Exhibit 99.2
[FORD CREDIT AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC]
Transferor
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__]
Issuer
FORD MOTOR CREDIT COMPANY
Servicer
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TRANSFER AND SERVICING
AGREEMENT
Dated as of [______ __, 200_]
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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.................................18
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..........................25
Section 2.07. Addition of Interests in Other Floorplan Assets.............27
Section 2.08. Removal of Receivables in Eligible Accounts.................27
Section 2.09. Removal of Receivables in Ineligible Accounts...............29
Section 2.10. Transfer of Ineligible Receivables..........................30
Section 2.11. Exchanges of Certain Receivables............................31
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to
Servicer....................................................31
Section 3.02. Servicing Compensation......................................33
Section 3.03. Representations, Warranties and Covenants of Servicer.......34
Section 3.04. Preparation of Distribution Date Statements.................36
Section 3.05. Annual Servicer's Certificate...............................37
Section 3.06. Annual Independent Public Accountants' Servicing Report.....37
Section 3.07. Notices to Ford Credit......................................37
Section 3.08. Adjustments.................................................38
Section 3.09. Reports to Securities and Exchange Commission...............38
ARTICLE IV
OTHER MATTERS RELATING TO TRANSFEROR
Section 4.01. Liability of Transferor.....................................38
Section 4.02. Merger or Consolidation of, or Assumption of, Obligations
of Transferor...............................................39
Section 4.03. Limitation on Liability of Transferor.......................40
Section 4.04. Transferor Indemnification of Issuer, Owner Trustee and
Indenture Trustee...........................................40
Section 4.05. Subsequent Transferors......................................41
ARTICLE V
OTHER MATTERS RELATING TO SERVICER
Section 5.01. Liability of Servicer.......................................41
Section 5.02. Merger or Consolidation of, or Assumption of, Obligations
of Servicer.................................................41
Section 5.03. Limitation on Liability of Servicer and Others..............42
Section 5.04. Servicer Indemnification of Issuer, Owner Trustee and
Indenture Trustee...........................................43
Section 5.05. Resignation of Servicer.....................................43
Section 5.06. Access to Certain Documentation and Information
Regarding Receivables........................................44
Section 5.07. Examination of Records.......................................44
ARTICLE VI
SERVICER DEFAULTS
Section 6.01. Servicer Defaults............................................45
Section 6.02. Indenture Trustee to Act; Appointment of Successor...........47
Section 6.03. Notification to Noteholders..................................49
ARTICLE VII
TERMINATION
Section 7.01. Termination of Agreement.....................................49
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment; Waiver of Past Defaults...........................49
Section 8.02. Protection of Right, Title and Interest to Issuer............52
Section 8.03. Tax Treatment................................................53
Section 8.04. No Petition..................................................53
Section 8.05. Governing Law................................................53
Section 8.06. Notices......................................................54
Section 8.07. Severability of Provisions...................................54
Section 8.08. Further Assurances...........................................54
Section 8.09. No Waiver; Cumulative Remedies...............................54
Section 8.10. Counterparts.................................................55
Section 8.11. Third-Party Beneficiaries....................................55
Section 8.12. Rule 144A Information........................................55
Section 8.13. Action by Owner Trustee or Indenture Trustee.................55
Section 8.14. Merger and Integration.......................................55
Section 8.15. Headings.....................................................56
TRANSFER AND SERVICING AGREEMENT, dated as of [______ __, 200_], by
and among [FORD CREDIT AUTO RECEIVABLES CORPORATION, a Delaware corporation,]
[FORD CREDIT AUTO RECEIVABLES LLC, a Delaware limited liability company], as
Transferor, [FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__], 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 [FCAR LLC]
[FCAR Corp], the Issuer and the Servicer, [FCAR LLC] [FCAR Corp] has also
agreed to transfer to the Issuer receivables that have been purchased by [FCAR
LLC] [FCAR 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 is identified in the applicable
Additional Account Schedule.
"Additional Account Schedule" has the meaning specified in Section
2.01(d)(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 Invested Amount" has, with respect to any Series, the
meaning specified in the related Indenture Supplement.
"Adjusted Pool Balance" has the meaning specified in the Indenture.
"Adjustment Fees" means the amounts payable by Ford to Ford Credit in
respect of the 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 3.09(a).
"Adverse Effect" means, with respect to any action, an action that
will (a) result in the occurrence of an Amortization Event or an Event of
Default or (b) materially and adversely affect 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.
"Asset Supplement" means a supplement to this Agreement entered into
by the parties hereto pursuant to Section 2.07 in connection with the transfer
of interests in Other Floorplan Assets to the Issuer.
"Assignment" has the meaning specified in Section 2.06(d).
"Business Day" means (a) any day other than (i) a Saturday or a
Sunday or (ii) another day on which banking institutions or trust companies in
the State of Michigan or the State of New York are authorized or obligated by
law, executive order or governmental decree to be closed and (b) any day
specified in an Indenture Supplement as a "Business Day."
"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 [______ __, 200_].
"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 in respect of the
immediately preceding Collection Period 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.
"Designated Jurisdictions" means the following states (and the
District of Columbia): Alabama, Arkansas, Connecticut, Delaware, District of
Columbia, 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. Subject to the
satisfaction of the Rating Agency Condition, FCAR LLC may amend the definition
of "Designated Jurisdictions" without the prior consent of the Noteholders or
any Series Enhancers.
["Designated Jurisdictions" means the following states: Alaska,
Arizona, California, Colorado, Hawaii, Idaho, Illinois, Kansas, Minnesota,
Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South
Dakota, Texas, Utah, Washington, Wisconsin and Wyoming. Subject to the
satisfaction of the Rating Agency Condition, FCAR Corp may 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) is in favor of a Dealer whose principal place of business
is 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 a quarterly basis, beginning on [__________];
(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 the Dealer's failure to
make any principal or interest payment when due under the related
Floorplan Financing Agreement or by reason of the occurrence of
bankruptcy, insolvency, receivership, liquidation or other similar
events relating to the 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
two years.
"Eligible Receivable" means each Receivable that:
(a) was originated or acquired by the Seller in the ordinary
course of business;
(b) is secured by a perfected first priority interest in the
related Vehicle;
(c) 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;
(d) 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;
(e) 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 of the related
Sales and Service Agreement, Ford's performance of the related Sale
and Assignment Agreement and/or Ford Credit's performance of the
related Floorplan Financing Agreement;
(f) 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 Liens
permitted under this Agreement;
(g) 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;
(h) 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;
(i) 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;
(j) 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;
(k) as to which none of ▇▇▇▇, ▇▇▇▇ Credit or the Transferor, as
applicable, has taken or failed to take any action which would
impair the rights of the Issuer or the Noteholders in the
Receivable; and
(l) constitutes either a "general intangible," an "account," a
"payment intangible" or "chattel paper," each as defined in Article
9 of the UCC in effect in the applicable jurisdiction.
"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.
["FCAR Corp" means Ford Credit Auto Receivables Corporation, a
Delaware corporation, and its successors.]
["FCAR LLC" means 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 designated by the Seller as a "fleet dealer"
in respect of advances made by the Seller to such Dealer or advances made by
Ford or other originator of such receivable to such Dealer and purchased by
the Seller.
"Floorplan Financing Agreement" means, collectively, the group of
related agreements 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 the cash management
accounts maintained by Ford Credit on behalf of Dealers.
"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, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indenture" means the Indenture, dated as of [____________ __, 200_],
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 [Indenture Trustee], 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(d)(ii).
"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 the sum of (a) all Collections of
Interest Receivables, (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 under
the Receivables in such Account pursuant to the related Floorplan
Financing Agreement between such Dealer and Ford Credit in respect
of (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 including 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 [__] 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 related 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.
"Notice Date" has the meaning specified in Section 2.06(c).
"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 [Owner Trustee], a Delaware 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 any one of the conditions
specified in clauses (d) and (e) 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, with respect to any date of determination, the
sum of (a) the total amount of Principal Receivables and (b) if applicable,
the total amount of 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 Dealers into cash management accounts
maintained by such Dealers with Ford Credit (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 amount payable by the Dealer in respect
thereof as reflected in the records of the Servicer as of the date of purchase
and (b) without duplication, if applicable, (i) the Adjustment Payment with
respect thereto or (ii) all accrued and unbilled interest from the last date
in respect of which interest on such Receivable was billed 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 existing 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 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 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. Additionally, notwithstanding anything to the
contrary in this Agreement, the term "Receivable" excludes any Fleet
Receivables and any amounts shown on the Servicer's records with respect to an
Account that do not relate to a Vehicle.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of [______ __, 200_], between [FCAR Corp] [FCAR LLC], as
purchaser 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 with respect
to 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 of such Redesignated
Accounts specifying the identity of such Redesignated Accounts 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 Redesignation Notice
provided by the Transferor (or the Servicer on its behalf) pursuant to Section
2.08(b)(i) or Section 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), 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) or Section
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 Documents" means (a) any applicable Asset Supplement
subsequently entered into by the parties hereto in connection with transfers
of any interests in Other Floorplan Assets and (b) the Receivables Purchase
Agreement.
"Related Security" means, with respect to any Receivable subject to
the terms of the Receivables Purchase Agreement, (a) the security interest
granted by or on behalf of the related Dealer with respect thereto, including
a first priority perfected security interest in the related Vehicle, certain
parts inventory, equipment, fixtures, service accounts or realty with respect
to such Dealer and 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 with respect to such
Receivable 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, in each case applicable to or binding
upon such Person or to which such Person is subject, whether federal, state or
local (including usury laws and the federal Truth in Lending Act).
"Sale and Assignment Agreement" means the Amended and Restated Sale
and Assignment Agreement, dated as of [_________, 2001], between Ford and Ford
Credit pursuant to which (a) Ford 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 assignment and (c) Ford assigns
to Ford Credit the 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, between a Dealer and
Ford pursuant to which, among other things, such Dealer purchases from time to
time Vehicles from Ford and, in the case of New Vehicles, (a) such Dealer
agrees to pay for such purchases at the end of each applicable In-Transit
Period and (b) such Dealer grants to Ford a security interest in the specific
New Vehicles purchased, but not yet paid for, by such Dealer, 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 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
deemed to be 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 [FCAR Corp] [FCAR LLC] and its successors and
assigns permitted hereunder.
"Transferor Amount" means, as of any date of determination, an amount
equal to the Adjusted Pool Balance on such date minus the aggregate Adjusted
Invested Amounts for all outstanding Series on such date.
"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 Trust Agreement relating to the Issuer,
dated as of [______ __, 200_], among [FCAR Corp] [, FCAR LLC] and the Owner
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, as in effect in any specified jurisdiction.
"Used Vehicle" means any Vehicle other than a New Vehicle.
"Vehicle" means an automobile or light-duty truck.
"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 on
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 therewith.
(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 of chattel paper,
payment intangibles, general intangibles or accounts (each as defined in the
UCC as in effect in the applicable jurisdiction) meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect the sale and assignment 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.
(d) 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 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 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
[corporation] [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 applicable Related
Documents.
(ii) Due Qualification. The Transferor is duly qualified to do
business and, where necessary, is in good standing as a foreign
[corporation] [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
applicable Related Documents.
(iii) Due Authorization. The Transferor has duly authorized by
all necessary action on its part the execution and delivery of this
Agreement and the applicable Related Documents and the consummation
by the Transferor of the transactions provided for or contemplated
by this Agreement and the applicable Related Documents.
(iv) No Conflict. The Transferor's execution and delivery of
this Agreement and the applicable Related Documents, its performance
of the transactions contemplated by this Agreement and the
applicable Related Documents 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 applicable Related Documents, its performance
of the transactions contemplated by this Agreement and the
applicable Related Documents 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 applicable Related Documents, (B) seeking to
prevent the consummation of any of the transactions contemplated by
this Agreement or the applicable Related Documents, (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 applicable Related Documents, (D)
seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or
the applicable Related Documents 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
applicable Related Documents, its performance of the transactions
contemplated by this Agreement and the applicable Related Documents
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 applicable
Related Documents 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 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 the Additional Cut-Off Date.
As of the Redesignation Date, the Redesignated Account Schedule is
an accurate and complete listing in all material respects of all the
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.
(x) Valid Transfer. This Agreement or, in the case of
Additional Accounts, the related Assignment constitutes a valid
transfer and assignment to the Issuer of all right, title and
interest of the Transferor in the related Receivables 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, except for the Liens permitted under
Section 2.05. Except as otherwise provided in this Agreement,
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 a 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 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 being
transferred free and clear of any Lien, 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. 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.
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 not 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 only 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 in the 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) Account Allocations. If the Transferor is unable for any
reason to transfer Receivables to the Issuer, then the Transferor
agrees that it will allocate, after the occurrence of such event,
Collections received in respect of each related Account as follows:
(A) Principal Collections will be allocated to a Receivable on the
basis of the Vehicle to which such Receivable relates; and (B)
Interest Collections in respect of such Account 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 Interest Collections will be allocated to the
Transferor.
(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 the 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 clause
(i) of Section 4.02(a) 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 represents an
undivided ownership interest in [__]% or more of the Trust Assets.
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.
(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") on or before the second Business
Day but not more than the 30th day before the related Addition Date (the
"Notice 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(d)(iii);
(iii) the Transferor has delivered to the Servicer all
Collections with respect to such Additional Accounts since 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 each of the Notice Date 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) except in the case of an addition required by
Section 2.06(a), 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
clause (iv) of Section 2.06(d). 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 such breach has a material adverse effect on the related Receivable,
the provisions of Section 2.03(c) will apply.
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 Asset Supplement to this
Agreement with the other parties hereto 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
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 Receivables specified by the Transferor to be
removed from the Trust Assets on the Redesignation Date;
(iii) the Transferor (or the Servicer on its behalf) has, on or
before the 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
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 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 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 the
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 clause (iv) of Section 2.08(b). 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 such breach has a material adverse effect on the related
Receivable, the provisions of Section 2.03(c) will apply.
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, Transferor will be required to
redesignate any such Account as a Redesignated Account in the manner provided
in Section 2.09(b) or 2.09(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 Distribution Date occurring in the calendar month
immediately succeeding the calendar month in which the Redesignation
Date for such Account occurred, 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 the
applicable Redesignation Date;
(ii) by the Determination Date occurring in the calendar month
immediately succeeding the calendar month in which the Redesignation
Date for such Account occurred, 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 the applicable
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 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 the Redesignation Date will
remain in the Issuer as Trust Assets.
All Collections received 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 Account on or after the
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 Distribution Date occurring in the calendar month
immediately succeeding the calendar month in which the Redesignation
Date for such Account occurred, 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 the
applicable Redesignation Date; and
(ii) by the Determination Date occurring in the calendar month
immediately succeeding the calendar month in which the Redesignation
Date for such Account occurred, 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 the applicable
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 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 the
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").
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 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
weighted average of the sum of the Note Interest Rates (in the case
of a Series with a fixed Note Interest Rate and a swap agreement,
the floating rate payable by the Issuer under the swap agreement)
and 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.
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 Indenture Trustee
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] 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 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 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 a Transferor Deposit Amount 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, [____], an Officer's Certificate, dated as of
December 31 of 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, [____], 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, 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 complied with; and
(B) a Tax Opinion; and
(iii) the Rating Agency Condition has been satisfied with
respect to such consolidation, merger, conveyance or transfer.
(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, 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 which
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,
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, Owner Trustee and
Indenture Trustee.
(a) The Transferor will indemnify and hold harmless each of the
Issuer, the Owner 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 in the case of the Owner
Trustee and the Indenture Trustee; provided, however, that that the Transferor
will not indemnify the Issuer, the Owner Trustee or the Indenture Trustee for:
(i) any such loss, liability, claim, expense, damage or injury
arising from the gross negligence or willful misconduct of the Owner
Trustee or from the negligence or willful misconduct of the
Indenture Trustee, as applicable;
(ii) any liabilities, cost or expense of the Issuer with
respect to any action taken by the Owner Trustee or the Indenture
Trustee at the request of any such Noteholders or Series Enhancers
to the extent that the Owner Trustee or the Indenture Trustee 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 [Incorporation] [Formation] and will only be made after payment in full of
any amounts that the Transferor is obligated to deposit in the Collection
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 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 prior to any such
designation and direction the conditions set forth in clauses (iii) and (v) of
Section 3.06 of the Trust Agreement have been satisfied with respect thereto.
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.
Section 5.02. Merger or Consolidation of, or Assumption of,
Obligations of Servicer.
(a) 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, 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 complied with; 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 or transfer 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, officers, employees or agents will be under any liability to the
Issuer, the Owner 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 which 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, 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, Owner Trustee and
Indenture Trustee.
(a) The Servicer will indemnify and hold harmless each of the Issuer,
the Owner 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 in the case of the Owner Trustee and the
Indenture Trustee; provided, however, that that the Transferor will not
indemnify the Issuer, the Owner Trustee or the Indenture Trustee for:
(i) any such loss, liability, claim, expense, damage or
injury arising from the gross negligence or willful misconduct
of the Owner Trustee or from the negligence or willful
misconduct of the Indenture Trustee, as applicable;
(ii) any liabilities, cost or expense of the Issuer with
respect to any action taken by the Owner Trustee or the
Indenture Trustee at the request of any such Noteholders or
Series Enhancers to the extent that the Owner Trustee or the
Indenture Trustee 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 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 will become
effective until the Indenture Trustee or a Successor Servicer has assumed the
responsibilities and obligations of the Servicer in accordance with Section
5.02. If within 120 days of the date of the determination that the Servicer
may no longer act as Servicer under clause (i) above the Indenture Trustee is
unable to appoint a Successor Servicer, the Indenture Trustee will serve as
Successor Servicer. Notwithstanding the foregoing, the Indenture Trustee will,
if it is legally unable so to act, 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.
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, such access being afforded 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 will derogate from 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) and
5.02;
(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, which 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 which
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 which would permit 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 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 not 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 possible 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 Sections 3.01(a) and
5.02. 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.
(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 which 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 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 Transferor and the Servicer under this Agreement will terminate, except
with respect to the duties described in Section 4.04, on the Trust Termination
Date.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment; Waiver of Past Defaults.
(a) This Agreement may be amended by the parties hereto from time to
time prior to, or in connection with, the issuance of the first Series of
Notes under the Indenture without the requirement of any consents or the
satisfaction of any conditions set forth below. 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, 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 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 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
such amendment does not have an Adverse Affect.
Additionally, notwithstanding the preceding sentence, this Agreement
will 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 (1) to qualify as, and to permit an election to be made to cause the
Issuer to be treated as, a "financial asset securitization investment trust"
as described in the provisions of Section 860L of the Code, and (2) to avoid
the imposition of state or local income or franchise taxes imposed on the
Issuer's property or its income; provided, however, that:
(iii) 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
subsection;
(iv) the Rating Agency Condition has been satisfied with
respect to such amendment; and
(v) 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 affected Series for which the Transferor
has not delivered an Officer's Certificate 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 Noteholder.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Owner Trustee will
notify the Indenture Trustee and each Noteholder, and the Servicer will notify
each Rating Agency and each Series Enhancer, of the substance of such
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 without the consent of
such Series Enhancer.
(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.
(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 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 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.
(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).
Section 8.02. Protection of Right, Title and Interest to Issuer.
(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 Issuer 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 Issuer. The Servicer will deliver to the Indenture Trustee file-stamped
copies of, or filing receipts for, 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
8.02(a) seriously misleading within the meaning of Section 9-402(7) of the UCC
as in effect in the applicable jurisdiction, 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 principal executive office 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 principal executive office 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 of 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 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 Series Enhancer, 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: _________), (ii) in the case
of Ford Credit, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary (facsimile: _________), and (iii) in the case of the Issuer or Owner
Trustee, [________________________], Attention: [________] (facsimile:
_________); 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 more
fully to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables
for filing under the provisions of the UCC of any applicable jurisdiction.
Section 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 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 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 or Indenture Trustee.
Upon any application or request by a Transferor or Servicer to the
Owner 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 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 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 do not
otherwise affect the meaning or interpretation or any provision of this
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 AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC],
as Transferor
By
-------------------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__],
as Issuer
By [Owner Trustee], not in its individual
capacity, but solely as Owner Trustee
By
-------------------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By
-------------------------------------------
Name:
Title:
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 AUTO RECEIVABLES
CORPORATION] [FORD CREDIT AUTO RECEIVABLES 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 [________ __, 200_] (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:
"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 as in effect in the applicable jurisdiction) 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 of chattel paper, payment
intangibles, general intangibles or accounts (as defined in the UCC as in
effect in the applicable jurisdiction) meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
the transfer and assignment 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
[corporation] [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
[corporation] [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 or the applicable Related Documents, (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 related Receivables 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
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, except for the Liens permitted under
Section 2.05. Except as otherwise provided in this Assignment,
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 shall 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 AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC],
as Transferor
By
-------------------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__],
as Issuer
By [Owner Trustee], 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.
(i)
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 Auto Receivables Corporation] [Ford Credit
Auto Receivables 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 [______ __, 2000_] (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 "chattel paper"
as defined under Section 9-____ of the UCC.
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 "chattel paper" as
defined under Section 9-____ of the UCC.
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 sale to the Issuer or, if not a sale, 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 AUTO RECEIVABLES
CORPORATION] [FORD CREDIT AUTO RECEIVABLES 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 [________ __, 200_] (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:
"Redesignation Date" means, with respect to the Redesignated
Accounts designated hereby _____________, ________.
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 until the termination of the Issuer 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-___ of the UCC as in
effect in the applicable jurisdiction 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 2 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 shall 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 AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC],
as Transferor
By
-------------------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__],
as Issuer
By [Owner Trustee], not in its individual
capacity, but solely as Owner Trustee
By
-------------------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Servicer
By
-------------------------------------------
Name:
Title:
