SERIES 20___-_ ACCOUNT CONTROL AGREEMENT between FORD CREDIT FLOORPLAN MASTER OWNER TRUST A, as Grantor and THE BANK OF NEW YORK MELLON as Secured Party and Financial Institution Dated as of December 1, 2010
EXHIBIT 99.7
SERIES 20___-_ ACCOUNT CONTROL AGREEMENT
between
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A,
as Grantor
as Grantor
and
THE BANK OF NEW YORK MELLON
as Secured Party and Financial Institution
as Secured Party and Financial Institution
Dated as of December 1, 2010
TABLE OF CONTENTS
ARTICLE I USAGE AND DEFINITIONS | 2 | |||||
Section 1.1. |
Usage and Definitions | 2 | ||||
ARTICLE II ESTABLISHMENT OF COLLATERAL ACCOUNTS | 2 | |||||
Section 2.1. |
Description of Accounts | 2 | ||||
Section 2.2. |
Account Modifications | 2 | ||||
Section 2.3. |
Type of Account | 3 | ||||
Section 2.4. |
Securities Account Provisions | 3 | ||||
ARTICLE III SECURED PARTY CONTROL | 3 | |||||
Section 3.1. |
Control for Purposes of UCC | 3 | ||||
Section 3.2. |
Conflicting Orders or Instructions | 3 | ||||
ARTICLE IV INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS | 3 | |||||
Section 4.1. |
Investment of Funds | 3 | ||||
ARTICLE V SUBORDINATION OF LIEN; WAIVER OF SET-OFF | 4 | |||||
Section 5.1. |
Subordination | 4 | ||||
Section 5.2. |
Set-off and Recoupment | 4 | ||||
ARTICLE VI OTHER AGREEMENTS | 4 | |||||
Section 6.1. |
Adverse Claim | 4 | ||||
Section 6.2. |
Correspondence, Statements and Confirmations | 4 | ||||
Section 6.3. |
Representation of the Financial Institution | 4 | ||||
Section 6.4. |
Release of Financial Institution | 4 | ||||
Section 6.5. |
Termination | 5 | ||||
Section 6.6. |
Existence of Other Agreements | 5 | ||||
Section 6.7. |
Notice | 5 | ||||
ARTICLE VII MISCELLANEOUS | 5 | |||||
Section 7.1. |
Amendment | 5 | ||||
Section 7.2. |
Conflict With Other Agreement | 5 | ||||
Section 7.3. |
Location of Financial Institution | 5 | ||||
Section 7.4. |
GOVERNING LAW | 6 | ||||
Section 7.5. |
Submission to Jurisdiction | 6 | ||||
Section 7.6. |
WAIVER OF JURY TRIAL | 6 | ||||
Section 7.7. |
Successors | 6 | ||||
Section 7.8. |
Notices | 6 | ||||
Section 7.9. |
Severability | 7 | ||||
Section 7.10. |
Counterparts | 7 | ||||
Section 7.11. |
Headings | 7 | ||||
Section 7.12. |
No Petition | 7 | ||||
Section 7.13. |
Limitation of Liability of Indenture Trustee | 7 | ||||
Section 7.14. |
Limitation of Liability of the Owner Trustee | 7 |
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SERIES 20___-_ ACCOUNT CONTROL AGREEMENT, dated as of December 1, 2010 (this
“Agreement”), between FORD CREDIT FLOORPLAN MASTER OWNER TRUST A, a Delaware statutory
trust, as Grantor (the “Grantor”), THE BANK OF NEW YORK MELLON, a New York banking
corporation, as Indenture Trustee for the benefit of the Noteholders (in such capacity, the
“Secured Party”), and THE BANK OF NEW YORK MELLON in its capacity as both a “securities
intermediary” as defined in Section 8-102 of the UCC and a “bank” as defined in Section 9-102 of
the UCC (in such capacities, the “Financial Institution”).
ARTICLE I
USAGE AND DEFINITIONS
USAGE AND DEFINITIONS
Section 1.1. Usage and Definitions. Capitalized terms used but not otherwise defined
in this Agreement are defined in (a) the Amended and Restated Series 20___-_ Indenture Supplement,
dated as of ________, 20___, as amended and restated as of December 1, 2010 (the “Indenture
Supplement”), between the Grantor, as Issuer, and The Bank of New York Mellon, as Indenture
Trustee, or (b) Appendix A to (i) the Fifth Amended and Restated Sale and Servicing Agreement,
dated as of August 1, 2001, as amended and restated as of December 1, 2010, among Ford Credit
Floorplan Corporation, as Depositor, the Grantor, as Issuer, and Ford Motor Credit Company LLC, as
Servicer, and (ii) the Fifth Amended and Restated Sale and Servicing Agreement, dated as of August
1, 2001, as amended and restated as of December 1, 2010, among Ford Credit Floorplan LLC, as
Depositor, the Issuer and the Servicer. Each Appendix A also contains rules as to usage applicable
to this Agreement. Each Appendix A is incorporated by reference into this Agreement. All
references to the “UCC” mean the Uniform Commercial Code as in effect in the State of New York.
ARTICLE II
ESTABLISHMENT OF COLLATERAL ACCOUNTS
ESTABLISHMENT OF COLLATERAL ACCOUNTS
Section 2.1. Description of Accounts. The Financial Institution has established the
following accounts (each, a “Collateral Account”):
“Series 20___-_ Principal Funding Account—The Bank of New York Mellon as Indenture
Trustee, as secured party for Ford Credit Floorplan Master Owner Trust A in respect of
Series 20___-_” with account number [_____];
“Series 20___-_ Reserve Account—The Bank of New York Mellon as Indenture Trustee, as
secured party for Ford Credit Floorplan Master Owner Trust A in respect of Series 20___-_”
with account number [_____]; and
“Series 20___-_ Accumulation Period Reserve Account—The Bank of New York Mellon as
Indenture Trustee, as secured party for Ford Credit Floorplan Master Owner Trust A in
respect of Series 20___-_” with account number [_____].
Section 2.2. Account Modifications. Neither the Financial Institution nor the Grantor will change the name or account number of
any Collateral Account without the prior written consent of the Secured Party.
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Section 2.3. Type of Account. The Financial Institution agrees that each Collateral
Account is, and will be maintained as, either (a) a “securities account” (as defined in Section
8-501 of the UCC) or (b) a “deposit account” (as defined in Section 9-102(a)(29) of the UCC).
Section 2.4. Securities Account Provisions. If and to the extent any Collateral
Account is a securities account (within the meaning of Section 8-501 of the UCC) the Financial
Institution agrees that:
(a) all securities, financial assets or other investment property (other than cash) credited
to each Collateral Account will be registered in the name of the Financial Institution, indorsed to
the Financial Institution or in blank or credited to another securities account maintained in the
name of the Financial Institution. In no case will any financial asset credited to any Collateral
Account be registered in the name of the Grantor, payable to the order of the Grantor or specially
indorsed to the Grantor unless the foregoing have been specially indorsed to the Financial
Institution or in blank; and
(b) all financial assets delivered to the Financial Institution pursuant to the Indenture will
be promptly credited to the appropriate Collateral Account; and each item of property (whether
investment property, financial asset, security or instrument) credited to any Collateral Account
will be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
ARTICLE III
SECURED PARTY CONTROL
SECURED PARTY CONTROL
Section 3.1. Control for Purposes of UCC. If the Financial Institution receives any
order from the Secured Party or its authorized agent (a) directing disposition of funds in any
Collateral Account or (b) directing transfer or redemption of the financial assets relating to the
Collateral Accounts (a “Secured Party Order”), the Financial Institution will comply with
the Secured Party Order without further consent by the Grantor or any other person.
Section 3.2. Conflicting Orders or Instructions. Notwithstanding anything to the
contrary contained in this Agreement, if at any time, the Financial Institution receives
conflicting orders or instructions from the Secured Party and the Grantor, the Financial
Institution will follow the orders or instructions of the Secured Party and not the Grantor. The
Financial Institution will (a) have no obligation to investigate or inquire as to whether the
Secured Party is entitled pursuant to the Indenture or otherwise to deliver any Secured Party Order
and (b) be entitled to rely on communications (including
Secured Party Orders) believed by it in good faith to be genuine and given by the appropriate
party.
ARTICLE IV
INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS
INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS
Section 4.1. Investment of Funds. If (a) the Financial Institution has not otherwise
received a Secured Party Order regarding the investment of funds held in the Collateral Accounts by
11:00 a.m. New York time (or such other time as may be agreed between the Financial Institution and
the Grantor) on the Business Day preceding a Payment Date, or (b) a Default or Event of Default has
occurred and is continuing with respect to the Notes and the Indenture
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Trustee has provided notice
of such continuing Default or Event of Default to the Financial Institution, the Financial
Institution will, to the fullest extent practicable, invest and reinvest funds on deposit in such
Collateral Account in accordance with the last investment instruction received, which will be
deemed to be effective with respect to such investment.
ARTICLE V
SUBORDINATION OF LIEN; WAIVER OF SET-OFF
SUBORDINATION OF LIEN; WAIVER OF SET-OFF
Section 5.1. Subordination. If the Financial Institution has, or subsequently
obtains, by agreement, by operation of law or otherwise a security interest in any Collateral
Account (or any portion thereof), the Financial Institution agrees that such security interest will
be subordinate to the security interest of the Secured Party.
Section 5.2. Set-off and Recoupment. The financial assets, money and other items
credited to each Collateral Account will not be subject to deduction, set-off, recoupment, banker’s
lien, or any other right in favor of any person other than the Secured Party. However, the
Financial Institution may set off (a) all amounts due to the Financial Institution in respect of
customary fees and expenses for the routine maintenance and operation of each Collateral Account,
(b) the face amount of any checks which have been credited to a Collateral Account but are
subsequently returned unpaid because of uncollected or insufficient funds and (c) any advances made
in connection with the settlement of any investment made with respect to the Collateral Accounts.
ARTICLE VI
OTHER AGREEMENTS
OTHER AGREEMENTS
Section 6.1. Adverse Claim. Except for the claims and interests of the Secured Party
and the Grantor, the Financial Institution does not know of any lien on, or claim to, or interest
in, any Collateral Account or in any “financial asset” (as defined in Section 8-102(a) of the UCC),
cash or funds credited thereto.
Section 6.2. Correspondence, Statements and Confirmations. The Financial Institution
will promptly send copies of all statements, confirmations and other correspondence concerning any
Collateral Account and, if applicable, any financial assets credited thereto, simultaneously to the
Grantor and the Secured Party.
Section 6.3. Representation of the Financial Institution. The Financial Institution
represents that this Agreement is the valid and legally binding obligation of the Financial
Institution.
Section 6.4. Release of Financial Institution. The Grantor and the Secured Party
agree that the Financial Institution is released from any and all liabilities to the Grantor and
the Secured Party arising from the terms of this Agreement and the compliance of the Financial
Institution with the terms hereof, except to the extent that such liabilities arise from the
Financial Institution’s negligence. In no event will the Financial Institution be liable, directly
or indirectly, to any person or entity for any indirect, special, incidental or consequential
damages of any kind whatsoever (including lost profit), even if the Financial Institution has been
advised of the likelihood of such loss or damage and regardless of the form of action.
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Section 6.5. Termination. The obligations of the Financial Institution to the Secured
Party pursuant to this Agreement will continue in effect until the security interests of the
Secured Party in each Collateral Account have been terminated pursuant to the terms of the
Indenture and the Secured Party has notified the Financial Institution of such termination in
writing. The Financial Institution may terminate its obligations under this Agreement if the
Secured Party resigns or is removed as Indenture Trustee pursuant to the Indenture;
provided that such termination will not be effective until the Collateral Accounts have
been established with, and transferred to, another securities intermediary which has agreed to
assume the obligations of the Financial Institution under this Agreement. The termination of this
Agreement will not terminate any Collateral Account or alter the obligations of the Financial
Institution to the Grantor pursuant to any other agreement with respect to any Collateral Account.
Section 6.6. Existence of Other Agreements. The Financial Institution confirms and
agrees that:
(a) There are no other agreements entered into between the Financial Institution and the
Grantor with respect to any Collateral Account other than the Indenture;
(b) The Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person relating any Collateral Account
pursuant to which it has agreed to comply with entitlement orders (as defined in Section
8-102(a)(8) of the UCC) or instructions (within the meaning of Section 9-104 of the UCC) of such
other person; and
(c) The Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement purporting to limit or condition the obligation of the
Financial Institution to comply with entitlement orders or instructions.
Section 6.7. Notice. If any person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment, execution or similar process)
against any Collateral Account (or in any financial asset, cash or funds carried therein), the
Financial Institution will promptly notify the Secured Party.
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
Section 7.1. Amendment. No amendment or modification of this Agreement or waiver of
any right under this Agreement will be binding on any party to this Agreement unless it is in
writing and is signed by all of the parties to this Agreement.
Section 7.2. Conflict With Other Agreement. In the event of any conflict between this
Agreement (or any portion thereof) and any other agreement now existing or hereafter entered into,
the terms of this Agreement will prevail.
Section 7.3. Location of Financial Institution. Regardless of any provision in any
other agreement, for purposes of the UCC, New York will be the location of the bank for purposes of
Sections 9-301, 9-304 and 9-305 of the UCC and the securities intermediary for purposes of Sections
9-301 and 9-305 and Section 8-110 of the UCC.
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Section 7.4. GOVERNING LAW. THIS AGREEMENT AND EACH COLLATERAL ACCOUNT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.5. Submission to Jurisdiction. The parties submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of New York and of any
New York State Court sitting in New York, New York for purposes of all legal proceedings arising
out of or relating to this Agreement. The parties irrevocably waive, to the fullest extent they may
do so, any objection that they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum.
Section 7.6. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
Section 7.7. Successors. The terms of this Agreement will be binding upon, and will
be for the benefit of, the parties hereto and their respective successors and assigns and will
apply to any successor account to any Collateral Account.
Section 7.8. Notices. (a) All notices, requests, demands, consents, waivers or other
communications to or from the parties to this Agreement must be in writing and will be deemed to
have been given:
(i) upon delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, three days after deposit in the mail;
(ii) in the case of a fax, when receipt is confirmed by telephone, reply email or reply
fax from the recipient;
(iii) in the case of an email, when receipt is confirmed by telephone, reply email from
the recipient; and
(iv) in the case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery (without the requirement of confirmation
of receipt) of an email to such recipient stating that such electronic posting has occurred.
Any such notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to the Sale and Servicing Agreements or at such other address
as any party may designate by notice to the other parties.
(b) Any notice required or permitted to be mailed to a Noteholder (i) in the case of
Definitive Notes, must be sent by overnight delivery, mailed by registered first class mail,
postage prepaid, sent by fax or any other procedures required by the Clearing Agency, to the
address of such Person as shown in the Note Register or (ii) in the case of Book-Entry Notes,
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must
be delivered pursuant to the applicable procedures of the Clearing Agency. Any notice so mailed
within the time prescribed in this Agreement will be conclusively presumed to have been properly
given, whether or not the Noteholder receives such notice.
Section 7.9. Severability. If any of the covenants, agreements or terms of this Agreement is held invalid, illegal or
unenforceable, then it will be deemed severable from the remaining covenants, agreements or terms
of this Agreement and will in no way affect the validity, legality or enforceability of the
remaining Agreement.
Section 7.10. Counterparts. This Agreement may be executed in any number of
counterparts. Each counterpart will be an original, and all counterparts will together constitute
one and the same instrument.
Section 7.11. Headings. The headings in this Agreement are included for convenience
only and will not affect the meaning or interpretation of this Agreement.
Section 7.12. No Petition. Notwithstanding any prior termination of this Agreement,
the Secured Party, the Financial Institution and the Indenture Trustee will not, before the date
which is one year and one day (or, if longer, any applicable preference period) after the payment
in full of all the Notes, institute against, or join any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any U.S. federal or State bankruptcy or similar law in connection with any
obligations relating to the Notes, this Agreement or any of the Transaction Documents.
Section 7.13. Limitation of Liability of Indenture Trustee. For all purposes of this
Agreement, Indenture Trustee will be subject to, and entitled to the benefits of, the terms and
provisions of the Indenture.
Section 7.14. Limitation of Liability of the Owner Trustee. Notwithstanding anything
in this Agreement to the contrary, this Agreement has been signed on behalf of the Grantor by U.S.
Bank Trust National Association not in its individual capacity but solely in its capacity as Owner
Trustee of the Grantor and in no event will U.S. Bank Trust National Association in its individual
capacity or any beneficial owner of the Grantor have any liability for the representations,
warranties, covenants, agreements or other obligations of the Grantor under this Agreement, as to
all of which recourse may be had solely to the assets of the Grantor . For all purposes of this
Agreement, in the performance of any duties or obligations of the Grantor under this Agreement, the
Owner Trustee is subject to, and entitled to the benefits of, the terms and provisions of the Trust
Agreement.
[Remainder of Page Intentionally Left Blank]
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EXECUTED BY:
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A, as Grantor | ||||
By: | U.S. BANK
TRUST NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee of Ford Credit
Floorplan Master Owner Trust A |
|||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON, as Secured Party |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON, as Financial Institution |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature Page to Series 20___-_ Account Control Agreement]