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EXHIBIT 4.7
ASSET CONTRIBUTION AGREEMENT
dated as of
November 26, 1996
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.,
as Contributors,
and
RCL TRUST 1996-1
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TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONTRIBUTION OF SERIES 1996-1
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1 Contribution of Series 1996-1 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.2 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.1 Warranties of RCL Trust 1996-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.2 Representations and Warranties of the Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.3 Repurchase upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.1 Conditions to Obligation of RCL Trust 1996-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.2 Conditions to Obligation of the Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
COVENANTS OF THE CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.1 Protection of Right, Title and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.2 Other Liens or Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.3 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.5 Absolute Transfer; Sale or Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.1 Obligations of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.2 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Section 6.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.4 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.5 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.6 Representations of the Contributors and RCL Trust 1996-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.7 Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.11 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Exhibit A-- Schedule of Series 1996-1 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B-- Form of Series 1996-1 Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
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ASSET CONTRIBUTION AGREEMENT, dated and effective as of
November 26, 1996, among (i) FORD MOTOR CREDIT COMPANY, a Delaware corporation,
as a contributor ("Ford Credit"), (ii) FORD CREDIT LEASING COMPANY, INC., a
Delaware corporation, as a contributor ("Ford Credit Leasing" and, collectively
with Ford Credit, in their capacities as contributors hereunder, the
"Contributors"), and (iii) RCL TRUST 1996-1, a Delaware business trust ("RCL
Trust 1996-1").
WHEREAS, Ford Credit, Ford Credit Leasing and Comerica Bank,
as trustee, pursuant to the FCTT Agreement, have created Ford Credit Titling
Trust ("FCTT") for the purpose of holding Leases and Leased Vehicles and other
FCTT Assets;
WHEREAS, pursuant to the FCTT Agreement, Ford Credit and Ford
Credit Leasing, as holders of the Exchangeable Beneficial Certificates, have
directed Comerica Bank to issue to each of them the Series 1996-1 Certificates
representing a beneficial interest in FCTT and the Series 1996-1 Assets;
WHEREAS, Ford Credit, Ford Credit Leasing and RCL Trust 1996-1
wish to set forth the terms pursuant to which the Series 1996-1 Certificates
are to be contributed by Ford Credit and Ford Credit Leasing to RCL Trust
1996-1; and
WHEREAS, Ford Credit, Ford Credit Leasing and RCL Trust 1996-1
intend to engage in the other transactions contemplated by the Basic Documents.
NOW, THEREFORE, Ford Credit, Ford Credit Leasing and RCL Trust
1996-1 hereby agree as follows:
ARTICLE I
CERTAIN 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
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controlling. All references herein to "this Agreement" are to this Asset
Contribution Agreement, and all references herein to Articles, Sections and
subsections are to Articles, Sections and subsections of this Agreement unless
otherwise specified.
"RCL Trustee" means First Union Bank of Delaware not in its
individual capacity but solely as trustee of RCL Trust 1996-1.
"Removal Event" has the meaning set forth in Section 3.3.
"Schedule of Series 1996-1 Assets" means the list of Series
1996-1 Leased Vehicles and Series 1996-1 Leases annexed hereto as Exhibit A,
which may be in the form of microfiche or a computer tape.
ARTICLE II
CONTRIBUTION OF SERIES 1996-1
CERTIFICATES
Section 2.1 Contribution of Series 1996-1 Certificates. On
the Closing Date, subject to the terms and conditions of this Agreement, each
of the Contributors agrees to contribute to RCL Trust 1996-1, and RCL Trust
1996-1 agrees to accept from the Contributors, the Series 1996-1 Certificates
and the other property relating thereto, as specified in the following
paragraph.
Effective as of the Closing Date and immediately preceding the
transactions contemplated by the Transfer Agreement, the Contributors hereby
contribute, transfer, assign and otherwise convey to RCL Trust 1996-1, without
recourse, all right, title and interest of the Contributors, whether now owned
or hereafter acquired, in and to the following: (i) the Series 1996-1
Certificates, including all monies paid thereon and due thereon on or after the
Series 1996-1 Cut-Off Date (including any monies received prior to the Series
1996-1 Cut-Off Date that are due on or after the Series 1996-1 Cut-Off Date and
were not used to reduce the principal balance of the Series 1996-1
Certificates) and (ii) their respective rights and obligations under the
Administrative Agency Agreement and the Series 1996-1 Supplement. The Series
1996-1 Certificates shall become property of RCL Trust
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1996-1 and the interests of the Contributors as beneficiaries of RCL Trust
1996-1 shall reflect such additions.
Section 2.2 The Closing. The contribution of the Series
1996-1 Certificates shall take place at a closing at the offices of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the
Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Warranties of RCL Trust 1996-1. RCL Trust 1996-1
hereby represents and warrants to each of the Contributors as of the date
hereof and as of the Closing Date:
(a) Organization and Good Standing. RCL Trust
1996-1 is a statutory business trust duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Power and Authority. RCL Trust 1996-1 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) No Violation. The execution, delivery and
performance by it of this Agreement (i) shall not violate any provision of any
law or regulation or any order, writ, judgment or decree of any court,
arbitrator or governmental authority applicable to RCL Trust 1996-1 or any of
its assets, (ii) shall not violate any provision of the RCL Trust Agreement,
and (iii) shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, any mortgage, indenture, contract,
agreement or other undertaking to which RCL Trust 1996-1 is a party.
(d) Governmental Approvals. The execution,
delivery and performance by RCL Trust 1996-1 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
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agency in the jurisdiction in which RCL Trust 1996-1 was formed.
(e) Validity; Binding Obligation. This Agreement
has been duly executed and delivered by RCL Trust 1996-1 and constitutes the
legal, valid and binding agreement of RCL Trust 1996-1 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.
(f) No Litigation. No legal or governmental
proceedings are pending to which RCL Trust 1996-1 is a party or of which any
property of RCL Trust 1996-1 is the subject, and no such proceedings are
threatened or 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 RCL Trust 1996-1 and will not materially and adversely
affect the performance by RCL Trust 1996-1 of its obligations under, or the
validity and enforceability of this Agreement.
Section 3.2 Representations and Warranties of the
Contributors. (a) Ford Credit and Ford Credit Leasing each hereby represents
and warrants, as to itself, to RCL Trust 1996-1 as of the date hereof and as of
the Closing Date:
(i) Organization. Such Contributor 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.
(ii) Good Standing. Such Contributor 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.
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(iii) Power and Authority. Such Contributor has the full
power and authority to execute and deliver this Agreement, to carry
out its terms, and to contribute and assign the property contributed
and assigned by it to RCL Trust 1996-1 hereunder and has duly
authorized such contribution and assignment by all necessary corporate
action.
(iv) No Violation. 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) a default under, such Contributor's 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 such Contributor's
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.
(v) Validity; Binding Obligation. This Agreement has been
duly authorized, executed and delivered by it and constitutes the
legal, valid and binding agreement of such Contributor, 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.
(vi) No Proceedings. No legal or governmental proceedings
are pending to which such Contributor is a party or of which any
property of such Contributor is the subject, and no such proceedings
are threatened or 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
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or results of operations (on an annual basis) of such Contributor and
its subsidiaries considered as a whole and will not materially and
adversely affect the performance by such Contributor of its
obligations under, or the validity and enforceability of, this
Agreement.
(b) Each of Ford Credit and Ford Credit Leasing makes the
following representations and warranties as to the Series 1996-1 Assets, on
which RCL Trust 1996-1 relies in accepting the Series 1996-1 Certificates.
Such representations and warranties speak as of the execution and delivery of
this Agreement, but shall survive the contribution, transfer, and assignment of
the Series 1996-1 Certificates to RCL Trust 1996-1 and any subsequent
assignment or transfer by RCL Trust 1996-1:
(i) New Vehicle. Each Series 1996-1 Leased Vehicle was a new
automobile or light truck at the inception of the related Series
1996-1 Lease.
(ii) Certificate of Title. Each Series 1996-1 Leased Vehicle
was titled in the name of "Ford Credit Titling Trust," "Ford Credit
Titling Trust, Comerica Bank [or applicable co-trustee or separate
trustee], Trustee" or such substantially similar words acceptable to
the relevant Governmental Authority.
(iii) Residual Value. The Residual Value of each Series
1996-1 Leased Vehicle does not exceed an amount established by the
Administrative Agent consistent with its policies and practices
regarding the setting of residual values as applied with respect to
closed-end retail automobile and light truck leases.
(iv) Pool Balance. At the Series 1996-1 Cut-Off Date the
Pool Balance was $948,354,864.22.
(v) Interest in Lease and Leased Vehicle. Each Series 1996-1
Lease was entered into by a Dealer located in the United States, as
lessor, and a Lessee with a billing address in an Eligible State, as
lessee, and all of the Dealer's right, title and interest in such
Series 1996-1 Lease and
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the related Series 1996-1 Leased Vehicle was validly assigned by such
Dealer to FCTT.
(vi) Customary and Enforceable Provisions. Each Series
1996-1 Lease (x) was originated by a Dealer in the ordinary course of
its business and in compliance with the Administrative Agent's normal
credit and collection policies and practices, (y) contains customary
and enforceable provisions and (z) is substantially in the form of
Exhibit B.
(vii) Total Monthly Payments. Each Series 1996-1 Lease
provides for Total Monthly Payments which include Constant Yield
Payments that fully amortize the Balance Subject to Lease Charges of
such Series 1996-1 Lease to a final payment equal to the Residual
Value of the related Series 1996-1 Leased Vehicle over the term of
such Series 1996-1 Lease.
(viii) Compliance with Law. At the time it was originated or
made, and as of the date of this Agreement, each Series 1996-1 Lease
complied in all material respects with all requirements of applicable
federal, state, and local laws, and regulations thereunder.
(ix) Binding Obligation. Each Series 1996-1 Lease represents
the genuine, legal, valid and binding payment obligation in writing of
the related Lessee, enforceable by the holder thereof in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally and general principles of equity.
(x) No Government Lessee. None of the Series 1996-1 Leases
is an obligation of the United States of America or any state or of
any agency, department, or instrumentality of the United States of
America or any state.
(xi) Leases in Force. As of the Series 1996-1 Issue Date, no
Series 1996-1 Lease had been satisfied, subordinated, rescinded,
cancelled or terminated.
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(xii) No Waiver. No provision (other than the assessment of
a Security Deposit or Reconditioning Reserve) of a Series 1996-1 Lease
has been waived.
(xiii) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or threatened with respect
to any Series 1996-1 Lease.
(xiv) No Default. As of the Series 1996-1 Issue Date, no
default in payment by any Lessee of any payments due with respect to a
Series 1996-1 Lease had occurred and was continuing for a period of
more than thirty days; and no continuing condition that with notice or
the lapse of time or both would constitute a default, breach,
violation, or event permitting termination or cancellation under the
terms of any Series 1996-1 Lease had arisen.
(xv) No Credit-Related Recourse to Dealer. No Series 1996-1
Lease provides for credit-related recourse to the related Dealer.
(xvi) Insurance. Each Lessee, to the best knowledge of the
Administrative Agent, has obtained or agreed to obtain physical damage
insurance and liability insurance covering the related Series 1996-1
Leased Vehicle as required under the related Series 1996-1 Lease.
(xvii) Title. No Series ▇▇▇▇-▇ ▇▇▇▇▇ has been sold,
transferred, assigned, or pledged by any Dealer to any Person other
than FCTT. Comerica, as trustee for FCTT and for the benefit of the
Holders of Series 1996-1 Certificates, has good and marketable title
to each Series 1996-1 Lease and each Series 1996-1 Leased Vehicle,
free and clear of all Liens, encumbrances, security interests, and
rights of others, including liens or claims for work, labor or
material relating to such Series 1996-1 Leased Vehicle.
(xviii) Valid Assignment. No Series 1996-1 Lease was
originated in, or is subject to the laws of, any jurisdiction under
which the sale, transfer, and assignment of such Series 1996-1 Lease
to FCTT or of a beneficial interest in such Series 1996-1
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Lease pursuant to transfers of Series 1996-1 Certificates is unlawful,
void, or voidable. No Series 1996-1 Leased Vehicle is subject to the
laws of any jurisdiction under which the sale, transfer, and
assignment of such Series 1996-1 Leased Vehicle to FCTT or of a
beneficial interest in such Series 1996-1 Leased Vehicle pursuant to
transfers of Series 1996-1 Certificates is unlawful, void, or
voidable. No Dealer has entered into any agreement with any Lessee
that prohibits, restricts or conditions the assignment of any portion
of a Series 1996-1 Lease.
(xix) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give
Comerica, on behalf of FCTT, a first perfected ownership interest in
each Series 1996-1 Lease have been made.
(xx) Chattel Paper. Each Series 1996-1 Lease constitutes
"chattel paper" as defined in the UCC.
(xxi) One Original. There is only one original of each
Series 1996-1 Lease, which is held by the Administrative Agent on
behalf of FCTT.
(xxii) No Excess Deferred Gross. No Series 1996-1 Lease is
subject to a holdback of Excess Deferred Gross.
(xxiii) Origination. Each Series 1996-1 Lease has an
origination date on or after February 22, 1995.
(xxiv) Maturity of Leases. Each Series 1996-1 Lease has a
Scheduled Lease End Date of not greater than 36 months from the date
on which it was entered into.
(xxv) Minimum Retail Operating Lease Factor. Each Series
1996-1 Lease has a Retail Operating Lease Factor equal to or greater
than 5.0%.
(xxvi) Location of Lease Files. The Lease Files relating to
each Series 1996-1 Lease are maintained at the offices of the
Administrative Agent.
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(xxvii) No Delinquency. No Series 1996-1 Lease has a Total
Monthly Payment that was more than 30 days overdue as of the Series
1996-1 Cut-Off Date.
(xxviii) No Extensions. No Term Extension or Payment
Extension had been granted to the Lessee under any Series 1996-1 Lease
prior to the Series 1996-1 Cut-Off Date.
(xxix) Advance Payment Plan. No Series 1996-1 Lease was
originated under the Advance Payment Plan.
(xxx) Other Data. The information relating to the Series
1996-1 Leases and Series 1996-1 Leased Vehicles contained in the
Schedule of Series 1996-1 Assets attached hereto as Exhibit A is true
and correct in all material respects and no selection procedures
believed to be adverse to the Holders of Series 1996-1 Certificates
were utilized in selecting the Series 1996-1 Assets.
(xxxi) Administrative Agency Agreement. The representations
and warranties made by the Administrative Agent in the Administrative
Agency Agreement are true and correct.
(xxxii) True Lease. Each Series 1996-1 Lease is a "true
lease" for federal income tax purposes.
Section 3.3 Repurchase upon Breach. Each of Ford Credit and
Ford Credit Leasing shall inform the parties to this Agreement promptly in
writing, upon the discovery of any breach or failure to be true of the
representations and warranties made by it in Section 3.2(b). Unless the breach
or failure to be true of the representations and warranties contained in
Section 3.2(b) shall have been cured by the last day of the Accrual Period in
which such breach or failure either occurred or was discovered by Ford Credit
(in its capacity as a Contributor or in its capacity as Administrative Agent)
or Ford Credit Leasing, each of the Contributors hereby agrees that such an
occurrence shall constitute an event (a "Removal Event") obligating the
Contributors to (i) instruct Comerica and the Administrative Agent, in the
manner set forth in Section 4.7 of the Administrative Agency Agreement, to
cause the Series 1996-1 Certificates
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to no longer represent a beneficial interest in such Series 1996-1 Lease and
Series 1996-1 Leased Vehicle and (ii) cause to be deposited in the Series
1996-1 Collection Account on behalf of RCL Trust 1996-1 an amount in exchange
therefor equal to the Administrative Purchase Amount. The removal and payment
obligation of the Contributors pursuant to this Section 3.3 shall constitute
the sole remedy of RCL Trust 1996-1 against the Contributors with respect to
any Removal Event. Upon payment to RCL Trust 1996-1 of such Administrative
Purchase Amount with respect to a Series 1996-1 Asset, the Series 1996-1
Certificates shall no longer represent an interest in such asset.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions to Obligation of RCL Trust 1996-1.
The obligation of RCL Trust 1996-1 to accept the contribution of the Series
1996-1 Certificates is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of each of the Contributors hereunder shall be
true and correct on the Closing Date with the same effect as if then made, and
each Contributor shall have performed all obligations to be performed by such
Contributor hereunder on or prior to the Closing Date.
(b) Delivery of Series 1996-1 Certificates and
Schedule of Series 1996-1 Assets. The Contributors shall deliver the Series
1996-1 Certificates registered in the name of RCL Trust 1996-1 and the Schedule
of Series 1996-1 Assets certified by an officer of the Administrative Agent to
be true, correct and complete.
(c) Documents to be delivered by the Contributors
at the Closing. (i) On or prior to the Closing Date, each Contributor shall
record and file, at its own expense, a UCC-1 financing statement in each
jurisdiction in which required by applicable law, executed by the Contributor,
as seller naming RCL Trust 1996-1, as purchaser, and naming the Series 1996-1
Certificates and the other property conveyed hereunder as the property
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sold, meeting the requirements of the laws of each such jurisdiction and in
such manner as is necessary to perfect the sale, transfer, assignment and
conveyance of such property to RCL Trust 1996-1. The Contributors shall
deliver a file-stamped copy of such filing, or other evidence satisfactory to
RCL Trust 1996-1, to RCL Trust 1996-1 on or prior to the Closing Date.
(ii) On or prior to the Closing Date,
the Contributors shall deliver to RCL Trust 1996-1 such other docu- ments as
RCL Trust 1996-1 may reasonably request.
(d) Other Transactions. On or prior to the
Closing Date (i) each of the Basic Documents shall have been executed and
delivered by the parties thereto, and (ii) each of the parties to the Basic
Documents shall have performed all of their respective obligations thereunder
required to be performed on or prior to the Closing Date.
Section 4.2 Conditions to Obligation of the Contributors.
The obligation of each of the Contributors to contribute the Series 1996-1
Certificates to RCL Trust 1996-1 is subject to each representation and warranty
of RCL Trust 1996-1 hereunder being true and correct on the Closing Date as if
such representation and warranty was then made, and each obligation to be
performed by RCL Trust 1996-1 by the Closing Date having been performed.
ARTICLE V
COVENANTS OF THE CONTRIBUTORS
Ford Credit and Ford Credit Leasing each hereby agrees with
RCL Trust 1996-1 as follows, provided, however, that to the extent that any
provision of this Article V conflicts with any provision of the Administrative
Agency Agreement, the Administrative Agency Agreement shall govern:
Section 5.1 Protection of Right, Title and Interest. (a)
Each Contributor shall execute and file such financing statements and cause to
be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain, and protect
the interest of RCL Trust 1996-1 in the Series 1996-1 Certificates and in the
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proceeds thereof. Each Contributor shall deliver (or cause to be delivered) to
RCL Trust 1996-1 file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Each Contributor shall not change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by such Contributor in
accordance with Section 5.1(a) seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given RCL Trust 1996-1 at
least five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each Contributor shall give RCL Trust 1996-1
at least 60 days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment or new financing statement. The Contributors
shall cause the Administrative Agent to at all times maintain each office from
which it shall service FCTT Assets, and its principal executive office, within
the United States of America.
(d) If at any time either of the Contributors
shall propose to sell, grant a security interest in, or otherwise transfer any
interest in any other Series of Specified Beneficial Certificates to any
prospective purchaser, lender, or other transferee, such Contributor shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from back-up archives) that, if
they shall refer in any manner whatsoever to any Series 1996-1 Asset, shall
indicate clearly that such Series ▇▇▇▇-▇ ▇▇▇▇▇ is owned by Comerica as trustee
for FCTT and that the beneficial interest in such Series ▇▇▇▇-▇ ▇▇▇▇▇ has been
transferred to RCL Trust 1996-1.
(e) The Contributors shall cause the
Administrative Agent to permit RCL Trust 1996-1 and its agents (or any agents
of any assignee of RCL Trust 1996-1 contemplated by the Basic Documents) at any
time during
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normal business hours to inspect, audit, and make copies of and abstracts from
the Administrative Agent's records regarding any Series 1996-1 Asset.
(f) Upon request of RCL Trust 1996-1, the
Contributors shall cause the Administrative Agent to furnish to RCL Trust
1996-1, within twenty Business Days, a list of all Series 1996-1 Leases or
Series 1996-1 Leased Vehicles (by vehicle registration number and account
number), together with a reconciliation of such list to the Schedule of Series
1996-1 Leases.
Section 5.2 Other Liens or Interests. Except for the
conveyances hereunder and pursuant to the other Basic Documents, each of the
Contributors will not sell, pledge, assign or transfer the Series 1996-1
Certificates to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on any interest therein, and each of the Contributors shall
defend the right, title, and interest of RCL Trust 1996-1 in, to and under such
Series 1996-1 Certificates against all claims of third parties claiming through
or under such Contributor; provided, however, that the Contributors'
obligations under this Section 5.2 shall terminate upon the termination of FCTT
pursuant to the FCTT Agreement.
Section 5.3 Costs and Expenses. The Contributors agree to
pay all reasonable costs and disbursements in connection with the perfection,
as against all third parties, of RCL Trust 1996-1's right, title and interest
in and to the Series 1996-1 Certificates.
Section 5.4 Indemnification. (a) Each Contributor shall
defend, indemnify, and hold harmless RCL Trust 1996-1 and the RCL Trustee from
and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the failure of a Series 1996-1
Lease or Series 1996-1 Leased Vehicle to be originated in compliance with all
requirements of law and for any breach of any of the Contributors'
representations and warranties contained herein.
(b) Each Contributor shall defend, indemnify, and
hold harmless RCL Trust 1996-1 and the RCL Trustee from and against any and all
costs, expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use or operation by such Contribu-
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tors or any Affiliate of such Contributor or any Dealer of a Series 1996-1
Leased Vehicle.
(c) Each Contributor shall defend, indemnify, and
hold harmless RCL Trust 1996-1 and the RCL Trustee from and against any and all
taxes that may at any time be asserted against RCL Trust 1996-1 and the RCL
Trustee with respect to the transactions contemplated herein, including,
without limitation, any sales, use, gross receipts, general corporation,
tangible personal property, privilege, license or income taxes, taxes on or
measured by income, or any state or local taxes assessed on RCL Trust 1996-1
and the RCL Trustee resulting from the location of assets of RCL Trust 1996-1
or the presence of the RCL Trustee and costs and expenses in defending against
the same; provided, however, that the foregoing indemnity shall not include
income taxes on any fees payable to the RCL Trustee.
(d) Each Contributor shall defend, indemnify, and
hold harmless RCL Trust 1996-1 and the RCL Trustee from and against any and all
costs, expenses, losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon RCL Trust 1996-1 and the RCL Trustee through, the negligence,
willful misfeasance, or bad faith of the Contributors in the performance of
their duties under this Agreement or by reason of reckless disregard of the
Contributors' obligations and duties under this Agreement.
These indemnity obligations shall be in addition to any
obligation that each Contributor may otherwise have.
Section 5.5 Absolute Transfer; Sale or Exchange. Each
Contributor agrees to treat this conveyance for all purposes (including without
limitation tax and financial accounting purposes) as an absolute transfer;
which may be either a sale or exchange on all relevant books, records, tax
returns, financial statements and other applicable documents; provided that for
federal income tax purposes the Contributors will treat RCL Trust 1996-1 as a
grantor trust.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Obligations of Contributors. The obligations of
each of the Contributors under this Agreement shall not be affected by reason
of any invalidity, illegality or irregularity of any Series 1996-1 Asset.
Section 6.2 Acknowledgements. Each Contributor acknowledges
that: (a) Lease Trust. RCL Trust 1996-1 will, pursuant to the Transfer
Agreement, transfer the Series 1996-1 Certificates to the Lease Trust and
assign its rights under this Agreement to the Lease Trustee for the benefit of
the holders of the Senior Notes, the Subordinated Notes and the Lease Trust
Certificates and that the representations and warranties contained in this
Agreement and the rights of RCL Trust 1996-1 under Sections 3.3 and 5.4 are
intended to benefit such Lease Trust, any holders of Senior Notes, Subordinated
Notes or Lease Trust Certificates and the Indenture Trustee as assignee of the
Lease Trustee pursuant to the terms of the Indenture.
(b) Assignment. RCL Trust 1996-1 will, pursuant to
the RCL Assignment Agreement, assign, transfer and convey to Ford Credit
Leasing a 1% interest in the RCL Assets (as defined in the RCL Trust Agreement)
and all of the obligations of RCL Trust 1996-1, including its rights and
obligations under the Program Operating Lease and the Subordinated Notes and
any amounts payable to RCL Trust 1996-1 pursuant to the Transfer Agreement.
After giving effect to such assignment, transfer and conveyance, Ford Credit
Leasing's percentage beneficial interest in RCL Trust 1996-1 will 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 Trust 1996-1 will be increased from 98% to the percentage
equivalent of a fraction, the numerator of which is 98, and the denominator of
which is 99.
(c) Distribution. After the effective date of the
RCL Assignment Agreement, any distribution of property of RCL Trust 1996-1 to
Ford Credit and Ford Credit Leasing, as beneficiaries of RCL Trust 1996-1,
shall give effect to the RCL Assignment Agreement as provided in Section 5.2(b)
of the RCL Trust Agreement,
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such that an amount equal to 1% of the aggregate amount of such distribution
shall be distributed to Ford Credit Leasing, and the remaining 99% of such
aggregate amount shall be distributed to Ford Credit and Ford Credit Leasing in
proportion to their respective percentage beneficial interests in RCL Trust
1996-1, after giving effect to the RCL Assignment Agreement, as set forth in
Section 6.2(b).
Section 6.3 Amendment. This Agreement may be amended by the
parties hereto at any time; provided, however, that such action shall not, (x)
as evidenced by an Opinion of Counsel, materially adversely affect the
interests of the Senior Noteholders or Lease Trust Certificateholders (unless
100% of the Senior Noteholders and Lease Trust Certificateholders materially
adversely affected thereby consent thereto), (y) as confirmed by each Rating
Agency rating the Senior Notes or 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 and (z) as evidenced by an Opinion of Counsel, cause
the Lease Trust, RCL Trust 1996-1 or FCTT to be classified as an association
(or publicly traded partnership) taxable as a corporation for federal income
tax purposes.
Section 6.4 Waivers. No failure or delay on the part of RCL
Trust 1996-1 in exercising any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
Section 6.5 Costs and Expenses. The Contributors will pay
all expenses incident to the performance of their obligations under this
Agreement and the Contributors agree to pay all reasonable out-of-pocket costs
and expenses of the RCL Trustee, including fees and expenses of counsel, in
connection with the perfection as against third parties of RCL Trust 1996-1's
right, title and interest in and to the Series 1996-1 Assets and the
enforcement of any obligation of the Contributors hereunder.
Section 6.6 Representations of the Contributors and RCL Trust
1996-1. The respective agreements,
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representations, warranties and other statements by each of the Contributors
and RCL Trust 1996-1 set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section 2.2.
Section 6.7 Confidential Information. RCL Trust 1996-1
agrees that it will neither use nor disclose to any person the names and
addresses of the Lessees, except in connection with the enforcement of RCL
Trust 1996-1's rights hereunder, under the Series 1996-1 Leases and Series
1996-1 Leased Vehicles, under the Administrative Agency Agreement or as
required by law.
Section 6.8 Notices. All demands, notices and communications
upon or to Ford Credit, Ford Credit Leasing and RCL Trust 1996- 1 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:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(ii) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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(iii) In the case of RCL Trust 1996-1:
c/o First Union Bank of Delaware
One ▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
First Union National Bank of North Carolina
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Pablo de la Canal
Section 6.9 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 of the Series
1996-1 Certificates or the rights of the holders thereof.
Section 6.10 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 6.11 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a party hereto shall bind the successors and assigns of
such party.
Section 6.12 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.
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Section 6.13 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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IN WITNESS WHEREOF, the parties hereby have caused this Asset
Contribution Agreement to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
FORD MOTOR CREDIT COMPANY,
as a Contributor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
FORD CREDIT LEASING COMPANY,
INC., as a Contributor
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
RCL TRUST 1996-1
By: FIRST UNION BANK OF DELAWARE,
not in its individual capacity,
but solely as RCL Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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Exhibit A
Schedule of Series 1996-1 Assets
(DELIVERED IN MICROFICHE FORM)
A-1
26
Exhibit B
Form of Series 1996-1 Lease
B-1