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EXHIBIT 3.1
[RCL 2000-1 TRUST AGREEMENT]
AMENDED AND RESTATED TRUST AGREEMENT
dated as of [ ], 2000
between
FORD MOTOR CREDIT COMPANY
As Grantor and RCL Beneficiary
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
As RCL Trustee
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.................................................1
ARTICLE II
ORGANIZATION
Section 2.1 Organization and Name.......................................2
Section 2.2 Office......................................................3
Section 2.3 Purposes and Powers.........................................3
Section 2.4 Confirmation of Appointment of Trustee......................3
Section 2.5 RCL Assets..................................................3
Section 2.6 Declaration of Trust........................................4
Section 2.7 Liability and Indemnification...............................4
Section 2.8 Title to Trust Property.....................................5
ARTICLE III
THE RCL BENEFICIARY
Section 3.1 Restrictions on Transfer....................................5
Section 3.2 Execution of Documents......................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Grantor...............6
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of RCL Account................................7
Section 5.2 Application of RCL Assets...................................7
Section 5.3 Accounting and Reports to RCL Beneficiary, the Internal
Revenue Service and Others..................................8
Section 5.4 Signature on Returns; Tax Matters Partner...................8
Section 5.5 Release of Additional Fee Released Amounts..................9
ARTICLE VI
RCL TRUSTEE
Section 6.1 Duties of RCL Trustee.......................................9
Section 6.2 Rights of RCL Trustee......................................10
Section 6.3 Acceptance of Trusts and Duties............................11
Section 6.4 Action upon Instruction by RCL Beneficiary.................12
Section 6.5 Furnishing of Documents....................................13
Section 6.6 Representations and Warranties of RCL Trustee..............13
Section 6.7 Reliance; Advice of Counsel................................14
Section 6.8 RCL Trustee May Own Lease Trust Certificates and
Senior Notes...............................................15
Section 6.9 Compensation...............................................15
Section 6.10 Resignation or Removal of RCL Trustee......................15
Section 6.11 Merger or Consolidation of RCL Trustee.....................17
Section 6.12 Appointment of Co-Trustee or Separate Trustee..............17
Section 6.13 Eligibility Requirements for RCL Trustee...................18
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.............................19
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments.................................................19
ARTICLE IX
TAX MATTERS
Section 9.1 Tax Characterization.......................................20
ARTICLE X
MISCELLANEOUS
Section 10.1 No Legal Title to RCL Assets; Direction of RCL
Trustee Actions............................................20
Section 10.2 Limitations on Rights of Others............................20
Section 10.3 Notices....................................................20
Section 10.4 Severability...............................................21
Section 10.5 Counterparts...............................................21
Section 10.6 Successors and Assigns.....................................21
Section 10.7 No Recourse................................................22
Section 10.8 No Petition................................................22
Section 10.9 Headings...................................................22
Section 10.10 Governing Law..............................................22
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AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as
of [ ], 2000 (as modified, supplemented or amended from time to time, this
"Agreement") between FORD MOTOR CREDIT COMPANY, a Delaware corporation ("Ford
Credit") as Grantor and as RCL Beneficiary and FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association, as RCL Trustee.
WHEREAS, the parties hereto intend to amend and restate, on
the terms and conditions set forth herein, that certain Trust Agreement, dated
as of February 28, 2000, between Ford Credit and the RCL Trustee (the "Original
Agreement"), pursuant to which this trust was created;
WHEREAS, Ford Credit intends to transfer its respective Series
2000- 1 Certificates to RCL pursuant to the terms of the Asset Contribution
Agreement; and
WHEREAS, it is intended that RCL transfer the Series 2000-1
Certificates to the Lease Trust pursuant to the Transfer Agreement and,
immediately thereafter, that an interest in the Series 2000-1 Certificates be
acquired from the Lease Trust pursuant to the terms of the Program Operating
Lease.
NOW THEREFORE, Ford Credit and the RCL Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement
capitalized terms have the meanings assigned to them herein or, if not defined
herein, as defined in Appendix A attached hereto. To the extent that the
definitions set forth herein conflict with the definitions set forth in Appendix
A, or incorporated by reference therein, the definitions set forth herein shall
be controlling. All references herein to "this Agreement" are to this Amended
and Restated Trust Agreement, and all references herein to Articles, Sections
and subsections are to Articles, Sections and subsections of this Agreement
unless otherwise specified.
"Grantor" means Ford Credit in its capacity as grantor of the RCL
Assets to RCL.
"Liabilities" has the meaning set forth in Section 2.7.
"RCL" means the trust created pursuant to and named "RCL Trust 2000-1"
in the Original Agreement.
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"RCL Assets" means (i) cash and any amounts on deposit in or credited
to the RCL Account from time to time, (ii) the interest of RCL from time to time
in the Series 2000-1 Certificates and all proceeds thereof, (iii) the
Subordinated Notes and $[ ] initial principal balance of Lease Trust
Certificates and (iv) the Cash Collateral Account and all amounts deposited
therein.
"RCL Beneficiary" means Ford Credit.
"RCL Trustee" means First Union Trust Company, National Association, in
its capacity as trustee under this Agreement, together with its successors and
any permitted assigns.
"RCL Trustee Office" means the office of the RCL Trustee at which any
particular time its corporate trust business shall be administered, which at the
date hereof is One Rodney Square, 920 King Street, Wilmington, Delaware 19801.
"Responsible Officer" means, when used with respect to the RCL Trustee,
any officer assigned to the corporate trust department who has direct
responsibility for the administration of this Agreement, including any Vice
President, any Assistant Vice President, any Trust Officer or any other officer
of the RCL Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement, as the case may be, and also, with respect to
a particular matter relating to RCL, any other officer of the RCL Trustee to
whom such matter is referred because of such officer's knowledge of and
familiarity with such matter.
"Trust Statute" means 12 Del. Code ss.ss. 3801 et. seq., as amended or
supplemented from time to time.
ARTICLE II
ORGANIZATION
Section 2.1 Organization and Name. The trust governed by this
Agreement shall be known as "RCL Trust 2000-1" in which name the RCL Trustee may
conduct the activities of RCL. It is the intention of the parties hereto that
RCL shall constitute a trust under the Trust Statute and that this Agreement
constitute the governing instrument of such trust.
Section 2.2 Office. The office of RCL shall be in care of RCL
Trustee at the RCL Trustee Office or at such other address as the RCL Trustee
may designate by written notice to the Grantor and the RCL Beneficiary.
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Section 2.3 Purposes and Powers. The purpose of RCL is to
engage solely in the following activities, all in accordance with the terms of
this Agreement:
(a) to pay the organizational, start-up and transactional
expenses of RCL;
(b) to acquire the Series 2000-1 Certificates pursuant to the
Asset Contribution Agreement, transfer the Series 2000-1 Certificates
to the Lease Trust pursuant to the Transfer Agreement and acquire an
interest in the Series 2000-1 Certificates from the Lease Trust
pursuant to the Program Operating Lease;
(c) to execute, deliver and perform its obligations under
agreements, instruments or other documents to which it is to be a
party, including but not limited to the Asset Contribution Agreement,
the Transfer Agreement, the Program Operating Lease, the Lease Trust
Agreement and the Cash Collateral Account Control Agreement;
(d) to hold the Subordinated Notes and a portion of the Lease
Trust Certificates;
(e) to establish the RCL Account and the Cash Collateral
Account; and
(f) to engage in those activities, including making
distributions to the RCL Beneficiary, executing agreements, and
executing and filing documents with regulatory agencies relating to the
issuance of securities by the Lease Trust that are necessary, suitable
or convenient to accomplish the foregoing or are incidental thereto or
connected therewith.
Section 2.4 Confirmation of Appointment of Trustee. The RCL
Beneficiary hereby confirms the appointment of First Union Trust Company,
National Association as trustee of RCL and First Union Trust Company, National
Association hereby confirms its acceptance of such appointment. Effective as of
the date hereof, the RCL Trustee shall have all the rights, powers, authority
and authorization set forth herein and in the Trust Statute with respect to
accomplishing the purposes of RCL.
Section 2.5 RCL Assets. (a) As of the date hereof, Ford Credit
as Grantor hereby sells, assigns, transfers, conveys and sets over to RCL the
sum of $10,000. The RCL Trustee hereby acknowledges receipt in trust from the
Grantor, as
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of the date hereof, of the foregoing contributions, which constitute
the initial RCL Assets. The RCL Trustee shall deposit such contributions in the
RCL Account upon receipt thereof.
(b) On the Closing Date, Ford Credit, as Grantor, shall
contribute and transfer the Series 2000-1 Certificates to RCL pursuant to the
Asset Contribution Agreement, and then RCL shall transfer the Series 2000-1
Certificates to the Lease Trust pursuant to the Transfer Agreement and then,
pursuant to the Program Operating Lease, the Lease Trust shall lease the Series
2000-1 Certificates to RCL.
(c) Certain organizational expenses of RCL have been paid by
the Grantor of RCL. The Grantor shall capitalize RCL with an amount sufficient
to pay administrative expenses of RCL, including expenses of the RCL Trustee
incurred on behalf of RCL, as they may arise.
Section 2.6 Declaration of Trust. The RCL Trustee hereby
declares that it shall hold all of the RCL Assets, including all monies and
proceeds of such RCL Assets, in trust for the benefit of the RCL Beneficiary. It
is the intention of the parties hereto that RCL constitutes a business trust
under the Trust Statute and that this document constitute the governing
instrument of RCL. Effective as of the date hereof, the RCL Trustee shall have
all rights, powers, authority and authorization set forth herein with respect to
accomplishing the purposes of RCL set forth in Section 2.3.
Section 2.7 Liability and Indemnification. The RCL Beneficiary
shall indemnify, defend and hold harmless the RCL Trustee, including its
successors, assigns, officers, directors, shareholders, employees and agents for
all losses, claims, damages, liabilities and expenses (collectively,
"Liabilities"), penalties and taxes (other than income taxes relating to the
fees paid to it hereunder) incurred by it in connection with the administration
of RCL (including attorneys' fees) and the performance of its duties hereunder;
provided, however, that in no event shall the RCL Trustee be indemnified or held
harmless for any Liabilities to the extent (i) incurred by reason of the RCL
Trustee's willful misconduct, bad faith or negligence or (ii) incurred by reason
of the RCL Trustee's breach of its representations and warranties set forth in
Section 6.6. The RCL Trustee shall notify the RCL Beneficiary promptly of any
claim for which the RCL Trustee may seek indemnity. Failure by the RCL Trustee
to so notify the RCL Beneficiary shall not relieve the RCL Beneficiary of its
obligations hereunder. If necessary, to the extent not otherwise reimbursed, the
RCL Trustee shall be entitled to indemnification from amounts on deposit in the
RCL Account for any claims against the RCL Trustee the indemnification for which
is provided pursuant to this Section 2.7. Any claim against the RCL Trustee
shall be defended by the RCL Beneficiary and the RCL Trustee shall
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be entitled to separate counsel, the fees and expenses of which shall be paid by
the RCL Beneficiary. The indemnities contained in this Section 2.7 shall survive
the resignation, removal or termination of the RCL Trustee or the termination of
this Agreement. Any amounts paid to the RCL Trustee pursuant to this Section 2.7
shall be deemed not to be RCL Assets immediately after such payment. The RCL
Trustee acknowledges that funds may be deposited in the RCL Account only as
specifically provided in the Basic Documents, and that certain funds paid to RCL
in respect of the Series 2000-1 Certificates and funds paid to RCL as holder of
the Subordinated Notes and deposited in the Cash Collateral Account have been
pledged to the Lease Trustee on behalf of the Lease Trust and the Indenture
Trustee on behalf of the Senior Noteholders in accordance with the terms of the
Basic Documents.
Section 2.8 Title to Trust Property. Legal title to all the
RCL Assets shall be vested at all times in RCL or, if required by applicable
law, the RCL Trustee or a co-trustee or a separate trustee, as the case may be.
The RCL Trustee or any such co-trustee or separate trustee shall at all times
hold the RCL Assets on behalf of the RCL Beneficiary.
ARTICLE III
THE RCL BENEFICIARY
Section 3.1 Restrictions on Transfer. Ford Credit may not
sell, transfer, assign, hypothecate, pledge or otherwise convey its beneficial
interest in RCL to any Person. There shall be no restriction on the ability of
RCL, acting upon the instruction of the RCL Beneficiary, to transfer, convey,
assign, lease and otherwise enter into agreements with respect to any or all of
the RCL Assets as contemplated by the Basic Documents; provided, however, that
except pursuant to, or as specifically contemplated by, the Basic Documents, RCL
shall not transfer, convey, assign, lease or otherwise enter into agreements
with respect to the RCL Assets.
Section 3.2 Execution of Documents. (a) In connection with the
issuance of securities by the Lease Trust as contemplated in Section 2.3(f), the
RCL Beneficiary may (i) execute and file, on behalf of RCL, any registration
statement to be filed with the Securities Exchange Commission or otherwise, (ii)
prepare, or cause to be prepared, for filing with such registration statement,
balance sheets, income statements and any other financial statements of RCL and
(iii) execute, on behalf of RCL, any underwriting agreement and certificate
purchase agreement in connection with the offering and sale of such securities.
(b) In connection with the issuance of securities by the Lease
Trust as
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contemplated in Section 2.3(f), the RCL Trustee, on behalf of RCL, hereby
authorize Ford Credit to execute and file, for RCL on behalf of the Lease Trust,
any registration statement to be filed with the Securities Exchange Commission
or otherwise and (ii) prepare, or cause to be prepared, for filing with such
registration statement, balance sheets, income statements and any other
financial statements of the Lease Trust.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Grantor.
Ford Credit as Grantor hereunder hereby represents and warrants to the RCL
Trustee that:
(a) it has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted;
(b) it is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications;
(c) it has the full power and authority to execute and deliver
this Agreement, to carry out its terms and to transfer, convey and deposit the
RCL Assets to be deposited with the RCL Trustee as part of RCL and has duly
authorized such acts by all necessary corporate action;
(d) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time or both) a default under, its
certificate of incorporation or by-laws, or any indenture, agreement or other
instrument to which it is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument, or violate any law
or, to the best of its knowledge, any order, rule or regulation applicable to it
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over it or any of its
properties; and
(e) this Agreement has been duly authorized, executed and
delivered by it and constitutes the legal, valid and binding agreement of it,
enforceable in
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accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of RCL Account.
(a) The RCL Trustee, for the benefit of RCL, shall establish
and maintain in the name of the RCL Trustee a trust account known as the RCL
Account (the "RCL Account") in an office of the RCL Trustee, bearing an
additional designation clearly indicating that the funds deposited therein are
held for the benefit of RCL.
(b) RCL shall possess all right, title and interest in and to
all funds on deposit from time to time in the RCL Account and in all proceeds
thereof. The RCL Account shall be under the sole dominion and control of the RCL
Trustee for the benefit of the RCL Beneficiary.
Section 5.2 Application of RCL Assets.
(a) All investment earnings (net of losses and investment
expenses) on amounts deposited in the Series 2000-1 Payahead Account pursuant to
Section 5.2(b) of the Series 2000-1 Supplement and any Transferor Purchase
Option Net Proceeds not required to be deposited into the Cash Collateral
Account pursuant to Section 9.2 of the Program Operating Lease shall, to the
extent actually received by the RCL Trustee, be deposited into the RCL Account.
The RCL Trustee shall not invest any amounts deposited in the RCL Account. The
RCL Trustee shall have no liability for (i) the failure to invest amounts
deposited in the RCL Account, or (ii) for failing to take any action or to
refrain from taking any action for the reasons described in Sections 6.4(b) and
6.4(c).
(b) On each Distribution Date, the RCL Trustee shall withdraw
all amounts on deposit in the RCL Account and apply such amounts in the
following order of priority:
(i) to the RCL Trustee an amount equal to the
sum of (x) the fees payable to the RCL Trustee for its services
hereunder and (y) its reasonable expenses incurred in connection with
the exercise and performance
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of its rights and duties hereunder;
(ii) to pay any other amounts, as reflected in
invoices received prior to such Distribution Date by the RCL Trustee,
then owing by RCL to any Person; and
(iii) at the direction of the RCL Beneficiary,
to the RCL Beneficiary, the amount remaining after giving effect to the
payment of items (i) and (ii).
(c) In connection with each distribution of funds, the RCL
Trustee shall deliver to the RCL Beneficiary a report setting forth the amounts
distributed pursuant to Section 5.2(b).
Section 5.3 Accounting and Reports to RCL Beneficiary, the
Internal Revenue Service and Others. The RCL Trustee shall (i) maintain (or
cause to be maintained) the books of RCL on a calendar year basis on the accrual
method of accounting, (ii) deliver or cause to be delivered to the RCL
Beneficiary such information as may be required by the Code and applicable
Treasury Regulations or otherwise, including such information as may be required
to enable the RCL Beneficiary to prepare its federal income tax returns, (iii)
file or cause to be filed any tax returns prepared by the RCL Beneficiary on
behalf of RCL and make such elections as may from time to time be directed by
the RCL Beneficiary under any applicable state or federal statute or rule or
regulation thereunder in accordance with Section 9.1 and (iv) cause such tax
returns to be signed in the manner required by law.
Section 5.4 Signature on Returns; Tax Matters Partner. The RCL
Trustee shall sign on behalf of RCL any and all tax returns of RCL, unless
applicable law requires the RCL Beneficiary to sign such documents, in which
case such documents shall be signed by Ford Credit. To the extent one may be
required, Ford Credit shall be the "tax matters partner" of RCL pursuant to the
Code.
Section 5.5 Release of Additional Fee Released Amounts.
Pursuant to Section 2.9(b) of the Indenture, on the Business Day preceding each
Payment Date, the Indenture Trustee shall release to the Lease Trustee all of
its right, title and interest in, to and under Series 2000-1 Collections to
which it is otherwise entitled, when, as and if deemed to have been received, in
an amount equal to the Additional Fee Released Amounts for the preceding
Collection Period. Pursuant to Section 3.6(a) of the Program Operating Lease
immediately upon giving effect to any such release by the Indenture Trustee, the
Lease Trustee shall release to RCL all of its right, title and interest in, to
and under such Additional Fee Released Amounts.
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Immediately upon giving effect to such release by the Lease Trustee, RCL shall
irrevocably release to the RCL Beneficiary all of its right, title and interest,
in, to and under such Additional Fee Released Amounts, which release shall be
automatic and shall require no further act by RCL; provided that RCL shall
execute and deliver such instruments of release and assignment, or otherwise
confirm the foregoing release of the Additional Fee Released Amounts, as may
reasonably be requested by the RCL Beneficiary. Upon such release of Additional
Fee Released Amounts, such amounts shall not constitute and shall not be
included in the RCL Assets.
ARTICLE VI
RCL TRUSTEE
Section 6.1 Duties of RCL Trustee. (a) The RCL Trustee shall
perform such duties, and only such duties, as are specifically set forth in this
Agreement, including the conservation of RCL and the RCL Assets in the interest
of the RCL Beneficiary. No implied covenants or obligations shall be read into
this Agreement.
(b) In the absence of bad faith on its part, the RCL Trustee
may conclusively rely upon certificates or opinions furnished to the RCL Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
however, that the RCL Trustee shall have examined such certificates or opinions
so as to determine only whether on their face they comply with the requirements
of this Agreement.
(c) The RCL Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 6.1(c) shall not limit the effect of
Sections 6.1(a) or (b);
(ii) the RCL Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the RCL Trustee was grossly negligent in ascertaining the
pertinent facts; and
(iii) the RCL Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.4.
(d) Subject to Sections 5.1 and 5.2, the RCL Trustee need not
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segregate funds received hereunder in any manner except to the extent required
by law and may deposit such funds under such general conditions as may be
prescribed by law, and the RCL Trustee shall not be liable for any interest
thereon.
(e) The RCL Beneficiary shall not direct the RCL Trustee to
take any action that (i) is inconsistent with the purposes of RCL set forth in
Section 2.3 or (ii) would result in RCL becoming taxable as an "association" for
federal income tax or state income or franchise tax purposes. The RCL Trustee
shall not take any action that (i) is, to the actual knowledge of a Responsible
Officer of the RCL Trustee, inconsistent with the purposes of RCL set forth in
Section 2.3 or (ii) would, to the actual knowledge of a Responsible Officer of
the RCL Trustee, result in RCL's becoming taxable as an "association" for
federal income tax or state income or franchise tax purposes.
Section 6.2 Rights of RCL Trustee. Notwithstanding any other
provision in this Agreement to the contrary, the RCL Trustee is authorized and
directed to execute and deliver this Agreement and, on behalf of RCL, the
Underwriting Agreement, dated as of [ ], 2000 (the "Underwriting Agreement"),
among Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of
the several underwriters named therein, RCL and Ford Credit, the Certificate
Purchase Agreement, dated as of [ ], 2000 (the "Purchase Agreement") among
Merrill Lynch, Pierce, Fenner & Smith Incorporated, [ ], RCL and Ford Credit,
each of the Basic Documents to which RCL is or becomes a party and each
certificate, receipt, direction, order and other document attached as an exhibit
to or contemplated by this Agreement, the Purchase Agreement or the Basic
Documents to which RCL is to be a party, in such form furnished to the RCL
Trustee, from time to time, by or on behalf of the RCL Beneficiary or the RCL
Beneficiary's counsel. The RCL Beneficiary shall be responsible for causing RCL
to comply with its covenants under the Underwriting Agreement, the Purchase
Agreement and the Basic Documents. The RCL Beneficiary shall not direct the RCL
Trustee to take or refrain from taking any action if such action or inaction
would be contrary to any obligation of RCL or the RCL Trustee under this
Agreement or the Basic Documents or would be contrary to Section 2.3, nor shall
the RCL Trustee be obligated to follow any such direction, if given, or have any
duty to inquire or determine whether any direction by the RCL Beneficiary
violates or complies with this provision.
Section 6.3 Acceptance of Trusts and Duties. Except as
otherwise expressly stated in this Article VI, in accepting the trusts hereby
created, First Union Trust Company, National Association acts solely as the RCL
Trustee hereunder and not in its individual capacity and all Persons having any
claim against the RCL Trustee by reason of the transactions contemplated by this
Agreement or the Basic Documents shall look only to the RCL Assets available for
payment or satisfaction
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thereof. The RCL Trustee accepts the trusts hereby created and agrees to perform
its duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The RCL Trustee also agrees to disburse all moneys actually received
by it constituting part of the RCL Assets upon the terms of this Agreement. The
RCL Trustee shall not be liable or accountable hereunder under any
circumstances, except (i) subject to this Article VI, for its own negligent
action, its own negligent failure to act or its own willful misconduct or (ii)
in the case of the inaccuracy of its representations or warranties contained in
Section 6.6. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the RCL Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the RCL Beneficiary;
(b) no provision of this Agreement shall require the RCL
Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder,
if the RCL Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it
against such risk or liability is not reasonably assured or provided to
it;
(c) the RCL Trustee shall not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by Ford
Credit or for the form, character, genuineness, sufficiency, value or
validity of any of the RCL Assets or any related documents, and, except
as otherwise expressly provided in this Agreement, the RCL Trustee
shall in no event assume or incur any liability, duty or obligation to
the RCL Beneficiary; and
(d) the RCL Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement, at the request, order or
direction of the RCL Beneficiary, unless the RCL Beneficiary has
offered to the RCL Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
RCL Trustee therein or thereby. The right of the RCL Trustee to perform
any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the RCL Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of
any such act.
Section 6.4 Action upon Instruction by RCL Beneficiary.
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(a) The RCL Beneficiary may direct the RCL Trustee to take
action or refrain from taking action permitted hereunder and under the other
Basic Documents with respect to the RCL Assets in which they have a beneficial
interest except to the extent that such action or inaction would conflict with
any provision hereof or of the Basic Documents (including, without limitation,
Section 3.1 and Section 7.1(b) hereof). Such direction may be exercised at any
time by written instructions of the RCL Beneficiary holding a 100% beneficial
interest in RCL.
(b) Notwithstanding the foregoing, the RCL Trustee shall not
be required to take any action or refrain from taking any action hereunder if
the RCL Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
RCL Trustee or is contrary to the terms hereof or is otherwise contrary to law.
(c) Whenever the RCL Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, or is unsure as to the application, intent, interpretation or meaning
of any provision of this Agreement, the RCL Trustee may request an Opinion of
Counsel as to such application, intent, interpretation or meaning, or may give
notice (in such form as shall be appropriate under the circumstances) to the RCL
Beneficiary requesting instruction as to the course of action to be adopted,
and, to the extent the RCL Trustee acts in good faith in accordance with such
Opinion of Counsel or any such instruction received from the RCL Beneficiary, as
the case may be, the RCL Trustee shall not be liable on account of such action
to any Person. If the RCL Trustee shall not have received an Opinion of Counsel
or appropriate instructions within ten days of such notice (or within such
shorter period of time as may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action which it shall deem to be in the best interests of the
RCL Beneficiary, and the RCL Trustee shall have no liability to any Person for
any such action or inaction.
Section 6.5 Furnishing of Documents. The RCL Trustee shall
furnish to the RCL Beneficiary, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
RCL Trustee by the Administrative Agent or otherwise.
Section 6.6 Representations and Warranties of RCL Trustee. The
RCL Trustee hereby represents and warrants to the RCL Beneficiary that:
(a) it is a corporation or national banking association, as
the case may be, duly organized, validly existing and in good standing, as the
case may be, under
<PAGE> 15
the laws of the jurisdiction of its organization;
(b) it has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement;
(c) the execution, delivery and performance by it of this
Agreement (i) does not violate any provision of any Delaware or United States
law or regulation governing the banking and trust powers of the RCL Trustee or
any order, writ, judgment or decree of any court, arbitrator or governmental
authority applicable to the RCL Trustee or any of its assets, (ii) shall not
violate any provision of the corporate charter or articles of association, as
the case may be, or by-laws of the RCL Trustee, and (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time or both, a
default under, any mortgage, indenture, contract, agreement or other undertaking
to which the RCL Trustee is a party;
(d) the execution, delivery and performance by the RCL Trustee
of this Agreement shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of banks or trust companies in the
jurisdiction in which RCL was formed;
(e) this Agreement has been duly executed and delivered by the
RCL Trustee and constitutes the legal, valid and binding agreement of the RCL
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law; and
(f) no legal or governmental proceedings are pending to which
the RCL Trustee is a party or of which any property of the RCL Trustee is the
subject, and no such proceedings are threatened or, to its knowledge,
contemplated by governmental authorities or threatened by others, other than
such proceedings which will not have a material adverse effect upon the general
affairs, financial position, net worth or results of operations (on an annual
basis) of the RCL Trustee and will not materially and adversely affect the
performance by the RCL Trustee of its obligations under, or the validity and
enforceability of this Agreement.
Section 6.7 Reliance; Advice of Counsel.
(a) The RCL Trustee may conclusively rely upon, and shall be
fully
<PAGE> 16
protected in relying upon, and shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper (whether in its
original or facsimile form) believed by it to be genuine and believed by it to
be signed by the proper party or parties and need not investigate any fact or
matter in any such document. The RCL Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate or
other party as conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to any fact or
matter the method of the determination of which is not specifically prescribed
herein, the RCL Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the RCL Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement, the
RCL Trustee: (i) may act directly or through its agents, attorneys, custodians
or nominees pursuant to agreements entered into with any of them, and the RCL
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the RCL Trustee with reasonable care and
(ii) may consult with counsel, accountants and other skilled professionals to be
selected with reasonable care and employed by it. The RCL Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with any Opinion of Counsel or advice of any accountants or other such skilled
professionals and not contrary to this Agreement.
Section 6.8 RCL Trustee May Own Lease Trust Certificates and
Senior Notes. The RCL Trustee in its individual or any other capacity may become
the owner or pledgee of Lease Trust Certificates or Senior Notes and may deal
with the RCL Beneficiary, the Administrative Agent, the Lease Trustee and the
Indenture Trustee in transactions in the same manner as it would have if it were
not the RCL Trustee.
Section 6.9 Compensation. The RCL Trustee shall receive as
compensation for its services hereunder such fees as shall be separately agreed
upon from time to time between the RCL Beneficiary and the RCL Trustee. The RCL
Trustee shall be entitled at all times to be reimbursed for its reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, custodians, nominees, representatives, experts and
counsel as the RCL Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. Such fees and reimbursements
shall be paid first, from the RCL
<PAGE> 17
Account in accordance with Section 5.2(b), and second, to the extent of any
shortfall, directly by the RCL Beneficiary.
Section 6.10 Resignation or Removal of RCL Trustee. (a) The
RCL Trustee shall not resign without the consent of the RCL Beneficiary unless
(i) the RCL Trustee shall cease to be eligible in accordance with the provisions
of Section 6.13, (ii) the RCL Trustee shall be incapable of acting or it shall
be illegal for the RCL Trustee to act, or (iii) the RCL Trustee shall have given
at least 60 days' prior written notice to the RCL Beneficiary (who shall
promptly notify the Lease Trustee and the Indenture Trustee).
(b) The RCL Beneficiary may remove the RCL Trustee (and shall
remove the RCL Trustee in the case of the occurrence of an event described in
clause (i) or (iv)):
(i) if the RCL Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail to resign
after written request therefor by the RCL Beneficiary;
(ii) if the RCL Trustee shall become bankrupt or insolvent;
(iii) if a receiver or other public officer shall be appointed
or takes charge or control of the RCL Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
or
(iv) if the RCL Trustee shall otherwise be incapable of acting
or it shall be illegal for the RCL Trustee to act.
(c) If the RCL Trustee is removed or if a vacancy exists in
the office of trustee for any reason, the RCL Beneficiary shall promptly appoint
a successor trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the predecessor trustee so removed and one copy
to the successor trustee). If a successor trustee shall not have been appointed
within 30 days after the giving of a written notice of resignation or the
delivery of the written instrument with respect to such removal, the RCL Trustee
or the RCL Beneficiary may apply to any court of competent jurisdiction to
appoint a successor trustee to act until such time, if any, as a successor
trustee shall have been appointed as provided above. Any successor trustee so
appointed by such court shall upon 30 days written notice from the RCL
Beneficiary be superseded by any successor trustee appointed as provided above
within one year from the date of the appointment by such court.
(d) Any resignation or removal of the RCL Trustee and
appointment
<PAGE> 18
of a successor trustee pursuant to any of the provisions of this Section 6.10
shall not become effective until a written acceptance of appointment is
delivered by the successor trustee. Any successor trustee appointed pursuant to
this Section 6.10 shall be eligible to act in such capacity in accordance with
Section 6.13 and, following compliance with the preceding sentence, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
trustee.
(e) The predecessor trustee shall upon payment of its fees and
expenses and any other amounts then due to it under this Agreement deliver to
the successor trustee all books, records, accounts, documents and statements and
monies held by it under this Agreement. The predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor trustee
all such rights, powers, duties and obligations. The predecessor trustee shall
cooperate with the successor trustee to ensure that the successor trustee has
all books, records, accounts, documents, statements and other relevant
information relating to the RCL Assets.
Section 6.11 Merger or Consolidation of RCL Trustee. Any
corporation or other Person into which the RCL Trustee may be merged or
converted or with which it may be consolidated, or any corporation or other
Person resulting from any merger, conversion or consolidation to which the RCL
Trustee shall be a party, or any corporation or other Person succeeding to all
or substantially all of the corporate trust business of the RCL Trustee, shall
be the successor of the RCL Trustee hereunder, provided such corporation or
other Person shall be eligible in accordance with the provisions of Section
6.13, without, unless otherwise required by law, the execution or filing of any
instrument or any further act on the part of any of the parties hereto.
Section 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any RCL
Assets may at the time be located, the RCL Beneficiary shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the RCL Beneficiary to act as co-trustee, jointly with the RCL
Trustee, or as separate trustee or trustees, of all or any part of RCL and the
RCL Assets, and to vest in such Person, in such capacity, such title to RCL, or
any RCL Asset, and, subject to the other provisions of this Section 6.12, such
powers, duties, obligations, rights and trusts as the RCL Beneficiary and the
RCL Trustee may consider necessary or desirable. No co-trustee or separate
trustee under this Agreement shall be required to be eligible in accordance with
the provisions of Section 6.13; provided that no co-trustee or separate trustee
under this Agreement may be the RCL Beneficiary or any Affiliate
<PAGE> 19
thereof.
(b) Each co-trustee and separate trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the RCL Trustee shall be conferred upon and exercised or
performed by the RCL Trustee and such co-trustee or separate trustee
jointly (it being understood that such co-trustee or separate trustee
is not authorized to act separately without the RCL Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, the RCL
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to RCL Assets or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
co-trustee or separate trustee, but solely at the direction of the RCL
Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the RCL Beneficiary and the RCL Trustee acting jointly
may at any time accept the resignation of or remove any co-trustee or
separate trustee.
(c) Any notice, request or other writing given to the RCL
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any co-trustee or separate trustee shall refer to this Agreement and
the conditions of this Article. Each co-trustee and separate trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the RCL Trustee
or separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the RCL
Trustee. Each such instrument shall be filed with the RCL Trustee and a copy
thereof given to the RCL Beneficiary.
(d) Any co-trustee or separate trustee may at any time appoint
the RCL Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any co-trustee or separate
trustee shall become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the RCL Trustee, to the extent
<PAGE> 20
permitted by law, without the appointment of a new or successor trustee.
Section 6.13 Eligibility Requirements for RCL Trustee. The RCL
Trustee or any successor trustee, as the case may be, shall at all times: (a) be
a corporation or a banking association organized under the laws of the United
States of America or any state thereof; (b) be authorized to exercise corporate
trust powers; (c) have its principal place of business in the State of Delaware
and (d) have (or shall have a parent that has) a long-term debt rating of at
least Baa3 by Moody's Investors Service, Inc.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement. (a) RCL shall be
dissolved upon the earlier to occur of: (i) the final distribution by the RCL
Trustee of all moneys or other property constituting RCL Assets; and (ii) if at
such time the Series 2000-1 Certificates are not outstanding, at the express
written direction of the RCL Beneficiary.
(b) Upon dissolution of RCL, (i) after satisfaction of all
creditors, if any, of RCL, the RCL Trustee shall distribute the RCL Assets to
the RCL Beneficiary in accordance with Section 5.2(b), (ii) after completion of
winding up of RCL, a certificate of cancellation shall be filed with the
Delaware Secretary of State pursuant to ss.3810(c) of the Trust Statute and
(iii) this Agreement (other than Section 2.7) shall be terminated upon such
certificate of cancellation becoming effective.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. This Agreement may be amended by the
RCL Beneficiary and the RCL Trustee at any time; provided, however, that such
action shall not, (x) as evidenced by an Opinion of Counsel, materially and
adversely affect the interests of any Holder of a Series 2000-1 Certificate
(unless each such Holder has consented thereto), (y) as confirmed by each Rating
Agency rating any Class of the Senior Notes and the Lease Trust Certificates,
cause the then current rating of the Senior Notes or the Lease Trust
Certificates to be withdrawn or reduced, or (z) as evidenced by an Opinion of
Counsel, (i) affect the treatment of the Senior Notes as debt for federal income
tax purposes, (ii) be deemed to cause a taxable exchange of the Senior Notes for
federal income tax purposes or (iii) cause RCL, any Titling Company or the Lease
Trust to be classified as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes.
<PAGE> 21
Notwithstanding the foregoing, this Agreement may be amended
(with notice of such amendment being delivered to each Rating Agency) at any
time by the RCL Beneficiary and the RCL Trustee to the extent reasonably
necessary to assure that none of the Titling Companies, the Lease Trust, or RCL
will be classified as an association (or publicly traded partnership) taxable as
a corporation for federal income tax purposes.
ARTICLE IX
TAX MATTERS
Section 9.1 Tax Characterization. It is the intention of the
parties hereto that, for purposes of federal, state and local income taxes and
state franchise taxes, and the Michigan Single Business Tax, RCL shall be
treated as a grantor trust. The parties agree that, unless otherwise required by
appropriate tax authorities, RCL shall file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of RCL as a grantor trust for such tax purposes.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Legal Title to RCL Assets; Direction of RCL
Trustee Actions. The RCL Beneficiary shall not have legal title to any RCL
Assets. The RCL Beneficiary shall be entitled to receive distributions with
respect to its undivided beneficial interest therein only in accordance with
Articles V and VII. Notwithstanding anything herein to the contrary, the RCL
Trustee shall take no action with respect to any RCL Asset except as provided in
this Agreement or upon direction of the RCL Beneficiary.
Section 10.2 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the RCL Trustee, the Grantor and
the RCL Beneficiary 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 RCL or the RCL Assets or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 10.3 Notices. All demands, notices and communications
upon or to the Grantor, the RCL Beneficiary and the RCL Trustee shall be in
writing, and shall be personally delivered, sent by electronic facsimile or
overnight delivery service or mailed by certified mail-return receipt requested,
and shall be deemed to have been duly given to the intended recipient upon
receipt at the respective addresses
<PAGE> 22
listed below, or at such other address as shall be designated by such Person in
a written notice to the other parties to this Agreement.
(i) In the case of Ford Credit:
Ford Motor Credit Company
One American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
(ii) In the case of the RCL Trustee
c/o First Union Trust Company, National Association
One Rodney Square
Suite 102
920 King Street
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Fax: 302-888-7544
Telephone: 302-888-7532
Any notice to be delivered to any RCL Beneficiary which is a
permitted assignee hereunder of the initial RCL Beneficiary, shall be delivered
at the address provided to the RCL Trustee by such Person.
Section 10.4 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement, or the rights of the
RCL Beneficiary.
Section 10.5 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
Section 10.6 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of
the RCL Trustee
<PAGE> 23
and the RCL Beneficiary and their respective successors and permitted assigns.
Any request, notice, direction, consent, waiver or other instrument or action by
the RCL Beneficiary shall bind the successors and assigns of such RCL
Beneficiary.
Section 10.7 No Recourse. The RCL Beneficiary, acknowledges
that such RCL Beneficiary holds a beneficial interest in RCL only and does not
have any other interest in the property or assets of RCL or the RCL Trustee.
Section 10.8 No Petition. The RCL Trustee and Ford Credit each
hereby covenants that for a period of one year and one day after payment in full
of the Series 2000-1 Certificates pursuant to the terms of this Agreement, it
will not institute against, or join any Person in instituting against RCL or any
Titling Company any bankruptcy, reorganization, insolvency or liquidation
proceeding, or other similar proceeding, under the laws of the United States or
any state of the United States.
Section 10.9 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 10.10 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, EXCEPT THAT, PURSUANT TO AND TO THE FULLEST EXTENT PERMITTED BY
SECTION 3809 OF THE TRUST STATUTE, THE DOCTRINE OF MERGER SHALL NOT BE
APPLICABLE TO RCL.
<PAGE> 24
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
as trustee
By:
---------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
FORD MOTOR CREDIT COMPANY,
as a Grantor and RCL Beneficiary
By:
---------------------------------
Name: Hurley D. Smith
Title: Secretary
