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EXHIBIT 10.2
ADMINISTRATIVE AGENCY AGREEMENT
dated as of
January 31, 1994
among
COMERICA BANK,
as trustee of Ford Credit Titling Trust,
FORD MOTOR CREDIT COMPANY,
as Administrative Agent,
and
FORD MOTOR CREDIT COMPANY, and
FORD CREDIT LEASING COMPANY, INC.
as initial Beneficiaries of
Ford Credit Titling Trust
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
THE ADMINISTRATIVE AGENT; DESIGNATION OF SERIES
Section 2.1 Representations of the
Administrative Agent . . . . . . . . . . . . . . . . . . 2
Section 2.2 Indemnities of the Administrative
Agent . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Merger or Consolidation of, or
Assumption of the Obligations of,
Administrative Agent . . . . . . . . . . . . . . . . . . 6
Section 2.4 Limitation on Liability of
Administrative Agent and Others . . . . . . . . . . . . 6
Section 2.5 Delegation of Duties . . . . . . . . . . . . . . . . . . 7
Section 2.6 Notification of Third Party Claims . . . . . . . . . . . 8
Section 2.7 Maintenance and Assignment of
Blanket Insurance Policies . . . . . . . . . . . . . . . 8
Section 2.8 Designation of Series . . . . . . . . . . . . . . . . . 8
ARTICLE III
PURCHASE OF LEASES AND LEASED VEHICLES
Section 3.1 Origination by Dealers; Role of
Administrative Agent . . . . . . . . . . . . . . . . . . 9
Section 3.2 Administration and Titling of
Leased Vehicles . . . . . . . . . . . . . . . . . . . . 9
Section 3.3 Vehicle Purchase Account . . . . . . . . . . . . . . . . 10
Section 3.4 Purchase of Leases and Leased
Vehicles; Lease Purchase Advances . . . . . . . . . . . 10
Section 3.5 Vehicle Purchase Certificate . . . . . . . . . . . . . . 11
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ARTICLE IV
ADMINISTRATION AND SERVICING OF LEASES
Section 4.1 Duties of Administrative Agent . . . . . . . . . . . . . 12
Section 4.2 Collection of Total Monthly
Payments; Extension of Leases . . . . . . . . . . . . . 13
Section 4.3 Realization on Liquidated Leases . . . . . . . . . . . . 15
Section 4.4 Custody of Lease Files; Custodi
Duties . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.5 Maintenance of Record Ownership
Interests in Leased Vehicles . . . . . . . . . . . . . . 17
Section 4.6 Covenants of Administrative Agent . . . . . . . . . . . 18
Section 4.7 Purchase Upon Breach . . . . . . . . . . . . . . . . . . 18
Section 4.8 Comerica and Administrative Agent Fees . . . . . . . . . 20
Section 4.9 Administrative Agent's Certificate . . . . . . . . . . . 20
Section 4.10 Annual Statement as to Compliance;
Notice of Default . . . . . . . . . . . . . . . . . . . 21
Section 4.11 Annual Independent Certified Public
Accountant's Report . . . . . . . . . . . . . . . . . . 21
Section 4.12 Access to Certain Documentation and
Information Regarding Leases . . . . . . . . . . . . . . 22
Section 4.13 Administrative Agent Expenses . . . . . . . . . . . . . 22
ARTICLE V
SALE OF LEASED VEHICLES
Section 5.1 Expiration of the Lease; Return of Leased Vehicle . . . 23
Section 5.2 Exercise of Dealer Purchase Option
for Leased Vehicles . . . . . . . . . . . . . . . . . . 24
Section 5.3 Sale of Leased Vehicles If Dealer
Purchase Option Is Not Exercised . . . . . . . . . . . . 24
Section 5.4 Advances of Sale Proceeds . . . . . . . . . . . . . . . 24
Section 5.5 Voluntary Early Terminations and
Liquidated Leases . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI
REMITTANCE OF PAYMENTS
Section 6.1 Allocation of Funds . . . . . . . . . . . . . . . . . . 25
Section 6.2 Distributions . . . . . . . . . . . . . . . . . . . . . 29
Section 6.3 Monthly Payment Advances . . . . . . . . . . . . . . . . 30
Section 6.4 Statements to Holders . . . . . . . . . . . . . . . . . 30
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ARTICLE VII
ADMINISTRATIVE AGENT DEFAULT
Section 7.1 Events of Default; Removal of Administrative Agent . . . 33
Section 7.2 Administrative Agent Not to Resign . . . . . . . . . . . 37
Section 7.3 Appointment of Successor . . . . . . . . . . . . . . . . 37
Section 7.4 Repayment of Advances . . . . . . . . . . . . . . . . . 39
Section 7.5 Notification to Holders . . . . . . . . . . . . . . . . 39
Section 7.6 Waiver by Beneficiary of Past
Defaults . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.2 No Legal Title to FCTT Assets . . . . . . . . . . . . . 40
Section 8.3 Limitations on Rights of Others . . . . . . . . . . . . 41
Section 8.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.5 Severability . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.7 Successors and Assigns . . . . . . . . . . . . . . . . . 43
Section 8.8 No Recourse . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.9 No Petition . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.11 Governing Law . . . . . . . . . . . . . . . . . . . . . 44
EXHIBITS
A Form of Lease
B Form of Vehicle Purchase Certificate
C Form of Administrative Agent's Certificate
Schedule I Location of Lease Files
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ADMINISTRATIVE AGENCY AGREEMENT, dated and effective as of
January 31, 1994 among (i) COMERICA BANK, a Michigan banking corporation, not
in its individual capacity but as trustee of Ford Credit Titling Trust (in such
capacity, together with any successor or permitted assign, "Comerica"), (ii)
FORD MOTOR CREDIT COMPANY, a Delaware corporation ("Ford Credit"), as
Administrative Agent (in its capacity as such, the "Administrative Agent") and
as an initial Beneficiary of Ford Credit Titling Trust, and (iii) FORD CREDIT
LEASING COMPANY, INC., a Delaware corporation ("Ford Credit Leasing") as an
initial Beneficiary of Ford Credit Titling Trust. This Administrative Agency
Agreement and any Supplement executed in connection with the issuance of any
Series of Specified Beneficial Certificates are separately and consecutively
paginated, and to the extent there is any conflict between the terms of this
Administrative Agency Agreement and the Supplement, the Supplement shall be
controlling.
WHEREAS, Ford Credit, Ford Credit Leasing and Comerica,
pursuant to the FCTT Agreement, have created Ford Credit Titling Trust ("FCTT")
for the purpose of holding title to and rights under Leases and Leased Vehicles
and other FCTT Assets;
WHEREAS, Ford Credit and Ford Credit Leasing, as Holders of
the Exchangeable Beneficial Certificates, intend from time to time to cause the
issuance of one or more Series of Specified Beneficial Certificates in exchange
for a reduction in the interest in FCTT evidenced by the Exchangeable
Beneficial Certificates;
WHEREAS, the parties desire to enter into this Agreement to
provide for, among other things, the administration and servicing of the FCTT
Assets by the Administrative Agent for the benefit of the Beneficiaries of
FCTT; and
WHEREAS, the parties acknowledge that, in connection with the
issuance of any Series, it may be necessary or desirable to enter into a
Supplement hereto, providing for further specific servicing obligations by the
Administrative Agent with respect to the related Series Specified Assets.
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NOW, THEREFORE, the Administrative Agent, Comerica, Ford
Credit and Ford Credit Leasing hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Unless a capitalized term is used
with respect to a particular Series and is otherwise defined in the related
Supplement, the capitalized terms used in this Administrative Agency Agreement
shall have the respective meanings assigned to them in Appendix I, attached
hereto. All references herein to "this Agreement" are to this Administrative
Agency Agreement, including any Supplement issued in connection with the
issuance of any Series, as the same may from time to time be amended,
supplemented or otherwise modified and in effect, and all references herein to
Articles, Sections and subsections are to Articles, Sections and subsections of
this Agreement unless otherwise specified.
ARTICLE II
THE ADMINISTRATIVE AGENT; DESIGNATION OF SERIES
Section 2.1 Representations of the Administrative Agent.
The Administrative Agent makes the following representations on which the
initial Beneficiaries and Comerica rely in connection with the appointment of
the Administrative Agent. The representations speak as of the date of this
Agreement and as of each Series Issue Date and shall survive the transfer or
sale of any Certificate:
(a) Organization and Good Standing. The
Administrative Agent has been duly organized and shall be validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with power and authority to own its properties
and to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all
relevant times, and shall have, power, authority, and legal right to
service the Leases and Leased Vehicles and to hold the Lease Files as
custodian on behalf of Comerica.
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(b) Due Qualification. The Administrative Agent is
duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the
conduct of its business (including the servicing of the Leases as
required by this Agreement) shall require such qualifications.
(c) Power and Authority. The Administrative Agent
has the power and authority to execute and deliver this Agreement and
to carry out its terms; and the execution, delivery, and performance
of this Agreement has been duly authorized by the Administrative Agent
by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes
a legal, valid, and binding obligation of the Administrative Agent
enforceable in accordance with its terms.
(e) No Violation. The consummation of the
transactions contemplated by this Agreement and the fulfillment of the
terms hereof does 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 articles of incorporation or
by-laws of the Administrative Agent, or any indenture, agreement, or
other instrument to which the Administrative Agent is a party or by
which it shall be 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 this Agreement);
nor violate any law or, to the best of the Administrative Agent's
knowledge, any order, rule, or regulation applicable to the
Administrative Agent of any court or of any federal or state
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Administrative Agent or
its properties.
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(f) No Proceedings. There are no proceedings or
investigations pending, or, to the best of the Administrative Agent's
knowledge, threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Administrative Agent or its properties: (i)
asserting the invalidity of this Agreement, the FCTT Agreement or the
Certificates, (ii) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement and the FCTT Agreement, (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
the Administrative Agent of its obligations under, or the validity or
enforceability of, this Agreement, the FCTT Agreement or the
Certificates, or (iv) relating to the Administrative Agent and which
might adversely affect the federal income tax attributes of the
Certificates.
Section 2.2 Indemnities of the Administrative Agent. The
Administrative Agent shall be liable in accordance herewith only to the extent
of the obligations specifically undertaken by the Administrative Agent under
this Agreement.
(a) The Administrative Agent shall defend,
indemnify, and hold harmless Comerica, FCTT, and the Beneficiaries
from and against any and all costs, expenses, losses, damages, claims,
and liabilities, arising out of or resulting from the use or operation
by the Administrative Agent or any Affiliate thereof or any Dealer of
a Leased Vehicle.
(b) The Administrative Agent shall indemnify,
defend, and hold harmless Comerica, FCTT and the Beneficiaries from
and against any and all taxes that may at any time be asserted against
Comerica, FCTT or the Beneficiaries with respect to the transactions
contemplated herein, including any sales, use, gross receipts, general
corporation, tangible personal property, privilege, or license taxes
(but not including any income taxes, taxes on or mea-
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sured by income, or taxes in the nature of an income tax on the
Beneficiaries or Comerica or any state or local taxes assessed on the
Beneficiaries resulting from the location of assets of FCTT or the
presence of the Administrative Agent) and costs and expenses in
defending against the same.
(c) The Administrative Agent shall indemnify,
defend, and hold harmless Comerica, FCTT, and the Beneficiaries from
and against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed upon Comerica, FCTT,
or the Beneficiaries (i) through the negligence, willful misfeasance,
or bad faith of the Administrative Agent in the performance of its
duties under this Agreement, (ii) by reason of reckless disregard of
its obligations and duties under this Agreement or (iii) by reason of
any violation or alleged violation of any federal, state or local law
or regulation by the Administrative Agent.
For purposes of this Section 2.2, in the event of the
termination of the rights and obligations of Ford Credit (or any successor
thereto pursuant to Section 2.3) as Administrative Agent pursuant to Section
7.1, or a resignation by such Administrative Agent pursuant to Section 7.2,
such Administrative Agent shall be deemed to be the Administrative Agent
pending appointment of a successor Administrative Agent (other than Comerica)
pursuant to Section 7.3.
Indemnification under this Section 2.2 by Ford Credit (or any
successor thereto pursuant to Section 2.3) as Administrative Agent, with
respect to the period such Person was (or was deemed to be) the Administrative
Agent, shall survive the termination of such Person as Administrative Agent or
a resignation by such Person as Administrative Agent as well as the termination
of this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Administrative Agent shall have made any
indemnity payments pursuant to this Section 2.2 and the recipient thereafter
collects any of such amounts from others, the recipient
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shall promptly repay such amounts to the Administrative Agent, without
interest.
Section 2.3 Merger or Consolidation of, or Assumption of
the Obligations of, Administrative Agent. Any Person (a) into which the
Administrative Agent may be merged or consolidated, (b) resulting from any
merger, conversion, or consolidation to which the Administrative Agent shall be
a party or (c) succeeding to the business of the Administrative Agent, which
Person in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Administrative Agent under this Agreement, will
be the successor to the Administrative Agent under this Agreement without the
execution or filing of any additional paper or the taking of any further act on
the part of any of the parties to this Agreement; provided, however, that the
Administrative Agent shall have delivered to Comerica an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 2.3 and
that all conditions precedent provided for in this Agreement relating to such
transaction have been complied with. The Administrative Agent shall provide
notice of any merger, consolidation or succession pursuant to this Section 2.3
to each Beneficiary and each rating agency then providing a rating for any
securities based on a Specified Beneficial Certificate. Notwithstanding
anything herein to the contrary, the execution of the foregoing agreement of
assumption and delivery of the Officer's Certificate and Opinion of Counsel
referred to above shall be conditions to the consummation of the transactions
referred to in clauses (a), (b), or (c) above.
Section 2.4 Limitation on Liability of Administrative
Agent and Others. Neither the Administrative Agent nor any of the directors or
officers or employees or agents of the Administrative Agent shall be under any
liability to FCTT or the Beneficiaries (except as provided under this
Agreement) or to Comerica (except as provided under this Agreement or otherwise
in writing by the Administrative Agent) for the taking of any action or for
refraining from the taking of any action pursuant to this Agreement or for
errors in judgment; provided, however, that this Section 2.4 shall not protect
the Administrative Agent or any such person against any liability that would
otherwise be imposed by reason of
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willful misfeasance or bad faith in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement, or by reason
of negligence in the performance of its duties under this Agreement (except for
errors in judgment). The Administrative Agent and any director, officer or
employee or agent of the Administrative Agent may rely in good faith on any
Opinion of Counsel or on any Officer's Certificate or certificate of auditors
or accountants believed to be genuine and to have been signed by the proper
party in respect of any matters arising under this Agreement.
Except as provided in this Agreement, the Administrative Agent
shall not be under any obligation to appear in, prosecute, or defend any legal
action that shall not be incidental to its duties to service the Leases and
Leased Vehicles in accordance with this Agreement, and that in its opinion may
involve it in any expense or liability; provided, however, that the
Administrative Agent may undertake any reasonable action that it may, in good
faith, deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties to this Agreement and the interests of the
Beneficiaries under this Agreement. The Administrative Agent shall be entitled
to reimbursement from the Holders of the Exchangeable Beneficial Certificates
for the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs, and liabilities of the Holders of the
Exchangeable Beneficial Certificates.
Section 2.5 Delegation of Duties. So long as Ford Credit
acts as Administrative Agent, the Administrative Agent may at any time without
notice or consent delegate substantially all its duties under this Agreement to
any corporation more than 50% of the voting stock of which is owned, directly
or indirectly, by Ford Motor Company. The Administrative Agent shall provide
prompt written notice of such action to each Rating Agency then rating any
securities based on any Series. The Administrative Agent may at any time
perform specific duties in connection with the servicing of Leases and the
disposition of Leased Vehicles under this Agreement through sub-contractors;
provided that the Administrative Agent shall at all times retain full
responsibility for the duties performed by such sub-contractors.
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Section 2.6 Notification of Third Party Claims. The
Administrative Agent shall immediately notify Comerica, upon learning of a
claim by a third party with respect to any Lease, Leased Vehicle or other FCTT
Asset of any kind which might have a material adverse effect on the
Administrative Agent, Comerica, FCTT or any Holder of a Series Specified
Certificate.
Section 2.7 Maintenance and Assignment of Blanket
Insurance Policies. The Administrative Agent shall at all times maintain on
behalf of Comerica and FCTT, Insurance Policies (which may be blanket policies
covering the Administrative Agent and all Affiliates thereof) with respect to
the Leases, the Leased Vehicles and the Lessees, of at least the type and in at
least the same amount as is customary for a lessor of vehicles and is
consistent with the insurance the Administrative Agent has maintained and
maintains from time to time for its own portfolio of retail automotive leases
and related leased vehicles. The Administrative Agent hereby assigns to
Comerica on behalf of FCTT its rights to proceeds under each such Insurance
Policy maintained by it or any of its Affiliates, and further agrees to provide
insurance directly to Comerica and FCTT in at least the amount and of the type
equivalent to the self-insurance provided by the Administrative Agent from time
to time for its own portfolio of retail automotive leases and related leased
vehicles. The Administrative Agent will provide notice of any change in the
amount or type of insurance provided by self-insurance or Insurance Policy to
any Rating Agency then rating any securities based on any Series.
Section 2.8 Designation of Series. (a) From time to
time the Administrative Agent, acting at the direction of the Holders of the
Exchangeable Beneficial Certificates, may deliver to Comerica a Series
Specification Notice in accordance with Section 4.3 of the FCTT Agreement.
Effective as of the Series Cut-Off Date specified in such Series Specification
Notice, a Supplement to this Administrative Agency Agreement relating to the
Series Specified Assets designated in such Series Specification Notice shall be
entered into among Comerica, Ford Credit and Ford Credit Leasing. Such
Supplement, together with this Administrative Agency Agreement, shall provide
for the administration and servicing of the related Series Specified Assets;
provided, that to the extent any of the terms and provisions of
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this Administrative Agency Agreement and such Supplement conflict, the terms
and provisions of the Supplement shall be controlling.
(b) In connection with the transfer from time to time of any
Series of Specified Beneficial Certificates, the Holders thereof may assign
their respective rights under this Administrative Agency Agreement, including
the Supplement relating to such Series, to such transferees, and such
transferees shall be entitled to the benefits of such Supplement, including the
representations and warranties of the Administrative Agent set forth therein.
ARTICLE III
PURCHASE OF LEASES AND LEASED VEHICLES
Section 3.1 Origination by Dealers; Role of
Administrative Agent. The Administrative Agent shall maintain its relationship
with Dealers in its individual capacity in the ordinary course of its business.
In its capacity as Administrative Agent, the Administrative Agent shall, on
behalf of FCTT, purchase Leases and Leased Vehicles from Dealers on an ongoing
basis during the term of this Agreement in accordance with Section 3.4. The
Administrative Agent shall direct each Dealer to originate Leases on a form
substantially similar to the form attached as Exhibit A, which, in the case of
Vehicles to be acquired by FCTT, shall provide for assignment of such Lease by
the Dealer to FCTT in the manner set forth in Section 3.2.
Section 3.2 Administration and Titling of Leased
Vehicles. The Administrative Agent shall cause the Certificate of Title for
each Leased Vehicle to be issued in the name "Ford Credit Titling Trust," "Ford
Credit Titling Trust, Comerica Bank, Trustee" or such substantially similar
words as the relevant governmental department or agency shall accept, with the
address of the applicable local office of Ford Credit as the address of the
recorded owner of such Leased Vehicle. The Administrative Agent shall also pay
all sales, use, gross receipts, general corporation, tangible personal
property, intangible, franchise, privilege or license taxes to the respective
tax authorities from Use and Lease Tax Amounts collected from Lessees or
otherwise.
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Section 3.3 Vehicle Purchase Account. Comerica shall
establish and maintain an account in the name of "Ford Credit Titling Trust,
Comerica Bank, Trustee" (the "Vehicle Purchase Account") at an Eligible
Institution, bearing an additional designation clearly indicating that the
funds deposited therein are held by Comerica for the benefit of the Holders of
the Exchangeable Beneficial Certificates. Except as otherwise provided herein,
the Vehicle Purchase Account shall be under the sole dominion and control of
Comerica. The Administrative Agent shall make deposits to, and withdrawals
from, the Vehicle Purchase Account in accordance with the terms of this
Agreement or as directed in writing by the Holders of the Exchangeable
Beneficial Certificates. Any funds on deposit in the Vehicle Purchase Account
may be invested at the direction of the Holders of the Exchangeable Beneficial
Certificates pending application as provided herein. Earnings or interest on
such amounts shall be paid to the Administrative Agent.
Section 3.4 Purchase of Leases and Leased Vehicles; Lease
Purchase Advances. (a) Upon entering into a Lease with a Lessee, a Dealer
shall assign such Lease, the Leased Vehicle and rights to any Security Deposit
or Reconditioning Reserve to FCTT against payment of the related Balance
Subject to Lease Charges. The Administrative Agent, acting on behalf of FCTT
and the Holders of the Exchangeable Beneficial Certificates and subject to
Section 6.2(a), shall withdraw the related Balance Subject to Lease Charges
with respect to such Lease and Leased Vehicle from amounts on deposit in the
Vehicle Purchase Account. In addition to payments to Dealers with respect to
the assignment of Leases and Leased Vehicles to FCTT, the Administrative Agent
shall make all required payments to the relevant state and local tax
authorities with respect to the sale and lease of Leased Vehicles to the
related Lessees.
(b) If on any day funds available for withdrawal from the
Vehicle Purchase Account are insufficient to make all the payments to Dealers
set forth in Section 3.4(a) with respect to new Leases and Leased Vehicles to
be assigned to FCTT on such day, the Administrative Agent, in its sole
discretion, may advance to Dealers on behalf of FCTT an amount equal to such
shortfall (each such payment, a "Lease Purchase Advance"). The Administrative
Agent shall be entitled to reimbursement (with-
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out interest) for outstanding Lease Purchase Advances from amounts on deposit
in the Vehicle Purchase Account, and is hereby authorized and directed to
withdraw such reimbursement amounts as required. The Administrative Agent
shall cease making Lease Purchase Advances if Ford Credit and Ford Credit
Leasing have ceased contributing assets to FCTT pursuant to Section 4.1(c) of
the FCTT Agreement.
(c) Ford Credit and Ford Credit Leasing, as Holders of
the Exchangeable Beneficial Certificates, agree to deposit or cause to be
deposited in the Vehicle Purchase Account (i) from time to time capital
contributions in such amounts as will be sufficient to permit the
Administrative Agent to withdraw funds from the Vehicle Purchase Account to
make timely payments to the respective Dealers for Leases and Leased Vehicles
(including the related Security Deposits and Reconditioning Reserves) to be
assigned by such Dealers to FCTT pursuant to this Section 3.4 and (ii) on each
Distribution Date an amount sufficient to reimburse the Administrative Agent
for the amount of Lease Purchase Advances made by the Administrative Agent in
the Related Collection Period, as shown in the Lease Purchase Certificate;
provided, that Ford Credit and Ford Credit Leasing shall deposit or cause to be
deposited funds into the Vehicle Purchase Account in such proportions as will
maintain their respective interests in the Non-Specified Assets of FCTT at 98%
and 2%, respectively.
For so long as Ford Credit is the Administrative Agent and a
Holder of an Exchangeable Beneficial Certificate, Ford Credit (in both
capacities) may make the remittances required by this Section 3.4(c) net of
amounts to be reimbursed to Ford Credit as Administrative Agent for Lease
Purchase Advances or paid to Ford Credit as the Non-Specified Asset
Administrative Fee. Nonetheless, the Administrative Agent shall account for
all of the above described remittances and payments as if the amounts were
deposited or paid separately.
Section 3.5 Vehicle Purchase Certificate. On or before
the tenth day of each calendar month, the Administrative Agent shall deliver to
Comerica and the Holders of the Exchangeable Beneficial Certificates a
certificate (a "Vehicle Purchase Certificate") in substantially the form of
Exhibit B identifying or listing
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(a) the Vehicle Identification Numbers for all Leased Vehicles as of the end of
the preceding Collection Period; (b) the aggregate Book Value of Leases and
Leased Vehicles purchased by FCTT in the preceding Collection Period; (c) the
aggregate Lease Purchase Advances outstanding as of the beginning and end of
the preceding Collection Period; (d) the aggregate amount withdrawn from the
Vehicle Purchase Account to purchase Leases and Leased Vehicles in the
preceding Collection Period; (e) the balance in the Vehicle Purchase Account as
of the beginning and end of the preceding Collection Period; (f) the amount of
capital contributions made to FCTT during the preceding Collection Period by
Ford Credit; (g) the amount of capital contributions made to FCTT during the
preceding Collection Period by Ford Credit Leasing; and (h) if the amount of
capital contributions made by Ford Credit Leasing in such Collection Period is
not equal to 2% of the aggregate capital contributions made in such Collection
Period by Ford Credit and Ford Credit Leasing, the amount to be paid by Ford
Credit Leasing to Ford Credit (or by Ford Credit to Ford Credit Leasing) to
maintain their respective interests in the Exchangeable Beneficial Certificates
and the Non-Specified Assets as 98% Ford Credit and 2% Ford Credit Leasing.
ARTICLE IV
ADMINISTRATION AND SERVICING OF LEASES
This Article IV shall apply with respect to the Exchangeable
Beneficial Certificates and all Non-Specified Assets and, unless and to the
extent otherwise provided in the related Supplement, to each Series of
Specified Beneficial Certificates and the related Series Specified Assets.
Section 4.1 Duties of Administrative Agent. The
Administrative Agent shall manage, service, administer, and make collections on
the Leases with reasonable care, following its customary standards, policies,
and procedures and using that degree of skill and attention that the
Administrative Agent exercises with respect to all comparable retail automotive
leases and retail installment sales contracts that it services for itself or
others ("Accepted Servicing Practices"). The Administrative Agent's duties
shall include, without limitation, collection and posting of all payments,
responding to
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inquiries of Lessees on such Leases, investigating delinquencies, sending
payment coupons to Lessees, accounting for collections, furnishing monthly and
annual statements to Comerica with respect to distributions, the making of
Lease Purchase Advances, Sale Proceeds Advances and Monthly Payment Advances,
and the provision of Administrative Purchase Amounts. Without limiting the
generality of the foregoing, the Administrative Agent is authorized and
empowered by Comerica to execute and deliver, on behalf of itself, FCTT, the
Beneficiaries, or Comerica or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other comparable instruments, with respect to such Leases or to the related
Leased Vehicles. If the Administrative Agent shall commence a legal proceeding
to enforce a Lease against a Lessee, Comerica shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection, such Lease to the
Administrative Agent. If in any enforcement suit or legal proceeding it shall
be held that the Administrative Agent may not enforce a Lease on the ground
that it shall not be a real party in interest or a Holder entitled to enforce
the Lease, Comerica shall, at the Administrative Agent's expense and direction,
take steps to enforce the Lease, including bringing suit in its name or the
name of the applicable Beneficiaries. Comerica shall furnish the
Administrative Agent with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Administrative Agent to carry out its
servicing and administrative duties hereunder. The Administrative Agent, at
its expense, shall obtain on behalf of FCTT all licenses, if any, required by
the laws of any jurisdiction to be held by FCTT in connection with ownership of
the Leases, and shall make all filings and pay all fees (subject to
reimbursement by the Holders of the Exchangeable Beneficial Certificates by
payment of the Non-Specified Asset Administrative Fee) as may be required in
connection therewith during the term hereof.
Section 4.2 Collection of Total Monthly Payments;
Extension of Leases. (a) In accordance with Accepted Servicing Practices, the
Administrative Agent shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Leases as and when the same
shall become due. Subject to Section 4.2(b), the Administrative Agent may
grant extensions, rebates, or adjustments on a Lease provided that
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any such extension, rebate or adjustment is in accordance with Accepted
Servicing Practices. The Administrative Agent may in its discretion waive any
late payment charge or any other fees that may be collected in the ordinary
course of servicing a Lease.
(b) The Administrative Agent may extend the term of any Specified
Lease. Such extension with respect to a Specified Lease may be either a Term
Extension or a Payment Extension, as defined below.
(i) The Administrative Agent may extend the term of a
Specified Lease (a "Term Extension") if the Lessee requests such
extension and is not in default on any of its obligations under the
Lease at the time of such request and agrees to continue to make Total
Monthly Payments in the same amount as the Total Monthly Payment
required under the original Lease terms. For purposes of Section 4.7,
the granting of a Term Extension with respect to any Specified Lease
shall be deemed to have a material and adverse effect on the interest
of the Holders of the related Specified Beneficial Certificates in
such Specified Leases and Specified Leased Vehicles.
(ii) The Administrative Agent may extend the term of a
Specified Lease (a "Payment Extension") in accordance with Accepted
Servicing Practices, by waiving the Total Monthly Payment due in any
month and extending the term of the Lease for an additional month
beyond the Scheduled Lease End Date for each month for which the Total
Monthly Payment is waived. No Specified Lease shall be granted
Payment Extensions in excess of, in the aggregate, three months beyond
the Scheduled Lease End Date. In connection with any Payment
Extension, the Administrative Agent may not increase the limit on the
aggregate mileage which a Leased Vehicle may be driven without
incurring a charge for Excess Wear and Tear and Excess Mileage. For
purposes of Section 4.7, the granting of Payment Extension in excess
of, in the aggregate, three months with respect to any Specified Lease
shall be deemed to have a material and adverse effect on the interest
of the Holders of the related Specified Beneficial Certificates in
such Specified Leases and Specified Leased Vehicles.
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Section 4.3 Realization on Liquidated Leases. In
accordance with Accepted Servicing Practices, the Administrative Agent shall
use reasonable efforts to repossess or otherwise convert the possession of any
Leased Vehicle as to which the Administrative Agent shall have determined that
eventual payment in full of the Lease is unlikely, to realize upon any recourse
rights against the Dealer who originated such Lease, and to sell such Leased
Vehicle at auction or otherwise. The foregoing shall be subject to the
provision that, in any case in which the related Leased Vehicle shall have
suffered damage, the Administrative Agent shall not incur expenses in
connection with the repair or the repossession of such Leased Vehicle unless it
shall determine in its discretion that such repair and/or repossession will
increase the Liquidation Proceeds by an amount greater than the amount of such
expenses.
Section 4.4 Custody of Lease Files; Custodial Duties.
(a) To assure uniform quality in servicing the Leases and to reduce
administrative costs, Comerica, upon the execution and delivery of this
Agreement, hereby revocably appoints the Administrative Agent, and the
Administrative Agent hereby accepts such appointment, to act as the agent of
Comerica as custodian of the Lease Files, which are hereby constructively
delivered to Comerica with respect to each Lease.
(b) On the Series Issue Date, the Administrative Agent shall
provide an Officer's Certificate to Comerica confirming that the Administrative
Agent has received on behalf of Comerica all the documents and instruments
necessary for the Administrative Agent to act as the agent of Comerica for the
purposes set forth in this Section 4.4, including the documents referred to
herein, and Comerica is hereby authorized to rely on such Officer's
Certificate.
(c) The Administrative Agent shall hold the Lease Files on
behalf of Comerica for the use and benefit of all present and future
Beneficiaries with an interest therein, and maintain such accurate and complete
accounts, records, and computer systems pertaining to each Lease File as shall
enable Comerica to comply with this Agreement and the FCTT Agreement. In
accordance with Accepted Servicing Practices, the Administrative Agent shall
perform its duties as custodian of the Lease Files
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and shall conduct, or cause to be conducted, periodic audits of the Lease Files
held by it under this Agreement, and of the related accounts, records, and
computer systems, in such a manner as shall enable Comerica to verify the
accuracy of the Administrative Agent's record keeping. The Administrative
Agent shall promptly report to Comerica any failure on its part to hold the
Lease Files and maintain its accounts, records, and computer systems as herein
provided and promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or any periodic
review by Comerica of the Lease Files.
(d) The Administrative Agent shall maintain each Lease File
relating to any Specified Lease or Specified Leased Vehicle at one of its
offices specified in Schedule I to this Agreement, or at such other office as
shall be specified to Comerica by written notice not later than 90 days after
any change in location. In lieu of providing notice of any change in the
location of the offices holding Lease Files, the Administrative Agent may
provide Comerica with an updated list of the locations of its offices no less
frequently than every 90 days. The Administrative Agent may sub-contract with
third parties to perform the duties of custodian of the Lease Files, in which
case the name and address of the principal place of business of such third
party, and the location of the offices of such third party where Lease Files
are maintained shall be specified in Schedule I or in any list provided to
Comerica pursuant to this Section 4.4(d). The Administrative Agent shall make
available to Comerica or its duly authorized representatives, attorneys, or
auditors, and with respect to any Series Specified Assets, to the Holders of
the related Specified Beneficial Certificates, a list of locations of the Lease
Files, the Lease Files, and the related accounts, records, and computer systems
maintained by the Administrative Agent or any third party under sub-contract
with the Administrative Agent at such times as Comerica or, with respect to the
Specified Assets, the Holders of the Specified Beneficial Certificates or with
respect to the Non-Specified Assets, Holders of the Exchangeable Beneficial
Certificates, shall instruct.
(e) All instructions from Comerica shall be in writing and
signed by a Responsible Officer, and the Administrative Agent shall be deemed
to have received
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proper instructions with respect to the Lease Files upon its receipt of such
written instructions.
(f) The Administrative Agent as custodian shall indemnify
Comerica and the Beneficiaries for any and all liabilities, obligations,
losses, compensatory damages, payments, costs, or expenses of any kind
whatsoever that may be imposed on, incurred, or asserted against Comerica as
the result of any improper act or omission in any way relating to the
maintenance and custody by the Administrative Agent as custodian of the Lease
Files; provided, however, that the Administrative Agent shall not be liable for
any portion of any such amount resulting from the willful misfeasance, bad
faith, or negligence of Comerica.
(g) The Administrative Agent's appointment as custodian shall
become effective as of the date hereof and shall continue in full force and
effect until terminated pursuant to this Section 4.4. If Ford Credit shall
resign as Administrative Agent in accordance with the provisions of this
Agreement or if all of the rights and obligations of Ford Credit as the
Administrative Agent under this Article or this Agreement shall have been
terminated under Section 7.1, the appointment of the Administrative Agent as
custodian with respect to all Lease Files shall be terminated by Comerica
acting at the direction of the Holders of the Exchangeable Beneficial
Certificates. If the rights and obligations of Ford Credit as the
Administrative Agent shall have been terminated with respect to a Series under
Section 7.1, the appointment of the Administrative Agent as custodian with
respect to the Lease Files of the related Series Specified Assets, shall be
terminated by Comerica at the direction of the Holders of the Specified
Beneficial Certificates which effected such removal. As soon as practicable
after any termination of such appointment, the Administrative Agent shall
deliver the Lease Files and the related accounts and records maintained by the
Administrative Agent to Comerica (or such other successor Administrative Agent
as may be appointed) or Comerica's (or such other successor Administrative
Agent) agent at such place or places as Comerica (or such other successor
Administrative Agent) may reasonably designate.
Section 4.5 Maintenance of Record Ownership Interests in
Leased Vehicles. (a) In accordance with
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Accepted Servicing Practices, the Administrative Agent shall take such steps as
are necessary to maintain evidence of the ownership interest of FCTT in each
Leased Vehicle on its Certificate of Title. Comerica hereby authorizes the
Administrative Agent to take such steps as are necessary to record such
ownership interest on behalf of FCTT in the event of the relocation of a Leased
Vehicle or for any other reason, subject to Section 4.5(b).
(b) If a Leased Vehicle is relocated to a jurisdiction in
which FCTT is not qualified or authorized to maintain evidence of the ownership
interest of FCTT in such Leased Vehicle, the beneficial interest of FCTT in
such Leased Vehicle and the related Lease shall be purchased by the
Administrative Agent, acting on behalf of the Holders of the Exchangeable
Beneficial Certificates. In connection with such relocation of a Leased
Vehicle, the Administrative Agent shall (i) deposit the Administrative Purchase
Amount relating to such Leased Vehicle in the Vehicle Purchase Account, if such
relocated Leased Vehicle is a Non-Specified Asset, or in the related Series
Collection Account, if such relocated Leased Vehicle is a Series Specified
Asset, (ii) cause the Certificate of Title of such relocated Leased Vehicle to
be reissued in such form as is determined by the Administrative Agent and (iii)
change its records, and instruct Comerica to change its records, to reflect the
change in ownership and title of such relocated Leased Vehicle. The Holders of
the Exchangeable Beneficial Certificates shall promptly reimburse the
Administrative Agent (in proportion to their respective interests of 98% and 2%
in FCTT and the FCTT Assets represented by the Exchangeable Beneficial
Certificates) for any amounts deposited in the Vehicle Purchase Account or any
Series Collection Account pursuant to this Section 4.5(b).
Section 4.6 Covenants of Administrative Agent. The
Administrative Agent shall not (a) impair the rights of FCTT or the
Beneficiaries in the Leases or the Leased Vehicles, (b) change the Retail
Operating Lease Factor with respect to any Lease, or (c) modify the number or
amount of Monthly Payments due under a Lease except as permitted by Section
4.2.
Section 4.7 Purchase Upon Breach. The Administrative
Agent or Comerica shall inform the other party promptly, in writing, upon the
discovery of any
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breach of the covenants of the Administrative Agent set forth in Section 4.2,
4.5(a) or 4.6 with respect to any Specified Lease and Specified Leased Vehicle.
If such breach materially adversely affects the interests of the Holders of the
related Series Specified Beneficial Certificates, as determined by the Holders
of such Specified Beneficial Certificates in their sole discretion, in such
Specified Lease and Specified Leased Vehicle, unless the breach shall have been
cured by the last day of the first following Collection Period or at such other
date specified in the related Supplement), the Administrative Agent shall
purchase, on behalf of the Holders of the Exchangeable Beneficial Certificates,
the beneficial interest in such Specified Lease and Specified Leased Vehicle by
depositing in the related Series Collection Account on the Distribution Date
relating to the second Collection Period following discovery of such breach (or
such other date as is specified in the related Supplement), for the benefit of
the Holders of the related Specified Beneficial Certificates, the
Administrative Purchase Amount with respect to the beneficial interest in such
Specified Lease and Specified Leased Vehicle. By depositing the Administrative
Purchase Amount in connection with the purchase of the beneficial interest in
any Specified Lease and Specified Leased Vehicle, the Administrative Agent
shall be deemed to have waived its right to reimbursement for any outstanding
Monthly Payment Advances or Sale Proceeds Advances from Monthly Payments or
Sale Proceeds received with respect to such Specified Lease and Leased Vehicle
so purchased. As of the date of such purchase, such Lease and Leased Vehicle
shall cease to be "Series Specified Assets" and shall become "Non-Specified
Assets" and from such date the related Specified Beneficial Certificates shall
no longer represent a beneficial interest in such Lease and Leased Vehicle but
shall instead represent an interest in the related Administrative Purchase
Amount. The sole remedy of Comerica, FCTT, or the Beneficiaries with respect
to a breach pursuant to Section 4.2, 4.5(a) or 4.6 shall be to require the
Administrative Agent, on behalf of the Holders of the Exchangeable Beneficial
Certificates, to purchase the beneficial interest in such Specified Lease and
Specified Leased Vehicle pursuant to this Section 4.7 and the related
Supplement. As of the date of such purchase, the Leases and Leased Vehicles
purchased pursuant to this Section 4.7 shall become Non-Specified Assets. On
the Distribution Date following any Collection Period with
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respect to which the Administrative Agent deposited any Administrative Purchase
Amounts pursuant to this Section 4.7, Ford Credit and Ford Credit Leasing shall
reimburse the Administrative Agent in an amount equal to 98% and 2%,
respectively, of the sum of (x) such Administrative Purchase Amount and (y) any
outstanding Monthly Payment Advances and Sale Proceeds Advances as of the date
of the purchase of a beneficial interest in any Specified Lease or Specified
Leased Vehicles pursuant to this Section 4.7.
Section 4.8 Comerica and Administrative Agent Fees.
(a) The Administrative Agent shall be entitled to all interest and
investment earnings paid on the amounts deposited in the FCTT Collection
Account, any Series Collection Account unless otherwise specified in the
related Supplement, and any Series Payahead Account unless otherwise specified
in the related Supplement during each Collection Period. On each date on which
funds are distributed pursuant to Section 6.2 or the terms of the related
Supplement, the Administrative Agent shall withdraw and retain such interest
and investment earnings. The Administrative Agent shall also be entitled to
all Supplemental Administrative Fees collected during such Collection Period.
(b) The Specified Asset Administrative Fee with respect to each
Series shall be paid in accordance with the terms of the related Supplement.
The Specified Asset Comerica Fee shall be paid by the Administrative Agent to
Comerica on each Distribution Date or as otherwise agreed upon by Comerica and
the Administrative Agent. The Non-Specified Asset Comerica Fee shall be paid
in accordance with Section 5.2(b) of the FCTT Agreement.
Section 4.9 Administrative Agent's Certificate. On or
before the tenth day of each calendar month, the Administrative Agent shall
deliver to Comerica a certificate (the "Administrative Agent's Certificate"), a
form of which is attached as Exhibit C, containing all information necessary to
make the distributions pursuant to Section 6.2 and all information necessary
for Comerica to send statements to Holders pursuant to Section 6.4. In
addition, the Administrative Agent's Certificate shall set forth any
contributions made by Ford Credit and Ford
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Credit Leasing during the Related Collection Period and the interests in FCTT
of each of Ford Credit and Ford Credit Leasing as of the end of the Related
Collection Period.
Section 4.10 Annual Statement as to Compliance; Notice of
Default. (a) The Administrative Agent shall deliver to Comerica and each
Beneficiary on or before April 30th of each year an Officer's Certificate,
dated as of December 31 of the preceding calendar year, stating that (i) a
review of the activities of the Administrative Agent during the preceding
calendar year (or such shorter period from the effective date of this
Agreement) and of its performance under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based
on such review, the Administrative Agent has fulfilled all its obligations
under this Agreement throughout such period, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
(b) The Administrative Agent shall deliver to
Comerica promptly after having obtained knowledge thereof, but in no event
later than five Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 7.1(b).
Section 4.11 Annual Independent Certified Public
Accountant's Report. At any time when a Series is outstanding, the
Administrative Agent shall cause a firm of independent certified public
accountants, who may also render other services to the Administrative Agent or
to Ford Motor Company or any Affiliate of either of them, to deliver to
Comerica, each Beneficiary and each of the rating agencies then rating
securities based on a Specified Beneficial Certificate, on or before April 30
of each year beginning April 30, 1996 with respect to the prior calendar year a
report addressed to the Board of Directors of the Administrative Agent,
Comerica and the Beneficiaries, to the effect that such firm has audited the
financial statements of the Administrative Agent and issued its report thereon
and that such audit (i) was made in accordance with generally accepted auditing
standards, (ii) included tests relating to retail auto-
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motive leases serviced for others in accordance with the requirements of the
Uniform Single Audit Program for Mortgage Bankers (the "Program"), to the
extent the procedures in such Program are applicable to the servicing
obligations set forth in this Agreement, and (iii) except as described in the
report, disclosed no exceptions or errors in the records relating to retail
automotive leases serviced that, in the firm's opinion, paragraph four of such
Program requires such firm to report.
The accountant's report will also indicate that the firm is
independent of the Administrative Agent within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
Section 4.12 Access to Certain Documentation and
Information Regarding Leases. The Administrative Agent shall provide to
Comerica and to the Beneficiaries access to the Lease Files relating to a
Non-Specified Asset or Series Specified Asset at the request of the applicable
Beneficiary. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Administrative Agent. Nothing in this Section 4.12 shall affect the obligation
of the Administrative Agent to observe any applicable law prohibiting
disclosure of information regarding the Lessees, and the failure of the
Administrative Agent to provide access to information as a result of such
obligation shall not constitute a breach of this Section 4.12.
Section 4.13 Administrative Agent Expenses. The
Administrative Agent shall be required to pay all expenses incurred by it in
connection with its activities under this Agreement unless otherwise
specifically provided herein, including fees and disbursements of independent
accountants, taxes imposed on the Administrative Agent, expenses incurred in
connection with distributions and reports to Beneficiaries, and expenses
relating to the sale or disposition of any Leased Vehicle after the termination
of the related Lease other than a Liquidated Lease.
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ARTICLE V
SALE OF LEASED VEHICLES
This Article V shall apply with respect to the Exchangeable
Beneficial Certificates and all Non-Specified Assets and, unless otherwise
provided in the related Supplement, to each Series of Specified Beneficial
Certificates and the related Series Specified Assets.
Section 5.1 Expiration of the Lease; Return of Leased
Vehicle. In accordance with its customary policies, practices and procedures,
the Administrative Agent shall contact the applicable Dealer on or before the
Scheduled Lease End Date (or such later Lease Termination Date as may apply if
the Lease has been extended beyond the Scheduled Lease End Date pursuant to
Section 4.2(b)) with respect to each Leased Vehicle. Upon return of the Leased
Vehicle by the Lessee to the Dealer, the Administrative Agent shall cause the
Dealer to inspect the Leased Vehicle for Excess Wear and Tear, Excess Mileage,
and the need for any repairs and shall cause the Dealer to deliver a vehicle
condition report (unless the Dealer is purchasing the Leased Vehicle) to the
Administrative Agent. If the Dealer determines that the Leased Vehicle
requires repairs as a result of Excess Wear and Tear, the Dealer as agent of
the Administrative Agent shall require that the Lessee either pay the estimated
cost of such repairs to the Dealer or, if the Lessee disagrees with the
Dealer's estimate of the cost of such repairs, the Administrative Agent shall
grant a one month Term Extension (at the Total Monthly Payment for such Lease)
to permit the Lessee to have such repairs done at the Lessee's expense. The
beneficial interest in any Specified Lease and Specified Leased Vehicle which
is subject to a Term Extension shall be purchased in accordance with Section
4.7.
In accordance with the terms of the applicable Lease, the
Administrative Agent shall require the Lessee to pay the costs of any Excess
Wear and Tear or Excess Mileage associated with the related Leased Vehicle.
The Administrative Agent shall apply any Security Deposit or Reconditioning
Reserve made by such Lessee to such required payments, as permitted by the
Lease, and return to the Lessee any remaining amounts as required by law.
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Section 5.2 Exercise of Dealer Purchase Option for Leased
Vehicles. If a Dealer advises the Administrative Agent that it wishes to
purchase a Leased Vehicle as of the related Scheduled Lease End Date, the
Administrative Agent, on behalf of FCTT, shall sell the related Leased Vehicle
to such Dealer at the Dealer Purchase Option Price. The Dealer Purchase Option
Price of such Leased Vehicle purchased by such Dealer shall be deposited in the
appropriate account specified in Sections 6.2(a) and (b). Upon receipt of the
Dealer Purchase Option Price with respect to any Leased Vehicle purchased by a
Dealer, the Administrative Agent on behalf of FCTT shall deliver the related
Certif- icate of Title and the related original Lease to such Dealer. The
Administrative Agent shall change its records, and instruct Comerica to change
its records, to reflect the termination of FCTT's ownership interest in the
related Lease and Leased Vehicle.
Section 5.3 Sale of Leased Vehicles If Dealer Purchase
Option Is Not Exercised. If the Dealer does not exercise its purchase option
with respect to a Leased Vehicle within 30 days of the Lease Termination Date,
the Administrative Agent shall take possession of the Leased Vehicle and
prepare such Leased Vehicle for sale at auction. The Auction Proceeds relating
to such Leased Vehicle shall be deposited in the appropriate account specified
in Sections 6.2(a) and (b). Upon deposit of the related Auction Proceeds into
the FCTT Collection Account, or the related Series Collection Account, as the
case may be, the Administrative Agent on behalf of FCTT shall deliver the
related Certificate of Title to the purchaser of such Leased Vehicle. The
Administrative Agent shall change its records, and instruct Comerica to change
its records, to reflect the termination of FCTT's ownership interest in the
related Lease and Leased Vehicle.
Section 5.4 Advances of Sale Proceeds. If, as of a date
of determination specified in the related Supplement, (i) the Scheduled Lease
End Date with respect to a Specified Leased Vehicle has occurred and (ii) the
Sale Proceeds with respect to such Specified Leased Vehicle have not been
deposited into the related Series Collection Account, the Administrative Agent
shall, on the date specified in the related Supplement, advance an amount equal
to the Residual Value (a "Sale Proceeds Ad-
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▇▇▇▇▇") of such Specified Leased Vehicle by deposit to such Series Collection
Account; provided, however, that the Administrative Agent will be obligated to
make a Sale Proceeds Advance only to the extent that the Administrative Agent,
in its sole discretion, shall determine that such Sale Proceeds Advance shall
be recoverable from Sale Proceeds with respect to such Leased Vehicle. The
Administrative Agent shall be reimbursed for any outstanding Sale Proceeds
Advances in the manner specified in the related Supplement.
Section 5.5 Voluntary Early Terminations; Liquidated Leases.
Upon deposit of Voluntary Early Termination Proceeds and Liquidation Proceeds
in the appropriate accounts specified in Sections 6.2(a) and (b), the
Administrative Agent shall deliver the related Certificates of Title to the
purchaser of the related Leased Vehicles, and the Exchangeable Beneficial
Certificates or Series Specified Beneficial Certificates, as the case may be,
shall represent a beneficial interest in such Voluntary Early Termination
Proceeds or Liquidation Proceeds, as the case may be, and shall no longer
represent an interest in the related Lease or Leased Vehicle. The
Administrative Agent shall change its records, and instruct Comerica to change
its records, to reflect the termination of FCTT's ownership interest in the
related Lease and Leased Vehicle.
ARTICLE VI
REMITTANCE OF PAYMENTS
This Article VI shall apply with respect to the Exchangeable
Beneficial Certificates and all Non-Specified Assets and, unless (and to the
extent) otherwise provided in the related Supplement, to each Series of
Specified Beneficial Certificates and the related Series Specified Assets.
Section 6.1 Allocation of Funds. (a) On any Business Day
during a Collection Period on which Total Monthly Payments are received from a
Lessee (including application in such Collection Period of any Security Deposit
or Reconditioning Reserve and excluding amounts required to be allocated
pursuant to Sections 6.1(b) and (c)), the Administrative Agent shall allocate
and apply such funds in the following order of priority:
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(i) as a credit against any overdue related Monthly
Payments and any Use and Lease Tax Amounts related to such Monthly
Payments; provided, that to the extent such funds are not sufficient
to pay both such amounts in full, such funds shall be applied in the
order in which such overdue Monthly Payments and Use and Lease Tax
Amounts payable in connection therewith were due from the Lessee
(i.e., beginning with the most delinquent Monthly Payment); and to the
extent that the funds so applied to any Monthly Payment and the
related Use and Lease Tax Amounts are insufficient to pay both such
amounts, such funds shall be allocated pro rata between the applicable
Monthly Payment and the related Use and Lease Tax Amount;
(ii) as a credit against the related Monthly Payment due
for such Collection Period and to the Administrative Agent, acting on
behalf of the appropriate tax authorities, as a credit against the Use
and Lease Tax Amount (if any) related to such Monthly Payment, provided
that to the extent that such funds are not sufficient to pay both such
amounts in full, such funds shall be credited pro rata to each such
amount;
(iii) to the Administrative Agent, acting on behalf of the
related Dealer, as a credit against the related Vehicle Insurance and
Maintenance Amount (if any) due with respect to such Leased Vehicle
for such Collection Period; and
(iv) to the Administrative Agent, acting on behalf of the
related Dealer, as a credit against any shortfall in the related
Vehicle Insurance and Maintenance Amounts previously due but unpaid in
any preceding Collection Period.
Amounts remaining after application of clauses (i) through
(iv) above shall be divided by the amount of the related Total Monthly Payment.
Each resulting whole Total Monthly Payment shall be applied (without priority)
(x) as a credit against the related Use and Lease Tax Amount, which amount
shall be paid to the Administrative Agent, acting on behalf of the appropriate
tax authorities, to be used by the Administrative Agent to pay any use or lease
taxes (if any) due with respect to the
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related Monthly Payment, (y) to the Administrative Agent, acting on behalf of
the related Dealer, as a credit against the related Vehicle Insurance and
Maintenance Amount, and (z) as an advance of a Monthly Payment with respect to
such Lease (such advance, a "Payahead") which shall be credited to the Payahead
Balance with respect to such Lease. Any resulting fractional Total Monthly
Payment shall be applied in accordance with the priorities set forth in clauses
(ii) and (iii) above; provided, that the amounts to be credited against the
related Monthly Payment shall instead be treated as a Payahead and a credit to
the Payahead Balance with respect to such Lease.
If on any Distribution Date any portion of a Monthly Payment
due on a Lease during the Related Collection Period has not been paid by the
Lessee, an amount equal to the lesser of the Payahead Balance outstanding on
such Distribution Date with respect to such Lease and the amount of shortfall
with respect to such Monthly Payment shall be applied in accordance with
clauses (ii) and (iii) above, and the Payahead Balance shall be reduced by the
amount so applied. Subject to Section 6.2(c), and unless otherwise specified
in the related Supplement Payaheads with respect to any Specified Lease shall
be deposited on each Business Day in an account established pursuant to the
terms of the related Supplement (each such account established pursuant to the
terms of the related Supplement, a "Series Payahead Account"). Amounts on
deposit in any Series Payahead Account shall be invested in Permitted
Investments which mature no later than the next succeeding Distribution Date.
Amounts applied from the Payahead Balance with respect to any Specified Lease
shall be deposited in the related Series Collection Account.
(b) On any Business Day during a Collection Period on which Sale
Proceeds, Voluntary Early Termination Proceeds or Recoveries with respect to a
Lease other than a Liquidated Lease are received with respect to a Leased
Vehicle (including application of any Security Deposit or Reconditioning
Reserve and any amounts collected from the related Lessee with respect to
Excess Mileage and Excess Wear and Tear charges), the Administrative Agent
shall allocate and apply such funds in the following order of priority:
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(i) as a credit against any sales, use and lease taxes due in
connection with the amounts received from the Lessee, including
amounts applied from any Security Deposit or Reconditioning Reserve;
(ii) as a credit against the Book Value of such Leased
Vehicle until such Book Value has been reduced to zero;
(iii) as a credit against any charges levied against the
Lessee for Excess Wear and Tear and Excess Mileage (but only to the
extent collected from the related Lessee); and
(iv) in the manner set forth in Sections 6.1(a)(i) through
(iv) until an amount equal to the Total Monthly Payment due with
respect to such Collection Period has been credited.
(c) On any Business Day during a Collection Period on which
Liquidation Proceeds (including application of any Security Deposit or
Reconditioning Reserve) or Recoveries with respect to a Liquidated Lease are
received, the Administrative Agent shall allocate and apply such funds in the
following order of priority:
(i) as a credit against any sales, use and lease taxes due in
connection with the amounts received from the Lessee, including
amounts applied from any Security Deposit or Reconditioning Reserve;
(ii) as a credit against the Book Value of such Leased
Vehicle until such Book Value has been reduced to zero;
(iii) in the manner set forth in Sections 6.1(a)(i) through
(iv) until an amount equal to any overdue Total Monthly Payment due
with respect to such Collection Period has been credited.
(d) Any amounts credited to overdue Monthly Payments on a Lease
pursuant to Section 6.1(a)(i) shall be retained by the Administrative Agent to
the extent any outstanding Monthly Payment Advances with respect to such Lease
made by the Administrative Agent have not been reimbursed, in accordance with
Section 6.3. Any amounts credited with respect to Use and Lease Tax Amounts or
any
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other sales, use and lease taxes due in connection with a payment received from
a Lessee shall be paid to the Administrative Agent, acting on behalf of the
appropriate tax authorities, to be used to pay to the applicable state tax
authorities the use or lease taxes due in connection with the related Lease and
Leased Vehicle, in accordance with Section 3.2.
Section 6.2 Distributions. (a) In accordance with
clause third of Section 5.2(b) of the FCTT Agreement, on each Distribution Date
the Administrative Agent shall deposit Collections (net of the payments
specified in clauses first and second of Section 5.2(b) of the FCTT Agreement)
with respect to Non-Specified Assets received during the Related Collection
Period in the Vehicle Purchase Account; provided, that the Holders of the
Exchangeable Beneficial Certificates may (i) direct that the Administrative
Agent make such deposits on a more frequent basis or (ii) in accordance with
clause third of Section 5.2(b) of the FCTT Agreement, direct the Administrative
Agent to pay to each Holder of an Exchangeable Beneficial Certificate such
Holder's proportional interest in such Collections. No funds may be withdrawn
from the Vehicle Purchase Account unless the balance is equal to or greater
than $100,000. Funds in excess of $100,000 on deposit in the Vehicle Purchase
Account may be withdrawn by the Administrative Agent from time to time in
connection with the acquisition of Leases and Leased Vehicles, or reimbursement
for such acquisition, in accordance with Section 3.4 or for distribution to the
Holders of the Exchangeable Beneficial Certificates in accordance with their
respective beneficial interests in FCTT.
(b) Subject to Section 6.2(c) and in accordance with
Section 5.2(c) of the FCTT Agreement, on each Business Day the Administrative
Agent shall deposit Collections with respect to any Series Specified Assets in
the related Series Collection Account for distribution in accordance with the
terms of the related Supplement. Such deposits of Collections shall be made
net of (i) any Use and Lease Tax Amounts credited pursuant to Sections
6.1(a)(i) and (ii) any other amounts due in connection with sales, use and
lease taxes credited pursuant to Sections 6.1(b)(i) and 6.1(c)(i).
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(c) Notwithstanding the provisions of Sections 6.1(a) and
6.2(b), for so long as each Monthly Remittance Condition is satisfied with
respect to a Series, amounts to be deposited in a Series Collection Account
pursuant to Section 6.2(b) or in the Series Payahead Account pursuant to
Section 6.1(a) need not be remitted to and deposited in the related Series
Collection Account or the related Series Payahead Account on a daily basis but
instead may be held by the Administrative Agent and remitted to the Series
Collection Account or the related Series Payahead Account on a less frequent
basis, as specified in the related Supplement. At any time that any Monthly
Remittance Condition is not satisfied with respect to a Series, the
Administrative Agent shall make the deposits specified in Sections 6.1(a) and
6.2(b) in the Series Collection Account and the Series Payahead Account, as
applicable.
Section 6.3 Monthly Payment Advances. If, as of a date of
determination set forth in the related Supplement, insufficient funds are
available to pay the amounts set forth in Section 6.1(a)(ii) with respect to a
Specified Lease (after application of the related Payahead Balance pursuant to
Section 6.1(a)), the Administrative Agent shall advance (a "Monthly Payment
Advance") on the date specified in the related Supplement an amount equal to
the portion of the Monthly Payment due in such period. Each Monthly Payment
Advance shall be deposited by the Administrative Agent in the related Series
Collection Account on the date specified in the related Supplement; provided,
however, that the Administrative Agent will be obligated to make a Monthly
Payment Advance in respect of a Specified Lease only to the extent that the
Administrative Agent, in its sole discretion, shall determine that such Monthly
Payment Advance shall be recoverable from subsequent Collections with respect
to such Specified Lease and provided, further, that no Monthly Payment Advance
shall be made with respect to any Specified Lease which is a Liquidated Lease.
The Administrative Agent shall be reimbursed for any outstanding Monthly
Payment Advances made with respect to any Series in the manner specified in the
related Supplement.
Section 6.4 Statements to Holders. (a) Unless otherwise
directed by the Holders of the Exchangeable Beneficial Certificates, on each
Distribution Date,
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Comerica shall deliver to each Holder of an Exchangeable Beneficial
Certificate, a statement relying on information in the Administrative Agent's
Certificate, setting forth for the Related Collection Period the following
information:
(i) the aggregate Monthly Payments received by the
Administrative Agent with respect to Non-Specified Assets;
(ii) the aggregate Book Value of the Non-Specified
Assets as of the beginning and the end of such Related Collection
Period;
(iii) the amount of the Non-Specified Asset
Administrative Fee required to be paid to the Administrative Agent and
the Non-Specified Asset Comerica Fee paid to Comerica;
(iv) the Non-Specified Asset Charged-Off Amount;
(v) the aggregate Sales Proceeds, Voluntary Early
Termination Proceeds and Liquidation Proceeds received by the
Administrative Agent with respect to Non-Specified Assets;
(vi) the balance of the Vehicle Purchase Account as
of the beginning and end of such Related Collection Period; and
(vii) the net outstanding Lease Purchase Advances
as of the beginning and end of such Related Collection Period.
(b) On each Distribution Date Comerica shall deliver to each
Holder of a Specified Beneficial Certificate of a Series and each Rating Agency
which is then rating any securities based on such Specified Beneficial
Certificate, a statement relying on information in the Administrative Agent's
Certificate, setting forth for the Related Collection Period the following
information:
(i) the aggregate Monthly Payments and the
aggregate Monthly Payments received by the Administrative Agent with
respect to the related Series Specified Assets;
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36
(ii) the aggregate Adjusted Balance Subject to
Lease Charges of the related Specified Leased Vehicles and the portion
thereof constituting the aggregate Residual Values of such Specified
Leased Vehicles, in each case as of the beginning and end of such
Related Collection Period;
(iii) the amount of the related Specified Asset
Administrative Fee payable to the Administrative Agent;
(iv) the related Specified Asset Charged-Off
Amount;
(v) the aggregate Administrative Purchase Amounts
paid pursuant to Sections 4.5(b) and 4.7 and the terms of the related
Supplement, with respect to beneficial interests in related Specified
Leases and Specified Leased Vehicles;
(vi) the aggregate Sales Proceeds, Voluntary Early
Termination Proceeds, Liquidation Proceeds and Recoveries received by
the Administrative Agent with respect to related Series Specified
Assets (separately stated);
(vii) the aggregate Payahead Balance and the
aggregate amount of Payaheads held by the Administrative Agent as of
the beginning and end of the Related Collection Period with respect to
the related Series Specified Assets;
(viii) the outstanding Sale Proceeds Advances as of
the beginning and end of the Related Collection Period and the
aggregate Residual Values of those Specified Leased Vehicles with
respect to which the related Specified Leases have expired but have
not been sold as of the beginning and end of the Related Collection
Period; and
(ix) the outstanding Monthly Payment Advances and
the outstanding amount of Monthly Payments which were due but not
collected from the related Lessees, in each case as of the beginning
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and end of the Related Collection Period with respect to the related
Series Specified Assets.
Comerica shall not deliver to any Holder of a Specified
Beneficial Certificate of any Series information or certificates relating to
the Exchangeable Beneficial Certificates, the Non-Specified Assets or any
unrelated Series Specified Assets.
ARTICLE VII
ADMINISTRATIVE AGENT DEFAULT
Section 7.1 Events of Default; Removal of Administrative
Agent. (a) If any one of the following events ("Events of Default") shall
occur and be continuing:
(i) any failure by the Administrative Agent to
deliver to Comerica for distribution to Beneficiaries or to distribute
directly to Beneficiaries any proceeds or payment required to be so
delivered under the terms of this Agreement that shall continue
unremedied for a period of three Business Days after written notice of
such failure is received by the Administrative Agent from Comerica or
after discovery of such failure by an officer of the Administrative
Agent, provided, however, that any such failure with respect to any
Series shall be an Event of Default only with respect to such Series,
and no such failure with respect to any Series shall be an Event of
Default with respect to any other Series;
(ii) any failure on the part of the Administrative
Agent duly to observe or to perform in any material respect any other
covenants or agreements of the Administrative Agent set forth in this
Agreement or any Supplement, which failure shall (i) materially
adversely affect the rights of the applicable Beneficiaries and (ii)
continue unremedied for a period of 30 days after discovery of such
failure by the Administrative Agent or the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given (1) to the Administrative Agent by Comerica, or (2) to the
Administrative Agent and to Comerica
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by any applicable Beneficiary, provided, however, that (x) any such
failure with respect to any Series shall be an Event of Default only
with respect to such Series and no such failure with respect to any
Series shall be an Event of Default with respect to any other Series
and (y) the determination of material adverse affect with respect to
any Series shall be determined by reference to the Beneficiaries of
such Series;
(iii) any representation, warranty, report or
certification made by the Administrative Agent in this Agreement, any
Supplement or in any report or certificate delivered pursuant to this
Agreement or any Supplement shall prove to have been incorrect when
made, which has a material adverse effect on any Beneficiary and which
material adverse effect continues for a period of 30 days after
discovery of such failure by the Administrative Agent or the date on
which written notice thereof requiring the same to be reme- died,
shall have been given (x) to the Administrative Agent by Comerica or
(y) to the Administrative Agent and Comerica by any Beneficiary
provided, however, that (1) any such incorrect representation,
warranty, report or certification made with respect to any Series
shall be an Event of Default only with respect to such Series and no
such incorrect representation, warranty, report or certification made
with respect to any Series shall be an Event of Default with respect
to any other Series and (2) the determination of a material adverse
effect with respect to any Series shall be determined by reference to
the Beneficiaries of such Series;
(iv) the entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the premises
for the appointment of a conservator, receiver, or liquidator for the
Administrative Agent in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings, or for
the winding up or liquidation of its respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
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(v) the consent by the Administrative Agent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the
Administrative Agent or substantially all of its property; or the
Administrative Agent shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations;
then, and in each and every case, so long as an Event of Default shall not have
been remedied, (x) Comerica (if so directed by 100% of the Beneficiaries
excluding any Beneficiary which is the Administrative Agent or which is an
Affiliate of the Administrative Agent) by notice then given in writing to the
Administrative Agent (with a copy to each Rating Agency then rating any
securities based on any Series) may terminate all of the rights and obligations
of the Administrative Agent under this Agreement or (y) to the extent the Event
of Default relates to a specific Series, Comerica (if directed by 100% of the
Beneficiaries of such Series) by notice given in writing to the Administrative
Agent (with a copy to each Rating Agency then rating any securities based on
any Series affected by such Event of Default) may terminate all of the rights
and obligations of the Administrative Agent under the Administrative Agency
Agreement and the related Supplement to the extent such rights and obligations
relate to such Series. On or after the receipt by the Administrative Agent of
such written notice, all authority and power of the Administrative Agent under
this Agreement whether with respect to the Leases, Leased Vehicles or
otherwise, or all authority and power of the Administrative Agent under the
Administrative Agency Agreement and the related Supplement to the extent such
authority and power relates to the related Specified Assets or related
Specified Beneficial Certificates, shall, without further action, pass to and
be vested in Comerica or such successor Administrative Agent as may be
appointed under Section 7.3; and, without limitation, Comerica is hereby
authorized and empowered to execute and deliver, on behalf of the predecessor
Administrative Agent, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish
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all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, whether to complete the transfer and endorsement of
the Leases (or related Specified Leases, as applicable) and related documents,
or otherwise.
(b) The Holders of any Series of Specified Beneficial
Certificates may at any time, for any reason, with respect to the servicing of
the related Series Specified Assets only, remove the Administrative Agent and
appoint a substitute Administrative Agent with respect to the duties and
obligations of the Administrative Agent set forth in Articles IV, V and VI;
provided, however, that any such removal of the Administrative Agent with
respect to such duties and obligations shall be effective only with respect to
the related Series Specified Assets, and shall have no effect with respect to
the Exchangeable Beneficial Certificates, the Non-Specified Assets or any other
Series of Specified Beneficial Certificates or Series Specified Assets. The
Administrative Agent shall provide written notice of any removal pursuant to
this Section 7.1(b) to each Rating Agency then rating Securities based on any
Series. The Holders of such Series of Specified Beneficial Certificates shall
appoint any successor to the Administrative Agent with respect to such Articles
IV, V and VI, and until such appointment, the predecessor Administrative Agent
shall continue with respect to such Articles IV, V and VI to perform its duties
and obligations under this Agreement.
(c) The Holders of the Exchangeable Beneficial Certificates
may at any time, for any reason, with respect to the servicing of the related
Non-Specified Assets only, remove the Administrative Agent and appoint a
substitute Administrative Agent with respect to the duties and obligations of
the Administrative Agent set forth in Articles IV, V and VI; provided, however,
(i) that it shall be a condition precedent to such removal that the
Administrative Agent confirm in writing its continued obligation pursuant to
this Agreement to serve as Administrative Agent with respect to each Series
then outstanding and (ii) that any such removal of the Administrative Agent
with respect to such duties and obligations shall be effective only with
respect to the Non-Specified Assets, and shall have no effect with respect to
any Series then outstanding. The Holders of the
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Exchangeable Beneficial Certificates shall appoint any successor to the
Administrative Agent with respect to such Articles IV, V and VI, and until such
appointment, the predecessor Administrative Agent shall continue with respect
to such Articles IV, V and VI to perform its duties and obligations under this
Agreement.
(d) In connection with any termination of the Administrative
Agent by Comerica pursuant to Sections 7.1(a), (b) or (c), the predecessor
Administrative Agent shall cooperate with the successor Administrative Agent
and Comerica in effecting the termination of the responsibilities and rights of
the predecessor Administrative Agent under this Agreement, including the
transfer to the successor Administrative Agent for administration by it of all
cash amounts, or the cash amounts relating to any Series or the Non-Specified
Assets, as applicable, that shall at the time be held by the predecessor
Administrative Agent for deposit, or shall thereafter be received with respect
to FCTT Assets, any related Series Specified Assets or the Non-Specified
Assets, as applicable, and the delivery of the Lease Files or the related Lease
Files, as applicable, and the related accounts and records maintained by the
Administrative Agent. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring such Lease Files to the
successor Administrative Agent and amending this Agreement to reflect such
successor as Administrative Agent pursuant to this Section 7.1 shall be paid by
the predecessor Administrative Agent upon presentation of reasonable
documentation of such costs and expenses.
Section 7.2 Administrative Agent Not to Resign. The
Administrative Agent shall not resign from its obligations and duties under
this Agreement except upon a determination that the performance of its duties
is no longer permissible under applicable law. Any such determination
permitting the resignation of the Administrative Agent shall be evidenced by an
Opinion of Counsel to such effect delivered to Comerica and each Beneficiary.
No such resignation shall become effective until Comerica or a successor
Administrative Agent shall have assumed the responsibilities and obligations of
the Administrative Agent in accordance with Section 7.3.
Section 7.3 Appointment of Successor. (a) Upon the
Administrative Agent's receipt of notice of
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termination pursuant to Section 7.1 or the Administrative Agent's resignation
in accordance with Section 7.2, the predecessor Administrative Agent shall
continue to perform its functions as Administrative Agent under this Agreement,
in the case of termination, only until the date specified in such termination
notice or, if no such date is specified in such termination notice, until
receipt of such notice and, in the case of resignation, until the later of (i)
the date 45 days from the delivery to Comerica of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (ii) the date upon which the predecessor
Administrative Agent shall become unable to act as Administrative Agent, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of the Administrative Agent's resignation or termination hereunder as
Administrative Agent with respect to all FCTT Assets, Comerica, acting at the
direction of all of the Beneficiaries, or with respect to a termination of the
Administrative Agent with respect to a specific Series, at the direction of the
Beneficiaries of the related Series, shall appoint a successor Administrative
Agent, and the successor Administrative Agent shall accept its appointment by a
written assumption in form acceptable to Comerica. Such successor
Administrative Agent shall be approved by Comerica, such approval not to be
unreasonably withheld. In the event that a successor Administrative Agent has
not been appointed at the time when the predecessor Administrative Agent has
ceased to act as Administrative Agent in accordance with this Section 7.3,
Comerica without further action shall automatically be appointed the successor
Administrative Agent. Notwithstanding the above, Comerica shall, if it shall
be legally unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, any established institution, having a net worth of not
less than $100,000,000 and whose regular business shall include the servicing
of retail automotive leases and selling vehicles at the termination of leases,
as the successor Administrative Agent under this Agreement.
(b) Upon appointment, the successor
Administrative Agent shall be the successor in all respects to the prede-
cessor Administrative Agent and shall be subject to all the responsibilities,
duties, and liabilities arising thereafter relating thereto placed on the
predecessor Administrative Agent, and shall be enti-
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tled to the Non-Specified Asset Administrative Fee, the Specified Asset
Administrative Fee with respect to any Series and all of the rights granted to
the predecessor Administrative Agent, by the terms and provisions of this
Agreement; provided, however, that no successor Administrative Agent shall have
any responsibilities with respect to making Monthly Payment Advances, Sales
Proceeds Advances or the purchase of additional Leases and Leased Vehicles by
FCTT and Article III shall be inapplicable from the date of appointment of such
successor.
(c) In connection with such appointment, Comerica
may make such arrangements for the compensation of such successor
Administrative Agent out of payments on Leases and Leased Vehicles as it and
such successor Administrative Agent shall agree; provided, however, that no
such compensation shall be in excess of that permitted the predecessor
Administrative Agent under this Agreement unless the Holders of the
Exchangeable Beneficial Certificates bear such costs exclusively. Comerica and
such successor Administrative Agent shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
Section 7.4 Repayment of Advances. Any predecessor
Administrative Agent shall be entitled to reimbursement for any outstanding
Lease Purchase Advances, Sale Proceeds Advances and outstanding Monthly Payment
Advances pursuant to Sections 3.4, 5.4 and 6.3, to the extent of funds
available therefor in accordance with this Agreement with respect to all Lease
Purchase Advances, Sale Proceeds Advances and Monthly Payment Advances made by
the predecessor Administrative Agent.
Section 7.5 Notification to Holders. Upon any termination
of, or appointment of a successor to, the Administrative Agent pursuant to this
Article VII Comerica shall give prompt written notice thereof to the affected
Beneficiaries of FCTT at their respective addresses appearing in the FCTT
Register, and to each rating agency then rating any securities which are based
on Specified Beneficial Certificates affected by such termination or
appointment of a successor Administrative Agent.
Section 7.6 Waiver by Beneficiary of Past Defaults. A
Beneficiary may, with respect to its Certif-
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icate and no other Certificate, waive any default by the Administrative Agent
in the performance of its obligations hereunder and its consequences, except a
default in making any required deposits to or payments from any accounts in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist with respect to such Certificate, and any Event of
Default arising therefrom shall be deemed to have been remedied with respect to
such Certificate for every purpose of this Agreement. The Administrative Agent
shall provide prompt written notice to each Rating Agency then rating any
securities based on any Series of any waiver of a past default of the
Administrative Agent. Such waiver shall not have any effect on any Beneficiary
which has not waived such default, and such waiver shall not extend to any
subsequent or other default or impair any right consequent thereon.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments. This Agreement may be amended by the
parties hereto at any time; provided, however, that such action shall not, (x)
as evidenced by an Opinion of Counsel, materially adversely affect the
interests of any Holder of an outstanding Specified Beneficial Certificate
(unless each such Holder has consented thereto), (y) as confirmed by each
Rating Agency which is then rating securities based on such Specified
Beneficial Certificates, cause the then current rating assigned to such
securities to be withdrawn or reduced, or (z) as evidenced by an Opinion of
Counsel, cause FCTT to be classified as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes.
Notwithstanding the foregoing, this Agreement may be amended
(with a copy of such amendment being delivered to each Rating Agency then
rating any securities based on any Series) at any time by Ford Credit and Ford
Credit Leasing to the extent reasonably necessary to assure that none of FCTT
or any Holder of a Specified Beneficial Certificate will be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes.
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Section 8.2 No Legal Title to FCTT Assets. The
Administrative Agent shall not have legal title to any FCTT Assets. Legal
title to the FCTT Assets shall remain with FCTT and Comerica. The
Beneficiaries shall be entitled to receive distributions with respect to their
ownership interest therein only in accordance with this Agreement and the FCTT
Agreement; provided, that if the Holders of any Series or the Holders of
Exchangeable Beneficial Certificates direct Comerica to deliver certain FCTT
Assets to such Holders pursuant to Section 4.3(d) or (e) of the FCTT Agreement,
the Administrative Agent shall assist Comerica in identifying and delivering
the applicable FCTT Assets.
Section 8.3 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Administrative Agent,
Comerica, and each Beneficiary and (with respect to Comerica and Holders of any
Specified Beneficial Certificates only) their respective successors and
permitted assigns, 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 FCTT or the FCTT Assets or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 8.4 Notices. All demands, notices and communications
upon or to the Administrative Agent, Ford Credit, Ford Credit Leasing and any
other Beneficiary, and Comerica shall be in writing, and shall be personally
delivered, sent by electronic facsimile or overnight delivery service or mailed
by certified mail-return receipt requested, and shall be deemed to have been
duly given to the intended recipient upon receipt at the respective addresses
listed below, or at such other address as shall be designated by such Person in
a written notice to the other parties to this Agreement.
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(i) In the case of the Administrative Agent:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(ii) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(iii) In the case of Ford Credit:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(iv) In the case of Comerica:
Comerica Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Any notice to be delivered to any Beneficiary which is a
permitted assignee hereunder of either initial Beneficiary, shall be delivered
at the address provided to Comerica by such Person.
Section 8.5 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms
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shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 8.6 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 one and the same instrument.
Section 8.7 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Administrative Agent, Comerica and each Beneficiary and (with respect to
Comerica and Holders of any Specified Beneficial Certificates only) their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by a
Beneficiary shall bind the successors and assigns of such Beneficiary.
Section 8.8 No Recourse. Each Beneficiary by accepting a
Certificate acknowledges that such Beneficiary's Certificate or Certificates
represent a beneficial interest in FCTT only and do not represent interests in
or obligations of the Administrative Agent, any Grantor, Comerica 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 this Agreement,
the FCTT Agreement or the Certificates.
Section 8.9 No Petition. The Administrative Agent shall have
no authority or power to commence a voluntary proceeding in bankruptcy relating
to FCTT without the unanimous prior approval of all Beneficiaries and the
delivery to the Administrative Agent by each such Beneficiary of a certificate
certifying that such Beneficiary reasonably believes that FCTT is insolvent.
The Administrative Agent and each Beneficiary hereunder each hereby covenants
that for a period of one year and one day after payment in full of all
distributions to all Beneficiaries pursuant to the terms of this Agreement, it
will not institute against, or join any Person in instituting against, Ford
Credit Leasing or FCTT any bankruptcy, reorganization, insolvency or
liquidation proceeding,
43
48
or other similar proceeding, under the laws of the United States or any state
thereof without the consent of 100% of the Holders of Specified Beneficial
Certificates (excluding Ford Credit Leasing, RCL, or any of their Affiliates).
Section 8.10 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 8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
44
49
IN WITNESS WHEREOF, the parties hereto have caused this
Administrative Agency Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above written.
COMERICA BANK,
as trustee of Ford Credit Titling
Trust
By: \s\ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FORD MOTOR CREDIT COMPANY,
as Administrative Agent and
as a Grantor and Beneficiary
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
FORD CREDIT LEASING COMPANY, INC.,
as a Grantor and Beneficiary
By: \s\ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
50
EXHIBIT A
[FORM OF LEASE]
A-1
51
EXHIBIT B
[FORM OF VEHICLE PURCHASE CERTIFICATE]
VEHICLE PURCHASE CERTIFICATE
Ford Motor Credit Company ("Ford Credit"), as Administrative
Agent pursuant to an agreement (the "Administrative Agency Agreement"), dated
as of ______ __, 1995 among Comerica Bank, as trustee of Ford Credit Titling
Trust ("FCTT"), Ford Credit, as Administrative Agent and as an initial
beneficiary of FCTT, and Ford Credit Leasing Company, Inc., as an initial
beneficiary of FCTT, does hereby provide the information below with respect to
the Collection Period of ______, 199_ (the "Collection Period"). Capitalized
terms used in this Vehicle Purchase Certificate shall have their respective
meanings set forth in the Administrative Agency Agreement. This Vehicle
Purchase Certificate is delivered pursuant to Section 3.5 of the Administrative
Agency Agreement.
(a) A list of the Vehicle Identification Numbers for all Leased
Vehicles as of end of the Collection Period is attached hereto
and forms an integral part hereof.
(b) Aggregate Book Value of Leases and Leased Vehicles
purchased by FCTT in the Collection Period
$
============
(c) Aggregate Lease Purchase Advances outstanding:
Beginning of the Collection Period
$
============
End of the Collection Period
$
============
(d) Aggregate amount withdrawn from the Vehicle Purchase
Account to purchase Leases and Leased Vehicles
in the Collection Period
$
============
(e) Balance in the Vehicle Purchase Account:
Beginning of the Collection Period
$
============
End of the Collection Period
$
============
B-1
52
(f) Amount of capital contributions made to FCTT during the
Collection Period by Ford Credit
$
============
(g) Amount of capital contributions made to FCTT during the
Collection Period by Ford Credit Leasing
$
============
(h) If applicable, the amount to be paid by Ford Credit
Leasing to Ford Credit (or by Ford Credit to
Ford Credit Leasing) to maintain their respective
interests in the Exchangeable Beneficial Certificates
and the Non-Specified Assets as 98% Ford Credit
and 2% Ford Credit Leasing:
Amount to be paid by Ford Credit Leasing to Ford Credit
Amount to be paid by Ford Credit to Ford Credit Leasing
$
============
$
============
B-2
53
IN WITNESS WHEREOF, the undersigned has caused this Vehicle
Purchase Certificate to be duly executed and delivered to Comerica and the
Holders of the Exchangeable Beneficial Certificates by its duly authorized
officer on this __ day of _________, 199_.
FORD MOTOR CREDIT COMPANY,
as Administrative Agent
By:_____________________________________
Name:
Title:
B-3
54
EXHIBIT C
[FORM OF ADMINISTRATIVE AGENT'S CERTIFICATE]
C-1
55
Schedule I
LOCATION OF LEASE FILES
I-1