1
EXHIBIT 4.1
[LEASE TRUST AGREEMENT]
FORD CREDIT AUTO LEASE TRUST 2000-1
TRUST AGREEMENT
Dated as of [ ], 2000
between
RCL TRUST 2000-1,
as Depositor
and
THE BANK OF NEW YORK (DELAWARE),
as Lease Trustee
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms.............................................................1
Section 1.2 Other Definitional Provisions.................................................4
ARTICLE II
ORGANIZATION
Section 2.1 Name..........................................................................5
Section 2.2 Office........................................................................5
Section 2.3 Purposes and Powers...........................................................5
Section 2.4 Appointment of Lease Trustee..................................................6
Section 2.5 Initial Capital Contributions of Trust Estate.................................6
Section 2.6 Declaration of Trust..........................................................6
Section 2.7 Liability of the Depositor....................................................6
Section 2.8 Title to Trust Property.......................................................7
Section 2.9 Representations and Warranties of the Depositor...............................7
Section 2.10 Tax Reporting.................................................................8
ARTICLE III LEASE TRUST CERTIFICATES, SUBORDINATED NOTES AND
TRANSFER OF INTERESTS
Section 3.1 Initial Ownership.............................................................8
Section 3.2 The Lease Trust Certificates and the Subordinated Notes.......................9
Section 3.3 Authentication of Lease Trust Certificates and Subordinated Notes............12
Section 3.4 Registration of Transfer and Exchange of Lease Trust Certificates
and Subordinated Notes.......................................................12
Section 3.5 Mutilated, Destroyed, Lost or Stolen Lease Trust Certificates or
Subordinated Notes...........................................................21
Section 3.6 Persons Deemed Lease Trust Certificateholders or Subordinated
Noteholders..................................................................21
Section 3.7 Access to List of Lease Trust Certificateholders' and Subordinated
Noteholders' Names and Addresses.............................................21
Section 3.8 Maintenance of Office or Agency..............................................22
Section 3.9 Appointment of Lease Trust Paying Agent......................................23
Section 3.10 Ownership of Lease Trust Certificates and Subordinated Notes by
Depositor....................................................................23
Section 3.11 Rule 144A Lease Trust Certificates; Temporary Lease Trust
Certificates.................................................................24
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ARTICLE IV
ACTIONS BY LEASE TRUSTEE
Section 4.1 Prior Notice to Lease Trust Certificateholders with Respect to
Certain Matters..............................................................26
Section 4.2 Action by Lease Trust Certificateholders with Respect to Certain
Matters......................................................................26
Section 4.3 Restrictions on Action by Lease Trustee with Respect to
Bankruptcy...................................................................27
Section 4.4 Restrictions on Lease Trust Certificateholders' Power........................27
Section 4.5 Majority Control.............................................................27
ARTICLE V
APPLICATION OF TRUST FUNDS, CERTAIN DUTIES AND
SUBORDINATED NOTE EVENTS OF DEFAULT
Section 5.1 Establishment of Lease Trust Distribution Account............................28
Section 5.2 Cash Collateral Account Certificate; Disbursement and Payment
Instructions.................................................................29
Section 5.3 Distribution of Funds........................................................31
Section 5.4 Method of Payment............................................................37
Section 5.5 Accounting and Reports to the Senior Noteholders, Subordinated
Noteholders, Lease Trust Certificateholders, the Internal Revenue
Service and Others...........................................................38
Section 5.6 Subordinated Note Events of Default..........................................39
Section 5.7 Acceleration of Maturity.....................................................39
Section 5.8 Waiver of Past Defaults......................................................40
ARTICLE VI
AUTHORITY AND DUTIES OF LEASE TRUSTEE
Section 6.1 General Authority............................................................41
Section 6.2 General Duties...............................................................41
Section 6.3 Action upon Instruction......................................................41
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions...........43
Section 6.5 No Action Unless Specifically Authorized.....................................43
Section 6.6 Restrictions.................................................................43
ARTICLE VII
CONCERNING THE LEASE TRUSTEE
Section 7.1 Acceptance of Trusts and Duties..............................................44
Section 7.2 Furnishing of Documents......................................................45
Section 7.3 Representations and Warranties...............................................46
Section 7.4 Reliance; Advice of Counsel..................................................46
Section 7.5 Not Acting in Individual Capacity............................................47
Section 7.6 Lease Trustee Not Liable for Lease Trust Certificates or
Subordinated Notes...........................................................47
Section 7.7 Lease Trustee May Own Lease Trust Certificates, Subordinated
Notes and Senior Notes.......................................................48
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ARTICLE VIII
COMPENSATION OF LEASE TRUSTEE
Section 8.1 Lease Trustee's Fees and Expenses............................................48
Section 8.2 Indemnification..............................................................48
ARTICLE IX
TERMINATION OF LEASE TRUST AGREEMENT
Section 9.1 Termination of Lease Trust Agreement.........................................49
Section 9.2 Redemption of the Subordinated Notes; Prepayment of the Lease
...... Trust Certificates...........................................................50
ARTICLE X
SUCCESSOR LEASE TRUSTEES AND ADDITIONAL LEASE TRUSTEES
Section 10.1 Eligibility Requirements for Lease Trustee...................................52
Section 10.2 Resignation or Removal of Lease Trustee......................................52
Section 10.3 Successor Lease Trustee......................................................53
Section 10.4 Merger or Consolidation of Lease Trustee.....................................54
Section 10.5 Appointment of Co-Trustee or Separate Trustee................................54
ARTICLE XI
TAX MATTERS
Section 11.1 Income Tax Characterization..................................................56
ARTICLE XII
MISCELLANEOUS
Section 12.1 Supplements and Amendments...................................................56
Section 12.2 No Legal Title to Lease Trust Estate in Lease Trust
...... Certificateholders or Subordinated Noteholders...............................59
Section 12.3 Limitations on Rights of Others..............................................59
Section 12.4 Notices......................................................................59
Section 12.5 Severability.................................................................60
Section 12.6 Counterparts.................................................................60
Section 12.7 Successors and Assigns.......................................................61
Section 12.8 No Petition..................................................................61
Section 12.9 No Recourse..................................................................61
Section 12.10 Headings.....................................................................61
Section 12.11 GOVERNING LAW................................................................62
Exhibit A-1 Form of Rule 144A Lease Trust Certificate ▇-▇
▇▇▇▇▇▇▇ ▇-▇ Form of Lease Trust Certificate Issued to the Depositor pursuant to
Section 3.10(a) A-2
Exhibit B Form of Subordinated Note B-1
Exhibit C Form of Rule 144A Transferor Certificate C-1
Exhibit D Form of Investment Letter - Qualified Institutional Buyer D-1
Exhibit E Form of Investment Letter - Institutional Accredited Investor E-1
Exhibit F Form of Custodial Agreement F-1
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LEASE TRUST AGREEMENT dated as of [ ], 2000 between (i) RCL
TRUST 2000-1, a Delaware business trust, as Depositor, and (ii) THE BANK OF NEW
YORK (DELAWARE), a Delaware banking corporation, acting hereunder not in its
individual capacity but solely as trustee under this Agreement (in such
capacity, together with any successor or permitted assign, "Lease Trustee").
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. Unless otherwise defined
herein, capitalized terms used in this Agreement shall have the respective
meanings assigned to them, or incorporated by reference, in Appendix A attached
hereto. References to "this Agreement" are to this Lease Trust Agreement, and
all references to Articles, Sections, subsections and exhibits are to Articles,
Sections, subsections and exhibits of this Agreement unless otherwise specified.
"Authenticating Agent" shall mean any Person authorized by the
Lease Trustee to act on behalf of the Lease Trustee to authenticate and deliver
the Lease Trust Certificates and the Subordinated Notes.
"Certificate Pool Factor" shall mean, with respect to the
Lease Trust Certificates on any Payment Date, the seven-digit decimal equivalent
of a fraction, the numerator of which is the Aggregate Certificate Balance on
such Payment Date (after giving effect to any payment of principal on such
Payment Date) and the denominator of which is the Aggregate Certificate Balance
on the Closing Date.
"Certificate Purchase Agreement" shall mean the Purchase
Agreement, dated as of _________, 2000, among ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, [ ], RCL Trust 2000-1 and Ford Credit.
"Corporate Trust Office" shall mean, with respect to the Lease
Trustee, the principal corporate trust office of the Lease Trustee which, as of
the date hereof, is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration, or at such other address as
the Lease Trustee may designate by notice to the Lease Trust Certificateholders,
the Subordinated Noteholders and the Depositor, or the principal corporate trust
office of any successor Lease Trustee (the address of which the successor
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Lease Trustee will notify the Lease Trust Certificateholders, the Subordinated
Noteholders and the Depositor).
"Custodial Agreement": Each Custodial Agreement entered into
between a Custodian and any purchaser of a Lease Trust Certificate, as the same
may be amended, supplemented or otherwise modified from time to time and in
effect in accordance with the terms thereof.
"Custodian": ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and [ ], solely in their respective capacity as custodian
under each Custodial Agreement, and any successor thereto.
"Custodian Office": The principal corporate office of the
Custodian, in the case of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇ Incorporated,
currently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [ ],
and in the case of [ ], currently located at [ ], Attention: [ ], or such other
address as a Custodian may designate from time to time by notice to the Lease
Trust Certificateholders, the Administrative Agent, the Depositor and the Lease
Trustee, or the principal corporate office of any successor Custodian.
"Depositary" shall mean The Depository Trust Company, its
nominee, and their respective successors.
"Depositor" shall mean the RCL Trust 2000-1 in its capacities
as depositor, as holder of the Lease Trust Certificates issued to it pursuant to
Section 3.10(a) and as holder of the Subordinated Notes issued to it pursuant to
Section 3.10(b).
"Expenses" shall mean all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all costs, expenses and
disbursements (including legal fees and expenses) of any kind and nature
whatsoever.
"Indemnified Parties" shall have the meaning set forth in
Section 8.2.
"Initial Purchaser" shall mean ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated and [ ], each as initial purchaser pursuant to the
Certificate Purchase Agreement.
"Lease Trust Certificate Owner" shall mean any holder of the
beneficial interest in the Rule 144A Lease Trust Certificates registered in the
Lease Trust Certificate Ownership Register.
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"Lease Trust Certificates Ownership Register" shall have the
meaning set forth in Section 3.4(d).
"Lease Trust Distribution Statement" shall mean the statement
delivered pursuant to Section 5.3(j).
"Lease Trust Register" and "Lease Trust Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4(a).
"Opinion of Counsel" shall mean one or more written opinions
of legal counsel who may, except as otherwise expressly provided for herein, be
employees of or counsel to the Depositor, the Administrative Agent or an
Affiliate of either.
"Prepayment Price" shall mean an amount equal to Aggregate
Certificate Balance plus accrued and unpaid interest thereon plus interest on
any overdue interest at the Certificate Interest Rate to but excluding the
Redemption Date.
"Redemption Date" shall mean the Payment Date specified by the
Administrative Agent or the Lease Trustee pursuant to Section 9.2(a).
"Redemption Price" shall mean an amount equal to the unpaid
principal amount of the Subordinated Notes redeemed plus accrued and unpaid
interest thereon plus interest on any overdue interest at the Subordinated Note
Interest Rate to but excluding the Redemption Date.
"Responsible Officer" shall mean any officer of the Lease
Trustee, including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary or any other officer of the Lease Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
"Revised Article 8" shall have the meaning set forth in
Section 5.1(c).
"Rule 144A" shall have the meaning set forth in Section
3.4(g).
"Rule 144A Information" shall have the meaning set forth in
Section
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3.4(h).
"Rule 144A Lease Trust Certificates" shall have the meaning
set forth in Section 3.2(a).
"Subordinated Note Default" shall mean any occurrence that is,
or with notice or the lapse of time or both would become, a Subordinated Note
Event of Default.
"Subordinated Note Event of Default" shall have the meaning
set forth in Section 5.6.
"Subordinated Note Pool Factor" shall mean, with respect to
the Subordinated Notes on any Payment Date, the seven-digit decimal equivalent
of a fraction, the numerator of which is the Outstanding Amount of the
Subordinated Notes on such Payment Date (after giving effect to any payment of
principal on such Payment Date) and the denominator of which is the Outstanding
Amount of the Subordinated Notes on the Closing Date.
"Transfer" shall have the meaning set forth in Section 3.2(a).
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Void Transfer" shall have the meaning set forth in Section
3.2(a).
Section 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
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ARTICLE II
ORGANIZATION
Section 2.1 Name. The trust created hereby shall be known as
"Ford Credit Auto Lease Trust 2000-1," in which name the Lease Trustee may
engage in activities as permitted by the Basic Documents on behalf of the Lease
Trust, make and execute contracts and other instruments on behalf of the Lease
Trust and ▇▇▇ and be sued, to the extent provided herein.
Section 2.2 Office. The office of the Lease Trust shall be in
care of the Lease Trustee at the Corporate Trust Office or at such other address
as the Lease Trustee may designate by written notice to the Lease Trust
Certificateholders, the Subordinated Noteholders and the Depositor.
Section 2.3 Purposes and Powers. (a) The purpose of the Lease
Trust is, and the Lease Trust shall have the power and authority, to engage
solely in the following:
(i) to issue the Senior Notes pursuant to the
Indenture, to issue the Subordinated Notes and the Lease Trust
Certificates pursuant to this Agreement, and to sell or transfer the
Senior Notes, the Subordinated Notes and the Lease Trust Certificates
upon the written order of the Depositor;
(ii) to acquire the Series 2000-1 Certificates and
other assets from the Depositor pursuant to Section 2 of the Transfer
Agreement in exchange for the Senior Notes, the Subordinated Notes and
the Lease Trust Certificates;
(iii) to pay interest on and principal of the Senior
Notes, the Subordinated Notes and the Lease Trust Certificates;
(iv) to assign, grant, transfer, pledge, mortgage and
convey the Lease Trust Estate pursuant to the Indenture as security for
the Senior Notes and to hold and distribute to the Subordinated
Noteholders and the Lease Trust Certificateholders pursuant to the
terms of this Agreement any portion of the Lease Trust Estate released
from the lien
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of, and remitted to the Lease Trust pursuant to, the Indenture;
(v) to execute, deliver and perform its obligations
under the Basic Documents to which it is to be a party; and
(vi) to engage in other transactions, including
entering into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith.
The Lease Trust is hereby authorized to engage in the
foregoing. The Lease Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement or the other Basic Documents.
Section 2.4 Appointment of Lease Trustee. The Depositor hereby
(i) appoints the Lease Trustee as trustee of the Lease Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein and (ii)
authorizes and directs the Lease Trustee to enter into the Basic Documents to
which it is a party.
Section 2.5 Initial Capital Contributions of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Lease
Trustee, as of the date hereof, the sum of $10, which the Lease Trustee shall
deposit into the Lease Trust Distribution Account. The Lease Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Lease Trust Estate.
Section 2.6 Declaration of Trust. The Bank of New York
(Delaware) hereby declares and agrees that it will, and in its capacity as the
Lease Trustee does, hold the Lease Trust Estate in trust upon and subject to the
conditions set forth herein for the benefit of the Lease Trust
Certificateholders and the Depositor, subject, however, to the lien of the
Indenture and to the obligations of the Lease Trust under the Subordinated Notes
and the Basic Documents.
Section 2.7 Liability of the Depositor. (a) The holder of the
Lease Trust Certificates and the Subordinated Notes required to be retained by
the Depositor pursuant to Section 3.10 shall defend, indemnify, and hold
harmless the Lease Trust and the Lease Trustee from and against any and all
taxes that may at any time be asserted against the Lease Trust and the Lease
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 the Lease Trust, the Lease
Trustee and the Lease Trust Paying Agent resulting from the location of assets
of the Lease Trust or the
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presence of the Lease Trustee or the Lease Trust Paying Agent 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 Lease
Trustee or the Lease Trust Paying Agent.
(b) No Subordinated Noteholder or Lease Trust
Certificateholder shall have any personal liability for any liability or
obligation of the Lease Trust except the holder of the Lease Trust Certificates
and Subordinated Notes required to be retained by the Depositor pursuant to
Section 3.10 to the extent set forth in Section 2.7(a).
Section 2.8 Title to Trust Property. Legal title to all the
Lease Trust Estate shall be vested at all times in the Lease Trust, except where
applicable law in any jurisdiction requires title to any part of the Lease Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Lease Trustee, a co-trustee or a separate trustee, as
the case may be.
Section 2.9 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Lease Trustee that:
(a) The Depositor is duly organized and validly existing as a
business trust in good standing under the laws of the State of Delaware, with
the power and authority to own its properties and to conduct its activities as
such properties are currently owned and such activities are presently conducted.
(b) The Depositor is duly qualified, is in good standing, and
has obtained all necessary licenses and approvals in all jurisdictions in which
the failure to so qualify or to obtain such license or approval would (i) render
unenforceable any rights the Lease Trust may have under any of the Basic
Documents which would otherwise be enforceable by the Depositor, the
Administrative Agent or the Lease Trustee, or (ii) otherwise have a material
adverse effect on the Lease Trust.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full power
and authority to transfer the Series 2000-1 Certificates to and deposit them
with the Lease Trust and the Depositor shall have duly authorized such transfer
and deposit to the Lease Trust by all necessary action; and the execution,
delivery and performance of this Agreement has been duly authorized by the
Depositor by all necessary action.
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(d) This Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable in accordance with its terms.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the RCL Trust Agreement, or
any indenture, agreement or other instrument to which the Depositor is a party
or by which it is bound; nor 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 (other than pursuant to the Basic Documents); nor
violate any law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(f) There are no proceedings or investigations pending, or to
the Depositor's best knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties: (i) asserting the invalidity of this
Agreement, the Indenture or any of the other Basic Documents, the Senior Notes,
the Subordinated Notes or the Lease Trust Certificates, (ii) seeking to prevent
the issuance of the Senior Notes, the Subordinated Notes or the Lease Trust
Certificates or the consummation of any of the transactions contemplated by this
Agreement, the Indenture or any of the other Basic Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Senior Notes, the Subordinated Notes or the Lease Trust
Certificates or (iv) which might adversely affect the federal income tax or
state income or franchise tax attributes of the Senior Notes, the Subordinated
Notes or the Lease Trust Certificates.
Section 2.10 Tax Reporting. Consistent with the treatment of
the Lease Trust as a security device for income and franchise tax purposes,
unless otherwise required by appropriate tax authorities, the Lease Trust will
not file or cause to be filed annual or other income or franchise tax returns
and will not obtain any taxpayer identification numbers.
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ARTICLE III
LEASE TRUST CERTIFICATES, SUBORDINATED NOTES
AND TRANSFER OF INTERESTS
Section 3.1 Initial Ownership. Upon the formation of the Lease
Trust by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Lease Trust Certificates, RCL Trust 2000-1 shall be the sole
beneficiary of the Lease Trust. In connection with the issuance of the Senior
Notes, the Subordinated Notes and the Lease Trust Certificates as contemplated
in Section 2.3(a)(i), the Depositor may (i) execute and file, or cause its
beneficiary to execute and file, on behalf of the Lease Trust, any registration
statement to be filed with the Securities Exchange Commission or otherwise and
(ii) prepare, or cause to be prepared, for filing with such registration
statement, balance sheets, income statements and any other financial statements
of the Lease Trust.
Section 3.2 The Lease Trust Certificates and the Subordinated
Notes. (a) Except as provided below, the Lease Trust Certificates shall be
issued in one or more permanent global certificates in definitive, fully
registered form, substantially in the form of Exhibit A-1 (each, a "Rule 144A
Lease Trust Certificate"), in minimum denominations of at least $10,000,000 and
integral multiples of $1,000,000 in excess thereof; provided, however, that
Lease Trust Certificates issued to the Depositor pursuant to Section 3.10(a) in
a registered, definitive, physical certificate, substantially in the form of
Exhibit A-2, shall be issued in such denominations as to represent in the
aggregate at least 1% of the Aggregate Certificate Balance. The Subordinated
Notes shall be issued in one or more registered, definitive, physical
certificates, in substantially the form of Exhibit B, in minimum denominations
of at least $1,000,000; provided, however, that Subordinated Notes issued to the
Depositor pursuant to Section 3.10(b) shall be issued in such denominations as
to represent in the aggregate at least 1% of the Outstanding Amount of the
Subordinated Notes. Except for (i) the transfer of Lease Trust Certificates to
the Initial Purchasers and the subsequent transfer of the Lease Trust
Certificates as contemplated by the Certificate Purchase Agreement, (ii) the
transfer of Lease Trust Certificates to the Depositor pursuant to Section
3.10(a), (iii) the transfer of the Subordinated Notes to the Depositor pursuant
to Section 3.10(b) and (iv) the assignment and pledge of the Subordinated Notes
to the Lease Trust and the Indenture Trustee pursuant to the Program Operating
Lease, no Lease Trust Certificate or Subordinated Note may be sold, transferred,
assigned, participated, pledged, or otherwise disposed of (any such act, a
"Transfer") to any Person except in accordance with the provisions of Section
3.4 and any attempted Transfer in violation of Section 3.4 shall be null and
void (each, a "Void Transfer").
Neither the Lease Trust Certificates issued to the Depositor
pursuant to Section 3.10(a) nor any beneficial interest therein may be
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transferred to any Person, and any attempted Transfer thereof shall be null and
void; provided that upon a dissolution of or termination of the Depositor, any
Lease Trust Certificates held by the Depositor, including the Lease Trust
Certificates issued pursuant to Section 3.10(a), may be distributed to the
beneficiary of the Depositor.
One or more Lease Trust Certificates (other than the Lease
Trust Certificate issued to the Depositor pursuant to Section 3.10(a)) in the
form of the Rule 144A Lease Trust Certificates shall be deposited, on behalf of
the subscribers for such Lease Trust Certificates, with the Lease Trustee as
custodian for the Depositary and shall be registered in the name of Cede & Co.,
the nominee of the Depositary, for the accounts of the Custodians. The Aggregate
Certificate Balance of the Rule 144A Lease Trust Certificates may from time to
time be increased or decreased by adjustments made on the records of the Lease
Trustee or the Depositary, or their respective nominees, as the case may be, as
hereinafter provided.
Each Custodian shall have no rights under this Agreement with
respect to any Rule 144A Lease Trust Certificate held on its behalf by the Lease
Trustee, as custodian for the Depositary, or under the Rule 144A Lease Trust
Certificate, and the Depositary may be treated by the Administrative Agent, the
Lease Trustee, the Lease Trust Registrar or the Authenticating Agent as the
absolute owner of such Rule 144A Lease Trust Certificate for all purposes
whatsoever (except to the extent otherwise provided herein). Notwithstanding the
foregoing, nothing herein shall prevent the Administrative Agent, the Lease
Trust, the Lease Trustee, the Lease Trust Registrar or the Authenticating Agent
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and a
Custodian, the operation of customary practices governing the exercise of the
rights of a holder of any Rule 144A Lease Trust Certificate.
Except as provided in Section 3.11, owners of beneficial
interests in Rule 144A Lease Trust Certificates shall not be entitled to receive
physical delivery of Lease Trust Certificates.
Neither the Subordinated Notes issued to and required to be
retained by the Depositor pursuant to Section 3.10(b) nor any beneficial
interest therein may be transferred to any Person, and any attempted Transfer
thereof shall be a Void Transfer; provided that upon a dissolution of or
termination of the Depositor, any such Subordinated Notes held by the Depositor
may be distributed to the beneficiary of the Depositor. The Subordinated Notes
shall be
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issued in the name of the Depositor pursuant to Section 3.10(b).
The Lease Trust Certificates and the Subordinated Notes shall
be in printed or in typewritten form, and shall be executed on behalf of the
Lease Trust by manual or facsimile signature of a Responsible Officer. Lease
Trust Certificates and Subordinated Notes bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Lease Trust, shall be validly
issued and entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Lease Trust Certificates or Subordinated
Notes or did not hold such offices at the date of authentication and delivery of
such Lease Trust Certificates or Subordinated Notes.
The Lease Trust Certificates and the Subordinated Notes shall
include a recitation limiting the obligation represented by the Lease Trust
Certificates or the Subordinated Notes, as the case may be, to the Series 2000-1
Assets and the related Specified Interests. The Lease Trust Certificates and the
Subordinated Notes shall also include an acknowledgment and agreement by the
holder thereof to the effect that, if an Insolvency Event occurs with respect to
any Titling Company, any claim that the holder of such Lease Trust Certificates
or such Subordinated Notes, as the case may be, may seek to enforce against the
Specified Assets allocated to any Specified Interest of such Titling Company
other than the Specified Interest within such Titling Company represented by the
Series 2000-1 Certificate ("Other Specified Interests") shall be subordinate to
the payment in full, including post-petition interest, of the claims of the
holders of any Securities related to the Specified Assets allocated to Other
Specified Interests of such Titling Company. The Lease Trust Certificates and
the Subordinated Notes shall also include a recitation that the Lease Trust
Agreement constitutes a subordination agreement for purposes of Section 510(a)
of the Bankruptcy Code.
If Transfer of the Lease Trust Certificates or the
Subordinated Notes is permitted pursuant to Section 3.4, a transferee of a Lease
Trust Certificate or a Subordinated Note shall become a Lease Trust
Certificateholder or Subordinated Noteholder, as the case may be, and shall be
entitled to the rights and subject to the obligations hereunder of a Lease Trust
Certificateholder or Subordinated Noteholder, as applicable, upon due
registration of such Lease Trust Certificate or Subordinated Note in such
transferee's name pursuant to Section 3.4.
(b) Interest shall accrue on the Subordinated Notes at the
Subordinated Note Interest Rate during each Interest Accrual Period based on the
Outstanding Amount of the Subordinated Notes as of the close of business on the
Payment Date occurring in the calendar month in which such Interest Accrual
Period commences. Interest accrued during each Interest Accrual
16
Period on the Subordinated Notes shall be due and payable on each Payment Date.
Interest on the Subordinated Notes shall be calculated on the basis of a 360-day
year of twelve 30-day months. To the extent that interest on the Subordinated
Notes is accrued but not paid in full on any Payment Date, such overdue interest
will be due on the next Payment Date together with interest on such amount (to
the extent lawful) at the Subordinated Note Interest Rate. Payments of interest
and principal will be payable to Subordinated Noteholders in accordance with
Section 5.3.
(c) Interest shall accrue on the Lease Trust Certificates at
the Certificate Interest Rate during each Interest Accrual Period based on the
Aggregate Certificate Balance of the Lease Trust Certificates as of the close of
business on the Payment Date occurring in the calendar month in which such
Interest Accrual Period commences. Interest accrued during each Interest Accrual
Period on the Lease Trust Certificates shall be due and payable on each Payment
Date. Interest on the Lease Trust Certificates shall be calculated on the basis
of a 360-day year of twelve 30-day months. To the extent that interest on the
Lease Trust Certificates is accrued but not paid in full on any Payment Date,
such overdue interest will be due on the next Payment Date together with
interest on such amount (to the extent lawful) at the Certificate Interest Rate.
Payments of interest and principal will be payable to Lease Trust
Certificateholders in accordance with Section 5.3.
Section 3.3 Authentication of Lease Trust Certificates and
Subordinated Notes. Concurrently with the transfer of the Series 2000-1
Certificates to the Lease Trust pursuant to the Transfer Agreement, the Lease
Trustee shall cause Lease Trust Certificates in an aggregate principal amount
equal to $[ ] and Subordinated Notes in an aggregate principal amount
equal to $[ ] to be executed on behalf of the Lease Trust, authenticated
and delivered to or upon the written order of the Depositor, in authorized
denominations. No Lease Trust Certificate or Subordinated Note shall entitle its
holder to any benefit under this Agreement, or shall be valid for any purpose,
unless there shall appear on such Lease Trust Certificate or Subordinated Note a
certificate of authentication substantially in the form set forth in Exhibit
▇-▇, ▇▇▇▇▇▇▇ ▇-▇ or Exhibit B, as applicable, executed by the Authenticating
Agent, by manual signature; such authentication shall constitute conclusive
evidence that such Lease Trust Certificate or Subordinated Note shall have been
duly authenticated and delivered hereunder. All Lease Trust Certificates and
Subordinated Notes shall be dated the date of their authentication.
Section 3.4 Registration of Transfer and Exchange of Lease
Trust
17
Certificates and Subordinated Notes. (a) The Lease Trust Registrar shall keep or
cause to be kept at the office or agency maintained pursuant to Section 3.8, a
Lease Trust Register in which, subject to such reasonable regulations as it may
prescribe, the Lease Trustee shall provide for the registration of Lease Trust
Certificates and Subordinated Notes and of Transfers and exchanges of Lease
Trust Certificates and Subordinated Notes as herein provided. The Lease Trustee
shall be the initial Lease Trust Registrar and shall maintain such register as
agent for the Depositor. No Transfer of a Lease Trust Certificate or
Subordinated Note shall be recognized except upon registration of such Transfer.
(b) The Subordinated Notes may not be transferred unless an
Opinion of Counsel in form and content acceptable to the Lease Trustee and, if
any Senior Notes are then Outstanding, to the Indenture Trustee is delivered to
the Lease Trustee and, if any Senior Notes are then Outstanding, to the
Indenture Trustee and prior notice is given to each Rating Agency. Among other
things, such Opinion of Counsel shall state that such Transfer shall not (i)
affect the treatment of the Senior Notes and the Lease Trust Certificates as
debt for federal income tax purposes and (ii) cause either the Lease Trust or
any Titling Company to be classified as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes; provided,
however, that the Subordinated Notes issued to and required to be retained by
the Depositor pursuant to Section 3.10(b) may not be transferred except upon a
dissolution of or termination of the Depositor as provided in Section 3.2(a)
above.
(c) The Lease Trust Certificates may not be transferred unless
an Opinion of Counsel in form and content acceptable to the Lease Trustee and,
if any Senior Notes are then Outstanding, to the Indenture Trustee is delivered
to the Lease Trustee and, if any Senior Notes are then Outstanding, to the
Indenture Trustee and prior notice is given to each Rating Agency. Among other
things, such Opinion of Counsel shall state that such Transfer shall not (i)
affect the treatment of the Senior Notes and the Lease Trust Certificates as
debt for federal income tax purposes and (ii) cause either the Lease Trust or
any Titling Company to be classified as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes; provided,
however, that no Lease Trust Certificate may be transferred (i) unless this
Agreement is amended to provide for the accounting for income, gain, loss, and
deductions of the Lease Trust in the event it is classified as a partnership and
the Lease Trust Certificates are not classified as debt of such partnership for
federal income tax purposes or (ii) to Ford Credit; provided, further, that the
Lease Trust Certificates issued to and required to be retained by the Depositor
pursuant to Section 3.10(a) may not be transferred except upon a dissolution of
or termination of the Depositor as provided in Section 3.2(b) above.
18
(d) The Lease Trustee shall cause each Custodian to maintain a
register (the "Lease Trust Certificates Ownership Register") at the respective
Custodian Office in which, subject to such reasonable regulations as it may
prescribe, such each Custodian shall provide for the registration of beneficial
interests in the Rule 144A Lease Trust Certificates and the registration of
transfers of beneficial interests in the Rule 144A Lease Trust Certificates
subject to the applicable requirements of this Section 3.4.(c) and the related
Custodial Agreements. Upon any resignation or removal of a Custodian, the Lease
Trustee shall promptly appoint a successor or, in the absence of such
appointment, assume the duties of such Custodian.
Upon any resignation or removal of a Custodian, the Lease
Trustee and the Depositor shall have the right to inspect the Lease Trust
Certificates Ownership Register at all reasonable times and to obtain copies
thereof and the Lease Trustee shall have the right to rely upon a certificate
executed on behalf of the Custodian by an Authorized Officer thereof as to the
names and addresses of the holders of the beneficial interests in the Rule 144A
Lease Trust Certificates and the principal amounts of such beneficial interests
and numbers of such holders.
(e) The Subordinate Notes and the Lease Trust Certificates may
not be transferred unless such Transfer is exempt from the registration
requirements of the Securities Act and is exempt under applicable state
securities laws. The Rule 144A Lease Trust Certificate shall bear the legend set
forth below:
THIS RULE 144A LEASE TRUST CERTIFICATE HAS NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THE LEASE TRUST CERTIFICATES IN RESPECT
OF WHICH THIS RULE 144A LEASE TRUST CERTIFICATE IS ISSUED, AGREES FOR THE
BENEFIT OF THE LEASE TRUST AND THE DEPOSITOR THAT SUCH LEASE TRUST CERTIFICATE
MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A
DENOMINATION OF AT LEAST $10,000,000 AND IN INTEGRAL MULTIPLES OF $1,000,000,
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY
(1) TO PERSONS OTHER THAN FORD MOTOR CREDIT COMPANY, (2) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A
"QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB,
19
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE
RECEIPT BY THE LEASE TRUST, THE LEASE TRUST REGISTRAR AND THE CUSTODIAN OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE LEASE TRUST
AGREEMENT AND (B) THE RECEIPT BY THE LEASE TRUST, THE LEASE TRUST REGISTRAR AND
THE CUSTODIAN OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE
LEASE TRUST AGREEMENT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY
THE LEASE TRUST AND THE LEASE TRUST REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE
LEASE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH
THE LEASE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (4)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE LEASE TRUST, THE LEASE TRUST REGISTRAR AND THE
CUSTODIAN OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E TO THE
LEASE TRUST AGREEMENT OR (B) THE RECEIPT BY THE LEASE TRUST, THE LEASE TRUST
REGISTRAR AND THE CUSTODIAN OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE LEASE TRUST
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE LEASE
TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (5) TO THE
DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES.
(f) Notwithstanding any provision to the contrary herein, so
long as a Rule 144A Lease Trust Certificate remains outstanding and is held by
the Lease Trustee on behalf of the Depositary, transfers of a Rule 144A Lease
Trust Certificate, in whole or in part, shall only be made in accordance with
Section 3.2(a) and this Section 3.4(f).
(i) Subject to clause (ii) of this Section 3.4(f),
Transfers of a Rule 144A Lease Trust Certificate shall be limited to
transfers of such Rule 144A Lease Trust Certificate in whole, but not
in part, to nominees of the Depositary or to a successor of the
Depositary or such successor's nominee.
(ii) In the event that a Rule 144A Lease Trust
Certificate is
20
exchanged for a definitive Lease Trust Certificate pursuant to Section
3.11, such definitive Lease Trust Certificate may be exchanged for
another definitive Lease Trust Certificate only in accordance with the
procedures that are substantially consistent with this Section 3.4
(including certification requirements intended to insure that such
transfers comply with Regulation 144A), and as may be from time to time
adopted by the Lease Trustee.
(iii) No transfer of any beneficial interest in a
Rule 144A Lease Trust Certificate shall be permitted if, after giving
effect to such proposed transfer, (A) there would be more than [ ]
owners in the aggregate of Subordinated Notes and Lease Trust
Certificates (as determined for purposes of United States Treasury
Regulation 1.7704-1(h)) or (B) there would be more than 90 holders of
direct or indirect interests in any Titling Company.
(g) If a Lease Trust Certificate Owner wishes at any time to
transfer all or a portion of its interest in a Rule 144A Lease Trust
Certificate, such Lease Trust Certificate Owner, subject to the rules and
procedures of the applicable Custodian, may transfer, or cause the transfer of,
such interest in the Rule 144A Lease Trust Certificate only in accordance with
the certification and other requirements in the related Custodial Agreement;
provided that the transferee shall enter into a Custodial Agreement with a
Custodian on or prior to the date of such Transfer in which such transferee
shall be required to represent in writing to the Lease Trust and the Custodian
the following:
(i) It has neither acquired nor will it transfer any
Lease Trust Certificate it purchases (or any interest therein) or cause
any such Lease Trust Certificates (or any interest therein) to be
marketed on or through an "established securities market" within the
meaning of Section 7704(b)(1) of the Code, including, without
limitation, an over-the-counter-market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations.
(ii) It either (A) is not, and will not become, a
partnership, Subchapter S corporation, or grantor trust for U.S.
federal income tax purposes, or (B) is such an entity, but none of the
direct or indirect beneficial owners of any of the interests in such
transferee have allowed or caused, or will allow or cause, 80% or more
(or such other percentage as the Depositor may establish prior to the
time of such proposed Transfer) of the value of such interests to be
attributable to such transferee's ownership of Lease Trust
Certificates.
21
(iii) It understands that no subsequent Transfer of
the Lease Trust Certificates is permitted unless (A) such Transfer is
of a Lease Trust Certificate with a denomination of at least
$10,000,000 and in integral multiples of $1,000,000, (B) it causes its
proposed transferee to provide to the Issuer, the Lease Trust Registrar
and the Custodian a certificate substantially in the form of Exhibit D
or Exhibit E, as applicable, or such other written statement as the
Depositor shall prescribe, (C) before the Transfer of the Lease Trust
Certificates, it causes the proposed transferee to enter into a
Custodial Agreement with the Custodian and (D) the Depositor consents
in writing to the proposed Transfer, which consent shall be granted
unless the Depositor determines that such Transfer would create a risk
that the Lease Trust or any Titling Company would be classified for
federal or any applicable State tax purposes as an association or
publicly traded partnership taxable as a corporation; provided,
however, that any attempted Transfer that would either cause (i) the
number of holders of Lease Trust Certificates and Subordinated Notes to
exceed [ ] or (ii) the number of holders of direct or indirect
interests in any Titling Company to exceed ninety, shall be a Void
Transfer.
(iv) It understands that the Opinion of Counsel that
the Lease Trust is not a publicly traded partnership taxable as a
corporation is dependent in part on the accuracy of the representations
in paragraphs (i), (ii) and (iii) above.
(v) It is not (A) an employee benefit plan, as
defined in Section 3(3) of ERISA, that is subject to Title I of ERISA,
(B) a plan described in Section 4975(e)(1) of the Code, (C) a
governmental plan, as defined in Section 3(32) of ERISA, subject to any
federal, State or local law which is, to a material extent, similar to
the provisions of Section 406 of ERISA or Section 4975 of the Code, (D)
an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing
"plan assets" of any such plan (including without limitation, for
purposes of this clause (E), any insurance company general account but
excluding any entity registered under the Investment Company Act of
1940, as amended).
(vi) It is a Person who is either (A)(1) a citizen or
resident of the United States, (2) a corporation, partnership or other
entity organized in or under the laws of the United States or any
political subdivision thereof, other than a partnership treated as a
foreign person under U.S. Treasury regulations, unless in the case of a
partnership, U.S. Treasury regulations enacted in the future provide
otherwise or (3) a Person not described in (A)(1) or (2) whose
ownership of the Lease Trust Certificates
22
is effectively connected with such Person's conduct of a trade or
business within the United States (within the meaning of the Code) and
its ownership of any interest in a Lease Trust Certificate will not
result in any withholding obligation with respect to any payments with
respect to the Lease Trust Certificates by any Person (other than
withholding, if any, under Section 1446 of the Code), (B) an estate the
income of which is includible in gross income for United States federal
income tax purposes, regardless of source or (C) a trust, if either (1)
a United States court is able to exercise primary supervision over the
administration of such trust and one or more United States persons have
the authority to control substantial decisions of the trust or (2) it
was in existence on August 20, 1996 and elected to be treated as a
United States person (within the meaning of the Code) thereafter. It
agrees that it will provide a certification of non-foreign status
signed under penalties of perjury and, alternatively, that if it is a
person described in clause (A)(3) above, it will furnish to the
Depositor and the Lease Trustee a properly executed IRS Form 4224 and a
new IRS Form 4224 upon the expiration or obsolescence of any previously
delivered form (and such other certifications, representations or
opinions of counsel as may be requested by the Depositor and the Lease
Trustee).
(vii) It understands that any purported Transfer of
any Lease Trust Certificate (or any interest therein) in contravention
of any of the restrictions and conditions in this Section 3.4 shall be
a Void Transfer, and the purported transferee in a Void Transfer shall
not be recognized by the Lease Trust or any other Person as a Lease
Trust Certificateholder for any purpose.
(h) By acceptance of any Lease Trust Certificate represented
by an interest in the Rule 144A Lease Trust Certificate, the Lease Trust
Certificateholder specifically agrees with and represents to the Depositor, the
Lease Trust, and the applicable Custodian, that no Transfer of such Lease Trust
Certificate shall be made unless the registration requirements of the Securities
Act and any applicable State securities laws are complied with, or such Transfer
is exempt from the registration requirements under the Securities Act because
the Transfer satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A
under the Securities Act ("Rule 144A"), to a transferee who the
transferor reasonably believes is a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer
23
and to whom notice is given that such Transfer is being made in
reliance upon Rule 144A under the Securities Act and (x) the transferor
executes and delivers to the Lease Trust, and the Custodian, a Rule
144A transferor certificate substantially in the form attached as
Exhibit C and (y) the transferee executes and delivers to the Lease
Trust, and the Custodian an investment letter substantially in the form
attached as Exhibit D;
(ii) after the appropriate holding period, such
Transfer is pursuant to an exemption from registration under the
Securities Act provided by Rule 144 under the Securities Act and the
transferee, if requested by the Lease Trust, and the Custodian,
delivers an Opinion of Counsel in form and substance satisfactory to
the Lease Trust; and
(iii) such Transfer is to an institutional accredited
investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated under the Securities Act in a transaction exempt from the
registration requirements of the Securities Act, such Transfer is in
accordance with any applicable securities laws of any State of the
United States or any other jurisdiction, and such investor executes and
delivers to the Lease Trust, and the Custodian an investment letter
substantially in the form attached as Exhibit E.
(i) The Lease Trustee shall make, or cause to be made,
available to the prospective transferor and transferee of a Lease Trust
Certificate information requested to satisfy the requirements of paragraph
(d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information
shall include any or all of the following items requested by the prospective
transferee:
(i) the offering circular relating to the Lease Trust
Certificates dated [ ], 2000, and any amendments or supplements
thereto;
(ii) each Lease Trust Distribution Statement
delivered to Lease Trust Certificateholders on each Payment Date
preceding such request; and
(iii) such other information as is reasonably
available to the Lease Trustee in order to comply with requests for
information pursuant to Rule 144A under the Securities Act.
None of the Depositor, the Lease Trust Registrar or the Lease
Trustee is under an obligation to register any Lease Trust Certificate under the
Securities Act or any other securities law.
24
(j) Upon surrender for registration of Transfer of any Lease
Trust Certificate or Subordinated Note at the office or agency maintained
pursuant to Section 3.8 and upon compliance with any provisions of this
Agreement relating to such Transfer, the Lease Trustee shall, or shall cause the
Authenticating Agent to, execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Lease Trust Certificates
or Subordinated Notes, as the case may be, in authorized denominations of a like
class and aggregate face amount dated the date of such authentication.
Subject to Section 3.4(b), at the option of a Subordinated
Noteholder, Subordinated Notes (other than the Subordinated Notes issued to and
required to be retained by the Depositor pursuant to Section 3.10(b)) may be
exchanged for other Subordinated Notes in authorized denominations of a like
aggregate amount upon surrender of the Subordinated Notes to be exchanged at the
office or agency maintained pursuant to Section 3.8. Subject to Section 3.4(c),
at the option of a Lease Trust Certificateholder, Lease Trust Certificates
(other than the Lease Trust Certificates issued to the Depositor pursuant to
Section 3.10(a)) may be exchanged for other Lease Trust Certificates in
authorized denominations of a like aggregate amount upon surrender of the Lease
Trust Certificates to be exchanged at the office or agency maintained pursuant
to Section 3.8.
Whenever any Lease Trust Certificates or Subordinated Notes
are so surrendered for exchange, a Responsible Officer shall execute, an
Authenticating Agent shall authenticate and the Lease Trust Registrar shall
deliver the Lease Trust Certificates or Subordinated Notes, as the case may be,
which the Lease Trust Certificateholder or Subordinated Noteholder making the
exchange is entitled to receive.
The Lease Trust Registrar shall require that every Lease Trust
Certificate or Subordinated Note presented or surrendered for registration of
Transfer or exchange shall be accompanied by a written instrument of transfer
and accompanied by IRS Form 4224 or W-9 in form satisfactory to the Lease Trust
Registrar duly executed by the Lease Trust Certificateholder or Subordinated
Noteholder, as the case may be, or such Person's attorney duly authorized in
writing.
No service charge shall be made to a Lease Trust
Certificateholder or Subordinated Noteholder for any registration of Transfer or
exchange of Lease Trust Certificates or Subordinated Notes, as the case may be,
but the
25
Lease Trustee or the Lease Trust Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of Transfer or exchange of Lease Trust
Certificates or Subordinated Notes.
The Lease Trust Registrar shall cancel and retain or destroy,
in accordance with the Lease Trust Registrar's retention policy then in effect,
all Lease Trust Certificates and Subordinated Notes surrendered for registration
of Transfer or exchange and shall upon written request certify to the Depositor
as to such retention or destruction.
(k) The provisions of this Section 3.4 and of this Agreement
generally are intended to prevent the Lease Trust from being characterized as a
"publicly traded partnership" within the meaning of Section 7704 of the Code, in
reliance on Treas. Reg. ▇▇.▇▇. 1.7704-1(e) and (h), and the Depositor shall take
such intent into account in determining whether or not to consent to any
proposed Transfer of any Lease Trust Certificate or Subordinated Note.
The preceding provisions of this Section 3.4 notwithstanding,
the Lease Trustee shall not make and the Lease Trust Registrar shall not
register any Transfer or exchange of Lease Trust Certificates or Subordinated
Notes for a period of fifteen (15) days preceding the due date for any payment
with respect to the Lease Trust Certificates or Subordinated Notes, as the case
may be.
Section 3.5 Mutilated, Destroyed, Lost or Stolen Lease Trust
Certificates or Subordinated Notes. If (a) any mutilated Lease Trust Certificate
or Subordinated Note is surrendered to the Lease Trust Registrar, or if the
Lease Trust Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Lease Trust Certificate or Subordinated Note and (b) there
is delivered to the Lease Trust Registrar and the Lease Trustee such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Lease Trust Certificate or Subordinated Note has
been transferred to or is in the possession of a third party purchaser, the
Lease Trustee on behalf of the Lease Trust shall execute and the Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Lease Trust Certificate or Subordinated
Note, a new Lease Trust Certificate or Subordinated Note, as the case may be, of
like class, tenor and denomination. In connection with the issuance of any new
Lease Trust Certificate or Subordinated Note under this Section 3.5, the Lease
Trustee or the Lease Trust Registrar may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
26
connection therewith. Any duplicate Lease Trust Certificate issued pursuant to
this Section 3.5 shall constitute conclusive evidence of an ownership interest
in the Lease Trust, and any duplicate Subordinated Note issued pursuant to this
Section 3.5 shall constitute conclusive evidence of an additional contractual
obligation of the Lease Trust, in each case as if originally issued, whether or
not the lost, stolen or destroyed Lease Trust Certificate or Subordinated Note
shall be found at any time.
Section 3.6 Persons Deemed Lease Trust Certificateholders or
Subordinated Noteholders. Prior to due presentation of a Lease Trust Certificate
or Subordinated Note for registration of Transfer, the Lease Trustee or the
Lease Trust Registrar may treat the Person in whose name any Lease Trust
Certificate or Subordinated Note shall be registered in the Lease Trust Register
as the owner of such Lease Trust Certificate or Subordinated Note for the
purpose of receiving distributions pursuant to Section 5.3 and for all other
purposes whatsoever, and neither the Lease Trustee nor the Lease Trust Registrar
shall be bound by any notice to the contrary; provided, however, that the
Depositary shall be deemed the owner of the Rule 144A Lease Trust Certificates,
and the owners of beneficial interests in Rule 144A Lease Trust Certificates
shall not be considered the owners of any Lease Trust Certificates for the
purpose of receiving notices.
Section 3.7 Access to List of Lease Trust Certificateholders'
and Subordinated Noteholders' Names and Addresses. The Lease Trustee shall
furnish or cause to be furnished to the Administrative Agent and the Depositor,
or to the Indenture Trustee, as the case may be, within 15 days after receipt by
the Lease Trustee of a request therefor from the Administrative Agent or the
Depositor or the Indenture Trustee in writing, a list, in such form as the
requesting party may reasonably require, of the names and addresses of the Lease
Trust Certificateholders or the Subordinated Noteholders, as applicable, as of
the most recent Record Date. In any event, the Lease Trustee shall provide such
list to the Indenture Trustee on each Record Date until the Outstanding Amount
of the Senior Notes has been reduced to zero. If (i) two or more Lease Trust
Certificateholders or (ii) one or more Lease Trust Certificateholders of Lease
Trust Certificates evidencing not less than 25% of the Aggregate Certificate
Balance apply in writing to the Lease Trustee and such application states that
the applicants desire to communicate with other Lease Trust Certificateholders
with respect to their rights under this Agreement or under the Lease Trust
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Lease Trustee shall, within
five Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Lease Trust
Certificateholders. If (x) two or more Subordinated Noteholders or (y) one or
more Subordinated Noteholders of Subordinated
27
Notes evidencing not less than 25% of the Outstanding Amount of the Subordinated
Notes apply in writing to the Lease Trustee, and such application states that
the applicants desire to communicate with other Subordinated Noteholders with
respect to their rights under this Agreement or under the Subordinated Notes and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Lease Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Subordinated
Noteholders. Each Lease Trust Certificateholder, by receiving and holding a
Lease Trust Certificate and each Subordinated Noteholder, by receiving and
holding a Subordinated Note, shall be deemed to have agreed not to hold any of
the Depositor, the Lease Trustee or the Indenture Trustee, as the case may be
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.8 Maintenance of Office or Agency. The Lease Trustee
shall maintain in the State of New York, an office or offices or agency or
agencies where Lease Trust Certificates may be surrendered for registration of
Transfer or exchange and where notices and demands to or upon the Lease Trustee
in respect of the Lease Trust Certificates, the Subordinated Notes and the Basic
Documents to which the Lease Trustee is a party may be served. The Lease Trustee
initially designates The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration as its principal
corporate trust office for such purposes. The Lease Trustee shall give prompt
written notice to the Depositor, the Lease Trust Certificateholders and the
Subordinated Noteholders of any change in the location of the Lease Trust
Register or any such office or agency.
Section 3.9 Appointment of Lease Trust Paying Agent. The Lease
Trust Paying Agent shall make distributions to Subordinated Noteholders and
Lease Trust Certificateholders pursuant to written instruction delivered to it
by the Lease Trustee and shall report the amounts of such distributions to the
Lease Trustee. The Lease Trust Paying Agent shall have the revocable power to
withdraw funds from the Lease Trust Distribution Account for the purpose of
making the distributions referred to above. The Lease Trust Paying Agent shall
have no obligation to make any payments nor shall it incur any liability if
sufficient funds are not available in the Lease Trust Distribution Account. The
Lease Trustee may revoke such power and remove the Lease Trust Paying Agent if
the Lease Trustee determines in its sole discretion that the Lease Trust Paying
Agent has failed to perform its obligations under this Agreement in any material
respect. The Lease Trust Paying Agent shall initially be The Chase
28
Manhattan Bank. Any co-paying agent chosen by the Depositor, and acceptable to
the Lease Trustee shall also be the Lease Trust Paying Agent. The Chase
Manhattan Bank may resign as Lease Trust Paying Agent upon 30 days' written
notice to the Lease Trustee. In the event that The Chase Manhattan Bank shall no
longer be the Lease Trust Paying Agent, the Lease Trustee shall appoint a
successor to act as Lease Trust Paying Agent (which shall be a bank or trust
company). The Lease Trustee shall cause such successor Lease Trust Paying Agent
or any additional Lease Trust Paying Agent appointed by the Lease Trustee to
execute and deliver to the Lease Trustee an instrument in which such successor
Lease Trust Paying Agent or additional Lease Trust Paying Agent shall agree with
the Lease Trustee that as Lease Trust Paying Agent, such successor Lease Trust
Paying Agent or additional Lease Trust Paying Agent will hold all sums, if any,
held by it for payment to the Subordinated Noteholders or Lease Trust
Certificateholders, as applicable, in trust for the benefit of the Subordinated
Noteholders or Lease Trust Certificateholders, as applicable, entitled thereto
until such sums are paid to such Subordinated Noteholders or Lease Trust
Certificateholders. The Lease Trust Paying Agent shall return all unclaimed
funds to the Lease Trustee and upon removal of the Lease Trust Paying Agent such
Lease Trust Paying Agent shall also return all funds in its possession to the
Lease Trustee. The provisions of Sections 7.1, 7.4, 7.5, 7.6, 7.7 and 8.2 shall
apply to The Chase Manhattan Bank, in its capacity as Lease Trust Paying Agent,
and to any other paying agent appointed hereunder, including the Lease Trustee
(in which case, the provision of Section 7.3 also shall apply to the Lease
Trustee in its capacity as Lease Trust Paying Agent).
Section 3.10 Ownership of Lease Trust Certificates and Subordinated
Notes by Depositor. (a) On and after the Closing Date, the Depositor shall
acquire and retain beneficial and record ownership of Lease Trust Certificates
evidencing at least 1% of the Aggregate Certificate Balance. Any attempted
Transfer of the Lease Trust Certificate required to be retained by the Depositor
shall be a Void Transfer. Notwithstanding the foregoing, upon a dissolution or
termination of the Depositor, the Lease Trust Certificate held by it shall be
distributed to the beneficiary of the Depositor without regard to the provisions
of Section 3.2. The Lease Trustee shall cause the Lease Trust Certificate held
by the Depositor pursuant to this Section 3.10(a) to bear a legend stating "THIS
LEASE TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE
DISSOLUTION OR TERMINATION OF RCL TRUST 2000-1 WHEN IT IS THE HOLDER HEREOF, AND
ANY TRANSFER IN VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID."
(b) On the Closing Date, the Depositor shall acquire beneficial and
record ownership of the entire initial principal amount of the Subordinated
Notes. On and after the Closing Date, the Depositor shall be required to retain
beneficial and record ownership of Subordinated Notes evidencing at least 1%
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of the Outstanding Amount of the Subordinated Notes. Any attempted Transfer of
the Subordinated Notes required to be retained by the Depositor shall be a Void
Transfer. Notwithstanding the foregoing, upon a dissolution or termination of
the Depositor, the Subordinated Notes required to be retained by it shall be
distributed to the beneficiary of the Depositor without regard to the provisions
of Section 3.2.
Section 3.11 Rule 144A Lease Trust Certificates; Temporary Lease Trust
Certificates. (a) A Rule 144A Lease Trust Certificate deposited with the
Depositary pursuant to Section 3.2(a) shall be transferred to the beneficial
owners thereof only if such transfer complies with Section 3.4 of this Agreement
and if (i) the Administrative Agent advises the Lease Trustee in writing that
the Depositary is no longer willing or able to properly discharge its
responsibilities with respect to the Lease Trust Certificates, and the
Administrative Agent is unable to locate a qualified successor or (ii) the
Administrative Agent at its option advises the Lease Trustee in writing that it
elects to terminate the book-entry system through the Depositary.
(b) Any Rule 144A Lease Trust Certificate that is transferable to the
beneficial owners thereof pursuant to this Section 3.11 shall be surrendered by
the Depositary to the Lease Trustee's office or agency maintained pursuant to
Section 3.8, or to be so transferred, in whole or from time to time in part,
without charge, and the Authenticating Agent shall authenticate and deliver,
upon such transfer of each portion of such Rule 144A Lease Trust Certificate, an
equal aggregate principal amount of Lease Trust Certificates of authorized
denominations. Any portion of a Rule 144A Lease Trust Certificate Transferred or
exchanged pursuant to this Section 3.11 shall be executed by the Lease Trustee
on behalf of the Lease Trust and authenticated and delivered by the
Authenticating Agent, only in the minimum denominations and in integral
multiples of the amounts set forth in Section 3.2(a). Any Lease Trust
Certificate delivered in exchange for an interest in a Rule 144A Lease Trust
Certificate shall bear the legend set forth in Exhibit A-1 and shall be subject
to the transfer restrictions referred to in such legend. The Holder of such a
registered individual Lease Trust Certificate may transfer such Lease Trust
Certificate by surrendering it at the office or agency maintained by the Lease
Trustee pursuant to Section 3.8.
(c) Subject to the provisions of Section 3.11(b) above, the registered
holder of a Rule 144A Lease Trust Certificate may grant proxies and otherwise
authorize any Person to take any action which a holder is entitled to take under
this Agreement or the Lease Trust Certificates.
(d) In the event of the occurrence of either of the events specified
in Section 3.11(a), pending the preparation of definitive Lease Trust
Certificates pursuant to this Section 3.11, the Lease Trustee may, on behalf of
the Lease Trust, execute and the Authenticating Agent may authenticate and
deliver, temporary Lease Trust Certificates that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive Lease Trust
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Authorized
Officers executing such Lease Trust Certificates may determine, as conclusively
evidenced by their execution of such Lease Trust Certificates.
If temporary Lease Trust Certificates are issued, the Lease Trustee
shall cause definitive Lease Trust Certificates to be prepared without
unreasonable delay. The definitive Lease Trust Certificates shall be printed,
lithographed or engraved, or provided by any combination thereof, or in any
other manner permitted by the rules and regulations of any applicable securities
exchange, all as determined by the Authorized Officers executing such definitive
Lease Trust Certificates. After the preparation of definitive Lease Trust
Certificates, the temporary Lease Trust Certificates shall be exchangeable for
definitive Lease Trust Certificates upon surrender of the temporary Lease Trust
Certificates at the office or agency maintained by the Lease Trustee pursuant to
Section 3.8 without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Lease Trust Certificates, the Lease Trustee, on behalf of
the Lease Trust, shall execute and the Authenticating Agent shall authenticate
and deliver, in exchange therefor the same aggregate principal amount of
definitive Lease Trust Certificates of authorized denominations. Until so
exchanged, the temporary Lease Trust Certificates shall in all respects be
entitled to the same benefits under this Agreement as definitive Lease Trust
Certificates.
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ARTICLE IV
ACTIONS BY LEASE TRUSTEE
Section 4.1 Prior Notice to Lease Trust Certificateholders with
Respect to Certain Matters. With respect to the following matters, the Lease
Trustee shall not take action unless (i) the Lease Trustee has notified the
Lease Trust Certificateholders and the Rating Agencies in writing of the
proposed action at least 30 days before the taking of such action, and (ii)
Lease Trust Certificateholders representing at least 25% of the Aggregate
Certificate Balance have not notified the Lease Trustee in writing prior to the
30th day after such notice is given that such Lease Trust Certificateholders
have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Lease Trust and the
compromise of any action, claim or lawsuit brought by or against the Lease Trust
(other than an action brought by the Administrative Agent on behalf of any
Titling Company and Persons having interests in the Series 2000-1 Certificates
to collect amounts owed under a Series 2000-1 Lease);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Senior Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Senior Noteholder is not required and
such amendment materially adversely affects the interests of the Lease Trust
Certificateholders; or
(d) the amendment of any other Basic Document if such amendment
materially adversely affects the interests of the Lease Trust
Certificateholders.
Section 4.2 Action by Lease Trust Certificateholders with Respect to
Certain Matters. To the extent that the Lease Trustee is deemed to be the
"Holder" of the Series 2000-1 Certificates pursuant to Section 8.6 of the Series
2000-1 Supplement, the Lease Trustee shall take such actions as directed (in
writing) by Lease Trust Certificateholders holding Lease Trust Certificates
evidencing at least 662/3% of the Aggregate Certificate Balance; provided,
however, that so long as the lien of the Indenture is outstanding, such
direction shall be subject to the consent of the Indenture Trustee.
Section 4.3 Restrictions on Action by Lease Trustee with Respect to
Bankruptcy. The Lease Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Lease Trust without the unanimous prior
approval of all Lease Trust Certificateholders, Subordinated Noteholders and
Senior Noteholders and the delivery to the Lease Trustee by each such Lease
Trust Certificateholder, Subordinated Noteholder and Senior Noteholder of a
certificate certifying that such Lease Trust Certificateholder, Subordinated
Noteholder or Senior Noteholder reasonably believes that the Lease Trust is
insolvent.
Section 4.4 Restrictions on Lease Trust Certificateholders' Power. The
Lease Trust Certificateholders shall not direct the Lease Trustee to take or
refrain from taking any action if such action or inaction would be contrary to
any obligation of the Lease Trust or the Lease Trustee under this Agreement or
any of the other Basic Documents nor shall the Lease Trustee be obligated to
follow any such direction, if given.
Section 4.5 Majority Control. (a) Except as expressly provided herein,
any action that may be taken by the Lease Trust Certificateholders under this
Agreement may be taken by the Lease Trust Certificateholders holding not less
than a majority of the Aggregate Certificate Balance. Except as expressly
provided herein, any written notice of the Lease Trust Certificateholders
delivered pursuant to this Agreement shall be effective if signed by Lease Trust
Certificateholders holding not less than a majority of the Aggregate Certificate
Balance at the time of the delivery of such notice.
(b) Except as expressly provided herein, any action that may be taken
by the Subordinated Noteholders under this Agreement may be taken by the
Subordinated Noteholders holding not less than a majority of the Outstanding
Amount of the Subordinated Notes. Except as expressly provided herein, any
written notice of the Subordinated Noteholders delivered pursuant to this
Agreement shall be effective if signed by Subordinated Noteholders holding not
less than a majority of the Outstanding Amount of the Subordinated Notes at the
time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS, CERTAIN DUTIES
AND SUBORDINATED NOTE EVENTS OF DEFAULT
Section 5.1 Establishment of Lease Trust Distribution Account. (a)
Subject to Section 5.1(c), the Lease Trustee shall establish and maintain an
account in the name of the Lease Trustee, at an Eligible Institution in the name
of the Lease Trustee, to be designated as the "Lease Trust Distribution
Account". The Lease Trust Distribution Account shall be under the sole dominion
and control of the Lease Trustee; provided that the Administrative Agent may
make withdrawals from the Lease Trust Distribution Account in accordance with
Section 5.2(e) of the Series 2000-1 Supplement and the Lease Trust Paying Agent
may make withdrawals therefrom in accordance with Section 3.9 hereof. All
deposits to and withdrawals from the Lease Trust Distribution Account shall be
made only upon the terms and conditions of the Basic Documents. The Lease Trust
Distribution Account shall initially be at The Chase Manhattan Bank.
(b) Any amounts on deposit in the Lease Trust Distribution Account
shall be invested by the Lease Trustee, in Permitted Investments which mature on
the Business Day preceding the next succeeding Payment Date. No such investment
shall be sold prior to maturity. All investment earnings on amounts deposited to
the Lease Trust Distribution Account, including any proceeds thereof, shall be
credited to the Cash Collateral Account, and losses, if any, and investment
expenses resulting from Permitted Investments in the Lease Trust Distribution
Account shall be charged to the Cash Collateral Account. All such investment
income shall be reported for federal income tax purposes as earned by RCL Trust
2000-1 and shall be reported by Ford Credit as sole beneficial owner of RCL
Trust 2000-1. If the institution at which the Lease Trust Distribution Account
is established ceases to be an Eligible Institution, then the Lease Trust
Distribution Account shall be reestablished at an Eligible Institution within 10
Business Days (or such longer period not to exceed 30 calendar days as to which
each Rating Agency may consent).
(c) Notwithstanding anything else contained herein, the Lease Trust
Distribution Account shall only be established at an Eligible Institution that
agrees in writing that (i) all investments of amounts on deposit in the Lease
Trust Distribution Account shall be promptly credited to the Lease Trust
Distribution Account, (ii) all securities, cash or other property credited to
the Lease Trust Distribution Account shall be treated as a "financial asset"
within the meaning of Section 8-102(a)(9) of the Uniform Commercial Code of the
State of New York ("Revised Article 8"), (iii) at all times prior to being
notified in writing by the Indenture Trustee that the Outstanding Amount of the
Senior Notes has been reduced to zero, it will comply with "entitlement orders"
(as defined in Section 8-102(a)(8) of Revised Article 8) originated by the
Indenture Trustee without further consent of the Program Lessee or any other
person and (iv) the Lease Trust Distribution Account shall be governed by the
law of the State of New York as the same may be amended from time to time.
Section 5.2 Cash Collateral Account Certificate; Disbursement and
Payment Instructions. (a) On or prior to the second Business Day preceding the
Payment Date on which the Outstanding Amount of the Senior Notes has been
reduced to zero and on the second Business Day preceding each Payment Date
thereafter, the Lease Trustee shall cause the Administrative Agent, on behalf of
the Lease Trust, to deliver to the Lease Trustee a certificate (the "Cash
Collateral Account Certificate") setting forth the following information with
respect to such Payment Date:
(i) the Series 2000-1 Administrative Fee for the preceding
Collection Period;
(ii) the Required Payment;
(iii) the Cash Collateral Amount on the Business Day
preceding such Payment Date; and
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(iv) the Cash Collateral Required Draw Amount and the Cash
Collateral Additional Draw Amount, if any.
(b) On the second Business Day preceding the Payment Date on which the
Outstanding Amount of the Senior Notes has been reduced to zero and on the
second Business Day preceding each Payment Date thereafter, the Lease Trustee
shall cause the Administrative Agent, on behalf of the Lease Trust, to deliver
to the Lease Trustee a certificate (the "Disbursement and Payment Instructions")
including the following information with respect to such Payment Date, the
related Collection Period and Series 2000-1:
(i) the amount of interest accrued during the preceding Interest
Accrual Period on the Subordinated Notes, the amounts payable with respect
to such interest (net of amounts paid pursuant to Section 6.6 of the
Program Operating Lease), and any resulting shortfall (separately stated);
(ii) the amount of interest accrued during the preceding Interest
Accrual Period on the Lease Trust Certificates, the amounts payable with
respect to such interest, and any resulting shortfall (separately stated);
(iii) the amount of the Monthly Pool Balance Decline;
(iv) the amount of Monthly Payment Advances outstanding on the
last day of the related Collection Period which the Administrative Agent
has determined will not be reimbursed from Series 2000-1 Collections with
respect to the related Series 2000-1 Lease;
(v) the sum, with respect to each Series 2000-1 Leased Vehicle
which was sold or otherwise disposed of by the Administrative Agent during
the related Collection Period, of the excess, if any, of the Sale Proceeds
Advances made with respect to such Series 2000-1 Leased Vehicle, over the
Sale Proceeds or Auction Proceeds received with respect to such Series
2000-1 Leased Vehicle;
(vi) the Series 2000-1 Administrative Fee for the related
Collection Period;
(vii) the amount, if any, to be distributed by the Lease Trustee
to the Lease Trust Paying Agent for deposit to the Cash Collateral Account
as payment of principal of the Subordinated Notes (after giving effect to
the aggregate amounts required to be deposited to the Cash Collateral
Account
33
pursuant to Sections 5.3(g)(vi) on such Payment Date (net of amounts paid
to the Lease Trust pursuant to Section 6.6 of the Program Operating
Lease)), the amounts available to pay such principal and any resulting
shortfall (separately stated);
(viii) the amount, if any, to be distributed by the Lease Trustee
to the Lease Trust Paying Agent for payment of principal on the Lease Trust
Certificates, the amounts available to pay such principal and any resulting
shortfall (separately stated); and
(ix) the amount, if any, to be withdrawn from the Lease Trust
Distribution Account on such Payment Date and paid to the RCL Trust 2000-1
on such Payment Date pursuant to Section 3.2(c) of the Program Operating
Lease.
(c) The Lease Trustee shall have no duty or obligation to verify or
confirm the accuracy of any of the information or numbers set forth in any of
the certificates required to be delivered to the Lease Trustee in accordance
with this Section 5.2 and the Lease Trustee shall be fully protected in relying
upon such certificates.
Section 5.3 Distribution of Funds. (a) Pursuant to Section 5.2(e) of
the Series 2000-1 Supplement, on the Business Day preceding each Payment Date,
the Administrative Agent shall withdraw an amount equal to the Available Sale
Proceeds from the Series 2000-1 Collection Account and deposit such amount in
the Series 2000-1 Payments Account. Pursuant to Section 5.2(e) of the Series
2000-1 Supplement, on the Business Day preceding each Payment Date, the
Administrative Agent shall withdraw an amount equal to the Cash Collateral
Deposit Amount from the Series 2000-1 Collection Account and deposit such amount
into the Cash Collateral Account.
(b) On each Payment Date through and including the Payment Date on
which the Outstanding Amount of the Senior Notes shall have been reduced to
zero, the Lease Trustee shall, pursuant to Section 6.5 of the Program Operating
Lease, to the extent of the funds available in the Lease Trust Distribution
Account, pay interest due on the Subordinated Notes (net of amounts paid
pursuant to Section 6.6 of the Program Operating Lease) by withdrawing from the
Lease Trust Distribution Account and distributing to the Lease Trust Paying
Agent for deposit to the Cash Collateral Account, the amount, if any, deposited
to the Lease Trust Distribution Account by the Indenture Trustee pursuant to
Section 8.4(b)(v) or 8.4(c)(v) of the Indenture and, if applicable, clause FIFTH
of Section 5.6(b) of the Indenture.
(c) On each Payment Date on which the Indenture Trustee has made a
deposit to the Lease Trust Distribution Account pursuant to Sections 8.4(b)(ix)
and 8.4(c)(ix) of the Indenture, the Lease Trustee shall, in accordance with the
Disbursement and Payment Instructions (as set forth in Section 5.2(b)),
34
withdraw such amounts from the Lease Trust Distribution Account and pay such
amounts to the RCL Trust 2000-1 pursuant to Section 3.2(c) of the Program
Operating Lease.
(d) On each Payment Date through and including the Payment Date on
which the Outstanding Amount of the Senior Notes shall have been reduced to
zero, the Lease Trustee shall transfer the amounts deposited by the Indenture
Trustee into the Lease Trust Distribution Account pursuant to Section 8.4(b)(vi)
or 8.4(c)(vi) of the Indenture and, if applicable, clause SIXTH of Section
5.6(b) of the Indenture, for the payment of interest due on the Lease Trust
Certificates, to the Lease Trust Paying Agent, which shall pay such interest to
Lease Trust Certificateholders, on a pro rata basis.
(e) On the Business Day preceding each Payment Date after the Payment
Date on which the Outstanding Amount of the Senior Notes has been reduced to
zero, the Lease Trustee shall, in accordance with the Cash Collateral Account
Certificate received from the Administrative Agent pursuant to Section 5.2(a),
withdraw from the Cash Collateral Account and deposit in the Series 2000-1
Payments Account (i) the Cash Collateral Required Draw Amount and (ii) after
giving effect to the aggregate amount required to be deposited to the Cash
Collateral Account pursuant to Section 5.3(g)(vi), the Cash Collateral
Additional Draw Amount, if any, for such Payment Date.
(f) On the Payment Date on which the Outstanding Amount of the Senior
Notes has been reduced to zero, the Lease Trustee shall, in accordance with the
Disbursement and Payment Instructions (as set forth in Section 5.2(b)), withdraw
from the Lease Trust Distribution Account the amounts deposited therein pursuant
to the last sentence of Sections 8.3(c) of the Indenture and make the deposits,
distributions and payments specified in clauses (iv), (v), (vi), (vii) and
(viii) of Section 5.3(g), to the extent of funds then on deposit in the Lease
Trust Distribution Account, in accordance with the priorities set forth in
Section 5.3(g).
(g) On each Payment Date after the Payment Date on which the
Outstanding Amount of the Senior Notes has been reduced to zero, the Lease
Trustee shall, in accordance with the Disbursement and Payment Instructions (as
set forth in Section 5.2(b)), withdraw from the Series 2000-1 Payment Account
the Available Funds on deposit therein (net of any Additional Fee Released
Amount) and make deposits, distributions and payments, to the extent of funds
then on deposit in the Series 2000-1 Payment Account, in accordance with the
following priorities:
35
(i) to the Administrative Agent, an amount equal to any Monthly
Payment Advances outstanding on the last day of the related Collection
Period which the Administrative Agent has determined will not be reimbursed
from Series 2000-1 Collections with respect to the related Series 2000-1
Lease;
(ii) to the Administrative Agent, an amount equal to the sum,
with respect to each Series 2000-1 Leased Vehicle which was sold or
otherwise disposed of by the Administrative Agent during the related
Collection Period, of the excess, if any, of the Sale Proceeds Advances
made with respect to Series 2000-1 Leased Vehicle and the Sale Proceeds or
Auction Proceeds received with respect to such Series 2000-1 Leased
Vehicles;
(iii) to the Administrative Agent, the Series 2000-1
Administrative Fee for the preceding Collection Period;
(iv) pursuant to Section 6.5 of the Program Operating Lease, to
the Lease Trust Paying Agent for deposit to the Cash Collateral Account, an
amount equal to the interest accrued on the Outstanding Amount of the
Subordinated Notes at the Subordinated Note Interest Rate plus any overdue
interest and interest on any overdue interest at the Subordinated Note
Interest Rate during the preceding Interest Accrual Period (net of amounts
paid pursuant to Section 6.6 of the Program Operating Lease);
(v) to the Lease Trust Paying Agent for payment to the Lease
Trust Certificateholders, pro rata, an amount equal to the interest accrued
on the Aggregate Certificate Balance at the Certificate Interest Rate plus
any overdue interest and interest on any overdue interest at the
Certificate Interest Rate during the preceding Interest Accrual Period;
(vi) subject to Section 5.3(h), to the Lease Trust Paying Agent
for deposit to the Cash Collateral Account, as payment of principal of the
Subordinated Notes in accordance with Section 6.5 of the Program Operating
Lease, an amount equal to (x) the Monthly Pool Balance Decline for the
preceding Collection Period minus (y) the Outstanding Amount, if any, of
the Senior Notes on the preceding Payment Date, after giving effect to all
payments made on such preceding Payment Date; provided that if the amount
on deposit in the Cash Collateral Account on any Payment Date after giving
effect to any payment pursuant to this Section 5.3(g)(vi) on such Payment
Date is less than the Bond Balance, the Lease Trustee shall withdraw from
the Cash Collateral Account an amount equal to the lesser of (x) such
shortfall and (y) the Cash Collateral Amount, and apply such amount to pay
each of the items specified in Section 5.3(g) without duplication of the
amounts already paid or deposited on such Payment Date;
36
(vii) subject to Section 5.3(h), to the Lease Trust Paying Agent
for payment to the Lease Trust Certificateholders, pro rata, in reduction
of the Aggregate Certificate Balance of the Lease Trust Certificates, until
such Aggregate Certificate Balance has been reduced to zero; and
(viii) to the Cash Collateral Account, all remaining Available
Funds.
(h) Notwithstanding anything herein to the contrary, no payments shall
be made under Section 5.3(g)(vi) or 5.3(g)(vii) on any Payment Date unless,
after giving effect to any such payments, the Bond Balance shall have been
reduced to zero. On the first Payment Date on which the Cash Collateral Amount
is at least equal to the Bond Balance after giving effect to the aggregate
amounts required to be deposited therein pursuant to Section 5.3(g)(vi), the
Lease Trustee shall withdraw an amount equal to the Bond Balance from the Cash
Collateral Account and pay such amounts to the Lease Trust Paying Agent for
payment to the Subordinated Noteholders and the Lease Trust Certificateholders,
pro rata, until the Bond Balance shall have been reduced to zero.
(i) On the Payment Date on which the Bond Balance has been reduced to
zero, the Lease Trustee shall release to the RCL Trust 2000-1 all of the Lease
Trust's right, title and interest in, to and under any remaining Cash Collateral
Account Property.
(j) Lease Trust Distribution Statements. The Lease Trustee shall send
to each Subordinated Noteholder and each Lease Trust Certificateholder on each
Payment Date a report (a "Lease Trust Distribution Statement") based on
information supplied by the Administrative Agent. Such Lease Trust Distribution
Statement shall include the following information as to the Subordinated Notes
and the Lease Trust Certificates to the extent applicable with respect to such
Payment Date and the related Collection Period:
(i) the Outstanding Amount of the Subordinated Notes on the
immediately preceding Payment Date, or if the first Payment Date has not
yet occurred, on the Closing Date;
(ii) the Aggregate Certificate Balance of the Lease Trust
Certificates on the immediately preceding Payment Date, or if the current
Payment Date is the first Payment Date, on the Closing Date;
(iii) the aggregate amount of interest accrued and paid on the
Subordinated Notes and the Lease Trust Certificates during such Collection
Period (separately stated);
37
(iv) the aggregate amount of principal paid with respect to the
Subordinated Notes and the Lease Trust Certificates on such Payment Date
(separately stated);
(v) the Outstanding Amount of the Subordinated Notes and the
Aggregate Certificate Balance of the Lease Trust Certificates after giving
effect to any payments of principal on such Payment Date;
(vi) the Subordinated Note Pool Factor and the Certificate Pool
Factor (after giving effect to payments made on such Payment Date);
(vii) the aggregate amount of Series 2000-1 Collections deposited
in the Series 2000-1 Collection Account (stating separately the components
thereof);
(viii) the Aggregate Net Monthly Payment Advances for such
Collection Period;
(ix) the aggregate amount of Sale Proceeds Advances reimbursed
with Available Funds;
(x) the aggregate amount of Monthly Payment Advances reimbursed
with Available Funds;
(xi) the Available Sale Proceeds (stating separately the
components thereof);
(xii) the Cash Collateral Required Draw Amount and the Cash
Collateral Additional Draw Amount (separately stated);
(xiii) the Available Funds;
(xiv) the Series 2000-1 Administrative Fee for the preceding
Collection Period;
(xv) the Outstanding Amount of the Senior Notes and the Pool
Balance (separately stated);
(xvi) the Cash Collateral Amount and the Required Cash Collateral
Amount (after giving effect to any withdrawals and deposits to the Cash
Collateral Account for such Payment Date);
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(xvii) the Aggregate Series 2000-1 Securitization Net Credit
Losses for such Collection Period and as a percentage of the Pool Balance
as of the first day of such Collection Period;
(xviii) the Aggregate Series 2000-1 Residual Losses for the
Series 2000-1 Leased Vehicles sold or otherwise disposed of during such
Collection Period and as a percentage of the Pool Balance as of the first
day of such Collection Period;
(xix) if the Payment Date immediately follows a Collection Period
during the Revolving Period, the Excess Cash Amount as of
the first day of such Collection Period and the percentage
equivalent of a fraction, (x) the numerator of which is
the Excess Cash Amount as of the first day of such
Collection Period and (y) the denominator of which is the
Bond Balance;
(xx) for the preceding three consecutive Collection Periods, the
average of a fraction calculated for each such Collection Period, the
numerator of which is the Aggregate Series 2000-1 Securitization Net Credit
Losses for such Collection Period and the denominator of which is the Pool
Balance as of the first day of such Collection Period;
(xxi) for the preceding three consecutive Collection Periods, the
average of a fraction calculated for each such Collection Period, the
numerator of which is the aggregate Securitization Value as of the last day
of such Collection Period of the Series 2000-1 Leases and Series 2000-1
Leased Vehicles for which the related Monthly Payment is at least 61 days
past due as of the last day of such Collection Period and the denominator
of which is the Pool Balance as of the first day of such Collection Period;
and
(xxii) for the preceding three consecutive Collection Periods,
the average of a fraction calculated for each such Collection Period, the
numerator of which is the Aggregate Series 2000-1 Residual Losses for the
Series 2000-1 Leased Vehicles sold or otherwise disposed of during such
Collection Period following the Normal Termination or the Early Normal
Termination of the related Series 2000-1 Lease, and the denominator of
which is the aggregate Residual Values of such Series 2000-1 Leased
Vehicles.
The information required to be reported in such Lease Trust
Distribution Statement may be included with such other information or reports
delivered by the Administrative Agent to the Lease Trustee in connection with
the making of payments pursuant to the Basic Documents.
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(k) Withholding Taxes. In the event that any withholding tax is
imposed on the Lease Trust's payment (or, if the Lease Trust is treated as a
partnership for federal income tax purposes, allocations of income) to a Lease
Trust Certificateholder or a Subordinated Noteholder, such tax shall reduce the
amount otherwise distributable to such Lease Trust Certificateholder or
Subordinated Noteholder in accordance with this Section 5.3. The Lease Trustee
is hereby authorized and directed to retain from amounts otherwise distributable
to such Lease Trust Certificateholder or Subordinated Noteholder sufficient
funds for the payment of any withholding tax that is legally owed by the Lease
Trust (but such authorization shall not prevent the Lease Trustee from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Lease Trust
Certificateholder or a Subordinated Noteholder shall be treated as cash
distributed to such Lease Trust Certificateholder or Subordinated Noteholder, as
the case may be, at the time it is withheld by the Lease Trust for remittance to
the appropriate taxing authority. If the Lease Trustee determines that there is
a possibility that withholding tax is payable with respect to a distribution,
the Lease Trustee may in its sole discretion withhold such amounts in accordance
with this Section 5.3(k). In the event that a Lease Trust Certificateholder or
Subordinated Noteholder wishes to apply for a refund of any such withholding
tax, the Lease Trustee shall reasonably cooperate with such Lease Trust
Certificateholder or Subordinated Noteholder in making such claim so long as
such Lease Trust Certificateholder or Subordinated Noteholder agrees to
reimburse the Lease Trustee for any out-of-pocket expenses incurred.
(l) Lease Trustee Not Liable for Losses on Investments. Subject to
Section 7.1, the Lease Trustee shall not in any way be held liable by reason of
any insufficiency in the Series 2000-1 Payment Account, the Series 2000-1
Collection Account, the Series 2000-1 Payahead Account, the Lease Trust
Distribution Account or the Cash Collateral Account resulting from any loss on
any Permitted Investment, as applicable, included therein except for losses
attributable to the Lease Trustee's failure to make payments on any such
Permitted Investments issued by the Lease Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(m) Indenture Trustee's Duties and Obligations. The Indenture Trustee,
in such capacity, shall have no duties or obligations to the Subordinated
Noteholders or Lease Trust Certificateholders.
Section 5.4 Method of Payment. (a) Subject to Section 9.1(c),
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distributions required to be made to Lease Trust Certificateholders on any
Payment Date shall be made by wire transfer in immediately available funds to an
account maintained by the Depositary, or its nominee, or, if a wire transfer
cannot be effected, by a check in immediately available funds delivered to the
Depositary or its nominee. It is expected that the Depositary or its nominee,
upon receipt of any distributions in respect of a Rule 144A Lease Trust
Certificate held by the Depositary or its nominee, shall immediately credit the
applicable Custodian's account with payments in amounts proportionate to the
respective beneficial interests in such Rule 144A Lease Trust Certificate as
shown on the records of the Depositary or its nominee. It is also expected that
distributions by each Custodian to owners of beneficial interests in such Rule
144A Lease Trust Certificate held through the Custodian shall be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in the name of nominee
for such customers. Such distributions shall be the responsibility of each
Custodian. Neither the Lease Trustee nor the Lease Trust Paying Agent shall have
any responsibility or liability for any aspects of the records maintained by the
Depositary or its nominee or each Custodian relating to or for payments made
thereby on account of beneficial interests in a Rule 144A Lease Trust
Certificate.
Subject to the provision of Section 9.1(c), the Holders of the Lease
Trust Certificates as of the Record Date in respect of a Payment Date shall be
entitled to any distribution made on such Lease Trust Certificates on such
Payment Date.
(b) Subject to Section 9.1(c) of this Agreement and Section 6.5 of the
Program Operating Lease, distributions required to be made to Subordinated
Noteholders on any Payment Date shall be made to each Subordinated Noteholder of
record on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Subordinated Noteholder at a bank or
other entity having appropriate facilities therefor, if such Subordinated
Noteholder shall have provided to the Lease Trust Registrar appropriate written
instructions at least five Business Days prior to such Payment Date or, if not,
by check mailed to such Subordinated Noteholder at the address of such
Subordinated Noteholder appearing in the Lease Trust Register.
Section 5.5 Accounting and Reports to the Senior Noteholders,
Subordinated Noteholders, Lease Trust Certificateholders, the Internal Revenue
Service and Others. (a) The Lease Trustee shall, based on information provided
by the Depositor, (i) maintain (or cause to be maintained) the books of the
Lease Trust on a calendar year basis on the accrual method of accounting, (ii)
deliver to each Lease Trust Certificateholder and Subordinated Noteholder such
information as may be required by the Code and applicable Treasury Regulations
with respect to instruments such as the Lease Trust Certificates or Subordinated
Notes, as the case may be, that is consistent with the position that
41
the Lease Trust Certificates (other than the Lease Trust Certificates issued to
the Depositor pursuant to Section 3.10(a)) will be treated as debt for federal
income tax and state income and franchise tax purposes, and (iii) in addition to
the Lease Trustee's rights under Section 5.3(k), take such action as instructed
by the holder of the Lease Trust Certificates issued to the Depositor pursuant
to Section 3.10(a) to collect or cause to be collected and paid over to
applicable authorities any withholding tax as described in and in accordance
with Section 5.3(k) with respect to income or distributions to Lease Trust
Certificateholders or Subordinated Noteholders.
(b) The Depositor shall maintain such books and records, and shall
prepare and file such reports and returns, as are required pursuant to Sections
2.10 and 5.2.
Section 5.6 Subordinated Note Events of Default. Effective after all
of the Senior Notes have been paid in full, the following events constitute
"Subordinated Note Events of Default" (whatever the reason for such Subordinated
Note Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(i) default in the payment of any interest on any Subordinated
Note when the same becomes due and payable on each Payment Date, and such
default shall continue for a period of five days;
(ii) default in the payment of the principal of any Subordinated
Note at Stated Maturity;
(iii) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Lease Trust or any
substantial part of the Lease Trust Estate in an involuntary case under any
applicable federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Lease Trust or
for any substantial part of the Lease Trust Estate, or the winding-up or
liquidation of the Lease Trust's affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(iv) the commencement by the Lease Trust of a voluntary case
under any applicable federal or State bankruptcy, insolvency or
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other similar law now or hereafter in effect, or the consent by the Lease
Trust to the entry of an order for relief in an involuntary case under any
such law, or the consent by the Lease Trust to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Lease Trust or for any substantial
part of the Lease Trust Estate, or the making by the Lease Trust of any
general assignment for the benefit of creditors, or the failure by the
Lease Trust generally to pay its debts as such debts become due, or the
taking of action by the Lease Trust in furtherance of any of the foregoing.
Section 5.7 Acceleration of Maturity. If a Subordinated Note Event of
Default should occur and be continuing, then and in each such case the
Subordinated Noteholders holding not less than a majority of the Outstanding
Amount of the Subordinated Notes may declare all the Subordinated Notes to be
immediately due and payable, by a notice in writing to the Lease Trustee, and
upon any such declaration the unpaid principal amount of such Subordinated
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable; provided, however, that
so long as any Senior Notes are Outstanding, no such declaration of acceleration
of the Subordinated Notes is permitted to be made.
At any time after a declaration of acceleration of maturity of the
Subordinated Notes has been made and before a judgment or decree for payment of
the money due has been obtained by the Subordinated Noteholders, the
Subordinated Noteholders holding not less than a majority of the Outstanding
Amount of the Subordinated Notes, by written notice to the Lease Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Lease Trust has paid all payments of principal of and
interest on all Subordinated Notes and all other amounts that would then be
due upon such Subordinated Notes if the Subordinated Note Event of Default
giving rise to such acceleration had not occurred; and
(ii) all Subordinated Note Events of Default, other than the
nonpayment of the principal of the Subordinated Notes that has become due
solely by such acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.8 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Subordinated Notes as provided above,
Subordinated Noteholders holding not less than a majority of the Outstanding
Amount of the Subordinated Notes may waive any past Subordinated Note Default or
Subordinated Note Event of Default and its consequences except a Subordinated
Note Default in payment of principal of or interest on any of the Subordinated
Notes. In the case of any such waiver, the Lease Trust and the Subordinated
Noteholders shall be restored to their former positions and rights under the
Subordinated Notes and under this Agreement; but no such waiver shall extend to
any subsequent or other Subordinated Note Default or impair any right consequent
thereto.
Upon any such waiver, such Subordinated Note Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any
Subordinated Note Event of Default arising therefrom shall be deemed to have
been cured and not to have occurred, for every purpose of the Subordinated Notes
and this Agreement; but no such waiver shall extend to any subsequent or other
Subordinated Note Default or Subordinated Note Event of Default or impair any
right consequent thereto.
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ARTICLE VI
AUTHORITY AND DUTIES OF LEASE TRUSTEE
Section 6.1 General Authority. To the extent permitted by Section 2.3,
the Lease Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Lease Trust is to be a party and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Lease Trust is to be a party, in each case, in such form as the
Depositor shall approve as evidenced conclusively by the Lease Trustee's
execution thereof and the Depositor's execution of this Agreement, and to direct
the Indenture Trustee to authenticate and deliver Senior Notes in the aggregate
principal amount not to exceed $[ ]. In addition to the foregoing, the Lease
Trustee is authorized to take all actions required of the Lease Trust pursuant
to the Basic Documents. The Lease Trustee is further authorized from time to
time to take such action on behalf of the Lease Trust as is permitted by the
Basic Documents and which the Administrative Agent recommends with respect to
the Basic Documents, except to the extent that this Agreement expressly requires
the consent of Lease Trust Certificateholders or Subordinated Noteholders for
such action.
Section 6.2 General Duties. It shall be the duty of the Lease Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents to which it is to be a
party and to administer the Lease Trust in the interest of the Lease Trust
Certificateholders, subject to the lien of the Indenture and to the obligations
of the Lease Trust under the Subordinated Notes, and in accordance with
provisions of this Agreement and the other Basic Documents to which it is a
party.
Section 6.3 Action upon Instruction. (a) Subject to Article IV, the
Depositor, as holder of the Lease Trust Certificates issued pursuant to Section
3.10(a), may by written instruction direct the Lease Trustee in the
administration of the Lease Trust, subject to, and in accordance with the terms
of this Agreement; provided that no such instruction shall, as evidenced by an
Opinion of Counsel, materially adversely affect the Senior Noteholders,
Subordinated Noteholders or Lease Trust Certificateholders.
(b) The Lease Trustee shall not be required to take any action
hereunder or under any Basic Document if the Lease 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 Lease Trustee or is contrary to the terms
hereof or of any other Basic Document or is otherwise contrary to law.
(c) Whenever the Lease Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, the Lease Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Lease Trust
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Lease Trustee acts in good faith in accordance
with any written instruction of the Lease Trust Certificateholders holding not
less than a majority of the Aggregate Certificate Balance, the Lease Trustee
shall not be liable on account of such action to any Person. If the Lease
Trustee shall not have received appropriate instruction within ten days of such
notice (or within such shorter period of time as reasonably 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, not inconsistent with
this Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Lease Trust Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) In the event that the Lease Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement
44
or any other Basic Document permits any determination by the Lease Trustee or is
silent or is incomplete as to the course of action that the Lease Trustee is
required to take with respect to a particular set of facts, the Lease Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the Lease Trust Certificateholders requesting instruction and, to the extent
that the Lease Trustee acts or refrains from acting in good faith in accordance
with any such instruction received from Lease Trust Certificateholders holding
not less than a majority of the Aggregate Certificate Balance and in accordance
with Sections 6.4 and 6.5, the Lease Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Lease Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably 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, not inconsistent with this Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the Lease
Trust Certificateholders, and shall have no liability to any Person for such
action or inaction.
Section 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Lease Trustee shall not have any right, duty, or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Lease Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Lease Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Lease Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any other Basic Document against the Lease
Trustee. The Lease Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any ownership or security interest in the
Lease Trust Estate or to prepare or file any Securities and Exchange Commission
filing, if any, for the Lease Trust or to record this Agreement or any other
Basic Document.
Section 6.5 No Action Unless Specifically Authorized. The Lease
Trustee shall not manage, control, use, sell, dispose of or otherwise deal with
any part of the Lease Trust Estate except (a) in accordance with the powers
granted to and the authority conferred upon the Lease Trustee pursuant to this
Agreement, (b) in accordance with the other Basic Documents to which the Lease
Trust or the Lease Trustee is a party and (c) in accordance with any document or
instruction delivered to the Lease Trustee pursuant to Section 6.3. In
particular, the Lease Trustee shall not transfer, sell, pledge, assign or convey
the Series 2000-1 Certificates except as specifically required or permitted by
the Basic Documents.
Section 6.6 Restrictions. The Lease Trustee shall not take any action
(a) that is contrary to the purposes of the Lease Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Lease Trustee, would (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 the Lease Trust, the Depositor or any Titling Company or
any portion thereof to be taxable as an association or publicly traded
partnership taxable as a corporation for federal or Delaware income tax
purposes. The Lease Trust Certificateholders and Subordinated Noteholders shall
not direct the Lease Trustee to take action that would violate the provisions of
this Section 6.6.
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ARTICLE VII
CONCERNING THE LEASE TRUSTEE
Section 7.1 Acceptance of Trusts and Duties. The Lease 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 and no implied
duties shall be read into this Agreement against the Lease Trustee. The Lease
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Lease Trust Estate upon the terms of this Agreement and the other
Basic Documents to which the Lease Trust or the Lease Trustee is a party. The
Lease Trustee shall not be answerable or accountable hereunder or under any
other Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.3 expressly made by the Lease
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Lease Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Lease Trustee;
(b) the Lease 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
Lease Trust Certificateholder or Subordinated Noteholder, the Indenture Trustee,
the Depositor or the Administrative Agent;
(c) no provision of this Agreement or any other Basic Document shall
require the Lease Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Basic Document if the Lease Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Lease Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Senior Notes, the Subordinated Notes or the
Lease Trust Certificates;
(e) the Lease Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Lease Trust Estate or for or in respect of the validity
or sufficiency of the other Basic Documents, other than the certificates of
authentication on the Lease Trust Certificates and the Subordinated Notes, and
the Lease Trustee shall in no event be deemed to have assumed or incurred any
liability, duty or obligation to any Senior Noteholder, Subordinated Noteholder
or Lease Trust Certificateholder or any third party dealing with the Lease Trust
or the Lease Trust Estate, other than as expressly provided for herein and in
the other Basic Documents;
(f) the Lease Trustee shall not be liable for the misfeasance,
malfeasance or nonfeasance of the Administrative Agent, the Depositor or the
Indenture Trustee, under any of the Basic Documents or otherwise, and the Lease
Trustee shall have no obligation or liability to perform the obligations of the
Lease Trust under this Agreement or other Basic Documents that are required to
be performed by the Administrative Agent under the Administrative Agency
Agreement or the Series 2000-1 Supplement, the Depositor under the Transfer
Agreement or the Program Operating Lease, or the Indenture Trustee under the
Indenture; and
(g) the Lease 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 or any other Basic Document, at the request, order or direction of any
of the Lease Trust Certificateholders or Subordinated Noteholders, unless such
Lease Trust Certificateholders or Subordinated Noteholders, as the case may be,
have offered to the Lease Trustee security or indemnity satisfactory to it
against the Expenses that may be incurred by the Lease Trustee therein or
thereby. The right of the Lease Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Lease Trustee shall not be answerable for other
than its bad faith, negligence or willful misconduct in the performance of any
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such act.
Section 7.2 Furnishing of Documents. The Lease Trustee shall furnish
to any Subordinated Noteholder or Lease Trust Certificateholder promptly upon
receipt of a written request by such Lease Trust Certificateholder or
Subordinated Noteholder (at the expense of the requesting Lease Trust
Certificateholder or Subordinated Noteholder) therefor, duplicates or copies of
all reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Lease Trustee under the Basic Documents.
Section 7.3 Representations and Warranties. The Lease Trustee hereby
represents and warrants to the Depositor, for the benefit of the Subordinated
Noteholders and Lease Trust Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Lease Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
(d) This Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding agreement of it, enforceable against
the Lease Trustee 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.
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Section 7.4 Reliance; Advice of Counsel. (a) The Lease Trustee
may conclusively rely upon, and shall be fully protected in relying upon, and
shall incur no liability to anyone in acting or refraining from acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper (whether in its original or
facsimile form) believed by it to be genuine and believed by it to be signed by
the proper party or parties. The Lease Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
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
Lease 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 Lease 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 or the
other Basic Documents, the Lease Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Lease Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Lease Trustee with reasonable care and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care and
employed by it. The Lease Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such persons and not contrary to this
Agreement or any other Basic Document.
Section 7.5 Not Acting in Individual Capacity. Except as provided
in this Article VII, in accepting the trusts hereby created The Bank of New York
(Delaware) acts solely as Lease Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Lease Trustee by reason of
the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Lease Trust Estate for payment or satisfaction thereof.
Section 7.6 Lease Trustee Not Liable for Lease Trust Certificates
or Subordinated Notes. The recitals contained herein and in the Lease Trust
Certificates and the Subordinated Notes (other than the signature and
countersignature of the Lease Trustee on the Lease Trust Certificates and the
Subordinated Notes and its representations and warranties in Section 7.3) shall
be taken as the statements of the Depositor and the Lease Trustee assumes no
responsibility for the correctness thereof. The Lease Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
other Basic Document or of the Lease Trust Certificates or Subordinated Notes
(other than the signature and countersignature of the Lease Trustee on the Lease
Trust Certificates and Subordinated Notes) or the Senior Notes or any offering
document relating to any of them. The Lease Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of any Basic Document to which the Lease Trustee is to be a party
(except for enforceability against the Lease Trustee), or the perfection and
priority of any security interest created by or under any Basic Document, or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Lease Trust Estate or its ability to generate the payments to
be distributed to Subordinated Noteholders or Lease Trust Certificateholders
under this Agreement or the Senior Noteholders under the Indenture, or for the
validity of the transfer of the Series 2000-1 Certificates to the Lease Trust
pursuant to the Transfer Agreement, or for the lease of the Series 2000-1
Certificates to RCL Trust 2000-1 pursuant to the Program Operating Lease, or for
the compliance by the Depositor or the Administrative Agent with any warranty or
representation made under any Basic Document or for the accuracy of any such
warranty or representation or for any action of the Administrative Agent or the
Indenture Trustee taken in the name of the Lease Trustee.
Section 7.7 Lease Trustee May Own Lease Trust Certificates,
Subordinated Notes and Senior Notes. The Lease Trustee in its individual or any
other capacity may become the owner or pledgee of Lease Trust Certificates,
Subordinated Notes or Senior Notes and may deal with the Depositor, the
Administrative Agent and the Indenture Trustee, and their respective Affiliates,
in banking transactions with the same rights as it would have if it were not
Lease Trustee.
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ARTICLE VIII
COMPENSATION OF LEASE TRUSTEE
Section 8.1 Lease Trustee's Fees and Expenses. The Lease Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon in writing before the date hereof between the beneficiary
of the Depositor and the Lease Trustee. The Administrative Agent (in exchange
for receipt of the Series 2000-1 Administrative Fee) has agreed pursuant to the
Series 2000-1 Supplement to pay such fees of the Lease Trustee as are agreed
upon by the Depositor and the Lease Trustee, and shall reimburse the Lease
Trustee for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Lease Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder. The
Administrative Agent shall make no claim upon the Lease Trust Estate for the
payment or reimbursement of such fees and expenses.
Section 8.2 Indemnification. The Depositor as the holder of the
Lease Trust Certificates and Subordinated Notes issued pursuant to Section 3.10
shall be liable as primary obligor for, and shall indemnify the Lease Trustee
and its successors, assigns, agents, servants, officers and employees
(collectively, the "Indemnified Parties") from and against, any and all Expenses
which may at any time be imposed on, incurred by, or asserted against any
Indemnified Party in any way relating to or arising out of this Agreement, the
other Basic Documents, the Lease Trust Estate, the administration of the Lease
Trust Estate or the action or inaction of the Lease Trustee hereunder, except
only that the holders of such Lease Trust Certificates shall not be liable for
or required to indemnify the Indemnified Parties from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 7.1. The indemnities contained in this Section 8.2 shall survive the
resignation or termination of the Lease Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section 8.2, the Lease Trustee's choice of legal
counsel shall be subject to the approval of the Depositor, which approval shall
not be unreasonably withheld. The Depositor as the holder of the Lease Trust
Certificates and Subordinated Notes issued pursuant to Section 3.10 shall make
no claim upon the Lease Trust Estate for the payment of such Expenses.
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ARTICLE IX
TERMINATION OF LEASE TRUST AGREEMENT
Section 9.1 Termination of Lease Trust Agreement. (a) This
Agreement (other than Article VIII) and the Lease Trust shall terminate and be
of no further force or effect, (i) upon the final distribution by the Lease
Trustee of all moneys or other property or proceeds of the Lease Trust Estate in
accordance with the terms of the Indenture and this Agreement or (ii) at the
times provided in Section 9.2. The bankruptcy, liquidation, dissolution, or
termination, death or incapacity of any Subordinated Noteholder or Lease Trust
Certificateholder shall not (x) operate to terminate this Agreement or the Lease
Trust, nor (y) entitle such Subordinated Noteholder's or Lease Trust
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Lease Trust or Lease Trust Estate nor (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), none of the Depositor,
any Lease Trust Certificateholder or any Subordinated Noteholder shall be
entitled to revoke or terminate the Lease Trust.
(c) Notice of any termination of this Agreement pursuant to
Section 9.1(a) shall be given by the Lease Trustee by letter to Lease Trust
Certificateholders and Subordinated Noteholders mailed within five Business Days
of receipt of notice of such termination from the Administrative Agent, stating
(i) the Payment Date upon or with respect to which final payment of the
Subordinated Notes and Lease Trust Certificates shall be made upon presentation
and surrender of the Subordinated Notes and Lease Trust Certificates at the
office of the Lease Trust Paying Agent therein designated, (ii) the amount of
any such final payment with respect to the Subordinated Notes or Lease Trust
Certificates, as applicable; and (iii) that the Record Date otherwise applicable
to such Payment Date is not applicable, payments being made only upon
presentation and surrender of the Subordinated Notes and Lease Trust
Certificates at the office of the Lease Trust Paying Agent therein specified.
The Lease Trustee shall give such notice to the Lease Trust Registrar (if other
than the Lease Trustee) and the Lease Trust Paying Agent at the time such notice
is given to Subordinated Noteholders and Lease Trust Certificateholders. Upon
presentation and surrender of the Subordinated Notes or the Lease Trust
Certificates, the Lease Trust Paying Agent shall cause to be paid to
Subordinated Noteholders or Lease Trust Certificateholders, as applicable,
amounts payable to them on such Payment Date pursuant to Section 5.3.
In the event that all of the Subordinated Noteholders and Lease
Trust Certificateholders shall not surrender their Subordinated Notes or Lease
Trust Certificates, as the case may be, for cancellation within six months after
the date specified in the above mentioned written notice, the Lease Trustee
shall give a second written notice to the remaining Subordinated Noteholders and
Lease Trust Certificateholders to surrender their Subordinated Notes or Lease
Trust Certificates, as the case may be, for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Subordinated Notes or Lease Trust Certificates shall not have been
surrendered for cancellation, the Lease Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Subordinated
50
Noteholders or Lease Trust Certificateholders, as the case may be, concerning
surrender of their Subordinated Notes or Lease Trust Certificates, as
applicable, and the cost thereof shall be paid out of the funds and other assets
that shall remain subject to this Agreement. Any funds remaining in the Lease
Trust Estate after exhaustion of such remedies shall be distributed by the Lease
Trustee to the Edison Institute in Dearborn, Michigan.
Section 9.2 Redemption of the Subordinated Notes; Prepayment of
the Lease Trust Certificates.
(a) The Subordinated Notes shall be redeemed in whole, but not in
part, at the Redemption Price and the Lease Trust Certificates shall be prepaid
in whole, but not in part, at the Prepayment Price on any Payment Date on which
the Administrative Agent exercises its option to purchase the Series 2000-1
Certificates pursuant to Section 7.1 of the Series 2000-1 Supplement; provided,
however, that the Lease Trust has available funds sufficient to redeem all of
the outstanding Senior Notes, if any, pursuant to Section 10.1 of the Indenture
and to pay the Redemption Price and the Prepayment Price. The Administrative
Agent or the Lease Trustee shall furnish the Rating Agencies notice of such
redemption and prepayment. In accordance with Section 7.1 of the Series 2000-1
Supplement, the Administrative Agent shall give each Titling Company and the
Holders of the Series 2000-1 Certificates (which for such purposes shall be the
Lease Trustee, and prior to the Payment Date on which the Outstanding Amount of
the Senior Notes has been reduced to zero, the Indenture Trustee) at least
thirty days' prior written notice of the Payment Date on which the
Administrative Agent intends to exercise such option, and shall, on the Business
Day preceding such Payment Date, deposit to the Series 2000-1 Collection Account
an amount in immediately available funds equal to the aggregate Securitization
Value of the Series 2000-1 Assets as of the last day of the preceding Collection
Period plus accrued interest and interest on any overdue interest on the Senior
Notes, the Subordinated Notes and the Lease Trust Certificates to such Payment
Date, whereupon all of the Subordinated Notes and Lease Trust Certificates shall
be due and payable on the Redemption Date upon the furnishing of a notice
complying with Section 9.2(b) to each Subordinated Noteholder and Lease Trust
Certificateholder, as the case may be.
(b) Notice of redemption or prepayment under Section 9.2(a) shall
be given by the Lease Trustee by facsimile or by first-class mail, postage
prepaid, transmitted or mailed at least thirty days prior to the Redemption Date
to each Subordinated Noteholder and Lease Trust Certificateholder, on the Record
Date preceding the Redemption Date, at the address of such Subordinated
Noteholder or Lease Trust Certificateholder, as the case may be, appearing in
the Lease Trust Register.
All notices of redemption or prepayment shall state:
(i) the Redemption Date;
(ii) the Redemption Price or Prepayment Price, as
applicable; and
(iii) the place where the Subordinated Notes and Lease Trust
Certificates are to be surrendered for payment of the Redemption Price or
Prepayment Price, as applicable (which shall be the office or agency of the
Lease Trustee to be maintained as provided in Section 3.8).
Notice of redemption of the Subordinated Notes and of prepayment
of the Lease Trust Certificates shall be given by the Lease Trustee in the name
and at the expense of the Lease Trust. Failure to give notice of redemption or
prepayment, or any defect therein, to any Subordinated Noteholder or Lease Trust
Certificateholder, as the case may be, shall not impair or affect the validity
of the redemption or prepayment of any other Subordinated Note or Lease Trust
Certificate, as applicable.
(c) The Subordinated Notes to be redeemed shall, following notice
of redemption as required by Section 9.2(b) on the Redemption Date become due
and payable at the Redemption Price and (unless the Lease Trust shall default in
the payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period from and including the Redemption Date. The Lease Trust
Certificates to be prepaid shall, following notice of prepayment as required by
Section 9.2(b) on the Redemption Date, become due and payable at the Prepayment
Price and (unless the Lease Trust shall default in the payment of the Prepayment
Price) no interest shall accrue on the Prepayment Price for any period from and
including the Redemption Date.
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ARTICLE X
SUCCESSOR LEASE TRUSTEES AND ADDITIONAL LEASE TRUSTEES
Section 10. 1 Eligibility Requirements for Lease Trustee. The
Lease Trustee shall at all times be authorized to exercise corporate trust
powers and be a Person with a long-term debt rating of at least Baa3 (or its
equivalent) by ▇▇▇▇▇'▇ Investors Service, Inc. (or is otherwise acceptable to
the Rating Agencies) and having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or State
authorities. If such Person shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 10. 1, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time the Lease Trustee shall cease to be eligible in accordance with
the provisions of this Section 10. 1, the Lease Trustee shall resign immediately
in the manner and with the effect specified in Section 10.2.
Section 10.2 Resignation or Removal of Lease Trustee. The Lease
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrative Agent, the Depositor and
the Lease Trust Certificateholders. The Lease Trustee shall not be obligated to
accept record title to the Series 2000-1 Leased Vehicles (or part thereof) after
notice of resignation but before appointment of a successor and shall have no
liability to any Person (including any Subordinated Noteholder or Lease Trust
Certificateholder) as a result of such inaction. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Lease Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Lease Trustee and one copy to the successor Lease
Trustee. If no successor Lease Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Lease Trustee may petition any court of competent
jurisdiction for the appointment of a successor Lease Trustee.
If at any time the Lease Trustee shall cease to be eligible in
accordance with the provisions of Section 10. 1 and shall fail to resign after
written request therefor by the Administrative Agent, the Depositor or Lease
Trust Certificateholders holding not less than a majority of the Aggregate
Certificate Balance, or if at any time the Lease Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Lease
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Lease Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Administrative
Agent, the Depositor or such Lease Trust Certificateholders may remove the Lease
Trustee. If the Administrative Agent, the Depositor or Lease Trust
Certificateholders holding not less than a majority of the Aggregate Certificate
Balance shall remove the Lease Trustee under the authority of the immediately
preceding sentence, the Administrative Agent or the Depositor shall promptly
appoint a successor Lease Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Lease Trustee so removed
52
and one copy to the successor Lease Trustee.
Any resignation or removal of the Lease Trustee and appointment
of a successor Lease Trustee pursuant to any of the provisions of this Section
10.2 shall not become effective until acceptance of appointment by the successor
Lease Trustee pursuant to Section 10.3 and payment of all fees and expenses owed
to the outgoing Lease Trustee. The Depositor shall provide notice of such
resignation or removal of the Lease Trustee to each of the Rating Agencies, the
Indenture Trustee and the Lease Trust Certificateholders.
Section 10.3 Successor Lease Trustee. Any successor Lease Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrative Agent and to its predecessor Lease Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Lease Trustee shall become effective and such
successor Lease Trustee, without any further act, deed or conveyance, 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
Lease Trustee. The predecessor Lease Trustee shall upon payment of its fees and
expenses deliver to the successor Lease Trustee all documents and statements and
monies held by it under this Agreement; and the Depositor and the predecessor
Lease 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 Lease Trustee all such rights, powers, duties and
obligations.
No successor Lease Trustee shall accept appointment as provided
in this Section 10.3 unless at the time of such acceptance such successor Lease
Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Lease Trustee
pursuant to this Section 10.3, the Depositor shall mail notice of the successor
of such Lease Trustee to all Lease Trust Certificateholders, the Indenture
Trustee, and the Rating Agencies. If the Depositor shall fail to mail such
notice within 10 days after acceptance of appointment by the successor Lease
Trustee, the successor Lease Trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.4 Merger or Consolidation of Lease Trustee. Any Person
into which the Lease Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Lease Trustee shall be a party, or any Person
53
succeeding to all or substantially all of the corporate trust business of the
Lease Trustee, shall be the successor of the Lease Trustee hereunder, provided
such Person shall be eligible pursuant to Section 10.1, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, further that
the Lease Trustee shall mail notice of such merger, conversion, or consolidation
to the Rating Agencies, the Indenture Trustee and the Lease Trust
Certificateholders.
Section 10.5 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Lease Trust Estate may at the time be located, the Depositor and the
Lease Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons to act as co-trustee, jointly
with the Lease Trustee, or separate trustee or separate trustees, of all or any
part of the Lease Trust Estate, and to vest in such Person, in such capacity,
such title to the Lease Trust Estate, or any part thereof, and, subject to the
other provisions of this Section 10.5, such powers, duties, obligations, rights
and trusts as the Depositor and the Lease Trustee may consider necessary or
desirable. If the Depositor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Lease Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.3.
The Bank of New York is hereby appointed to act as co-trustee.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Lease Trustee shall be conferred upon and exercised or
performed by the Lease Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co trustee is not authorized
to act separately without the Lease 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 Lease 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 the Lease Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co trustee, but solely at the direction of the Lease
Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement, and
(c) jointly may at any time accept the resignation of or remove
any separate trustee or co trustee.
Any notice, request or other writing given to the Lease 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 separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article X. Each separate trustee and co trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Lease
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 Lease Trustee. Each such instrument shall be filed with the Lease
Trustee and a copy thereof given to the Administrative Agent and the Depositor.
Any separate trustee or co-trustee may at any time appoint the
Lease Trustee, 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 separate trustee or
co-trustee shall die, 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 Lease Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
TAX MATTERS
Section 11.1 Income Tax Characterization. (a) It is the intention
of the parties hereto that the Lease Trust not constitute a separate entity for
federal income tax or state income or franchise taxes. If, however, the Lease
Trust is characterized as a separate entity for federal income tax purposes, it
is the intention of the parties that it qualify as a partnership for such
purposes.
(b) It is the intent of the Depositor and Lease Trust
Certificateholders that the Lease Trust Certificates be treated as indebtedness
of the Depositor for purposes of federal income tax and state income and
franchise taxes. If, however, the Lease Trust is characterized as a separate
entity and the Lease Trust Certificates are not characterized as indebtedness of
such entity for federal income tax purposes, it is the intention of the parties
that the Lease Trust qualify as a partnership for such purposes and the Lease
Trust Certificateholders (including the Depositor) will be treated as partners
in that partnership. The Depositor and the other Lease Trust Certificateholders,
by acceptance of a Lease Trust Certificate, agree to take no action inconsistent
with such tax treatment of the Lease Trust Certificates.
(c) It is the intent of the Depositor and Subordinated
Noteholders that the Subordinated Notes be treated as a direct ownership
interest in the assets of the Lease Trust for purposes of federal income tax and
state income and franchise taxes. If, however, the Lease Trust is characterized
as a separate entity for federal income tax purposes, it is the intention of the
parties that it qualify as a partnership for such purposes and the Subordinated
Noteholders (including the Depositor) will be treated as partners in that
partnership. The Depositor and the other Subordinated Noteholders, by acceptance
of a Subordinated Note, agree to take no action inconsistent with such tax
treatment of the Subordinated Notes.
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Supplements and Amendments.
(a) Without Consent of the Senior Noteholders, Subordinated
Noteholders or Lease Trust Certificateholders. This Agreement may be amended by
the Depositor and the Lease Trustee, with prior written notice by the Depositor
to the Rating Agencies, without the consent of any of the Senior Noteholders,
Subordinated Noteholders or Lease Trust Certificateholders, to cure any
ambiguity or defect, to correct or supplement any provisions in this Agreement,
to add any provisions to or change in any manner or eliminate any of the
provisions in this Agreement or to modify in any manner the rights of the Senior
Noteholders, Subordinated Noteholders or Lease Trust Certificateholders;
provided, however, that such action shall not, (i) as evidenced by an Opinion of
Counsel, materially adversely affect the interests of the Indenture Trustee, any
Senior Noteholder, Subordinated Noteholder or Lease Trust Certificateholder
unless 100% of the holders of the Senior Notes, the Subordinated Notes and the
Lease Trust Certificates materially adversely affected thereby have consented to
such amendment, (ii) as confirmed by each Rating Agency then rating each Class
of the Senior Notes or the Lease Trust Certificates, cause the then current
rating of the Senior Notes or the Lease Trust Certificates to be withdrawn or
reduced or (iii) cause the Lease Trust, the Depositor or any Titling Company to
be taxable as an "association" or publicly traded partnership taxable as a
corporation for federal income tax purposes,
This Agreement also may be amended in connection with an
assignment by the Depositor of Lease Trust Certificates, by the Depositor and
the Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Senior Noteholders, Subordinated
Noteholders or Lease Trust Certificateholders, to provide for the accounting for
income, gain, loss, and deductions of the Lease Trust in the event it is
classified as a partnership and the Lease Trust Certificates are not classified
as debt of such partnership for federal income tax purposes.
(b) With Consent of the Senior Noteholders and Lease Trust
Certificateholders. This Agreement may also be amended from time to time by the
Depositor and the Lease Trustee, with prior written notice to the Rating
Agencies, with the consent of Senior Noteholders holding not less than a
majority of the Outstanding Amount of the Senior Notes and, to the extent
affected thereby, the consent of Lease Trust Certificateholders holding not less
than a majority of the Aggregate Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Senior
Noteholders, Subordinated Noteholders or Lease Trust Certificateholders;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of distributions that
are required to be made for the benefit of the Senior Noteholders or Lease Trust
Certificateholders, or (b) reduce the percentage of the Outstanding Amount of
the Senior Notes and the Aggregate Certificate Balance of the Lease Trust
Certificates required to consent to any such amendment, without the consent of
the holders of 100% of the Outstanding Amount of the Senior Notes or of 100% of
the Aggregate Certificate Balance, as the case may be, and provided, further
that an Opinion of Counsel shall be furnished to the Indenture Trustee and the
Lease Trustee to the effect that such amendment shall not (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, (iii) cause the Lease Trust, the Depositor or any Titling Company to
be classified as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes or (iv) as confirmed by each Rating
Agency then rating each Class of the Senior Notes or the Lease Trust
Certificates, cause the then current rating of the Senior Notes or the Lease
Trust Certificates to be withdrawn or reduced.
(c) With Respect to Certain Tax Matters. Notwithstanding the
56
foregoing, this Agreement may be amended at any time by the Depositor (acting at
the direction of Ford Credit) and the Lease Trustee to the extent reasonably
necessary to assure that none of the Lease Trust, the Depositor or any Titling
Company will be classified as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes; provided, however,
that such action shall not materially adversely affect the interests of any
Senior Noteholder, the Subordinated Noteholder or Lease Trust Certificateholder.
(d) General Matters Concerning Amendments and Consents. The Lease
Trustee and the Depositor shall provide prior written notice of any such
amendment to each Rating Agency, and promptly after the execution of any such
amendment or consent, the Lease Trustee shall furnish written notification of
the substance of such amendment or consent to each Lease Trust Certificateholder
and the Indenture Trustee.
It shall not be necessary for the consent of the Lease Trust
Certificateholders, the Senior Noteholders or the Indenture Trustee pursuant to
this Section 12.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of Lease
Trust Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by Lease
Trust Certificateholders shall be subject to such reasonable requirements as the
Lease Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the
Lease Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. The Lease Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Lease Trustee's
own rights, duties or immunities under this Agreement or otherwise.
Section 12.2 No Legal Title to Lease Trust Estate in Lease Trust
Certificateholders or Subordinated Noteholders. (a) The Lease Trust
Certificateholders shall not have legal title to any part of the Lease Trust
Estate. The Lease Trust Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest in the Least
Trust only in accordance with Articles V and IX No transfer, by operation of law
or otherwise, of any right, title or interest of the Lease Trust
Certificateholders to and in their ownership interest in the Lease Trust Estate
shall operate to terminate this
57
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Lease Trust Estate.
(b) The Subordinated Noteholders shall not have legal title to
any part of the Lease Trust Estate. The Subordinated Noteholders shall be
entitled to receive payments with respect to their Subordinated Notes only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Subordinated Noteholders to
and in their Subordinated Notes shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Lease Trust Estate.
Section 12.3 Limitations on Rights of Others. Except for Sections
2.7 and 12. 1, the provisions of this Agreement are solely for the benefit of
the Lease Trustee, the Lease Trust Paying Agent, the Depositor, the Subordinated
Noteholders, the Lease Trust Certificateholders and the Administrative Agent and
the Indenture Trustee and the Senior Noteholders, as third-party beneficiaries,
and nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Lease Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 12.4 Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that service of
process in connection with any litigation hereunder shall be effected in
accordance with applicable law and that notice to the Lease Trustee shall be
deemed given only upon actual receipt by the Lease Trustee), or, as to each
party, at the address of such party specified below or at such other address as
shall be designated by such party in a written notice to each other party.
1) If to the Lease Trustee:
The Bank of New York (Delaware)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
The Bank of New York
10 ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
2) If to the Depositor:
RCL Trust 2000-1
c/o First Union Trust Company, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
58
(b) Any notice required or permitted to be given to a
Subordinated Noteholder or Lease Trust Certificateholder shall be given by
first-class mail, confirmed, facsimile or overnight courier, postage prepaid, at
the address of such Subordinated Noteholder or Lease Trust Certificateholder as
shown in the Lease Trust Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Subordinated Noteholder or Lease Trust
Certificateholder receives such notice.
Section 12.5 Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 12.6 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 but one and the same instrument.
Section 12.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Lease Trustee and its successors, each Subordinated Noteholder
and its successors and permitted assigns and each Lease Trust Certificateholder
and its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Subordinated Noteholder or Lease Trust Certificateholder shall bind the
successors and assigns of such Subordinated Noteholder or Lease Trust
Certificateholder.
Section 12.8 No Petition. The Lease Trustee and the Depositor, by
entering into this Agreement, each Lease Trust Certificateholder, by accepting a
Lease Trust Certificate, each Subordinated Noteholder, by accepting a
Subordinated Note, the Indenture Trustee and each Senior Noteholder by accepting
the benefits of this Agreement, hereby covenants and agrees that, for a period
of one year and one day after payment in full of the Series 2000-1 Certificates,
they will not at any time institute against the Depositor or the Lease Trust or
join in any institution against, the Depositor or the Lease Trust of any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Lease Trust
Certificates, the Subordinated Notes, the Senior Notes, this Agreement or any of
the other Basic Documents.
Section 12.9 No Recourse. Each Lease Trust Certificate and each
Subordinated Note entities the holder thereof to the respective rights and
benefits set forth in this Agreement and in the Lease Trust Certificates or the
Subordinated Notes, as applicable. The Lease Trust Certificates and the
Subordinated Notes do not represent interests in or obligations of the
Administrative Agent, the Depositor, the Lease Trustee, the Lease Trust Paying
Agent, the Indenture Trustee or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in the Lease Trust Certificates, the Subordinated Notes, this
Agreement or the other Basic Documents.
Section 12.10 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 12.11 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.
59
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
THE BANK OF NEW YORK (DELAWARE),
as Lease Trustee
By:
--------------------------------------------
Name:
Title:
RCL Trust 2000-1
By:FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as
trustee of RCL Trust 2000-1
By:
--------------------------------------------
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
60
EXHIBIT A-1
[FORM OF RULE 144A LEASE TRUST CERTIFICATE]
NUMBER
R-
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS RULE 144A LEASE TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THE LEASE TRUST CERTIFICATES IN RESPECT
OF WHICH THIS RULE 144A LEASE TRUST CERTIFICATE IS ISSUED, AGREES FOR THE
BENEFIT OF THE LEASE TRUST AND THE DEPOSITOR THAT THIS LEASE TRUST CERTIFICATE
MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A
DENOMINATION OF AT LEAST $10,000,000 AND IN INTEGRAL MULTIPLES OF $1,000,000,
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY
(1) TO PERSONS OTHER THAN FORD MOTOR CREDIT COMPANY, (2) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
(A "Q113"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE
HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY
THE LEASE TRUST, THE LEASE TRUST REGISTRAR AND THE RELATED CUSTODIAN OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE LEASE TRUST
AGREEMENT AND (B) THE RECEIPT BY THE LEASE TRUST, THE LEASE TRUST REGISTRAR AND
THE RELATED CUSTODIAN OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT
D TO THE LEASE TRUST AGREEMENT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE
RECEIPT BY THE LEASE TRUST AND THE LEASE TRUST REGISTRAR OF SUCH EVIDENCE
ACCEPTABLE TO THE LEASE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS
IN COMPLIANCE WITH THE LEASE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER
APPLICABLE LAWS, (4) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING
61
THEREOF IN RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE LEASE TRUST, THE LEASE TRUST
REGISTRAR AND THE RELATED CUSTODIAN OF A LETTER SUBSTANTIALLY IN THE FORM
ATTACHED AS EXHIBIT E TO THE LEASE TRUST AGREEMENT OR (B) THE RECEIPT BY THE
LEASE TRUST, THE LEASE TRUST REGISTRAR AND THE RELATED CUSTODIAN OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE LEASE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE LEASE TRUST AGREEMENT AND THE SECURITIES ACT
AND OTHER APPLICABLE LAWS, OR (5) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES.
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS LEASE TRUST CERTIFICATE
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, UNLESS THIS LEASE TRUST
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY ("DTC"), NEW YORK, NEW YORK, TO THE LEASE TRUST, THE LEASE TRUSTEE OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY LEASE
TRUST CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO.).
TRANSFERS OF THIS LEASE TRUST CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMTNEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NONIFNEE AND TRANSFERS OF PORTIONS OF THIS LEASE
TRUST CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE LEASE TRUST AGREEMENT REFERRED TO HEREIN.
THE PRINCIPAL OF THIS LEASE TRUST CERTIFICATE IS DISTRIBUTABLE AS
SET FORTH IN THE LEASE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
OF THIS LEASE TRUST CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 2000-1
62
[ ]% ASSET BACKED LEASE TRUST CERTIFICATE
evidencing an interest in certain distributions of the Lease Trust, as defined
below, the property of which includes: (1) the right to receive certain payments
as program lessor under the Program Operating Lease pursuant to which
certificates representing a beneficial interest in and certificates representing
a limited liability company interest in certain specified retail automobile and
light truck leases were leased to the program lessee; and (2) an interest in the
Series 2000-1 Certificates upon the expiration of such Program Operating Lease.
The property of the Lease Trust has been pledged to the Indenture Trustee
pursuant to the Indenture to secure the payment of the Senior Notes issued
thereunder.
(This Lease Trust Certificate does not represent an interest in or obligation of
the depositor, Ford Motor Credit Company or any of their respective Affiliates,
except to the extent described below.)
THIS CERTIFIES THAT CEDE & CO. or registered assignees is the
registered owner of DOLLARS nonassessable, fully-paid, beneficial
ownership interest in Lease Trust Certificates having an initial Aggregate
Certificate Balance of $[ ] of Ford Credit Auto Lease Trust 2000-1 (the "Lease
Trust") formed by RCL Trust 2000-1 (the "Depositor"). The Aggregate Certificate
Balance of the Lease Trust Certificates bear interest at a rate of [ ]% per
annum (the "Certificate Interest Rate").
63
LEASE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Lease Trust Certificates referred to in the
within-mentioned Lease Trust Agreement.
The Bank of New York (Delaware) or The Bank of New York
(Delaware)
as Lease Trustee as Lease Trustee
By By
-------------------------- ------------------------------
Authenticating Agent
64
The Lease Trust was created pursuant to a Lease Trust Agreement, dated
as of [ ], 2000 (the "Lease Trust Agreement"), between the Depositor and The
Bank of New York (Delaware), as trustee (the "Lease Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Lease Trust Agreement and the definitions
appendices incorporated by reference therein.
This Certificate is one of the duly authorized Lease Trust
Certificates designated as "[ ]% Asset Backed Lease Trust Certificates" (the
"Lease Trust Certificates"). Also issued under the Lease Trust Agreement are the
[ ]% Asset Backed Subordinated Notes (the "Subordinated Notes") and issued under
the Indenture, dated as of [ ], 2000 (the "Indenture"), between the Lease
Trustee and The Chase Manhattan Bank, as trustee (the "Indenture Trustee"), are
the Class A-1 [ ]% Asset Backed Senior Notes, the Class A-2 [ ]% Asset Backed
Senior Notes, the Class A-3 [ ]% Asset Backed Senior Notes, the Class A-4 [ ]%
Asset Backed Senior Notes and the Class A-5 [ ]% Asset Backed Senior Notes
(collectively, the "Senior Notes"). This Lease Trust Certificate is issued under
and is subject to the terms, provisions and conditions of the Lease Trust
Agreement, to which the holder of this Lease Trust Certificate by virtue of the
acceptance hereof assents and by which such Lease Trust Certificateholder is
bound. The property of the Lease Trust includes (i) the rights of the Lease
Trust under the Series 2000-1 Certificates, (ii) the rights as lessor under the
Program Operating Lease, (iii) subject to the pledge thereof to the Indenture
Trustee, the Series 2000-1 Collection Account, the Series 2000-1 Payahead
Account, the Series 2000-1 Payment Account and the Lease Trust Distribution
Account and all funds on deposit from time to time therein and all investments
including all income thereon and proceeds thereof, (iv) the rights of the
Depositor under the Asset Contribution Agreement, (v) the rights of the Lease
Trust as the holder of the Series 2000-1 Certificates under the Administrative
Agency Agreement and the Series 2000-1 Supplement, (vi) the security interest of
the Lease Trust in the Subordinated Notes pursuant to the Program Operating
Lease and in amounts credited to the Cash Collateral Account and the right to
make withdrawals from the Cash Collateral Account and (vii) all proceeds of the
foregoing. THE RIGHTS OF THE LEASE TRUSTEE IN THE FOREGOING PROPERTY OF THE
LEASE TRUST HAVE BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF
THE SENIOR NOTES.
The Lease Trust Certificates represent interests in the Lease Trust
only and do not represent interests in, recourse to or obligations of the
Depositor, Ford Credit or any of their respective affiliates.
Under the Lease Trust Agreement, there will be distributed on the 15th
day of each calendar month or, if any such 15th day is not a Business Day,
65
the next Business Day (each, a "Payment Date"), commencing [ ], to the Person in
whose name this Lease Trust Certificate is registered on the last day of the
calendar month preceding such Payment Date (the "Record Date"). The Lease Trust
will pay interest on this Lease Trust Certificate at the Certificate Interest
Rate on each Payment Date until the principal of this Lease Trust Certificate is
paid or made available for payment, on the principal amount of this Lease Trust
Certificate outstanding on the preceding Payment Date (after giving effect to
all payments of principal made on the preceding Payment Date). Interest on this
Lease Trust Certificate will accrue from and including the [15th] day of the
calendar month preceding the calendar month in which the Payment Date occurs to
but excluding the [15th] day of the calendar month in which the Payment Date
occurs or, if no interest has yet been paid, from and including [ ], 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. No principal will be paid on this Lease Trust Certificate on any Payment
Date occurring during the Revolving Period. On each Payment Date during the
Amortization Period after the Outstanding Amount of the Senior Notes and the
Outstanding Amount of the Subordinated Notes have been reduced to zero, the
principal, if any, available to be paid on such Payment Date in accordance with
the terms of the Lease Trust Agreement will be paid. The Amortization Period
will commence on [ ], unless an Early Amortization Event occurs prior to such
date. If an Early Amortization Event occurs, the Amortization Period will
commence.
THE HOLDER OF THIS LEASE TRUST CERTIFICATE ACKNOWLEDGES AND AGREES
THAT ITS RIGHTS TO RECEIVE PAYMENTS IN RESPECT OF THIS LEASE TRUST CERTIFICATE
ARE SUBORDINATED TO THE RIGHTS OF THE SENIOR NOTEHOLDERS AND SUBORDINATED
NOTEHOLDERS TO THE EXTENT DESCRIBED IN THE INDENTURE AND THE LEASE TRUST
AGREEMENT.
It is the intent of the Depositor and Lease Trust Certificateholders
that the Lease Trust Certificates be treated as indebtedness of the Depositor
for purposes of federal income tax and state income and franchise taxes. The
Depositor and the other Lease Trust Certificateholders, by acceptance of a Lease
Trust Certificate, agree to take no action inconsistent with such tax treatment
of the Lease Trust Certificates.
The obligation represented by this Lease Trust Certificate is limited
to the Series 2000-1 Specified Assets and the Series 2000-1 Specified Interest.
The Lease Trust Certificateholder by accepting a Lease Trust Certificate
acknowledges and agrees (i) that if an Insolvency Event occurs with respect to
any Titling Company, any claim that such Lease Trust Certificateholder may seek
to enforce against such Titling Company or the Specified Assets allocated
66
to any Specified Interest of such Titling Company other than the Specified
Interest represented by a Series 2000-1 Certificate ("Other Specified Interest")
shall be subordinated to the payment in full, including post-petition interest,
of the claims of the holders of any Securities related to the Specified Assets
allocated to such Other Specified Interests and (ii) that the Lease Trust
Agreement constitutes a subordination agreement for purposes of Section 510(a)
of the Bankruptcy Code.
The Lease Trust Certificateholder by accepting this Lease Trust
Certificate further covenants and agrees for a period of one year and one day
after payment in full of the Series 2000-1 Certificates, it will not institute
against the Depositor or the Lease Trust, or join in the institution against the
Depositor or the Lease Trust of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or State bankruptcy or similar law in connection with any
obligations relating to the Lease Trust Certificates, the Subordinated Notes,
the Senior Notes, the Lease Trust Agreement or any of the other Basic Documents.
Distributions on this Lease Trust Certificate will be made as provided
in the Lease Trust Agreement by the Lease Trustee by wire transfer or check
mailed to Person whose name appears as the registered holder of this Lease Trust
Certificate (or one or more predecessor Lease Trust Certificates) on Lease Trust
Register as of the close of business on each Record Date, except that with
respect to Lease Trust Certificates registered on the Record Date in the name of
the nominee of DTC (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to an account maintained by
such nominee. Except as otherwise provided in the Lease Trust Agreement and
notwithstanding the above, the final distribution on this Lease Trust
Certificate will be made after due notice by the Lease Trustee of the pendency
of such distribution and only upon presentation and surrender of this Lease
Trust Certificate at the office or agency maintained for the purpose by the
Lease Trustee in Delaware.
Reference is hereby made to the further provisions of this Lease Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Lease Trustee, by manual signature,
this Lease Trust Certificate shall not entitle the holder hereof to any benefit
under the Lease Trust Agreement or be valid for any purpose.
THIS LEASE TRUST CERTIFICATE SHALL BE 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.
67
IN WITNESS WHEREOF, the Lease Trustee, on behalf of the Lease Trust
and not in its individual capacity, has caused this Lease Trust Certificate to
be duly executed.
Dated: [ ], 2000
FORD CREDIT AUTO LEASE TRUST 2000-1
By: THE BANK OF NEW YORK (DELAWARE)
as Lease Trustee
By:
---------------------------------
Authorized Officer
68
(Reverse of Lease Trust Certificate)
The Lease Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Administrative Agent, the Lease Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Lease Trust Agreement or the other Basic Documents. In addition, this Lease
Trust Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries (and certain other amounts) respecting the assets of the Lease Trust,
all as more specifically set forth in the Indenture and the Lease Trust
Agreement. The Lease Trustee will furnish, upon the request of any holder of a
Lease Trust Certificate, such information as is specified in paragraph (d)(4) of
Rule 144A with respect to the Lease Trust. A registration statement, which
includes the Lease Trust Agreement as an exhibit thereto, has been filed with
the Securities and Exchange Commission with respect to the Senior Notes of the
Lease Trust issued concurrently with this Lease Trust Certificate.
The Lease Trust Agreement may be amended by the Depositor and the
Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Senior Noteholders, Subordinated
Noteholders or Lease Trust Certificateholders, to cure any ambiguity or defect,
to correct or supplement any provisions in the Lease Trust Agreement, to add any
provisions to or change in any manner or eliminate any of the provisions in the
Lease Trust Agreement or to modify in any manner the rights of the Senior
Noteholders, the Subordinated Noteholders or the Lease Trust Certificateholders;
provided, however, that such action shall not, (i) as evidenced by an Opinion of
Counsel, materially adversely affect the interests of the Indenture Trustee, any
Senior Noteholder, Subordinated Noteholder or Lease Trust Certificateholder
unless 100% of the holders of the Senior Notes, the Subordinated Notes and the
Lease Trust Certificates materially adversely affected thereby have consented to
such amendment, (ii) as confirmed by each Rating Agency the then current rating
of each Class of the Senior Notes or the Lease Trust Certificates cause the then
rating of the Senior Notes or the Lease Trust Certificates to be withdrawn or
reduced or (iii) cause the Lease Trust, the Depositor or any of the Titling
Companies to be classified as an "association" (or publicly traded partnership)
taxable as a corporation for federal income tax purposes.
The Lease Trust Agreement also may be amended in connection with an
assignment by the Depositor of the Lease Trust Certificates, by the Depositor
and the Lease Trustee, with prior written notice by the Depositor to the
69
Rating Agencies, without the consent of any of the Senior Noteholders,
Subordinated Noteholders or Lease Trust Certificateholders, to provide for the
accounting for income, gain, loss, and deductions of the Lease Trust in the
event it is classified as a partnership and the Lease Trust Certificates are not
classified as debt of such partnership for federal income tax purposes
The Lease Trust Agreement may also be amended from time to time by the
Depositor and the Lease Trustee, with prior written notice to the Rating
Agencies, with the consent of the Senior Noteholders holding not less than a
majority of the Outstanding Amount of the Senior Notes and, to the extent
affected thereby, the consent of Lease Trust Certificateholders holding not less
than a majority of the Aggregate Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Lease Trust Agreement or of modifying in any manner the rights of the
Senior Noteholders, the Subordinated Noteholders or the Lease Trust
Certificateholders; provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of
distributions that are required to be made for the benefit of the Senior
Noteholders or the Lease Trust Certificateholders, (b) reduce the percentage of
the Outstanding Amount of the Senior Notes and the Aggregate Certificate Balance
required to consent to any such amendment, without the consent of the holders of
100% of the Outstanding Amount of the Senior Notes or of 100% of the Aggregate
Certificate Balance, as the case may be, or (c) as evidenced by an Opinion of
Counsel to the Indenture Trustee and the Lease Trustee to the effect that such
amendment shall not (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, (iii) cause the Lease Trust, the
Depositor or any of the Titling Companies to be taxable as an "association" or
publicly traded partnership taxable as a corporation for federal income tax
purposes or (iv) as confirmed by each Rating Agency then rating each Class of
the Senior Notes and the Lease Trust Certificates, cause the then current rating
of the Senior Notes or the Lease Trust Certificates to be withdrawn or reduced.
Notwithstanding the foregoing, the Lease Trust Agreement may be
amended at any time by the Depositor (acting at the direction of Ford Credit)
and the Lease Trustee to the extent reasonably necessary to assure that none of
the Titling Companies, the Lease Trust or the Depositor will be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, however, that such action shall not
materially adversely affect the interests of any Senior Noteholder, the
Subordinated
70
Noteholder or Lease Trust Certificateholder.
This Least Trust Certificate may be transferred only under the
circumstances described on the face of this Lease Trust Certificate and in
Section 3.4 of the Lease Trust Agreement, which, among other things, requires
that each prospective transferee represent in writing in the form provided as an
exhibit to the Lease Trust Agreement that it will not acquire or transfer the
Lease Trust Certificate through an established securities market, is not and
will not become, except in certain circumstances, a partnership, Subchapter S
corporation or grantor trust for U.S. federal income tax purposes, and will not
acquire the Lease Trust Certificate for or on behalf of an employee benefit
plan, except in certain limited circumstances.
Notwithstanding the foregoing, this Lease Trust Certificates may not
be transferred unless an Opinion of Counsel in form and content acceptable to
the Lease Trustee and, if any Senior Notes are then Outstanding, to the
Indenture Trustee is delivered to the Lease Trustee and, if any Senior Notes are
then Outstanding, to the Indenture Trustee and prior notice is given to each
Rating Agency. Among other things, such Opinion of Counsel shall state that such
Transfer shall not (i) affect the treatment of the Senior Notes and the Lease
Trust Certificates as debt for federal income tax purposes and (ii) cause either
the Lease Trust or any Titling Company to be classified as an association (or
publicly traded partnership) taxable as a corporation for federal income tax
purposes; provided, however, that no Lease Trust Certificate may be transferred
(i) unless the Lease Trust Agreement is amended to provide for the accounting
for income, gain, loss, and deductions of the Lease Trust in the event it is
classified as a partnership and the Lease Trust Certificates are not classified
as debt of such partnership for federal income tax purposes or (ii) to Ford
Credit; provided, further, that the Lease Trust Certificates issued to and
required to be retained by the Depositor pursuant to Section 3.10(a) of the
Lease Trust Agreement may not be transferred except upon a dissolution of or
termination of the Depositor as provided in Section 3.2(b) of the Lease Trust
Agreement.
Any attempted transfer in contravention of the restrictions and
conditions on the face of this Lease Trust Certificate and in the Lease Trust
Agreement shall be null and void. As provided in the Lease Trust Agreement, the
transfer of this Lease Trust Certificate is registerable in the Lease Trust
Register upon surrender of this Lease Trust Certificate for registration of
transfer at the offices or agencies of the Lease Trust Registrar maintained by
the Lease Trustee in New York, New York, accompanied by the written
representations required by the Lease Trust Agreement and a written instrument
of transfer in form satisfactory to the Lease Trust Registrar duly executed by
the Lease Trust Certificateholder hereof or such Lease Trust Certificateholder's
attorney duly authorized in writing, and thereupon one or more new Lease Trust
Certificates of
71
authorized denominations evidencing the same aggregate denomination will be
issued to the designated transferee. The initial Lease Trust Registrar appointed
under the Lease Trust Agreement is The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ -
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration.
Except for Lease Trust Certificates issued to the Depositor, the Lease
Trust Certificates are issuable only as registered Lease Trust Certificates
without coupons in denominations of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof. Lease Trust Certificates are exchangeable for new
Lease Trust Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the Lease Trust Certificateholder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Lease Trustee or the Lease Trust Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith. This Lease Trust Certificate may not be
transferred by the Depositor or any other holder hereof to Ford Credit.
The Lease Trustee, the Lease Trust Registrar and any agent of the
Lease Trustee or the Lease Trust Registrar may treat the Person in whose name
this Lease Trust Certificate is registered as the owner hereof for all purposes,
and none of the Lease Trustee, the Lease Trust Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Lease Trust
Agreement and the Lease Trust created thereby shall terminate upon the payment
to Lease Trust Certificateholders of all amounts required to be paid to them
pursuant to the Lease Trust Agreement and the Indenture and the disposition of
all property held as part of the Lease Trust.
72
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
Please print or type name and address, including postal zip code, of assignee
--------------------------------------------------------------------------------
the within Lease Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said
---------------------------------------------------
Lease Trust Certificate on the books of the Lease Trust Registrar, with full
power of substitution in the premises.
Dated:
*
---------------------------------
Signature Guaranteed:
*
---------------------------------
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Lease Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
73
EXHIBIT A-2
[FORM OF LEASE TRUST CERTIFICATE ISSUED TO
THE DEPOSITOR PURSUANT TO SECTION 3.10(a)]
NUMBER
R-
THIS LEASE TRUST
CERTIFICATE MAY NOT
BE TRANSFERRED BY A
STOCK POWER BUT ONLY
AS SET FORTH BELOW
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS LEASE TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT
OF THE DISSOLUTION OR TERMINATION OF RCL TRUST 2000-1 WHEN IT IS THE HOLDER
HEREOF, AND ANY TRANSFER IN VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID.
THE PRINCIPAL OF THIS LEASE TRUST CERTIFICATE IS DISTRIBUTABLE AS SET
FORTH IN THE LEASE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF
THIS LEASE TRUST CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 2000-1
[ ]% ASSET BACKED LEASE TRUST CERTIFICATE
evidencing an interest in certain distributions of the Lease Trust, as defined
below, the property of which includes: (1) the right to receive certain payments
as program lessor under the Program Operating Lease pursuant to which
certificates representing a beneficial interest in and certificates representing
a limited liability company interest in certain specified retail automobile and
light truck leases were leased to the program lessee; and (2) an interest in the
Series 2000-1 Certificates upon the expiration of such Program Operating Lease.
The property of the Lease Trust has been pledged to the Indenture Trustee
pursuant to the Indenture to secure the payment of the Senior Notes issued
thereunder.
(This Lease Trust Certificate does not represent an interest in or obligation of
the Depositor, Ford Motor Credit Company or any of their respective Affiliates,
except to the extent described below.)
THIS CERTIFIES THAT RCL TRUST 2000-1 is the registered owner of
DOLLARS nonassessable, fully-paid, beneficial ownership
interest in Lease Trust Certificates having an initial Aggregate Certificate
Balance of $[ ] of Ford Credit Auto Lease Trust 2000-1 (the "Lease
Trust") formed by RCL Trust 2000-1 (the "Depositor"). The Aggregate Certificate
Balance of the Lease Trust Certificates bear interest at a rate of [ ]% per
annum (the "Certificate Interest Rate").
74
LEASE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Lease Trust Certificates referred to in the
within-mentioned Lease Trust Agreement.
The Bank of New York (Delaware) or The Bank of New York
(Delaware)
as Lease Trustee as Lease Trustee
By By
------------------------ ----------------------------
Authenticating Agent
75
The Lease Trust was created pursuant to a Lease Trust Agreement, dated
as of [ ], 2000 (the "Lease Trust Agreement"), between the Depositor and The
Bank of New York (Delaware), as trustee (the "Lease Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Lease Trust Agreement and the definitions
appendices incorporated by reference therein.
This Certificate is one of the duly authorized Lease Trust
Certificates designated as "[ ]% Asset Backed Lease Trust Certificates" (the
"Lease Trust Certificates"). Also issued under the Lease Trust Agreement are the
[ ]% Asset Backed Subordinated Notes (the "Subordinated Notes") and issued under
the Indenture, dated as of [ ], 2000 (the "Indenture"), between the Lease
Trustee and The Chase Manhattan Bank, as trustee (the "Indenture Trustee"), are
the Class A-1 [ ]% Asset Backed Senior Notes, the Class A-2 [ ]% Asset Backed
Senior Notes, the Class A-3 [ ]% Asset Backed Senior Notes, the Class A-4 [ ]%
Asset Backed Senior Notes and the Class A-5 [ ]% Asset Backed Senior Notes
(collectively, the "Senior Notes"). This Lease Trust Certificate is issued under
and is subject to the terms, provisions and conditions of the Lease Trust
Agreement, to which the holder of this Lease Trust Certificate by virtue of the
acceptance hereof assents and by which such Lease Trust Certificateholder is
bound. The property of the Lease Trust includes (i) the rights of the Lease
Trust under the Series 2000-1 Certificates, (ii) the rights as lessor under the
Program Operating Lease, (iii) subject to the pledge thereof to the Indenture
Trustee, the Series 2000-1 Collection Account, the Series 2000-1 Payahead
Account, the Series 2000-1 Payment Account and the Lease Trust Distribution
Account and all funds on deposit from time to time therein and all investments
including all income thereon and proceeds thereof, (iv) the rights of the
Depositor under the Asset Contribution Agreement, (v) the rights of the Lease
Trust as the holder of the Series 2000-1 Certificates under the Administrative
Agency Agreement and the Series 2000-1 Supplement, (vi) the security interest of
the Lease Trust in the Subordinated Notes pursuant to the Program Operating
Lease and in amounts credited to the Cash Collateral Account and the right to
make withdrawals from the Cash Collateral Account and (vii) all proceeds of the
foregoing. THE RIGHTS OF THE LEASE TRUSTEE IN THE FOREGOING PROPERTY OF THE
LEASE TRUST HAVE BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF
THE SENIOR NOTES.
The Lease Trust Certificates represent interests in the Lease Trust
only and do not represent interests in, recourse to or obligations of the
Depositor, Ford Credit or any of their respective affiliates.
Under the Lease Trust Agreement, there will be distributed on the 15th day of
each calendar month or, if any such 15th day is not a Business Day, the next
76
Business Day (each, a "Payment Date"), commencing [ ], to the
Person in whose name this Lease Trust Certificate is registered on the last day
of the calendar month preceding such Payment Date (the "Record Date"). The Lease
Trust will pay interest on this Lease Trust Certificate at the Certificate
Interest Rate on each Payment Date until the principal of this Lease Trust
Certificate is paid or made available for payment, on the principal amount of
this Lease Trust Certificate outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date).
Interest on this Lease Trust Certificate will accrue from and including the
[15th] day of the calendar month preceding the calendar month in which the
Payment Date occurs to but excluding the [15th] day of the calendar month in
which the Payment Date occurs or, if no interest has yet been paid, from and
including [ ], 2000. Interest will be computed on the basis of a
360-day year of twelve 30-day months. No principal will be paid on this Lease
Trust Certificate on any Payment Date occurring during the Revolving Period. On
each Payment Date during the Amortization Period after the Outstanding Amount of
the Senior Notes and the Outstanding Amount of the Subordinated Notes have been
reduced to zero, the principal, if any, available to be paid on such Payment
Date in accordance with the terms of the Lease Trust Agreement will be paid. The
Amortization Period will commence on [ ], unless an Early
Amortization Event occurs prior to such date. If an Early Amortization Event
occurs, the Amortization Period will commence.
THE HOLDER OF THIS LEASE TRUST CERTIFICATE ACKNOWLEDGES AND AGREES
THAT ITS RIGHTS TO RECEIVE PAYMENTS IN RESPECT OF THIS LEASE TRUST CERTIFICATE
ARE SUBORDINATED TO THE RIGHTS OF THE SENIOR NOTEHOLDERS AND SUBORDINATED
NOTEHOLDERS TO THE EXTENT DESCRIBED IN THE INDENTURE AND THE LEASE TRUST
AGREEMENT.
It is the intent of the Depositor and Lease Trust Certificateholders
that the Lease Trust Certificates be treated as indebtedness of the Depositor
for purposes of federal income tax and state income and franchise taxes. The
Depositor and the other Lease Trust Certificateholders, by acceptance of a Lease
Trust Certificate, agree to take no action inconsistent with such tax treatment
of the Lease Trust Certificates.
The obligation represented by this Lease Trust Certificate is limited
to the Series 2000-1 Specified Assets and the Series 2000-1 Specified Interest.
The Lease Trust Certificateholder by accepting a Lease Trust Certificate
acknowledges and agrees (i) that if an Insolvency Event occurs with respect to
any Titling Company, any claim that such Lease Trust Certificateholder may seek
to enforce against such Titling Company or the Specified Assets allocated
77
to any Specified Interest of such Titling Company other than the Specified
Interest represented by a Series 2000-1 Certificate ("Other Specified Interest")
shall be subordinated to the payment in full, including post-petition interest,
of the claims of the holders of any Securities related to the Specified Assets
allocated to such Other Specified Interests and (ii) that the Lease Trust
Agreement constitutes a subordination agreement for purposes of Section 510(a)
of the Bankruptcy Code.
The Lease Trust Certificateholder by accepting this Lease Trust
Certificate further covenants and agrees for a period of one year and one day
after payment in full of the Series 2000-1 Certificates, it will not institute
against the Depositor or the Lease Trust, or join in the institution against the
Depositor or the Lease Trust of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or State bankruptcy or similar law in connection with any
obligations relating to the Lease Trust Certificates, the Subordinated Notes,
the Senior Notes, the Lease Trust Agreement or any of the other Basic Documents.
Distributions on this Lease Trust Certificate will be made as provided
in the Lease Trust Agreement by the Lease Trustee by wire transfer or check
mailed to Person whose name appears as the registered holder of this Lease Trust
Certificate (or one or more predecessor Lease Trust Certificates) on Lease Trust
Register as of the close of business on each Record Date, except that with
respect to Lease Trust Certificates registered on the Record Date in the name of
the nominee of DTC (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to an account maintained by
such nominee. Except as otherwise provided in the Lease Trust Agreement and
notwithstanding the above, the final distribution on this Lease Trust
Certificate will be made after due notice by the Lease Trustee of the pendency
of such distribution and only upon presentation and surrender of this Lease
Trust Certificate at the office or agency maintained for the purpose by the
Lease Trustee in Delaware.
Reference is hereby made to the further provisions of this Lease Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Lease Trustee, by manual signature,
this Lease Trust Certificate shall not entitle the holder hereof to any benefit
under the Lease Trust Agreement or be valid for any purpose.
THIS LEASE TRUST CERTIFICATE SHALL BE 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.
78
IN WITNESS WHEREOF, the Lease Trustee, on behalf of the Lease Trust
and not in its individual capacity, has caused this Lease Trust Certificate to
be duly executed.
Dated: [ ], 2000
FORD CREDIT AUTO LEASE TRUST 2000-1
By: THE BANK OF NEW YORK (DELAWARE)
as Lease Trustee
By:
----------------------------------
Authorized Officer
79
(Reverse of Lease Trust Certificate)
The Lease Trust Certificates do not represent an obligation of,
or an interest in, the Depositor, the Administrative Agent, the Lease Trustee or
any Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Lease Trust Agreement or the other Basic Documents. In addition, this Lease
Trust Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries (and certain other amounts) respecting the assets of the Lease Trust,
all as more specifically set forth in the Indenture and the Lease Trust
Agreement.
The Lease Trust Agreement may be amended by the Depositor and the
Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Senior Noteholders, Subordinated
Noteholders or Lease Trust Certificateholders, to cure any ambiguity or defect,
to correct or supplement any provisions in the Lease Trust Agreement, to add any
provisions to or change in any manner or eliminate any of the provisions in the
Lease Trust Agreement or to modify in any manner the rights of the Senior
Noteholders, the Subordinated Noteholders or the Lease Trust Certificateholders;
provided, however, that such action shall not, (i) as evidenced by an Opinion of
Counsel, materially adversely affect the interests of the Indenture Trustee, any
Senior Noteholder, Subordinated Noteholder or Lease Trust Certificateholder
unless 100% of the holders of the Senior Notes, the Subordinated Notes and the
Lease Trust Certificates materially adversely affected thereby have consented to
such amendment, (ii) as confirmed by each Rating Agency the then current rating
of each Class of the Senior Notes or the Lease Trust Certificates cause the then
rating of the Senior Notes or the Lease Trust Certificates to be withdrawn or
reduced or (iii) cause the Lease Trust, the Depositor or any of the Titling
Companies to be classified as an "association" (or publicly traded partnership)
taxable as a corporation for federal income tax purposes.
The Lease Trust Agreement also may be amended in connection with an
assignment by the Depositor of the Lease Trust Certificates, by the Depositor
and the Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Senior Noteholders, Subordinated
Noteholders or Lease Trust Certificateholders, to provide for the accounting for
income, gain, loss, and deductions of the Lease Trust in the event it is
classified as a partnership and the Lease Trust Certificates are not classified
as debt of such partnership for federal income tax purposes.
80
The Lease Trust Agreement may also be amended from time to time by the
Depositor and the Lease Trustee, with prior written notice to the Rating
Agencies, with the consent of the Senior Noteholders holding not less than a
majority of the Outstanding Amount of the Senior Notes and, to the extent
affected thereby, the consent of Lease Trust Certificateholders holding not less
than a majority of the Aggregate Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Lease Trust Agreement or of modifying in any manner the rights of the
Senior Noteholders, the Subordinated Noteholders or the Lease Trust
Certificateholders; provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of
distributions that are required to be made for the benefit of the Senior
Noteholders or the Lease Trust Certificateholders, (b) reduce the percentage of
the Outstanding Amount of the Senior Notes and the Aggregate Certificate Balance
required to consent to any such amendment, without the consent of the holders of
100% of the Outstanding Amount of the Senior Notes or of 100% of the Aggregate
Certificate Balance, as the case may be, or (c) as evidenced by an Opinion of
Counsel to the Indenture Trustee and the Lease Trustee to the effect that such
amendment shall not (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, (iii) cause the Lease Trust, the
Depositor or any of the Titling Companies to be taxable as an "association" or
publicly traded partnership taxable as a corporation for federal income tax
purposes or (iv) as confirmed by each Rating Agency then rating each Class of
the Senior Notes and the Lease Trust Certificates, cause the then current rating
of the Senior Notes or the Lease Trust Certificates to be withdrawn or reduced.
Notwithstanding the foregoing, the Lease Trust Agreement may be
amended at any time by the Depositor (acting at the direction of Ford Credit)
and the Lease Trustee to the extent reasonably necessary to assure that none of
the Titling Companies, the Lease Trust or the Depositor will be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, however, that such action shall not
materially adversely affect the interests of any Senior Noteholder, the
Subordinated Noteholder or Lease Trust Certificateholder.
As provided in the Lease Trust Agreement, the transfer of this Lease
Trust Certificate is prohibited; provided, that upon a dissolution or
termination of the Depositor this Lease Trust Certificate, if held by the
Depositor,
81
shall be distributed to the beneficiaries of the Depositor in accordance with
their percentage interests therein.
Notwithstanding the foregoing, this Lease Trust Certificates may not
be transferred unless an Opinion of Counsel in form and content acceptable to
the Lease Trustee and, if any Senior Notes are then Outstanding, to the
Indenture Trustee is delivered to the Lease Trustee and, if any Senior Notes are
then Outstanding, to the Indenture Trustee and prior notice is given to each
Rating Agency. Among other things, such Opinion of Counsel shall state that such
Transfer shall not (i) affect the treatment of the Senior Notes and the Lease
Trust Certificates as debt for federal income tax purposes and (ii) cause either
the Lease Trust or any Titling Company to be classified as an association (or
publicly traded partnership) taxable as a corporation for federal income tax
purposes; provided, however, that no Lease Trust Certificate may be transferred
(i) unless the Lease Trust Agreement is amended to provide for the accounting
for income, gain, loss, and deductions of the Lease Trust in the event it is
classified as a partnership and the Lease Trust Certificates are not classified
as debt of such partnership for federal income tax purposes or (ii) to Ford
Credit; provided, further, that the Lease Trust Certificates issued to and
required to be retained by the Depositor pursuant to Section 3.10(a) of the
Lease Trust Agreement may not be transferred except upon a dissolution of or
termination of the Depositor as provided in Section 3.2(b) of the Lease Trust
Agreement.
Any attempted transfer in contravention of the restrictions and
conditions on the face of this Lease Trust Certificate and in the Lease Trust
Agreement shall be null and void. As provided in the Lease Trust Agreement, the
transfer of this Lease Trust Certificate is registerable in the Lease Trust
Register upon surrender of this Lease Trust Certificate for registration of
transfer at the offices or agencies of the Lease Trust Registrar maintained by
the Lease Trustee in New York, New York, accompanied by the written
representations required by the Lease Trust Agreement and a written instrument
of transfer in form satisfactory to the Lease Trust Registrar duly executed by
the Lease Trust Certificateholder hereof or such Lease Trust Certificateholder's
attorney duly authorized in writing, and thereupon one or more new Lease Trust
Certificates of authorized denominations evidencing the same aggregate
denomination will be issued to the designated transferee. The initial Lease
Trust Registrar appointed under the Lease Trust Agreement is The Bank of New
York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Administration.
Except for Lease Trust Certificates issued to the Depositor, the Lease
Trust Certificates are issuable only as registered Lease Trust Certificates
without coupons in denominations of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof. Lease Trust Certificates are exchangeable for new
Lease Trust Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the Lease Trust Certificateholder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Lease Trustee or the Lease Trust Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith. This Lease Trust Certificate may not be
transferred by the Depositor or any other holder hereof to Ford Credit.
The Lease Trustee, the Lease Trust Registrar and any agent of the
Lease Trustee or the Lease Trust Registrar may treat the Person in whose name
this Lease Trust Certificate is registered as the owner hereof for all purposes,
and none of the Lease Trustee, the Lease Trust Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Lease Trust
Agreement and the Lease Trust created thereby shall terminate upon the payment
to Lease Trust Certificateholders of all amounts required to be paid to them
pursuant to the Lease Trust Agreement and the Indenture and the disposition of
all property held as part of the Lease Trust.
82
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
Please print or type name and address, including postal zip code, of assignee
--------------------------------------------------------------------------------
the within Lease Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
--------------------------------------------------------------------------------
______________________________________________________ Attorney to transfer said
Lease Trust Certificate on the books of the Lease Trust Registrar, with full
power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Lease Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
83
EXHIBIT B
[FORM OF SUBORDINATED NOTE]
THIS SUBORDINATED NOTE
MAY NOT BE TRANSFERRED
BY A BOND POWER BUT
ONLY AS SET FORTH BELOW
FORD CREDIT AUTO LEASE TRUST 2000-1
[ ]% ASSET BACKED SUBORDINATED NOTE
Ford Credit Auto Lease Trust 2000-1 (the "Lease Trust"), a
trust created pursuant to a trust agreement, dated as of [ ], 2000 (the "Lease
Trust Agreement"), between RCL Trust 2000-1, as Depositor and The Bank of New
York (Delaware), not in its individual capacity but solely as trustee of the
Lease Trust (the "Lease Trustee"), for value received, hereby promises to pay to
RCL TRUST 2000-1, upon presentation and surrender of this Subordinated Note the
principal sum of DOLLARS (U.S. $ ) on October 15,
2004 Payment Date, or earlier, all in accordance with the Lease Trust Agreement.
The Lease Trust will pay interest on this Subordinated Note at the rate per
annum shown above on each Payment Date until the principal of this Subordinated
Note is paid or made available for payment, on the principal amount of this
Subordinated Note outstanding on the preceding Payment Date (after giving effect
to all payments of principal made on such preceding Payment Date) in accordance
with the Lease Trust Agreement.
THE HOLDER OF THIS SUBORDINATED NOTE ACKNOWLEDGES AND AGREES
THAT ITS RIGHTS TO RECEIVE PAYMENTS IN RESPECT OF THIS SUBORDINATED NOTE ARE
SUBORDINATED TO THE RIGHTS OF THE SENIOR NOTEHOLDERS AS DESCRIBED IN THE
INDENTURE AND THE LEASE TRUST AGREEMENT, AS APPLICABLE.
The obligation represented by this Subordinated Note is
limited to the Series 2000-1 Specified Assets and the Series 2000-1 Specified
Interest. The Subordinated Noteholder by accepting this Subordinated Note
acknowledges and agrees (i) that if an Insolvency Event occurs with respect to
any Titling Company, any claim that such Subordinated Noteholder may seek to
enforce against such Titling Company or the Specified Assets allocated to any
Specified Interest of such Titling Company other than the Specified Interest
represented by a Series 2000-1 Certificate ("Other Specified Interest") shall be
subordinated to the payment in full, including post-petition interest, of the
claims of the holders of any Securities related to the Specified Assets
allocated to such Other Specified Interests and (ii) that the Lease Trust
Agreement constitutes a subordination agreement for purposes of Section 510(a)
of the Bankruptcy Code.
Unless the certificate of authentication hereon has been
executed by the Lease Trustee whose name appears below by manual signature, this
Subordinated Note shall not be entitled to any benefit under the Lease Trust
Agreement, or be valid or obligatory for any purpose.
84
IN WITNESS WHEREOF, the Lease Trust has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
Dated: [ ], 2000
FORD CREDIT AUTO LEASE TRUST 2000-1, by THE
BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as Lease
Trustee under the Lease Trust Agreement
By:
--------------------------------------
Name:
Title:
85
LEASE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes designated above and
referred to in the within-mentioned Lease Trust Agreement.
Dated: [ ], 2000
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but
solely as Lease Trustee under the
Lease Trust Agreement
By:
---------------------------------
Authorized Signatory
86
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying
number of assignee
-----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
----------------------------------------------------
-------------------------------------------------------------------------------
(name and address of assignee)
the within Subordinated Note and all rights thereunder, and hereby irrevocably
constitutes and appoints , attorney, to transfer said
Subordinated Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
--------------------
--------------------*
Signature Guaranteed:
--------------------
--------------------------
--------------------
* Note: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within
Subordinated Note in every particular, without alteration, enlargement
or any change whatsoever.
87
EXHIBIT C
[FORM OF RULE 144A TRANSFEROR CERTIFICATE]
[Date]
The Bank of New York (Delaware)
as Lease Trustee and Lease Trust Registrar
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Initial Purchaser in connection with
the Offering Circular referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
[ ]
as Initial Purchaser in connection with
the Offering Circular referred to below
[ ]
[ ]
[ ]
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in
denomination of Asset Backed Lease Trust Certificates (the "Certificates") of
Ford Credit Auto Lease Trust 2000-1 (the "Issuer").
The undersigned is the holder of the Certificates and with
this notice hereby deposits with the Lease Trustee $ [*] in denomination of
Certificates and requests that Certificates in the same aggregate denomination
be issued, executed and authenticated and registered to the purchaser on
, , as specified in the Lease Trust Agreement dated as of [ ],
----------- ----
2000 relating to the Certificates, as follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned
(i) reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as amended (the "Act"),
(ii) such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the Act
provided by Rule 144A, (iii) if the purchaser has purchased the Certificates for
an account for which it is acting as fiduciary or agent, such account is a
qualified institutional buyer and (iv) the purchaser is acquiring Certificates
for its own account or for an institutional account for which it is acting as
fiduciary or agent in a minimum amount equivalent to not less than $10,000,000
and integral multiples of $1,000,000.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATES]
By:
---------------------------------
Name:
Title:
88
EXHIBIT D
[FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER]
[Date]
Ford Credit Auto Lease Trust 2000-1
as Issuer
The Bank of New York (Delaware)
as Lease Trustee and Lease Trust Registrar
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Initial Purchaser in connection with
the Offering Circular referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
[ ]
as Initial Purchaser in connection with
the Offering Circular referred to below
[ ]
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of the [ ]% Asset Backed Lease
Trust Certificates (the "Certificates") of Ford Credit Auto Lease Trust 2000-1
(the "Issuer"), a trust formed by RCL Trust 2000-1 (the "Depositor") pursuant to
the Trust Agreement, dated as of [ ], 2000 (the "Lease Trust Agreement"),
between the Depositor and The Bank of New York (Delaware), as Lease Trustee, we
confirm that:
1. We have received a copy of the Offering Circular (the
"Offering Circular") dated [ ], 2000, relating to the Certificates and such
other information as we deem necessary in order to make our investment
decision. We
89
understand that the Offering Circular speaks only as of its date and that the
information contained therein may not be correct or complete as of any time
subsequent to such date.
2. We agree to be bound by the restrictions and conditions set
forth under the heading "Notice to Investors" in the Offering Circular relating
to the Certificates and the undersigned agrees to be bound by, and not to
resell, transfer, assign, participate, pledge or otherwise dispose of (any such
act, a "Transfer") the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. We have neither acquired nor will we transfer any
Certificate we purchase (or any interest therein) or cause any such Certificates
(or any interest therein) to be marketed on or through an "established
securities market" within the meaning of Section 7704(b)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), including, without limitation, an
over-the-counter-market or an interdealer quotation system that regularly
disseminates firm buy or sell quotations.
4. We either (a) are not, and will not become, a partnership,
Subchapter S corporation, or grantor trust for U.S. federal income tax purposes
or (b) are such an entity, but none of the direct or indirect beneficial owners
of any of the interests in us have allowed or caused, or will allow or cause,
80% or more (or such other percentage as the Depositor may establish prior to
the time of such proposed Transfer) of the value of such interests to be
attributable to our ownership of Certificates.
5. We understand that no subsequent Transfer of the
Certificates is permitted unless (A) such Transfer is of a Certificate with a
denomination of at least $10,000,000 and in integral multiples of $1,000,000,
(B) we cause our proposed transferee to provide to the Issuer, the Lease Trust
Registrar and the Initial Purchasers a letter substantially in the form of
Exhibit D or Exhibit E to the Lease Trust Agreement, as applicable, or such
other written statement as the Depositor shall prescribe, (C) before the
Transfer of the Certificates, we cause the proposed transferee to enter into a
Custodial Agreement with a custodian and (D) the Depositor consents in writing
to the proposed Transfer.
6. We understand that the Opinion of Counsel that the Issuer
is not a publicly traded partnership taxable as a corporation is dependent in
part on the accuracy of the representations in paragraphs 2, 3, 4 and 5 above.
7. We are a "qualified institutional buyer" (within the
meaning of Rule 144A under the Securities Act) (a "QIB") and we are acquiring
the Certificates for our own account or for a single account (which is a QIB and
from
90
which no resale, pledge, or other transfer may be made) as to which we
exercise sole investment discretion.
8. We are not (A) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to Title I of ERISA, (B) a plan described in Section
4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, State or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the
Code, (D) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of Labor
Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of
any such plan (including without limitation, for purposes of this clause (E),
any insurance company general account, but excluding any entity registered under
the Investment Company Act of 1940, as amended).
9. We are a Person who is either (A) (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity organized
in or under the laws of the United States or any political subdivision thereof,
other than a partnership treated as a foreign person under U.S. Treasury
regulations, unless in the case of a partnership, U.S. Treasury regulations
enacted in the future provide otherwise or (iii) a Person not described in
(A)(i) or (ii) whose ownership of the Certificates is effectively connected with
such Person's conduct of a trade or business within the United States (within
the meaning of the Code) and its ownership of any interest in a Certificate will
not result in any withholding obligation with respect to any payments with
respect to the Certificates by any Person (other than withholding, if any, under
Section 1446 of the Code), (B) an estate the income of which is includible in
gross income for United States federal income tax purposes, regardless of source
or (C) a trust, if either (i) a United States court is able to exercise primary
supervision over the administration of such trust and one or more United States
persons have the authority to control substantial decisions of the trust or (ii)
it was in existence on August 20, 1996 and elected to be treated as a United
States person (within the meaning of the Code) thereafter. We agree that we will
provide a certification of non-foreign status signed under penalties of perjury
and, alternatively, that if we are a person described in clause (A)(iii) above,
we will furnish to the Depositor and the Lease Trustee a properly executed IRS
Form 4224 and a new IRS Form 4224 upon the expiration or obsolescence of any
previously delivered form (and such other certifications, representations or
opinions of counsel as may be requested by the Depositor and the Lease Trustee).
91
10. We understand that any purported Transfer of any
Certificate (or any interest therein) in contravention of any of the
restrictions and conditions above shall be null and void (each, a "Void
Transfer"), and the purported transferee in a Void Transfer shall not be
recognized by the Issuer or any other Person as a Lease Trust Certificateholder
for any purpose.
We understand that pursuant to Section 3.4(c) of the Lease Trust
Agreement, the Certificates may not be transferred unless an Opinion of Counsel
in form and content acceptable to the Lease Trustee and, if any Senior Notes are
then Outstanding, to the Indenture Trustee, is delivered to the Lease Trustee
and, if any Senior Notes are then Outstanding, to the Indenture Trustee and
prior notice is given to each Rating Agency. Among other things, such Opinion of
Counsel shall state that such Transfer shall not (i) affect the treatment of the
Senior Notes and the Certificates as debt for federal income tax purposes and
(ii) cause either the Lease Trust or any Titling Company to be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, however, that the Certificates may not be
transferred (i) unless the Lease Trust Agreement is amended to provide for the
accounting for income, gain, loss, and deductions of the Lease Trust in the
event it is classified as a partnership and the Certificates are not classified
as debt of such partnership for federal income tax purposes or (ii) to Ford
Credit; provided, further, that the Certificates issued to and required to be
retained by the Depositor pursuant to Section 3.10(a) of the Lease Trust
Agreement may not be transferred except upon a dissolution of or termination of
the Depositor as provided in Section 3.2(b) of the Lease Trust Agreement.
We understand that the obligation represented by the Certificate is
limited to the Series 2000-1 Specified Assets and the Series 2000-1 Specified
Interest. We acknowledge and agree (i) that if an Insolvency Event occurs with
respect to any Titling Company, any claim that we may seek to enforce against
such Titling Company or the Specified Assets allocated to any Specified Interest
of such Titling Company other than the Specified Interest represented by a
Series 2000-1 Certificate ("Other Specified Interest") shall be subordinated to
the payment in full, including post-petition interest, of the claims of the
holders of any Securities related to the Specified Assets allocated to such
Other Specified Interests and (ii) that the Lease Trust Agreement constitutes a
subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Lease
Trust Agreement and the definitions appendices incorporated by reference
therein.
Very truly yours,
By:
----------------------
Name:
Title:
Securities To Be Purchased:
$ ___________ principal amount of Certificates
92
EXHIBIT E
[FORM OF INVESTMENT LETTER
INSTITUTIONAL ACCREDITED INVESTOR]
[Date]
Ford Credit Auto Lease Trust 2000-1
as Issuer
The Bank of New York (Delaware)
as Lease Trustee and Lease Trust Registrar
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Initial Purchaser in connection with
the Offering Circular referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
[ ]
as Initial Purchaser in connection with
the Offering Circular referred to below
[ ]
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of the [ ]% Asset Backed Lease
Trust Certificates (the "Certificates") of Ford Credit Auto Lease Trust 2000-1
(the "Issuer"), a trust formed by RCL Trust 2000-1 (the "Depositor") pursuant to
the Trust Agreement, dated as of [ ], 2000 (the "Lease Trust Agreement"),
between the Depositor and The Bank of New York (Delaware), as Lease Trustee, we
confirm that:
1. We have received a copy of the Offering Circular (the
"Offering Circular") dated [ ], 2000, relating to the Certificates and such
other information as we deem necessary in order to make our investment
decision. We understand that the Offering Circular speaks only as of its date
and that the information
93
contained therein may not be correct or complete as of any time subsequent to
such date.
2. We agree to be bound by the restrictions and conditions set
forth under the heading "Notice to Investors" in the Offering Circular relating
to the Certificates and the undersigned agrees to the bound by, and not to
resell, transfer, assign, participate, pledge or otherwise dispose of (any such
act, a "Transfer") the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. We have neither acquired nor will we transfer any
Certificate we purchase (or any interest therein) or cause any such Certificates
(or any interest therein) to be marketed on or through an "established
securities market" within the meaning of Section 7704(b)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), including, without limitation, an
over-the-counter-market or an interdealer quotation system that regularly
disseminates firm buy or sell quotations.
4. We either (a) are not, and will not become, a partnership,
Subchapter S corporation, or grantor trust for U.S. federal income tax purposes
or (b) are such an entity, but none of the direct or indirect beneficial owners
of any of the interests in us have allowed or caused, or will allow or cause,
80% or more (or such other percentage as the Depositor may establish prior to
the time of such proposed Transfer) of the value of such interests to be
attributable to our ownership of Certificates.
5. We understand that no subsequent Transfer of the
Certificates is permitted unless (A) such Transfer is of a Certificate with a
denomination of at least $10,000,000 and in integral multiples of $1,000,000,
(B) we cause our proposed transferee to provide to the Issuer, the Lease Trust
Registrar and the Initial Purchasers a letter substantially in the form of
Exhibit D or Exhibit E to the Lease Trust Agreement, as applicable, or such
other written statement as the Depositor shall prescribe, (C) before the
Transfer of the Certificates, we cause the proposed transferee to enter into a
Custodial Agreement with a Custodian and (D) the Depositor consents in writing
to the proposed Transfer.
6. We understand that the Opinion of Counsel that the Issuer
is not a publicly traded partnership taxable as a corporation is dependent in
part on the accuracy of the representations in paragraphs 2, 3, 4 and 5 above.
7. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and we are
acquiring the
94
Certificates for our own account.
8. We are not (A) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to Title I of ERISA, (B) a plan described in Section
4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, State or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the
Code, (D) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of Labor
Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of
any such plan (including without limitation, for purposes of this clause (E),
any insurance company general account, but excluding any entity registered under
the Investment Company Act of 1940, as amended).
9. We are a Person who is either (A) (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity organized
in or under the laws of the United States or any political subdivision thereof,
other than a partnership treated as a foreign person under U.S. Treasury
regulations, unless in the case of a partnership, U.S. Treasury regulations
enacted in the future provide otherwise or (iii) a Person not described in
(A)(i) or (ii) whose ownership of the Certificates is effectively connected with
such Person's conduct of a trade or business within the United States (within
the meaning of the Code) and its ownership of any interest in a Certificate will
not result in any withholding obligation with respect to any payments with
respect to the Certificates by any Person (other than withholding, if any, under
Section 1446 of the Code), (B) an estate the income of which is includible in
gross income for United States federal income tax purposes, regardless of source
or (C) a trust, if either (i) a United States court is able to exercise primary
supervision over the administration of such trust and one or more United States
persons have the authority to control substantial decisions of the trust or (ii)
it was in existence on August 20, 1996 and elected to be treated as a United
States person (within the meaning of the Code) thereafter. We agree that we will
provide a certification of non-foreign status signed under penalties of perjury
and, alternatively, that if we are a person described in clause (A)(iii) above,
we will furnish to the Depositor and the Lease Trustee a properly executed IRS
Form 4224 and a new IRS Form 4224 upon the expiration or obsolescence of any
previously delivered form (and such other certifications, representations or
opinions of counsel as may be requested by the Depositor and the Lease Trustee).
10. We understand that any purported Transfer of any
Certificate (or any interest therein) in contravention of any of the
restrictions and conditions above shall be null and void (each, a "Void
Transfer"), and the purported transferee in a Void Transfer shall not be
recognized by the Issuer or any other
95
Person as a Lease Trust Certificateholder for any purpose.
We understand that pursuant to Section 3.4(c) of the Lease Trust
Agreement, the Certificates may not be transferred unless an Opinion of Counsel
in form and content acceptable to the Lease Trustee and, if any Senior Notes are
then Outstanding, to the Indenture Trustee, is delivered to the Lease Trustee
and, if any Senior Notes are then Outstanding, to the Indenture Trustee and
prior notice is given to each Rating Agency. Among other things, such Opinion of
Counsel shall state that such Transfer shall not (i) affect the treatment of the
Senior Notes and the Certificates as debt for federal income tax purposes and
(ii) cause either the Lease Trust or any Titling Company to be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, however, that the Certificates may not be
transferred (i) unless the Lease Trust Agreement is amended to provide for the
accounting for income, gain, loss, and deductions of the Lease Trust in the
event it is classified as a partnership and the Certificates are not classified
as debt of such partnership for federal income tax purposes or (ii) to Ford
Credit; provided, further, that the Certificates issued to and required to be
retained by the Depositor pursuant to Section 3.10(a) of the Lease Trust
Agreement may not be transferred except upon a dissolution of or termination of
the Depositor as provided in Section 3.2(b) of the Lease Trust Agreement.
We understand that the obligation represented by the Certificate is
limited to the Series 2000-1 Specified Assets and the Series 2000-1 Specified
Interest. We acknowledge and agree (i) that if an Insolvency Event occurs with
respect to any Titling Company, any claim that we may seek to enforce against
such Titling Company or the Specified Assets allocated to any Specified Interest
of such Titling Company other than the Specified Interest represented by a
Series 2000-1 Certificate ("Other Specified Interest") shall be subordinated to
the payment in full, including post-petition interest, of the claims of the
holders of any Securities related to the Specified Assets allocated to such
Other Specified Interests and (ii) that the Lease Trust Agreement constitutes a
subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Lease
Trust Agreement and the definitions appendices incorporated by reference
therein.
Very truly yours,
By:
-------------------------
Name:
Title:
Securities To Be Purchased:
$_____________ principal amount of Certificates
96
EXHIBIT F
[FORM OF CUSTODIAL AGREEMENT]
[Date]
[▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]]
[or]
[[ ]
[ ]
[ ]
Attention: [ ]]
Re: Ford Credit Auto Lease Trust 2000-1
[ ]% Asset Backed Lease Trust Certificates
Ladies and Gentlemen:
The undersigned intends to purchase $
--------------------
in principal amount of [ ]% Asset Backed Lease Trust Certificates (the "Lease
Trust Certificates") issued by Ford Credit Auto Lease Trust 2000-1 (the
"Issuer") pursuant to the Lease Trust Agreement dated as of [ ], 2000 (the
"Lease Trust Agreement") among the Issuer, The Bank of New York (Delaware), as
Lease Trustee (the "Lease Trustee") and RCL Trust 2000-1, as Depositor (the
"Depositor") appearing as Exhibit B hereto. Capitalized terms used but not
defined in this letter agreement (together with the Exhibits attached hereto,
this "Custodial Agreement") shall have the respective meanings given to them in
the Lease Trust Agreement.
The Rule 144A Lease Trust Certificates are represented by one
or more permanent global certificates in definitive, fully registered form, and
registered in the name of, Cede & Co., the nominee of the Depositary. The
Depositary will allocate all of the interests in each global Rule 144A Lease
Trust Certificate to [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated]
[ ], as Custodian for the beneficial owners from time to time of each
outstanding Rule 144A Lease Trust Certificate, as reflected in the Lease Trust
Certificates
97
Ownership Register maintained by the Custodian. Ownership of beneficial
interests in the Rule 144A Lease Trust Certificates will be evidenced, and
transfers thereof will be effected, solely on the books and records of the
Custodian.
The following terms have the following respective meanings
when used in this agreement:
"Transfer" means, with respect to any legal or beneficial
interest in the Rule 144A Lease Trust Certificates, a sale, transfer,
assignment, gift, pledge, hypothecation or other disposition or encumbrance of
any nature of or on such interest (including a transfer as a result of a merger
or consolidation involving the holder of such an interest or a sale of all or
substantially all of the assets of the holder of such an interest).
"Transferee" means, with respect to any legal or beneficial
interest in the Rule 144A Lease Trust Certificates, the Person to whom the
Transferor of such interest desires to transfer such interest.
"Transferor" means, with respect to any legal or beneficial
interest in the Rule 144A Lease Trust Certificates, the Holder desiring to
transfer such interest.
In consideration of your agreement to act as Custodian in
respect of the Rule 144A Lease Trust Certificates as contemplated hereby and by
the Lease Trust Agreement and the Offering Circular, we hereby agree with you as
follows:
1. In the event of any inconsistency between this Custodial Agreement
and any other agreement relating to your custody of the Rule 144A Lease Trust
Certificates, the terms of this Custodial Agreement shall prevail.
2. We hereby represent to the Issuer and the Custodian that:
(i) we have neither acquired nor will we transfer any Lease
Trust Certificate we purchase (or any interest therein) or cause any such Lease
Trust Certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of the
Code, including, without limitation, an over-the-counter-market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations;
(ii) we either (A) are not, and will not become, a
partnership, Subchapter S corporation, or grantor trust for U.S. federal income
tax purposes, or (B) are such an entity, but none of the direct or indirect
beneficial owners of any of the interests in us have allowed or caused, or will
allow or cause, 80% or more (or such other percentage as the Depositor may
establish prior to the time of such proposed Transfer) of the value of such
interests to be attributable to our ownership of Lease Trust Certificates;
98
(iii) we understand that no subsequent Transfer of the Lease
Trust Certificates is permitted unless (A) such Transfer is of a Lease Trust
Certificate with a denomination of at least $10,000,000 and in integral
multiples of $1,000,000, (B) the Transferee causes its proposed Transferee to
provide to the Lease Trust and the Custodian a certificate substantially in the
form of Exhibit D or Exhibit E, as applicable, to the Lease Trust Agreement or
such other written statement as the Depositor shall prescribe, (C) before the
Transfer of the Lease Trust Certificates, we cause the proposed Transferee to
enter into a Custodial Agreement with the Custodian and (D) the Depositor
consents in writing to the proposed Transfer, which consent shall be granted
unless the Depositor determines that such Transfer would create a risk that the
Lease Trust or any Titling Company would be classified for federal or any
applicable State tax purposes as an association or publicly traded partnership
taxable as a corporation; provided, however, that any attempted Transfer that
would either cause (i) the number of holders of Lease Trust Certificates and
Subordinated Notes to exceed twelve or (ii) the number of holders of direct or
indirect interests in any Titling Company to exceed ninety, shall be a Void
Transfer;
(iv) we understands that the Opinion of Counsel that the Lease
Trust is not a publicly traded partnership taxable as a corporation is dependent
in part on the accuracy of the representations in paragraphs (i), (ii) and (iii)
above;
(v) we are not (A) an employee benefit plan, as defined in
Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described
in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in
Section 3(32) of ERISA, subject to any federal, State or local law which is, to
a material extent, similar to the provisions of Section 406 of ERISA or Section
4975 of the Code, (D) an entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan
assets" of any such plan (including without limitation, for purposes of this
clause (E), any insurance company general account but excluding any entity
registered under the Investment Company Act of 1940, as amended);
(vi) we are a Person who is either (A)(1) a citizen or
resident of the United States, (2) a corporation, partnership or other entity
organized in or under the laws of the United States or any political subdivision
thereof, other than a partnership treated as a foreign person under U.S.
Treasury regulations, unless in the case of a partnership, U.S. Treasury
regulations enacted in the future provide otherwise or (3) a Person not
described in (A)(1) or (2) whose ownership of the Lease Trust Certificates is
effectively connected with such Person's conduct of a trade or business within
the United States (within the
99
meaning of the Code) and its ownership of any interest in a Lease Trust
Certificate will not result in any withholding obligation with respect to any
payments with respect to the Lease Trust Certificates by any Person (other than
withholding, if any, under Section 1446 of the Code), (B) an estate the income
of which is includible in gross income for United States federal income tax
purposes, regardless of source or (C) a trust, if either (1) a United States
court is able to exercise primary supervision over the administration of such
trust and one or more United States persons have the authority to control
substantial decisions of the trust or (2) it was in existence on August 20, 1996
and elected to be treated as a United States person (within the meaning of the
Code) thereafter. We agree that we will provide a certification of non-foreign
status signed under penalties of perjury and, alternatively, that if we are a
person described in clause (A)(3) above, we will furnish to the Depositor and
the Lease Trustee a properly executed IRS Form 4224 and a new IRS Form 4224 upon
the expiration or obsolescence of any previously delivered form (and such other
certifications, representations or opinions of counsel as may be requested by
the Depositor and the Lease Trustee); and
(vii) we understands that any purported Transfer of any Lease
Trust Certificate (or any interest therein) in contravention of any of the
restrictions and conditions in Section 3.4 of the Lease Trust Agreement shall be
a Void Transfer, and the purported Transferee in a Void Transfer shall not be
recognized by the Custodian or any other Person as a Lease Trust Certificate
Owner for any purpose.
3. We shall in no event transfer to any Person all or any interest in
the Rule 144A Lease Trust Certificates purchased by us unless:
(i) the Transferee and the Custodian execute a
letter agreement substantially in the form of this Custodial
Agreement;
(ii) we deliver to the Custodian and the Issuer, for the
benefit of the Custodian and the Issuer, a completed Rule 144A transferor
certificate substantially in the form attached to Exhibit C to the Lease Trust
Agreement;
(iii) the Transferee delivers to the Custodian and the Issuer,
for the benefit of the Custodian and the Issuer, a completed investment letter
substantially in the form attached as Exhibit D or Exhibit E, as applicable, to
the Lease Trust Agreement;
(iv) the Transferee delivers to the Custodian, the Lease
Trustee and, if any Senior Notes are Outstanding, to the Indenture Trustee an
Opinion of Counsel as required by Section 3.4(c) of the Lease Trust Agreement;
(v) we receive IRS Form 4224 or W-9 in form satisfactory to us
and the Lease Trustee, duly executed by the Transferor or such Person's attorney
duly authorized in writing;
100
(vi) the Depositor consents to such proposed Transfer, which
consent will be granted unless the Depositor determines that such Transfer would
create a risk that the Lease Trust or any Titling Company would be classified
for federal or any applicable State tax purposes as an association or publicly
traded partnership taxable as a corporation; and
(vii) the Transferee agrees to bear all expenses and costs of
such Transfer and registration in the Lease Trust Certificates Ownership
Register including, without limitation, any legal fees and filing fees of the
Issuer and the Custodian and any duty, tax or governmental charge that may be
imposed in relation to such Transfer or registration.
4. Any Transfer made in violation of paragraph 3 above shall be void
and of no effect, and the Custodian will be entitled to cause the further
Transfer of such Lease Trust Certificates in a permitted Transfer (in accordance
with the provisions of paragraph 3) at any readily available price for the sole
account of the Person to whom such Transfer was improperly made.
5. Unless we have previously, or hereafter, entered into a separate
custody agreement with [▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated]
[ ] (in which case the terms of such custody agreement, to the extent not
inconsistent with this Custodial Agreement, are incorporated herein by reference
and made a part hereof), we hereby appoint the Custodian as our custodian and
authorize the Custodian to perform such services, exercise such rights and take
such actions on our behalf as are contemplated hereby and by the Lease Trust
Agreement and the Offering Circular, in each case, together with such authority
and powers as are reasonably incidental thereto. In exercising its powers and
performing its duties as Custodian, the Custodian shall exercise such powers and
perform such duties consistent with applicable law and with the care, skill,
prudence and diligence that an ordinarily prudent individual in a like position
would use under similar circumstances; provided, that none of the Custodian, any
affiliate of the Custodian, or any officer, agent, stockholder, partner, member,
director or employee of the Custodian or any affiliate of the Custodian shall,
except to the extent otherwise expressly provided by applicable law, have any
liability to us, whether direct or indirect and whether in contract, tort or
otherwise, (i) for any action taken or omitted to be taken by any of them in
connection herewith unless there has been a final judicial determination that
such act or omission was performed or omitted in bad faith or constituted gross
negligence or willful misconduct or (ii) for any action taken or omitted to be
taken by the Custodian at our express direction.
This Custodial Agreement shall be governed by and construed in
accordance with the law of the State of New York.
Very truly yours,
[NAME OF PURCHASER]
By:
---------------------------------
Name:
Title:
ACCEPTED BY:
[▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated]
By:
--------------------------------
Name:
Title:
[or]
[ ]
By:
--------------------------------
Name:
Title:
101
Exhibit A to the Custodial Agreement
CORRESPONDENCE AND PAYMENT INSTRUCTIONS
(TO BE COMPLETED BY ALL TRANSFEREES)
[To: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]]
[or]
[To: [ ]
[ ]
[ ]
Attention: [ ]]
1. I prefer to have correspondence sent to me at this address:
Name of Transferee:
------------------------------
Address:
------------------------------
------------------------------
c/o Company Name if Applicable
------------------------------------------------
Number and Street - Post Office Box Unacceptable
-----------------------------------------------------
City State Zip Code
Telephone Number: Telefax Number:
------------- ----------------
Area Code Number Area Code Number
2. In addition, I would like the following to receive copies of all
correspondence:
102
Name:
---------------------------------
Title:
--------------------------------
Address:
------------------------------
Number and Street - Post Office Box Unacceptable
---------------------------------------------------------------------
City State Zip Code
Telephone Number: Telefax Number:
---------------- ------------
Area Code Number Area Code Number
3. For distributions of cash, please wire funds to the following bank account:
ABA Number:
-----------------------------------
Bank Name:
-----------------------------------
Bank Location:
--------------------------------
Account Number:
-------------------------------
Account Name:
---------------------------------
For further credit to:
------------------------
(if any)
Account Number:
-------------------------------
Account Name:
---------------------------------
Reference:
------------------------------------
4. For distributions in-kind, please:
[ ] Credit securities to my brokerage account at the
following firm:
Firm Name:
-------------------------------
Address:
---------------------------------
Account Name:
----------------------------
Account Number:
--------------------------
[ ] Deliver the securities in certificate form (this will
typically take longer than a book entry transfer to a
brokerage account)
103
IN WITNESS WHEREOF, I have executed these Correspondence and
Payment Instructions this day of
----- ----------, -----.
-------------------------------------
Type or Print Name of Subscriber
---------------------------------------- -------------
Type or Print Name of Individual Signing Signature
104
Exhibit B to the Custodial Agreement
[LEASE TRUST AGREEMENT]