
Section 8.13. Action by Owner Trustee, Delaware Trustee or Indenture Trustee........58
Section 8.14. Merger and Integration................................................58
Section 8.15. Headings..............................................................58
Section 8.16. Limitation of Liability of Owner Trustee..............................58
SCHEDULE AND EXHIBITS
Schedule 1 Account Schedule......................................................1-1
Exhibit A Form of Assignment of Receivables in Additional Accounts..............A-1
Exhibit B Form of Opinion of Counsel regarding Amendments.......................B-1
Exhibit C Form of Opinion of Counsel regarding Additional Accounts..............C-1
Exhibit D Form of Reassignment of Receivables in Redesignated Accounts..........D-1
TRANSFER AND SERVICING AGREEMENT, dated as of August 1, 2001, by and
among FORD CREDIT FLOORPLAN LLC, a Delaware limited liability company ("FCF
LLC"), as Transferor, FORD CREDIT FLOORPLAN MASTER OWNER TRUST A, a Delaware
business trust, as Issuer, and FORD MOTOR CREDIT COMPANY, a Delaware
corporation, as Servicer.
RECITALS
A. The parties hereto desire, among other things, to provide for the
transfer by the Transferor to the Issuer on the first Closing Date and from time
to time thereafter of the Receivables arising in connection with the Accounts
and to provide for the servicing of such Receivables by the Servicer.
B. Such Receivables have been originally purchased by the Transferor
from Ford Credit, as Seller, pursuant to the Receivables Purchase Agreement and,
upon the transfer of such Receivables by the Transferor to the Issuer pursuant
to the terms hereof, will secure the Notes issued by the Issuer from time to
time under the Indenture and the Indenture Supplements.
C. Pursuant to a transfer and servicing agreement among FCF Corp, the
Issuer and the Servicer, FCF Corp has also agreed to transfer to the Issuer
receivables that have been purchased by FCF Corp under a separate receivables
purchase agreement between it and the Seller.
In consideration of the mutual covenants and agreements contained in
this Agreement, 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 will
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.
"Account" means, as of any date of determination, each Initial Account
and, from and after the related Addition Date, each Additional Account and
excluding, from and after the related Redesignation Date, each Redesignated
Account.
"Account Schedule" means the Initial Account Schedule, as the same may
be from time to time supplemented by the Additional Account Schedules, amended
by the Redesignated Account Schedules or otherwise modified.
"Addition Date" has the meaning specified in Section 2.06(c).
"Addition Notice" has the meaning specified in Section 2.06(c).
"Additional Account" means a floorplan financing account established
with a Dealer pursuant to a Floorplan Financing Agreement that is designated
pursuant to Section 2.06(a) or 2.06(b) and identified in the applicable
Additional Account Schedule.
"Additional Account Schedule" has the meaning specified in Section
2.01(e)(iii).
"Additional Cut-Off Date" means, with respect to Additional Accounts,
the day specified in the Addition Notice delivered with respect to such
Additional Accounts pursuant to Section 2.06(c).
"Adjusted Pool Balance" has the meaning specified in the Indenture.
"Adjustment Fees" means the amounts payable by Ford to Ford Credit in
connection with Ford's assignment to Ford Credit under the Sale and Assignment
Agreement of Ford's right to receive amounts payable by a Dealer from time to
time in respect of such Dealer's purchase of New Vehicles manufactured or
distributed by Ford pursuant to the related Sales and Service Agreement.
"Adjustment Payment" has the meaning specified in Section 3.08(a).
"Adverse Effect" means, with respect to any action, an action that (a)
will result in the occurrence of an Amortization Event or an Event of Default or
(b) materially and adversely affects the amount or timing of distributions to be
made to the Noteholders of any Series or Class pursuant to this Agreement, the
Indenture or the related Indenture Supplement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Transfer and Servicing Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Amortization Event" has the meaning specified in the Indenture.
"Assignment" has the meaning specified in Section 2.06(d).
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in The City of New York or the
State of Delaware are authorized or obligated by law, executive order or
governmental decree to be closed.
"Cash Management Account" means, with respect to any Dealer, an account
maintained by such Dealer with Ford Credit, the terms of which are governed by
the Floorplan Financing Guidelines.
"Class" means, with respect to any Series, any one of the classes of
Notes of such Series.
"Closing Date" has, with respect to any Series, the meaning specified
in the related Indenture Supplement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" has the meaning specified in the Indenture.
"Collection Period" has the meaning specified in the Indenture.
"Collections" means, without duplication, all payments received by the
Servicer in respect of the Receivables or, if applicable, interests in Other
Floorplan Assets, in the form of cash, checks, wire transfers or any other form
of payment.
"Corporate Trust Office" has the meaning specified in the Indenture.
"Cut-Off Date" means the close of business on July 11, 2001.
"Dealer" means a Person engaged generally in the business of purchasing
Vehicles from a manufacturer or distributor thereof and holding such Vehicles
for sale or lease in the ordinary course of business.
"Defaulted Receivable" means each Receivable that on any date of
determination:
(a) has been charged off as uncollectible on or before such date in
accordance with the Servicer's customary and usual procedures for
servicing dealer floorplan receivables that are comparable to the
Receivables; or
(b) remains outstanding and owned by the Issuer after the expiration of six
consecutive calendar months from the date on which the Account giving
rise to such Receivable was redesignated pursuant to Section 2.09(b)
after such Account became a Performance Impaired Ineligible Account.
"Delaware Trustee" means The Bank of New York (Delaware), a Delaware
banking corporation, in its capacity as Delaware trustee under the Trust
Agreement, its successors in interest and any successor Delaware trustee under
the Trust Agreement.
"Designated Jurisdictions" means the following states (and the District
of Columbia): Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia,
Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina,
Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia
and West Virginia. FCF LLC may, subject to the satisfaction of the Rating Agency
Condition, amend the definition of "Designated Jurisdictions" without the prior
consent of the Noteholders or any Series Enhancers.
"Determination Date" means, with respect to any Distribution Date, the
day that is two Business Days before such Distribution Date.
"Distribution Date" means, with respect to any Series, the date
specified in the related Indenture Supplement.
"Distribution Date Statement" means, with respect to any Series, a
report prepared by the Servicer on each Determination Date for the immediately
preceding Collection Period in substantially the form set forth in the related
Indenture Supplement.
"Eligible Account" means each individual floorplan financing account
established with a Dealer pursuant to a Floorplan Financing Agreement in the
ordinary course of business that, as of the date of determination with respect
thereto:
(a) is in existence and maintained and serviced by or on behalf of the
Seller;
(b) relates to a Dealer showroom located in one of the Designated
Jurisdictions;
(c) is in favor of a Dealer in which Ford or any Affiliate of Ford does not
have an equity investment exceeding 5% as determined by the Servicer on
the Determination Dates occurring in January, April, July and October
of each year, beginning with July 13, 2001, based on information
available to the Servicer as of the last day of the immediately
preceding Collection Period;
(d) is in favor of a Dealer that has not been classified by the Servicer as
"status" (or comparable classification) under the Floorplan Financing
Guidelines by reason of (i) such Dealer's failure to make any principal
or interest payment when due under the related Floorplan Financing
Agreement or (ii) the occurrence of an Insolvency Event with respect to
such Dealer; and
(e) is an Account in respect of which no material amounts have been charged
off as uncollectible at any time within the previous 24 months.
"Eligible Receivable" means each Receivable that:
(a) was originated or acquired by the Seller in the ordinary course of
business and, in the case of a Receivable described in clause (a) of
the definition of "Receivable," was originated or acquired on or after
June 1, 2001;
(b) except for any Adjustment Fees payable by Ford, is secured by a
perfected first priority interest in the related Vehicle;
(c) is not a Fleet Receivable;
(d) relates to an automobile or light-duty truck;
(e) is the subject of a valid transfer and assignment from the Transferor
to the Issuer of all the Transferor's rights and interest in such
Receivable, including (i) all Related Security, (ii) all related rights
under, as applicable, the Sales and Service Agreement, the Sale and
Assignment Agreement and the Floorplan Financing Agreement and (iii)
all related proceeds;
(f) is created in compliance with all requirements of applicable law and
pursuant to, as applicable, the Sales and Service Agreement, the Sale
and Assignment Agreement or the Floorplan Financing Agreement;
(g) as to which ▇▇▇▇, ▇▇▇▇ Credit and the Transferor, as applicable, have
obtained all material consents and governmental authorizations required
to be obtained by them in connection with (i) the creation of the
Receivable, the transfer of the Receivable to the Issuer and the pledge
of the Receivable to the Indenture Trustee and (ii) if applicable,
Ford's performance under the related Sales and Service Agreement,
Ford's performance under the related Sale and Assignment Agreement
and/or Ford Credit's performance under the related Floorplan Financing
Agreement;
(h) as to which the Issuer will at all times have good and marketable
title, free and clear of all Liens arising before the transfer to the
Issuer or arising at any time, other than the Liens permitted under
this Agreement or the other Transaction Documents;
(i) except for any Adjustment Fees payable by ▇▇▇▇, ▇▇▇▇ at all times be
the legal and assignable payment obligation of the related Dealer,
enforceable against such Dealer in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy or other similar
laws;
(j) as to any Adjustment Fees payable by ▇▇▇▇, ▇▇▇▇ at all times be the
legal and assignable payment obligation of Ford, enforceable against
Ford in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy or other similar laws;
(k) is not subject to any right of rescission, setoff or any other defense
of the related Dealer or Ford, as applicable, including defenses
arising out of violations of usury laws;
(l) as to which ▇▇▇▇, ▇▇▇▇ Credit and the Transferor, as applicable, have
satisfied in all material respects all of their obligations required to
be satisfied by them;
(m) as to which none of ▇▇▇▇, ▇▇▇▇ Credit or the Transferor, as applicable,
has taken or failed to take any action that would materially impair the
rights of the Issuer or the Noteholders in the Receivable; and
(n) constitutes either a "general intangible," an "account," a "payment
intangible" or "tangible chattel paper," each as defined in Article 9
of the UCC.
"Eligible Servicer" means either the Indenture Trustee or such other
Person that, at the time of such other Person's appointment as Servicer, (a) is
legally qualified and has the capacity to service the Receivables and the
related Accounts, (b) in the sole determination of the Indenture Trustee, which
determination will be conclusive and binding, has demonstrated the ability to
professionally and competently service receivables arising in connection with
similar accounts in accordance with high standards of skill and care and (c) is
qualified to use the software that is then currently being used to service the
Accounts or obtains the right to use or has its own software that is adequate to
perform its duties under this Agreement.
"Event of Default" has the meaning specified in the Indenture.
"Excess Funding Account" has the meaning specified in the Indenture.
"Exchangeable Receivable" has the meaning specified in Section 2.11.
"Exchange Date" has the meaning specified in Section 2.11.
"FCF Corp" means Ford Credit Floorplan Corporation (formerly known as
Ford Credit Auto Receivables Corporation), a Delaware corporation, and its
successors.
"FCF LLC" means Ford Credit Floorplan LLC (formerly known as Ford
Credit Auto Receivables LLC), a Delaware limited liability company, and its
successors.
"Fleet Receivables" means all amounts shown on the Servicer's records
as amounts payable by any Dealer in connection with fleet purchases of Vehicles
by such Dealer.
"Floorplan Financing Agreement" means, collectively, the group of
related agreements, as in effect from time to time, between and among the Seller
(either as the originator of a floorplan financing account or by virtue of an
assignment and assumption by the Seller from the applicable originator of such
account), the Dealer with respect thereto and, in the case of New Vehicles, a
Manufacturer, pursuant to which (a) the Seller agrees to extend credit to such
Dealer to finance New Vehicles and/or Used Vehicles manufactured or distributed
by such Manufacturer, (b) the Seller has a security interest in the specific
Vehicles financed by the Seller, certain other Vehicles, certain other
collateral and the proceeds thereof, (c) such Dealer agrees to repay advances
made by the Seller at the time of Vehicle sale or lease and (d) the obligations
of such Dealer to repay such advances is evidenced by one or more promissory
notes of such Dealer.
"Floorplan Financing Guidelines" means the written policies and
procedures of Ford Credit, as such policies and procedures may be amended from
time to time, (a) relating to the operation of its floorplan financing business,
including the written policies and procedures for determining the interest rate
charged to Dealers, the other terms and conditions relating to Ford Credit's
floorplan financing accounts, the creditworthiness of Dealers and the extension
of credit to Dealers, (b) relating to the maintenance of accounts and collection
of receivables and (c) relating to Cash Management Accounts.
"Ford" means Ford Motor Company, a Delaware corporation, and its
successors.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation,
and its successors.
"Governmental Authority" means the United States of America or any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to the government of the United States of America or any state or
other political subdivision thereof having jurisdiction over the applicable
Person.
"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 Supplement" has the meaning specified in the Indenture.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, in its capacity as indenture trustee under the Indenture, its
successors in interest and any successor indenture trustee under the Indenture.
"Ineligible Account" means, as of any date of determination, each
Account that is not an Eligible Account on such date.
"Ineligible Receivable" means, as of any date of determination, each
Receivable that is not an Eligible Receivable on such date.
"Initial Account" means a floorplan financing account established with
a Dealer pursuant to a Floorplan Financing Agreement that is identified in the
Initial Account Schedule.
"Initial Account Schedule" has the meaning specified in Section
2.01(e)(ii).
"Insolvency Event" has the meaning specified in the Indenture.
"Insurance Proceeds" means, with respect to an Account, any amounts
received by the Servicer pursuant to any policy of insurance that are required
to be paid to the Seller pursuant to the related Floorplan Financing Agreement.
"Interest Collections" means (a) all Collections of Interest
Receivables owned by the Issuer, (b) if applicable, all Collections of the
non-principal portion of the Issuer's interests in Other Floorplan Assets, (c)
all interest and earnings on Eligible Investments credited to the Collection
Account and the Excess Funding Account (net of losses and investment expenses)
and (d) all Recoveries.
"Interest Receivables" means, in connection with an Account:
(a) all amounts billed and payable by the related Dealer with respect to
the Receivables in such Account pursuant to the related Floorplan
Financing Agreement between such Dealer and Ford Credit that constitute
(i) interest and (ii) other non-principal and non-interest charges,
including flat charges established by Ford Credit from time to time to
cover miscellaneous costs; and
(b) all Adjustment Fees described in clause (b) of the definition of
"Receivable."
"In-Transit Period" means, with respect to any Vehicle, the period from
and including the day the Vehicle is released from the factory by Ford for
delivery to a Dealer to and including the day of delivery of the Vehicle to such
Dealer; provided, however, that if an Invoice Amount has not yet been
established for such Vehicle on the day of delivery, the In-Transit Period with
respect to such Vehicle will continue to and include the day on which the
Invoice Amount is established, but in no event more than 30 days following the
day of delivery.
"Invoice Amount" means the total amount payable by a Dealer to the
Seller for a Vehicle as set forth on the Vehicle invoice issued by Ford.
"Issuer" means Ford Credit Floorplan Master Owner Trust A created by
the Trust Agreement, the corpus of which consists of the Trust Assets.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"Manufacturer" means, with respect to any Receivable, the manufacturer
or distributor of the Vehicle relating to such Receivable.
"Monthly Servicing Fee" has, with respect to any Series, the meaning
specified in the related Indenture Supplement.
"Net Adjusted Pool Balance" has the meaning specified in the Indenture.
"New Vehicle" means any Vehicle that is (i) a currently untitled
Vehicle or (ii) a previously titled Vehicle purchased by a Dealer at a closed
auction conducted by Ford or (iii) a Vehicle previously subject to a retail
lease under one of Ford Credit's retail lease programs that a Dealer has
acquired pursuant to the Dealer's purchase option relating to such lease.
"Note Interest Rate" means, as of any particular date of determination
and with respect to any Series or Class, the interest rate as of such date
specified therefor in the related Indenture Supplement.
"Noteholder" or "Holder" has the meaning specified in the Indenture.
"Noteholders' Collateral" has the meaning specified in the Indenture.
"Notes" means the Asset Backed Notes issued by the Issuer pursuant to
the Indenture and the Indenture Supplements.
"Officer's Certificate" means (a) with respect to any corporation,
unless otherwise specified in this Agreement, a certificate signed by the
Chairman of the Board, Vice Chairman of the Board, President, any Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary of
such corporation and (b) with respect to any limited liability company, unless
otherwise specified in this Agreement, a certificate signed by any Manager, the
President, any Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary of such limited liability company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion and who is
reasonably acceptable to the Indenture Trustee.
"Other Floorplan Assets" means, collectively, any Pooled Participation
Receivables, Purchased Participation Receivables, Syndicated Receivables or
Third-Party Financed In-Transit Receivables.
"Owner Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as owner trustee under the Trust Agreement, its
successors in interest and any successor owner trustee under the Trust
Agreement.
"Performance Impaired Ineligible Account" means an Account that is an
Ineligible Account due to the failure to satisfy the condition specified in
clause (d) of the definition of "Eligible Account."
"Person" means any legal person, including any individual, corporation,
partnership, association, joint-stock company, limited liability company, trust,
unincorporated organization, governmental entity or other entity of similar
nature.
"Pool Balance" means, as of any date of determination, the aggregate
amount of the Issuer's Principal Receivables on such date and, if applicable,
the principal portion of the Issuer's interests in Other Floorplan Assets on
such date.
"Pooled Participation Receivables" means receivables that are
originated by Ford Credit under Floorplan Financing Agreements and transferred
by Ford Credit, directly or indirectly, into a pool of assets existing outside
of the Issuer, in which such pool Ford Credit owns an undivided participation
interest issued under agreements similar to the Transaction Documents.
"Principal Collections" means (a) all Collections of Principal
Receivables owned by the Issuer, (b) if applicable, all Collections of the
principal portion of the Issuer's interests in Other Floorplan Assets and (c)
all amounts representing deposits by related Dealers into any Cash Management
Accounts (excluding, in all cases, Recoveries thereof). Any exchanges of
Exchangeable Receivables as provided in Section 2.11 will not be included as a
part of Principal Collections.
"Principal Receivables" means, in connection with an Account, the
amounts shown on the Servicer's records as Receivables (other than amounts
representing Interest Receivables) that are payable by the related Dealer under
(a) the related Sales and Service Agreement that have been assigned by Ford to
Ford Credit pursuant to the Sale and Assignment Agreement and (b) the related
Floorplan Financing Agreement.
"Purchase Price" means, with respect to any Receivable for any date on
which such Receivable is to be purchased pursuant to Section 3.03(c), an amount
equal to the sum of (a) the amounts payable by the related Dealer as reflected
in the records of the Servicer as of the date of purchase and (b) without
duplication, if applicable, (i) any Adjustment Payment with respect thereto and
(ii) all accrued and unpaid interest from the last date in respect of which
interest on such Receivable was received by the Servicer, at a per annum rate
equal to the rate being charged to the Dealer under the related Floorplan
Financing Agreement.
"Purchased Participation Receivables" means receivables originated by a
third party under a dealer floorplan financing agreement owned by such third
party, which receivables are participated to Ford Credit pursuant to a
participation or similar agreement between such third party and Ford Credit.
"Rating Agency" means, with respect to any outstanding Series or Class,
each statistical rating agency selected by the Transferor to rate the Notes of
such Series or Class, unless otherwise specified in the related Indenture
Supplement.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency has notified the Transferor, the Servicer, the Issuer and the
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating of any outstanding Series or Class rated
by such Rating Agency.
"Reassignment" means a Reassignment of Receivables in Redesignated
Accounts among the Transferor, the Issuer and the Servicer, substantially in the
form of Exhibit D.
"Reassignment Amount" has, with respect to any Series, the meaning
specified in the related Indenture Supplement.
"Receivable" means, in connection with an Account, all amounts shown on
the Servicer's records as:
(a) amounts payable by the related Dealer in respect of such Dealer's
purchase of a New Vehicle manufactured or distributed by Ford pursuant
to the related Sales and Service Agreement, but only if the payment of
such amounts upon delivery of such New Vehicle to such Dealer will be
financed by Ford Credit pursuant to the Floorplan Financing Agreement
establishing such Account;
(b) Adjustment Fees payable by Ford to Ford Credit in respect of the
amounts payable, as described in clause (a) above, that have been
purchased by Ford Credit from Ford pursuant to the Sale and Assignment
Agreement; and
(c) amounts payable by the related Dealer in respect of an advance made by
the Seller (including any withdrawals by such Dealer from its Cash
Management Account) to finance such Dealer's purchase of a Vehicle
under the related Floorplan Financing Agreement;
together with, in the case of each of clauses (a), (b) and (c) above, the group
of agreements and other writings, as in effect from time to time, evidencing
such amounts and the security interest created in connection therewith. A
Receivable that becomes a Defaulted Receivable will not be shown on the
Servicer's records as amounts payable (and will cease to be included as a
Receivable) on the day on which it becomes a Defaulted Receivable.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of August 1, 2001, between FCF LLC, as buyer thereunder, and
the Seller, as the same may be amended, supplemented or otherwise modified from
time to time.
"Recoveries" means, with respect to any Determination Date, all amounts
received, including Insurance Proceeds, by the Servicer during the Collection
Period immediately preceding such Determination Date for application against
Defaulted Receivables or, if applicable, interests in Other Floorplan Assets
that have defaulted.
"Redesignated Account" means a former Account that has been
redesignated by the Transferor pursuant to Section 2.08 or 2.09 and is
identified in the applicable Redesignated Account Schedule.
"Redesignated Account Schedule" means, with respect to any Redesignated
Accounts, a computer file or written list specifying the identity of such
Redesignated Accounts (by the Dealer account number assigned by the Servicer)
and the Principal Receivables arising in connection therewith as of the related
Redesignation Date.
"Redesignation Date" means the date on which Accounts are redesignated
to the Transferor as specified in the related Redesignation Notice provided by
the Transferor (or the Servicer on its behalf) pursuant to Section 2.08(b)(i),
2.09(b)(i) or (c)(i), as the case may be; provided, however, that, in the case
of the redesignation of Ineligible Accounts pursuant to Section 2.09(b) or (c),
as the case may be, the applicable Redesignation Date is the date on which the
Servicer's records indicate that such Account has become an Ineligible Account.
"Redesignation Notice" means the notice furnished by the Transferor (or
the Servicer on its behalf) in connection with the redesignation of Accounts as
Redesignated Accounts pursuant to Section 2.08(b)(i), 2.09(b)(i) or (c)(i), as
the case may be.
"Reference Rate" means, with respect to any Receivable, other than a
Receivable representing the right to receive Adjustment Fees, the per annum rate
of interest designated from time to time by Ford Credit pursuant to the related
Floorplan Financing Agreement.
"Related Security" means, subject to the terms of the Receivables
Purchase Agreement, (a) the security interest granted by or on behalf of the
related Dealer with respect to any Receivable, including (i) a first priority
perfected security interest in the related Vehicle, (ii) a perfected security
interest in certain parts inventory, equipment, fixtures, service accounts or
realty of such Dealer and (iii) all guarantees of such Receivable and (b) in the
case of a Receivable described in clause (a) of the definition of "Receivable,"
all of the Seller's rights, remedies, powers and privileges under the Sale and
Assignment Agreement.
"Required Pool Balance" has the meaning specified in the Indenture.
"Required Transferor Amount" has the meaning specified in the
Indenture.
"Requirements of Law" for any Person means the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, whether federal, state or local, in each
case applicable to or binding upon such Person or to which such Person is
subject.
"Sale and Assignment Agreement" means the Amended and Restated Sale and
Assignment Agreement, dated as of June 1, 2001, between Ford and Ford Credit
pursuant to which (a) Ford sells and assigns to Ford Credit the right to receive
amounts payable by a Dealer to Ford from time to time in respect of such
Dealer's purchase of New Vehicles manufactured or distributed by Ford pursuant
to the related Sales and Service Agreement, (b) Ford agrees to pay Ford Credit
the related Adjustment Fees in respect of such sale and assignment and (c) Ford
assigns to Ford Credit the first priority perfected security interest granted to
Ford by such Dealer in such New Vehicles, as the same may be amended,
supplemented or otherwise modified from time to time.
"Sales and Service Agreement" means each Sales and Service Agreement,
together with any related Vehicle Terms of Sale Bulletin as in effect from time
to time, between a Dealer and Ford pursuant to which, among other things, such
Dealer purchases from time to time Vehicles from Ford, as the same may be
amended, supplemented or otherwise modified from time to time.
"Seller" means Ford Credit as seller under the Receivables Purchase
Agreement.
"Series" means any series of Notes issued pursuant to the Indenture and
the related Indenture Supplement.
"Series Account" means any deposit, trust, escrow, reserve or similar
account maintained for the benefit of the Noteholders of any Series or Class, as
specified in the related Indenture Supplement.
"Series Enhancements" has the meaning specified in the Indenture.
"Series Enhancer" has the meaning specified in the Indenture.
"Series Cut-Off Date" has, with respect to any Series, the meaning
specified in the related Indenture Supplement.
"Servicer" means, initially, Ford Credit, in its capacity as Servicer
under this Agreement, and after any Servicing Transfer, the Successor Servicer.
"Servicer Default" has the meaning specified in Section 6.01(a).
"Servicing Fee" has the meaning specified in Section 3.02(a).
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Owner Trustee and the
Indenture Trustee by the Servicer as such list may be amended from time to time.
"Servicing Transfer" has the meaning specified in Section 6.01(b).
"Subsequent Transferor" has the meaning specified in Section 4.05.
"Successor Servicer" has the meaning specified in Section 6.02(a).
"Syndicated Receivables" means receivables that are originated by Ford
Credit under a syndicated floorplan financing arrangement between a Dealer and a
group of lenders, one of which is Ford Credit.
"Tax Opinion" means, with respect to any action, an Opinion of Counsel
to the effect that, for United States federal income tax purposes, (a) such
action will not adversely affect the tax characterization as debt of the Notes
of any outstanding Series or Class that were characterized as debt at the time
of their issuance, (b) such action will not cause the Issuer to be treated as an
association (or publicly traded partnership) taxable as a corporation and (c)
such action will not cause or constitute an event in which gain or loss would be
recognized by any Noteholder.
"Termination Notice" has the meaning specified in Section 6.01(a).
"Third-Party Financed In-Transit Receivables" means receivables
representing the payment obligations of Dealers arising from their purchases of
New Vehicles of which Ford is the Manufacturer and for which Ford Credit will
not be such Dealers' finance source.
"Transaction Documents" has the meaning specified in the Indenture.
"Transfer Date" has the meaning specified in Section 2.01(a).
"Transferor" means FCF LLC and its successors and assigns permitted
hereunder.
"Transferor Amount" has the meaning specified in the Indenture.
"Transferor Interest" has the meaning specified in the Indenture.
"Transferor Deposit Amount" has the meaning specified in Section
2.04(c).
"Trust Agreement" means the Amended and Restated Trust Agreement
relating to the Issuer, dated as of August 1, 2001, among FCF Corp, FCF LLC, the
Owner Trustee and the Delaware Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"Trust Assets" has the meaning specified in the Indenture.
"Trust Termination Date" has the meaning specified in the Trust
Agreement.
"UCC" means the Uniform Commercial Code, as amended from time to time,
in effect in the applicable jurisdiction.
"Used Vehicle" means any Vehicle other than a New Vehicle.
"Vehicle" means an automobile, a light- medium- or heavy-duty truck,
van or other vehicle classification used by Ford Credit from time to time.
"Vice President" when used with respect to the Servicer means any vice
president whether or not designated by a number or word or words added before or
after the title "vice president."
Section 1.02. Other Definitional Provisions.
(a) All terms used herein and not otherwise defined herein have the meanings
ascribed to them in the Trust Agreement, the Indenture or, with respect to any
Series, the related Indenture Supplement, as applicable.
(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 will 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 as of any
particular date mean 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
TRANSFER OF RECEIVABLES
Section 2.01. Transfer of Receivables.
(a) By execution of this Agreement, the Transferor does hereby transfer, assign,
set over and otherwise convey, without recourse (except as expressly provided
herein), to the Issuer, for the benefit of the Noteholders and any Series
Enhancers, the following property on and as of the dates specified below:
(i) on the first Closing Date, (A) all of its right, title and interest in,
to and under each Receivable arising in connection with each Initial
Account and all Related Security with respect thereto owned by the
Transferor at the close of business on the Cut-Off Date, (B) all monies
due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds," as defined in the UCC) and
Recoveries thereof and (C) all of its rights, remedies, powers and
privileges with respect to such Receivable under the Receivables
Purchase Agreement;
(ii) on the applicable Addition Date, (A) all of its right, title and
interest in, to and under each Receivable arising in connection with
each Additional Account and all Related Security with respect thereto
owned by the Transferor at the close of business on the applicable
Additional Cut-Off Date, (B) all monies due or to become due and all
amounts received with respect thereto and all proceeds (including
"proceeds," as defined in the UCC) and Recoveries thereof and (C) all
of its rights, remedies, powers and privileges with respect to such
Receivable under the Receivables Purchase Agreement; and
(iii) on each Business Day occurring before the earlier of (x) the occurrence
of an Amortization Event specified in Section 5.01(ii) of the Indenture
or (y) the Trust Termination Date, on which day a new Receivable is
created in connection with the Accounts (each such Business Day being a
"Transfer Date"), (A) all of its right, title and interest in, to and
under such Receivable and all Related Security with respect thereto
owned by the Transferor at the close of business on the applicable
Transfer Date and not previously transferred to the Issuer pursuant
hereto, (B) all monies due or to become due and all amounts received
with respect thereto and all proceeds (including "proceeds," as defined
in the UCC) and Recoveries thereof and (C) all of its rights, remedies,
powers and privileges with respect to such Receivable under the
Receivables Purchase Agreement.
(b) The foregoing transfers, and any subsequent transfers of additional assets
(including interests in any Other Floorplan Assets), do not constitute, and are
not intended to result in, the creation or an assumption by the Issuer or the
Owner Trustee of any obligation of the Transferor, the Servicer, the Seller,
Ford or any other Person in connection with the Accounts, the related
Receivables, the Other Floorplan Assets or under any agreement or instrument
relating thereto, including any obligation to any Dealers or Ford. The foregoing
transfers are not transfers of the Accounts; they are transfers of the
Receivables arising in connection with the Accounts.
(c) In connection with such transfers, the Transferor will record and file, at
its own expense, a financing statement on form UCC-1 or any other applicable
form (and continuation statements when applicable) with respect to the
Receivables transferred by the Transferor for the sale, for UCC purposes, of
"tangible chattel paper," payment intangibles," "general intangibles" or
"accounts" (each as defined in the UCC) meeting the requirements of applicable
law in such manner and in such jurisdictions as are necessary to perfect the
sale and assignment, for UCC purposes, of the Receivables and the Related
Security to the Issuer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Issuer on or before the first
Closing Date, in the case of the Initial Accounts, and (if any additional filing
is so necessary) the applicable Addition Date, in the case of Additional
Accounts. The Owner Trustee will be under no obligation whatsoever to file such
financing statement, or a continuation statement to such financing statement, or
to make any other filing under applicable law in connection with such transfers
if the Owner Trustee has appointed the Administrator to act in such capacity.
(d) The Transferor and the Issuer intend that all transfers of Receivables under
this Agreement constitute valid transfers of such Receivables. If the transfers
of the Receivables hereunder were to be characterized as transfers as security
for a loan, then (i) the Transferor will have granted, and hereby grants, to the
Issuer a security interest in each Receivable, the Related Security and all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds," as defined in the UCC) and Recoveries
thereof and (ii) this Agreement constitutes a security agreement. For tax
purposes, the Transferor and the Issuer intend that all transfers of Receivables
under this Agreement constitute transfers of such Receivables as security for a
loan.
(e) In connection with such transfers, at its own expense, on or before the
first Closing Date, in the case of the Initial Accounts, and the applicable
Addition Date, in the case of Additional Accounts, the Transferor will:
(i) cause the Seller to indicate in its computer files as required by the
Receivables Purchase Agreement, that the Receivables arising in
connection with the Accounts and the Related Security: (A) have been
sold or assigned, as the case may be, to the Transferor pursuant to the
related Receivables Purchase Agreement, then (B) transferred by the
Transferor to the Issuer pursuant to this Agreement and then (C)
pledged by the Issuer to the Indenture Trustee for the benefit of the
Noteholders and any Series Enhancers pursuant to the Indenture;
(ii) in the case of the Initial Accounts, deliver to the Owner Trustee (or
cause the Seller to do so) a computer file or written list of such
Initial Accounts specifying the identity of such Initial Accounts (by
the Dealer account number assigned by the Servicer) and the Principal
Receivables arising in connection therewith as of the Cut-Off Date
(such file or list, the "Initial Account Schedule"); and
(iii) in the case of Additional Accounts, deliver to the Owner Trustee (or
cause the Seller to do so) a computer file or written list of such
Additional Accounts specifying the identity of such Additional Accounts
(by the Dealer account number assigned by the Servicer) and the
Principal Receivables arising in connection therewith as of the
Additional Cut-Off Date (such file or list, an "Additional Account
Schedule").
The Account Schedule, as amended, supplemented or otherwise modified from time
to time will be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement. The Owner Trustee is under
no obligation whatsoever to verify the accuracy or completeness of the
information contained in the Account Schedule at any time.
Section 2.02. Acceptance by Owner Trustee.
(a) The Owner Trustee hereby acknowledges its acceptance, on behalf of the
Issuer, of all right, title and interest previously held by the Transferor to
the property, now existing and hereafter created, conveyed to the Issuer
pursuant to Section 2.01. The Owner Trustee further acknowledges that, before or
simultaneously with the execution and delivery of this Agreement, the Transferor
has delivered to the Owner Trustee the Account Schedule relating to the Initial
Accounts.
(b) The Owner Trustee has no power to create, assume or incur indebtedness or
other liabilities in the name of the Issuer other than as contemplated in this
Agreement and the other Transaction Documents.
Section 2.03. Representations and Warranties of Transferor Relating to
Itself and This Agreement.
(a) Representations and Warranties. The Transferor hereby represents and
warrants to the Issuer (and agrees that the Owner Trustee and the Indenture
Trustee may conclusively rely on each such representation and warranty in
accepting the Receivables on behalf of the Issuer and in authenticating the
Notes, respectively) as of each Closing Date (unless another date is specified
below) that:
(i) Organization and Good Standing. The Transferor is a limited liability
company duly formed and validly existing and in good standing under the
laws of the jurisdiction of its organization and has, in all material
respects, full power, authority and legal right to own its properties
and 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 the Receivables
Purchase Agreement.
(ii) Due Qualification. The Transferor is duly qualified to do business and,
where necessary, is in good standing as a foreign limited liability
company (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction where the conduct
of its business requires such qualification, except where the failure
to so qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations under this
Agreement or the Receivables Purchase Agreement.
(iii) Due Authorization. The Transferor has duly authorized by all necessary
action on its part, the execution and delivery of this Agreement and
the Receivables Purchase Agreement and the consummation by the
Transferor of the transactions provided for or contemplated by this
Agreement and the Receivables Purchase Agreement.
(iv) No Conflict. The Transferor's execution and delivery of this Agreement
and the Receivables Purchase Agreement, its performance of the
transactions contemplated by this Agreement and the Receivables
Purchase Agreement and the fulfillment of the terms hereof and thereof
applicable to it, 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 material
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Transferor is a party or by which it or its
properties are bound.
(v) No Violation. The Transferor's execution and delivery of this Agreement
and the Receivables Purchase Agreement, its performance of the
transactions contemplated by this Agreement and the Receivables
Purchase Agreement and the fulfillment of the terms hereof and thereof
applicable to it, will not conflict with or violate any material
Requirements of Law applicable to it.
(vi) No Proceedings. There are no proceedings pending or, to the best of
its knowledge, no proceedings threatened or investigations pending or
threatened against the Transferor before or by any Governmental
Authority (A) asserting the invalidity of this Agreement or the
Receivables Purchase Agreement, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or the
Receivables Purchase Agreement, (C) seeking any determination or ruling
that, in its reasonable judgment, would materially and adversely affect
its performance of its obligations under this Agreement or the
Receivables Purchase Agreement, (D) seeking any determination or ruling
that would materially and adversely affect the validity or
enforceability of this Agreement or the Receivables Purchase Agreement
or (E) seeking to affect adversely the income tax characterization of
the Issuer under the United States federal or any other applicable
state or local jurisdiction's, income single business or franchise tax
systems.
(vii) All Consents Required. All material authorizations, consents, orders,
approvals or other actions of any Governmental Authority required to be
obtained or effected by the Transferor in connection with its execution
and delivery of this Agreement and the Receivables Purchase Agreement,
its performance of the transactions contemplated by this Agreement and
the Receivables Purchase Agreement and the fulfillment of the terms
hereof and thereof applicable to it, have been duly obtained or
effected and are in full force and effect.
(viii) Enforceability. This Agreement and the Receivables Purchase Agreement
each constitutes a legal, valid and binding obligation of the
Transferor, enforceable against it in accordance with the terms hereof
or thereof, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors'
rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity).
(ix) Account Schedule. As of the Cut-Off Date, the Initial Account Schedule
is an accurate and complete listing in all material respects of all the
Initial Accounts and the information contained therein with respect to
the identity of such Initial Accounts and the Principal Receivables
arising in connection therewith is true and correct in all material
respects as of the Cut-Off Date. As of the applicable Additional
Cut-Off Date, the Additional Account Schedule is an accurate and
complete listing in all material respects of all the related Additional
Accounts and the information contained therein with respect to the
identity of such Additional Accounts and the Principal Receivables
arising in connection therewith is true and correct in all material
respects as of such Additional Cut-Off Date. As of the applicable
Redesignation Date, the Redesignated Account Schedule is an accurate
and complete listing in all material respects of all the related
Redesignated Accounts and the information contained therein with
respect to the identity of such Redesignated Accounts and the Principal
Receivables arising in connection therewith is true and correct in all
material respects as of such Redesignation Date.
(x) Valid Transfer. This Agreement or the related Assignment constitutes a
valid transfer and assignment to the Issuer of all right, title and
interest of the Transferor in the Receivables in connection with the
Initial Accounts or the Additional Accounts, as applicable, and the
Related Security and the proceeds thereof and all of the Transferor's
rights, remedies, powers and privileges with respect to the Receivables
under the Receivables Purchase Agreement and, upon the filing of the
financing statements described in Section 2.01(c) and, in the case of
the Receivables and the Related Security hereafter created and the
proceeds thereof, upon the creation thereof, the Issuer will have a
first priority perfected ownership interest in such property, other
than the Liens permitted under this Agreement or the other Transaction
Documents. Except as otherwise provided in this Agreement or the other
Transaction Documents, neither the Transferor nor any Person claiming
through or under it has any claim to or interest in the Trust Assets.
(b) Notice of Breach. The representations and warranties set forth in Section
2.03(a) survive the transfer and assignment of the Receivables and Related
Security to the Issuer. Upon discovery by the Transferor, the Owner Trustee, the
Indenture Trustee or the Servicer of a material breach of any of the foregoing
representations and warranties, the party discovering such breach will give
prompt written notice to the other parties and to any Series Enhancers.
(c) Reassignment upon Breach. If any breach of any of the representations and
warranties set forth in Section 2.03(a) has a material adverse effect on the
Noteholders' Collateral in Receivables transferred to the Issuer by the
Transferor, then any of the Owner Trustee, the Indenture Trustee or the Holders
of Notes evidencing at least a majority of the Outstanding Amount of all
outstanding Notes, by notice then given in writing to the Transferor (and to the
Owner Trustee, the Indenture Trustee, the Servicer and any Series Enhancer if
given by the Noteholders), may direct the Transferor to accept reassignment of
all the Receivables transferred by it to the Issuer within 60 days of such
notice (or such longer period as may be specified in such notice), and the
Transferor is obligated to accept such reassignment on the Distribution Date
immediately succeeding the expiration of such 60-day period (or such longer
period as may be specified) on the terms and conditions set forth below;
provided, however, that no such reassignment is required to be made if, by the
end of such 60-day period (or such longer period as may be specified), the
representations and warranties set forth in Section 2.03(a) are satisfied in all
material respects, and any material adverse effect on the Noteholders'
Collateral in Receivables caused by the breach has been cured.
In connection with any reassignment pursuant to this Section, the
Transferor will deposit into the Collection Account in immediately available
funds on the Business Day immediately preceding the Distribution Date on which
such reassignment obligation arises, in payment for such reassignment, an amount
equal to the sum of the Reassignment Amount with respect to each outstanding
Series in the related Indenture Supplement. Notwithstanding anything to the
contrary in this Agreement, such deposited amount will be distributed to the
Noteholders on such Distribution Date in accordance with the Indenture and each
Indenture Supplement in payment of their Notes and will result in a
corresponding increase in the Transferor Interest. The Owner Trustee will
execute such documents and instruments of transfer or assignment and take such
other actions as are reasonably requested by the Transferor to effect the
conveyance of such Receivables pursuant to this Section. If the Owner Trustee,
the Indenture Trustee or the Noteholders give notice directing the Transferor to
accept reassignment of all the Receivables transferred by the Transferor as
provided above, the obligation of the Transferor to accept such reassignment and
make the required deposit into the Collection Account pursuant to this Section
constitutes the sole remedy with respect to an event of the type specified in
the first sentence of this Section 2.03(c) available to the Noteholders (or the
Owner Trustee, any Series Enhancer or the Indenture Trustee on behalf of the
Noteholders).
Section 2.04. Representations and Warranties of Transferor Relating to
Receivables and Accounts.
(a) Representations and Warranties. The Transferor hereby represents and
warrants to the Issuer that:
(i) As of the first Closing Date, the Addition Date or the Transfer Date,
as the case may be, each Receivable and its Related Security
transferred by it to the Issuer on such date, are transferred free and
clear of any Lien, other than the Liens permitted under this Agreement
or the other Transaction Documents, and all consents, licenses,
approvals or authorizations of or registrations or declarations with
any Governmental Authority required to be obtained, effected or given
by the Transferor in connection with the transfer of such Receivable
and Related Security on such date have been duly obtained, effected or
given and are in full force and effect.
(ii) (A) Each Initial Account is an Eligible Account as of the Cut-Off Date
and (B) each Additional Account is an Eligible Account as of the
applicable Additional Cut-Off Date and (C) each Account is an Eligible
Account as of each Series Cut-Off Date.
(iii) As of the first Closing Date, the Addition Date or the Transfer Date,
as the case may be, each Receivable transferred by the Transferor to
the Issuer on such date, is an Eligible Receivable or, if such
Receivable is not an Eligible Receivable, such Receivable is being
transferred in accordance with Section 2.10.
(b) Notice of Breach. The representations and warranties set forth in Section
2.04(a) survive the transfer and assignment of the Receivables and Related
Security to the Issuer. Upon discovery by the Transferor, the Owner Trustee, the
Indenture Trustee or the Servicer of a material breach of any of the foregoing
representations and warranties, the party discovering such breach will give
prompt written notice to the other parties and to any Series Enhancers.
(c) Reassignment upon Breach. Except as otherwise provided below in this
subsection, if any representation or warranty under Section 2.04(a) is not true
and correct as of the date specified therein and such breach has a material
adverse effect on a Receivable, then, within 30 days (or such longer period as
may be agreed to by the Indenture Trustee and the Servicer) of the earlier to
occur of the discovery of any such breach by the Transferor, or receipt by the
Transferor of written notice of any such breach given by the Owner Trustee, the
Indenture Trustee, the Servicer or any Series Enhancers, the Transferor will
accept reassignment of such Receivable on the Determination Date immediately
succeeding the expiration of such 30-day period (or such longer period as may
agreed to by the Indenture Trustee and the Servicer) on the terms and conditions
set forth in the next succeeding paragraph; provided, however, that no such
reassignment will be required to be made if, by the end of such 30-day period
(or such longer period as may be agreed to by the Indenture Trustee and the
Servicer), the representations and warranties set forth in Section 2.04(a) are
then true and correct in all material respects and any material adverse effect
caused by the breach has been cured. Notwithstanding anything to the contrary in
this Section 2.04(c), the applicable grace period in the case of a breach with
respect to a representation and warranty under Section 2.04(a)(i) will be five
Business Days (or such longer period as may be agreed to by the Indenture
Trustee and the Servicer).
In connection with any reassignment of a Receivable pursuant to this
Section, the Transferor will direct the Servicer to deduct, subject to the next
sentence, the principal amount of such Receivables from the Pool Balance on or
before the end of the Collection Period in which such reassignment obligation
arises. If, following such deduction, the Transferor Amount is less than the
Required Transferor Amount on the immediately preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and deposits
to be made on the Distribution Date following such Determination Date), then no
later than 12:00 noon on the day on which such reassignment occurs, the
Transferor will deposit into the Excess Funding Account in immediately available
funds the amount (the "Transferor Deposit Amount") by which the Transferor
Amount would be less than such Required Transferor Amount (up to the principal
amount of such Receivables); provided, however, that if the Transferor Deposit
Amount is not deposited as required by this sentence, then the principal amounts
of such Receivables will be deducted from the Pool Balance to the extent that
the Transferor Amount is not reduced below the Required Transferor Amount and
the Receivables, the principal amounts of which have not been so deducted, will
not be reassigned to the Transferor and will remain part of the Trust Assets.
Upon reassignment of any such Receivable, but only after payment by the
Transferor of the Transferor Deposit Amount, if any, the Issuer will
automatically and without further action be deemed to transfer, assign, set over
and otherwise convey to the Transferor, without recourse, representation or
warranty, all the right, title and interest of the Issuer in and to such
Receivable, all Related Security and all moneys due or to become due with
respect thereto and all proceeds thereof. The Owner Trustee will execute such
documents and instruments of transfer or assignment and take such other actions
as are reasonably requested by the Transferor to effect the conveyance of such
Receivables pursuant to this Section. The obligation of the Transferor to accept
reassignment of any such Receivable and to pay any related Transferor Deposit
Amount constitutes the sole remedy with respect to the event of the type
specified in the first sentence of this Section 2.04(c) available to the
Noteholders (or the Owner Trustee, any Series Enhancer or the Indenture Trustee
on behalf of the Noteholders).
Section 2.05. Covenants of Transferor.
The Transferor hereby covenants that:
(i) No Liens. Except for the conveyances hereunder or as provided or
permitted in this Agreement or the other Transaction Documents, the
Transferor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on,
any Receivable or any Related Security, whether now existing or
hereafter created, or any interest therein, or the Transferor's rights,
remedies, powers or privileges with respect to such Receivables under
the Receivables Purchase Agreement to which it is a party, and the
Transferor will defend the right, title and interest of the Issuer and
the Indenture Trustee in, to and under such Receivables and the Related
Security, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties
claiming through or under the Transferor.
(ii) Certain Allocations of Collections. If the Transferor is unable for any
reason to transfer Receivables to the Issuer under this Agreement, then
the Transferor agrees that, after the occurrence of such event, it will
allocate Collections in respect of each related Account as follows:
(A) Principal Collections will be allocated to a Receivable that
relates to the Vehicle whose sale or lease generated such
Collections; provided, however, that in the event of the
occurrence of an Insolvency Event with respect to the Seller
or the Transferor, then Principal Collections will be
allocated first to the oldest Principal Receivable outstanding
in connection with such Account; and
(B) Interest Collections will be allocated to the Issuer on the
basis of the ratio of the Principal Receivables owned by the
Issuer in connection with such Account on the date of
determination to the total amount of Principal Receivables in
connection with such Account on such date of determination,
and the remainder of such Collections will be allocated to the
Issuer; provided, however, that in the event of the occurrence
of an Insolvency Event with respect to the related Dealer, the
Seller or the Transferor, then Interest Collections will be
allocated on the basis of the age of the related Principal
Receivable, with the oldest Principal Receivable outstanding
in connection with such Account being allocated Interest
Collections first.
(iii) Delivery of Collections. If the Transferor, the Seller or any Affiliate
thereof receives payments in respect of the Receivables transferred to
the Issuer by the Transferor, the Transferor and the Seller will pay or
cause to be paid to the Servicer or any Successor Servicer all such
payments as soon as practicable after receipt thereof, but in no event
later than two Business Days after receipt.
(iv) Notice of Liens. The Transferor will notify the Owner Trustee and the
Indenture Trustee promptly after becoming aware of any Lien on any
Receivable transferred by the Transferor, other than the Liens
permitted under this Agreement or the other Transaction Documents.
(v) Compliance with Law. The Transferor will comply in all material
respects with all Requirements of Law applicable to it.
(vi) Transferor Interest. Except for (A) the conveyances hereunder, in
connection with any transaction permitted by Section 4.02(a)(i) and as
provided in Section 4.05 of this Agreement or Section 2.12 of the
Indenture or (B) conveyances with respect to which the Rating Agency
Condition has been satisfied and a Tax Opinion has been delivered, the
Transferor agrees not to transfer, sell, assign, exchange or otherwise
convey or pledge, hypothecate or otherwise grant a security interest in
the share of the Transferor Interest owned by it and any such attempted
transfer, assignment, exchange, conveyance, pledge, hypothecation,
grant or sale will be void; provided, however, that nothing in this
Section 2.05(vi) prevents the owner of an interest in the Transferor
Interest from granting to an Affiliate a participation interest or
other beneficial interest in the rights to receive cash flows related
to the Transferor Interest so long as (1) such interest does not grant
such Affiliate any rights hereunder or delegate to such Affiliate any
obligations or duties hereunder, (2) the transferor of such interest
obtains the prior written consent of the Transferor and (3) after
giving effect to such transfer, the interest in the Transferor Interest
owned directly by the Transferor, together with the interests of any
other Transferors (affiliated with Ford Credit), represent an ownership
interest in the Trust Assets equal to at least 2% of the Adjusted Pool
Balance.
Section 2.06. Designation of Additional Accounts.
(a) Required Addition. If, at the close of business on the last day of any
Collection Period, the Net Adjusted Pool Balance on such day is less than the
Required Pool Balance as of the following Distribution Date (after giving effect
to the allocations, distributions, withdrawals and deposits to be made on such
Distribution Date), then the Transferor will, within ten Business Days following
the end of such Collection Period, designate additional Eligible Accounts as
Additional Accounts such that, after giving effect to the transfer to the Issuer
on the applicable Addition Date of all Eligible Receivables (and the Related
Security) arising in connection with such Additional Accounts, the Net Adjusted
Pool Balance at the close of business on such Addition Date will be at least
equal to such Required Pool Balance. The Transferor will satisfy the conditions
specified in Section 2.06(d) in designating such Additional Accounts and
transferring the related Receivables to the Issuer. The failure of the
Transferor to transfer Receivables to the Issuer as provided in this Section
2.06(a) solely as a result of the unavailability of a sufficient amount of
Eligible Receivables will not constitute a breach of this Agreement; provided,
however, that any such failure will nevertheless result in the occurrence of an
Amortization Event described in Section 5.01(i) of the Indenture. In lieu of, or
in addition to, designating Additional Accounts as required pursuant to this
Section 2.06(a), the Transferor may transfer interests in Other Floorplan Assets
in accordance with Section 2.07.
(b) Optional Addition. The Transferor may from time to time, at its sole
discretion, subject to the conditions specified in Section 2.06(d), designate
additional Eligible Accounts as Additional Accounts and transfer to the Issuer
the Receivables (and the Related Security) arising in connection with such
Additional Accounts. In addition to the conditions specified in Section 2.06(d),
any additional Eligible Accounts designated by the Transferor, at its sole
discretion, pursuant to this Section 2.06(b) will be subject to the satisfaction
of the Rating Agency Condition if, as a result of such addition, either:
(i) the aggregate number of Additional Accounts designated pursuant to this
Section 2.06(b) in any calendar quarter or the aggregate amount of
Principal Receivables arising in connection with such Additional
Accounts as of the related Additional Cut-Off Dates in such calendar
quarter exceeds 10% of the number of all Accounts or 10% of the Pool
Balance, respectively, as of the first day of such calendar quarter; or
(ii) the aggregate number of Additional Accounts designated pursuant to this
Section 2.06(b) in any twelve-month period commencing on July 1 of each
year or the aggregate amount of Principal Receivables arising in
connection with such Additional Accounts as of the related Additional
Cut-Off Dates in such twelve-month period exceeds 20% of the number of
all Accounts or 20% of the Pool Balance, respectively, as of the first
day of such twelve-month period.
(c) Addition Notices. All Receivables and Related Security arising in connection
with any Additional Accounts owned by the Transferor at the close of business on
the applicable Additional Cut-Off Date will be transferred to the Issuer on a
date (the "Addition Date") specified in a written notice provided by the
Transferor (or the Servicer on its behalf) to the Owner Trustee, the Indenture
Trustee, any Series Enhancers and the Rating Agencies specifying the Additional
Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition
Notice"). The Addition Notice must be sent by the Transferor on or before the
second Business Day but not more than the 30th day before the related Addition
Date.
(d) Conditions. The Transferor is permitted to transfer to the Issuer the
Receivables and all Related Security related thereto arising in connection with
any Additional Accounts designated by the Transferor pursuant to Section 2.06(a)
or (b) only upon satisfaction of each of the following conditions on or before
the related Addition Date:
(i) the Transferor has provided the Owner Trustee, the Indenture Trustee,
the Rating Agencies and any Series Enhancers with a timely Addition
Notice;
(ii) the Transferor has delivered to the Owner Trustee a duly executed
written assignment (including an acceptance by the Owner Trustee) in
substantially the form of Exhibit A (the "Assignment"), along with the
applicable Additional Account Schedule in accordance with Section
2.01(e)(iii);
(iii) the Transferor has delivered to the Servicer all Collections on such
Additional Accounts relating to the time period on or after the
Additional Cut-Off Date;
(iv) the Transferor has represented and warranted that:
(A) each such Additional Account is an Eligible Account as of the
Additional Cut-Off Date;
(B) no selection procedures reasonably believed by the Transferor
to be adverse to the interests of the Noteholders or any
Series Enhancers were used in selecting such Additional
Accounts;
(C) the Additional Account Schedule delivered pursuant to clause
(ii) above is true and correct in all material respects as of
the Additional Cut-Off Date;
(D) as of the date of the Addition Notice and the Addition Date,
none of the Seller, the Transferor or the Servicer is
insolvent or will be made insolvent by the transfer and none
of them is aware of any events or circumstances that could
reasonably be expected to lead to its insolvency; and
(E) the addition of the Receivables arising in connection with
such Additional Accounts will not, in the reasonable belief of
the Transferor, cause an Amortization Event to occur;
(v) the Transferor has delivered to the Owner Trustee and the Indenture
Trustee (A) an Opinion of Counsel with respect to the Receivables in
the Additional Accounts substantially in the form of Exhibit C and (B)
a Tax Opinion with respect to such addition; and
(vi) the Transferor has delivered to the Owner Trustee, the Indenture
Trustee and any Series Enhancers an Officer's Certificate confirming,
to the best of such officer's knowledge, the satisfaction of each of
the conditions set forth in clauses (i) through (v) above. Each of the
Owner Trustee and the Indenture Trustee may conclusively rely on such
Officer's Certificate and has no duty to make inquiries with regard to
the matters set forth therein and will incur no liability in so
relying.
(e) Representations and Warranties. The Transferor hereby represents and
warrants on each applicable Addition Date as to the matters set forth in Section
2.06(d)(iv). These representations and warranties will survive the transfer of
the respective Receivables and the Related Security to the Issuer. Upon
discovery by the Transferor, the Servicer, the Owner Trustee, the Indenture
Trustee or any Series Enhancers of a material breach of any of these
representations and warranties, the party discovering such breach will give
prompt written notice to the other parties and to any Series Enhancers. If any
breach of the Transferor's representations and warranties as to the matters set
forth in Section 2.06(d)(iv) has a material adverse effect on the Noteholders'
Collateral in Receivables transferred to the Issuer by the Transferor, then the
provisions of Section 2.03(c) will apply, except that all references therein to
representations and warranties refer to the representations and warranties set
forth in Section 2.06(d)(iv); provided, however, that if such breach has a
material adverse effect only on the related Receivable, then the provisions of
Section 2.04(c) will apply, except that all references therein to
representations and warranties refer to the representations and warranties set
forth in Section 2.06(d)(iv).
Section 2.07. Addition of Interests in Other Floorplan Assets.
Subject to the satisfaction of the Rating Agency Condition, the
Transferor may from time to time enter into an amendment to this Agreement with
the other parties hereto pursuant to Section 8.01 for the purpose of providing
such amendments or additional provisions necessary to permit the Transferor to
transfer its interests in Other Floorplan Assets to the Issuer.
Section 2.08. Removal of Receivables in Eligible Accounts.
(a) Optional Redesignation. On any date, the Transferor has the right to
redesignate any Eligible Accounts as Redesignated Accounts and thereby remove
from the Trust Assets all Receivables and all Related Security in connection
with such Redesignated Accounts, including all amounts then held by the Issuer
or thereafter received by the Issuer in respect of such Receivables.
(b) Conditions. Any redesignation of Eligible Accounts as provided in
Section 2.08(a) is subject to the satisfaction of the following conditions:
(i) the Transferor (or the Servicer on its behalf) has, not less than two
Business Days and not more than 30 days before the applicable
Redesignation Date, delivered to the Owner Trustee, the Indenture
Trustee, any Series Enhancers and the Rating Agencies a Redesignation
Notice specifying such Redesignation Date on which removal of the
Receivables in one or more Eligible Accounts will occur;
(ii) the Transferor has delivered to the Servicer a written notice directing
the Servicer to select as Redesignated Accounts, in a manner that does
not result in a consolidation of the Issuer with the Seller under
applicable accounting standards then in effect, those Eligible Accounts
whose Principal Receivables approximately equal the amount of Principal
Receivables specified by the Transferor to be removed from the Trust
Assets on the applicable Redesignation Date;
(iii) the Transferor (or the Servicer on its behalf) has, on or before the
applicable Redesignation Date, delivered to the Owner Trustee and the
Indenture Trustee the applicable Redesignated Account Schedule;
(iv) the Transferor has represented and warranted that:
(A) the redesignation of any such Eligible Accounts on the
applicable Redesignation Date will not, in the reasonable
belief of the Transferor, cause an Amortization Event to occur
or cause the Net Adjusted Pool Balance to be less than the
Required Pool Balance;
(B) the Redesignated Accounts were selected in a manner that does
not result in a consolidation of the Issuer with Ford Credit
under applicable accounting standards then in effect and were
not chosen through a selection process that was materially
adverse to, or materially beneficial to, the interests of the
Noteholders, the holders of the Transferor Interest or any
Series Enhancers; and
(C) the Redesignated Account Schedule delivered pursuant to clause
(iii) above is true and correct in all material respects as of
its date;
(v) the Transferor has, on or before the applicable Redesignation Date,
delivered to the Owner Trustee, the Indenture Trustee, any Series
Enhancers and the Rating Agencies a Tax Opinion with respect to such
redesignation; and
(vi) the Transferor has delivered to the Owner Trustee, the Indenture
Trustee and any Series Enhancers an Officer's Certificate confirming,
to the best of such officer's knowledge, the satisfaction of each of
the conditions set forth in clauses (i) through (v) above. Each of the
Owner Trustee and the Indenture Trustee may conclusively rely on such
Officer's Certificate and has no duty to make inquiries with regard to
the matters set forth therein and will incur no liability in so
relying.
On the applicable Redesignation Date with respect to any such
Redesignated Account, all the related Receivables and Related Security,
including all amounts then held by the Issuer or thereafter received by the
Issuer in respect of such Receivables, will be deemed removed from the Trust
Assets for all purposes. After such Redesignation Date and upon written request
of the Servicer, the Owner Trustee will deliver to the Transferor a
Reassignment.
(c) Representations and Warranties. The Transferor hereby represents and
warrants on each applicable Redesignation Date as to the matters set forth in
Section 2.08(b)(iv). These representations and warranties will survive the
removal of the respective Receivables and the Related Security from the Issuer.
Upon discovery by the Transferor, the Servicer, the Owner Trustee, the Indenture
Trustee or any Series Enhancers of a material breach of any of these
representations and warranties, the party discovering such breach will give
prompt written notice to the other parties and to any Series Enhancers. If any
breach of the Transferor's representations and warranties as to the matters set
forth in Section 2.08(b)(iv) has a material adverse effect on the Noteholders'
Collateral in Receivables transferred to the Issuer by the Transferor, then the
provisions of Section 2.03(c) will apply, except that all references therein to
representations and warranties refer to the representations and warranties set
forth in Section 2.08(b)(iv). Notwithstanding anything herein to the contrary,
any material breach of a representation or warranty provided in clause (A) or
(B) of Section 2.08(b)(iv) will be deemed cured upon the Transferor's return to
the Issuer of all the related Receivables and all proceeds thereof relating to
the time period from the date of the redesignation that gave rise to such
breach, to and including the date of return. Upon any such return, the original
redesignation of the related Accounts will be deemed void ab initio and of no
effect for all purposes hereunder and under the other Transaction Documents. In
the case of any material breach of a representation or warranty provided in
clause (A) of Section 2.08(b)(iv), the Transferor may also cure such breach by
designating Additional Accounts pursuant to Section 2.06(b), in lieu of or in
combination with making a return of the related Receivables and all proceeds
thereof provided in the immediately preceding sentence.
Section 2.09. Removal of Receivables in Ineligible Accounts.
(a) As of the date on which the Servicer's records indicate that an Account has
become an Ineligible Account, the Transferor will be required to redesignate any
such Account as a Redesignated Account in the manner provided in Section 2.09(b)
or (c), as the case may be.
(b) With respect to each Performance Impaired Ineligible Account, the Transferor
(or the Servicer on its behalf) will take the following actions and make the
following determinations:
(i) by the Determination Date immediately succeeding the calendar month in
which the applicable Redesignation Date for such Account occurs,
deliver to the Owner Trustee, the Indenture Trustee, any Series
Enhancers and the Rating Agencies a Redesignation Notice (which may be
incorporated into the Distribution Date Statement prepared by the
Servicer) specifying such Redesignation Date;
(ii) by the Determination Date immediately succeeding the calendar month in
which the applicable Redesignation Date for such Account occurs,
deliver to the Owner Trustee and the Indenture Trustee the applicable
Redesignated Account Schedule, and represent and warrant that such
Redesignated Account Schedule is true and complete in all material
respects as of such Redesignation Date (each of the Owner Trustee and
the Indenture Trustee being entitled to conclusively rely on such
Redesignated Account Schedule and having no duty to make inquiries with
regard to the matters set forth therein and incurring no liability in
so relying); and
(iii) from and after the applicable Redesignation Date, cease to transfer to
the Issuer any and all Receivables arising in connection with the
Redesignated Account; provided, however, that the Receivables that were
transferred to the Issuer before such Redesignation Date will remain in
the Issuer as Trust Assets.
All Collections that relate to time periods on or after the applicable
Redesignation Date in respect of a Performance Impaired Ineligible Account will
be allocated between those Receivables that remain in the Issuer and those
Receivables arising in connection with such Performance Impaired Ineligible
Account on or after such Redesignation Date in the manner provided in Section
2.05(ii).
(c) With respect to each Ineligible Account other than a Performance Impaired
Ineligible Account, the Transferor (or the Servicer on its behalf) will take the
following actions and make the following determinations:
(i) by the Determination Date immediately succeeding the calendar month in
which the applicable Redesignation Date for such Account occurs,
deliver to the Owner Trustee, the Indenture Trustee, any Series
Enhancers and the Rating Agencies a Redesignation Notice (which may be
incorporated into the Distribution Date Statement prepared by the
Servicer) specifying such Redesignation Date; and
(ii) by the Determination Date immediately succeeding the calendar month in
which the applicable Redesignation Date for such Account occurs,
deliver to the Owner Trustee and the Indenture Trustee the applicable
Redesignated Account Schedule, and represent and warrant that such
Redesignated Account Schedule is true and complete in all material
respects as of such Redesignation Date (each of the Owner Trustee and
the Indenture Trustee being entitled to conclusively rely on such
Redesignated Account Schedule and having no duty to make inquiries with
regard to the matters set forth therein and incurring no liability in
so relying).
On the applicable Redesignation Date with respect to any such
Redesignated Account, all the related Receivables, including all amounts then
held by the Issuer or thereafter received by the Issuer in respect of such
Receivables, will be deemed removed from the Trust Assets for all purposes.
After such Redesignation Date and upon written request of the Servicer, the
Owner Trustee will deliver to the Transferor a Reassignment.
Section 2.10. Transfer of Ineligible Receivables.
The Transferor will transfer to the Issuer on each Transfer Date any
and all Ineligible Receivables arising in connection with any Account; provided
that (i) on the applicable Transfer Date, such Account is an Eligible Account
and (ii) the Incremental Subordinated Amount is adjusted in accordance with the
related Indenture Supplement.
Section 2.11. Exchanges of Certain Receivables.
If, at the end of the In-Transit Period with respect to any Receivable
described in clause (a) of the definition of "Receivable" (such Receivable,
being an "Exchangeable Receivable"), a new Receivable described in clause (c) of
the definition of "Receivable" arising under the related Account with respect to
the same New Vehicle is transferred to the Issuer by the Transferor in
accordance with the terms hereof, then such Exchangeable Receivable will be
deemed to have been paid in full and exchanged for such new Receivable on the
date the new Receivable is transferred to the Issuer (such date being an
"Exchange Date").
Section 2.12. Treatment of Cash Management Account Deposits and Withdrawals.
With respect to any Account, deposits made by a Dealer into the related
Cash Management Account will be treated as Principal Collections and, in
accordance with the Floorplan Financing Guidelines, the aggregate amount of
Principal Receivables financed in connection with such Account will decrease by
the amount of such deposit. Conversely, any withdrawals by such Dealer from its
Cash Management Account will be shown on the Servicer's records as a
supplemental advance to such Dealer and, in accordance with the Floorplan
Financing Guidelines, the aggregate amount of Principal Receivables financed in
connection with the related Account will increase by the amount of such
supplemental advance.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to
Servicer.
(a) The Servicer will service, manage, administer and make collections on the
Receivables, all in accordance with its customary and usual servicing procedures
for servicing dealer floorplan receivables comparable to the Receivables that
the Servicer services for its own account or others and in accordance with the
applicable Floorplan Financing Guidelines. The Servicer has full power and
authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration that it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 6.01, the Servicer is hereby
authorized and empowered, unless such power and authority is revoked by the
Indenture Trustee upon the occurrence of a Servicer Default pursuant to Section
6.01, to do any of the following:
(i) to make deposits into the Collection Account and to instruct the
Indenture Trustee or the Owner Trustee to make withdrawals and payments
from the Collection Account, the Excess Funding Account and any Series
Account as set forth in this Agreement, the Indenture or any Indenture
Supplement and, in connection therewith, perform all calculations
(including any allocations of funds and other amounts) required to be
performed by the Servicer as provided in this Agreement, the Indenture
or any Indenture Supplement;
(ii) to instruct the Indenture Trustee or the Owner Trustee to take any
action required or permitted under any Series Enhancement;
(iii) to execute and deliver, on behalf of the Issuer, any and all
instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with
respect to the Receivables and, after the delinquency of any Receivable
and to the extent permitted under and in compliance with applicable
Requirements of Law, to commence enforcement proceedings with respect
to such Receivables;
(iv) to make any filings, reports, notices, applications, registrations
with, and seek any consents or authorizations from, the Securities and
Exchange Commission and any state securities authority on behalf of the
Issuer as may be necessary or advisable to comply with any federal or
state securities laws or reporting requirement; and
(v) to delegate certain of its servicing, collection, enforcement and
administrative duties hereunder with respect to the Accounts and the
Receivables to any Person who agrees to conduct such duties in
accordance with the applicable Floorplan Financing Guidelines and this
Agreement; provided, however, that the Servicer will notify the
Indenture Trustee, the Owner Trustee, the Rating Agencies and any
Series Enhancers in writing of any such delegation other than in the
ordinary course of its business or to a Person that is not one of the
Servicer's Affiliates; and, provided further, that no delegation will
relieve the Servicer of its liability and responsibility with respect
to such delegated duties and will not constitute a resignation within
the meaning of Section 5.05.
The Indenture Trustee and the Owner Trustee will furnish the Servicer
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
(b) If the Transferor is unable for any reason to transfer Receivables to the
Issuer in accordance with the provisions of this Agreement then, in any such
event, the Servicer agrees (i) to give prompt written notice thereof to the
Indenture Trustee, the Owner Trustee, any Series Enhancers and each Rating
Agency and (ii) after the occurrence of such event, to allocate Collections
received in respect of each related Account in accordance with Section 2.05(ii).
(c) The Servicer will not, and any Successor Servicer will not, be obligated to
use servicing procedures, offices, employees or accounts for servicing the
Receivables different from the procedures, offices, employees and accounts used
by the Servicer in connection with servicing other floorplan receivables.
(d) The Servicer will comply with and perform its servicing obligations with
respect to the Accounts and Receivables in accordance with the applicable
Floorplan Financing Agreements relating to the Accounts and the applicable
Floorplan Financing Guidelines, except insofar as any failure to so comply or
perform would not materially and adversely affect the rights of the Issuer or
the Noteholders and any Series Enhancers. Subject to compliance with all
Requirements of Law, the Servicer may change the terms and provisions of any of
the Floorplan Financing Agreements or its Floorplan Financing Guidelines in any
respect (including the calculation of the amount or the timing of charge-offs
and the rate of the interest charge assessed thereon), only if:
(i) as a result of such change, in the reasonable judgment of the Servicer,
no Amortization Event will occur at any time and none of the Series
Enhancers, if any, or the Noteholders will be adversely affected;
(ii) such change is made applicable to the comparable segment of dealer
floorplan accounts owned or serviced by the Servicer that have
characteristics the same as, or substantially similar to, the Accounts
that are the subject of such change; and
(iii) in the case of a reduction in the rate of such interest charges, the
Servicer does not reasonably expect any such reduction to result in the
weighted average of the Reference Rates applicable to the Receivables
(net of the applicable rate used to calculate the Servicing Fee) for
any Collection Period being less than the sum of (A) the weighted
average of the Note Interest Rates and (B) the applicable rate used to
calculate the Servicing Fee for the related Interest Period (each such
term as defined in the related Indenture Supplement).
For purposes of clause (iii) of the preceding sentence, so long as the Reference
Rate is based on the prime rate of one or more banks (which bank or banks may
change from time to time), downward fluctuations in the Reference Rate will not
be deemed to be a reduction in the rate of such interest charges; provided that
a reduction in the margin added to such Reference Rate to determine the interest
charge would be a reduction in such interest charge.
(e) On behalf of the Issuer (to the extent of the Issuer's interest therein),
the Servicer hereby agrees that it holds in trust any document in its possession
evidencing or securing a Receivable and necessary for its servicing thereof
pursuant to this Agreement. The Servicer acknowledges that it holds any
documents relating to the Receivables in its possession as agent and bailee and
custodian for the use and benefit of the Indenture Trustee and the Issuer.
Section 3.02. Servicing Compensation.
(a) As full compensation for its servicing activities hereunder and
reimbursement for its expenses as set forth in the immediately following
paragraph, the Servicer is entitled to receive the Servicing Fee on each
Distribution Date on or before the Trust Termination Date payable in arrears.
The "Servicing Fee" is the aggregate of the Monthly Servicing Fees specified in
the Indenture Supplements. The Servicing Fee is payable to the Servicer solely
to the extent amounts are available for payment in accordance with the terms of
the Indenture Supplements.
(b) The Servicer will be required to pay all expenses incurred by it in
connection with its servicing activities hereunder, including (i) all reasonable
fees and disbursements of the Owner Trustee, the Delaware Trustee, the Indenture
Trustee, the Administrator and independent accountants, (ii) taxes imposed on
the Servicer and (iii) expenses incurred in connection with making distributions
and providing reports to the Noteholders and others.
Section 3.03. Representations, Warranties and Covenants of Servicer.
(a) Representations and Warranties. Ford Credit, as Servicer, hereby makes, and
any Successor Servicer by its appointment hereunder will make, on each Closing
Date (and on the date of any such appointment) the following representations,
warranties and covenants:
(i) Organization and Good Standing. It is a corporation or other legal
entity duly organized, validly existing and in good standing under the
applicable laws of the jurisdiction of its organization and has, in all
material respects, full corporate or other power, authority and legal
rights to own its properties and conduct its floorplan receivable
servicing business as such properties are currently owned and as such
business is currently conducted, and to execute, deliver and perform
its obligations under this Agreement.
(ii) Due Qualification. It is duly qualified to do business and, where
necessary, is in good standing as a foreign corporation or other legal
entity (or is exempt from such requirements) and has obtained all
necessary licenses and approvals in each jurisdiction where the
servicing of the Receivables as required by this Agreement requires
such qualification, except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on its
ability to perform its obligations under this Agreement.
(iii) Due Authorization. It has duly authorized by all necessary action on
its part, the execution and delivery of this Agreement and the
consummation of the transactions provided for or contemplated by this
Agreement.
(iv) No Conflict. Its execution and delivery of this Agreement, its
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof applicable to it, 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 material indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a
party or by which it or its properties are bound.
(v) No Violation. Its execution and delivery of this Agreement, its
performance of the transactions contemplated by this Agreement and its
fulfillment of the terms hereof applicable to it will not conflict with
or violate any material Requirement of Law applicable to it.
(vi) No Proceedings. There are no proceedings pending or, to the best of its
knowledge, no proceedings threatened or investigations pending or
threatened against it before or by any Governmental Authority (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement,
(C) seeking any determination or ruling that, in its reasonable
judgment, would materially and adversely affect its performance of its
obligations under this Agreement or (D) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement.
(vii) All Consents Required. All material authorizations, consents, orders,
approvals or other actions of any Governmental Authority required to be
obtained or effected by the Servicer in connection with its execution
and delivery of this Agreement, its performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
applicable to it, have been duly obtained or effected and are in full
force and effect.
(viii) Enforceability. This Agreement constitutes its legal, valid and binding
obligation of the Servicer, enforceable against it in accordance with
the terms hereof, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect affecting the enforcement of
creditors' rights and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law
or in equity).
(ix) Compliance with Requirements of Law. It will duly satisfy all
obligations on its part to be fulfilled under or in connection with the
Receivables and the Accounts, will maintain in effect all
qualifications required under Requirements of Law in order to service
properly the Receivables and the Accounts and will comply in all
material respects with all Requirements of Law in connection with
servicing the Receivables and the Accounts the failure to comply with
which would have a material adverse effect on the interests of the
Noteholders, the holders of the Transferor Interest or any Series
Enhancers.
(x) No Rescission or Cancellation. It will not permit any rescission or
cancellation of a Receivable except as ordered by a court of competent
jurisdiction or other Governmental Authority.
(xi) Protection of Beneficiaries' Rights. It will take no action, nor omit
to take any action, that would impair the rights of the Noteholders,
the holders of the Transferor Interest or any Series Enhancers in the
Receivables nor will it reschedule, revise or defer payments due on any
Receivable except in accordance with the applicable Floorplan Financing
Guidelines.
(xii) Negative Pledge. Except for the Liens permitted by the Transaction
Documents, it will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on,
any Receivable transferred and assigned to the Issuer, whether now
existing or hereafter created, or any interest therein, and it will
defend the rights, title and interest of the Issuer in, to and under
any Receivable transferred and assigned to the Issuer, whether now
existing or hereafter created, against all claims of third parties
claiming through or under the Transferor or the Servicer.
(b) Notice of Breach. The representations and warranties set forth in Section
3.03(a) survive the transfer and assignment of the Receivables and Related
Security to the Issuer. Upon discovery by the Transferor, the Owner Trustee, the
Indenture Trustee or the Servicer of a material breach of any of the foregoing
representations and warranties, the party discovering such breach will give
prompt written notice to the other parties and to any Series Enhancers.
(c) Purchase upon Breach. If any representation or warranty set forth in clauses
(ix) through (xii) of Section 3.03(a) is not true and correct in any material
respect as of the date specified therein with respect to any Receivable and such
breach has a material adverse effect on a Receivable included in the
Noteholders' Collateral, then, within 30 days (or such longer period as may be
agreed to by the Indenture Trustee) of the earlier to occur of the discovery of
any such breach by the Servicer, or receipt by the Servicer of written notice of
any such breach given by the Owner Trustee, the Indenture Trustee, the
Transferor or any Series Enhancers, the Servicer will purchase such Receivable
on the Determination Date immediately succeeding the expiration of such 30-day
period (or such longer period as may be agreed to by the Indenture Trustee) on
the terms and conditions set forth in the next succeeding paragraph; provided,
however, that no such purchase will be required to be made if, by the end of
such 30-day period (or such longer period as may be agreed to by the Indenture
Trustee) the representations and warranties are then true and correct in all
material respects and any material adverse effect caused by the breach has been
cured.
The Servicer will effect such purchase by depositing into the
Collection Account in immediately available funds an amount equal to the
Purchase Price of such Receivable. Any such deposit of such Purchase Price into
the Collection Account will be considered Principal Collections and will be
applied in accordance with the terms of this Agreement. Upon purchase of any
such Receivable, but only after the deposit by the Servicer of the Purchase
Price of such Receivable, the Issuer will automatically and without further
action be deemed to transfer, assign, set over and otherwise convey to the
Servicer, without recourse, representation or warranty, all the right, title and
interest of the Issuer in and to such Receivable, all Related Security and all
moneys due or to become due with respect thereto and all proceeds thereof. The
Owner Trustee will execute such documents and instruments of transfer or
assignment and take such other actions as are reasonably requested by the
Servicer to effect the conveyance of such Receivables pursuant to this Section.
The obligation of the Servicer to purchase any such Receivable and to deposit
the Purchase Price of such Receivable into the Collection Account, constitutes
the sole remedy with respect to the event of the type specified in the first
sentence of this Section 3.03(c) available to the Noteholders (or the Owner
Trustee or the Indenture Trustee on behalf of the Noteholders).
Section 3.04. Preparation of Distribution Date Statements.
On or before each Distribution Date, with respect to each outstanding
Series, the Servicer will deliver to any Series Enhancers, the Rating Agencies,
the Owner Trustee, the Indenture Trustee and each Noteholder a Distribution Date
Statement for such Distribution Date substantially in the form set forth in the
related Indenture Supplement.
Section 3.05. Annual Servicer's Certificate.
The Servicer will deliver to the Owner Trustee, the Indenture Trustee
and each Series Enhancer on or before April 30 of each calendar year, beginning
with April 30, 2002, an Officer's Certificate, dated as of December 31 of the
preceding calendar year, stating that (i) a review of the activities of the
Servicer during such preceding calendar year (or such shorter period) and of its
performance under this Agreement was made under such officer's supervision and
(ii) to the best of such officer's knowledge, based on such review, the Servicer
has fulfilled in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such certificate may be
obtained by any Noteholder by a request in writing to the Indenture Trustee
addressed to the Corporate Trust Office.
Section 3.06. Annual Independent Public Accountants' Servicing Report.
The Servicer will cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the
Transferor, to deliver to the Indenture Trustee, the Owner Trustee and each
Series Enhancer on or before April 30 of each calendar year, beginning with
April 30, 2002, a report addressed to the Board of Directors of the Servicer, to
the effect that such firm has audited the financial statements of the Servicer
and issued its report thereon and that such audit (i) was made in accordance
with generally accepted auditing standards, (ii) included tests relating to
dealer floorplan receivables (including financing arrangements with automobile
dealers to finance their automobile and light-duty truck inventory serviced for
others) in accordance with generally accepted auditing standards and (iii)
except as described in the report, disclosed no exceptions or errors in the
records relating to floorplan receivables (including financing arrangements with
automobile dealers to finance their automobile and light-duty truck inventory
serviced for others) that such firm is required to report under generally
accepted auditing standards. Such report will also indicate that the firm is
independent of the Servicer within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants. A copy of such
report may be obtained by any Noteholder by a request in writing to the
Indenture Trustee addressed to the Corporate Trust Office.
Section 3.07. Notices to Ford Credit.
If Ford Credit is no longer acting as Servicer, any Successor Servicer
appointed pursuant to Section 6.02 will deliver or make available to Ford
Credit, as the case may be, each certificate and report required to be prepared,
forwarded or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06.
Section 3.08. Adjustments.
(a) If the Servicer adjusts downward the amount of any Principal Receivable
because of a rebate, refund, credit adjustment or billing error to a Dealer,
then, in any such case, the Transferor Amount will be automatically reduced by
the amount of the adjustment. If, on any Exchange Date, the new Receivable
transferred to the Issuer is lower than the related Exchangeable Receivable, the
Transferor Amount will also be reduced by the amount of the difference.
Furthermore, if following any such reduction the Transferor Amount would be less
than the Required Transferor Amount on the immediately preceding Determination
Date (after giving effect to the allocations, distributions, withdrawals and
deposits to be made on the Distribution Date following such Determination Date),
then the Transferor will pay an amount equal to such deficiency (up to the
amount of such adjustment) into the Excess Funding Account on the Business Day
on which such adjustment or reduction occurs (each such payment an "Adjustment
Payment").
(b) If (i) the Servicer makes a deposit into the Collection Account in respect
of a Collection of a Receivable and such Collection was received by the Servicer
in the form of a check that is not honored for any reason or (ii) the Servicer
makes a mistake with respect to the amount of any Collection and deposits an
amount that is less than or more than the actual amount of such Collection, the
Servicer will appropriately adjust the amount subsequently deposited into the
Collection Account to reflect such dishonored check or mistake. Any Receivable
in respect of which a dishonored check is received will be deemed not to have
been paid.
Section 3.09. Reports to Securities and Exchange Commission.
The Servicer will, on behalf of the Issuer, cause to be filed with the
Securities and Exchange Commission any periodic reports required to be filed
under the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder. The
Transferor will, at the expense of the Servicer, cooperate in any reasonable
request of the Servicer in connection with such filings.
ARTICLE IV
OTHER MATTERS RELATING TO TRANSFEROR
Section 4.01. Liability of Transferor.
The Transferor will be liable for all of its obligations, covenants,
representations and warranties arising under or related to this Agreement or the
other Transaction Documents. Except as provided in the preceding sentence, the
Transferor will be liable only to the extent of the obligations specifically
undertaken by it in its capacity as Transferor hereunder.
Section 4.02. Merger or Consolidation of, or Assumption of, Obligations of
Transferor.
(a) The Transferor may not dissolve, liquidate, consolidate with or merge into
any other Person or convey, transfer or sell its properties and assets
substantially as an entirety to any Person unless:
(i) the Person (if other than the Transferor) formed by or surviving such
consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Transferor substantially as an
entirety, as the case may be, will be organized and existing under the
laws of the United States of America or any state thereof or the
District of Columbia, and expressly assumes, by a supplemental
agreement executed and delivered to the Owner Trustee and the Indenture
Trustee, in form reasonably satisfactory to the Owner Trustee and the
Indenture Trustee, the performance of every covenant and obligation of
the Transferor hereunder;
(ii) the Person (if other than the Transferor) formed by or surviving such
consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Transferor substantially as an
entirety, as the case may be, has delivered to the Owner Trustee and
the Indenture Trustee (with a copy to each Rating Agency):
(A) an Officer's Certificate and an Opinion of Counsel each stating that
(1) such consolidation, merger, conveyance, transfer or sale and such
supplemental agreement provided in clause (i) above comply with this
Section, (2) such supplemental agreement is a valid and binding
obligation of such Person enforceable against such Person in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally from time to time in
effect or general principles of equity and (3) all conditions precedent
herein provided for relating to such transaction have been satisfied;
and
(B) a Tax Opinion; and
(iii) the Rating Agency Condition has been satisfied with respect to such
consolidation, merger, conveyance, transfer or sale.
(b) Except as permitted by Section 2.05(vi), the Transferor's obligations,
rights or any part thereof hereunder will not be assignable nor may any Person
succeed to the Transferor's obligations or rights hereunder except (i) for
conveyances, mergers, consolidations, assumptions, sales or transfers in
accordance with the provisions of Section 4.02(a) and (ii) for conveyances,
mergers, consolidations, assumptions, sales or transfers to other entities (A)
that the Transferor and the Servicer determine will not result in an Adverse
Effect, (B) that meet the requirements of clause (iii) of the preceding
paragraph and (C) for which such purchaser, transferee, pledgee or entity
expressly assumes, in a supplemental agreement executed and delivered to the
Owner Trustee and the Indenture Trustee in writing, in form satisfactory to the
Owner Trustee and the Indenture Trustee, the performance of every covenant and
obligation of the Transferor thereby conveyed.
Section 4.03. Limitation on Liability of Transferor.
Subject to Section 4.01, neither the Transferor nor any of its
directors, shareholders, members, managers, officers, employees or agents will
be under any liability to the Issuer, the Owner Trustee, the Indenture Trustee,
the Noteholders, any other Transferor, any Series Enhancers or any other Person
for any action taken or for refraining from the taking of any action in the
capacity as a Transferor under this Agreement whether arising from express or
implied duties under this Agreement; provided, however, that this provision does
not protect the Transferor or any such Person against any liability that would
otherwise be imposed by reason of willful wrongdoing, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Transferor and any of its directors,
shareholders, members, managers, officers, employees or agents may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder.
Section 4.04. Transferor Indemnification of Issuer and Trustees.
(a) Notwithstanding Section 4.03 to the contrary, the Transferor will indemnify
and hold harmless each of the Issuer, the Owner Trustee, the Delaware Trustee,
the Indenture Trustee and any trustees predecessor thereto and their respective
directors, officers, employees and agents from and against any and all loss,
liability, claim, expense, damage or injury suffered or sustained thereby by
reason of (1) any acts or omissions of the Transferor in connection with this
Agreement or (2) the acceptance or performance of the trusts and duties
contained herein and in the other Transaction Documents to which the Owner
Trustee, the Delaware Trustee or the Indenture Trustee, as applicable, is a
party; provided, however, that the Transferor will not indemnify the Issuer, the
Owner Trustee, the Delaware Trustee or the Indenture Trustee for:
(i) any such loss, liability, claim, expense, damage or injury arising from
the negligence or willful misconduct of the Owner Trustee, the Delaware
Trustee or the Indenture Trustee, as applicable;
(ii) any liabilities, cost or expense of the Issuer with respect to any
action taken by the Owner Trustee, the Delaware Trustee or the
Indenture Trustee, as applicable, at the request of any such
Noteholders or Series Enhancers to the extent that the Owner Trustee,
the Delaware Trustee or the Indenture Trustee, as applicable, is fully
indemnified by such Noteholders or Series Enhancers with respect to
such action; or
(iii) with respect to any United States federal, state or local income or
franchise taxes (or any interest or penalties with respect thereto)
required to be paid by the Issuer or any Noteholder or Series Enhancer
in connection herewith or with the Indenture to any taxing authority.
(b) Subject to Section 4.01, any indemnification pursuant to this Section will
only be payable from (i) the excess of the Transferor's Interest for any date of
determination over the Required Transferor Interest as of such date and (ii) any
other assets of the Transferor not pledged to third parties or otherwise
encumbered in a manner permitted by the Transferor's Certificate of Formation
and will only be made after payment in full of any amounts that the Transferor
is obligated to deposit into the Collection Account or the Excess Funding
Account pursuant to this Agreement. The Transferor's obligations under this
Section survives the termination of this Agreement or the Issuer or the earlier
removal or resignation of the Owner Trustee, the Delaware Trustee or the
Indenture Trustee, as applicable.
Section 4.05. Subsequent Transferors.
The Transferor may designate any one of its Affiliates as a transferor
of Receivables and, if applicable, interests in Other Floorplan Assets to be
acquired by the Issuer (each such transferor, a "Subsequent Transferor") so long
as (i) the Subsequent Transferor enters into a transfer and servicing agreement
substantially similar to this Agreement and (ii) the designating Transferor
directs the Owner Trustee to make the appropriate entries in its books and
records to reflect such Subsequent Transferor's interest in the Transferor
Interest; provided, however, that, before any such designation and direction,
the Rating Agency Condition and the condition set forth in clause (iv) of
Section 3.06(b) of the Trust Agreement have been satisfied.
ARTICLE V
OTHER MATTERS RELATING TO SERVICER
Section 5.01. Liability of Servicer.
The Servicer will be liable under this Article V only to the extent of
the obligations specifically undertaken by the Servicer in its capacity as
Servicer and as otherwise provided in Section 5.04.
Section 5.02. Merger or Consolidation of, or Assumption of, Obligations of
Servicer.
The Servicer may not dissolve, liquidate, consolidate with or merge
into any other Person or convey, transfer or sell its properties and assets
substantially as an entirety to any Person unless:
(i) the Person (if other than the Servicer) formed by or surviving such
consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Servicer substantially as an
entirety, as the case may be, will be organized and existing under the
laws of the United States of America or any state thereof or the
District of Columbia, and expressly assumes, by a supplemental
agreement executed and delivered to the Owner Trustee and the Indenture
Trustee, in form reasonably satisfactory to the Owner Trustee and the
Indenture Trustee, the performance of every covenant and obligation of
the Servicer hereunder;
(ii) the Person (if other than the Servicer) formed by or surviving such
consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Servicer substantially as an
entirety, as the case may be, has delivered to the Owner Trustee and
the Indenture Trustee (with a copy to each Rating Agency):
(A) an Officer's Certificate and an Opinion of Counsel each stating that
(1) such consolidation, merger, conveyance, transfer or sale and such
supplemental agreement provided in clause (i) above comply with this
Section, (2) such supplemental agreement is a valid and binding
obligation of such Person enforceable against such Person in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally from time to time in
effect or general principles of equity and (3) all conditions precedent
herein provided for relating to such transaction have been satisfied;
and
(B) an Officer's Certificate stating that such Person is an Eligible
Servicer; and
(iii) the Servicer has given the Rating Agencies notice of such
consolidation, merger, conveyance, transfer or sale of assets.
Section 5.03. Limitation on Liability of Servicer and Others.
Subject to Section 5.01, neither the Servicer nor any of its directors,
shareholders, officers, employees or agents will be under any liability to the
Issuer, the Owner Trustee, the Delaware Trustee, the Indenture Trustee, the
Noteholders, any Series Enhancers or any other Person for any action taken or
for refraining from the taking of any action in the capacity as Servicer under
this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision does not protect the Servicer
or any such Person against any liability that would otherwise be imposed by
reason of willful wrongdoing, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Servicer and any of its directors, shareholders, officers,
employees or agents may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Servicer will not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its servicing
responsibilities hereunder and that in its reasonable opinion may involve it in
any expense or liability.
Section 5.04. Servicer Indemnification of Issuer and Trustees.
(a) Notwithstanding Section 5.03 to the contrary, the Servicer will indemnify
and hold harmless each of the Issuer, the Owner Trustee, the Delaware Trustee,
the Indenture Trustee and any trustees predecessor thereto and their respective
directors, officers, employees and agents from and against any and all loss,
liability, claim, expense, damage or injury suffered or sustained thereby by
reason of (1) any acts or omissions of the Servicer in connection with this
Agreement or (2) the acceptance or performance of the trusts and duties
contained herein and in the other Transaction Documents to which the Owner
Trustee, the Delaware Trustee or the Indenture Trustee, as applicable, is a
party; provided, however, that that the Servicer will not indemnify the Issuer,
the Owner Trustee, the Delaware Trustee or the Indenture Trustee for:
(i) any such loss, liability, claim, expense, damage or injury arising from
the negligence or willful misconduct of the Owner Trustee, the Delaware
Trustee or the Indenture Trustee, as applicable;
(ii) any liabilities, cost or expense of the Issuer with respect to any
action taken by the Owner Trustee, the Delaware Trustee or the
Indenture Trustee, as applicable, at the request of any such
Noteholders or Series Enhancers to the extent that the Owner Trustee,
the Delaware Trustee or the Indenture Trustee, as applicable, is fully
indemnified by such Noteholders or Series Enhancers with respect to
such action; or
(iii) with respect to any United States federal, state or local income or
franchise taxes (or any interest or penalties with respect thereto)
required to be paid by the Issuer or any Noteholder or Series Enhancer
in connection herewith or with the Indenture to any taxing authority.
(b) Any indemnification pursuant to this Section will not be payable from the
Trust Assets. The Servicer's obligations under this Section survives the
termination of this Agreement or the Issuer or the earlier removal or
resignation of the Owner Trustee, the Delaware Trustee or the Indenture Trustee,
as applicable.
Section 5.05. Resignation of Servicer.
The Servicer may not resign from the obligations and duties hereby
imposed on it, except:
(i) upon determination that (A) the performance of its duties hereunder is
no longer permissible under applicable law and (B) there is no
reasonable action that the Servicer could take to make the performance
of its duties hereunder permissible under applicable law; or
(ii) upon the assumption of such obligations and duties by a successor
Servicer in compliance with the requirements set forth in Section 5.02.
Any determination permitting the resignation of the Servicer must be evidenced
as to clause (i) above by an Opinion of Counsel to such effect delivered to the
Owner Trustee and the Indenture Trustee. No resignation pursuant to clause (i)
above will become effective until the Indenture Trustee or a Successor Servicer
has assumed the responsibilities and obligations of the Servicer in accordance
with Section 6.02. Notwithstanding the foregoing, the Indenture Trustee may
petition a court of competent jurisdiction to appoint any Person qualifying as
an Eligible Servicer as the Successor Servicer hereunder. The Indenture Trustee
will give prompt notice to each Rating Agency and each Series Enhancer upon the
appointment of a Successor Servicer. Notwithstanding anything herein to the
contrary, in no event will the Indenture Trustee be liable for any Servicing Fee
or for any differential in the amount of the Servicing Fee paid hereunder and
the amount necessary to induce any Person to act as Successor Servicer under
this Agreement and the transactions contemplated hereby.
Section 5.06. Access to Certain Documentation and Information Regarding
Receivables.
The Servicer will provide to the Owner Trustee and the Indenture
Trustee access to the documentation regarding the Accounts and the related
Receivables in such cases where the Owner Trustee or the Indenture Trustee, as
applicable, is required in connection with the enforcement of the rights of the
Noteholders, or by applicable statutes or regulations to review such
documentation. The Servicer will provide such access without charge but only (i)
upon reasonable request, (ii) during normal business hours, (iii) subject to the
Servicer's normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. Nothing in this Section limits or modifies the
obligation of the Transferor, the Owner Trustee, the Indenture Trustee or the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Dealers and the failure of the Servicer to provide access as
provided in this Section as a result of such law will not constitute a breach of
this Section.
Section 5.07. Examination of Records.
The Transferor and the Servicer will indicate generally in its computer
files or other records that the Receivables arising in connection with the
Accounts have been transferred to the Issuer pursuant to this Agreement for the
benefit of the Noteholders and any Series Enhancers. Each Transferor and the
Servicer will, before the sale or transfer to a third party of any receivable
held in its custody, examine its computer and other records to determine that
such receivable is not a Receivable.
ARTICLE VI
SERVICER DEFAULTS
Section 6.01. Servicer Defaults.
(a) If any of the following events (a "Servicer Default") occurs and is
continuing with respect to the Servicer:
(i) any failure by the Servicer to make any payment, transfer or deposit or
to give instructions or to give notice to the Indenture Trustee to make
such payment, transfer or deposit on or before the date occurring five
Business Days after the date such payment, transfer or deposit or such
instruction or notice is required to be made or given, as the case may
be, under the terms of this Agreement the Indenture or any Indenture
Supplement;
(ii) failure on the part of the Servicer duly to observe or perform in any
material respect any other of its covenants or agreements set forth in
this Agreement that has an Adverse Effect and continues unremedied
for a period of 60 days after the date on which notice of such failure,
requiring the same to be remedied, has been given to the Servicer by
the Owner Trustee or the Indenture Trustee, or to the Servicer, the
Owner Trustee and the Indenture Trustee by Holders of Notes evidencing
not less than 10% of the aggregate unpaid principal amount of all Notes
(or, with respect to any such failure that does not relate to all
Series, 10% of the aggregate unpaid principal amount of all Series to
which such failure relates); or the Servicer delegates or assigns its
duties under this Agreement, except as permitted by Sections 3.01(a),
5.02 and 6.02;
(iii) any representation, warranty or certification made by the Servicer in
this Agreement or in any certificate delivered pursuant to this
Agreement proves to have been incorrect when made and such error has an
Adverse Effect on the rights of the Noteholders of any Series (which
determination will be made without regard to whether funds are then
available pursuant to any Series Enhancement) and such Adverse Effect
continues for a period of 60 days after the date on which notice
thereof, requiring the same to be remedied, has been given to the
Servicer by the Owner Trustee or the Indenture Trustee, or to the
Servicer, the Owner Trustee and the Indenture Trustee by the Holders of
Notes evidencing not less than 10% of the aggregate unpaid principal
amount of all Notes (or, with respect to any such representation,
warranty or certification that does not relate to all Series, 10% of
the aggregate unpaid principal amount of all Series to which such
representation, warranty or certification relates); or
(iv) the Servicer consents to the appointment of a bankruptcy trustee or
conservator or receiver or liquidator in any bankruptcy proceeding or
other insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of
or relating to all or substantially all its property, or a decree or
order of a court or agency or supervisory authority having jurisdiction
in the premises for the appointment of a bankruptcy trustee or a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or the winding-up or liquidation of its affairs, is entered against the
Servicer and such decree or order remains in force undischarged or
unstayed for a period of 60 days; or the Servicer admits in writing its
inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, makes any assignment for the benefit of its
creditors or voluntarily suspends payment of its obligations;
then, in the event of any Servicer Default, so long as the Servicer Default has
not been remedied, either the Indenture Trustee or the Holders of Notes
evidencing more than 50% of the aggregate unpaid principal amount of all Notes,
by notice then given to the Servicer and the Owner Trustee (and to the Indenture
Trustee if given by the Noteholders) (a "Termination Notice"), may terminate all
but not less than all the rights and obligations of the Servicer as Servicer
under this Agreement; provided, however, that if within 60 days of receipt of a
Termination Notice the Indenture Trustee does not receive any bids from Eligible
Servicers in accordance with Section 6.02(c) to act as a Successor Servicer and
receives an Officer's Certificate of the Servicer to the effect that the
Servicer cannot in good faith cure the Servicer Default which gave rise to the
Termination Notice, the Indenture Trustee will grant a right of first refusal to
the Transferor permitting the Transferor at its option to acquire the
Noteholders' Collateral serviced by the Servicer on the Distribution Date in the
next calendar month. The price for the Noteholders' Collateral will be equal to
the sum of the Reassignment Amounts with respect to each outstanding Series in
the related Indenture Supplement. The Transferor will notify the Indenture
Trustee prior to the Record Date (as defined in the Indenture) for the
Distribution Date of the acquisition if it is exercising such right of first
refusal. If the Transferor exercises such right of first refusal, the Transferor
will deposit the price into the Collection Account no later than 1:00 p.m., New
York City time, on such Distribution Date in immediately available funds. The
price will be allocated and distributed to the Noteholders on such Distribution
Date in accordance with the Indenture and each Indenture Supplement in payment
of their Notes and will result in a corresponding increase in the Transferor
Interest.
(b) After receipt by the Servicer of a Termination Notice, and on the date that
a Successor Servicer is appointed by the Indenture Trustee pursuant to Section
6.02, all authority and power of the Servicer under this Agreement will pass to
and be vested in the Successor Servicer (a "Servicing Transfer"); and, without
limitation, the Indenture Trustee is hereby authorized and empowered (upon the
failure of the Servicer to cooperate) to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
upon the failure of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such Servicing Transfer. The Servicer
agrees to cooperate with the Indenture Trustee and such Successor Servicer in
effecting the termination of the responsibilities and rights of the Servicer to
conduct servicing hereunder, including the transfer to such Successor Servicer
of all authority of the Servicer to service the Receivables provided for under
this Agreement, including all authority over all Collections that are held by
the Servicer for deposit on the date of transfer, or that have been deposited by
the Servicer, in the Collection Account, or that thereafter are received with
respect to the Receivables, and in assisting the Successor Servicer. The
Servicer will within 20 Business Days transfer its electronic records relating
to the Receivables to the Successor Servicer in such electronic form as the
Successor Servicer may reasonably request and will promptly transfer to the
Successor Servicer all other records, correspondence and documents necessary for
the continued servicing of the Receivables in the manner and at such times as
the Successor Servicer reasonably requests. To the extent that compliance with
this Section requires the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer deems to be confidential, the
Successor Servicer will enter into such customary licensing and confidentiality
agreements as the Servicer deems reasonably necessary to protect its interests.
(c) Notwithstanding the foregoing, a delay in or failure of performance referred
to in clause (i) of Section 6.01(a) for a period of ten Business Days after the
applicable grace period or under clause (ii) or (iii) of Section 6.01(a) for a
period of 60 Business Days after the applicable grace period, will not
constitute a Servicer Default if such delay or failure could not be prevented by
the exercise of reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or a public enemy, acts of declared or undeclared
war, public disorder, rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes outside the reasonable
control of the Servicer. The preceding sentence will not relieve the Servicer
from using all commercially reasonable efforts to perform its obligations in a
timely manner in accordance with the terms of this Agreement and the Servicer
will provide the Indenture Trustee, the Owner Trustee, the Transferor and any
Series Enhancer with an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of its efforts so to perform
its obligations.
Section 6.02. Indenture Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination Notice pursuant to
Section 6.01(a), the Servicer will continue to perform all servicing functions
under this Agreement until the date specified in the Termination Notice or
otherwise specified by the Indenture Trustee or until a date mutually agreed
upon by the Servicer and the Indenture Trustee. The Indenture Trustee will as
promptly as practicable after the giving of a Termination Notice appoint an
Eligible Servicer as a successor servicer (the "Successor Servicer"), and such
Successor Servicer will accept its appointment by a written assumption in a form
acceptable to the Indenture Trustee. If a Successor Servicer has not been
appointed or has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Indenture Trustee without further action will
automatically be appointed the Successor Servicer. The Indenture Trustee, as
Servicer, may delegate any of its servicing obligations to an Affiliate or agent
in accordance with Section 3.01(a). At any time following the appointment of the
Indenture Trustee as Successor Servicer, the Indenture Trustee may appoint an
Eligible Servicer to replace it as Successor Servicer (and not as its agent) and
upon the appointment of, and acceptance by, such Eligible Servicer, the
Indenture Trustee will be relieved of all its duties as Successor Servicer.
Notwithstanding the foregoing, the Indenture Trustee will, if it is legally
unable so to act, petition at the expense of the Servicer a court of competent
jurisdiction to appoint any Person qualifying as an Eligible Servicer as the
Successor Servicer hereunder. The Indenture Trustee will give prompt notice to
each Rating Agency and each Series Enhancer upon the appointment of a Successor
Servicer. Notwithstanding anything herein to the contrary, in no event will the
Indenture Trustee be liable for any Servicing Fee or for any differential in the
amount of the Servicing Fee paid hereunder and the amount necessary to induce
any Person to act as Successor Servicer under this Agreement and the
transactions contemplated hereby.
(b) Upon its appointment, the Successor Servicer will be the successor in all
respects to the Servicer with respect to servicing functions under this
Agreement and will be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer will be deemed to
refer to the Successor Servicer. Any Successor Servicer, by its acceptance of
its appointment, will automatically agree to be bound by the terms and
provisions of any Series Enhancement Agreement.
(c) In connection with any Termination Notice, the Indenture Trustee will review
any bids it obtains from Eligible Servicers and may appoint any Eligible
Servicer submitting such a bid as a Successor Servicer for servicing
compensation not in excess of the aggregate Servicing Fees for all Series plus
the sum of the amounts with respect to each Series and with respect to each
Distribution Date equal to any Interest Collections allocable to the Noteholders
of such Series which are payable to the Owner Trustee for distribution to the
holders of the Transferor Interest in accordance with the Trust Agreement after
payment of all amounts owing to the Noteholders of such Series with respect to
such Distribution Date or required to be deposited in the applicable Series
Accounts with respect to such Distribution Date and any amounts required to be
paid to any Series Enhancer for such Series with respect to such Distribution
Date pursuant to the terms of any Series Enhancement Agreement; provided,
however, that the holders of the Transferor Interest will be responsible for
payment of the Transferor's portion of such aggregate Servicing Fees and all
other such amounts in excess of such aggregate Servicing Fees. Each holder of
the Transferor Interest agrees that, if Ford Credit (or any Successor Servicer)
is terminated as Servicer hereunder, the portion of the Interest Collections
that the Transferor is entitled to receive pursuant to this Agreement, the
Indenture or any Indenture Supplement will be reduced by an amount sufficient to
pay the Transferor's share of the compensation of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer under this
Agreement will automatically cease and terminate upon termination of the Issuer
pursuant to Section 8.01 of the Trust Agreement, and will pass to and be vested
in the Transferor and, without limitation, the Transferor is hereby authorized
and empowered to execute and deliver, on behalf of the Successor Servicer, as
attorney-in-fact or otherwise, all documents and other instruments, and to do
and accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Successor Servicer agrees to
cooperate with the Transferor in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct servicing of
the Receivables. The Successor Servicer will transfer its electronic records
relating to the Receivables to Ford Credit or its designee in such electronic
form as it may reasonably request and will transfer all other records,
correspondence and documents to it in the manner and at such times as it may
reasonably request. To the extent that compliance with this Section requires the
Successor Servicer to disclose to Ford Credit information of any kind which the
Successor Servicer deems to be confidential, Ford Credit will enter into such
customary licensing and confidentiality agreements as the Successor Servicer may
deem necessary to protect its interests.
Section 6.03. Notification to Noteholders.
Within five Business Days after the Servicer becomes aware of any
Servicer Default, the Servicer will give notice thereof to the Owner Trustee,
the Indenture Trustee, each Rating Agency and each Series Enhancer and the
Indenture Trustee will give notice to the Noteholders. Upon any termination or
appointment of a Successor Servicer pursuant to this Article VI, the Indenture
Trustee will give prompt notice thereof to the Noteholders.
ARTICLE VII
TERMINATION
Section 7.01. Termination of Agreement.
This Agreement and the respective obligations and responsibilities of
the Servicer and the Transferor under this Agreement will terminate, except with
respect to the duties described in Sections 4.04 and 5.04, on the Trust
Termination Date.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment; Waiver of Past Defaults.
(a) This Agreement may be amended from time to time by the Servicer, the
Transferor and the Owner Trustee, by a written instrument signed by each of
them, without the consent of the Indenture Trustee or any of the Noteholders;
provided that:
(i) the Transferor has delivered to the Indenture Trustee and the Owner
Trustee an Officer's Certificate, dated the date of any such amendment,
stating that the Transferor reasonably believes that such amendment
will not have an Adverse Effect; and
(ii) the Rating Agency Condition has been satisfied with respect to any such
amendment;
provided, however, that, subject to the satisfaction of the Rating Agency
Condition, the Transferor may amend the definition of "Designated Jurisdictions"
without the prior consent of the Noteholders or any Series Enhancers and,
provided, further, that the Servicer, the Transferor and the Owner Trustee, may
enter into one or more amendments, without the consent of the Indenture Trustee
or the Holders of any Notes or prior notice to the Rating Agencies in order (A)
to cure any ambiguity, to correct or supplement any provision herein or in any
amendment hereto that may be inconsistent with any other provision herein or in
any amendment hereto or (B) to make any other provisions with respect to matters
or questions arising under this Agreement or in any amendment hereto so long as
a final amendment to this Agreement signed by the parties hereto is delivered to
each Rating Agency within ten days of its execution and the Transferor has
delivered to each Rating Agency an Officer's Certificate, dated the date of any
such amendment, stating that the Transferor reasonably believes that such
amendment will not have an Adverse Effect.
Additionally, notwithstanding the preceding sentence, this Agreement
may be amended by the Servicer and the Owner Trustee at the direction of the
Transferor without the consent of the Indenture Trustee or any of the
Noteholders or Series Enhancers to add, modify or eliminate such provisions as
may be necessary or advisable in order to enable all or a portion of the Issuer
(i) 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 (ii) to avoid the imposition
of state or local income or franchise taxes imposed on the Issuer's property or
its income; provided, however, that (A) the 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 Section 8.01(a), (B)
the Rating Agency Condition has been satisfied with respect to such amendment
and (C) such amendment does not affect the rights, duties or obligations of the
Indenture Trustee or the Owner Trustee hereunder.
(b) This Agreement may also be amended from time to time by the Servicer, the
Transferor and the Owner Trustee, with the consent of the Holders of Notes
evidencing not less than 66 2/3% of the aggregate unpaid principal amount of the
Notes of all adversely affected Series and without the requirement that the
Rating Agency Condition be satisfied or that the Transferor deliver an Officer's
Certificate provided in Section 8.01(a) stating that there is no Adverse Effect,
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 no such amendment
may:
(i) reduce in any manner the amount of or delay the timing of any
distributions (changes in Amortization Events that decrease the
likelihood of the occurrence thereof will not be considered delays in
the timing of distributions for purposes of this clause) to be made to
Noteholders or deposits of amounts to be so distributed or the amount
available under any Series Enhancement without the consent of each
affected Noteholder;
(ii) change the definition of or the manner of calculating the interest of
any Noteholder in the Trust Assets without the consent of each affected
Noteholder; or
(iii) reduce the aforesaid percentage required to consent to any such
amendment without the consent of each affected Noteholder.
Any amendment to be effected pursuant to this Section 8.01(b) will be deemed to
adversely affect all outstanding Series, other than any Series with respect to
which such action will not, as evidenced by an Opinion of Counsel for the
Transferor, addressed and delivered to the Owner Trustee and the Indenture
Trustee, adversely affect the interests of any Noteholder of such Series.
(c) Promptly after the execution of any amendment or consent pursuant to Section
8.01(a), the Owner Trustee will notify the Indenture Trustee and each
Noteholder, and the Servicer will notify each Series Enhancer, of the substance
of such amendment. Prior to the execution of any amendment or consent (other
than an amendment pursuant to Section 8.01(a)), the Servicer will provide
written notice to each Rating Agency of the substance of such proposed
amendment.
(d) If Noteholders are required to consent to any proposed amendments pursuant
to this Section, such Noteholders need not consent to or approve the particular
form of such amendment. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Noteholders is subject to such
reasonable requirements as the Indenture Trustee prescribes.
(e) Notwithstanding anything in this Section to the contrary, no amendment may
be made to this Agreement that would adversely affect in any material respect
the interests of any Series Enhancer, the Indenture Trustee or the Delaware
Trustee without the consent of such Series Enhancer, the Indenture Trustee or
the Delaware Trustee, as the case may be.
(f) Any Indenture Supplement executed in accordance with the provisions of
Article X of the Indenture will not be considered an amendment of this Agreement
for the purposes of this Section. Any Assignment or any Reassignment executed in
accordance with the provisions of Article II of this Agreement will not be
considered an amendment of this Agreement for the purposes of this Section.
(g) The Holders of Notes evidencing more than 66 2/3% of the aggregate unpaid
principal amount of the Notes of each Series or, with respect to any Series with
two or more Classes, of each Class (or, with respect to any default that does
not relate to all Series, 66 2/3% of the aggregate unpaid principal amount of
the Notes of each Series to which such default relates or, with respect to any
such Series with two or more Classes, of each Class) may, on behalf of all
affected Noteholders, waive any default by the Transferor or the Servicer in the
performance of their obligations hereunder and its consequences, except the
failure to make any distributions required to be made to the Noteholders or to
make any required deposits of any amounts to be so distributed. Upon any such
waiver of a past default, such default will cease to exist, and any default
arising therefrom will be deemed to have been remedied for every purpose of this
Agreement. No such waiver will extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
Prior to the effectiveness of any such waiver by the relevant Noteholders of a
past default, the Servicer will provide written notice to each Rating Agency of
the default and the waiver sought from the relevant Noteholders with respect
thereto.
(h) The Owner Trustee may, but is not obligated to, enter into any such
amendment which affects the Owner Trustee's rights, duties or immunities under
this Agreement or otherwise. In connection with the execution of any amendment
hereunder, the Owner Trustee is entitled to receive the Opinion of Counsel
described in Section 8.02(d)(i).
Section 8.02. Protection of Right, Title and Interest to Trust Assets.
(a) The Servicer will cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Indenture Trustee's and the Owner Trustee's right, title,
and interest in and to the Trust Assets to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law to preserve and protect the
right, title and interest of the Noteholders and the Indenture Trustee and the
Owner Trustee hereunder to all property comprising the Trust Assets. The
Servicer will deliver to the Indenture Trustee file-stamped copies or other
evidence of any document recorded, registered or filed as provided above, as
soon as available following such recording, registration or filing. The
Transferor will cooperate fully with the Servicer in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this Section.
(b) Within 30 days after the Transferor or the Servicer makes any change in its
name, identity or corporate structure which would make any financing statement
or continuation statement filed in accordance with Section 2.01(c) or 8.02(a)
seriously misleading within the meaning of Section 9-506 of the UCC, the
Transferor or the Servicer, as applicable, will give the Owner Trustee notice of
any such change and will file such financing statements or amendments as may be
necessary to continue the perfection of the Issuer's security interest in the
Receivables and the proceeds thereof.
(c) The Transferor and the Servicer will give the Owner Trustee and the
Indenture Trustee prompt written notice of any relocation of any office from
which it services Receivables or keeps records concerning the Receivables or of
its jurisdiction of organization and whether, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and will file such financing statements or amendments as may
be necessary to perfect or to continue the perfection of the Issuer's security
interest in the Receivables and the proceeds thereof. The Transferor and the
Servicer will at all times maintain each office from which it services
Receivables and its jurisdiction of organization within the United States of
America.
(d) The Servicer will deliver to the Owner Trustee, the Indenture Trustee and
any Series Enhancer the following: (i) upon the execution and delivery of each
amendment to this Agreement or any Indenture Supplement, an Opinion of Counsel
to the effect specified in Exhibit B; and (ii) on each Addition Date on which
any Additional Accounts are to be designated as the Accounts pursuant to the
terms hereof, an Opinion of Counsel substantially in the form of Exhibit C.
Section 8.03. Tax Treatment.
Unless otherwise specified in the Indenture or an Indenture Supplement
with respect to a particular Series, the Transferor has entered into this
Agreement, and the Notes will be issued, with the intention that, for United
States federal, state and local income and franchise tax purposes, (i) the Notes
of each Series that are characterized as indebtedness at the time of their
issuance will qualify as indebtedness secured by the Collateral and (ii) the
Issuer will not be treated as an association or publicly traded partnership
taxable as a corporation. The Transferor, by entering into this Agreement, and
each Noteholder, by the acceptance of any such Note (and each Note Owner, by its
acceptance of an interest in the applicable Note), agree to treat such Notes for
United States federal, state and local income and franchise tax purposes as
indebtedness of the Transferor. Each Holder of such Note agrees that it will
cause any Note Owner acquiring an interest in a Note through it to comply with
this Agreement as to treatment as indebtedness under applicable tax law, as
described in this Section. The parties hereto agree that they will not cause or
permit the making, as applicable, of any election under Treasury Regulation
Section 301.7701-3 whereby the Issuer or any portion thereof would be treated as
a corporation for federal income tax purposes and, except as required by Section
6.13 of the Indenture, will not file tax returns for the Issuer but will treat
the Issuer as a security device for such purposes. The provisions of this
Agreement are to be construed in furtherance of the foregoing intended tax
treatment.
Section 8.04. No Petition.
Each of the Servicer, Ford Credit (if it is no longer the Servicer) and
the Owner Trustee, by entering into this Agreement, each Noteholder, by
accepting a Note, each holder of an interest in the Transferor Interest, by
accepting such interest, and each of the Delaware Trustee, the Indenture Trustee
and the Series Enhancers, by accepting the benefits of this Agreement, hereby
covenants and agrees that it will not at any time institute against the
Transferor any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law.
Section 8.05. Governing Law.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, 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 8.06. Notices.
All notices, demands, instructions and other communications required or
permitted under this Agreement must be in writing and will be deemed to have
been duly given if personally delivered or sent by first class or express mail
(postage prepaid), national overnight courier service or by facsimile
transmission or other electronic communication device capable of transmitting or
creating a written record and followed by first class mail. Unless otherwise
specified in a notice sent in accordance with the provisions of this Section,
notices, demands, instructions and other communications in writing will be given
to the respective parties at their respective addresses as follows: (i) in the
case of the Transferor, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary (facsimile no. 313-248-3495), (ii) in the case of Ford Credit, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary (facsimile no.
313-248-3495), (iii) in the case of the Issuer or the Owner Trustee, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration
(facsimile no. 212-815-5544), (iv) in the case of the Delaware Trustee, 502
▇▇▇▇▇ ▇▇▇▇ Center, ▇▇▇▇▇ ▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration (facsimile no. 302-283-8279) and (v) in the case
of the Indenture Trustee, at its Corporate Trust Office as specified in the
Indenture; or, as to each party, at such other address as may be designated by
such party in a written notice to each other party. All notices are effective on
receipt.
Section 8.07. Severability of Provisions.
If one or more of the covenants, agreements, provisions or terms of
this Agreement is for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms will be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and will in no way
affect the validity or enforceability of the other provisions of this Agreement.
Section 8.08. Further Assurances.
The Transferor and the Servicer agree to do and perform, from time to
time, any and all acts and to execute any and all further instruments required
or reasonably requested by the Owner Trustee or the Indenture Trustee in order
to effect more fully the purposes of this Agreement, including the execution of
any financing statements or continuation statements relating to the Receivables
for filing under the UCC.
Section 8.09. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Owner Trustee, the Indenture Trustee or the Noteholders, any right, remedy,
power or privilege under this Agreement will operate as a waiver thereof; nor
will any single or partial exercise of any right, remedy, power or privilege
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided under this Agreement are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
Section 8.10. Counterparts.
This Agreement may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which will be an original,
but all of which together will constitute one and the same instrument.
Section 8.11. Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, the Owner Trustee, the Delaware Trustee, the Indenture Trustee,
the Noteholders, the holders of the Transferor Interest, any Series Enhancers
and their respective successors and permitted assigns. Except as otherwise
expressly provided in this Agreement, no other Person will have any right or
obligation hereunder.
Section 8.12. Rule 144A Information.
For so long as any of the Notes of any Series or Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act of
1933, as amended, each of the Transferor, the Owner Trustee, the Servicer and
any Series Enhancers agree to cooperate with one another to provide to any
Noteholders of such Series or Class and to any prospective purchaser of Notes
designated by such Noteholder, upon the request of such Noteholder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act of 1933, as amended.
Section 8.13. Action by Owner Trustee, Delaware Trustee or Indenture
Trustee.
Upon any application or request by a Transferor or Servicer to the
Owner Trustee, the Delaware Trustee or the Indenture Trustee to take any action
under any provision under this Agreement, the Transferor or the Servicer, as the
case may be, will furnish to the Owner Trustee, the Delaware Trustee or the
Indenture Trustee, as the case may be, an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such Counsel all such conditions precedent, if any, have been
complied with. The Owner Trustee, the Delaware Trustee or the Indenture Trustee,
as the case may be, is entitled to conclusively rely on such Officer's
Certificate or Opinion of Counsel as authority for any action undertaken in
connection therewith.
Section 8.14. Merger and Integration.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived, or supplemented
except as provided herein.
Section 8.15. Headings.
The headings herein are for purposes of reference only and are not
intended to otherwise affect the meaning or interpretation or any provision of
this Agreement.
Section 8.16. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
instrument has been signed on behalf of the Issuer by The Bank of New York not
in its individual capacity but solely in its capacity as Owner Trustee of the
Issuer and in no event will The Bank of New York in its individual capacity or
any beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse may be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee is subject to, and entitled to the
benefits of, the terms and provisions of the Trust Agreement.
IN WITNESS WHEREOF, the Transferor, the Issuer and the Servicer have
caused this Transfer and Servicing Agreement to be duly executed by their
respective duly authorized officers, all as of the day and year first above
written.
FORD CREDIT FLOORPLAN LLC,
as Transferor
By
---------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN MASTER OWNER
TRUST A,
as Issuer
By THE BANK OF NEW YORK, not in its
individual capacity, but solely as
Owner Trustee
By
--------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By
--------------------------------
Name:
Title:
Schedule 1
ACCOUNT SCHEDULE
Exhibit A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.06
of Transfer and Servicing Agreement)
This ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as
of ________ __, 200_, is by and among FORD CREDIT FLOORPLAN LLC, as Transferor,
FORD MOTOR CREDIT COMPANY, as Servicer, and FORD CREDIT FLOORPLAN MASTER OWNER
TRUST, as Issuer, pursuant to the Transfer and Servicing Agreement referred to
below.
RECITALS
A. The Transferor, the Servicer and the Issuer are parties to a
Transfer and Servicing Agreement, dated as of August 1, 2001 (as amended,
supplemented or otherwise modified from time to time, the "Transfer and
Servicing Agreement").
B. Pursuant to the Transfer and Servicing Agreement, the Transferor
wishes to designate Additional Accounts as Accounts and to transfer the
Receivables and Related Security arising in connection with such Additional
Accounts, whether now existing or hereafter created, to the Issuer, to be
further pledged to the Indenture Trustee.
C. The Issuer is willing to accept such designation and sale subject
to the terms and conditions hereof.
The Transferor, the Servicer and the Issuer hereby agree as follows:
STATEMENT OF AGREEMENT
1. Defined Terms. All capitalized terms used herein have the meanings
ascribed to them in the Transfer and Servicing Agreement unless otherwise
defined herein. The term "Addition Date" means, with respect to the Additional
Accounts designated hereby, __________, 20__.
2. Designation of Additional Accounts. The Transferor hereby delivers herewith
an updated Account Schedule reflecting such Additional Accounts, along with the
Additional Account Schedule specifying for each such Additional Account, as of
the Additional Cut-Off Date, its account number and the aggregate amount of
Principal Receivables of such Account.
3. Transfer of Receivables. The Transferor does hereby transfer, assign, set
over and otherwise convey, without recourse (except as expressly provided in the
Transfer and Servicing Agreement), to the Issuer, on the Addition Date all of
its right, title and interest in, to and under the Receivables arising in
connection with such Additional Accounts and all Related Security with respect
thereto, owned by the Transferor and existing at the close of business on the
Additional Cut-Off Date and thereafter created from time to time, all monies due
or to become due and all amounts received with respect thereto and all proceeds
(including "proceeds," as defined in the UCC) and Recoveries thereof. The
foregoing transfer, assignment, set-over and conveyance does not constitute and
is not intended to result in the creation, or an assumption by the Issuer, of
any obligation of the Servicer, the Transferor, Ford or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers or Ford.
In connection with such transfer, the Transferor agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale, for UCC purposes, of "tangible chattel paper,"
"payment intangibles," "general intangibles" or "accounts" (each as defined in
the UCC) meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect the transfer and assignment, for
UCC purposes, of the Receivables and the Related Security to the Issuer, and to
deliver a file-stamped copy of such financing statements or other evidence of
such filing to the Issuer on or before the Addition Date. The Issuer is under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such transfer.
In connection with such transfer, the Transferor further agrees, at its
own expense, on or before the Addition Date, to indicate in its computer files
that the Receivables and the Related Security (A) have been transferred or
assigned to the Issuer pursuant to this Assignment and then (B) pledged by the
Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders and any Series Enhancers.
4. Acceptance by Issuer. Subject to the satisfaction of the conditions set forth
in Section 2.06(d) of the Transfer and Servicing Agreement, the Issuer hereby
acknowledges its acceptance of all right, title and interest to the property,
now existing and hereafter created, transferred to the Issuer pursuant to
Section 3 of this Assignment. The Issuer further acknowledges that, before or
simultaneously with the execution and delivery of this Assignment, the
Transferor delivered to the Issuer the updated Account Schedule and the
Additional Account Schedule described in Section 2 of this Assignment.
5. Representations and Warranties of Transferor. The Transferor hereby
represents and warrants to the Issuer, on behalf of the Issuer, as of the date
of this Assignment and as of the Addition Date that:
(i) Organization and Good Standing. The Transferor is a limited liability
company duly formed and validly existing and in good standing under the
laws of the jurisdiction of its organization and has, in all material
respects, full power, authority and legal right to own its properties
and 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 Assignment.
(ii) Due Qualification. The Transferor is duly qualified to do business and,
where necessary, is in good standing as a foreign limited liability
company (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction where the conduct
of its business requires such qualification, except where the failure
to so qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations under this
Assignment.
(iii) Due Authorization. The Transferor has duly authorized by all necessary
action on its part, the execution and delivery of this Assignment and
the consummation by the Transferor of the transactions provided for or
contemplated by this Assignment.
(iv) No Conflict. The Transferor's execution and delivery of this
Assignment, its performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to it,
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 material indenture,
contract, agreement, mortgage, deed of trust or other instrument to
which the Transferor is a party or by which it or its properties are
bound.
(v) No Violation. The Transferor's execution and delivery of this
Assignment, its performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to it,
will not conflict with or violate any material Requirements of Law
applicable to it.
(vi) No Proceedings. There are no proceedings pending or, to the best of
its knowledge, no proceedings threatened or investigations pending or
threatened against the Transferor before or by any Governmental
Authority (A) asserting the invalidity of this Assignment, (B) seeking
to prevent the consummation of any of the transactions contemplated by
this Assignment, (C) seeking any determination or ruling that, in its
reasonable judgment, would materially and adversely affect its
performance of its obligations under this Assignment, (D) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Assignment or (E) seeking to affect
adversely the income tax characterization of the Issuer under the
United States federal or any other applicable state or local
jurisdiction's income, single business or franchise tax systems.
(vii) All Consents Required. All material authorizations, consents, orders,
approvals or other actions of any Governmental Authority required to be
obtained or effected by the Transferor in connection with its execution
and delivery of this Assignment, its performance of the transactions
contemplated by this Assignment and the fulfillment of the terms hereof
and thereof applicable to it, have been duly obtained or effected and
are in full force and effect.
(viii) Enforceability. This Assignment constitutes a legal, valid and binding
obligation of the Transferor, enforceable against it in accordance with
the terms hereof or thereof, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(ix) Valid Transfer. This Assignment constitutes a valid transfer and
assignment to the Issuer of all right, title and interest of the
Transferor in the Receivables in connection with the Additional
Accounts and the Related Security and the proceeds thereof and all of
the Transferor's rights, remedies, powers and privileges with respect
to the Receivables under the Receivables Purchase Agreement and, upon
the filing of the financing statements described in Section 3 of this
Assignment and, in the case of the Receivables and the Related Security
hereafter created and the proceeds thereof, upon the creation thereof,
the Issuer will have a first priority perfected ownership interest in
such property, other than the Liens permitted under the Transfer and
Servicing Agreement or the other Transaction Documents. Except as
otherwise provided in the Transfer and Servicing Agreement or the other
Transaction Documents, neither the Transferor nor any Person claiming
through or under it has any claim to or interest in the Trust Assets.
6. Ratification of Agreement. As supplemented by this Assignment, the
Transfer and Servicing Agreement is in all respects ratified and confirmed and
the Transfer and Servicing Agreement as so supplemented by this Assignment is to
be read, taken and construed as one and the same instrument.
7. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
will be an original but all of which together will constitute one and the same
instrument.
8. Governing Law. This Assignment is to be construed in accordance with
the laws of the State of New York, 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.
IN WITNESS WHEREOF, the Transferor, the Issuer and the Servicer have
caused this Assignment to be duly executed by their respective duly authorized
officers, all as of the day and year first above written.
FORD CREDIT FLOORPLAN LLC,
as Transferor
By
--------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN MASTER OWNER
TRUST A,
as Issuer
By The Bank of New York, not in its
individual capacity, but solely as
Owner Trustee
By
--------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By
-------------------------------
Name:
Title:
Exhibit B
FORM OF OPINION OF COUNSEL
(As required by Section 8.02(d)(i)
of Transfer and Servicing Agreement)
(a) The Amendment to the Transfer and Servicing Agreement, attached
hereto as Schedule 1 (the "Amendment"), has been duly authorized, executed and
delivered by the Transferor and constitutes the legal, valid and binding
agreement of the Transferor, enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
from time to time in effect. The enforceability of the Transferor's obligations
is also subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) The Amendment has been entered into in accordance with the terms and
provisions of Section 8.01 of the Transfer and Servicing Agreement.
Exhibit C
FORM OF OPINION OF COUNSEL
(Provisions to be included in Opinion of Counsel to be
delivered pursuant to Section 8.02(d)(ii)
of Transfer and Servicing Agreement)*
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to Ford Credit Floorplan LLC (the "Transferor") delivered on any Closing Date,
as well as any deemed appropriate at the time of delivery. Capitalized terms
used but not defined herein are used as defined in the Transfer and Servicing
Agreement, dated as of August 1, 2001 (the "Transfer and Servicing Agreement"),
among Ford Motor Credit Company, as Servicer (the "Servicer") and Ford Credit
Floorplan Master Owner Trust, as Issuer (the "Issuer"), and the Transferor.
[The Assignment has been duly authorized, executed and delivered by the
Transferor, and constitutes the valid and legally binding obligation of the
Transferor, enforceable against the Transferor in accordance with its terms.]
Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, either Floorplan Financing Agreements or
Sales and Service Agreements, such Receivables will constitute "tangible chattel
paper," as defined under Section 9-102 of the UCC in effect in the applicable
jurisdiction.
Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, the Sale and Assignment Agreement between
Ford Motor Company and the Transferor, such Receivables will constitute "general
intangibles," "payment intangibles," "accounts" or "tangible chattel paper,"
each as defined under Section 9-102 of the UCC in effect in the applicable
jurisdiction.
With respect to Receivables [in the Additional Accounts] in existence
on the date hereof and with respect to Receivables [in the Additional Accounts]
that come into existence after the date hereof, upon the creation of such
Receivables and the subsequent transfer of such Receivables to the Issuer free
and clear of any Liens in accordance with the Transfer and Servicing Agreement
and receipt by the Transferor of the consideration therefor required pursuant to
the Transfer and Servicing Agreement, such transfer either constitutes a valid
transfer to the Issuer or, if not a valid transfer, the Transfer and Servicing
Agreement creates a valid security interest in favor of the Issuer in the
Transferor's right, title and interest in and to the Receivables (and the
proceeds thereof) securing the obligations of the Transferor thereunder. Such
security interest constitutes a perfected security interest in such Receivables
and the proceeds thereof.
o Include bracketed language only in the case of the designation of
Additions Accounts pursuant to Section 2.06 of the Transfer and
Servicing Agreement.
Exhibit D
FORM OF REASSIGNMENT OF RECEIVABLES IN REDESIGNATED ACCOUNTS
(Pursuant to Section 2.08 and 2.09(c)
of Transfer and Servicing Agreement)
This REASSIGNMENT NO. ___ OF RECEIVABLES IN REDESIGNATED ACCOUNTS,
dated as of ________ __, 200_, is by and among FORD CREDIT FLOORPLAN LLC, as
Transferor, FORD MOTOR CREDIT COMPANY, as Servicer, and FORD CREDIT FLOORPLAN
MASTER OWNER TRUST, as Issuer, pursuant to the Transfer and Servicing Agreement
referred to below.
RECITALS
A. The Transferor, the Servicer and the Issuer are parties to a
Transfer and Servicing Agreement, dated as of August 1, 2001 (as amended,
supplemented or otherwise modified from time to time, the "Transfer and
Servicing Agreement").
B. Pursuant to the Transfer and Servicing Agreement, the Transferor
wishes or is required to redesignate certain Accounts as Redesignated Accounts
and to remove all of the Receivables and Related Security and to cause the
Issuer to reconvey such Receivables and Related Security, whether now existing
or hereafter created, and all amounts currently held by the Buyer or thereafter
received by the Issuer in respect of such Redesignated Accounts.
C. The Issuer is willing to accept such redesignation and to reconvey
such Receivables, Related Security and any related amounts held or received by
the Issuer subject to the terms and conditions hereof.
The Transferor, the Servicer and the Issuer hereby agree as follows:
STATEMENT OF AGREEMENT
1. Defined Terms. All capitalized terms used herein have the
meanings ascribed to them in the Transfer and Servicing Agreement unless
otherwise defined herein. The term "Redesignation Date" means, with respect to
the Redesignated Accounts redesignated hereby, __________, 20__.
2. Notice of Redesignated Accounts. The Transferor (or the
Servicer on its behalf) has delivered to the Issuer, any Series Enhancers and
the Rating Agencies the Redesignation Notice as provided in Section [2.08(b)(i)]
[2.09(c)(i)].
3. Redesignated Accounts. The Transferor hereby delivers
herewith the Redesignated Account Schedule specifying for each such Redesignated
Account, as of the Redesignation Date, its account number and the aggregate
amount of Principal Receivables of such Account.
4. Conveyance of Receivables. The Issuer does hereby transfer, assign,
set over and otherwise convey to the Transferor, without recourse,
representation or warranty on and after the Redesignation Date, all right, title
and interest of the Issuer in, to and under all Receivables now existing at the
close of business on the Redesignation Date and thereafter created from time to
time in Redesignated Accounts redesignated hereby, all Related Security thereof,
all monies due or to become due and all amounts received with respect thereto
(including all Interest Receivables), all proceeds (as defined in Section 9-315
of the UCC) and Recoveries thereof relating thereto.
If requested by the Transferor, in connection with such transfer, the
Issuer agrees to execute and deliver to the Transferor on or before the date of
this Reassignment, a termination statement with respect to the Receivables
existing at the close of business on the Redesignation Date and thereafter
created from time to time and Related Security thereof in the Redesignated
Accounts reassigned hereby (which may be a single termination statement with
respect to all such Receivables and Related Security) evidencing the release by
the Issuer of its Lien on the Receivables in the Redesignated Accounts and the
Related Security, and meeting the requirements of applicable state law, in such
manner and such jurisdictions as are necessary to remove such Lien.
5. Acceptance by Issuer. The Issuer hereby acknowledges that,
before or simultaneously with the execution and delivery of this Reassignment,
the Transferor delivered to the Issuer the updated Redesignated Account Schedule
described in Section 3 of this Reassignment.
6. Legal, Valid and Binding Obligation. The Transferor hereby
represents and warrants to the Issuer as of the date of this Reassignment and as
of the Redesignation Date that this Reassignment constitutes a legal, valid and
binding obligation of the Transferor, enforceable against the Transferor in
accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity).
7. Ratification of Agreement. As supplemented by this
Reassignment, the Transfer and Servicing Agreement is in all respects ratified
and confirmed and the Transfer and Servicing Agreement as so supplemented by
this Reassignment is to be read, taken and construed as one and the same
instrument.
8. Counterparts. This Reassignment may be executed in two or
more counterparts (and by different parties in separate counterparts), each of
which will be an original but all of which together will constitute one and the
same instrument.
9. Governing Law. This Reassignment is to be construed in
accordance with the laws of the State of New York, 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.
IN WITNESS WHEREOF, the Transferor, the Issuer and the Servicer have
caused this Reassignment to be duly executed by their respective duly authorized
officers, all as of the day and year first above written.
FORD CREDIT FLOORPLAN LLC,
as Transferor
By
--------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN MASTER OWNER
TRUST A,
as Issuer
By The Bank of New York, not in its
individual capacity, but solely as
Owner Trustee
By
--------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By
--------------------------------
Name:
Title: