Transcription

Budco Financial ServicesDealer Participation AgreementImportant: Please note that a participation agreement must be returned beforecontracts can be registered using the IPP program. Make a copy of the signedagreement and send all pages of the participation agreement to one of theoptions below:Email to:[email protected] to: 1-888-846-9136Or Mail to:Budco Financial ServicesAttention: IPP Processing CenterP.O. Box 321067Detroit, MI 48232All pages of the legal agreement must be returned.Do not return just the signature page. If all pagesare not returned with an original signature this willcause enrollment delays.Thank you1Revision Date: September, 2015

BUDCO FINANCIAL SERVICES INSTALLMENT PAYMENT PROGRAMDEALER PLAN ENROLLMENT AND PARTICIPATION AGREEMENTDealer Name:Dealer PA Code:Dealer Address:(Address)(City)(State)Dealer Fax No.Dealer Phone No.The Dealer identified above (“Dealer”) seeks to enroll and participate in the BUDCO FINANCIALSERVICES INSTALLMENT PAYMENT PROGRAM offered by Budco Financial Services, LLC, a Delawarecorporation (“BFS”), to authorized Ford and Lincoln dealers in the United States and customers purchasing authorizedFord Extended Service Contracts (“Plan Contracts”) from them (the “Plan”). The Plan is offered by BFS pursuantto an agreement with Ford Motor Company (“Ford”). By signing this Dealer Plan Enrollment and ParticipationAgreement (“Agreement”) below, Dealer shall be immediately enrolled in the Plan.This Agreement and the Plan include the attached BUDCO FINANCIAL SERVICES INSTALLMENTPAYMENT PROGRAM DEALER PLAN CONTRACT TERMS AND CONDITIONS OF ASSIGNMENT,as well as instructions relating to the Plan, or to the sale of Plan Contracts utilizing the Plan, furnished to Dealer byBFS (with respect to Dealer’s relationship with BFS) or Ford (with respect to Dealer’s relationship with Ford), andDealer agrees to abide fully with the same. The parties to this Agreement (“Parties”) are BFS and Dealer.[Dealer Name]By:[Signature][Title]1[Date]

BUDCO FINANCIAL SERVICES INSTALLMENT PAYMENT PROGRAMDEALER PLAN CONTRACT TERMS AND CONDITIONS OF ASSIGNMENT1) General. During the term of Dealer’s participation in the Plan, Dealer is authorized to offer the Plan tocustomers in the United States purchasing PLAN Contracts from it. In participating in the Plan, Dealer will atall times comply with this Agreement and the policies, guidelines, and instructions (collectively,“Guidelines”):(i) relating to the Plan issued by BFS from time to time (including, without limitation, the Budco FinancialServices Installment Payment Program Dealer Administration Guide) (collectively, “BFS Guidelines”); and,(ii) relating to the sale of PLAN Contracts and the Plan issued by Ford (or subsidiaries of Ford who are partiesto PLAN Contracts) from time to time (including, without limitation, the Ford PLAN Operating Guide)(collectively, “Ford Guidelines”). Dealer will offer the Plan with respect to eligible PLAN Contracts only.PLAN Contract eligibility is as described in the Dealer Administration Guide and Operating Guide.2) Execution of Installment Contracts. If a customer chooses to pay for the purchase of an PLAN Contract soldby Dealer utilizing the Plan, Dealer will (contemporaneously with the customer’s execution of the PLANContract) execute a retail installment contract (“Installment Contract”) with the purchasing customer for theNet Retail Sales Price of the PLAN Contract and collect the required down payment (“Down Payment”) (asspecified in Attachment 1 and the Guidelines). Installment Contracts must be executed only in the formapproved by BFS, and Dealer will be responsible for properly completing Installment Contracts. A copy of thecurrent version of the approved form is attached hereto as Attachment 1. BFS will provide Dealer with anynew or revised versions of the form from time to time, as necessary. The Installment Contract will allow thecustomer to pay the “Net Retail Sale Price” of the PLAN Contract (which will be the aggregate of the price atwhich Dealer sold the PLAN Contract to the customer and the amount of applicable state sales tax incurred onthe sale [if any], less the Down Payment collected by Dealer) over the time period chosen by the customer.The time periods available to the customer are as provided in the BFS Guidelines.3) Assignments. Upon the execution of a PLAN Contract and the related Installment Contract, and the collection ofthe appropriate Down Payment by Dealer, as described above, Dealer will activate the PLAN Contract in theFord Protect Extended Service Plan computer system (“Plan System”) as described in the Ford Guidelines.Upon such activation, the Installment Contract will be automatically assigned by Dealer to BFS inconsideration of BFS’ payment to Dealer of the Assignment Price therefor. The assignment will be madeautomatically under this Agreement without further action by Dealer or BFS, effective upon such activation;provided, however, that the assignment will be conditioned upon BFS’ payment to Dealer of the AssignmentPrice for the Installment Contract. In the event that the Assignment Price is not paid by BFS as required underthis Agreement, this condition will not be satisfied and, at the sole discretion of Dealer, the assignment will bedeemed null and void and Dealer will have all rights under the Installment Contract, including, withoutlimitation, all rights to collect payments from the customer thereunder. Such assignments will be withoutrecourse to Dealer, except as otherwise expressly provided for in this Agreement. BFS will be responsible forproviding any notices to customers required by applicable law with respect to the assignment of InstallmentContracts to BFS hereunder.4) Payment of Assignment Price; Other Fees Relating to Installment Contract.a)Upon the effective date of the assignment of an Installment Contract by Dealer to BFS hereunder,BFS will be obligated to pay to Dealer the “Assignment Price” for the Installment Contract; provided,however, that BFS will have the right to withhold payment of the Assignment Price until it has receivedthe original Installment Contract from Dealer (as further described in Section 6). The Assignment Pricefor an Installment Contract will be equal to: the Net Retail Sale Price of the PLAN Contract related tothe Installment Contract, less the IPP Administration Fee for the Installment Contract (as specified inAttachment l). Assignment Prices will be paid by BFS as follows:i.)Payment for a contract will occur after Budco Financial Services is able to establish acustomer account. The monthly Dealer Statement and payment will cover a period beginningthe 5th of the previous month through the 4th of the current month, and will be paid on the 22ndof the current month.2

ii.)iii.)Payments will be handled on a net settlement basis, to the extent that there are sufficient payablesdue to BFS from Dealer (e.g., for cancellations) to be netted against. If there are insufficientpayables, BFS’ net payment will be made by check in immediately-available funds. BFS’ paymentwill be accompanied by a monthly statement for Dealer summarizing the following activitiesrelating to PLAN Contracts sold by Dealer utilizing the Plan during the month covered by thestatement: new sales, upgrades and downgrades, cancellations, and reinstatements. Ford will debitDealer’s P&A Account for the Wholesale Cost of the PLAN Contract as described in the FordGuidelines.In addition to IPP Administration Fees, BFS will be entitled to collect from the customer who is aparty to each Installment Contract: a “Cancellation Fee” in the event that the related PLANContract is canceled as described in Section 5; and, a “NSF Fee” or an “Unavailable Credit Fee”as specified in the Dealer Admin Guide and the Operation Guide in the event that BFS is unableto cash a customer’s check, or to process a debit to the customer’s credit card or savings orchecking account, because of insufficient funds or unavailable credit, respectively.5) Cancellations.a) In the event that an PLAN Contract sold by Dealer utilizing the Plan is canceled: (a) at the request of thecustomer that purchased the PLAN Contract; (b) at the request of Ford (or a Ford subsidiary that is a party tothe PLAN Contract) made in accordance with the PLAN Contract; or (c) at the request of BFS made onbehalf of the customer who purchased the PLAN Contract in accordance with the related InstallmentContract as a result of non-payment by the customer and BFS has followed the cancellation procedures setforth in the Guidelines; then Dealer will pay to BFS the full amount that Dealer is required to return to thecustomer (or the customer’s “Lienholder” under the PLAN Contract) pursuant to Ford’s formula forcalculating customer refunds applicable to the PLAN Contract as specified in the Ford Guidelines (“RefundAmount”), and Ford will credit Dealer’s P&A Account for Ford’s (or the appropriate Ford subsidiary’s)unearned premium on the PLAN Contract. The foregoing notwithstanding, Dealer will not have anyobligation to pay to BFS, and BFS will have no right to collect from Dealer, any Refund Amount or otherpayment with respect to the cancellation of an PLAN Contract for which the related Installment Contract hasbeen paid in full to BFS (or its permitted assignee), it being understood that any funds due to the customer asa result of such cancellation will be paid directly by Dealer.b) Payments under Section 5(a) will be handled on a net settlement basis with BFS, to the extent that there aresufficient payables due to Dealer from BFS to be netted against. If, however, there are insufficient payablesdue to Dealer from BFS to be netted against, Dealer authorizes Ford to debit Dealer’s Ford Parts andAccessories account (“P&A Account”) for the net amount of payments due and remit the same to BFS, andauthorizes BFS to initiate such a debit by Ford. If Dealer’s P&A Account is not utilized, BFS will invoiceDealer for the payment and the payment will be due by check within thirty days after the Dealer’s receipt ofthe invoice.c) In addition to the foregoing, with respect to any debit made by Ford to Dealer’s P&A Account upon thetermination or resignation of Dealer’s Sales and Service Agreement with Ford pursuant to Ford’s policiesrelating to terminating dealerships specified in the Ford Guidelines, Dealer authorizes Ford to remit to BFSfrom such debited amount the Refund Amounts due to BFS with respect to PLAN Contracts sold by Dealerutilizing the Plan that are canceled after the date the debit is made. In addition, upon the cancellation of suchan PLAN Contract, Dealer authorizes Ford to remit directly to BFS the unearned premium of Ford (or theappropriate Ford subsidiary) on such PLAN Contract (which amount would normally be credited toDealer’s P&A Account upon cancellation pursuant to the Ford Guidelines) to the extent that Ford is able todo so under applicable law.3

d) BFS may retain from a Refund Amount the amount that it is entitled to retain under the related InstallmentContract as a result of the cancellation of the related PLAN Contract. Any amount to be paid to thecustomer under an Installment Contract after deducting from the Refund Amount the amount that BFS isentitled to retain will be paid by BFS to such customer by check in immediately-available funds within30 days after the date that the PLAN Contract was canceled. In the event that BFS fails to make any suchpayment to a customer when and as required under this Section 5(c) after 5 days advance written notice toBFS of such failure (and provided that BFS does not provide to Dealer proof of payment to suchcustomer within such 5 days), Dealer (if Dealer has paid the Refund Amount to BFS as required pursuantto this Section 5) may, at its sole discretion, but without obligation to do so, pay to such customer theamount of such payment and charge BFS for the same.6) Other Actions Relating to Installment Contracts. Dealer will indicate BFS as the “Lienholder” in the appropriatesection of the PLAN Contract for each PLAN Contract sold by Dealer utilizing the Plan; provided, however, thatsuch designation will be conditioned upon BFS’ payment to Dealer of the Assignment Price for the relatedInstallment Contract as required under this Agreement, and such designation will cease when the InstallmentContract relating to the PLAN Contract has been paid in full. Dealer will sign the Assignment part of theInstallment Contract, assigning it to BFS. Dealer will, send to BFS via eContract, fax, email, mail or courier the“Assignee Copy” of each PLAN Contract sold by Dealer utilizing the Plan, along with the signed copy of eachInstallment Contract relating to each such PLAN Contract. Dealer will keep the “Dealer Copy” of theInstallment Contract for its records for a period of two years following the date of the Installment Contract.7) Warranties & Representations of Dealer. Dealer agrees to, and represents and warrants each of the followingto BFS:a) It is a strict condition of the Plan that the Retail Sale Price (the aggregate of the price at which Dealer soldthe PLAN Contract to the customer and the amount of applicable state sales tax incurred on the sale [ifany]) of each PLAN Contract offered for sale to customers by Dealer utilizing the Plan will not varydepending uponwhether the customer chooses to finance the purchase of the PLAN Contract utilizing the Plan instead ofpaying cash, no incremental charges may be assessed under any circumstances by reason of the customerelecting to purchase such PLAN Contract utilizing the Plan instead of paying cash, and no discount may beoffered to the customer in any manner to entice the customer to pay cash as opposed to purchasing suchPLAN Contract utilizing the Plan.b) With respect to each Installment Contract assigned to BFS hereunder, Dealer warrants and represents,effective as of the: (i) effective date of assignment of the Installment Contract, that the Installment Contractis free and clear of all mortgages, liens, charges, pledges, and encumbrances (other than those expresslyprovided for in this Agreement), and that the Installment Contract has not been sold, assigned, or transferred(except with respect to the assignment made to BFS pursuant to this Agreement); and, (ii) effective duringthe time period beginning upon the date of such assignment and ending upon the date upon which theInstallment Contract is fully paid, such warranties and representations of Dealer will remain true and correctwith respect to the absence of any mortgages, liens, charges, pledges, encumbrances, sales, assignments, ortransfers made by or through Dealer.4

8) Term; Termination; Events of Default; Other Remedies.a) Term. The term of this Agreement and Dealer’s participation in the Plan will commence on the date first setforth above and continue until terminated in accordance with the following: (i) a Dealer or BFS mayterminate this Agreement and Dealer’s participation in the Plan at will and without cause upon at least thirtydays prior notice to the other Party; (ii) a Dealer or BFS may terminate this Agreement and Dealer’sparticipation in the Plan immediately upon notice to the other Party in the event of the occurrence of anevent of default by the other Party; or, (iii) this Agreement and Dealer’s participation in the Plan willautomatically terminate if: (A) Ford terminates its PLAN Contract program pursuant to which PLANContracts are sold via authorized dealers, or (B) BFS’ agreement with Ford pursuant to which the Plan isoffered to Dealer terminates for any reason or (C) upon the termination or resignation of Dealer’s Sales andService Agreement with Ford for any reason. The termination of Dealer’s participation in the Plan by aParty in accordance with this Section 8(a) will be without liability of any kind for the terminating Party.With respect to a transaction or event occurring prior to the termination of this Agreement and Dealer’sparticipation in the Plan, such termination will not affect or impair the rights or obligations of a Party underthis Agreement, the Plan, or an Installment Contract relating to such transaction or event.b) Events of Default. The occurrence of any of the following events will constitute an event of default of theParty with respect to which such event occurs or relates: (i) a breach by a Party of any of its materialobligations under the Plan and such Party’s failure to fully cure such breach within ten days after noticefrom the other Party of such breach; (ii) any material representation or warranty made or furnished by aParty to the other Party under the Plan becomes materially false or untrue; (iii) a Party becomesinsolvent, files a voluntary petition in bankruptcy, an involuntary petition in bankruptcy is filed againstsuch Party, a receiver or trustee is appointed for such Party, or such Party executes an assignment for thebenefit of creditors; or, (iv) Dealer assigns or delegates any of its rights or obligations hereunder withoutthe consent of BFS.c) Compliance with Law; Control of Price; Other Remedies. BFS and Dealer will comply with all applicablelaw, rules, and regulations in its performance of its obligations under this Agreement. In all cases Dealerwill have and retain the authority to determine the Retail Sales Price of PLAN Contracts sold by it exceptin the state of Florida. PLAN dealers with a physical address in the state of Florida or any dealer sellingPLAN via the Internet to consumers with a physical address in the state of Florida must sell PLAN at theFlorida published retail price (PLAN Florida Retail price book). PLAN Dealers with a physical address inthe state of Pennsylvania cannot sell PLAN at a Retail price that exceeds 100% of the Dealer Cost. BFSwill have no obligation to offer or take assignment of any PLAN plan that is not sold at the mandatoryFlorida Retail price, or any PLAN Pennsylvania Plan that exceeds the 100% cap on the Retail Price.Without limiting any of the terms or conditions of this Agreement or any other rights or remedies ofDealer, in the event that BFS fails to pay any sums owed by it to Dealer under this Agreement within tendays after the date upon which such payment becomes due, Dealer will have the right (but not theobligation), at its sole discretion, to offer to the customer that is a party to the Installment Contract towhich such non-payment relates (or the permitted assignee of the customer) a new or alternative PLANContract, or a new or alternative retail installment contract (or other financing arrangement) relating tothe purchase price of such PLAN Contract (or any such new or alternative PLAN Contract), that wouldreplace or result in the termination of the customer’s Installment Contract that was assigned to BFShereunder. Dealer’s exercise of such right will be without liability to Dealer.5

9) Changes to Guidelines, Forms, and Fees. The Attachments hereto (including, without limitation, any feespayable to BFS hereunder and the approved form of Installment Contracts) and the BFS Guidelines may berevised or amended from time to time by BFS upon notice to Dealer (BFS acknowledges that any suchrevisions or amendments must be approved by Ford in advance). The Ford Guidelines may be revised oramended from time to time by Ford upon notice to Dealer. No such revisions or amendments will, however,affect transactions entered into under this Agreement prior to the later of the effective date of such revision oramendment or the effective date of BFS’ or Ford’s (as appropriate) notice thereof to Dealer.10) Provision of Information to Ford. Dealer agrees that BFS may, upon Ford’s request, provide Ford (or itssubsidiaries who are parties under PLAN Contracts, or the contractors of the same supplying services relatedto the PLAN Contract program) with information or data: relating to Dealer’s participation in the Plan,including, without limitation, information or data relating to Dealer’s account status