FORD MOTOR CREDIT COMPANY
Seller
FORD CREDIT FLOORPLAN LLC
Buyer
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RECEIVABLES PURCHASE
AGREEMENT
Dated as of August 1, 2001
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FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions........................................................... 1
Section 1.02. Other Definitional Provisions........................................ 14
ARTICLE II
SALE OF RECEIVABLES
Section 2.01. Sale of Receivables. .................................................15
Section 2.02. Representations and Warranties of Seller Relating to Itself
and This Agreement. ..................................................17
Section 2.03. Representations and Warranties of Seller Relating to
Receivables and Accounts. ............................................20
Section 2.04. Covenants of Seller. .................................................21
Section 2.05. Designation of Additional Accounts. ..................................23
Section 2.06. Addition of Interests in Other Floorplan Assets. .....................25
Section 2.07. Redesignation of Accounts. ...........................................25
Section 2.08. Transfer of Ineligible Receivables. ..................................26
Section 2.09. Treatment of Cash Management Account Deposits and Withdrawals. .......26
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to
Servicer. ............................................................26
Section 3.02. Servicing Compensation. ..............................................26
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.01. Merger or Consolidation of, or Assumption, of Obligations of
Seller. ..............................................................27
Section 4.02. Seller Indemnification of Buyer. .....................................27
ARTICLE V
TERMINATION; INSOLVENCY
Section 5.01. Termination of Agreement; Insolvency Event. ..........................28
ARTICLE VI
INTERCREDITOR PROVISIONS
Section 6.01. Nonfloorplan Agreements Between Seller and Dealer. ...................28
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. ...........................................................30
Section 7.02. Protection of Right, Title and Interest to Receivables. ..............31
Section 7.03. Limited Recourse. ....................................................32
Section 7.04. No Petition. .........................................................32
Section 7.05. Governing Law. .......................................................32
Section 7.06. Notices. .............................................................32
Section 7.07. Severability of Provisions. ..........................................33
Section 7.08. Assignment. ..........................................................33
Section 7.09. Further Assurances. ..................................................33
Section 7.10. No Waiver; Cumulative Remedies. ......................................33
Section 7.11. Counterparts. ........................................................33
Section 7.12. Third-Party Beneficiaries. ...........................................34
Section 7.13. Merger and Integration. ..............................................34
Section 7.14. Headings. ............................................................34
SCHEDULE AND EXHIBITS
Schedule1 Account Schedule........................................................1-1
Exhibit A Form of Assignment of Receivable in Additional Accounts.................A-1
Exhibit B Form of Opinion of Counsel regarding Amendments.........................B-1
Exhibit C Form of Opinion of Counsel regarding Additional Accounts................C-1
Exhibit D Form of Reassignment of Receivables in Redesignated Accounts............D-1
RECEIVABLES PURCHASE AGREEMENT, dated as of August 1, 2001, by and
between FORD MOTOR CREDIT COMPANY, a Delaware corporation, as Seller, and FORD
CREDIT FLOORPLAN LLC, a Delaware limited liability company ("FCF LLC"), as
Buyer.
RECITALS
A. The Seller desires to sell to the Buyer, and the Buyer desires to
purchase from the Seller, the Receivables arising from time to time in
connection with the Accounts designated hereunder.
B. Pursuant to the Transfer and Servicing Agreement, the Buyer has
agreed to transfer to the Issuer all such Receivables purchased by the Buyer
hereunder.
C. Pursuant to a transfer and servicing agreement among FCF Corp, the
Issuer and the Servicer, FCF Corp has also agreed to transfer to the Issuer all
the receivables that have been purchased by FCF Corp under a separate
receivables purchase agreement between it and the Seller.
D. Pursuant to the Indenture and the Indenture Supplements, the Issuer
will issue from time to time Notes secured by the Receivables.
In consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows.
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases have
the following meanings, and the definitions of such terms are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
"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 2.05(a).
"Addition Notice" has the meaning specified in Section 2.05(a).
"Additional Account" means a floorplan financing account established
with a Dealer pursuant to a Floorplan Financing Agreement that is designated
pursuant to Section 2.05 and identified in the applicable Additional Account
Schedule.
"Additional Account Schedule" has the meaning specified in Section
2.01(e)(iii).
"Additional Cut-Off Date" means, with respect to Additional Accounts,
the day specified in the Addition Notice delivered with respect to such
Additional Accounts pursuant to Section 2.05(a).
"Adjustment Fees" means the amounts payable by Ford to Ford Credit in
connection with Ford's assignment to Ford Credit under the Sale and Assignment
Agreement of Ford's right to receive amounts payable by a Dealer from time to
time in respect of such Dealer's purchase of New Vehicles manufactured or
distributed by Ford pursuant to the related Sales and Service Agreement.
"Adjustment Payment" has the meaning specified in Section 3.08(a) of
the Transfer and Servicing Agreement.
"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 Receivables Purchase Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Amortization Event" has the meaning specified in the Indenture.
"Assignment" has the meaning specified in Section 2.05(b).
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in The City of New York or the
State of Delaware are authorized or obligated by law, executive order or
governmental decree to be closed.
"Buyer" means FCF LLC as buyer under this Agreement.
"Cash Management Account" means, with respect to any Dealer, a, account
maintained by such Dealer with Ford Credit, the terms of which are governed by
the Floorplan Financing Guidelines.
"Class" means, with respect to any Series, any one of the classes of
Notes of such Series.
"Closing Date" has, with respect to any Series, the meaning specified
in the related Indenture Supplement.
"Collections" means, without duplication, all payments received by the
Seller or 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.
"Collection Account" has the meaning specified in the Indenture.
"Collection Period" means, with respect to each Distribution Date,
unless otherwise provided in an Indenture Supplement, the period from and
including the first day of the preceding calendar month to and including the
last day of such calendar month.
"Common Collateral" has the meaning specified in Section 6.01(a).
"Common Vehicle Collateral" has the meaning specified in Section
6.01(a).
"Common Non-Vehicle Collateral" has the meaning specified in Section
6.01(a).
"Cut-Off Date" means the close of business on July 11, 2001.
"Dealer" means a Person engaged generally in the business of purchasing
Vehicles from a manufacturer or distributor thereof and holding such Vehicles
for sale or lease in the ordinary course of business.
"Defaulted Receivable" means each Receivable that on any date of
determination:
(a) has been charged off as uncollectible on or before such date in
accordance with the Servicer's customary and usual procedures for
servicing dealer floorplan receivables that are comparable to the
Receivables; or
(b) remains outstanding and owned by the Issuer after the expiration of six
consecutive calendar months from the date on which the Account giving
rise to such Receivable was redesignated pursuant to Section 2.07(b)
after such Account became a Performance Impaired Ineligible Account.
"Delaware Trustee" means The Bank of New York (Delaware), a Delaware
banking corporation, in its capacity as Delaware trustee under the Trust
Agreement, its successors in interest and any successor Delaware trustee under
the Trust Agreement.
"Designated Jurisdictions" means the following states (and the District
of Columbia): Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia,
Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina,
Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia
and West Virginia. FCF LLC may, subject to the satisfaction of the Rating Agency
Condition, amend the definition of "Designated Jurisdictions" without the prior
consent of the Noteholders or any Series Enhancers.
"Determination Date" means, with respect to any Distribution Date, the
day that is two Business Days before such Distribution Date.
"Distribution Date" means, with respect to any Series, the date
specified in the related Indenture Supplement.
"Distribution Date Statement" means, with respect to any Series, a
report prepared by the Servicer on each Determination Date for the immediately
preceding Collection Period in substantially the form set forth in the related
Indenture Supplement.
"Eligible Account" means each individual floorplan financing account
established with a Dealer pursuant to a Floorplan Financing Agreement in the
ordinary course of business that, as of the date of determination with respect
thereto:
(a) is in existence and maintained and serviced by or on behalf of the
Seller;
(b) relates to a Dealer showroom located in one of the Designated
Jurisdictions;
(c) is in favor of a Dealer in which Ford or any Affiliate of Ford does not
have an equity investment exceeding 5% as determined by the Servicer on
the Determination Dates occurring in January, April, July and October
of each year, beginning with July 13, 2001, based on information
available to the Servicer as of the last day of the immediately
preceding Collection Period;
(d) is in favor of a Dealer that has not been classified by the Servicer as
"status" (or comparable classification) under the Floorplan Financing
Guidelines by reason of (i) such Dealer's failure to make any principal
or interest payment when due under the related Floorplan Financing
Agreement or (ii) the occurrence of an Insolvency Event with respect to
such Dealer; and
(e) is an Account in respect of which no material amounts have been charged
off as uncollectible at any time within the previous 24 months.
"Eligible Receivable" means each Receivable that:
(a) was originated or acquired by the Seller in the ordinary course of
business and, in the case of a Receivable described in clause (a) of
the definition of "Receivable," was originated or acquired on or after
June 1, 2001;
(b) except for any Adjustment Fees payable by Ford, is secured by a
perfected first priority interest in the related Vehicle;
(c) is not a Fleet Receivable;
(d) relates to an automobile or light-duty truck;
(e) is the subject of a valid sale and assignment from the Seller to the
Buyer of all the Seller's rights and interest in such Receivable,
including (i) all Related Security, (ii) all related rights under, as
applicable, the Sales and Service Agreement, the Sale and Assignment
Agreement and the Floorplan Financing Agreement and (iii) all related
proceeds;
(f) is created in compliance with all requirements of applicable law and
pursuant to, as applicable, the Sales and Service Agreement, the Sale
and Assignment Agreement or the Floorplan Financing Agreement;
(g) as to which Ford and Ford Credit, 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 sale of the Receivable to the Buyer, the transfer of the Receivable
to the Issuer and the pledge of the Receivable to the Indenture Trustee
and (ii) if applicable, Ford's performance under the related Sales and
Service Agreement, Ford's performance under the related Sale and
Assignment Agreement and/or Ford Credit's performance under the related
Floorplan Financing Agreement;
(h) as to which the Buyer and the Issuer will at all times have good and
marketable title, free and clear of all Liens arising before the
transfer to the Issuer or arising at any time, other than the Liens
permitted under this Agreement or the other Transaction Documents;
(i) except for any Adjustment Fees payable by Xxxx, xxxx at all times be
the legal and assignable payment obligation of the related Dealer,
enforceable against such Dealer in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy or other similar
laws;
(j) as to any Adjustment Fees payable by Xxxx, xxxx at all times be the
legal and assignable payment obligation of Ford, enforceable against
Ford in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy or other similar laws;
(k) is not subject to any right of rescission, setoff or any other defense
of the related Dealer or Ford, as applicable, including defenses
arising out of violations of usury laws;
(l) as to which Xxxx, Xxxx Credit and the Buyer, as applicable, have
satisfied in all material respects all of their obligations required to
be satisfied by them;
(m) as to which none of Xxxx, Xxxx Credit or the Buyer, as applicable, has
taken or failed to take any action that would materially impair the
rights of the Issuer or the Noteholders in the Receivable; and
(n) constitutes either a "general intangible," an "account," a "payment
intangible" or "tangible chattel paper," each as defined in Article 9
of the UCC.
"FCF Corp" means Ford Credit Floorplan Corporation (formerly known as
Ford Credit Auto Receivables Corporation), a Delaware corporation, and its
successors.
"FCF LLC" means Ford Credit Floorplan LLC (formerly known as Ford
Credit Auto Receivables LLC), a Delaware limited liability company, and its
successors.
"Fleet Receivables" means all amounts shown on the Servicer's records
as amounts payable by any Dealer in connection with fleet purchases of Vehicles
by such Dealer.
"Floorplan Financing Agreement" means, collectively, the group of
related agreements, as in effect from time to time, between and among the Seller
(either as the originator of a floorplan financing account or by virtue of an
assignment and assumption by the Seller from the applicable originator of such
account), the Dealer with respect thereto and, in the case of New Vehicles, a
Manufacturer, pursuant to which (a) the Seller agrees to extend credit to such
Dealer to finance New Vehicles and/or Used Vehicles manufactured or distributed
by such Manufacturer, (b) the Seller has a security interest in the specific
Vehicles financed by the Seller, certain other Vehicles, certain other
collateral and the proceeds thereof, (c) such Dealer agrees to repay advances
made by the Seller at the time of Vehicle sale or lease and (d) the obligations
of such Dealer to repay such advances is evidenced by one or more promissory
notes of such Dealer.
"Floorplan Financing Guidelines" means the written policies and
procedures of Ford Credit, as such policies and procedures may be amended from
time to time, (a) relating to the operation of its floorplan financing business,
including the written policies and procedures for determining the interest rate
charged to Dealers, the other terms and conditions relating to Ford Credit's
floorplan financing accounts, the creditworthiness of Dealers and the extension
of credit to Dealers, (b) relating to the maintenance of accounts and collection
of receivables and (c) relating to Cash Management Accounts.
"Ford" means Ford Motor Company, a Delaware corporation, and its
successors.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation,
and its successors.
"Governmental Authority" means the United States of America or any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to the government of the United States of America or any state or
other political subdivision thereof having jurisdiction over the applicable
Person.
"Indenture" means the Indenture, dated as of August 1, 2001, between
the Issuer and the Indenture Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"Indenture Supplement" has the meaning specified in the Indenture.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, in its capacity as indenture trustee under the Indenture, its
successors in interest and any successor indenture trustee under the Indenture.
"Ineligible Account" means, as of any date of determination, each
Account that is not an Eligible Account on such date.
"Ineligible Receivable" means, as of any date of determination, each
Receivable that is not an Eligible Receivable on such date.
"Initial Account" means a floorplan financing account established with
a Dealer pursuant to a Floorplan Financing Agreement that is identified in the
Initial Account Schedule.
"Initial Account Schedule" has the meaning specified in Section
2.01(e)(ii).
"Insolvency Event" has the meaning specified in the Indenture.
"Insurance Proceeds" has the meaning specified in the Transfer and
Servicing Agreement.
"Interest Collections" means (a) all Collections of Interest
Receivables owned by the Buyer, (b) if applicable, all Collections of the
non-principal portion of the Buyer's interests in Other Floorplan Assets, (c)
all interest and earnings on Eligible Investments credited to the Collection
Account and the Excess Funding Account (net of losses and investment expenses)
and (d) all Recoveries.
"Interest Receivables" means, in connection with an Account:
(a) all amounts billed and payable by the related Dealer with respect to
the Receivables in such Account pursuant to the related Floorplan
Financing Agreement between such Dealer and Ford Credit that constitute
(i) interest and (ii) other non-principal and non-interest charges,
including flat charges established by Ford Credit from time to time to
cover miscellaneous costs; and
(b) all Adjustment Fees described in clause (b) of the definition of
"Receivable."
"In-Transit Period" means, with respect to any Vehicle, the period from
and including the day the Vehicle is released from the factory by Ford for
delivery to a Dealer to and including the day of delivery of the Vehicle to such
Dealer; provided, however, that if an Invoice Amount has not yet been
established for such Vehicle on the day of delivery, the In-Transit Period with
respect to such Vehicle will continue to and include the day on which the
Invoice Amount is established, but in no event more than 30 days following the
day of delivery.
"Invoice Amount" means the total amount payable by a Dealer to the
Seller for a Vehicle as set forth on the Vehicle invoice issued by Ford.
"Issuer" means Ford Credit Floorplan Master Owner Trust A, the corpus
of which consists of the Trust Assets.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"Manufacturer" means, with respect to any Receivable, the manufacturer
or distributor of the Vehicle relating to such Receivable.
"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.
"Nonfloorplan Agreement" has the meaning specified in Section 6.01(a).
"Noteholder" or "Holder" means the Person in whose name a Note is
registered on the Note Register and, if applicable, the holder of any Bearer
Note or Coupon, as the case may be, or such other Person deemed to be a
"Noteholder" or "Holder" in the related Indenture Supplement.
"Notes" means the Asset Backed Notes issued by the Issuer pursuant to
the Indenture and the Indenture Supplements.
"Officer's Certificate" means (a) with respect to any corporation,
unless otherwise specified in this Agreement, a certificate signed by the
Chairman of the Board, Vice Chairman of the Board, President, any Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary of
such corporation and (b) with respect to any limited liability company, unless
otherwise specified in this Agreement, a certificate signed by any Manager, the
President, any Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary of such limited liability company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion and who is
reasonably acceptable to the Indenture Trustee.
"Other Floorplan Assets" means, collectively, any Pooled Participation
Receivables, Purchased Participation Receivables, Syndicated Receivables or
Third-Party Financed In-Transit Receivables.
"Owner Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as owner trustee under the Trust Agreement, its
successors in interest and any successor owner trustee under the Trust
Agreement.
"Performance Impaired Ineligible Account" means an Account that is an
Ineligible Account due to the failure to satisfy the condition specified in
clause (d) of the definition of "Eligible Account."
"Person" means any legal person, including any individual, corporation,
partnership, association, joint-stock company, limited liability company, trust,
unincorporated organization, governmental entity or other entity of similar
nature.
"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 Buyer, (b) if applicable, all Collections of the
principal portion of the Buyer's interests in Other Floorplan Assets and (c) all
amounts representing deposits by related Dealers into any Cash Management
Accounts (excluding, in all cases, Recoveries thereof).
"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.
"Purchased Participation Receivables" means receivables originated by a
third party under a dealer floorplan financing agreement owned by such third
party, which receivables are participated to Ford Credit pursuant to a
participation or similar agreement between such third party and Ford Credit.
"Rating Agency" means, with respect to any outstanding Series or Class,
each statistical rating agency selected by the Transferor to rate the Notes of
such Series or Class, unless otherwise specified in the related Indenture
Supplement.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency has notified the Transferor, the Servicer, the Issuer and the
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating of any outstanding Series or Class rated
by such Rating Agency.
"Reassignment" means a Reassignment of Receivables in Redesignated
Accounts between the Seller and the Buyer, substantially in the form of Exhibit
D.
"Receivable" means, in connection with an Account, all amounts shown on
the Servicer's records as:
(a) amounts payable by the related Dealer in respect of such Dealer's
purchase of a New Vehicle manufactured or distributed by Ford pursuant
to the related Sales and Service Agreement, but only if the payment of
such amounts upon delivery of such New Vehicle to such Dealer will be
financed by Ford Credit pursuant to the Floorplan Financing Agreement
establishing such Account;
(b) Adjustment Fees payable by Ford to Ford Credit in respect of the
amounts payable, as described in clause (a) above, that have been
purchased by Ford Credit from Ford pursuant to the Sale and Assignment
Agreement; and
(c) amounts payable by the related Dealer in respect of an advance made by
the Seller (including any withdrawals by such Dealer from its Cash
Management Account) to finance such Dealer's purchase of a Vehicle
under the related Floorplan Financing Agreement;
together with, in the case of each of clauses (a), (b) and (c) above, the group
of agreements and other writings, as in effect from time to time, evidencing
such amounts and the security interest created in connection therewith. A
Receivable that becomes a Defaulted Receivable will not be shown on the
Servicer's records as amounts payable (and will cease to be included as a
Receivable) on the day on which it becomes a Defaulted Receivable.
"Recoveries" means, with respect to any Determination Date, all amounts
received, including Insurance Proceeds, by the Servicer during the Collection
Period immediately preceding such Determination Date for application against
Defaulted Receivables or, if applicable, interests in Other Floorplan Assets
that have defaulted.
"Redesignated Account" means a former Account that has been
redesignated by the Seller pursuant to Section 2.07 and is identified in the
applicable Redesignated Account Schedule.
"Redesignated Account Schedule" means, with respect to any Redesignated
Accounts, a computer file or written list specifying the identity of such
Redesignated Accounts (by the Dealer account number assigned by the Seller) 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 Seller as specified in the related Redesignation Notice.
"Redesignation Notice" means the notice furnished by the Seller (or the
Servicer on its behalf) in connection with the redesignation of Accounts as
Redesignated Accounts pursuant to Section 2.07(b)(i).
"Related Security" means (a) the security interest granted by or on
behalf of the related Dealer with respect to any Receivable, including (i) a
first priority perfected security interest in the related Vehicle, (ii) a
perfected security interest in certain parts inventory, equipment, fixtures,
service accounts or realty of such Dealer and (iii) all guarantees of such
Receivable and (b) in the case of a Receivable described in clause (a) of the
definition of "Receivable," all of the Seller's rights, remedies, powers and
privileges under the Sale and Assignment Agreement.
"Repurchase Price" means, with respect to any Receivable for any date
on which such Receivable is to be repurchased pursuant to Section 2.03(c), an
amount equal to the sum of (a) the amounts payable by the Dealer in respect
thereof as reflected in the records of the Servicer as of the date of repurchase
and (b) without duplication, if applicable, (i) any Adjustment Payment with
respect thereto and (ii) all accrued and unpaid interest from the last date in
respect of which interest on such Receivable was received by the Servicer, at a
per annum rate equal to the rate charged to the Dealer under the related
Floorplan Financing Agreement.
"Requirements of Law" for any Person means the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, whether federal, state or local, in each
case applicable to or binding upon such Person or to which such Person is
subject.
"Sale and Assignment Agreement" means the Amended and Restated Sale and
Assignment Agreement, dated as of June 1, 2001, between Ford and Ford Credit
pursuant to which (a) Ford sells and assigns to Ford Credit the right to receive
amounts payable by a Dealer to Ford from time to time in respect of such
Dealer's purchase of New Vehicles manufactured or distributed by Ford pursuant
to the related Sales and Service Agreement, (b) Ford agrees to pay Ford Credit
the related Adjustment Fees in respect of such sale and assignment and (c) Ford
assigns to Ford Credit the first priority perfected security interest granted to
Ford by such Dealer in such New Vehicles, as the same may be amended,
supplemented or otherwise modified from time to time.
"Sales and Service Agreement" means each Sales and Service Agreement,
together with any related Vehicle Terms of Sale Bulletin as in effect from time
to time, between a Dealer and Ford pursuant to which, among other things, such
Dealer purchases from time to time Vehicles from Ford, as the same may be
amended, supplemented or otherwise modified from time to time.
"Seller" means Ford Credit as seller under this 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 Cut-Off Date" has, with respect to any Series, the meaning
specified in the related Indenture Supplement.
"Series Enhancer" has the meaning specified in the Indenture.
"Servicer" means, initially, Ford Credit, in its capacity as servicer
under this Agreement and, after any Servicing Transfer, the Successor Servicer.
"Servicing Fee" has the meaning specified in Section 3.02(a) of the
Transfer and Servicing Agreement.
"Successor Servicer" has the meaning specified in Section 6.02(a) of
the Transfer and Servicing Agreement.
"Syndicated Receivables" means receivables that are originated by Ford
Credit under a syndicated floorplan financing arrangement between a Dealer and a
group of lenders, one of which is Ford Credit.
"Tax Opinion" means, with respect to any action, an Opinion of Counsel
to the effect that, for United States federal income tax purposes, (a) such
action will not adversely affect the tax characterization as debt of the Notes
of any outstanding Series or Class that were characterized as debt at the time
of their issuance, (b) such action will not cause the Issuer to be treated as an
association (or publicly traded partnership) taxable as a corporation and (c)
such action will not cause or constitute an event in which gain or loss would be
recognized by any Noteholder.
"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 and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of August 1, 2001, among the Transferor, the Servicer and
the Issuer, as the same may be amended, supplemented or otherwise modified from
time to time.
"Transfer Date" has the meaning specified in Section 2.01(a).
"Transferor" means FCF LLC and its successors and assigns permitted
under the Transfer and Servicing Agreement.
"Transferor Interest" has the meaning specified in the Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement
relating to the Issuer, dated as of August 1, 2001, among FCF Corp, FCF LLC, the
Owner Trustee and the Delaware Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"Trust Assets" has the meaning specified in the Indenture.
"Trust Termination Date" has the meaning specified in the Trust
Agreement.
"UCC" means the Uniform Commercial Code, as amended from time to time,
in effect in the applicable jurisdiction.
"Used Vehicle" means any Vehicle other than a New Vehicle.
"Vehicle" means an automobile, a light-, medium-, or heavy-duty truck,
van or other vehicle classification used by Ford Credit from time to time.
"Vice President" when used with respect to the Servicer means any vice
president whether or not designated by a number or word or words added before or
after the title "vice president."
Section 1.02. Other Definitional Provisions.
(a) All terms used herein and not otherwise defined herein have the meanings
ascribed to them in the Transfer and Servicing Agreement, the Trust Agreement,
the Indenture or, with respect to any Series, the related Indenture Supplement,
as applicable.
(b) All terms defined in this Agreement have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, have the respective meanings given to them under
generally accepted accounting principles or regulatory accounting principles, as
applicable and as in effect on the date of this Agreement. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory accounting principles in
the United States, the definitions contained in this Agreement or in any such
certificate or other document will control.
(d) Any reference to each Rating Agency only applies to any specific rating
agency if such rating agency is then rating any outstanding Series.
(e) Unless otherwise specified, references to any dollar amount as of any
particular date mean such amount at the close of business on such day.
(f) The words "hereof," "herein" and "hereunder" and words of similar import
when used in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. References to any subsection, Section,
Schedule or Exhibit are references to subsections, Sections, Schedules and
Exhibits in or to this Agreement, unless otherwise specified. The term
"including" means "including without limitation."
ARTICLE II
SALE OF RECEIVABLES
Section 2.01. Sale of Receivables.
(a) By execution of this Agreement, the Seller does hereby sell, transfer,
assign, set over and otherwise convey, without recourse (except as expressly
provided herein), to the Buyer 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
Seller at the close of business on the Cut-Off Date and (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;
(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 Seller at the close of business on the applicable
Additional Cut-Off Date and (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
(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 Seller at the close of business on the applicable Transfer
Date and not previously sold to the Buyer pursuant hereto and (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.
(b) The foregoing sale, transfer, assignment, set-over and conveyance, and any
subsequent sales, transfers, assignments, set-overs and conveyances 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 Buyer, of any obligation of 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 sales, transfers,
assignments, set-overs and conveyances are not sales, transfers, assignments,
set-overs and conveyances of the Accounts; they are sales, transfers,
assignments, set-overs and conveyances of the Receivables arising in connection
with the Accounts.
(c) In connection with such sales, the Seller 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) naming the Seller as "seller" and the
Buyer as "buyer" thereon with respect to the Receivables now existing and
hereafter created for the sale of "tangible chattel paper," "payment
intangibles," "general intangibles" or "accounts" (each as defined in the UCC)
meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Related Security to the Buyer, and to deliver a file-stamped
copy of such financing statements or other evidence of such filing to the Buyer
on or before the first Closing Date, in the case of the Initial Accounts, and
(if any additional filing is necessary) the applicable Addition Date, in the
case of Additional Accounts. The Buyer 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 applicable law in connection with
such sales.
(d) The Seller and the Buyer intend that all transfers of Receivables under this
Agreement constitute sales of such Receivables and not transfers of such
Receivables as security for a loan. However, if the transfers of the Receivables
hereunder were to be characterized as transfers of security for a loan and not
as sales, then (i) the Seller will have granted, and hereby grants, to the Buyer
a security interest in each Receivable, the Related Security and all monies due
or to become due and all amounts received with respect thereto and all proceeds
(including "proceeds," as defined in the UCC) and Recoveries thereof and (ii)
this Agreement constitutes a security agreement.
(e) In connection with such sales, at its own expense, on or before the first
Closing Date, in the case of the Initial Accounts, and on or before the
applicable Addition Date, in the case of Additional Accounts, the Seller will:
(i) indicate in its computer files 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 Buyer pursuant to this
Agreement, then (B) transferred by the Buyer to the Issuer pursuant to
the Transfer and Servicing 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 Buyer a computer
file or written list of such Initial Accounts specifying the identity
of such Initial Accounts (by the Dealer account number assigned by the
Seller) 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 Buyer a computer
file or written list of such Additional Accounts specifying the
identity of such Additional Accounts (by the Dealer account number
assigned by the Seller) 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.
(f) In consideration for the sale of $10,342,149,365.89 of Receivables, together
with the Related Security, sold to the Buyer on the first Closing Date, the
Buyer will pay to the Seller cash and other valuable consideration. The purchase
price for the Receivables sold pursuant to this Agreement will be a price agreed
to by the Buyer and the Seller at the time of acquisition by the Buyer. The
purchase price will not be materially less favorable than prices for
transactions of a generally similar character at the time of the acquisition,
taking into account the quality of such Receivables, the Seller's cost of
originating such Receivables and a reasonable return on such costs, and other
pertinent factors; provided that such consideration will in no event be less
than reasonably equivalent value therefor.
(g) Notwithstanding anything herein or in the other Transaction Documents to the
contrary, in originating the Receivables, the Seller acts solely in its
individual capacity and not in the capacity of agent or nominee of the Issuer.
Furthermore, in connection with all sales of Receivables by the Seller to the
Transferor under this Agreement, the Seller is under no obligation, and does not
intend, to inform the related Dealers of such sales by the Seller to the
Transferor or of the transfer thereof by the Transferor to the Issuer under the
Transfer and Servicing Agreement or of the pledge thereof by the Issuer to the
Indenture Trustee under the Indenture.
Section 2.02. Representations and Warranties of Seller Relating to Itself
and This Agreement.
(a) Representations and Warranties. The Seller hereby represents and warrants to
the Buyer as of each Closing Date (unless another date is specified below) that:
(i) Organization and Good Standing. The Seller is a corporation duly
organized and validly existing and in good standing under the laws of
the State of Delaware 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.
(ii) Due Qualification. The Seller is duly qualified to do business and,
where necessary, is in good standing as a foreign corporation (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 hereunder.
(iii) Due Authorization. The Seller 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. The Seller's 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 Seller is a
party or by which it or its properties are bound.
(v) No Violation. The Seller's 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 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 Seller 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 the
performance of its obligations under this Agreement, (D) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or (E) seeking to affect
adversely the income tax characterization of the Issuer under the
United States federal or any other applicable state or local
jurisdiction's income, single business or franchise tax systems.
(vii) All Consents Required. All material authorizations, consents, orders,
approvals or other actions of any Governmental Authority required to be
obtained or effected by the Seller 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 obtained or effected.
(viii) Enforceability. This Agreement constitutes a legal, valid and binding
obligation of the Seller, enforceable against it in accordance with the
terms hereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit
at law or in equity).
(ix) Account Schedule. As of the Cut-Off Date, the Initial Account Schedule
is an accurate and complete listing in all material respects of all the
Initial Accounts and the information contained therein with respect to
the identity of such Initial Accounts and the Principal Receivables
arising in connection therewith is true and correct in all material
respects as of the Cut-Off Date. As of the applicable Additional
Cut-Off Date, the Additional Account Schedule is an accurate and
complete listing in all material respects of all the related Additional
Accounts and the information contained therein with respect to the
identity of such Additional Accounts and the Principal Receivables
arising in connection therewith is true and correct in all material
respects as of such Additional Cut-Off Date. As of the applicable
Redesignation Date, the Redesignated Account Schedule is an accurate
and complete listing in all material respects of all the related
Redesignated Accounts and the information contained therein with
respect to the identity of such Redesignated Accounts and the Principal
Receivables arising in connection therewith is true and correct in all
material respects as of such Redesignation Date.
(x) Valid Sale. This Agreement or the related Assignment constitutes a
valid sale, transfer and assignment to the Buyer of all right, title
and interest of the Seller in the Receivables in connection with the
Initial Accounts or the Additional Accounts, as applicable, and the
Related Security and the proceeds thereof 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 Buyer will have a
first priority perfected ownership interest in such property, other
than the Liens permitted under this Agreement or the other Transaction
Documents. Except as otherwise provided in this Agreement or the other
Transaction Documents, neither the Seller 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
2.02(a) will survive the sale and assignment of the Receivables and Related
Security to the Buyer. Upon discovery by the Seller or the Buyer 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 party, and
the Seller will take or cause to be taken such actions as are reasonably
requested by the Buyer to cure such breach.
(c) Repurchase upon Breach. If a breach of any of the representations and
warranties set forth in Section 2.02(a) results in the Buyer's obligation (after
the applicable grace period) to accept reassignment pursuant to Section 2.03(c)
of the Transfer and Servicing Agreement of all the Receivables that it
transferred to the Issuer, then the Seller will repurchase all such Receivables.
In such event, the Seller will repurchase such Receivables on the Business Day
immediately preceding the Distribution Date on which the Buyer is required to
accept reassignment of such Receivables pursuant to the Transfer and Servicing
Agreement. The Seller will repurchase such Receivables by making a payment to
the Buyer, in immediately available funds, in an amount not less than the
purchase price for such Receivables payable by the Buyer, as specified in the
Transfer and Servicing Agreement. Upon payment of such purchase price and
reassignment of such Receivables to the Buyer in accordance with the Transfer
and Servicing Agreement, the Buyer will automatically and without further action
be deemed to sell, transfer, assign, set over and otherwise convey to the
Seller, without recourse, representation or warranty, all the right, title and
interest of the Buyer in and to such Receivables, all Related Security and all
monies due or to become due with respect thereto and all proceeds thereof. In
connection with any such repurchase, the Buyer will execute such documents and
instruments of sale or assignment mutually agreed to by the Buyer and the
Seller. The Buyer will also take such other actions as are reasonably requested
by the Seller to effect the conveyance of such Receivables. The Seller's
obligation to repurchase the Receivables pursuant to this Section 2.02(c)
constitutes the sole remedy with respect to the event of the type specified in
the first sentence of this Section 2.02(c) available to the Buyer and to the
Noteholders (or the Owner Trustee, any Series Enhancer or the Indenture Trustee
on behalf of the Noteholders).
Section 2.03. Representations and Warranties of Seller Relating to
Receivables and Accounts.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer 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 sold by it
to the Buyer on such date, are sold free and clear of any Lien, other
than the Liens permitted under this Agreement or the other Transaction
Documents, and all consents, licenses, approvals or authorizations of
or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Seller in connection
with the sale 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 sold by the Seller to the Buyer 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 2.08.
(b) Notice of Breach. The representations and warranties set forth in Section
2.03(a) survive the sale and assignment of the Receivables and the Related
Security to the Buyer. Upon discovery by the Seller or the Buyer 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 party, and
the Seller will take or cause to be taken such actions as are reasonably
requested by the Buyer to cure such breach.
(c) Repurchase upon Breach. If any of the representations and warranties set
forth in Section 2.03(a) is not true and correct as of the date specified
therein with respect to a Receivable and, in connection therewith, the Buyer is
obligated (after the applicable grace period) to accept reassignment of such
Receivable pursuant to Section 2.04(c) of the Transfer and Servicing Agreement,
then the Seller will repurchase such Receivable. In such event, the Seller will
pay an amount not less than the Repurchase Price for the repurchase of such
Receivable on the Business Day immediately preceding the Determination Date on
which the Buyer is required to accept reassignment pursuant to the Transfer and
Servicing Agreement. The Seller will repurchase such Receivable by making a
payment to the Buyer, in immediately available funds, in an amount not less than
the Repurchase Price for such Receivable. Upon payment of such purchase price
and reassignment of such Receivable to the Buyer in accordance with the Transfer
and Servicing Agreement, the Buyer will automatically and without further action
be deemed to sell, transfer, assign, set over and otherwise convey to the
Seller, without recourse, representation or warranty, all the right, title and
interest of the Buyer in and to such Receivable, all Related Security and all
monies due or to become due with respect thereto and all proceeds thereof. In
connection with any such repurchase, the Buyer will execute such documents and
instruments of sale or assignment mutually agreed to by the Buyer and the
Seller. The Buyer will also take such other actions as are reasonably requested
by the Seller to effect the conveyance of such Receivable. The Seller's
obligation to repurchase a Receivable or all the Receivables with respect to an
Account pursuant to this Section 2.03(c) constitutes the sole remedy with
respect to the event of the type specified in the first sentence of this Section
2.03(c) available to the Buyer and to the Noteholders (or the Owner Trustee, any
Series Enhancer or the Indenture Trustee on behalf of the Noteholders).
Section 2.04. Covenants of Seller.
The Seller hereby covenants that:
(i) No Liens. Except for the conveyances hereunder or as provided or
permitted under this Agreement or the other Transaction Documents, the
Seller 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, and the Seller will defend the right,
title and interest of the Buyer, 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 Seller.
(ii) Floorplan Financing Agreements and Guidelines. The Seller will comply
with and perform its servicing obligations with respect to the Accounts
and the 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 Buyer, the Issuer, the Noteholders or any Series Enhancers.
Subject to compliance with all Requirements of Law, the Seller, in its
capacity as Servicer, may change the terms and provisions of the
Floorplan Financing Agreement or the Floorplan Financing Guidelines in
any respect (including the calculation of the amount or the timing of
charge-offs and the rate of the finance charge assessed thereon) only
if such change would be permitted pursuant to Section 3.01(d) of the
Transfer and Servicing Agreement.
(iii) Certain Allocations of Collections. If the Seller is unable for any
reason to sell Receivables to the Buyer under this Agreement, then the
Seller agrees that, after the occurrence of such event, it (or the
Servicer on its behalf) will allocate Collections in respect of each
related Account as follows:
(A) Principal Collections will be allocated to a Receivable
that relates to the Vehicle whose sale or lease
generated such Collections; provided, however, that in
the event of the occurrence of an Insolvency Event with
respect to the Seller or the Buyer, then Principal
Collections will be allocated first to the oldest
Principal Receivable outstanding in connection with
such Account; and
(B) Interest Collections will be allocated to the Buyer on
the basis of the ratio of the Principal Receivables
owned by the Buyer in connection with such Account on
the date of determination to the total amount of
Principal Receivables in connection with such Account
on such date of determination, and the remainder of
such Collections will be allocated to the Seller;
provided, however, that in the event of the occurrence
of an Insolvency Event with respect to the related
Dealer, the Seller or the Buyer, then Interest
Collections will be allocated on the basis of the age
of the related Principal Receivable, with the oldest
Principal Receivable outstanding in connection with
such Account being allocated Interest Collections
first.
(iv) Delivery of Collections. If the Seller or any Affiliate thereof
receives payments in respect of the Receivables, 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, but in no event later
than two Business Days after receipt.
(v) Notice of Liens. The Seller will notify the Buyer, the Owner Trustee
and the Indenture Trustee promptly after becoming aware of any Lien on
any Receivable sold by the Seller, other than the Liens permitted under
this Agreement or the other Transaction Documents.
(vi) Compliance with Law. The Seller will comply in all material respects
with all Requirements of Law applicable to it.
Section 2.05. Designation of Additional Accounts.
(a) The Seller may from time to time offer to designate additional Eligible
Accounts as Accounts, subject to the conditions specified in paragraph (b)
below. If any such offer is accepted by the Buyer, Receivables and the Related
Security arising in connection with such Additional Accounts will be sold to the
Buyer effective on a date (the "Addition Date") specified in a written notice
provided by the Seller (or the Servicer on its behalf) to the Buyer and any
Series Enhancers specifying the Additional Cut-Off Date and the Addition Date
for such Additional Accounts (the "Addition Notice"). The Addition Notice must
be sent by the Seller (or the Servicer on its behalf) on or before the second
Business Day but not more than the 30th day before the related Addition Date.
(b) The Seller is permitted to sell to the Buyer the Receivables and all Related
Security in any Additional Accounts designated by the Seller as such pursuant to
Section 2.05(a) only upon satisfaction of each of the following conditions on or
before the related Addition Date:
(i) the Seller has provided the Buyer with a timely Addition Notice;
(ii) the Seller has delivered to the Buyer a duly executed written
assignment (including an acceptance by the Buyer) in substantially the
form of Exhibit A (the "Assignment"), along with the applicable
Additional Account Schedule in accordance with Section 2.01(e)(iii);
(iii) the Seller has delivered to the Servicer all Collections on such
Additional Accounts relating to the time period on or after the
Additional Cut-Off Date;
(iv) the Seller 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
Seller to be adverse to the interests of the Buyer, the
Noteholders or any Series Enhancers were used in
selecting such Additional Accounts;
(C) the Additional Account Schedule delivered pursuant to
clause (ii) above is true and correct in all material
respects as of the Additional Cut-Off Date;
(D) as of the date of the Addition Notice and the Addition
Date, the Seller is not insolvent nor will be made
insolvent by such sale and it is not 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 Seller, cause an Amortization
Event to occur;
(v) the Seller has delivered to the Buyer an Opinion of Counsel with
respect to the Receivables in the Additional Accounts substantially in
the form of Exhibit C; and
(vi) the Seller has delivered to the Buyer 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.
The Buyer 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.
(c) The Seller hereby represents and warrants on each applicable Addition Date
as to the matters set forth in Section 2.05(b)(iv). These representations and
warranties will survive the sale and assignment of the respective Receivables
and the Related Security to the Buyer. Upon discovery by the Seller or the Buyer
of a breach of any of the foregoing representations and warranties, the party
discovering the breach will give prompt written notice to the other party and to
any Series Enhancers, and the Seller will take or cause to be taken such actions
as are reasonably requested by the Buyer to cure such breach. If any breach of
the Seller's representations and warranties as to the matters set forth in
Section 2.05(b)(iv) results in the Buyer's obligation (after the applicable
grace period) to accept reassignment pursuant to Section 2.06(e) of the Transfer
and Servicing Agreement, then the provisions of Section 2.02(c) or 2.03(c) of
this Agreement, as the case may be, will apply.
Section 2.06. Addition of Interests in Other Floorplan Assets.
Subject to the satisfaction of the Rating Agency Condition, the Seller
may from time to time enter into an amendment to this Agreement with the Buyer
pursuant to Section 7.01 for the purpose of providing such amendments or
additional provisions necessary to permit the Seller to sell its interests in
Other Floorplan Assets to the Buyer.
Section 2.07. Redesignation of Accounts.
(a) On each date on which Accounts, including any amounts then held by the
Issuer or thereafter received by the Issuer with respect to such Accounts, are
redesignated pursuant to Section 2.08 or 2.09 of the Transfer and Servicing
Agreement, the Buyer will be deemed to offer to the Seller automatically and
without notice to or action by or on behalf of the Buyer, the right to
redesignate and thereby remove Accounts from the operation of this Agreement in
the manner prescribed in Section 2.07(b).
(b) Any acceptance of such offer to redesignate Accounts as provided in Section
2.07(a) is subject to the satisfaction of the following conditions:
(i) the Seller (or the Servicer on its behalf) has delivered to the Buyer a
Redesignation Notice specifying the applicable Redesignation Date for
such Accounts; and
(ii) the Seller (or the Servicer on its behalf) has delivered to the Buyer
the applicable Redesignated Account Schedule and the Seller has
represented and warranted that such schedule is true and correct in all
material respects as of the applicable Redesignation Date.
On the applicable Redesignation Date with respect to any such
Redesignated Account, all the related Receivables and Related Security,
including all amounts then held by the Buyer or thereafter received by the Buyer
in respect of such Receivables, will be deemed reassigned to the Seller for all
purposes. The consideration for such removal will be mutually agreed to by the
Buyer and the Seller and will reflect fair market value for such Receivables.
After such Redesignation Date and upon written request of the Seller, the Buyer
will deliver to the Seller a Reassignment; provided, however, that with respect
to the redesignation of a Performance Impaired Ineligible Account, a
Reassignment will not be necessary and the Seller (or the Servicer on its
behalf) will, from and after the applicable Redesignation Date, cease to
transfer to the Buyer any and all Receivables arising in connection with such
Redesignated Account and the Receivables that were transferred to the Buyer
before such Redesignation Date will not be removed from the Buyer. All
Collections that relate to time periods on or after the applicable Redesignation
Date in respect of a Performance Impaired Ineligible Account will be allocated
between those Receivables that remain in the Buyer and those Receivables arising
in connection with such Performance Impaired Ineligible Account on or after such
Redesignation Date in the manner provided in Section 2.04(iii).
Section 2.08. Transfer of Ineligible Receivables.
The Seller will transfer to the Buyer on each Transfer Date any and all
Ineligible Receivables arising in connection with any Account; provided that on
the applicable Transfer Date, such Account is an Eligible Account.
Section 2.09. Treatment of Cash Management Account Deposits and Withdrawals.
With respect to any Account, deposits made by a Dealer into the related
Cash Management Account will be treated as Principal Collections and, in
accordance with the Floorplan Financing Guidelines, the aggregate amount of
Principal Receivables financed in connection with such Account will decrease by
the amount of such deposit. Conversely, any withdrawals by such Dealer from its
Cash Management Account will be shown on the Servicer's records as a
supplemental advance to such Dealer and, in accordance with the Floorplan
Financing Guidelines, the aggregate amount of Principal Receivables financed in
connection with the related Account will increase by the amount of such
supplemental advance.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to
Servicer.
(a) The Seller agrees to act as the Servicer under this Agreement and the
Transfer and Servicing Agreement, and the Buyer consents to the Seller acting as
the Servicer. The Seller will have ultimate responsibility for servicing,
managing and making collections on the Receivables and will have the authority
to make any management decisions relating to such Receivables, to the extent
such authority is granted to the Servicer under this Agreement and the Transfer
and Servicing Agreement.
(b) The Servicer will service and administer the Receivables in accordance with
the provisions of the Transfer and Servicing Agreement, the Indenture and
Indenture Supplements.
Section 3.02. Servicing Compensation.
As full compensation for its servicing activities hereunder and under
the Transfer and Servicing Agreement, the Servicer is entitled to receive the
Servicing Fee on each Distribution Date. The Servicing Fee will be paid in
accordance with the terms of the Transfer and Servicing Agreement, the Indenture
and Indenture Supplements.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.01. Merger or Consolidation of, or Assumption, of Obligations of
Seller.
The Seller 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 Seller) formed by or surviving such
consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Seller substantially as an
entirety, as the case may be, will be organized and existing under the
laws of the United States of America or any state thereof or the
District of Columbia, and expressly assumes, by a supplemental
agreement executed and delivered to the Buyer, the Owner Trustee and
the Indenture Trustee, in form reasonably satisfactory to the Buyer and
the Indenture Trustee, the performance of every covenant and obligation
of the Seller hereunder;
(ii) the Person (if other than the Seller) formed by or surviving such
consolidation or merger or that acquires by conveyance, transfer or
sale the properties and assets of the Seller substantially as an
entirety, as the case may be, has delivered to the Buyer (with a copy
to each Rating Agency):
(A) an Officer's Certificate and an Opinion of Counsel each
stating that (1) such consolidation, merger,
conveyance, transfer or sale and such supplemental
agreement provided in clause (i) above comply with this
Section, (2) such supplemental agreement is a valid and
binding obligation of such Person enforceable against
such Person in accordance with its terms, except as
such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights
generally from time to time in effect or general
principles of equity and (3) all conditions precedent
herein provided for relating to such transaction have
been satisfied; and
(B) a Tax Opinion; and
(iii) the Rating Agency Condition has been satisfied with respect to such
consolidation, merger, conveyance, transfer or sale.
Section 4.02. Seller Indemnification of Buyer.
The Seller will indemnify and hold harmless the Buyer, from and against
any loss, liability, expense, claim, damage or injury suffered or sustained by
the Buyer by reason of any acts, omissions or alleged acts or omissions arising
out of activities of the Seller pursuant to this Agreement or arising out of or
based on the arrangement created by this Agreement and the activities of the
Seller taken pursuant hereto, including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Seller is not required to indemnify the Buyer for
any loss, liability, expense, claim, damage or injury of the Buyer resulting
from acts, omissions or alleged acts or omissions that constitute fraud, gross
negligence or willful misconduct by the Buyer; and, provided, further, that the
Seller is not required to indemnify the Buyer for any loss, liability, expense,
claim, damage or injury with respect to any United States federal, state or
local income or franchise taxes or the Michigan Single Business tax (or any
interest or penalties with respect thereto) required to be paid by the Buyer in
connection herewith to any taxing authority. Any indemnification under this
Article IV survives the termination of this Agreement.
ARTICLE V
TERMINATION; INSOLVENCY
Section 5.01. Termination of Agreement; Insolvency Event.
This Agreement will terminate immediately after the legal existence of
the Issuer terminates pursuant to the Trust Agreement. In addition, the Buyer
will immediately cease purchasing Receivables and the Seller will immediately
cease selling Receivables and will designate no Additional Accounts following
the occurrence of an Insolvency Event with respect to the Seller. The Seller
will give prompt written notice to each of the Buyer, the Owner Trustee and the
Indenture Trustee immediately following the occurrence of an Insolvency Event.
Notwithstanding any cessation of the sale of Receivables to the Buyer following
an Insolvency Event, Receivables sold to the Buyer before the occurrence of an
Insolvency Event and Collections in respect of such Receivables will continue to
be property of the Buyer and will be transferred by the Buyer to the Issuer
pursuant to the Transfer and Servicing Agreement.
ARTICLE VI
INTERCREDITOR PROVISIONS
Section 6.01. Nonfloorplan Agreements Between Seller and Dealer.
(a) With respect to a Dealer that is the obligor under Receivables that have
been or will be sold to the Buyer hereunder, the Seller may be or become a
lender to such Dealer under an agreement or arrangement (a "Nonfloorplan
Agreement") other than a Floorplan Financing Agreement pursuant to which the
Seller (either directly, or as assignee of the originator of the Account) has
been granted a security interest in the same collateral (the "Common
Collateral") in which the Floorplan Financing Agreement for such Dealer creates
a security interest, which Common Collateral may include the same Vehicle (the
"Common Vehicle Collateral") in which such Floorplan Financing Agreement creates
a security interest. The Common Collateral other than the related Common Vehicle
Collateral is referred to herein as the "Common Non-Vehicle Collateral."
(b) The Seller agrees that with respect to each Receivable of each such Dealer
(i) the security interest in such Common Vehicle Collateral granted to the
Seller pursuant to any Nonfloorplan Agreement is junior and subordinate to the
security interest created by the related Floorplan Financing Agreement, (ii) the
Seller has no legal right to realize upon such Common Vehicle Collateral or
exercise its rights under the Nonfloorplan Agreement in any manner that is
materially adverse to the Buyer, the Issuer or the Noteholders in respect of the
Common Vehicle Collateral until all required payments in respect of such
Receivable under the Floorplan Financing Agreement have been paid and (iii) in
realizing upon such Common Vehicle Collateral, neither the Buyer nor the Issuer
will have any obligation to protect or preserve the rights of the Seller in such
Common Vehicle Collateral.
(c) The Buyer agrees that with respect to each Receivable of each such Dealer
(i) the security interest in such Common Non-Vehicle Collateral created by the
Floorplan Financing Agreement and hereby assigned to the Buyer is junior and
subordinate to the security interest therein created by the Nonfloorplan
Agreement, (ii) the Buyer has no legal right to realize upon such Common
Non-Vehicle Collateral or exercise its rights under the Floorplan Financing
Agreement in any manner that is materially adverse to the Seller until all
required payments in respect of the obligation created or secured by the
Nonfloorplan Agreement have been made and (iii) in realizing on such Common
Non-Vehicle Collateral, the Seller has no obligation to protect or preserve the
rights of the Buyer or the Issuer in such Common Non-Vehicle Collateral. The
Transfer and Servicing Agreement will provide that the Issuer is subject to the
preceding sentence.
(d) If the Seller in any manner assigns or transfers any rights under, or any
obligation evidenced or secured by, a Nonfloorplan Agreement, the Seller will
make such assignment or transfer subject to the provisions of this Article VI
and require such assignee or transferee to acknowledge that it takes such
assignment or transfer subject to the provisions of this Article VI and to agree
that it will require the same acknowledgment from any subsequent assignee or
transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.
(a) This Agreement may be amended from time to time by the Seller and the Buyer
without the consent of any Noteholder; provided that such amendment does not
adversely affect in any material respect the interests of any Noteholder. The
absence of any material adverse effect may be evidenced by (i) satisfaction of
the Rating Agency Condition or (ii) an Opinion of Counsel for the Seller,
addressed and delivered to the Owner Trustee and the Indenture Trustee;
provided, however, that, subject to the satisfaction of the Rating Agency
Condition, the Transferor may amend the definition of "Designated Jurisdictions"
without the prior consent of the Noteholders or any Series Enhancers.
(b) This Agreement may also be amended from time to time by the Buyer and the
Seller 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 materially
adversely affected Series and without the requirement that the Seller deliver an
Opinion of Counsel provided in Section 7.01(a) or that the Rating Agency
Condition be satisfied, 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 Seller; 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 with the amount
available under any Series Enhancement (as defined in the Indenture)
without the consent of each affected Noteholder;
(ii) change the definition of or the manner of calculating the interest of
any Noteholders in the Trust Assets without the consent of each
affected Noteholder; or
(iii) reduce the aforesaid percentage required to consent to any such
amendment without the consent of each affected Noteholder.
Any amendment to be effected pursuant to this Section 7.01(b) will be deemed to
materially adversely affect all outstanding Series, other than any Series with
respect to which such action will not, as evidenced by an Opinion of Counsel for
the Seller, addressed and delivered to the Owner Trustee and the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder of such Series.
(c) Promptly after the execution of any amendment or consent pursuant to Section
7.01(a), the Seller will furnish notification of the substance of such amendment
to each Noteholder and each Series Enhancer. Prior to the execution of any
amendment or consent pursuant to Section 7.01(b), the Buyer and the Seller will
provide written notice to each Rating Agency of the substance of such proposed
amendment.
(d) If the 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.
Section 7.02. Protection of Right, Title and Interest to Receivables.
(a) The Seller will cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables and
Related Security 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 fully to preserve and protect the right, title and
interest of the Buyer hereunder. The Seller will deliver to the Buyer
file-stamped copies or other evidence of any document recorded, registered or
filed as provided above, as soon as available following such recording,
registration or filing. The Buyer will cooperate fully with the Seller 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 Seller makes any change in its name, identity or
corporate structure which would make any financing statement or continuation
statement filed in accordance with Section 2.01(c) or 7.02(a) seriously
misleading within the meaning of Section 9-506 of the UCC, the Seller will give
the Buyer notice of any such change and file such financing statements or
amendments as may be necessary to continue the perfection of the Buyer's
security interest in the Receivables and the proceeds thereof.
(c) The Seller will give the Buyer prompt written notice of any relocation of
any office at which it keeps records concerning the Receivables or of its
jurisdiction of organization and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and will file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Buyer's security
interest in the Receivables and the proceeds thereof. The Seller will at all
times maintain its jurisdiction of organization within the United States of
America.
(d) The Seller will deliver to the Buyer: (i) upon the execution and delivery of
each amendment to this Agreement, an Opinion of Counsel to the effect specified
in Exhibit B; (ii) on each Addition Date on which any Additional Accounts are to
be designated as Accounts pursuant to Section 2.05, an Opinion of Counsel
substantially in the form of Exhibit C.
Section 7.03. Limited Recourse.
Notwithstanding anything to the contrary contained herein, the
obligations of the Buyer hereunder will not be recourse to the Buyer (or any
person or organization acting on behalf of the Buyer or any Affiliate, officer
or director of the Buyer), other than to (a) the amount by which the Net
Adjusted Pool Balance (as defined in the Indenture) on any date of determination
exceeds the Required Pool Balance (as defined in the Indenture) and (b) any
other assets of the Buyer not pledged to third parties or otherwise encumbered
in a manner permitted by the Buyer's organizational documents; provided,
however, that any payment by the Buyer made in accordance with this Section will
be made only after payment in full of any amounts that the Seller is obligated
to deposit into the Collection Account pursuant to this Agreement; and,
provided, further, that the Noteholders will be entitled to the benefits of the
subordination of the Transferor Interest to the extent provided in the Indenture
Supplements.
Section 7.04. No Petition.
The Seller hereby covenants and agrees that it will not at any time
institute against the Buyer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law.
Section 7.05. 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 7.06. Notices.
All notices, demands, instructions and other communications required or
permitted under this Agreement must be in writing and will be deemed to have
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 indicated in the
Transfer and Servicing Agreement. All notices are effective on receipt.
Section 7.07. Severability of Provisions.
If any 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
or of the Notes or the rights of the Noteholders.
Section 7.08. Assignment.
Notwithstanding anything to the contrary contained herein, this
Agreement may not be assigned by the Seller without the prior consent of the
Buyer and the Indenture Trustee. The Buyer may assign its rights, remedies,
powers and privileges under this Agreement to the Issuer pursuant to the
Transfer and Servicing Agreement and the Issuer may pledge its assigned rights,
remedies, powers and privileges under this Agreement to the Indenture Trustee
pursuant to the Indenture.
Section 7.09. Further Assurances.
The Seller agrees 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 Buyer in order to effect more fully the purposes of this
Agreement, including the execution of any financing statements or continuation
statements relating to the Receivables for filing under the UCC.
Section 7.10. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Buyer, 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 herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 7.11. 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 7.12. 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 and any Series Enhancers and their respective successors and
permitted assigns. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder.
Section 7.13. 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 7.14. Headings.
The headings herein are for purposes of reference only and are not
intended to otherwise affect the meaning or interpretation of any provision of
this Agreement.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Receivables Purchase Agreement to be duly executed by their respective duly
authorized officers as of the day and year first above written.
FORD MOTOR CREDIT COMPANY,
as Seller
By
--------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN LLC,
as Buyer
By
--------------------------------
Name:
Title:
Schedule 1
ACCOUNT SCHEDULE
Exhibit A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of Receivables Purchase Agreement)
This ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as
of ________ __, 200_, is by and between FORD MOTOR CREDIT COMPANY, as Seller,
and FORD CREDIT FLOORPLAN LLC, as Buyer, pursuant to the Receivables Purchase
Agreement referred to below.
RECITALS
A. The Seller and the Buyer are parties to a Receivables Purchase
Agreement, dated as of August 1, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Receivables Purchase Agreement").
B. Pursuant to the Receivables Purchase Agreement, the Seller wishes to
designate Additional Accounts as Accounts and to sell the Receivables and
Related Security arising in connection with such Additional Accounts, whether
now existing or hereafter created, to the Buyer, to be further transferred to
the Issuer and pledged to the Indenture Trustee.
C. The Buyer is willing to accept such designation and sale subject to
the terms and conditions hereof.
The Seller and the Buyer hereby agree as follows:
STATEMENT OF AGREEMENT
1. Defined Terms. All capitalized terms used herein have the
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein. The term "Addition Date" means, with respect to the Additional
Accounts designated hereby, __________, 20__.
2. Designation of Additional Accounts. The Seller hereby
delivers herewith an 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. Sale of Receivables. The Seller does hereby sell, transfer,
assign, set over and otherwise convey, without recourse (except as expressly
provided in the Receivables Purchase Agreement), to the Buyer, 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 respectthereto, owned by the Seller and existing at the close of business
on the Additional Cut-Off Date and thereafter created from time to time, all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds," as defined in the UCC) and Recoveries
thereof. The foregoing sale, transfer, assignment, set-over and conveyance does
not constitute and is not intended to result in the creation, or an assumption
by the Buyer, of any obligation of the Servicer, the Seller, 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 sale, the Seller 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 tangible chattel paper, payment intangibles,
general intangibles or accounts (as defined in the UCC) meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect the sale and assignment of the Receivables and the Related
Security to the Buyer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Buyer on or before the
Addition Date. The Buyer 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 sale. The parties
hereto intend that the sales of Receivables effected by this Assignment be
sales.
In connection with such sale, the Seller 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 sold or assigned, as the
case may be, to the Buyer pursuant to this Assignment, then (B) transferred by
the Buyer to the Issuer pursuant to the Transfer and Servicing Agreement and
then (C) 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 Buyer. Subject to the satisfaction of the
conditions set forth in Section 2.05(b) of the Receivables Purchase Agreement,
the Buyer hereby acknowledges its acceptance of all right, title and interest to
the property, now existing and hereafter created, sold to the Buyer pursuant to
Section 3 of this Assignment. The Buyer further acknowledges that, before or
simultaneously with the execution and delivery of this Assignment, the Seller
delivered to the Buyer the Additional Account Schedule described in Section 2 of
this Assignment.
5. Representations and Warranties of Seller. The Seller hereby
represents and warrants to the Buyer, 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 Seller is a corporation duly
organized and validly existing and in good standing under the laws of
the State of Delaware 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 Seller is duly qualified to do business and,
where necessary, is in good standing as a foreign corporation (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 hereunder.
(iii) Due Authorization. The Seller has duly authorized by all necessary
action on its part, the execution and delivery of this Assignment and
the consummation of the transactions provided for or contemplated by
this Assignment.
(iv) No Conflict. The Seller'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 Seller is a
party or by which it or its properties are bound.
(v) No Violation. The Seller'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 Seller before or by any Governmental Authority
(A) asserting the invalidity of this Assignment, (B) seeking to prevent
the consummation of any of the transactions contemplated by this
Assignment, (C) seeking any determination or ruling that, in its
reasonable judgment, would materially and adversely affect the
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 Seller 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
applicable to it, have been obtained or effected.
(viii) Enforceability. This Assignment constitutes a legal, valid and binding
obligation of the Seller, enforceable against it in accordance with the
terms hereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting 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 Sale. This Assignment constitutes a valid sale, transfer and
assignment to the Buyer of all right, title and interest of the Seller
in the Receivables in connection with the Additional Accounts and the
Related Security and the proceeds thereof and, upon the filing of the
financing statements described in Section 3 of this Assignment and, in
the case of the Receivables and the Related Security hereafter created
and the proceeds thereof, upon the creation thereof, the Buyer will
have a first priority perfected ownership interest in such property,
other than the Liens permitted under this Agreement or the other
Transaction Documents. Except as otherwise provided in the Receivables
Purchase Agreement or the other Transaction Documents, neither the
Seller nor any Person claiming through or under it has any claim to or
interest in the Trust Assets.
7. Ratification of Agreement. As supplemented by this
Assignment, the Receivables Purchase Agreement is in all respects ratified and
confirmed and the Receivables Purchase Agreement as so supplemented by this
Assignment is to be read, taken and construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
will be an original but all of which together will constitute one and the same
instrument.
9. 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 Buyer and the Seller have caused this
Assignment to be duly executed by their respective duly authorized officers as
of the day and year first above written.
FORD MOTOR CREDIT COMPANY,
as Seller
By
--------------------------------
Name:
Title:
FORD CREDIT FLOORPLAN LLC,
as Buyer
By
--------------------------------
Name:
Title:
Exhibit B
FORM OF OPINION OF COUNSEL
(As required by Section 7.02(d)(i)
of Receivables Purchase Agreement)
(a) The Amendment to the Receivables Purchase Agreement, attached
hereto as Schedule 1 (the "Amendment"), has been duly authorized, executed and
delivered by the Seller and constitutes the legal, valid and binding agreement
of the Seller, 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 Seller'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 7.01 of the Receivables Purchase Agreement.
(c) The Amendment will not adversely affect in any material respect the
interests of the Noteholders. [Include this clause (c) only in the case of
amendments effected pursuant to Section 7.01(a) of the Receivables Purchase
Agreement.]
Exhibit C
FORM OF OPINION OF COUNSEL
(Provisions to be included in Opinion of Counsel to be
delivered pursuant to Section 7.02(d)(ii)
of Receivables Purchase 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 Motor Credit Company (the "Seller") delivered on any Closing Date, as
well as any others deemed appropriate at the time of delivery. Capitalized terms
used but not defined herein are used as defined in the Receivables Purchase
Agreement, dated as of August 1, 2001, (the "Receivables Purchase Agreement"),
between Ford Credit Floorplan LLC, as buyer (the "Buyer"), and the Seller.
[The Assignment has been duly authorized, executed and delivered by the
Seller, and constitutes the valid and legally binding obligation of the Seller,
enforceable against the Seller in accordance with its terms.]
Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, either Floorplan Financing Agreements or
Sales and Service Agreements, such Receivables will constitute "tangible chattel
paper," as defined under Section 9-102 of the UCC in effect in the applicable
jurisdiction.
Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, the Sale and Assignment Agreement between
Ford Motor Company and the Seller, such Receivables will constitute "general
intangibles," "payment intangibles," "accounts" or "tangible chattel paper,"
each as defined under Section 9-102 of the UCC in effect in the applicable
jurisdiction.
With respect to Receivables [in the Additional Accounts] in existence
on the date hereof and with respect to Receivables [in the Additional Accounts]
that come into existence after the date hereof, upon the creation of such
Receivables and the subsequent sale of such Receivables to the Buyer free and
clear of any Liens in accordance with the Receivables Purchase Agreement and
receipt by the Seller of the consideration therefor required pursuant to the
Receivables Purchase Agreement, a bankruptcy court having jurisdiction over the
Seller (i) would not be entitled to compel the turnover of such Receivables or
the proceeds thereof to the Seller under Section 542 of the Bankruptcy Code and
(ii) would not be entitled to treat such Receivables or the proceeds thereof as
assets included in the estate of the Seller pursuant to Section 541 of the
Bankruptcy Code or subject to the automatic stay provision of Section 362(a) of
the Bankruptcy Code.
o Include bracketed language only in the case of the designation of
Additional Accounts pursuant to Section 2.05 of the Receivables
Purchase Agreement
Exhibit D
FORM OF REASSIGNMENT OF RECEIVABLES IN REDESIGNATED ACCOUNTS
(Pursuant to Section 2.07
of Receivables Purchase Agreement)
This REASSIGNMENT NO. ___ OF RECEIVABLES IN REDESIGNATED ACCOUNTS,
dated as of ________ __, 200_, is between FORD MOTOR CREDIT COMPANY, as Seller
and FORD CREDIT FLOORPLAN LLC, as Buyer, pursuant to the Receivables Purchase
Agreement referred to below.
RECITALS
A. The Seller and the Buyer are parties to a Receivables Purchase
Agreement, dated as of August 1, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Receivables Purchase Agreement").
B. Pursuant to the Receivables Purchase Agreement, the Buyer has
offered to the Seller automatically and without notice to or action by or on
behalf of the Buyer, the right to redesignate and thereby remove Accounts from
the operation of the Receivables Purchase Agreement in the manner prescribed in
Section 2.07(b) thereof.
C. The Seller is willing to accept such redesignation and to accept
reconveyance of all such Receivables, Related Security and any related amounts
held or received in respect of such Accounts subject to the terms and conditions
hereof.
The Seller and the Buyer hereby agree as follows:
STATEMENT OF AGREEMENT
1. Defined Terms. All capitalized terms used herein have the
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein. The term "Redesignation Date" means, with respect to the
Redesignated Accounts redesignated hereby, __________, 20__.
2. Notice of Redesignated Accounts. The Seller (or the Servicer
on its behalf) has delivered to the Buyer the Redesignation Notice as provided
in Section 2.07(b)(i) of the Receivables Purchase Agreement.
3. Redesignated Accounts. The Seller 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 Buyer does hereby sell,
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Redesignation Date, all right, title
and interest of the Buyer in, to and under all Receivables now existing or
thereafter created from time to time in the Redesignated Accounts redesignated
hereby, all Related Security thereof, all monies due or to become due and all
amounts received with respect thereto (including all Interest Receivables), all
proceeds (as defined in Section 9-315 of the UCC) and Recoveries thereof.
If requested by the Seller, in connection with such transfer, the Buyer
agrees to execute and deliver to the Seller 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 Buyer
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 Buyer. The Buyer hereby acknowledges that,
before or simultaneously with the execution and delivery of this Reassignment,
the Seller delivered to the Buyer the updated Redesignated Account Schedule
described in Section 3 of this Reassignment.
6. Legal, Valid and Binding Obligation. The Seller hereby
represents and warrants to the Buyer 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 Seller, enforceable against the Seller 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 Receivables Purchase Agreement is in all respects ratified and
confirmed and the Receivables Purchase 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 Seller and the Buyer have caused this
Reassignment to be duly executed by their respective duly authorized officers,
all as of the day and year first above written.
FORD CREDIT FLOORPLAN LLC,
as Buyer
By
--------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Seller
By
--------------------------------
Name:
Title:
