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EXHIBIT 4.6
[RCL 1996-1 TRUST AGREEMENT]
AMENDED AND RESTATED TRUST AGREEMENT
dated as of November 19, 1996
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.
As Grantors and RCL Beneficiaries
and
FIRST UNION BANK OF DELAWARE
As RCL Trustee
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . 2
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
ORGANIZATION . . . . . . . . . . . . . . . 3
Section 2.1 Organization and Name . . . . . . . . . . . . . . . . . . . . 3
Section 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Purposes and Powers . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4 Confirmation of Appointment of Trustee . . . . . . . . . . . 4
Section 2.5 RCL Assets . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . . . 5
Section 2.7 Liability and Indemnification . . . . . . . . . . . . . . . . 6
Section 2.8 Title to Trust Property . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
THE RCL BENEFICIARIES . . . . . . . . . . . . . 7
Section 3.1 Restrictions on Transfer . . . . . . . . . . . . . . . . . . 7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 8
Section 4.1 Representations and Warranties of the Grantors . . . . . . . 8
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES . . . . . . . 9
Section 5.1 Establishment of RCL Account . . . . . . . . . . . . . . . . 9
Section 5.2 Application of RCL Assets . . . . . . . . . . . . . . . . . . 9
Section 5.3 Accounting and Reports to RCL Beneficiaries, the Internal Reve-
nue Service and Others . . . . . . . . . . . . . . . . . . . 10
Section 5.4 Signature on Returns; Tax Matters Partner . . . . . . . . . . 11
ARTICLE VI
RCL TRUSTEE . . . . . . . . . . . . . . . 11
Section 6.1 Duties of RCL Trustee . . . . . . . . . . . . . . . . . . . . 12
Section 6.2 Rights of RCL Trustee . . . . . . . . . . . . . . . . . . . . 12
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Section 6.3 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . 13
Section 6.4 Action upon Instruction by RCL Beneficiaries . . . . . . . . 14
Section 6.5 Furnishing of Documents . . . . . . . . . . . . . . . . . . . 15
Section 6.6 Representations and Warranties of RCL Trustee . . . . . . . . 15
Section 6.7 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . 16
Section 6.8 RCL Trustee May Own Lease Trust Certificates and Senior Notes 17
Section 6.9 Compensation . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.10 Resignation or Removal of RCL Trustee . . . . . . . . . . . . 18
Section 6.11 Merger or Consolidation of RCL Trustee . . . . . . . . . . . 20
Section 6.12 Appointment of Co-Trustee or Separate Trustee . . . . . . . . 20
Section 6.13 Eligibility Requirements for RCL Trustee . . . . . . . . . . 22
ARTICLE VII
TERMINATION OF TRUST AGREEMENT . . . . . . . . . . 23
Section 7.1 Termination of Trust Agreement . . . . . . . . . . . . . . . 23
ARTICLE VIII
AMENDMENTS . . . . . . . . . . . . . . . 23
Section 8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IX
TAX MATTERS . . . . . . . . . . . . . . . 24
Section 9.1 Tax Characterization . . . . . . . . . . . . . . . . . . . . 24
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . 24
Section 10.1 No Legal Title to RCL Assets; Direction of RCL Trustee Actions 24
Section 10.2 Limitations on Rights of Others . . . . . . . . . . . . . . . 24
Section 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . 26
Section 10.7 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.8 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.9 Covenant of Ford Credit Leasing . . . . . . . . . . . . . . . 27
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Section 10.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit A Form of RCL Assignment Agreement . . . . . . . . . . . . . . A-1
Schedule I Demand Notes
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AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as
of November 19, 1996 (as modified, supplemented or amended from time to time,
this "Agreement") among (i) FORD MOTOR CREDIT COMPANY, a Delaware corporation
("Ford Credit") as a Grantor and as a RCL Beneficiary, (ii) FORD CREDIT LEASING
COMPANY, INC., a Delaware corporation ("Ford Credit Leasing") as a Grantor and
a RCL Beneficiary and (iii) FIRST UNION BANK OF DELAWARE, a Delaware banking
corporation, as RCL Trustee.
WHEREAS, the parties hereto intend to amend and restate, on
the terms and conditions set forth herein, that certain Trust Agreement, dated
as of November 1, 1996, among Ford Credit, Ford Credit Leasing and the RCL
Trustee (the "Original Agreement"), pursuant to which this trust was created;
WHEREAS, Ford Credit and Ford Credit Leasing intend to
transfer their respective Series 1996-1 Certificates to RCL pursuant to the
terms of the Asset Contribution Agreement;
WHEREAS, it is intended that RCL transfer the Series 1996-1
Certificates to the Lease Trust pursuant to the Transfer Agreement and,
immediately thereafter, that an interest in the Series 1996-1 Certificates be
acquired from the Lease Trust pursuant to the terms of the Program Operating
Lease; and
WHEREAS, it is intended that Ford Credit Leasing acquire from
RCL a 1% interest in (i) all assets, rights, and obligations of RCL, including,
but not limited to, the Cash Collateral Account, and each other asset of RCL
(other than certain Demand Notes listed on Schedule I hereto upon which Ford
Credit is maker and RCL or Ford Credit Leasing is payee) and (ii) the
obligations of RCL under the Program Operating Lease, in accordance with the
terms of the RCL Assignment Agreement.
NOW THEREFORE, Ford Credit, Ford Credit Leasing and the RCL
Trustee hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement
capitalized terms have the meanings assigned to them herein or, if not defined
herein, as defined in Appendix A attached hereto. To the extent that the
definitions set forth herein conflict with the definitions set forth in
Appendix A, or incorporated by reference therein, the definitions set forth
herein shall be controlling. All references herein to "this Agreement" are to
this Amended and Restated Trust Agreement, and all references herein to
Articles, Sections and subsections are to Articles, Sections and subsections of
this Agreement unless otherwise specified.
"Grantors" means Ford Credit and Ford Credit Leasing in their
capacities as grantors of the RCL Assets to RCL.
"Liabilities" has the meaning set forth in Section 2.7.
"Percentage Interest" means, (i) when used with respect to Ford
Credit, (x) prior to the effective date of the RCL Assignment Agreement, 98%
and (y) after the effective date of the RCL Assignment Agreement, the
percentage equivalent of a fraction, the numerator of which is 98 and the
denominator of which is 99, and (ii) when used with respect to Ford Credit
Leasing, (x) prior to the effective date of the RCL Assignment Agreement, 2%
and (y) after the effective date of the RCL Assignment Agreement, the
percentage equivalent of a fraction, the numerator of which is 1 and the
denominator of which is 99.
"RCL" means the trust created pursuant to and named "RCL Trust 1996-1"
in the Original Agreement.
"RCL Assets" means (i) cash and any amounts on deposit in or credited
to the RCL Account from time to time, (ii) the interest of RCL from time to
time in the Series 1996-1 Certificates and all proceeds thereof, (iii) the
Subordinated Notes and $311,533.09 initial principal balance of Lease Trust
Certificates and (iv) the Cash Collateral Account and all amounts deposited
therein.
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"RCL Assignment Agreement" means the assignment made by RCL to Ford
Credit Leasing in the form attached hereto as Exhibit A.
"RCL Beneficiaries" means Ford Credit and Ford Credit Leasing.
"RCL Trustee" means First Union Bank of Delaware, in its capacity as
trustee under this Agreement, together with its successors and any permitted
assigns.
"RCL Trustee Office" means the office of the RCL Trustee at which any
particular time its corporate trust business shall be administered, which at
the date hereof is One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
"Responsible Officer" means, when used with respect to the RCL
Trustee, any officer assigned to the corporate trust department who has direct
responsibility for the administration of this Agreement, including any Vice
President, any Assistant Vice President, any Trust Officer or any other officer
of the RCL Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for
the administration of this Agreement, as the case may be, and also, with
respect to a particular matter relating to RCL, any other officer of the RCL
Trustee to whom such matter is referred because of such officer's knowledge of
and familiarity with such matter.
"Trust Statute" means 12 Del. Code Section Section 3801 et. seq., as
amended or supplemented from time to time.
ARTICLE II
ORGANIZATION
Section 2.1 Organization and Name. The trust created
pursuant to this Agreement shall be known as "RCL Trust 1996-1" in which name
the RCL Trustee may conduct the activities of RCL. It is the intention of the
parties hereto that RCL shall constitute a trust under the Trust Statute and
that this Agreement constitute the governing instrument of such trust.
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Section 2.2 Office. The office of RCL shall be in care of
RCL Trustee at the RCL Trustee Office or at such other address as the RCL
Trustee may designate by written notice to the Grantors and the RCL
Beneficiaries.
Section 2.3 Purposes and Powers. The purpose of RCL is to
engage solely in the following activities, all in accordance with the terms of
this Agreement:
(a) to pay the organizational, start-up and transactional
expenses of RCL;
(b) to acquire the Series 1996-1 Certificates pursuant to the
Asset Contribution Agreement, transfer the Series 1996-1 Certificates
to the Lease Trust pursuant to the Transfer Agreement and acquire an
interest in the Series 1996-1 Certificates from the Lease Trust
pursuant to the Program Operating Lease;
(c) to assign, pursuant to the RCL Assignment Agreement, a 1%
interest to Ford Credit Leasing in the RCL Assets and the obligations
of RCL;
(d) to execute, deliver and perform its obligations under
agreements, instruments or other documents to which it is to be a
party, including but not limited to the Asset Contribution Agreement,
the RCL Assignment Agreement, the Transfer Agreement, the Program
Operating Lease and the Lease Trust Agreement;
(e) to hold the Subordinated Notes and a portion of the Lease
Trust Certificates (other than the portion of the Subordinated Notes
and Lease Trust Certificates assigned to Ford Credit Leasing);
(f) to establish the RCL Account and the Cash Collateral
Account; and
(g) to engage in those activities, including making
distributions to RCL Beneficiaries, executing agreements, and
executing and filing documents with regulatory agencies relating to
the issuance of securities by the Lease Trust that are necessary,
suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith.
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Section 2.4 Confirmation of Appointment of Trustee. The RCL
Beneficiaries hereby confirm their appointment of First Union Bank of Delaware
as trustee of RCL and First Union Bank of Delaware hereby confirms its
acceptance of such appointment. Effective as of the date hereof, the RCL
Trustee shall have all the rights, powers and duties set forth herein.
Section 2.5 RCL Assets. (a) As of the date hereof, Ford
Credit as a Grantor hereby sells, assigns, transfers, conveys and sets over to
RCL the sum of $9800. Ford Credit Leasing as a Grantor hereby sells, assigns,
transfers, conveys and sets over to RCL the sum of $200. The RCL Trustee
hereby acknowledges receipt in trust from each Grantor, as of the date hereof,
of the foregoing contributions, which constitute the initial RCL Assets. The
RCL Trustee shall deposit such contributions in the RCL Account upon receipt
thereof.
(b) On the Closing Date, each of Ford Credit and Ford Credit
Leasing, as Grantors, shall contribute and transfer the Series 1996-1
Certificates to RCL pursuant to the Asset Contribution Agreement, and then RCL
shall transfer the Series 1996-1 Certificates to the Lease Trust pursuant to
the Transfer Agreement and then, pursuant to the Program Operating Lease, the
Lease Trust shall lease the Series 1996-1 Certificates to RCL and then,
pursuant to the RCL Assignment Agreement, RCL shall assign to Ford Credit
Leasing, and Ford Credit Leasing shall accept, 1% of the assets and obligations
of RCL. For purposes of Section 7.1 of the FCTT Agreement, RCL and Ford Credit
Leasing (after the assignment) shall be the "initial transferees" of the Series
1996-1 Certificates.
(c) Certain organizational expenses of RCL have been paid by
the grantors of RCL. The Grantors shall capitalize RCL with an amount
sufficient to pay administrative expenses of RCL, including expenses of the RCL
Trustee incurred on behalf of RCL, as they may arise.
Section 2.6 Declaration of Trust. The RCL Trustee hereby
declares that it shall hold all the RCL Assets, including all monies and
proceeds of such RCL Assets, in trust for the benefit of the RCL Beneficiaries
in accordance with their respective Percentage Interests from time to time.
Effective as of the date hereof, the
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RCL Trustee shall have all rights, powers and duties set forth herein with
respect to accomplishing the purposes of RCL set forth in Section 2.3.
Section 2.7 Liability and Indemnification. (a)
Notwithstanding Section 3803 of the Trust Statute, Ford Credit Leasing shall be
directly liable to any claimant for all losses, claims, damages, liabilities
and expenses ("Liabilities") of RCL, or incurred in connection with RCL Assets
and this Agreement and the Basic Documents to the extent that Ford Credit
Leasing would be liable if RCL were a partnership under the Delaware Revised
Uniform Limited Partnership Act or the Delaware Uniform Partnership Law and
Ford Credit Leasing were a general partner thereof, and Ford Credit Leasing
hereby covenants and agrees that it will maintain net worth in an amount
sufficient to maintain its status as a "general partner" of RCL and the Lease
Trust for federal income tax purposes. Any third party creditors of RCL shall
be deemed to be third party beneficiaries for purposes of this Section 2.7.
(b) The RCL Beneficiaries shall indemnify, defend and hold
harmless the RCL Trustee, including its successors, assigns, officers,
directors, shareholders, employees and agents for all Liabilities, penalties
and taxes (other than income taxes relating to the fees paid to it hereunder)
incurred by it in connection with the administration of RCL (including
attorneys' fees) and the performance of its duties hereunder; provided,
however, that in no event shall the RCL Trustee be indemnified or held harmless
for any Liabilities incurred (i) by reason of the RCL Trustee's willful
misconduct, bad faith or negligence or (ii) incurred by reason of the RCL
Trustee's breach of its representations and warranties set forth in Section
6.6. The RCL Trustee shall notify the RCL Beneficiaries promptly of any claim
for which the RCL Trustee may seek indemnity. Failure by the RCL Trustee to so
notify the RCL Beneficiaries shall not relieve the RCL Beneficiaries of their
obligations hereunder. If necessary, to the extent not otherwise reimbursed,
the RCL Trustee shall be entitled to indemnification from amounts on deposit in
the RCL Account for any claims against the RCL Trustee the indemnification for
which is provided pursuant to this Section 2.7. Any claim against the RCL
Trustee shall be defended by the RCL Beneficiaries and the RCL Trustee shall be
entitled to separate
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counsel, the fees and expenses of which shall be paid by such RCL
Beneficiaries. The indemnities contained in this Section 2.7 shall survive the
resignation, removal or termination of the RCL Trustee or the termination of
this Agreement. Any amounts paid to the RCL Trustee pursuant to this Section
2.7 shall be deemed not to be RCL Assets immediately after such payment. The
RCL Trustee acknowledges that funds may be deposited in the RCL Account only as
specifically provided in the Basic Documents, and that certain funds paid to
RCL in respect of the Series 1996-1 Certificates and funds paid to RCL as
holder of the Subordinated Notes and deposited in the Cash Collateral Account
have been pledged to the Lease Trustee on behalf of the Lease Trust and the
Indenture Trustee on behalf of Senior Noteholders in accordance with the terms
of the Basic Documents.
Section 2.8 Title to Trust Property. Legal title to all the
RCL Assets shall be vested at all times in RCL or, if required by applicable
law, the RCL Trustee or a co-trustee and/or a separate trustee, as the case may
be. The RCL Trustee or any such co-trustee and/or separate trustee shall at
all times hold the RCL Assets on behalf of the RCL Beneficiaries.
ARTICLE III
THE RCL BENEFICIARIES
Section 3.1 Restrictions on Transfer. Neither Ford Credit
nor Ford Credit Leasing may sell, transfer, assign, hypothecate, pledge or
otherwise convey its beneficial interest in RCL to any Person. There shall be
no restriction on the ability of RCL, acting upon the joint instructions of the
RCL Beneficiaries, to transfer, convey, assign, lease and otherwise enter into
agreements with respect to any or all of the RCL Assets as contemplated by the
Basic Documents; provided however, that except pursuant to, or as specifically
contemplated by, the Basic Documents, RCL (and Ford Credit Leasing, after the
assignment) shall not transfer, convey, assign, lease or otherwise enter into
agreements with respect to the RCL Assets.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Grantors.
Ford Credit and Ford Credit Leasing (each only as to itself) as Grantors
hereunder hereby each represent and warrant to the RCL Trustee that:
(a) it has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted;
(b) it is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications;
(c) it has the full power and authority to execute and
deliver this Agreement, to carry out its terms and to transfer, convey and
deposit the RCL Assets to be deposited with the RCL Trustee as part of RCL and
has duly authorized such acts by all necessary corporate action;
(d) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time or both) a default under, its
certificate of incorporation or by-laws, or any indenture, agreement or other
instrument to which it is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument, or violate any law
or, to the best of its knowledge, any order, rule or regulation applicable to
it of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over it or any
of its properties; and
(e) this Agreement has been duly authorized, executed and
delivered by it and constitutes the legal,
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valid and binding agreement of it, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of RCL Account.
(a) The RCL Trustee, for the benefit of RCL, shall establish
and maintain in the name of the RCL Trustee an account known as the RCL Account
(the "RCL Account") in an office of the RCL Trustee, bearing an additional
designation clearly indicating that the funds deposited therein are held for
the benefit of RCL and Ford Credit Leasing as assignee under the RCL Assignment
Agreement.
(b) RCL and Ford Credit Leasing as assignee under the RCL
Assignment Agreement shall possess all right, title and interest in and to all
funds on deposit from time to time in the RCL Account and in all proceeds
thereof. The RCL Account shall be under the sole dominion and control of the
RCL Trustee for the benefit of the RCL Beneficiaries.
Section 5.2 Application of RCL Assets.
(a) All investment earnings (net of losses and investment
expenses) on amounts deposited in the Series 1996-1 Payahead Account pursuant
to Section 5.2(b) of the Series 1996-1 Supplement and any Transferor Purchase
Option Net Proceeds not required to be deposited into the Cash Collateral
Account pursuant to Section 9.2 of the Program Operating Lease shall, to the
extent actually received by the RCL Trustee, be deposited into the RCL Account.
The RCL Trustee shall not invest any amounts deposited in the RCL Account. The
RCL Trustee shall have no liability for (i) the failure to invest amounts
deposited in the RCL Account, or (ii) for failing to take any action or to
refrain from taking any action for the reasons described in Sections 6.4(b) and
6.4(c).
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(b) On each Distribution Date, the RCL Trustee shall
withdraw all amounts on deposit in the RCL Account and apply such amounts in
the following order of priority:
(i) to the RCL Trustee an amount equal to the sum of
(x) the fees payable to the RCL Trustee for its services hereunder and
(y) its reasonable expenses incurred in connection with the exercise
and performance of its rights and duties hereunder;
(ii) to pay any other amounts then owing by RCL to
any Person;
(iii) to Ford Credit Leasing, pursuant to the RCL
Assignment Agreement, 1% of the amount remaining after giving effect
to the payment of items (i) and (ii) above; and
(iv) to the RCL Beneficiaries in accordance with
their respective Percentage Interests in RCL, the amount remaining
after giving effect to the payment of items (i), (ii) and (iii).
(c) In connection with each distribution of funds, the
RCL Trustee shall deliver to each RCL Beneficiary and Ford Credit Leasing as
assignee under the RCL Assignment Agreement a report setting forth the amounts
distributed pursuant to Section 5.2(b).
Section 5.3 Accounting and Reports to RCL Beneficiaries, the
Internal Revenue Service and Others. The RCL Trustee shall (a) maintain (or
cause to be maintained) the books of RCL on a calendar year basis on the
accrual method of accounting, (b) deliver or cause to be delivered to each RCL
Beneficiary such information as may be required by the Code and applicable
Treasury Regulations or otherwise, including such information as may be
required to enable each RCL Beneficiary to prepare its federal income tax
returns, (c) file or cause to be filed any tax returns prepared by the RCL
Beneficiaries on behalf of RCL and make such elections as may from time to time
be directed by the RCL Beneficiaries under any applicable state or federal
statute or rule or regulation thereunder in accordance with Section 9.1 and (d)
cause such tax returns to be signed in the manner required by law.
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Section 5.4 Signature on Returns; Tax Matters Partner. The
RCL Trustee shall sign on behalf of RCL any and all tax returns of RCL, unless
applicable law requires a RCL Beneficiary to sign such documents, in which case
such documents shall be signed by Ford Credit Leasing. To the extent one may
be required, Ford Credit Leasing shall be the "tax matters partner" of RCL
pursuant to the Code.
ARTICLE VI
RCL TRUSTEE
Section 6.1 Duties of RCL Trustee. (a) The RCL Trustee
shall perform such duties, and only such duties, as are specifically set forth
in this Agreement, including the conservation of RCL and the RCL Assets in the
interest of the RCL Beneficiaries. No implied covenants or obligations shall
be read into this Agreement.
(b) In the absence of bad faith on its part, the RCL Trustee
may conclusively rely upon certificates or opinions furnished to the RCL
Trustee and conforming to the requirements of this Agreement in determining the
truth of the statements and the correctness of the opinions contained therein;
provided, however, that the RCL Trustee shall have examined such certificates
or opinions so as to determine only whether on their face they comply with the
requirements of this Agreement.
(c) The RCL Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 6.1(c) shall not limit the effect of
Sections 6.1(a) or (b);
(ii) the RCL Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the RCL Trustee was grossly negligent in ascertaining the
pertinent facts; and
(iii) the RCL Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.4.
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(d) Subject to Sections 5.1 and 5.2, the RCL Trustee need not
segregate funds received hereunder in any manner except to the extent required
by law and may deposit such funds under such general conditions as may be
prescribed by law, and the RCL Trustee shall not be liable for any interest
thereon.
(e) No RCL Beneficiary shall direct the RCL Trustee to take
any action that (i) is inconsistent with the purposes of RCL set forth in
Section 2.3 or (ii) would result in RCL becoming taxable as an "association"
for federal income tax or state income or franchise tax purposes. The RCL
Trustee shall not take any action that (i) is, to the actual knowledge of a
Responsible Officer of the RCL Trustee, inconsistent with the purposes of RCL
set forth in Section 2.3 or (ii) would, to the actual knowledge of a
Responsible Officer of the RCL Trustee, result in RCL's becoming taxable as an
"association" for federal income tax or state income or franchise tax purposes.
Section 6.2 Rights of RCL Trustee. The RCL Trustee is
authorized and directed to execute and deliver this Agreement, the Underwriting
Agreement dated as of November 19, 1996 (the "Underwriting Agreement") among
▇.▇. ▇▇▇▇▇▇ Securities Inc., RCL, Ford Credit and Ford Credit Leasing, the
Certificate Purchase Agreement dated as of November 19, 1996 (the "Purchase
Agreement") among ▇.▇. ▇▇▇▇▇▇ Securities Inc., RCL, Ford Credit and Ford Credit
Leasing, and each certificate or other document attached as an exhibit to or
contemplated by this Agreement or the Basic Documents to which RCL is to be a
party, in such form as the RCL Beneficiaries shall approve as evidenced
conclusively by the RCL Trustee's execution thereof. The RCL Beneficiaries
shall be responsible for causing RCL to comply with its covenants under the
Underwriting Agreement and the Purchase Agreement. The RCL Beneficiaries shall
not direct the RCL Trustee to take or refrain from taking any action if such
action or inaction would be contrary to any obligation of RCL or the RCL
Trustee under this Agreement or the Basic Documents or would be contrary to
Section 2.3, nor shall the RCL Trustee be obligated to follow any such
direction, if given, or have any duty to inquire or determine whether any
direction by the RCL Beneficiaries violates or complies with this provision.
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Section 6.3 Acceptance of Trusts and Duties. Except as
otherwise expressly stated in this Article VI, in accepting the trusts hereby
created, First Union Bank of Delaware acts solely as the RCL Trustee hereunder
and not in its individual capacity and all Persons having any claim against the
RCL Trustee by reason of the transactions contemplated by this Agreement or the
Basic Documents shall look only to the RCL Assets available for payment or
satisfaction thereof. The RCL Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to such trusts but only
upon the terms of this Agreement. The RCL Trustee also agrees to disburse all
moneys actually received by it constituting part of the RCL Assets upon the
terms of this Agreement. The RCL Trustee shall not be liable or accountable
hereunder under any circumstances, except (i) subject to this Article VI, for
its own negligent action, its own negligent failure to act or its own willful
misconduct or (ii) in the case of the inaccuracy of its representations or
warranties contained in Section 6.6. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the RCL Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of any RCL Beneficiary;
(b) no provision of this Agreement shall require the RCL
Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder,
if the RCL Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) the RCL Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or
sufficiency of any provision of this Agreement or for the due
execution hereof by Ford Credit and Ford Credit Leasing or for the
form, character, genuineness, sufficiency, value or validity of any of
the RCL Assets or any related documents, and the RCL Trustee shall in
no event assume or incur any liability, duty or obligation to any
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RCL Beneficiary, other than as expressly provided for herein; and
(d) the RCL Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement, at the request, order or
direction of any RCL Beneficiary, unless such RCL Beneficiary has
offered to the RCL Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by
the RCL Trustee therein or thereby. The right of the RCL Trustee to
perform any discretionary act enumerated in this Agreement shall not
be construed as a duty, and the RCL Trustee shall not be answerable
for other than its negligence or willful misconduct in the performance
of any such act.
Section 6.4 Action upon Instruction by RCL Beneficiaries.
(a) The RCL Beneficiaries may direct the RCL Trustee to take
action or refrain from taking action permitted hereunder and under the other
Basic Documents with respect to the RCL Assets in which they have a beneficial
interest except to the extent that such action or inaction would conflict with
any provision hereof or of the Basic Documents (including, without limitation,
Section 3.1 and Section 7.1(b) hereof). Such direction may be exercised at any
time by written instructions of the RCL Beneficiaries holding a 100% beneficial
interest in RCL.
(b) Notwithstanding the foregoing, the RCL Trustee shall not
be required to take any action or refrain from taking any action hereunder if
the RCL Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
RCL Trustee or is contrary to the terms hereof or is otherwise contrary to law.
(c) Whenever the RCL Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, or is unsure as
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to the application, intent, interpretation or meaning of any provision of this
Agreement, the RCL Trustee may request an Opinion of Counsel as to such
application, intent, interpretation or meaning, or may give notice (in such
form as shall be appropriate under the circumstances) to the RCL Beneficiaries
requesting instruction as to the course of action to be adopted, and, to the
extent the RCL Trustee acts in good faith in accordance with such Opinion of
Counsel or any such instruction received from such RCL Beneficiaries, as the
case may be, the RCL Trustee shall not be liable on account of such action to
any Person. If the RCL Trustee shall not have received an Opinion of Counsel
or appropriate instructions within ten days of such notice (or within such
shorter period of time as may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action which it shall deem to be in the best interests of the
RCL Beneficiaries, and the RCL Trustee shall have no liability to any Person
for any such action or inaction.
Section 6.5 Furnishing of Documents. The RCL Trustee shall
furnish to the RCL Beneficiaries, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
RCL Trustee by the Administrative Agent or otherwise.
Section 6.6 Representations and Warranties of RCL Trustee.
The RCL Trustee hereby represents and warrants to the RCL Beneficiaries that:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(b) it has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
(c) the execution, delivery and performance by it of this
Agreement (i) does not violate any provision of any Delaware or United States
law or regulation governing the banking and trust powers of the RCL Trustee or
any order, writ, judgment or decree of any court, arbi-
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trator or governmental authority applicable to the RCL Trustee or any of its
assets, (ii) shall not violate any provision of the corporate charter or
by-laws of the RCL Trustee, and (iii) shall not violate any provision of, or
constitute, with or without notice or lapse of time or both, a default under,
any mortgage, indenture, contract, agreement or other undertaking to which the
RCL Trustee is a party;
(d) the execution, delivery and performance by the RCL
Trustee of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
regulating the banking and corporate trust activities of banks or trust
companies in the jurisdiction in which RCL was formed;
(e) this Agreement has been duly executed and delivered by
the RCL Trustee and constitutes the legal, valid and binding agreement of the
RCL Trustee, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law; and
(f) no legal or governmental proceedings are pending to
which the RCL Trustee is a party or of which any property of the RCL Trustee is
the subject, and no such proceedings are threatened or, to its knowledge,
contemplated by governmental authorities or threatened by others, other than
such proceedings which will not have a material adverse effect upon the general
affairs, financial position, net worth or results of operations (on an annual
basis) of the RCL Trustee and will not materially and adversely affect the
performance by the RCL Trustee of its obligations under, or the validity and
enforceability of this Agreement.
Section 6.7 Reliance; Advice of Counsel.
(a) The RCL Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed
by it
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to be genuine and believed by it to be signed by the proper party or parties
and need not investigate any fact or matter in any such document. The RCL
Trustee may accept a certified copy of a resolution of the board of directors
or other governing body of any corporate or other party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the RCL Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the RCL Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement, the
RCL Trustee: (i) may act directly or through its agents, attorneys, custodians
or nominees pursuant to agreements entered into with any of them, and the RCL
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the RCL Trustee with reasonable care and
(ii) may consult with counsel, accountants and other skilled professionals to
be selected with reasonable care and employed by it. The RCL Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance with any Opinion of Counsel or advice of any accountants or other
such skilled professionals and not contrary to this Agreement.
Section 6.8 RCL Trustee May Own Lease Trust Certificates and
Senior Notes. The RCL Trustee in its individual or any other capacity may
become the owner or pledgee of Lease Trust Certificates or Senior Notes and may
deal with the RCL Beneficiaries, the Administrative Agent, the Lease Trustee
and the Indenture Trustee in transactions in the same manner as it would have
if it were not the RCL Trustee.
Section 6.9 Compensation. The RCL Trustee shall receive as
compensation for its services hereunder such fees as shall be separately agreed
upon from time to
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time between the RCL Beneficiaries and the RCL Trustee. The RCL Trustee shall
be entitled at all times to be reimbursed for its reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, custodians, nominees, representatives, experts and counsel as the
RCL Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder. Such fees and reimbursements shall be paid
first, from the RCL Account in accordance with Section 5.2(b) (which amounts,
following the execution of the RCL Assignment Agreement, shall be charged 99%
to amounts beneficially owned by RCL and 1% to amounts beneficially owned by
Ford Credit Leasing), and second, to the extent of any shortfall, directly by
the RCL Beneficiaries in accordance with their respective Percentage Interests.
Section 6.10 Resignation or Removal of RCL Trustee. (a) The
RCL Trustee shall not resign without the consent of the RCL Beneficiaries
unless (i) the RCL Trustee shall cease to be eligible in accordance with the
provisions of Section 6.13, (ii) the RCL Trustee shall be incapable of acting
or it shall be illegal for the RCL Trustee to act, or (iii) the RCL Trustee
shall have given at least 60 days' prior written notice to the RCL
Beneficiaries (who shall promptly notify the Lease Trustee and the Indenture
Trustee).
(b) The RCL Beneficiaries may remove the RCL Trustee (and
shall remove the RCL Trustee in the case of the occurrence of an event
described in clause (i) or (iv)):
(i) if the RCL Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to
resign after written request therefor by the RCL Beneficiaries;
(ii) if the RCL Trustee shall become bankrupt or insolvent;
(iii) if a receiver or other public officer shall be
appointed or takes charge or control of the RCL Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation; or
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(iv) if the RCL Trustee shall otherwise be incapable of
acting or it shall be illegal for the RCL Trustee to act.
(c) If the RCL Trustee is removed or if a vacancy exists in
the office of trustee for any reason, the RCL Beneficiaries shall promptly
appoint a successor trustee by written instrument, in duplicate (one copy of
which instrument shall be delivered to the outgoing trustee so removed and one
copy to the successor trustee). If a successor trustee shall not have been
appointed within 30 days after the giving of a written notice of resignation or
the delivery of the written instrument with respect to such removal, the RCL
Trustee or the RCL Beneficiaries may apply to any court of competent
jurisdiction to appoint a successor trustee to act until such time, if any, as
a successor trustee shall have been appointed as provided above. Any successor
trustee so appointed by such court shall upon 30 days written notice from the
RCL Beneficiaries be superseded by any successor trustee appointed as provided
above within one year from the date of the appointment by such court.
(d) Any resignation or removal of the RCL Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 6.10 shall not become effective until a written acceptance of
appointment is delivered by the successor trustee. Any successor trustee
appointed pursuant to this Section 6.10 shall be eligible to act in such
capacity in accordance with Section 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as trustee.
(e) The predecessor trustee shall upon payment of its fees
and expenses deliver to the successor trustee all books, records, accounts,
documents and statements and monies held by it under this Agreement. The
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations. The predecessor trustee shall cooperate with the successor
trustee to ensure that the successor trustee has all books, records, accounts,
documents,
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statements and other relevant information relating to the RCL Assets.
Section 6.11 Merger or Consolidation of RCL Trustee. (a) Any
corporation or other Person into which the RCL Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the RCL Trustee shall be
a party, or any corporation or other Person succeeding to all or substantially
all of the corporate trust business of the RCL Trustee, shall be the successor
of the RCL Trustee hereunder, provided such corporation shall be eligible in
accordance with the provisions of Section 6.13, without, unless otherwise
required by law, the execution or filing of any instrument or any further act
on the part of any of the parties hereto.
(b) In the event that a national banking association with the
name "First Union Trust Company, National Association" or any other name
succeeds, as contemplated, to all or substantially all of the corporate trust
business of First Union Bank of Delaware, such successor entity shall
automatically be deemed to be the RCL Trustee, effective as of the consummation
of such succession, with the same effect as if it had executed this Agreement
on the Closing Date, upon delivery to the RCL Beneficiaries of an instrument in
which such successor entity accepts the responsibilities hereunder as RCL
Trustee and agrees to be bound by all of the provisions hereof applicable to
the RCL Trustee and provided that such successor entity shall be eligible in
accordance with the provisions of Section 6.13.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provision of this Agreement, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which any
RCL Assets may at the time be located, the RCL Beneficiaries acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the RCL Beneficiaries to act as co-trustee,
jointly with the RCL Trustee, or as separate trustee or trustees, of all or any
part of RCL and the RCL Assets, and to vest in such Person, in such capacity,
such title to RCL, or any RCL Asset, and, subject to the other provisions of
this Section 6.12, such
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powers, duties, obligations, rights and trusts as the RCL Beneficiaries and the
RCL Trustee may consider necessary or desirable. No co-trustee or separate
trustee under this Agreement shall be required to be eligible in accordance
with the provisions of Section 6.13; provided that no co-trustee or separate
trustee under this Agreement may be a RCL Beneficiary or any Affiliate thereof.
(b) Each co-trustee and separate trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the RCL Trustee shall be conferred upon and exercised or
performed by the RCL Trustee and such co-trustee or separate trustee
jointly (it being understood that such co-trustee or separate trustee
is not authorized to act separately without the RCL Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, the RCL
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to RCL or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
co-trustee or separate trustee, but solely at the direction of the RCL
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the RCL Beneficiaries and the RCL Trustee acting
jointly may at any time accept the resignation of or remove any co-
trustee or separate trustee.
(c) Any notice, request or other writing given to the RCL
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any co-trustee or separate trustee shall refer to this
Agreement and the conditions of this Article. Each co-trustee and separate
trustee, upon its acceptance of the trusts conferred, shall be vested with
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the estates or property specified in its instrument of appointment, either
jointly with the RCL Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the RCL Trustee. Each such instrument shall be filed
with the RCL Trustee and a copy thereof given to each RCL Beneficiary.
(d) Any co-trustee or separate trustee may at any time
appoint the RCL Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any co-trustee
or separate trustee shall become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the RCL Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.13 Eligibility Requirements for RCL Trustee. The
RCL Trustee or any successor trustee, as the case may be, shall at all times:
(a) be a corporation or a banking association organized under the laws of the
United States of America or any state thereof; (b) be authorized to exercise
corporate trust powers; (c) have its principal place of business in the State
of Delaware and (d) have (or shall have a parent that has) a long-term debt
rating of at least Baa3 by ▇▇▇▇▇ Investors Service, Inc.
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ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement. (a) This
Agreement (other than Section 2.7) shall terminate and RCL shall dissolve and
be of no further force or effect on the earlier of: (i) the final distribution
by the RCL Trustee of all moneys or other property constituting RCL Assets; and
(ii) notwithstanding the provisions of Section 3808 of the Trust Statute, the
Bankruptcy or insolvency of Ford Credit Leasing. This Agreement may also
terminate and RCL shall dissolve at the express written direction of the RCL
Beneficiaries at such time as the Series 1996-1 Certificates are not
outstanding.
(b) Upon dissolution of RCL, (i) after satisfaction of all
creditors, if any, of RCL, the RCL Trustee shall distribute the RCL Assets to
the RCL Beneficiaries in accordance with Section 5.2(b) and (ii) after
completion of winding up of RCL, a certificate of cancellation shall be filed
with the Delaware Secretary of State pursuant to 12 Del. Code Section 3810(c).
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. This Agreement may be amended by the
RCL Beneficiaries and the RCL Trustee at any time; provided, however, that such
action shall not, (x) as evidenced by an Opinion of Counsel, materially and
adversely affect the interests of any Holder of a Series 1996-1 Certificate
(unless each such Holder has consented thereto), (y) as confirmed by each
Rating Agency rating the Senior Notes and the Lease Trust Certificates, cause
the then current rating of any Class of Senior Notes or the Lease Trust
Certificates to be withdrawn or reduced, or (z) as evidenced by an Opinion of
Counsel, (i) affect the treatment of the Senior Notes as debt for federal
income tax purposes, (ii) be deemed to cause a taxable exchange of the Senior
Notes for federal income tax purposes or (iii) cause RCL, FCTT or the Lease
Trust to be classified as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes.
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Notwithstanding the foregoing, this Agreement may be amended
(with notice of such amendment being delivered to each Rating Agency) at any
time by the RCL Beneficiaries and the RCL Trustee to the extent reasonably
necessary to assure that none of FCTT, the Lease Trust, or RCL will be
classified as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes.
ARTICLE IX
TAX MATTERS
Section 9.1 Tax Characterization. It is the intention of the
parties hereto that, for purposes of federal, state and local income taxes and
state franchise taxes, and the Michigan Single Business Tax, RCL shall be
treated as a grantor trust. The parties agree that, unless otherwise required
by appropriate tax authorities, RCL shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of RCL as a grantor trust for such tax purposes. If, however,
RCL is characterized as a separate entity for federal income tax or state
income or franchise tax purposes other than a grantor trust, it is the
intention of the parties hereto that it qualify as a partnership for such
purposes.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Legal Title to RCL Assets; Direction of RCL
Trustee Actions. The RCL Beneficiaries shall not have legal title to any RCL
Assets. The RCL Beneficiaries shall be entitled to receive distributions with
respect to their undivided beneficial interest therein only in accordance with
Articles V and VII. Notwithstanding anything herein to the contrary, the RCL
Trustee shall take no action with respect to any RCL Asset except as provided
in this Agreement or upon direction of the RCL Beneficiaries.
Section 10.2 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the RCL Trustee, the Grantors
and the RCL Beneficiaries and nothing in this Agreement, whether ex-
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press or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in RCL or the RCL Assets or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
Section 10.3 Notices. All demands, notices and
communications upon or to the Grantors, the RCL Beneficiaries and the RCL
Trustee shall be in writing, and shall be personally delivered, sent by
electronic facsimile or overnight delivery service or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given to
the intended recipient upon receipt at the respective addresses listed below,
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
(i) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(ii) In the case of Ford Credit:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(iii) In the case of the RCL Trustee
First Union Bank of Delaware,
as Trustee of RCL Trust ▇▇▇▇-▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
First Union National Bank of North Carolina
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Pablo de la Canal
Any notice to be delivered to any RCL Beneficiary which is a
permitted assignee hereunder of either initial RCL Beneficiary, shall be
delivered at the address provided to the RCL Trustee by such Person.
Section 10.4 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement, or the rights of
any RCL Beneficiaries.
Section 10.5 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
Section 10.6 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of
the RCL Trustee and each RCL Beneficiary and their respective successors and
permitted assigns. Any request, notice, direction, consent, waiver or other
instrument or action by a RCL Beneficiary shall bind the successors and assigns
of such RCL Beneficiary.
Section 10.7 No Recourse. Each RCL Beneficiary, acknowledges
that such RCL Beneficiary holds a beneficial interest in RCL only and does not
have any other interest in the property or assets of RCL or the RCL Trustee.
Section 10.8 No Petition. The RCL Trustee shall not commence
a voluntary proceeding in bankruptcy
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relating to RCL without having an independent reasonable good faith belief that
RCL is insolvent and having received the unanimous prior approval of all RCL
Beneficiaries and the delivery to the RCL Trustee by each such RCL Beneficiary
of a certificate certifying that such RCL Beneficiary reasonably believes that
RCL is insolvent. Notwithstanding the foregoing, the RCL Trustee and Ford
Credit each hereby covenants that for a period of one year and one day after
payment in full of the Series 1996-1 Certificates pursuant to the terms of this
Agreement, it will not institute against, or join any Person in instituting
against, FCTT or Ford Credit Leasing any bankruptcy, reorganization, insolvency
or liquidation proceeding, or other similar proceeding, under the laws of the
United States without the consent of 100% of the Holders of the Specified
Beneficial Certificates (excluding Ford Credit Leasing, RCL Trust 1996-1, or
any of their Affiliates).
Section 10.9 Covenant of Ford Credit Leasing. Ford Credit
Leasing covenants (for the benefit of Ford Credit, the Lease Trust, RCL and the
Indenture Trustee) to maintain at all times a net worth (exclusive of its
interest in RCL, the Lease Trust or FCTT or any other entity in which it may be
treated for federal income tax purposes as a "general partner") at least equal
to $15,000,000, unless an Opinion of Counsel is delivered to the effect that
not maintaining such net worth would not cause FCTT, RCL or the Lease Trust to
be classified as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes.
Section 10.10 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 10.11 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
FIRST UNION BANK OF DELAWARE,
as trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FORD CREDIT LEASING COMPANY, INC.,
as a Grantor and RCL Beneficiary
By: /s/ ▇. ▇. ▇▇▇▇▇▇
------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
FORD MOTOR CREDIT COMPANY,
as a Grantor and RCL Beneficiary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
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EXHIBIT A
Form of RCL Assignment Agreement
Reference is made to RCL Trust 1996-1 ("RCL"), governed by the
Amended and Restated Trust Agreement, dated as of November 19, 1996 (the "RCL
Trust Agreement"), among Ford Motor Credit Company ("Ford Credit"), Ford Credit
Leasing Company, Inc. ("Ford Credit Leasing") and First Union Bank of Delaware,
as trustee (in such capacity, the "RCL Trustee"). Terms which are used in this
RCL Assignment Agreement but are not defined herein have the meanings assigned
to them in the RCL Trust Agreement.
As contemplated by Section 2.3 of the RCL Trust Agreement, RCL
hereby assigns, transfers and otherwise conveys to Ford Credit Leasing a 1%
interest in each asset, right, and liability of RCL, including without
limitation the Cash Collateral Account (subject to the pledge to the Lease
Trustee and the Indenture Trustee pursuant to the Program Operating Lease and
the Indenture) and the obligations of RCL under the Program Operating Lease and
Section 2.3(c) of the Transfer Agreement, but excluding those certain Demand
Notes listed on Schedule I to the RCL Trust Agreement and Ford Credit Leasing
hereby accepts such assignment, transfer and conveyance. Such assignment,
transfer and conveyance shall include the assignment of a Subordinated Note
evidencing 1% of the initial principal balance of the Subordinated Notes, a
Lease Trust Certificate evidencing 1% of the $311,533.09 initial principal
balance of Lease Trust Certificates initially acquired by RCL, and any amounts
payable to RCL pursuant to the Transfer Agreement. RCL and Ford Credit Leasing
hereby agree that following such assignment, Ford Credit Leasing shall be a
"Holder" of the Series 1996-1 Certificates to the same extent as RCL Trust
1996-1. Ford Credit and Ford Credit Leasing hereby agree that after giving
effect to such assignment, transfer and conveyance, Ford Credit Leasing's
percentage beneficial interest in RCL shall be reduced from 2% to the
percentage equivalent of a fraction, the numerator of which is 1 and the
denominator of which is 99, and Ford Credit's percentage beneficial interest in
RCL shall be increased from 98% to the percentage equivalent of a fraction, the
numerator of which is 98 and the denominator of which is 99. Accordingly, 1%
of all funds coming into the possession of RCL that are not required to be held
or paid over to the Lease Trust or deposited in the Cash Collateral Account
shall be the
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property of Ford Credit Leasing and shall be paid by RCL to Ford Credit
Leasing.
This RCL Assignment Agreement is made pursuant to and in
reliance upon the representations, warranties and agreements set forth in the
RCL Trust Agreement.
THIS RCL ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this RCL
Assignment Agreement to be duly executed as of November 26, 1996.
RCL TRUST 1996-1,
assignor
By: FIRST UNION BANK OF DELAWARE,
not in its individual capacity
but solely as RCL Trustee,
By:
------------------------------
Name:
Title:
FORD CREDIT LEASING COMPANY, INC.,
as assignee and RCL Beneficiary,
By:
------------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY, as
RCL Beneficiary
By:
------------------------------
Name:
Title:
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Schedule I
1. Demand Note dated November 26, 1996 from Ford Credit as maker and Ford
Credit Leasing as payee in a principal amount of $133,000 and assigned
to RCL.
2. Demand Note dated November 26, 1996 from Ford Credit as maker and Ford
Credit Leasing as payee in a principal amount of $200,000 and assigned
to RCL.
3. Demand Note dated November 26, 1996 from Ford Credit as maker and RCL
as payee in a principal amount of $13,034,000.
4. Demand Note dated November 26, 1996 from Ford Credit as maker and RCL
as payee in a principal amount of $19,600,000.