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REGISTRATION NO. 33-57827
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-1*
AMENDMENT NO. 2
TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FORD CREDIT AUTO LEASE TRUST 1995-1
(Issuer of the Notes)
RCL TRUST 1995-1
(Originator of the Trust described herein)
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
FORD MOTOR CREDIT COMPANY A Delaware Trust FORD CREDIT LEASING COMPANY, INC.
(Originator of the Registrant; issuer of Primary Standard Industrial Classification (Originator of the Registrant)
a corporate Limited RV Guaranty) Code Number
IRS Employer No. [Application Pending]
A Delaware Corporation The American Road A Delaware Corporation
Primary Standard Industrial Classification Dearborn, Michigan 48121 Primary Standard Industrial Classification
Code Number (313) 594-9876 Code Number
IRS Employer No. 38-1612444 IRS Employer No. [Application Pending]
The American Road _____________ The American Road
Dearborn, Michigan 48121 Dearborn, Michigan 48121
(313) 322-3000 (313) 845-4072
</TABLE>
J. D. BRINGARD, ESQ.
Ford Motor Credit Company
The American Road
Dearborn, Michigan 48121
(313) 594-7742
(Name and Address of Agent for Service
for each of the above named entities)
Copy to:
SUSAN M. CURTIS, ESQ.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
____________
Approximate date of commencement of proposed sale to the public: As
soon as practicable on or after the effective date of this Registration
Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Securities Amount Being Offering Price Aggregate Amount of
Being Registered Registered Per Unit (1) Offering Price (1) Registration Fee (3)
<S> <C> <C> <C> <C>
Class A-1 Asset Backed Notes . . $ 333,333.00 100% $ $ 114.94
Class A-2 Asset Backed Notes . . $ 333,333.00 100% $ $ 114.94
Class A-3 Asset Backed Notes . . $ 333,334.00 100% $ $ 114.95
Limited RV Guaranty . . . . . . . (2) (2) (2) (2)
--------------- --------- ------------
TOTAL . . . . . . . . . . . . . . $ 1,000,000.00 $ $ 344.83
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Not applicable.
(3) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- ---------------
* This Registration Statement constitutes a filing on Form S-1 in respect of
the Asset Backed Notes and a filing on Form S-3 in respect of the Limited RV
Guaranty.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in
connection with the offering described in this Registration Statement.
<TABLE>
<S> <C>
Securities and Exchange Commission . . . . . . . . . . . . . . . . . . . . . . . $
-------
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
-------
Printing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
-------
Accountants' fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
-------
Fees and expenses of the RCL Trustee . . . . . . . . . . . . . . . . . . . . . . $
-------
Fees and expenses of the Lease Trustee . . . . . . . . . . . . . . . . . . . . . $
-------
Fees and expenses of the Indenture Trustee . . . . . . . . . . . . . . . . . . . $
-------
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
=======
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 3803 of the Delaware Business Trust Statute provides
as follows:
3803. Liability of Beneficial Owners and Trustees.
(a) Except to the extent otherwise provided in the governing
instrument of the business trust, the beneficial owners shall be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit.
(b) Except to the extent otherwise provided in the governing
instrument of a business trust, a trustee, when acting in such capacity, shall
not be personally liable to any person other than the business trust or a
beneficial owner for any act, omission or obligation of the business trust or
any trustee thereof.
Section 3817 of the Delaware Business Trust Statute provides
as follows:
3817. Indemnification.
(a) Subject to such standards and restrictions, if any, as are set
forth in the governing instrument of a business trust, a business trust shall
have the power to indemnify and hold harmless any trustee or beneficial owner
or other person from and against any and all claims and demands whatsoever.
(b) The absence of a provision for indemnity in the governing
instrument of a business trust shall not be construed to deprive any trustee or
beneficial owner or other person of any right to indemnity which is otherwise
available to such person under the laws of this State.
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Section 2.7 of the Amended and Restated Trust Agreement of RCL
Trust 1995-1 provides as follows:
Section 2.7 Indemnification. Notwithstanding Section 3803 of
the Trust Statute, Ford Credit Leasing shall be liable to any injured
party entitled thereto and 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 ("Liabilities") of RCL, or incurred in connection with RCL Assets
to the extent that Ford Credit Leasing would be liable if RCL were a
partnership under the Delaware Revised Uniform Limited Partnership Act and Ford
Credit Leasing was a general partner thereof, and Ford Credit Leasing hereby
covenants and agrees that it will maintain capital in an amount sufficient to
maintain its status as a general partner of RCL and the Lease Trust; provided,
however, that in no event shall the RCL Trustee be indemnified or held harmless
for any Liabilities incurred (i) by reason of the RCL Trustee's willful
malfeasance, 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.
In addition, if necessary, to the extent not otherwise reimbursed, the RCL
Trustee shall be entitled to indemnification from the RCL Account, subject to
the liens under the Basic Documents of the Lease Trustee on behalf of the Lease
Trust and the Indenture Trustee on behalf of the Noteholders, for any claims
against the RCL Trustee the indemnification for which is provided pursuant to
this Section 2.7.
Section 145 of the General Corporation Law of Delaware
provides as follows:
145. Indemnification of officers, directors, employees and agents; insurance --
(a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit
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plan shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
Article Ninth, Section 5 of the Certificate of Incorporation
of Ford Motor Credit Company provides as follows:
SECTION 5.
Indemnification
5.1. Directors, Officers and Employees of the Corporation. Every
person now or hereafter serving as a director, officer or employee of the
corporation shall be indemnified and held harmless by the corporation from and
against any and all loss, cost, liability and expense that may be imposed upon
or incurred by him in connection with or resulting from any claim, action,
suit, or proceeding, civil or criminal, in which he may become involved, as a
party or otherwise, by reason of his being or having been a director, officer
or employee of the corporation, whether or not he continues to be such at the
time such loss, cost, liability or expense shall have been imposed or incurred.
As used herein, the term "loss, cost, liability and expense" shall include, but
shall not be limited to, counsel fees and disbursements and amounts of
judgments, fines or penalties against, and amounts paid in settlement by, any
such director, officer or employee; provided, however, that no such director,
officer or employee shall be entitled to claim such indemnity: (1) with
respect to any matter as to which there shall have been a final adjudication
that he has committed or allowed some act or omission, (a) otherwise than in
good faith in what he considered to be the best interests of the corporation,
and (b) without reasonable cause to believe that such act or omission was proper
and legal; or (2) in the event of a settlement of such claim, action, suit, or
proceeding unless (a) the court having jurisdiction thereof shall have approved
of such settlement with knowledge of the indemnity provided herein, or (b) a
written opinion of independent legal counsel, selected by or in manner
determined by the Board of Directors, shall have been rendered substantially
concurrently with such settlement, to the effect that it was not probable that
the matter as to which indemnification is being made would have resulted in a
final adjudication as specified in clause (1) above, and that the said loss,
cost, liability or expense may properly be borne by the corporation. A
conviction or judgment (whether based on a plea of guilty or nolo contendere or
its equivalent, or after trial) in a criminal action, suit or proceeding shall
not be deemed an adjudication that such director, officer or employee has
committed or allowed some act or omission as hereinabove provided if
independent legal counsel, selected as hereinabove set forth, shall
substantially concurrently with such conviction or judgment give to the
corporation a written opinion that such director, officer or employee was
acting in good faith in what he considered to be the best interests of the
corporation or was not without reasonable cause to believe that such act or
omission was proper and legal.
5.2. Directors, Officers and Employees of Subsidiaries. Every person
(including a director, officer or employee of the corporation) who at the
request of the corporation acts as a director, officer or employee of any other
corporation in which the corporation owns shares of stock or of which it is a
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creditor shall be indemnified to the same extent and subject to the same
conditions that the directors, officers and employees of the corporation are
indemnified under the preceding paragraph, except that the amounts of such
loss, cost, liability or expense paid to any such director, officer or employee
shall be reduced by and to the extent of any amounts which may be collected by
him from such other corporation.
5.3. Miscellaneous. The provisions of this Section 5 of Article
NINTH shall cover claims, actions, suits and proceedings, civil or criminal,
whether now pending or hereafter commenced and shall be retroactive to cover
acts or omissions or alleged acts or omissions which heretofore have taken
place. In the event of death of any person having a right of indemnification
under the provisions of this Section 5 of Article NINTH, such right shall inure
to the benefit of his heirs, executors, administrators and personal
representatives. If any part of this Section 5 of Article NINTH should be
found to be invalid or ineffective in any proceeding, the validity and effect
of the remaining provisions shall not be affected.
5.4. Indemnification Not Exclusive. The foregoing right of
indemnification shall not be deemed exclusive of any other right to which those
indemnified may be entitled, and the corporation may provide additional
indemnity and rights to its directors, officers or employees.
Article V of the Certificate of Incorporation of Ford Credit
Leasing Company, Inc. provides as follows:
ARTICLE V
(a) A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty
to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation
Law or
(iv) for any transaction from which the director derived an
improper personal benefit.
If the Delaware General Corporation Law is amended
after approval by the stockholders of this Article V to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
(b) Any repeal or modification of paragraph (a) of this Article V by
the stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
(c) (i) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the corporation or is or was
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serving at the request of the corporation as a director, officer or employee of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment), against all expense,
liability and loss (including penalties, fines, judgments, attorneys' fees,
amounts paid or to he paid in settlement and excise taxes imposed on
fiduciaries with respect to (i) employee benefit plans, (ii) charitable
organizations or (iii) similar matters) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer or employee and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person (other than pursuant to subparagraph (c)(ii) of this Article V)
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the corporation. The right to indemnification conferred in this
subparagraph (c)(i) of Article V shall be a contract right and shall include
the right to be paid by the corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that,
if the Delaware General Corporation Law so requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered
by such person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this subparagraph (c)(i) of Article V
or otherwise.
(ii) If a claim which the corporation is
obligated to pay under subparagraph (c)(i) of this Article V is not
paid in full by the corporation within 60 days after a written claim
has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation)
that the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the corporation. Neither
the failure of the corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal
counsel or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the Claimant has not met the applicable
standard of conduct.
(iii) The provisions of this paragraph (c)
of Article V shall cover claims, actions, suits and proceedings, civil
or criminal, whether now pending or hereafter commenced, and shall be
retroactive to cover acts or omissions or alleged acts or omissions
which heretofore have taken place. If any part of this paragraph (c)
of Article V should be
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found to be invalid or ineffective in any proceeding, the validity and
effect of the remaining provisions shall not be affected.
(iv) The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this paragraph (c) of Article V
shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
(v) The corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee
or agent of the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
(vi) The corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the corporation the
expenses incurred in defending any proceeding in advance of its final
disposition, to any agent of the corporation to the fullest extent of
the provisions of this paragraph (c) of Article V with respect to the
indemnification and advancement of expenses of director, officers and
employees of the corporation.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Not Applicable
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS.
(a) EXHIBITS:
<TABLE>
<S> <C>
1.1 - Form of Underwriting Agreement.*
3.1 - Form of Amended and Restated Trust Agreement of RCL Trust 1995-1, among Ford Credit, Ford Credit Leasing and the
RCL Trustee.
3.2 - Restated Certificate of Incorporation of Ford Motor Credit Company.**
3.3 - By-Laws of Ford Motor Credit Company.**
3.4 - Certificate of Incorporation of Ford Credit Leasing Company, Inc.
3.5 - By-Laws of Ford Credit Leasing Company, Inc.
4.1 - Form of Trust Agreement of the Issuer, between the RCL Trustee and the Lease Trustee.
4.2 - Form of Trust Indenture, between the Lease Trustee and the Indenture Trustee.
4.3 - Form of Class A-1 Note (included as part of Exhibit 4.2).
4.4 - Form of Class A-2 Note (included as part of Exhibit 4.2).
4.5 - Form of Class A-3 Note (included as part of Exhibit 4.2).
4.6 - Form of Limited RV Guaranty.
5.1 - Opinion of J.D. Bringard, Esq., Vice President-General Counsel of Ford Motor Credit Company with respect to
legality.*
8.1 - Opinion of Skadden, Arps, Slate, Meagher & Flom with respect to tax matters.*
8.2 - Opinion of J.D. Bringard, Esq., Vice President-General Counsel of Ford Motor Credit Company with respect to
Michigan income tax matters.*
10.1 - Form of FCTT Trust Agreement, among Ford Credit, Ford Credit Leasing and Comerica.
</TABLE>
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<TABLE>
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10.2 - Form of Administrative Agency Agreement, among Comerica, Ford Credit and Ford Credit Leasing.
10.3 - Form of Series 1995-1 Supplement, among Comerica, Ford Credit and Ford Credit Leasing.
10.4 - Form of Asset Contribution Agreement, among Ford Credit, Ford Credit Leasing and the RCL Trustee.
10.5 - Form of Transfer Agreement, between the RCL Trustee and the Lease Trustee.
10.6 - Form of Program Operating Lease, between the RCL Trustee and the Lease Trustee.
10.7 - Form of Appendix A and Appendix I - Definitions.
15.1 - Letter from Coopers & Lybrand regarding Unaudited Interim Financial Information.*
23.1 - Consent of J.D. Bringard Esq., Vice President - General Counsel of Ford Motor Credit Company (included as part of
Exhibit 5.1).*
23.2 - Consent of Skadden, Arps, Slate, Meagher & Flom (included as part of Exhibit 8.1).*
23.3 - Consent of Coopers & Lybrand.*
24.1 - Powers of Attorney of officers and directors of Ford Motor Credit Company.***
24.2 - Powers of Attorney of officers and directors Ford Credit Leasing Company, Inc.***
25.1 - Form T-1 of [name of Indenture Trustee].*
25.2 - Form T-2 of [name of officer of Indenture Trustee].*
</TABLE>
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* To be filed by amendment
** Incorporated by reference to Exhibits 3.1 (Restated Certificate of
Incorporation) and 3.2 (By-Laws) to Ford Motor Credit Company's
Registration Statement on Form S-1 (Registration No. 33-25082)
*** Previously filed
(b) FINANCIAL STATEMENTS:
[Not Applicable]
ITEM 17. UNDERTAKINGS.
(a) To provide to the Underwriter at the closing specified in the
Underwriting Agreement certificates in such denominations and registered in
such names as required by the Underwriter to permit prompt delivery to each
purchaser.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 14
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(b) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
II-8
<PAGE> 10
(2) For the purpose of determining any liability under
the Securities Act of 1933 each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-9
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant has duly caused this Amendment No. 2 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Detroit and the State of Michigan on the 13th day of
April, 1995.
RCL TRUST 1995-1
By FORD MOTOR CREDIT COMPANY,
Depositor and Beneficiary of the Registrant
By WILLIAM E. ODOM *
-----------------------------------
(William E. Odom, Chairman
of the Board of Directors of
Ford Motor Credit Company)
By FORD CREDIT LEASING COMPANY,
INC., Depositor and Beneficiary
of the Registrant
By HURLEY D. SMITH *
------------------------------------
(Hurley D. Smith, Chairman
of the Board of Directors of
Ford Credit Leasing Company, Inc.)
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Detroit and the State of
Michigan on the 13th day of April, 1995.
FORD MOTOR CREDIT COMPANY
By WILLIAM E. ODOM *
--------------------------------
(William E. Odom, Chairman
of the Board of Directors of
Ford Motor Credit Company)
II-10
<PAGE> 12
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 2 to the Registration Statement has been signed below by the
following officers and directors of FORD MOTOR CREDIT COMPANY, in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
WILLIAM E. ODOM * Chairman of the April 13, 1995
- ----------------------------------- Board of Directors
(William E. Odom) and Director (princi-
pal executive officer)
KENNETH J. COATES * Director and Executive April 13, 1995
- ------------------------------------ Vice President-Finance
(Kenneth J. Coates) (principal financial
officer)
TERRENCE F. MARRS * Controller (principal April 13, 1995
- ----------------------------------- accounting officer)
(Terrence F. Marrs)
JOHN G. CLISSOLD * Director April 13, 1995
- -------------------------------------
(John G. Clissold)
EDSEL B. FORD II * Director April 13, 1995
- --------------------------------------
(Edsel B. Ford II)
DAVID N. MCCAMMON * Director April 13, 1995
- --------------------------------
(David N. McCammon)
ROBERT D. WARNER * Director April 13, 1995
- -----------------------------------
(Robert D. Warner)
KENNETH WHIPPLE * Director April 13, 1995
- ------------------------------------
(Kenneth Whipple)
* By /s/ R. P. CONRAD
--------------------------------
(R. P. Conrad, Attorney in Fact)
</TABLE>
II-11
<PAGE> 13
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 2 to the Registration Statement has been signed below by the
following officers and directors of FORD CREDIT LEASING COMPANY, INC., in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
HURLEY D. SMITH * Chairman of the Board of April 13, 1995
- ------------------------------------ Directors and Director
(Hurley D. Smith) (principal executive
officer)
TERRENCE F. MARRS * Controller (principal April 13, 1995
- ----------------------------------- financial officer)
(Terrence F. Marrs)
RICHARD P. CONRAD * Director April 13, 1995
- -----------------------------------
(Richard P. Conrad)
KEVIN F. KELLY * Director April 13, 1995
- -------------------------------------
(Kevin F. Kelly)
MARIO SPIVAK * Director April 13, 1995
- --------------------------------------
(Mario Spivak)
* By /s/ R. P. CONRAD
-------------------------------
(R. P. Conrad, Attorney in Fact)
</TABLE>
II-12
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBITS DESCRIPTION PAGE
- -------- ----------- ----
<S> <C> <C>
1.1 - Form of Underwriting Agreement.*
3.1 - Form of Amended and Restated Trust Agreement of RCL Trust 1995-1, among Ford
Credit, Ford Credit Leasing and the RCL Trustee.
3.2 - Restated Certificate of Incorporation of Ford Motor Credit Company.**
3.3 - By-Laws of Ford Motor Credit Company.**
3.4 - Certificate of Incorporation of Ford Credit Leasing Company, Inc.
3.5 - By-Laws of Ford Credit Leasing Company, Inc.
4.1 - Form of Trust Agreement of the Issuer, between the RCL Trustee and the Lease
Trustee.
4.2 - Form of Trust Indenture, between the Lease Trustee and the Indenture Trustee.
4.3 - Form of Class A-1 Note (included as part of Exhibit 4.2).
4.4 - Form of Class A-2 Note (included as part of Exhibit 4.2).
4.5 - Form of Class A-3 Note (included as part of Exhibit 4.2).
4.6 - Form of Limited RV Guaranty.
5.1 - Opinion of J.D. Bringard, Esq., Vice President-General Counsel of Ford Motor Credit
Company with respect to legality.*
8.1 - Opinion of Skadden, Arps, Slate, Meagher & Flom with
respect to tax matters.*
8.2 - Opinion of J.D. Bringard, Esq., Vice President-General Counsel of Ford Motor Credit
Company with respect to Michigan income tax matters.*
10.1 - Form of FCTT Agreement, among Ford Credit, Ford Credit Leasing and Comerica.
10.2 - Form of Administrative Agency Agreement, among Comerica, Ford Credit and Ford Credit
Leasing.
10.3 - Form of Series 1995-1 Supplement, among Comerica, Ford Credit and Ford Credit
Leasing.
10.4 - Form of Asset Contribution Agreement, among Ford Credit, Ford Credit Leasing and the
RCL Trustee.
10.5 - Form of Transfer Agreement, between the RCL Trustee and the Lease Trustee.
10.6 - Form of Program Operating Lease, between the RCL Trustee and the Lease Trustee.
10.7 - Form of Appendix A and Appendix I - Definitions.
15.1 - Letter from Coopers & Lybrand regarding Unaudited Interim Financial Information.*
23.1 - Consent of J.D. Bringard Esq., Vice President - General Counsel of Ford Motor Credit
Company (included as part of Exhibit 5.1).*
23.2 - Consent of Skadden, Arps, Slate, Meagher & Flom (included as part of Exhibit 8.1).*
23.3 - Consent of Coopers & Lybrand.*
24.1 - Powers of Attorney of officers and directors of Ford Motor Credit Company.***
24.2 - Powers of Attorney of officers and directors of Ford Credit Leasing Company, Inc.***
25.1 - Form T-1 of [name of Indenture Trustee].*
25.2 - Form T-2 of [name of officer of Indenture Trustee].*
</TABLE>
- --------------------
* To be filed by amendment
** Incorporated by reference to Exhibits 3.1 (Restated Certificate of
Incorporation) and 3.2 (By-Laws) to Ford Motor Credit Company's
Registration Statement on Form S-1 (Registration No. 33-25082)
*** Previously filed
<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED TRUST AGREEMENT
dated as of _______ __, 1995
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.
As Grantors and RCL Beneficiaries
and
THE CHASE MANHATTAN BANK (USA)
As Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . 2
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
ORGANIZATION . . . . . . . . . . . . . . . . 3
Section 2.1 Organization and Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3 Purposes and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4 Resignation of Comerica and Appointment of Trustee . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.5 RCL Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.8 Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
THE RCL BENEFICIARIES . . . . . . . . . . . . . . 6
Section 3.1 Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 7
Section 4.1 Representations and Warranties of the Grantors . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES . . . . . . . . 8
Section 5.1 Establishment of RCL Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.2 Application of RCL Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.3 Accounting and Reports to RCL Beneficiaries, the Internal Revenue Service and Others . . . . . 9
Section 5.4 Signature on Returns; Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.5 Series 1995-1 Collection Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.6 Series 1995-1 Payahead Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI
RCL TRUSTEE . . . . . . . . . . . . . . . . 13
Section 6.1 Duties of RCL Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.2 Rights of RCL Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.3 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 6.4 Action upon Instruction by RCL Beneficiaries . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.5 Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.6 Representations and Warranties of RCL Trustee . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.7 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.8 RCL Trustee May Own Lease Trust Certificates and Notes . . . . . . . . . . . . . . . . . 19
Section 6.9 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.10 Resignation or Removal of RCL Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.11 Merger or Consolidation of RCL Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.12 Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . 21
Section 6.13 Eligibility Requirements for RCL
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VII
TERMINATION OF TRUST AGREEMENT . . . . . . . . . 24
Section 7.1 Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VIII
AMENDMENTS . . . . . . . . . . . . . . 24
Section 8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IX
TAX MATTERS . . . . . . . . . . . . . . 25
Section 9.1 Tax Characterization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . 25
Section 10.1 No Legal Title to RCL Assets; Direction of RCL Trustee Actions . . . . . . . 25
Section 10.2 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.7 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.8 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 10.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Exhibit A Form of Certificate of Trust
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Exhibit B Form of RCL Assignment Agreement
</TABLE>
iii
<PAGE> 5
AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as of
_______ __, 1995 (as modified, supplemented or amended from time to time, this
"Agreement") among (i) FORD MOTOR CREDIT COMPANY, a Delaware corporation ("Ford
Credit") as a Grantor and as a RCL Beneficiary, (ii) FORD CREDIT LEASING
COMPANY, INC., a Delaware corporation ("Ford Credit Leasing") as a Grantor and
a RCL Beneficiary and (iii) THE CHASE MANHATTAN BANK (USA), a Delaware banking
corporation, as trustee under this Agreement.
WHEREAS, the parties hereto intend to amend and restate, on the terms
and conditions set forth herein, that certain Trust Agreement, dated as of
January 31, 1994, among Ford Credit, Ford Credit Leasing and Comerica Bank as
trustee (the "Original Agreement"), pursuant to which this trust was created;
WHEREAS, Ford Credit and Ford Credit Leasing intend to transfer their
respective Series 1995-1 Certificates to such trust pursuant to the terms of
the Asset Contribution Agreement;
WHEREAS, it is intended that the Series 1995-1 Certificates be
transferred to the Lease Trust pursuant to the Transfer Agreement and,
immediately thereafter, that an interest in the Series 1995-1 Certificates be
acquired from the Lease Trust pursuant to the terms of the Program Operating
Lease; and
WHEREAS, it is intended that Ford Credit Leasing acquire from RCL a 1%
interest in (i) all assets, rights, and obligations of RCL, including, but not
limited to, the RCL Lease Trust Certificates, and each other asset of RCL and
(ii) the obligations of RCL under the Program Operating Lease, in accordance
with the terms of the RCL Assignment Agreement.
NOW THEREFORE, Ford Credit, Ford Credit Leasing and the RCL Trustee
hereby agree as follows:
<PAGE> 6
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.
"Certificate of Trust" means the Certificate of Trust filed with the office
of the Secretary of State of the State of Delaware substantially in the form
attached hereto as Exhibit A.
"Grantors" means Ford Credit and Ford Credit Leasing in their capacities as
grantors of the RCL Assets to RCL.
"Liabilities" has the meaning set forth in Section 2.7.
"Original Agreement" has the meaning set forth in the recitals to this
Agreement.
"Percentage Interest" means, (i) when used with respect to Ford Credit, (x)
prior to the effective date of the RCL Assignment Agreement, 98% and (y) after
the effective date of the RCL Assignment Agreement, the percentage equivalent
of a fraction, the numerator of which is 98 and the denominator of which is 99,
and (ii) when used with respect to Ford Credit Leasing, (x) prior to the
effective date of the RCL Assignment Agreement, 2% and (y) after the effective
date of the RCL Assignment Agreement, the percentage equivalent of a fraction,
the numerator of which is 1 and the denominator of which is 99.
"RCL" means the trust created pursuant to the Original Agreement and
renamed "RCL Trust 1995-1" pursuant to Section 2.1.
2
<PAGE> 7
"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 1995-1 Certificates and all proceeds thereof, as set forth in
Section 5.1 and (iii) the interest in the Reserve Account and all amounts
deposited therein.
"RCL Assignment Agreement" means the assignment made by RCL to Ford Credit
Leasing in the form attached hereto as Exhibit B.
"RCL Beneficiaries" means Ford Credit and Ford Credit Leasing.
"RCL Trustee" means The Chase Manhattan Bank (USA), 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 802 Delaware Avenue, Wilmington, Delaware 19801.
"Trust Statute" means 12 Del. Code Section Section 3801 et. seq., as
amended or supplemented from time to time.
ARTICLE II
ORGANIZATION
Section 2.1 Organization and Name. The trust created pursuant to the
Original Agreement and amended by this Agreement shall be known as "RCL Trust
1995-1" in which name the RCL Trustee may conduct the activities of RCL. It is
the intention of the parties hereto that as of the date of the filing of the
Certificate of Trust RCL 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 Grantors and the RCL Beneficiaries.
3
<PAGE> 8
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 1995-1 Certificates pursuant to the
Asset Contribution Agreement, transfer the Series 1995-1 Certificates
to the Lease Trust pursuant to the Transfer Agreement and acquire an
interest in the Series 1995-1 Certificates from the Lease Trust
pursuant to the Program Operating Lease;
(c) to assign, pursuant to the RCL Assignment Agreement, a 1%
interest to Ford Credit Leasing in the RCL Assets and obligations of
RCL;
(d) to perform its obligations under agreements, instruments or
other documents to which it is to be a party, including but not
limited to the Asset Contribution Agreement, the RCL Assignment
Agreement, the Transfer Agreement, the Program Operating Lease and the
Lease Trust Agreement;
(e) to hold the RCL Lease Trust Certificates (other than the RCL
Lease Trust Certificate assigned to Ford Credit Leasing); and
(f) to engage in those activities, including making
distributions to RCL Beneficiaries, executing agreements, and
executing and filing documents with regulatory agencies relating to
the issuance of securities by the Lease Trust that are necessary,
suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith.
Section 2.4 Resignation of Comerica and Appointment of Trustee.
The RCL Beneficiaries hereby consent to and (i) accept the resignation of
Comerica Bank as trustee of RCL and (ii) appoint The Chase Manhattan Bank
(USA) as trustee of RCL effective as of the date hereof, to have all the
rights, powers and duties of the RCL Trustee set forth herein, and by its
signature herein, The Chase Manhattan Bank (USA) hereby accepts its ap-
pointment as RCL Trustee.
4
<PAGE> 9
Section 2.5 RCL Assets. (a) As of the date of the Original
Agreement, Ford Credit as a Grantor hereby sold, assigned, transferred,
conveyed and set over to RCL, as of the date thereof, the sum of $9800.
Ford Credit Leasing as a Grantor hereby sold, assigned, transferred,
conveyed and set over to RCL, as of the date thereof, the sum of $200.
Comerica Bank, as trustee of RCL, acknowledged receipt in trust from each
Grantor, as of the date thereof, of the foregoing contributions, which
constituted the initial RCL Assets and were deposited in the RCL Account.
(b) On the Closing Date, each of Ford Credit and Ford Credit
Leasing, as Grantors, shall contribute and transfer the Series 1995-1
Certificates to RCL pursuant to the Asset Contribution Agreement, and then
RCL shall transfer the Series 1995-1 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 1995-1 Certificates
to RCL.
(c) Certain organizational expenses of RCL have been paid by RCL.
The Grantors shall capitalize RCL with an amount sufficient to pay
administrative expenses of RCL, including expenses of the RCL Trustee
incurred on behalf of RCL, as they may arise. RCL shall at all times
retain the RCL Lease Trust Certificates other than the RCL Lease Trust
Certificate (representing 1% of the aggregate RCL Lease Trust
Certificates).
Section 2.6 Declaration of Trust. The RCL Trustee hereby
declares that it shall hold all the RCL Assets, including all monies and
proceeds of such RCL Assets, in trust for the benefit of the RCL
Beneficiaries in accordance with their respective Percentage Interests from
time to time. Effective as of the date hereof, the RCL Trustee shall have
all rights, powers and duties set forth herein with respect to
accomplishing the purposes of RCL set forth in Section 2.3.
Section 2.7 Indemnification. Notwithstanding Section 3803 of
the Trust Statute, Ford Credit Leasing shall be liable to any injured party
entitled thereto and 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 ("Liabilities")
5
<PAGE> 10
of RCL, or incurred in connection with RCL Assets to the extent that Ford
Credit Leasing would be liable if RCL were a partnership under the Delaware
Revised Uniform Limited Partnership Act and Ford Credit Leasing was a
general partner thereof, and Ford Credit Leasing hereby covenants and
agrees that it will maintain capital in an amount sufficient to maintain
its status as a general partner of RCL and the Lease Trust; provided,
however, that in no event shall the RCL Trustee be indemnified or held
harmless for any Liabilities incurred (i) by reason of the RCL Trustee's
willful malfeasance, 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. In addition, if necessary, to the extent not otherwise
reimbursed, the RCL Trustee shall be entitled to indemnification from the
RCL Account, subject to the liens under the Basic Documents of the Lease
Trustee on behalf of the Lease Trust and the Indenture Trustee on behalf of
the Noteholders, for any claims against the RCL trustee the indemnification
for which is provided pursuant to this Section 2.7.
Section 2.8 Title to Trust Property. Legal title to all the RCL
Assets shall be vested at all times in RCL or, if required by applicable
law, the RCL Trustee or a co-trustee and/or a separate trustee, as the case
may be. The RCL Trustee or any such co-trustee and/or separate trustee
shall at all times hold the RCL Assets on behalf of the RCL Beneficiaries.
RCL shall not transfer any RCL Assets except as specifically provided in
the Basic Documents.
ARTICLE III
THE RCL BENEFICIARIES
Section 3.1 Restrictions on Transfer. Other than pursuant to
the RCL Assignment Agreement, neither Ford Credit nor Ford Credit Leasing
may transfer its beneficial interest in RCL to any Person. Notwithstanding
the foregoing, there shall be no restriction on the ability of RCL, acting
upon the joint instructions of the RCL Beneficiaries, to transfer, convey,
assign, lease and otherwise enter into agreements with respect to any or
all of the RCL Assets.
6
<PAGE> 11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Grantors.
Ford Credit and Ford Credit Leasing (each only as to itself) as Grantors
hereunder hereby each represent and warrant to the RCL Trustee that:
(a) it has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are presently owned and such business is presently
conducted;
(b) it is duly qualified to do business as a foreign corporation
in good standing, and has obtained all necessary licenses and approvals in
all jurisdictions in which the ownership or lease of property or the
conduct of its business requires such qualifications;
(c) it has the full power and authority to execute and deliver
this Agreement, to carry out its terms and to transfer, convey and deposit
the RCL Assets to be deposited with the RCL Trustee as part of RCL and has
duly authorized such acts by all necessary corporate action;
(d) the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice or lapse of time) a default under,
its certificate of incorporation or by-laws, or any indenture, agreement or
other instrument to which it is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument,
or violate any law or, to the best of its knowledge, any order, rule or
regulation applicable to it of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its properties; and
(e) this Agreement has been duly authorized, executed and
delivered by it and constitutes the legal,
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valid and binding agreement of it, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of RCL Account.
(a) The RCL Trustee, for the benefit of RCL, shall establish and
maintain in the name of the RCL Trustee an account known as the RCL Account
(the "RCL Account") in an office of the RCL Trustee, bearing an additional
designation clearly indicating that the funds deposited therein are held
for the benefit of RCL and Ford Credit Leasing as assignee under the RCL
Assignment Agreement.
(b) RCL and Ford Credit Leasing as assignee under the RCL
Assignment Agreement shall possess all right, title and interest in and to
all funds on deposit from time to time in the RCL Account and in all
proceeds thereof. The RCL Account shall be under the sole dominion and
control of the RCL Trustee for the benefit of the RCL Beneficiaries.
Section 5.2 Application of RCL Assets.
(a) All amounts received by the RCL Trustee with respect to
or as proceeds of RCL Assets shall be deposited into the RCL Account and
invested as directed by the RCL Beneficiaries. Unless express investment
instructions are given by the RCL Beneficiaries, the RCL Trustee shall not
be required to invest any amounts deposited in the RCL Account. The RCL
Trustee shall have no liability (i) for results of any investments taken or
omitted to be taken in accordance with the instructions of any RCL
Beneficiary, or (ii) for failing to take any action or to refrain from
taking any action for the reasons described in Sections 6.4(b) and 6.4(c).
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(b) Distributions of amounts in the RCL Account shall be made by
the RCL Trustee as directed by the RCL Beneficiaries to the extent that
funds have been deposited in the RCL Account after all payments have been
made under the Program Operating Lease, the Indenture and the Lease Trust
Agreement. Distributions from RCL Assets during the term of the Program
Operating Lease shall be distributed in accordance with the Program Operat-
ing Lease. After the effective date of the RCL Assignment Agreement, any
distribution directed by the RCL Beneficiaries shall be subject to such RCL
Assignment Agreement such that an amount equal to 1% of the aggregate
amount of such distribution shall be distributed to Ford Credit Leasing and
the remaining 99% of such aggregate amount shall be distributed to the RCL
Beneficiaries in accordance with their respective Percentage Interests in
RCL.
(c) As directed by the RCL Beneficiaries, the RCL Trustee
shall withdraw the amounts remaining on deposit in the RCL Account after
payment of the 1% due to Ford Credit Leasing pursuant to the RCL Assignment
Agreement and apply such amounts in the following order of priorities:
(i) to the RCL Trustee an amount equal to the sum of
(x) the fees payable to the RCL Trustee for its services hereunder and
(y) its reasonable expenses incurred in connection with the exercise
and performance of its rights and duties hereunder;
(ii) to pay any other amounts then owing by RCL to any
Person; and
(iii) as a distribution to the RCL Beneficiaries in
accordance with their respective Percentage Interests in accordance
with Section 5.2(b).
(d) On each Payment Date the RCL Trustee shall deliver to
each RCL Beneficiary and Ford Credit Leasing as assignee under the RCL
Assignment Agreement a report setting forth, (i) the amount of fees and
expenses paid to the RCL Trustee pursuant to Section 5.2(c)(i), and (ii)
the amount of distributions paid to each RCL Beneficiary pursuant to
Section 5.2(c)(ii).
Section 5.3 Accounting and Reports to RCL Beneficiaries, the
Internal Revenue Service and Others.
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The RCL Trustee shall (a) maintain (or cause to be maintained) the books of
RCL on a calendar year basis on the accrual method of accounting, (b)
deliver to each RCL Beneficiary such information as may be required by the
Code and applicable Treasury Regulations or otherwise, including such
information as may be required to enable each RCL Beneficiary to prepare
its federal income tax returns, (c) file any tax returns relating to RCL
and make such elections as may from time to time be required or appropriate
under any applicable state or federal statute or rule or regulation
thereunder in accordance with Section 11.1 and (d) 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 a RCL Beneficiary to sign such documents, in which
case such documents shall be signed by Ford Credit Leasing. To the extent
one may be required, Ford Credit Leasing shall be the "tax matters partner"
of RCL pursuant to the Code.
Section 5.5 Series 1995-1 Collection Account. (a) The Series
1995-1 Collection Account has been established pursuant to the Series
1995-1 Supplement at an Eligible Institution (which initially shall be
________) by the Administrative Agent in the name of the RCL Trustee for
the benefit of RCL. The Series 1995-1 Collection Account shall be under
the sole dominion and control of the RCL Trustee; provided, that the rights
of the RCL Trustee with respect to the Series 1995-1 Collection Account and
to any funds on deposit from time to time therein shall be subject to the
security interest of the Indenture Trustee until the Outstanding Amount of
the Notes has been reduced to zero, and thereafter, to the security
interest of the Lease Trustee, until the Aggregate Certificate Balance has
been reduced to zero; provided, further, that the Administrative Agent may
make deposits to and withdrawals from the Series 1995-1 Collection Account
in accordance with clause second of Section 5.2(c) and Section 5.2(d) of
the FCTT Agreement, Section 6.2(b) of the Administrative Agency Agreement
and Section 5.2(a) of the Supplement. All deposits to and withdrawals
from the Series 1995-1 Collection Account shall be made only upon the terms
and conditions of the Basic Documents.
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(b) Any amounts on deposit in the Series 1995-1 Collection
Account shall be invested by the Administrative Agent, acting on behalf of
the RCL Trustee and at the direction of the RCL Beneficiaries, in Permitted
Investments with a maturity date no later than the next succeeding Payment
Date. All investment earnings on amounts deposited in the Series 1995-1
Collection Account, including any proceeds thereof, shall be credited to
the Series 1995-1 Collection Account, and losses, if any, resulting from
Permitted Investments in the Series 1995-1 Collection Account shall be
charged to the Series 1995-1 Collection Account. All such investment
income shall be reported for federal income tax purposes as earned (i) 99%
by RCL and (ii) 1% by Ford Credit Leasing, and the 99% accruing to RCL
shall be reported in accordance with the Percentage Interests of Ford
Credit and Ford Credit Leasing in RCL. The authority of the Administrative
Agent to make deposits to and withdrawals from the Series 1995-1 Collection
Account and to invest the amounts on deposit therein is revocable at any
time by the RCL Trustee acting at the direction of the Indenture Trustee
until the Outstanding Amount of Notes has been reduced to zero, and
thereafter, the Lease Trustee until the Aggregate Certificate Balance has
been reduced to zero. If the institution at which the Series 1995-1
Collection Account is established ceases to be an Eligible Institution, the
RCL Trustee shall cause the Series 1995-1 Collection Account to be moved to
an Eligible Institution within 10 Business Days (or such longer period not
to exceed 30 calendar days as to which each Rating Agency may consent).
Section 5.6 Series 1995-1 Payahead Account. (a) The Series
1995-1 Payahead Account has been established pursuant to the Series 1995-1
Supplement at an Eligible Institution (which initially shall be
___________) by the Administrative Agent in the name of the RCL Trustee for
the benefit of RCL. The Series 1995-1 Payahead Account shall be under the
sole dominion and control of the RCL Trustee; provided, that the rights of
the RCL Trustee with respect to the Series 1995-1 Payahead Account and to
any funds on deposit from time to time therein shall be subject to the
security interest of the Indenture Trustee until the Outstanding Amount of
the Notes has been reduced to zero, and thereafter, to the security
interest of the Lease Trustee,until the Aggregate Certificate Balance has
been reduced to zero; pro-
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vided, further, that the Administrative Agent may make deposits to and
withdrawals from the Series 1995-1 Payahead Account in accordance with
Section 6.1(a) of the Administrative Agency Agreement and Section 5.2(b) of
the Supplement. All deposits to and withdrawals from the Series 1995-1
Payahead Account shall be made only upon the terms and conditions of the
Basic Documents.
Any amounts on deposit in the Series 1995-1 Payahead Account
shall be invested by the Administrative Agent, acting on behalf of the RCL
Trustee and at the direction of the RCL Beneficiaries, in Permitted
Investments with a maturity date no later than the next succeeding Payment
Date. All investment earnings on amounts deposited in the Series 1995-1
Payahead Account, including any proceeds thereof, shall be credited to the
RCL Account, and losses, if any resulting from Permitted Investments in the
Series 1995-1 Payahead Account shall be charged to the RCL Account. All
such investment income shall be reported for federal income tax purposes as
earned (i) 99% by RCL and (ii) 1% by Ford Credit Leasing, and the 99%
accruing to RCL shall be reported in accordance with the Percentage
Interests of Ford Credit and Ford Credit Leasing in RCL. The authority of
the Administrative Agent to make deposits to and withdrawals from the
Series 1995-1 Payahead Account and to invest the amounts on deposit therein
is revocable at any time by the RCL Trustee, acting at the direction of
the Indenture Trustee until the Outstanding Amount of Notes has been
reduced to zero, and thereafter, the Lease Trustee, until the Aggregate
Certificate Balance has been reduced to zero. If the institution at which
the Series 1995-1 Payahead Account is established ceases to be an Eligible
Institution, the RCL Trustee shall cause the Series 1995-1 Payahead Account
to be moved to an Eligible Institution within 10 Business Days (or such
longer period not to exceed 30 calendar days as to which each Rating Agency
may consent.
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ARTICLE VI
RCL TRUSTEE
Section 6.1 Duties of RCL Trustee. (a) The RCL Trustee shall
perform such duties, and only such duties, as are specifically set forth in
this Agreement, including the conservation of RCL and the RCL Assets in the
interest of the RCL Beneficiaries. No implied covenants or obligations
shall be read into this Agreement.
(b) In the absence of bad faith on its part, the RCL Trustee may
conclusively rely upon certificates or opinions furnished to the RCL
Trustee and conforming to the requirements of this Agreement in determining
the truth of the statements and the correctness of the opinions contained
therein; provided, however, that the RCL Trustee shall have examined such
certificates or opinions so as to determine compliance of the same 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
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.
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(e) No RCL Beneficiary shall direct the RCL Trustee to take any
action that (i) is inconsistent with the purposes of RCL set forth in
Section 2.3 or (ii) would result in RCL's 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
inconsistent with the purposes of RCL set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the RCL Trustee,
result in RCL's becoming taxable as an "association" for federal income tax
or state income or franchise tax purposes.
Section 6.2 Rights of RCL Trustee. The RCL Trustee is
authorized and directed to execute and deliver this Agreement and each
certificate or other document attached as an exhibit to or contemplated by
this Agreement to which RCL is to be a party, in such form as the RCL
Beneficiaries shall approve as evidenced conclusively by the RCL Trustee's
execution thereof. The RCL Beneficiaries shall 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 would be contrary to Section 2.3, nor shall the RCL Trustee be
obligated to follow any such direction, if given.
Section 6.3 Acceptance of Trusts and Duties. Except as
otherwise provided in this Article VI, in accepting the trusts hereby
created, The Chase Manhattan Bank (USA) 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 shall look only to the RCL Assets available for payment or
satisfaction thereof. The RCL Trustee accepts the trusts hereby created
and agrees to perform its duties hereunder with respect to such trusts but
only upon the terms of this Agreement. The RCL Trustee also agrees to
disburse all moneys actually received by it constituting part of the RCL
Assets upon the terms of this Agreement. The RCL Trustee shall not be
liable or accountable hereunder under any circumstances, except (i) 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
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subject to the exceptions set forth in the preceding sentence):
(a) the RCL Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of any RCL Beneficiary;
(b) no provision of this Agreement shall require the RCL Trustee
to expend or risk funds or otherwise incur any financial liability in
the performance of any of its rights or powers hereunder, if the RCL
Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(c) the RCL Trustee shall not be responsible for or in respect
of and makes no representation as to the validity or sufficiency of
any provision of this Agreement or for the due execution hereof by
Ford Credit and Ford Credit Leasing or for the form, character,
genuineness, sufficiency, value or validity of any of the RCL Assets
or any related documents, and the RCL Trustee shall in no event assume
or incur any liability, duty or obligation to any RCL Beneficiary,
other than as expressly provided for herein; and
(d) the RCL Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement, at the request, order or
direction of any RCL Beneficiary, unless such RCL Beneficiary has
offered to the RCL Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by
the RCL Trustee therein or thereby. The right of the RCL Trustee to
perform any discretionary act enumerated in this Agreement shall not
be construed as a duty, and the RCL Trustee shall not be answerable
for other than its negligence or willful misconduct in the performance
of any such act.
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Section 6.4 Action upon Instruction by RCL Beneficiaries.
(a) The RCL Beneficiaries may direct the RCL Trustee to take
action or refrain from taking action permitted hereunder and under the
other Basic Documents with respect to the RCL Assets in which they have a
beneficial interest. Such direction may be exercised at any time by
written instructions of the RCL Beneficiaries holding a 100% beneficial
interest in RCL.
(b) Notwithstanding the foregoing, the RCL Trustee shall not be
required to take any action or refrain from taking any action hereunder if
the RCL Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in liability on
the part of the RCL Trustee or is contrary to the terms hereof or is
otherwise contrary to law.
(c) Whenever the RCL Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement, the RCL Trustee may request an
Opinion of Counsel as to such application, intent, interpretation or
meaning, or may give notice (in such form as shall be appropriate under the
circumstances) to the RCL Beneficiaries requesting instruction as to the
course of action to be adopted, and, to the extent the RCL Trustee acts in
good faith in accordance with such Opinion of Counsel or any such
instruction received from such RCL Beneficiaries, as the case may be, the
RCL Trustee shall not be liable on account of such action to any Person.
If the RCL Trustee shall not have received an Opinion of Counsel or
appropriate instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action which is consistent, in its
view, with this Agreement, and as it shall deem to be in the best interests
of the RCL Beneficiaries, and the RCL Trustee shall have no liability to
any Person for any such action or inaction.
Section 6.5 Furnishing of Documents. The RCL Trustee shall
furnish to the RCL Beneficiaries, promptly
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upon receipt of a written request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the RCL Trustee by the Administrative
Agent or otherwise.
Section 6.6 Representations and Warranties of RCL Trustee. The
RCL Trustee hereby represents and warrants to the RCL Beneficiaries that:
(a) it is a banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(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) shall not violate any provision of any 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 by-laws of the RCL Trustee, and
(iii) shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, any mortgage, indenture,
contract, agreement or other undertaking to which 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
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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
contemplated by governmental authorities or threatened by others, other
than such proceedings which will not have a material adverse effect upon
the general affairs, financial position, net worth or results of operations
(on an annual basis) of the RCL Trustee and will not materially and
adversely affect the performance by the RCL Trustee of its obligations
under, or the validity and enforceability of this Agreement.
Section 6.7 Reliance; Advice of Counsel.
(a) The RCL Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper
believed by it 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 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,
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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
Notes. The RCL Trustee in its individual or any other capacity may become
the owner or pledgee of Lease Trust Certificates or Notes and may deal with
the RCL Beneficiaries, the Administrative Agent, the Lease Trustee and the
Indenture Trustee in transactions in the same manner as it would have if it
were not the RCL Trustee.
Section 6.9 Compensation. The RCL Trustee shall receive as
compensation for its services hereunder such fees as shall be separately
agreed upon from time to time between the RCL Beneficiaries and the RCL
Trustee. The RCL Trustee shall be entitled at all times to be reimbursed
for its reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, custodians,
nominees, representatives, experts and counsel as the RCL Trustee may
employ in connection with the exercise and performance of its rights and
its duties hereunder. Such fees and reimbursements shall be paid first,
from RCL Assets in accordance with Section 5.2(c), and second, to the
extent of any shortfall, directly by the RCL Beneficiaries in accordance
with their respective Percentage Interests.
Section 6.10 Resignation or Removal of RCL Trustee. (a) The
RCL Trustee shall not resign without the consent of the RCL Beneficiaries
unless (i) the RCL Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13, (ii) the RCL Trustee shall be incapable of
acting or it shall be illegal for the RCL Trustee to act, or (iii) the RCL
Trustee shall have given at least 60 days' prior written notice to the RCL
Beneficiaries.
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(b) The RCL Beneficiaries may remove the RCL Trustee (and shall
remove the RCL Trustee in the case of the occurrence of an event described
in clause (i) or (iv)):
(i) if the RCL Trustee shall cease to be eligible in accordance
with the provisions of Section 6.13 and shall fail to resign after
written request therefor by the RCL Beneficiaries;
(ii) if the RCL Trustee shall become bankrupt or insolvent;
(iii) if a receiver or other public officer shall be appointed
or takes charge or control of the RCL Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation; or
(iv) if the RCL Trustee shall otherwise be incapable of acting
or it shall be illegal for the RCL Trustee to act.
(c) If the RCL Trustee is removed or if a vacancy exists in the
office of trustee for any reason, the RCL Beneficiaries shall promptly
appoint a successor trustee by written instrument, in duplicate (one copy
of which instrument shall be delivered to the outgoing trustee so removed
and one copy to the successor trustee). If a successor trustee shall not
have been appointed within 30 days after the giving of a written notice of
resignation or the delivery of the written instrument with respect to such
removal, the RCL Trustee or the RCL Beneficiaries may apply to any court of
competent jurisdiction to appoint a successor trustee to act until such
time, if any, as a successor trustee shall have been appointed as provided
above. Any successor trustee so appointed by such court shall upon 30 days
written notice from the RCL Beneficiaries be superseded by any successor
trustee appointed as provided above within one year from the date of the
appointment by such court.
(d) Any resignation or removal of the RCL Trustee and
appointment of a successor trustee pursuant to any of the provisions of
this Section 6.10 shall not become effective until a written acceptance of
appointment is delivered by the successor trustee. Any succes-
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sor trustee appointed pursuant to this Section 6.10 shall be eligible to
act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as trustee.
(e) The predecessor trustee shall upon payment of its fees and
expenses deliver to the successor trustee all books, records, accounts,
documents and statements and monies held by it under this Agreement. The
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations. The predecessor trustee shall cooperate with the successor
trustee to ensure that the successor trustee has all books, records,
accounts, documents, 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
resulting from any merger, conversion or consolidation to which the RCL
Trustee shall be a party, or any corporation or other Person succeeding to
all or substantially all of the corporate trust business of the RCL
Trustee, shall be the successor of the RCL Trustee hereunder, provided such
corporation shall be eligible in accordance with the provisions of Section
6.13, without, unless otherwise required by law, the execution or filing
of any instrument or any further act on the part of any of the parties
hereto.
Section 6.12 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any
RCL Assets may at the time be located, the RCL Beneficiaries acting jointly
shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the RCL Beneficiaries to act as co-
trustee, jointly with the RCL Trustee, or as separate trustee or trustees,
of all or any part of RCL and
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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
Beneficiaries and the RCL Trustee may consider necessary or desirable. No
co-trustee or separate trustee under this Agreement shall be required to be
eligible in accordance with the provisions of Section 6.13; provided that
no co-trustee or separate trustee under this Agreement may be a RCL
Beneficiary or any Affiliate thereof.
(b) Each co-trustee and separate trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the RCL Trustee shall be conferred upon and exercised or
performed by the RCL Trustee and such co-trustee or separate trustee
jointly (it being understood that such co-trustee or separate trustee
is not authorized to act separately without the RCL Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, the RCL
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to RCL or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such co-
trustee or separate trustee, but solely at the direction of the RCL
Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the RCL Beneficiaries and the RCL Trustee acting jointly
may at any time accept the resignation of or remove any co-trustee or
separate trustee.
(c) Any notice, request or other writing given to the RCL
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any co-trustee or separate trustee shall
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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 each RCL Beneficiary.
(d) Any co-trustee or separate trustee may at any time appoint
the RCL Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any co-
trustee or separate trustee shall become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the RCL Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 6.13 Eligibility Requirements for RCL Trustee. The RCL
Trustee or any successor trustee, as the case may be, shall at all times:
(a) be a corporation or a banking association organized under the laws of
the United States of America or any state thereof; (b) be authorized to
exercise corporate trust powers; (c) be qualified to act as a trustee and
hold RCL Assets in those states in which RCL Assets are located (or have
appointed a co-trustee or separate trustee to hold RCL Assets in such
state); and (d) have its principal place of business in the State of
Delaware.
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<PAGE> 28
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 2.7) and RCL shall terminate
and be of no further force or effect on the earlier of: (i) the final
distribution by the RCL Trustee of all moneys or other property
constituting RCL Assets; and (ii) notwithstanding the provisions of Section
3808 of the Trust Statute, the Bankruptcy or insolvency of Ford Credit
Leasing. This Agreement and RCL may also terminate at the express written
direction of the RCL Beneficiaries so long as the Series 1995-1
Certificates are not outstanding. Notwithstanding the foregoing, in no
event, however, shall RCL continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Hurled David Smith,
currently residing in Clarkston, Michigan, living on the date of this
Agreement.
(b) Upon termination of RCL, after satisfaction of all creditors, if
any, of RCL, the RCL Assets shall be distributed to the RCL Beneficiaries
in accordance with Section 5.2(b).
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. (a) This Agreement may be amended by
the RCL Beneficiaries and the RCL Trustee at any time; provided, however,
that such action shall not, (x) as evidenced by an Opinion of Counsel,
materially and adversely affect the interests of any Holder of a Series
1995-1 Certificate (unless each such Holder has consented thereto), (y) as
confirmed by each Rating Agency rating the Notes and the Lease Trust
Certificates, cause the then current rating of any Class of 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 Notes as debt for
federal income tax purposes, (ii) be deemed to cause a taxable exchange of
the Notes for federal income tax purposes or (iii) cause RCL, FCTT or the
Lease Trust to be taxed as an "association" or publicly traded partnership
taxable as a corporation for federal income tax purposes.
24
<PAGE> 29
ARTICLE IX
TAX MATTERS
SECTION 9.1 Tax Characterization. It is the intention of the
parties hereto that, for purposes of federal, state and local income taxes
and state franchise taxes, and the Michigan Single Business Tax, RCL shall
be treated as a grantor trust. The parties agree that, unless otherwise
required by appropriate tax authorities, RCL shall file or cause to be
filed annual or other necessary returns, reports and other forms consistent
with the characterization of RCL as a grantor trust for such tax purposes.
If, however, RCL is characterized as a separate entity for federal income
tax or state income or franchise tax purposes other than a grantor trust,
it is the intention of the parties hereto that it qualify as a partnership
for such purposes.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Legal Title to RCL Assets; Direction of RCL
Trustee Actions. The RCL Beneficiaries shall not have legal title to any
RCL Assets. The RCL Beneficiaries shall be entitled to receive
distributions with respect to their undivided beneficial interest therein
only in accordance with Articles V and VII. Notwithstanding anything
herein to the contrary, the RCL Trustee shall take no action with respect
to any RCL Asset except as provided in the Basic Documents or upon
direction of the RCL Beneficiaries.
Section 10.2 Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the RCL Trustee, the Grantors
and the RCL Beneficiaries and nothing in this Agreement, whether 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 Grantors, the RCL Beneficiaries and the RCL Trustee shall be
in writing, and shall be personally delivered, sent by electronic facsim-
25
<PAGE> 30
ile or overnight delivery service or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given to the
intended recipient upon receipt at the respective addresses listed below,
or at such other address as shall be designated by such Person in a written
notice to the other parties to this Agreement.
(i) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Treasurer
Fax: 313-594-0735
Telephone: 313-845-4072
(ii) In the case of Ford Credit:
Ford Motor Credit Company
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
(iii) In the case of the RCL Trustee
The Chase Manhattan Bank (USA)
802 Delaware Avenue
Wilmington, Delaware 19801
Attention: Trust Department
Fax: __________
Telephone: __________
With a copy to:
The Chase Manhattan Bank, N.A.
4 Chase Metro Tech Center
Brooklyn, New York 11245
Any notice to be delivered to any RCL Beneficiary which is a
permitted assignee hereunder of either initial RCL Beneficiary, shall be
delivered at the address provided to the RCL Trustee by such Person.
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<PAGE> 31
Section 10.4 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement, or
the rights of any RCL Beneficiaries.
Section 10.5 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
Section 10.6 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of the RCL Trustee and each RCL Beneficiary and their respective successors
and permitted assigns. Any request, notice, direction, consent, waiver or
other instrument or action by a RCL Beneficiary shall bind the successors
and assigns of such RCL Beneficiary.
Section 10.7 No Recourse. Each RCL Beneficiary, acknowledges
that such RCL Beneficiary holds a beneficial interest in RCL only and does
not have any other interest in the property or assets of RCL or the RCL
Trustee.
Section 10.8 No Petition. The RCL Trustee shall not have the
power to commence a voluntary proceeding in bankruptcy relating to RCL
without having an independent reasonable good faith belief that RCL is
insolvent and having received the unanimous prior approval of all RCL
Beneficiaries and the delivery to the RCL Trustee by each such RCL
Beneficiary of a certificate certifying that such RCL Beneficiary
reasonably believes that RCL is insolvent. Notwithstanding the foregoing,
the RCL Trustee and Ford Credit each hereby covenants that for a period of
one year and one day after payment in full of the Series 1995-1
Certificates pursuant to the terms of this Agreement, it will not institute
against, or join any Person in instituting against, FCTT or Ford Credit
Leasing any bankruptcy, reorganization, insolvency
27
<PAGE> 32
or liquidation proceeding, or other similar proceeding, under the laws 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 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.
28
<PAGE> 33
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.
THE CHASE MANHATTAN BANK (USA),
as trustee
By:
---------------------------
Name:
Title:
FORD CREDIT LEASING COMPANY, INC.,
as a Grantor and RCL Beneficiary
By:
---------------------------
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as a Grantor and RCL Beneficiary
By:
---------------------------
Name:
Title:
<PAGE> 34
EXHIBIT A
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
RCL TRUST 1995-1
THIS Certificate of Trust of RCL TRUST 1995-1 (the "Trust"),
dated as of _______________, 1995, is being duly executed and filed by The
Chase Manhattan Bank (USA), a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is RCL
TRUST 1995-1.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are The Chase Manhattan Bank
(USA), 802 Delaware Avenue, Wilmington, Delaware 19801.
3. This Certificate of Trust shall be effective on ___________
__, 1995.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
the Trust, has executed this Certificate of Trust as of the date first
above written.
THE CHASE MANHATTAN BANK (USA),
not in its individual capacity
but solely as RCL Trustee
under an Amended and Restated
Trust Agreement, dated as
of __________ __ , 1995
By:___________________________
Name:
Title:
<PAGE> 35
EXHIBIT B
[Form of RCL Assignment Agreement]
Reference is made to RCL Trust 1995-1, continued pursuant to the
Amended and Restated Trust Agreement, dated as of ______ ___, 1995 (the
"RCL Trust Agreement"), among Ford Motor Credit Company ("Ford Credit"),
Ford Motor Credit Leasing, Inc. ("Ford Credit Leasing") and The Chase
Manhattan Bank (USA), as trustee (in such capacity, the "RCL Trustee").
Terms which are used in this RCL Assignment Agreement but are not defined
herein have the meanings assigned to them in the RCL Trust Agreement.
As contemplated by Section 2.3 of the RCL Trust Agreement, RCL
Trust 1995-1 hereby assigns, transfers and otherwise conveys to Ford Credit
Leasing a 1% interest in each asset, right, and liability of RCL Trust
1995-1, including each RCL Asset and the obligations of RCL Trust 1995-1
under the Program Operating Lease and Ford Credit Leasing hereby accepts
such assignment, transfer and conveyance. Such assignment, transfer and
conveyance shall include the assignment of a RCL Lease Trust Certificate
evidencing 1% of the RCL Lease Trust Certificates and any amounts payable
to RCL Trust 1995-1 pursuant to the Transfer Agreement. Ford Credit and
Ford Credit Leasing hereby agree that after giving effect to such
assignment, transfer and conveyance, Ford Credit Leasing's percentage
beneficial interest in RCL Trust 1995-1 shall be reduced from 2% to the
percentage equivalent of a fraction, the numerator of which is 1 and the
denominator of which is 99, and Ford Credit's percentage beneficial
interest in RCL Trust 1995-1 shall be increased from 98% to the percentage
equivalent of a fraction, the numerator of which is 98 and the denominator
of which is 99. Accordingly, 1% all funds coming into the possession of
RCL, that are not required to be held or paid over to the Lease Trust by
the property of Ford Credit Leasing and shall be paid by the RCL Trustee to
Ford Credit Leasing.
This RCL Assignment Agreement is made pursuant to and in reliance
upon the representations, warranties and agreements set forth in the RCL
Trust Agreement.
THIS RCL ASSIGNMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS, AND THE
B-1
<PAGE> 36
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-2
<PAGE> 37
IN WITNESS WHEREOF, the parties hereto have caused this RCL
Assignment Agreement to be duly executed as of _________ __, 1995.
RCL TRUST 1995-1,
assignor
By: THE CHASE MANHATTAN BANK (USA), not in its
individual capacity but solely as trustee,
By: ______________________
Name:
Title:
FORD CREDIT LEASING COMPANY, INC.,
as assignee and RCL Beneficiary,
By: ______________________
Name:
Title:
FORD MOTOR CREDIT COMPANY, as
RCL Beneficiary
By: ______________________
Name:
Title:
B-1
<PAGE> 1
EXHIBIT 3.4
CERTIFICATE OF INCORPORATION
OF
FORD CREDIT LEASING COMPANY, INC.
ARTICLE I
The name of the corporation is Ford Credit Leasing Company, Inc.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
the corporation is to engage in the following activities:
(a) to acquire from time to time all right, title and interest
in and to: new or used motor vehicles, farm or industrial equipment, including
automobiles, light and heavy duty trucks, tractors and recreational vehicles;
leases of such motor vehicles, farm or industrial equipment; all monies due
thereunder; proceeds from claims on insurance policies related thereto, and all
related rights (collectively, "Receivables");
(b) to acquire from time to time undivided beneficial
interests in a trust which holds all legal right, title and interest in and to
Receivables;
(c) to acquire, own, hold, service, sell, assign and pledge and
otherwise deal with Receivables and with such undivided beneficial interest in
a trust holding the Receivables and the proceeds and further rights associated
therewith;
<PAGE> 2
(d) to redeem such undivided beneficial interest in a trust
holding the Receivables in exchange for a divided beneficial interest in
certain Receivables in such trust (each such interest a "Beneficial Receivables
Interest");
(e) to hold and enjoy all of the rights and privileges of a
holder of an undivided beneficial interest in a trust which holds Receivables;
to hold and enjoy all the rights and privileges of the holder of a Beneficial
Receivables Interest; and to hold and enjoy all the rights and privileges of
the owner of Receivables;
(f) to pledge, convey, sell, assign and transfer Beneficial
Receivables Interests to trusts or other entities (each a "Trust") pursuant to
one or more trust agreements, purchase and sale agreements, or other agreements
(the "Agreements");
(g) to hold and enjoy all of the rights and privileges of any
certificates or other indicia of beneficial ownership issued by the Trusts to
the corporation under the related Agreements;
(h) to perform its obligations under the Agreements and any
other agreements to which the corporation might be a party; and
(i) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware that are
related or incidental to the foregoing and necessary, convenient or advisable to
accomplish the foregoing.
ARTICLE IV
(a) Notwithstanding any other provision of this Certificate of
Incorporation and any provision of law that otherwise so empowers the
corporation, the corporation shall not, without the prior written consent of
(i) any trustee under any indenture or other agreement (each, an "Indenture")
entered into by any trust, corporation or other entity (each, a "Securitization
Trust") which holds or has an interest in a Beneficial Receivables Interest and
has issued note or certificates (col-
2
<PAGE> 3
lectively, "Notes") pursuant to an Indenture and (ii) each nationally
recognized rating agency which has been requested to rate any issue of Notes or
any series or class of Notes of any Securitization Trust and which is then
rating such Notes, do any of the following:
(i) engage in any business or activity other than those set forth
in Article III;
(ii) incur any indebtedness, or assume or guaranty any indebtedness
of any other entity, other than any indebtedness to Ford Motor Credit
Company, any affiliate thereof or any trust or other entity incurred in
connection with the acquisition of Receivables, which indebtedness shall
be subordinated to all other obligations of the corporation;
(iii) dissolve or liquidate, in whole or in part; consolidate or
merge with or into any other entity or convey or transfer its properties and
assets substantially as an entirety to any entity, unless:
(A) the entity (if other than the corporation) formed or
surviving the consolidation or merger of which acquires the properties and
assets of the corporation is organized and existing under the laws of the
State of Delaware, expressly assumes the due and punctual payment of, and
all obligations of the corporation, including those obligations of the
corporation under any Agreement, and has a Certificate of Incorporation
containing provisions identical to the provisions of Article III, this
Article IV and Article XV; and
(B) immediately after giving effect to the transaction,
no default or event of default has occurred and is continuing under any
indebtedness of the corporation or any agreements relating to such
indebtedness; or
(iv) without the affirmative vote of 100% of the members of the
Board of Directors of the corporation, institute proceedings to be
adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it,
3
<PAGE> 4
or file a petition seeking or consent to reorganization or relief
under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the corporation
or a substantial part of its property, or make any assignment for the
benefit of creditors, or admit in writing its inability to pay its
debts generally as they become due, or take corporate action in
furtherance of any such action.
(b) At all times during the existence of a Rating Event, the
Board of Directors shall include at least two individuals who are independent
Directors. Notwithstanding anything to the contrary contained herein or in the
corporation's by-laws, upon the occurrence of a Rating Event the authorized
number of directors established by the Board of Directors shall be increased by
the excess, if any, of two over the number of directors who are then
Independent Directors. Any such vacancies shall be filled promptly with
individuals who are Independent Directors. A "Rating Event" shall be deemed to
have occurred upon the earlier to occur of (i) the downgrading of Ford Motor
Credit Company's short-term unsecured debt to or below (A) A-2 by Standard &
Poor's Corporation ("S&P") or (B) P2 by Moody's Investors Service, Inc.
("Moody's") or (ii) the downgrading of Ford Motor Credit Company's senior
long-term debt to or below (A) A-by S&P or (B) A3 by Moody's, and shall be
deemed to exist only for so long as (x) Ford Motor Credit Company's short-term
unsecured debt is rated at or below (A) A-2 by S&P or (B) P2 by Moody's or (y)
Ford Motor Credit Company's senior long-term debt is rated at or below (A) A-
by S&P or (B) A3 by Moody's. An "Independent Director" shall be an individual
who is not at such time, and shall not have been at any time during the
preceding five years (i) a director, officer, employee or affiliate of Ford
Motor Credit Company or any of its subsidiaries or affiliates, or of any major
creditor thereof, or (ii) the beneficial owner at the time of such individual's
appointment as an Independent Director or at any time thereafter while serving
as an Independent Director, of more than 1,000 shares in the aggregate of all
classes of common stock of Ford Motor Company, or if greater, such number of
shares the value of which constitutes more than 10% of such individual's net
worth. The term "major creditor" shall mean a financial institution to which
4
<PAGE> 5
Ford Motor Credit Company has outstanding indebtedness for borrowed money in a
sum sufficiently large as would reasonably be expected to influence the
judgment of the proposed Independent Director adversely to the interests of the
corporation when its interests are adverse to those of Ford Motor Credit
Company.
ARTICLE V
(a) A director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of
loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law,
(iii) under Section 174 of the Delaware General
Corporation Law or
(iv) for any transaction from which the director
derived an improper personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this Article V to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
(b) Any repeal or modification of paragraph (a) of this
Article V by the stockholders of the corporation shall not adversely affect
any right or protection of a director of the corporation existing at the time
of such repeal or modification.
(c) (i) Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or
5
<PAGE> 6
otherwise (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is
or was a director, officer or employee of the corporation or is or was
serving at the request of the corporation as a director, officer or
employee of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer or employee or in any
other capacity while serving as a director, officer or employee, shall
be indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law
permitted the corporation to provide prior to such amendment), against
all expense, liability and loss (including penalties, fines,
judgments, attorneys' fees, amounts paid or to be paid in settlement
and excise taxes imposed on fiduciaries with respect to (i) employee
benefit plans, (ii) charitable organizations or (iii) similar matters)
reasonably incurred or suffered by such person in connection therewith
and such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit
of his or her heirs, executors and administrators; provided, however,
that the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person (other than pursuant to subparagraph (c)(ii)
of this Article V) only if such proceeding (or part thereof) was
authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this subparagraph (c)(i) of Article V
shall be a contract right and shall include the right to be paid by
the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law so requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other
6
<PAGE> 7
capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a
proceeding shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this
subparagraph (c)(i) of Article V or otherwise.
(ii) If a claim which the corporation is obligated to pay
under subparagraph (c)(i) of this Article V is not paid in full by the
corporation within 60 days after a written claim has been received by
the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is
required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard conduct set forth in the Delaware General Corporation Law,
nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the Claimant has
not met the applicable standard of conduct.
7
<PAGE> 8
(iii) The provisions of this paragraph (c) of Article V
shall cover claims, actions, suits and proceedings, civil or criminal,
whether now pending or hereafter commenced, and shall be retroactive
to cover acts or omissions or alleged acts or omissions which
heretofore have taken place. If any part of this paragraph (c) of
Article V should be found to be invalid or ineffective in any
proceeding, the validity and effect of the remaining provisions shall
not be affected.
(iv) The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final
disposition conferred in this paragraph (c) of Article V shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of
Incorporation, ByLaw, agreement, vote of stockholders or disinterested
directors or otherwise.
(v) The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or
agent of the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
(vi) The corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to
indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final
disposition, to any agent of the corporation to the fullest extent of
the provisions of this paragraph (c) of Article V with respect to the
indemnification and advancement of expenses of director, officers and
employees of the corporation.
ARTICLE VI
8
<PAGE> 9
The total number of shares of stock which the corporation has
authority to issue is 1,000 shares of Common Stock, with a par value of $1.00
per share.
ARTICLE VII
The name and mailing address of the sole incorporator are as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
<S> <C>
Richard P. Conrad The American Road
Dearborn, Michigan 48121
</TABLE>
ARTICLE VIII
The corporation is to have perpetual existence.
ARTICLE IX
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the corporation is expressly authorized to
make, alter or repeal the by-laws of the corporation.
ARTICLE X
Meeting of stockholders may be held within or outside the State of
Delaware, as the by-laws of the corporation may provide. The books of the
corporation may be kept outside the State of Delaware at such place or places
as may be designated from time to time by the board of directors or in the
by-laws of the corporation. Election of directors need not be by written
ballot unless the by-laws of the corporation so provide.
ARTICLE XI
If the By-Laws so provide, the stockholders and the directors may hold
their meetings, and the corporation may have one or more offices outside the
State of Delaware. The books of the corporation (subject to the
9
<PAGE> 10
provisions of the laws of the State of Delaware) may be kept outside of the
State of Delaware at such places as from time to time may be designated by the
Board of Directors.
ARTICLE XII
No contract, transaction or act of the corporation shall be affected
or invalidated by the fact that any of the directors of the corporation are in
any way interested in or connected with any other party to such contract,
transaction or act or are themselves parties to such contract, transaction or
act, provided that such interest shall be fully disclosed or otherwise known to
the Board of Directors, or a majority thereof, at a meeting of the Board at
which such contract, transaction or act is authorized, ratified or confirmed;
and any such director may be counted in determining the existence of a quorum
at any such meeting and may vote the rest in connection with such
authorization, ratification or confirmation with like force and effect as if he
were not so interested or connected or was not a party to such contract,
transaction or act.
ARTICLE XIII
The Board of Directors in its discretion may submit for approval,
ratification or confirmation by the stockholders at any meeting thereof any
contract, transaction or act of the Board or of any officer, agent or employee
of the corporation, and any such contract, transaction or act which shall have
been so approved, ratified or confirmed by the holders of Common Stock shall be
as valid and binding upon the corporation and upon the stockholders thereof as
though it had been approved and ratified by each and every stockholder of the
corporation.
ARTICLE XIV
Every asserted right of action by or on behalf of the corporation or
by or on behalf of any stockholder against any past, present or future member
of the Board of Directors, or any committee thereof, or any officer or
10
<PAGE> 11
employee of the corporation or any subsidiary thereof, arising out of
or in connection with any bonus, supplemental compensation, stock
investment, stock option or other plan or plans for the benefit of any
employee, irrespective of the place where such right of action may
arise or be asserted and irrespective of the place of residence of any
such director, member, officer or employee, shall cease and be barred
upon the expiration of three years from the later of the following
dates: (a) the date of any alleged act or omission in respect of which
such right of action may be asserted to have arising, or (b) the date
upon which the corporation shall have made generally available to its
stockholders information with respect to, as the case may be, the
aggregate amount credited for a fiscal year to a bonus or supplemental
compensation reserve, or the aggregate amount of awards in a fiscal
year of bonuses or supplemental compensation, or the aggregate amount
of stock optioned or made available for purchase during a fiscal year,
or the aggregate amount expended by the corporation during a fiscal
year in connection with any other plan for the benefit of such
employees, to all or any part of which such asserted right of action
may relate; and every asserted right of action by or on behalf of any
employee, past, present or future or any spouse, child, or legal
representative thereof, against this corporation or any subsidiary
thereof arising out of or in connection with any such plan
irrespective of the place where such asserted right of action may
arise or be asserted, shall cease and be barred by the expiration of
three years from the date of the alleged act or omission in respect of
which such right of action shall be asserted to have arisen.
ARTICLE XV
Without the prior written consent of each trustee under any
Indenture (and any supplements thereto) and each nationally recognized
rating agency which has been requested to rate any series or class of
Notes issued by any Securitization Trust and which is then rating such
Notes, the corporation shall not amend, alter, change or repeal
Article III, Article IV, this Article XV or Article XVI. Subject to
the foregoing limitation, the corporation reserves the right to amend,
alter, change or repeal any provision contained in this
11
<PAGE> 12
Certificate of Incorporation, in the manner now or hereafter prescribed by the
law of the State of Delaware, and all rights of the stockholders herein are
granted subject to this reservation.
ARTICLE XVI
(a) The corporation's assets will not be commingled with those of
any direct or ultimate parent of the corporation.
(b) The corporation will maintain separate corporate records and
books of account from those of any direct or ultimate parent of the corporation.
(c) The corporation will conduct its business from an office
separate from any direct or ultimate parent of the corporation.
ARTICLE XVII
The corporation expressly elects not to be governed by Section
203 of the General Corporation Law of the State of Delaware.
12
<PAGE> 13
IN WITNESS WHEREOF, the undersigned, being the incorporator of
the corporation, do hereby execute this Certificate of Incorporation this 27th
day of January, 1994.
Richard P. Conrad
-----------------
Richard P. Conrad
13
<PAGE> 1
FORD CREDIT LEASING COMPANY, INC. EXHIBIT 3.5
A DELAWARE CORPORATION
BY-LAWS
INDEX
<TABLE>
<CAPTION>
Page No.
<S> <C> <C> <C>
ARTICLE I Offices 1
-----------------
ARTICLE II Stockholders 1
-----------------
Section 1. Place of Meetings 1
Section 2. Annual Meeting 1
Section 3. Special Meeting 2
Section 4. Notice of Meetings 2
Section 5. Quorum and Plurality
Requirements 2
Section 6. Organization 3
Section 7. Proxies and Voting 3
Section 8. Stock Lists 3
Section 9. Ratification 3
Section 10. Consent in Lieu of Meeting 4
ARTICLE III Board of Directors 4
---------------------
Section 1. Number, Term of Office
and Eligibility 4
Section 2. Meetings 4
Section 3. Notice of Meetings 5
Section 4. Quorum and Organization
of Meetings 5
Section 5. Powers 6
Section 6. Reliance upon Book, Reports
and Records 8
Section 7. Compensation of Directors 8
ARTICLE IV Committees 8
------------------
Section 1. Committees of the Board
of Directors 8
Section 2. Rules and Procedures 9
ARTICLE V General Counsel 9
------------------
ARTICLE VI Officers 9
------------------
Section 1. Officers 9
Section 2. The Chairman of the Board
of Directors 9
Section 3. The President 10
Section 4. Vice Presidents and
Assistant Vice Presidents 10
Section 5. Treasurer and Assistant
Treasurers 10
Section 6. Secretary and Assistant
Secretaries 11
Section 7. Controller 11
Section 8. Salaries 12
</TABLE>
<PAGE> 2
-2-
<TABLE>
<S> <C> <C>
ARTICLE VII Resignations, Removals and Vacancies 12
------------------------------------
Section 1. Resignations 12
Section 2. Removals 12
Section 3. Vacancies 13
ARTICLE VIII Capital Stock-Dividends-Seal 13
---------------------------
Section 1. Certificates of Shares 13
Section 2. Addresses of Stockholders 13
Section 3. Lost, Destroyed or
Stolen Certificates 14
Section 4. Transfers of Stock 14
Section 5. Fixing a Record Date 14
Section 6. Registered Stockholders 15
Section 7. Regulations 15
Section 8. Corporate Seal 15
ARTICLE IX Contracts, Checks, Drafts, Banks Accounts, Etc.
--------------------------------------------
Section 1. Execution of Contracts 15
Section 2. Indebtedness 16
Section 3. Checks, Drafts, Etc. 16
Section 4. Deposits 16
ARTICLE X Fiscal Year 16
-----------
ARTICLE XI Miscellaneous 17
-------------
Section 1. Notice and Waivers Thereto 17
Section 2. Voting upon Stocks 17
ARTICLE XII Amendments 18
----------
</TABLE>
<PAGE> 3
FORD CREDIT LEASING COMPANY, INC.
BY-LAWS
ARTICLE I
OFFICES
The principal office of the Company shall be in the City of Wilmington,
County of New Castle, State of Delaware. The Company may also have an office
in or about the City of Dearborn, State of Michigan, and at such other places
as the Board of Directors may from time to time determine or as the business of
the Company may require. The books and records of the Company may be kept
(except as otherwise provided by law) at the office of the Company in or about
the City of Dearborn, State of Michigan, outside of the State of Delaware, or
at such other places as from time to time may be determined by the Board of
Directors.
ARTICLE II
STOCKHOLDERS
SECTION 1. Place of Meetings.
All meetings of the stockholders for the election of directors shall be held
at the office of the Company in or about the City of Dearborn, State of
Michigan or such other place as the Chairman of the Board of Directors may from
time to time determine. Any meeting of the stockholders for any other purpose
may be held at such place, within or without the State of Delaware, and at such
time as shall be stated in the notice or waiver of notice thereof.
SECTION 2. Annual Meeting.
The annual meeting of stockholders for the election of directors shall be
held a 10:00 o'clock in the forenoon, Standard Time of the place where the
meeting is held, on the fourth Monday of February in each and every year, if
not a legal holiday, and if a legal holiday then on the next day not a legal
holiday, and at such meeting the stockholders shall elect by ballot a Board of
Directors and may transact such other business as may come before the meeting.
The stockholders entitled to vote at the annual meeting of stockholders shall
be the stockholders of record at the close of business on the fourth Monday of
January in each and every year, if not a legal holiday, and if a legal holiday
then on the next day not a legal holiday, provided, however, that prior to such
record date, the Board of Directors may designate, pursuant to Section 5 of
Article VIII, another day as the record date in lieu thereof.
_______________
Art. First
Art. Second, Secs. 1 & 2
<PAGE> 4
SECTION 3. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, unless
otherwise provided by law, may be called by the Chairman of the Board of
Directors, the President or by a majority of the Board of Directors, and shall
be called by the Chairman of the Board of Directors, the President or the
Secretary whenever the holders of record of a majority of the Common Stock
outstanding shall file with the Secretary a written application for such
meeting. Such application shall state the purpose or purposes of the proposed
meeting.
SECTION 4. Notice of Meetings.
Except as otherwise provided by law, at least ten (10) days' notice of
stockholders' meetings stating the time and place and the purposes thereof
shall be given by the Chairman of the Board of Directors, the President or the
Secretary to each stockholder of record having voting power in respect of the
business to be transacted thereat.
SECTION 5. Quorum and Plurality Requirements.
At any meeting of the stockholders, the holders of a majority of the Common
Stock issued and outstanding, present in person or represented by proxy, shall
constitute a quorum for the transaction of business except as otherwise
provided by statute or by the Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the holders of the Common Stock present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified.
When a quorum is present at any meeting, the vote of the holders of a
majority of the Common Stock present in person or represented by proxy shall
decide any question brought before such meeting, unless the question is one
upon which by express provision of the statutes or of the Certificate of
Incorporation a different vote is required in which case such express provision
shall govern and control the decision of such question.
___________________________
Art. Second, Secs. 3, 4 & 5
<PAGE> 5
3
SECTION 6. Organization.
The Chairman of the Board of Directors, or in his absence, the President
shall call to order meetings of the stockholders and shall act as chairman of
such meetings. The Board of Directors or the stockholders may appoint any
stockholder or any director or officer of the Company to act as chairman of any
meeting in the absence of the Chairman of the Board and the President.
The Secretary of the Company shall act as secretary of all meetings of
the stockholders, but in the absence of the Secretary the presiding officer may
appoint any other person to act as secretary of any meeting.
SECTION 7. Proxies and Voting.
Each holder of Common Stock shall at every meeting of the stockholders
be entitled to one vote in person or by proxy for each share of Common Stock
held by such stockholder, but no proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period, and, except where the
transfer books of the Company have been closed or a date has been fixed as a
record date for the determination of its stockholders entitled to vote, no
share of stock shall be voted on at any election for directors which has been
transferred on the books of the Company within twenty days next preceding such
election of directors.
SECTION 8. Stock Lists.
A complete list of stockholders entitled to vote at any meeting of
stockholders shall be prepared, in alphabetical order, by the Secretary and
shall be open to the examination of any stockholder, at the place where the
meeting is to be held, for at least ten days before the meeting and during the
whole time of the meeting.
SECTION 9. Ratification.
Any transaction questioned in any stockholders' derivative suit, or any
other suit to enforce alleged rights of the Company or any of its stockholders,
on the ground of lack of authority, defective or irregular execution, adverse
interest of any director, officer or stockholder, non-disclosure,
miscomputation or the application of improper principles or practices of
accounting may be approved, ratified and confirmed before or after judgment by
the Board of Directors or by the holders of Common Stock, and, if so approved,
ratified or confirmed, shall have the same force and effect as if the
questioned transaction had been originally duly authorized, and said approval,
ratification or confirmation shall be binding upon the Company and all of its
stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
______________________________
Art. Second, Secs. 6, 7, 8 & 9
<PAGE> 6
4
SECTION 10. Consent in Lieu of Meeting.
Whenever the vote of stockholders at a meeting thereof is required or
permitted to be taken in connection with any corporate action by any provisions
of the statutes or of the Certificate of Incorporation, the meeting and vote of
stockholders may be dispensed with, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding Common Stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. Number, Term of Office, and Eligibility.
Except as provided by the laws of the State of Delaware or by the
Certificate of Incorporation, the business and the property of the Company
shall be managed and controlled by a Board of not less than three nor more than
ten directors, the exact number to be fixed from time to time by resolution of
the Board of Directors or of the stockholders, each director to be elected
annually by ballot by the holders of Common Stock at the annual meeting of the
stockholders, to serve until his successor shall have been elected and shall
have qualified, except as provided in this Section. No person may be elected
or re-elected a director of the Company if at the time of his election or
re-election he shall have attained the age of sixty-five (65) years, and the
term of any director of the Company who shall attain the age of sixty-five (65)
years while serving as a director of the Company shall terminate as of the time
of the first annual meeting of the stockholders following such director's
sixty-fifth birthday.
SECTION 2. Meetings.
The directors may hold their meetings outside of the State of Delaware,
at the office of the Company in or about the City of Dearborn, State of
Michigan, or at such other place as from time to time they may determine.
The annual meeting of the Board of Directors, for the election of
executive officers and the transaction of such other business as may come
before the meeting, shall be held at the same place as, and immediately
following, the annual meeting of the stockholders, and no notice thereof shall
be required to be given to the directors.
______________________
Art. Second, Sec. 10
Art. Third, Secs. 1 & 2
<PAGE> 7
5
Regular meetings of the Board of Directors may be held at such time and
place as shall from time to time be determined by the Board.
Special Meetings of the Board of Directors shall be held whenever called
by direction of the Chairman of the Board of Directors, the President or by
one-third of the directors then in office.
SECTION 3. Notice of Meetings.
The Secretary shall give notice of the time and place of holding of
meetings of the Board of Directors (excepting the annual meeting of directors)
by mailing such notice at least two days before the meeting, or by sending a
radiogram, cablegram or telegram containing such notice at least one day before
the meeting, to each director, or by delivering such notice at least one day
before the meeting to each director in person, or by delivering, in the case of
a director who is an officer or employee of the Company or of Ford Motor
Company, or of any subsidiary of either, such notice at least one day before
the meeting to the office of such director at such company. Unless otherwise
stated in the notice thereof any and all business may be transacted at any
meeting.
SECTION 4. Quorum and Organization of Meetings.
A third of the total number of members of the Board of Directors as
constituted from time to time, but in no event less than two, shall constitute
a quorum for the transaction of business; but if at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those
present may adjourn the meeting from time to time, and the meeting may be held
as adjourned without further notice or waiver. Except as otherwise provided by
law or by the Certificate of Incorporation or by these By-Laws, a majority of
the directors present at any duly constituted meeting may decide any question
brought before such meeting. Meetings shall be presided over by the Chairman
of the Board of Directors, or in his absence, by the President or by such other
person as may have been designated by the Board of Directors, or in the absence
of any such person and the President, by such other person as may be elected by
the members present.
_______________________
Art. Third, Secs. 3 & 4
<PAGE> 8
6
SECTION 5. Powers.
In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the Board of Directors shall have and may exercise all
such powers of the Company and do all such lawful acts and things that are not
by statute or by the Certificate of Incorporation or by these By-Laws directed
or required to be exercised or done by the stockholders. Without prejudice to
or limitation of such general powers and any other powers conferred by statute,
or by the Certificate of Incorporation or by these By-Laws, it is hereby
declared that the Board of Directors shall have the following powers, that is
to say:
(1) To determine, subject to the requirements of the
Certificate of Incorporation or of law, what, if any, dividends shall be
declared and paid to the stockholders out of net profits, current or
accumulated, or out of surplus or assets of the Company available for
dividends.
(2) To fix, and from time to time to vary, the amount of
working capital of the Company, and to set aside from time to time out
of net profits, current or accumulated, or surplus of the Company such
amount or amounts as they in their discretion may deem necessary and
proper as, or as a safeguard to the maintenance of, working capital, as
a reserve for contingencies, as a reserve for repairs, maintenance, or
rehabilitation, or as a reserve for revaluation of profits of the
Company, for the equalization of dividends or for such other proper
purpose as may in the opinion of the directors be in the best interests
of the Company; and in their sole discretion to abolish or modify any
such provision for working capital or any such reserve, and to credit
the amount thereof to net profits, current or accumulated, or to the
surplus of the Company.
(3) To purchase, or otherwise acquire for the Company, any
business, property, rights or privileges which the Company may at the
time be authorized to acquire, at such price or consideration and
generally on such terms and conditions as they think fit; and at their
discretion to pay therefor either wholly or partly in money, stock,
bonds, debentures or other securities of the Company.
(4) To create, make and issue mortgages, bonds, deeds of trust,
trust agreements or negotiable or transferable instruments or
securities, secured by mortgage or otherwise, and to do every other act
and thing necessary to effect the same.
____________________
Art. Third, Sec. 5
<PAGE> 9
7
(5) To appoint any person or corporation to accept and hold in
trust for the Company any property belonging to the Company, or in which
it is interested, or for any other purpose, and to execute such deeds
and do all things requisite in relation to any such trust.
(6) To delegate any of the powers of the Board in the course of
the business of the Company to any officer, employee or agent, and to
appoint any person the agent of the Company, with such powers (including
the power to subdelegate) and upon such terms as the Board may think
fit.
(7) To remove any officer of the Company with or without cause,
and from time to time to devolve the powers and duties of any officer
upon any other person for the time being.
(8) To confer upon any officer of the Company the power to
appoint, remove and suspend subordinate officers, agents and employees.
(9) To determine who shall be authorized on the Company's
behalf, either generally or specifically, to make and sign bills, notes,
acceptances, endorsements, checks, releases, receipts, contracts,
conveyances, and all other written instruments executed on behalf of the
Company.
(10) To make and change regulations, not inconsistent with
these By-Laws, for the management of the Company's business and affairs.
(11) To adopt and, unless otherwise provided therein, to amend
and repeal, from time to time, a bonus or supplemental compensation plan
for employees (including employees who are officers or directors) of the
Company or any subsidiary. Power to construe, interpret, administer,
modify or suspend such plan shall be vested in the Board of Directors or
a committee thereof.
(12) To adopt a retirement plan, or plans, for the purpose of
making retirement payments to employees (including employees who are
officers or directors) of the Company or of any subsidiary thereof; to
adopt a group insurance plan, or plans, for the purpose of enabling
employees (including employees who are officers or directors) of the
Company or of any subsidiary thereof to acquire insurance protection;
and to adopt or elect to participate in a profit-sharing, thrift,
savings or similar plan, or plans, for employees (including employees
who are officers or directors) of the Company or of any subsidiary
thereof; provided, however, that any plan adopted pursuant to the
provisions of this subsection shall, unless otherwise provided therein,
be subject to amendment or revocation by the Board of Directors.
_____________________
Art. Third, Sec. 5
<PAGE> 10
8
SECTION 6. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors and each officer, in the performance of his duties, shall be fully
protected in relying in good faith upon the books of account or reports made to
the Company by any of its officials, or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any such committee, or in relying in good faith upon other
records of the Company.
SECTION 7. Compensation of Directors.
Directors, as such, may receive, pursuant to resolution of the Board of
Directors, fixed fees and other compensation for their services as directors,
including, without limitation, services as members of committees of the
directors; provided, however, that nothing herein contained shall be construed
to preclude any director from serving the Company in any other capacity and
receiving compensation therefor.
ARTICLE IV
COMMITTEES
SECTION 1. Committees of the Board of Directors.
The Board of Directors may, by resolution passed by a majority of the
whole board, designate one or more committees, each committee to consist of two
or more of the directors of the corporation, which, to the extent provided in
the resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the corporation and
may authorize the seal of the corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board of
Directors.
____________________
Art. Third, Secs. 6 & 7
Art. Fourth, Sec. 1
<PAGE> 11
9
SECTION 2. Rules and Procedures.
Each committee may fix its own rules and procedures and shall meet at
such times and places as may be provided by such rules, by resolution of the
committee, or by call of the chairman. Notice of meeting of each committee,
other than of regular meetings provided for by its rules or resolutions, shall
be given to committee members. The presence of one-third of its members, but
not less than two, shall constitute a quorum of any committee, and all
questions shall be decided by a majority vote of the members present at the
meeting. All action taken at each committee meeting shall be recorded in
minutes of the meeting.
ARTICLE V
GENERAL COUNSEL
The Company may have a General Counsel who shall be appointed by the
Board of Directors and who shall have general supervision of all matters of a
legal nature concerning the Company.
ARTICLE VI
OFFICERS
SECTION 1. Officers.
The officers of the Company shall be a Chairman of the Board of
Directors, a President, one or more Vice Presidents, a Treasurer and a
Secretary, each of whom shall be elected by the Board of Directors or the
stockholders to hold office until his successor shall have been chosen and
shall have qualified. The Board of Directors or the stockholders may elect or
appoint a Controller, one or more Assistant Vice Presidents, one or more
Assistant Treasurers, one or more Assistant Secretaries, and such other
officers as may be deemed necessary or desirable, each of whom shall have such
authority, shall perform such duties and shall hold office for such term as may
be prescribed by the Board of Directors or the stockholders from time to time.
SECTION 2. The Chairman of the Board of Directors.
The Chairman of the Board of Directors shall be the chief executive
officer of the Company and, subject to the provisions of these By-Laws and to
the direction of the Board of Directors, shall have the general management and
control of the affairs and business of the Company, shall perform all other
duties and enjoy all other powers commonly incident to his office or delegated
to him by the Board of Directors, or which are or may at any time be authorized
or required by law. _____________________
Art. Fourth, Sec. 2
Art. Fifth
Art. Sixth, Secs. 1 & 2
<PAGE> 12
10
SECTION 3. The President.
The President, subject to the provisions of these By-Laws and to the
direction of the Board of Directors and of the Chairman of the Board of
Directors, shall have such powers and shall perform such duties as from time to
time may be delegated to him by the Board of Directors, or which are or may at
any time be authorized or required by law. In the absence or disability of the
Chairman of the Board of Directors, or in the event of, and during the period
of, a vacancy in that office, he shall be the chief executive officer of the
Company and shall exercise the powers and perform the duties of the Chairman of
the Board of Directors.
SECTION 4. Vice Presidents and Assistant Vice Presidents.
Each of the Vice Presidents and each of the Assistant Vice Presidents
shall have such powers, and perform such duties, as may be delegated to him by
the Board of Directors or by the Chairman of the Board of Directors or the
President.
In the absence or disability of the Chairman of the Board of Directors
and the President, any Vice President designated by the Chairman of the Board
of Directors, or by the President if the Chairman of the Board of Directors
shall have failed to make such designation, shall exercise the powers of the
Chairman of the Board of Directors and the President.
SECTION 5. Treasurer and Assistant Treasurers.
The Treasurer, subject to the direction of the Board of Directors, shall
have the care and custody of the corporate funds and securities. When
necessary or proper he shall endorse on behalf of the Company, for collection,
checks, notes and other obligations, and shall deposit all funds and securities
of the Company in such banks or other depositors as may be designated by the
Board of Directors, or by such directors, officers, or employees as may be
authorized by the Board of Directors so to designate. He shall perform all
acts incident to the office of Treasurer, subject to the control of the Board
of Directors. He may be required to give a bond for the faithful discharge of
his duties, in such sum and upon such conditions as the Board of Directors may
require.
At the request of the Treasurer, any Assistant Treasurer in the case of
the absence or inability to act of the Treasurer, temporarily may act in his
place. In the case of the death of the Treasurer, or in the case of his
absence or inability to act without having designated an Assistant Treasurer to
act temporarily in his place, the Assistant Treasurer so to perform the duties
of the Treasurer shall be designated by the Chairman of the Board of Directors
or the President.
__________________________
Art. Sixth, Secs. 3, 4 & 5
<PAGE> 13
11
SECTION 6. Secretary and Assistant Secretaries.
The Secretary shall keep the minutes of the meetings of the stockholders
and of the Board of Directors, and, when required, the minutes of the meetings
of the committees, and shall be responsible for the custody of all such
minutes. Subject to the direction of the Board of Directors, the Secretary
shall have custody of the stock ledgers and documents of the Company. He shall
have custody of the corporate seal and shall affix and attest such seal to any
instrument whose execution under seal shall have been duly authorized. He
shall give notice of meetings and, subject to the direction of the Board of
Directors, shall perform all other duties and enjoy all other powers commonly
incident to his office.
At the request of the Secretary, any Assistant Secretary, in the case of
the absence or inability to act of the Secretary, temporarily may act in his
place. In the case of the death of the Secretary, or in the case of his
absence or inability to act without having designated an Assistant Secretary to
act temporarily in his place, the Assistant Secretary so to perform the duties
of the Secretary shall be designated by the Chairman of the Board of Directors
or the President.
SECTION 7. Controller.
Any Controller who may be elected or appointed shall, subject to the
direction of the Board of Directors, provide and maintain financial and
accounting controls over the business and affairs of the Company. He shall
maintain, among others, adequate records of the assets, liabilities, and
financial transactions of the Company, and shall direct the preparation of
financial statements, reports and analyses. He shall perform such other duties
and exercise such other powers as are incident to the office of Controller,
subject to the control of the Board of Directors.
_______________________
Art. Sixth, Secs. 6 & 7
<PAGE> 14
12
SECTION 8. Salaries.
Salaries of officers, agents or employees shall be fixed from time to
time by the Board of Directors or by such committee or committees, or person or
persons, if any, to whom such power shall have been delegated by the Board of
Directors. Any employment contract, whether with an officer, agent or
employee, if expressly approved or specifically authorized by the Board of
Directors, may fix a term of employment thereunder; and such contract, if so
approved or authorized, shall be valid and binding upon the Company in
accordance with the terms thereof, provided that this provision shall not limit
or restrict in any way the right of the Company at any time to remove from
office, discharge or terminate the employment of any such officer, agent or
employee prior to the expiration of the term of employment under any such
contract, except that the Company shall not thereby be relieved of any
continuing liability for salary or other compensation provided for in such
contract.
ARTICLE VII
RESIGNATIONS, REMOVALS AND VACANCIES
SECTION 1. Resignations.
Subject to the terms and conditions of any employment agreement duly
approved or authorized by the Board of Directors, any director, officer or
agent of the Company, or any member of any committee may resign at any time by
giving written notice to the Board of Directors, to the Chairman of the Board
of Directors or to the Secretary of the Company. Any such resignation shall
take effect at the time specified therein, or if the time be not specified
therein, then upon receipt thereof. The acceptance of such resignation shall
not be necessary to make it effective.
SECTION 2. Removals.
Subject to the terms and conditions of any employment agreement duly
approved or authorized by the Board of Directors, at any meeting thereof called
for the purpose, the holders of a majority of the Common Stock may remove from
office or terminate the employment of any director, officer or agent with or
without cause; and the Board of Directors, by vote of not less than a majority
of the entire Board at any meeting thereof called for the purpose, may, at any
time, remove from office or terminate the employment of any officer, agent or
member of any committee.
_________________________
Art. Sixth, Sec. 8
Art. Seventh, Secs. 1 & 2
<PAGE> 15
13
SECTION 3. Vacancies.
Subject to the last sentence of Section 1 of Article III, any vacancy in
the office of any director, officer or agent through death, resignation,
removal, disqualification, increase in the number of directors or other cause
may be filled by the Board of Directors (in the case of vacancies in the Board,
by the affirmative vote of a majority of the directors then in office, even
though less than a quorum remains) and the person so elected shall hold office
until his successor shall have been elected and shall have qualified.
ARTICLE VIII
CAPITAL STOCK -- DIVIDENDS -- SEAL
SECTION 1. Certificate of Shares.
The certificates for shares of the capital stock of the Company shall be
in such form, not inconsistent with the Certificate of Incorporation, as shall
be approved by the Board of Directors. The certificates shall be signed by the
Chairman of the Board of Directors, the President or a Vice President, and also
by the Treasurer or an Assistant Treasurer, or the Secretary or any Assistant
Secretary. Where any stock certificate is signed (1) by a transfer agent or an
assistant transfer agent, or (2) by a transfer clerk acting on behalf of the
Company and a registrar, any such officer's signature may be a facsimile.
All certificates shall bear the name of the person owning the shares
represented thereby, shall state the number of shares represented by such
certificate and the date of issue; and such information shall be entered in the
Company's original stock ledger.
SECTION 2. Addresses of Stockholders.
It shall be the duty of every stockholder to notify the Company of his
post office address and of any change therein. The latest address furnished by
each stockholder shall be entered on the original stock ledger of the Company
and latest address appearing on such original stock ledger shall be deemed
conclusively to be the post office address and the last-known post office
address of such stockholder. If any stockholder shall fail to notify the
Company of his post office address, it shall be sufficient to send corporate
notices to such stockholder at the address, if any, understood by the Secretary
to be his post office address, or in the absence of such address, to such
stockholder, at the General Post Office in the City of Wilmington, State of
Delaware.
________________________
Art. Seventh, Sec. 3
Art. Eighth, Secs. 1 & 2
<PAGE> 16
14
SECTION 3. Lost, Destroyed or Stolen Certificate.
Any person claiming a stock certificate in lieu of one lost, destroyed
or stolen, shall give the Company an affidavit as to his ownership of the
certificate and of the facts which go to prove that it has been lost, destroyed
or stolen. If required by the Board of Directors, he also shall give the
Company a bond, in such form as may be approved by the Board of Directors,
sufficient to indemnify the Company against any claim that may be made against
it on account of the alleged loss, destruction or theft of the certificate or
the issuance of a new certificate.
SECTION 4. Transfers of Stock.
Upon surrender to the Company or the transfer agent of the Company of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment, or authority to transfer, it shall be the duty of the
Company to issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books.
SECTION 5. Fixing A Record Date.
The Board of Directors may fix in advance a date not exceeding sixty
(60) days preceding the date of any meeting of stockholders, or the date for
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of stock shall go into effect, or the
date in connection with obtaining the consent of the stockholders for any
purpose, as a record date for the determination of the stockholders entitled to
notice of and to vote at any such meeting and any adjournment thereof, or
entitled to payment of any such dividend or to any such allotment of rights or
to exercise the rights in respect of any such change, or conversion or exchange
of stock, or to give consent; and in any such case, such stockholders, and only
such stockholders, as shall be stockholders of record on the date so fixed,
shall be entitled to such notice of and to vote at such meeting and any
adjournment thereof or to receive payment of such dividend or to receive such
allotment of rights or to exercise such rights or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of the
Company after such record date.
___________________________
Art. Eighth, Secs. 3, 4 & 5
<PAGE> 17
15
SECTION 6. Registered Stockholders.
The Company shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
SECTION 7. Regulations.
The Board of Directors shall have power and authority to make all such
rules and regulations not inconsistent with any of the provisions of the
Certificate of Incorporation as it may deem expedient, concerning the issue,
transfer, and registration of certificates for shares of the stock of the
Company.
SECTION 8. Corporate Seal.
The corporate seal shall have inscribed thereon the name of the Company,
the year of its organization, and the words "Corporate Seal" and "Delaware."
If and when so authorized by the Board of Directors, a duplicate of the seal
may be kept and used by the Secretary or Treasurer or by any Assistant
Secretary or Assistant Treasurer.
ARTICLE IX
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Execution of Contracts.
Except as otherwise provided by law or in the By-Laws, all contracts or
other instruments, authorized by the Board of Directors either generally or
particularly, may be executed and delivered in the name of and on behalf of the
Company by the Chairman of the Board of Directors, the President or any Vice
President and the Secretary or an Assistant Secretary. The Board of Directors,
however, may authorize any other officer or officers, agent or agents, in the
name of and on behalf of the Company, to enter into any contract or to execute
and deliver any instrument, and such authority may be general or confined to
particular instances. Unless authorized by the Board of Directors or expressly
authorized by the By-Laws, no officer, employee or agent shall have any power
or authority to bind the Company by any contract or engagement or to pledge its
credit or to render it pecuniarily liable for any purpose or to any amount.
___________________________
Art. Eighth, Secs. 6, 7 & 8
Art. Ninth, Sec. 1
<PAGE> 18
16
SECTION 2. Indebtedness.
No borrowings shall be contracted on behalf of the Company and no
negotiable paper in evidence thereof shall be issued in its name unless
authorized by resolution of the Board of Directors. When authorized by the
Board of Directors so to do, any officer or agent of the Company thereunto
authorized may effect loans and advances at any time for the Company from any
bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances may make, execute and delivery
promissory notes, bonds, or other certificates or evidences of indebtedness of
the Company and, when authorized so to do, may pledge, hypothecate or transfer
any securities or other property of the Company as security for any such loans
or advances. Such authority may be general or confined to particular
instances.
SECTION 3. Checks, Drafts, Etc.
All checks, drafts, and other orders for the payment of moneys out of
the funds of the Company shall be signed on behalf of the Company in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
SECTION 4. Deposits.
All funds of the Company not otherwise employed shall be deposited from
time to time to the credit of the Company in such banks, trust companies or
other depositories as the Board of Directors may select or as may be selected
by any officer or officers, agent or agents of the Company to whom such power
from time to time may be delegated by the Board; and, for the purpose of such
deposit, the Chairman of the Board of Directors, the President, any Vice
President, the Treasurer, the Secretary or any other officer or agent or
employee of the Company to whom such power may be delegated by the Board or by
any person designated by the Board to delegate such authority may endorse,
assign and deliver checks, drafts and other orders for the payment of moneys
which are payable to the order of the Company.
ARTICLE X
FISCAL YEAR
The fiscal year of the Company shall begin the first day of January in
each year.
__________________________
Art. Ninth, Secs. 2, 3 & 4
Art. Tenth
<PAGE> 19
17
ARTICLE XI
MISCELLANEOUS
SECTION 1. Notices and Waivers Thereof.
Whenever any notice whatever is required by these By-Laws or by the
Certificate of Incorporation, or by any of the laws of the State of Delaware to
be given to any stockholder, director or officer, such notice, except as
otherwise provided by the laws of the State of Delaware, may be given
personally or be given by telegram, cable, or radiogram, addressed to such
stockholder at the address set forth as provided in Section 2 of Article VIII,
or to such director or officer at his Company location, if any, or at such
address as appears on the books of the Company, or the notice may be given in
writing by depositing the same in a post office, or in a regularly maintained
letter box, in a postpaid, sealed wrapper addressed to such stockholder at the
address set forth in Section 2 of Article VIII, or to such director or officer
at his Company location, if any, or such address as appears on the books of the
Company, or, in the case of a director or officer who is an officer or employee
of the Company or of Ford Motor Company, or of any subsidiary of either, the
notice may be given in writing by delivering the same to the office of such
director or officer at such company. Any notice given by telegram, cable, or
radiogram shall be deemed to have been given when it shall have been delivered
for transmission; any notice given by mail shall be deemed to have been given
when it shall have been mailed; and any notice given by delivery to such office
of a director or officer shall be deemed to have been given when it shall have
been so delivered. A waiver of any such notice in writing, signed or dispatched
by the person entitled to such notice or by his duly authorized attorney,
whether before or after the time stated therein, shall be deemed the equivalent
thereof and the presence at any meeting of any person entitled to notice
thereof shall be deemed a waiver of such notice as to such person.
SECTION 2. Voting upon Stocks.
The Board of Directors (whose authorization in this connection shall be
necessary in all cases) may from time to time appoint an attorney or attorneys
or agent or agents of the Company, or may at any time or from time to time
authorize the Chairman of the Board of Directors, the President, any Vice
President, the Treasurer or the Secretary to appoint an attorney or attorneys
or agent or agents of the Company, in the name and on behalf of the Company, to
cast the votes which the Company may be entitled to cast as a stockholder or
otherwise in any other corporation or association,
__________________________
Art. Eleventh, Secs. 1 & 2
<PAGE> 20
18
any of the stock or securities of which may be held by the Company, at meetings
of the holders of the stock or other securities of such other corporation or
association, and the Board of Directors or any aforesaid officer so authorized
may instruct the person or persons so appointed as to the manner of casting
such votes or giving such consent, and the Board of Directors or any aforesaid
officer so authorized may from time to time authorize the execution and
delivery, on behalf of the Company and under its corporate seal, or otherwise,
of such written proxies, consents, waivers or other instruments as may be
deemed necessary or proper in the premises.
ARTICLE XII
AMENDMENTS
The Board of Directors shall have power to make, alter, amend or repeal
the By-Laws of the Company by vote of not less than a majority of the entire
Board at any meeting of the Board, and the holders of Common Stock shall have
power to make, alter, amend or repeal the By-Laws at any regular or special
meeting, if the substance of such amendment be contained in the notice of such
meeting of the Board, or of such meeting of stockholders, as the case may be.
_____________________
Art. Eleventh, Sec. 2
Art. Twelvth
<PAGE> 1
[LEASE TRUST AGREEMENT]
EXHIBIT 4.1
FORD CREDIT AUTO LEASE TRUST 1995-1
TRUST AGREEMENT
Dated as of ______ __, 1995
between
THE CHASE MANHATTAN BANK (USA),
as Trustee of
RCL TRUST 1995-1,
as Depositor
and
PNC BANK, Delaware,
as Trustee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
ORGANIZATION
Section 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Purposes and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4 Appointment of Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Initial Capital Contribution of Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.7 Liability of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.8 Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.9 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.10 Representations and Warranties of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.11 Tax Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
LEASE TRUST CERTIFICATES AND TRANSFER
OF INTERESTS
Section 3.1 Initial Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.2 The Lease Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3 Authentication of Lease Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.4 Registration of Transfer and Exchange of Lease Trust Certificates . . . . . . . . . . . . . . . . . . . 9
Section 3.5 Mutilated, Destroyed, Lost or Stolen Lease Trust Certificates . . . . . . . . . . . . . . . . . . . . . 12
Section 3.6 Persons Deemed Lease Trust Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.7 Access to List of Lease Trust Certificateholders' Names and Addresses . . . . . . . . . . . . . . . . . 13
</TABLE>
i
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Section 3.8 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.9 Appointment of Lease Trust Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.10 RCL Lease Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
ACTIONS BY LEASE TRUSTEE
Section 4.1 Prior Notice to Lease Trust Certificateholders with Respect to Certain Matters . . . . . . . . . . . . 15
Section 4.2 Action by Lease Trust Certificateholders with Respect to Certain Matters . . . . . . . . . . . . . . . 16
Section 4.3 Action by Lease Trust Certificateholders with Respect to Bankruptcy . . . . . . . . . . . . . . . . . . 17
Section 4.4 Restrictions on Lease Trust Certificateholders' Power . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.5 Majority Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.2 Application of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.3 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.4 No Segregation of Monies; No Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.5 Accounting and Reports to the Noteholders, Lease Trust Certificateholders, the Internal Revenue Service
and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
AUTHORITY AND DUTIES OF LEASE TRUSTEE
Section 6.1 General Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.2 General Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.3 Action upon Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions . . . . . . . . . . . . . . . . . . 24
Section 6.5 No Action Unless Specifically Authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.6 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
ii
<PAGE> 4
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ARTICLE VII
CONCERNING THE LEASE TRUSTEE
Section 7.1 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.2 Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.3 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.4 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.5 Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.6 Lease Trustee Not Liable For Lease Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.7 Lease Trustee May Own Lease Trust Certificates and Notes . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VIII
COMPENSATION OF LEASE TRUSTEE
Section 8.1 Lease Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.1 Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.2 Dissolution upon Bankruptcy of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.3 Prepayment of the Lease Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE X
SUCCESSOR LEASE TRUSTEES AND ADDITIONAL LEASE TRUSTEES
Section 10.1 Eligibility Requirements for Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 10.2 Resignation or Removal of Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.3 Successor Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.4 Merger or Consolidation of Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.5 Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
iii
<PAGE> 5
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ARTICLE XI
TAX MATTERS
Section 11.1 Income Tax Characterization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.2 Annex A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XII
MISCELLANEOUS
Section 12.1 Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 12.2 No Legal Title to Lease Trust Estate in Lease Trust Certificateholders . . . . . . . . . . . . . . . . 41
Section 12.3 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 12.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 12.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 12.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 12.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 12.8 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 12.9 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.12 Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
ANNEX
Annex A Partnership Matters
EXHIBITS
Exhibit A Form of Lease Trust Certificate
Exhibit B Form of RCL Lease Trust Certificate
Exhibit C Form of Rule 144A Transferor Certificate
Exhibit D Form of Investment Letter - Qualified Institutional Buyer
Exhibit E Form of Investment Letter - Institutional Accredited Investor
iv
<PAGE> 6
TRUST AGREEMENT dated as of _______ __, 1995 between (i) THE
CHASE MANHATTAN BANK (USA), not in its individual capacity but solely as
trustee of RCL TRUST 1995-1, a Delaware business trust, as Depositor and (ii)
PNC BANK, DELAWARE a Delaware banking corporation, not in its individual
capacity but solely as trustee under this Agreement (in such capacity, together
with any successor or permitted assign, "Lease Trustee").
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. Unless otherwise defined
herein, capitalized terms used in this Agreement shall have the respective
meanings assigned to them, or incorporated by reference, in Appendix A attached
hereto. References to "this Agreement" are to this Lease Trust Agreement, and
all references to Articles, Sections and subsections are to Articles, Sections
and subsections of this Agreement unless otherwise specified provided, that
references to Sections and subsections in Annex A attached hereto and
incorporated herein are to Sections and subsections of such Annex A unless
otherwise specified.
"Authenticating Agent" means any Person authorized by the
Lease Trustee to act on behalf of the Lease Trustee to authenticate and deliver
the Lease Trust Certificates.
"Benefit Plan Investor" has the meaning set forth in Section
3.4(b).
"Corporate Trust Office" means, with respect to the Lease
Trustee, the principal corporate trust office of the Lease Trustee located at
222 Delaware Avenue, Wilmington, Delaware 19801; or at such other address as
the Lease Trustee may designate by notice to the Lease Trust Certificateholders
and the Depositor, or the principal corporate trust office of any successor
Lease Trustee (the address of which the successor Lease Trustee will notify the
Lease Trust Certificateholders and the Depositor).
"Deferred Amount" means, as of any date, (i) the Pool Balance
minus (ii) the sum of (x) the Outstanding Amount of Notes and (y) the
Aggregate Certificate Balance.
<PAGE> 7
"Depositor" means the RCL Trust 1995-1 in its capacity as
depositor and as holder of the RCL Lease Trust Certificates.
"Expenses" means all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of
any kind and nature whatsoever.
"Indemnified Parties" has the meaning set forth in Section 8.2.
"Lease Trust" means the Ford Credit Auto Lease Trust 1995-1
established pursuant to this Agreement.
"Lease Trust Certificate Register" and "Lease Trust
Certificate Registrar" means the register mentioned and the registrar appointed
pursuant to Section 3.4.
"Lease Certificate Record Date" means, with respect to any
Payment Date, the close of business on the last day of the calendar month
preceding the month in which such Payment Date occurs.
"Lease Trust Distribution Statement" means the statement
delivered pursuant to Section 5.2(d).
"Lease Trust Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 3.9 and shall initially be the Lease
Trustee.
"Opinion of Counsel" means one or more written opinions of
legal counsel who may, except as otherwise expressly provided for herein, be
employees of or counsel to the Depositor, the Administrative Agent or an
Affiliate of either, and which opinion or opinions shall be satisfactory to the
Lease Trustee.
"RCL Lease Trust Certificates" means the certificates in the
form of Exhibit B issued to RCL Trust 1995-1 and Ford Credit Leasing, which
shall evidence in the aggregate (i) Lease Trust Certificates issued on
____________ __, 1995, representing at least 1% of the Aggregate Certificate
Balance and (ii) all other rights, benefits, and obligations of the holder of
the beneficial interest evidenced by such certificates pursuant to this
Agreement, including the right to receive the Deferred Amount. The RCL Lease
Trust Certificates shall be "Lease Trust Certificates"
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for purposes thereof with respect to the 1% of the Aggregate Certificate
Balance and in addition shall have a balance equal to, in the aggregate, the
Deferred Amount.
"Rule 144A Information" has the meaning set forth in Section
3.4(d).
"Securities Act" means the Securities Act of 1933, as amended.
"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent
that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The trust created hereby shall be known as
"Ford Credit Auto Lease Trust 1995-1", in which name the Lease Trustee may
engage in activities as permitted by the Basic Documents on behalf of the Lease
Trust, make and execute contracts and other instruments on behalf of the
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Lease Trust and sue and be sued, to the extent provided herein.
Section 2.2 Office. The office of the Lease Trust shall be
in care of the Lease Trustee at the Corporate Trust Office or at such other
address in Delaware as the Lease Trustee may designate by written notice to the
Lease Trust Certificateholders and the Depositor.
Section 2.3 Purposes and Powers. (a) The purpose of the
Lease Trust is, and the Lease Trust shall have the power and authority, to
engage solely in the following:
(i) to issue the Notes pursuant to the Indenture and the
Lease Trust Certificates pursuant to this Agreement, and to sell the
Notes and the Lease Trust Certificates upon the written order of the
Depositor;
(ii) with the proceeds of the sale of the Notes and the Lease
Trust Certificates, to pay certain organizational, start-up and
transactional expenses of the Lease Trust and to acquire the Series
1995-1 Certificates and other assets from the Depositor pursuant to
Section 2 of the Transfer Agreement;
(iii) to pay interest and principal on the Notes and the Lease
Trust Certificates;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Lease Trust Estate pursuant to the Indenture and to hold, and
distribute to the Lease Trust Certificateholders pursuant to the terms
of this Agreement any portion of the Lease Trust Estate released
from the Lien of, and remitted to the Lease Trust pursuant to, the
Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party; and
(vi) to engage in other transactions, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith.
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The Lease Trust is hereby authorized to engage in the
foregoing. The Lease Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement or the Basic Documents.
Section 2.4 Appointment of Lease Trustee. The Depositor
hereby appoints the Lease Trustee as trustee of the Lease Trust effective as of
the date hereof, to have all the rights, powers and duties set forth herein.
Section 2.5 Initial Capital Contribution of Trust Estate.
The Depositor hereby sells, assigns, transfers, conveys and sets over to the
Lease Trustee, as of the date hereof, the sum of $10. The Lease Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Lease Trust Estate
and shall be deposited in the Certificate Distribution Account.
Section 2.6 Declaration of Trust. PNC BANK hereby declares
and agrees that it will, and in its capacity the Lease Trustee does, hold the
Lease Trust Estate in trust upon and subject to the conditions set forth herein
for the benefit of the Lease Trust Certificateholders and Depositor, subject,
however, to the lien of the Indenture and to the obligations of the Lease Trust
under the Basic Documents.
Section 2.7 Liability of the Depositor. (a) The holders of
the RCL Lease Trust Certificates shall be liable directly to and will indemnify
any injured party entitled thereto for all Expenses of the Lease Trust (to the
extent that assets of the Lease Trust remaining after the Lease Trust
Certificateholders have been paid in full would be insufficient to pay such
Expenses) to the extent that the Depositor would be liable if the Lease Trust
were a partnership under the Delaware Revised Uniform Limited Partnership Act
in which the Depositor were a general partner (other than any losses incurred
by a Lease Trust Certificateholder in its capacity as an investor in the Lease
Trust Certificates or a Noteholder in its capacity of an investor in the Notes,
including but not limited to losses resulting from defaults on the Program
Operating Lease or from residual losses with respect to Series 1995-1 Assets
(except to the extent provided in Section 5 of Annex A), changes in the market
value of the Lease Trust Certificates or the Notes, or other similar events).
In addition, any third party creditors of the Lease Trust (other than in
connection with the obligations described in the preceding sentence for
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which the holders of the RCL Lease Trust Certificates shall not be liable)
shall be deemed third party beneficiaries of this Section 2.7(a). The holders
of the RCL Lease Trust Certificates shall make no claim upon the Lease Trust
Estate for the reimbursement of amounts paid pursuant to this Section.
(b) No Lease Trust Certificateholder, other than to the
extent set forth in Section 2.7(a), shall have any personal liability for any
liability or obligation of the Lease Trust.
Section 2.8 Title to Trust Property. Legal title to all the
Lease Trust Estate shall be vested at all times in the Lease Trust, except
where applicable law in any jurisdiction requires title to any part of the
Lease Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Lease Trustee, a co-trustee and/or a
separate trustee, as the case may be.
Section 2.9 [Reserved]
Section 2.10 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Lease Trustee that:
(a) The Depositor is duly organized and validly existing as a
trust in good standing under the laws of the State of Delaware, with the power
and authority to own its properties and to conduct its activities as such
properties are currently owned and such activities is presently conducted.
(b) The Depositor is duly qualified, is in good standing, and
has obtained all necessary licenses and approvals in all jurisdictions in which
the failure to so qualify or to obtain such license or approval would (i)
render unenforceable any rights the Lease Trust may have under any of the Basic
Documents which would otherwise be enforceable by the Depositor, the
Administrative Agent or the Lease Trustee, or (ii) otherwise have a material
adverse effect on the Lease Trust.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full power
and authority to transfer the Series 1995-1 Certificates to and deposit them
with the Lease Trust and the Depositor shall have duly authorized such transfer
and deposit to the Lease Trust by all neces-
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sary action; and the execution, delivery and performance of this Agreement has
been duly authorized by the Depositor by all necessary action.
(d) This Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable in accordance with its terms.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the RCL Trust Agreement, or
any indenture, agreement or other instrument to which the Depositor is a party
or by which it is bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic Documents); nor
violate any law or, to the best of the Depositor's knowledge, any order, rule
or regulation applicable to the Depositor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties.
(f) To the Depositor's best knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement, the Indenture or any of the other Basic
Documents, the Notes or the Lease Trust Certificates, (ii) seeking to prevent
the issuance of the Notes or the Lease Trust Certificates or the consummation
of any of the transactions contemplated by this Agreement, the Indenture or any
of the other Basic Documents, (iii) seeking any determination or ruling than
might materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the Lease Trust
Certificates or (iv) which might adversely affect the federal income tax or
state income or franchise tax attributes of the Notes or the Lease Trust
Certificates.
Section 2.11 Tax Reporting. Consistent with the treatment of
the Lease Trust as a security device for income and franchise tax purposes,
unless otherwise required by appropriate tax authorities, the Lease Trust will
not file
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or cause to be filed annual or other income or franchise tax returns and will
not obtain any taxpayer identification numbers.
ARTICLE III
LEASE TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1 Initial Ownership. Upon the formation of the
Lease Trust by the contribution by the Depositor pursuant to Section 2.5 and
until the issuance of the Lease Trust Certificates, the Depositor shall be the
sole beneficiary of the Lease Trust.
Section 3.2 The Lease Trust Certificates. (a) The Lease
Trust Certificates shall be issued in one or more registered, definitive,
physical certificates, in the form set forth in Exhibit A, in minimum
denominations of at least $100,000 and multiples of $1,000 in excess thereof;
provided, however, that two Lease Trust Certificates may be issued to the
Depositor and Ford Credit Leasing pursuant to Section 3.10 in such
denominations as to represent at least 1% of the Aggregate Certificate Balance.
The Lease Trust Certificates may be in printed or in typewritten form, and may
be executed on behalf of the Lease Trust by manual or facsimile signature of an
Authenticating Agent. Lease Trust Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Lease Trust, shall be validly
issued and entitled to the benefits of this Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Lease Trust Certificates or did not
hold such offices at the date of authentication and delivery of such Lease
Trust Certificates. A transferee of a Lease Trust Certificate shall become a
Lease Trust Certificateholder, and shall be entitled to the rights and subject
to the obligations of a Lease Trust Certificateholder hereunder, upon due
registration of such Lease Trust Certificate in such transferee's name pursuant
to Section 3.4.
(b) Interest shall accrue on the Lease Trust Certificates at
the Certificate Interest Rate during each Interest Accrual Period based on the
Aggregate Certificate Balance of the Lease Trust Certificates. Interest on the
Lease Trust Certificates shall be due and payable on each Payment Date.
Interest will be calculated on the based on a
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360-day year of twelve 30-day months. To the extent that interest on the Lease
Trust Certificates is accrued but not paid in full on any Payment Date, such
overdue interest will be due on the next Payment Date together with interest on
such amount (to the extent lawful) at the Default Rate. Payments of interest,
principal and, with respect to the RCL Lease Trust Certificates, the Deferred
Amount, will be payable to Lease Trust Certificateholders in accordance with
Section 5.3.
Section 3.3 Authentication of Lease Trust Certificates.
Concurrently with the transfer of the Series 1995-1 Certificates to the Lease
Trust pursuant to the Transfer Agreement, the Lease Trustee shall cause Lease
Trust Certificates in an aggregate principal amount equal to the initial
Aggregate Certificate Balance to be executed on behalf of the Lease Trust,
authenticated and delivered to or upon the written order of the Depositor, in
authorized denominations. No Lease Trust Certificate shall entitle its holder
to any benefit under this Agreement, or shall be valid for any purpose, unless
there shall appear on such Lease Trust Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by
the Authenticating Agent, by manual signature; such authentication shall
constitute conclusive evidence that such Lease Trust Certificate shall have
been duly authenticated and delivered hereunder. All Lease Trust Certificates
shall be dated the date of their authentication.
Section 3.4 Registration of Transfer and Exchange of Lease
Trust Certificates. (a) The Lease Trust Certificate Registrar shall keep or
cause to be kept at the office or agency maintained pursuant to Section 3.8, a
Lease Trust Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Lease Trustee shall provide for the
registration of Lease Trust Certificates and of transfers and exchanges of
Lease Trust Certificates as herein provided. The Lease Trustee shall be the
initial Lease Trust Certificate Registrar.
(b) As a condition to the registration of any transfer, sale,
pledge or other disposition of a Lease Trust Certificate, the prospective
transferee of such a Lease Trust Certificate shall represent to the Lease
Trustee, the Lease Trust Certificate Registrar and the Initial Purchase that
such transferee is not a Benefit Plan Investor. No transfer, sale, pledge or
other disposition of such a Certificate shall be made to any Benefit Plan
Investor, and the Lease Trust Certificate Registrar shall not register any
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such transfer, sale, pledge or other disposition to a Benefit Plan Investor.
For purposes of this Section 3.4(b), the term "Benefit Plan Investor" means (i)
any employee benefit plan as defined in Section 3(3) of ERISA, whether or not
it is subject to Title I of ERISA, (ii) any plan described in Section
4975(e)(1) of the Code, (iii) any governmental plan, as defined in Section
3(32) of ERISA, subject to any federal, state or local law which is, to a
material extent, similar to the provisions of ERISA or Section 4975 of the Code
or (iv) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of Labor
Regulation 29 C.F.R. Section 251.3-101), other than the general asset account
of an insurance company.
(c) By acceptance of any Lease Trust Certificate, the Lease
Trust Certificateholder thereof specifically agrees with the Depositor, the
Lease Trust Certificate Registrar and the Lease Trustee that no transfer of
such Lease Trust Certificate shall be made unless the registration requirements
of the Securities Act and any applicable state securities laws are complied
with, or such transfer is exempt from the registration requirements under the
Securities Act because the transfer satisfies one of the following:
(i) such transfer is in compliance with Rule 144A
under the Securities Act, to a transferee who the transferor
reasonably believes is a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a
Qualified Institutional Buyer and to whom notice is given that
such transfer is being made in reliance upon Rule 144A under
the Securities Act and (x) the transferor executes and
delivers to the Lease Trustee and the Lease Trustee
Certificate Registrar a Rule 144A transferor certificate
substantially in the form attached as Exhibit C and (y) the
transferee executes and delivers to the Lease Trustee, the
Lease Trustee Certificate Registrar and the Initial Purchaser
an investment letter substantially in the form attached as
Exhibit D;
(ii) after the appropriate holding period, such
transfer is pursuant to an exemption from registration under
the Securities Act provided by Rule 144 under the Securities
Act and the transferee, if requested by the Lease Trustee and
the Lease Trust Certificate Registrar, delivers an
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Opinion of Counsel in form and substance satisfactory to the
Lease Trustee; and
(iii) such transfer is to an institutional accredited
investor as defined in rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act in a
transaction exempt from the registration requirements of the
Securities Act, such transfer is in accordance with any
applicable securities laws of any state of the United States
or any other jurisdiction and such investor executes and
delivers to the Lease Trustee, the Lease Trustee Certificate
Registrar and the Initial Purchaser an investment letter
substantially in the form attached as Exhibit E.
(d) The Lease Trustee shall make available to the prospective
transferor and transferee information requested to satisfy the requirements of
paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A
Information shall include any or all of the following items requested by the
prospective transferee:
(i) this Agreement and any amendments hereto;
(ii) the offering memorandum relating to the Lease
Trust Certificates dated _______, 1995, and any amendments
or supplements thereto;
(iii) each Lease Trust Distribution Statement
delivered to Lease Trust Certificateholders on each
Payment Date preceding such request;
(iv) such other information as is reasonably
available to the Lease Trustee in order to comply with
requests for information pursuant to Rule 144A under the
Securities Act.
None of the Depositor, the Lease Trust Certificate Registrar
or the Lease Trustee is under an obligation to register any Lease Trust
Certificate under the Securities Act or any other securities law.
(e) Upon surrender for registration of transfer of any Lease
Trust Certificate at the office or agency maintained pursuant to Section 3.8
and upon compliance with any
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provisions of this Agreement relating to such transfer, the Lease Trustee
shall, or shall cause the Authenticating Agent to, execute, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Lease Trust Certificates in authorized denominations of a like class and
aggregate face amount dated the date of such authentication.
At the option of a Lease Trust Certificateholder, Lease Trust
Certificates (other than the RCL Lease Trust Certificates) may be exchanged for
other Lease Trust Certificates in authorized denominations of a like aggregate
amount upon surrender of the Lease Trust Certificates to be exchanged at the
office or agency maintained pursuant to Section 3.8.
Whenever any Lease Trust Certificates are so surrendered for
exchange, the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall deliver the Lease Trust Certificates which the
Lease Trust Certificateholder making the exchange is entitled to receive.
The Lease Trust Certificate Registrar shall require that every
Lease Trust Certificate presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or accompanied by a written instrument
of transfer and accompanied by IRS Form W-8 or W-9, in form satisfactory to the
Lease Trust Certificate Registrar duly executed by, the holder thereof or such
Person's attorney duly authorized in writing.
No service charge shall be made to a Lease Trust
Certificateholder for any registration of transfer or exchange of Lease Trust
Certificates, but the Lease Trustee or the Lease Trust Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Lease Trust Certificates.
The Lease Trust Certificate Registrar shall cancel and retain
or destroy, in accordance with the Lease Trust Certificate Registrar's
retention policy then in effect, all Lease Trust Certificates surrendered for
registration of transfer or exchange and shall upon written request certify to
the Depositor as to such retention or destruction.
Section 3.5 Mutilated, Destroyed, Lost or Stolen Lease Trust
Certificates. If (a) any mutilated Lease Trust
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Certificate is surrendered to the Lease Trust Certificate Registrar, or if the
Lease Trust Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Lease Trust Certificate and (b) there is
delivered to the Lease Trust Certificate Registrar and the Lease Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Lease Trust Certificate has been
transferred to or is in the possession of a third party purchaser, the Lease
Trustee on behalf of the Lease Trust shall execute and the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Lease Trust Certificate, a new Lease Trust
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Lease Trust Certificate under this Section 3.5, the Lease
Trustee or the Lease Trust Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Lease Trust Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of an
ownership interest in the Lease Trust, as if originally issued, whether or not
the lost, stolen or destroyed Lease Trust Certificate shall be found at any
time.
Section 3.6 Persons Deemed Lease Trust Certificateholders.
Prior to due presentation of a Lease Trust Certificate for registration of
transfer, the Lease Trustee or the Lease Trust Certificate Registrar may treat
the Person in whose name any Lease Trust Certificate shall be registered in the
Lease Trust Certificate Register as the owner of such Lease Trust Certificate
for the purpose of receiving distributions pursuant to Section 5.2 and for all
other purposes whatsoever, and neither the Lease Trustee nor the Lease Trust
Certificate Registrar shall be bound by any notice to the contrary.
Section 3.7 Access to List of Lease Trust Certificateholders'
Names and Addresses. The Lease Trustee shall furnish or cause to be furnished
to the Administrative Agent and the Depositor, within 15 days after receipt by
the Lease Trustee of a request therefor from the Administrative Agent or the
Depositor in writing, a list, in such form as the Administrative Agent or the
Depositor may reasonably require, of the names and addresses of the Lease Trust
Certificateholders as of the most recent Lease Certificate Record Date. If (i)
three or more Lease Trust Certificateholders or (ii) one or more Lease Trust
Certificateholders evidencing not less than 25% of the Aggregate Certificate
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Balance apply in writing to the Lease Trustee, and such application states that
the applicants desire to communicate with other Lease Trust Certificateholders
with respect to their rights under this Agreement or under the Lease Trust
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Lease Trustee shall, within
five Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current list of Lease
Trust Certificateholders. Each Lease Trust Certificateholder, by receiving and
holding a Lease Trust Certificate, shall be deemed to have agreed not to hold
either the Depositor or the Lease Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
[Section 3.8 Maintenance of Office or Agency. The Lease
Trustee shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Lease Trust Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Lease Trustee in respect of the Lease Trust Certificates
and the Basic Documents to which the Lease Trustee is a party may be served.
The Lease Trustee initially designates ______________________ as its principal
corporate trust office for such purposes. The Lease Trustee shall give prompt
written notice to the Depositor and to the Lease Trust Certificateholders of
any change in the location of the Lease Trust Certificate Register or any such
office or agency.]
Section 3.9 Appointment of Lease Trust Paying Agent. The
Lease Trust Paying Agent shall make distributions to Lease Trust
Certificateholders from the Certificate Distribution Accounts pursuant to
Section 5.2 and shall report the amounts of such distributions to the Lease
Trustee. Any Lease Trust Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Accounts for the purpose of
making the distributions referred to above. The Lease Trustee may revoke such
power and remove the Lease Trust Paying Agent if the Lease Trustee determines
in its sole discretion that the Lease Trust Paying Agent has failed to perform
its obligations under this Agreement in any material respect. The Lease Trust
Paying Agent shall initially be PNC Bank, Delaware, and any co-paying agent
chosen by the Depositor, and acceptable to the Lease Trustee. PNC Bank,
Delaware may resign as Lease Trust Paying Agent upon 30 days' written notice to
the Lease Trustee. In the event that PNC Bank, Delaware shall no
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longer be the Lease Trust Paying Agent, the Lease Trustee shall appoint a
successor to act as Lease Trust Paying Agent (which shall be a bank or trust
company). The Lease Trustee shall cause such successor Lease Trust Paying
Agent or any additional Lease Trust Paying Agent appointed by the Lease Trustee
to execute and deliver to the Lease Trustee an instrument in which such
successor Lease Trust Paying Agent or additional Lease Trust Paying Agent shall
agree with the Lease Trustee that as Lease Trust Paying Agent, such successor
Lease Trust Paying Agent or additional Lease Trust Paying Agent will hold all
sums, if any, held by it for payment to the Lease Trust Certificateholders in
trust for the benefit of the Lease Trust Certificateholders entitled thereto
until such sums are paid to such Lease Trust Certificateholders. The Lease
Trust Paying Agent shall return all unclaimed funds to the Lease Trustee and
upon removal of a Lease Trust Paying Agent such Lease Trust Paying Agent shall
also return all funds in its possession to the Lease Trustee. The provisions
of Sections 7.1, 7.3, 7.4 and 8.2 shall apply to the Lease Trustee also in its
role as Lease Trust Paying Agent, for so long as the Lease Trustee shall act as
Lease Trust Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder.
Section 3.10 RCL Lease Trust Certificates. On and after the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the RCL Lease Trust Certificates; provided, that the Depositor
shall transfer a Lease Trust Certificate evidencing 1% of such RCL Lease Trust
Certificates to Ford Credit Leasing. Any other attempted transfer of the RCL
Lease Trust Certificates by the Depositor or Ford Credit Leasing shall be null
and void. Notwithstanding the foregoing, upon a dissolution or termination of
the Depositor, the RCL Lease Trust Certificates held by it shall be distributed
to the beneficiaries of the Depositor. The Lease Trustee shall cause the RCL
Lease Trust Certificates to bear a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION OF RCL TRUST 1995-1 AND ANY
TRANSFER IN VIOLATION OF THIS SECTION SHALL BE NULL AND VOID."
ARTICLE IV
ACTIONS BY LEASE TRUSTEE
Section 4.1 Prior Notice to Lease Trust Certificateholders
with Respect to Certain Matters. With respect to the following matters, the
Lease Trustee shall not take
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action unless (i) the Lease Trustee has notified the Lease Trust
Certificateholders and the Rating Agencies in writing of the proposed action at
least 30 days before the taking of such action, and (ii) Lease Trust
Certificateholders representing at least 25% of the Aggregate Certificate
Balance have not notified the Lease Trustee in writing prior to the 30th day
after such notice is given that such Lease Trust Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Lease Trust
and the compromise of any action, claim or lawsuit brought by or against the
Lease Trust (other than an action brought by the Administrative Agent on behalf
of FCTT and Persons having interests in the Series 1995-1 Certificates to
collect amounts owed under a Series 1995-1 Lease);
(b) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interests of the Lease
Trust Certificateholders; or
(d) the amendment of any other Basic Document if such
amendment materially adversely affects the interests of the Lease Trust
Certificateholders.
Section 4.2 Action by Lease Trust Certificateholders with
Respect to Certain Matters. The Lease Trustee shall not have the power, except
upon the occurrence of an Event of Default as set forth in Section 7.1 of the
Administrative Agency Agreement and, after the lien of the Indenture is
discharged, upon the written direction of Lease Trust Certificateholders
holding Lease Trust Certificates evidencing an interest of at least 66 2/3% of
the Aggregate Certificate Balance (and subject to the terms of the Program
Operating Lease, including Section 6.2 thereof), to (a) remove the
Administrative Agent with respect to the Series 1995-1 Assets pursuant to
Section 7.1 of the Administrative Agency Agreement, (b) appoint a successor
Administrative Agent pursuant to Section 7.3 of the Administrative Agency
Agreement, or (c) except as expressly provided in the Basic Documents
(including Section 9.2), sell the Series 1995-1 Certificates.
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Section 4.3 Action by Lease Trust Certificateholders with
Respect to Bankruptcy. The Lease Trustee shall not have the power to commence
a voluntary proceeding in bankruptcy relating to the Lease Trust without the
unanimous prior approval of all Lease Trust Certificateholders and Noteholders
and the delivery to the Lease Trustee by each such Lease Trust
Certificateholder and Noteholder of a certificate certifying that such Lease
Trust Certificateholder or Noteholder reasonably believes that the Lease Trust
is insolvent.
Section 4.4 Restrictions on Lease Trust Certificateholders'
Power. The Lease Trust Certificateholders shall not direct the Lease Trustee
to take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Lease Trust or the Lease Trustee under this
Agreement or any of the other Basic Documents nor shall the Lease Trustee be
obligated to follow any such direction, if given.
Section 4.5 Majority Control. Except as expressly provided
herein, any action that may be taken by the Lease Trust Certificateholders
under this Agreement may be taken by the Lease Trust Certificateholders holding
not less than a majority of the Aggregate Certificate Balance. Except as
expressly provided herein, any written notice of the Lease Trust
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Lease Trust Certificateholders holding not less than a majority of
the Aggregate Certificate Balance at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Certificate Distribution
Account. The Lease Trustee, for the benefit of the Lease Trust
Certificateholders, shall establish and maintain an Eligible Account in the
name of the Lease Trust which shall be designated as the "Certificate
Distribution Account". The Certificate Distribution Account shall be held in
trust for the benefit of the Lease Trust Certificateholders and shall bear a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Lease Trust Certificateholders.
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The Lease Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof. Except as otherwise provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of the Lease Trustee for the benefit of the Lease Trust Certificateholders. If
at any time the Certificate Distribution Account ceases to be an Eligible
Account, the Lease Trustee (or the Depositor on behalf of the Lease Trustee, if
the Certificate Distribution Account is not then held by the Lease Trustee or
an Affiliate thereof) shall within 10 Business Days following notification of
such occurrence (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new Certificate Distribution
Account as an Eligible Account and shall transfer any cash and/or investments
to such new Certificate Distribution Account.
Section 5.2 Application of Funds. (a) Until the Indenture
has been satisfied and discharged pursuant to Section 4.1 thereof, on each
Payment Date, the Lease Trustee (if other than the Lease Trust Paying Agent)
shall transfer, to the extent of the funds available, the amount of interest
deposited by the Indenture Trustee into the Certificate Distribution Account
pursuant to Section 8.4(b)(ii) of the Indenture on such Payment Date funds to
the Lease Trust Paying Agent, which shall distribute such funds to Lease Trust
Certificateholders, on a pro rata basis.
(b) Until the Indenture has been satisfied and discharged
pursuant to Section 4.1 thereof, on each Payment Date, the Lease Trustee (if
other than the Lease Trust Paying Agent) shall transfer, to the extent of funds
available, the amounts of principal (if any) deposited by the Indenture Trustee
into the Certificate Distribution Account pursuant to Section 8.4(b) of the
Indenture on such Payment Date to the Lease Trust Paying Agent, which shall
distribute such amounts to Lease Trust Certificateholders, (i) pro rata until
such time as the Aggregate Certificate Balance of the Lease Trust Certificates
has been reduced to zero and (ii) thereafter to the holders of the RCL Lease
Trust Certificates. The Indenture Trustee shall have no duties or obligations
to the Lease Trust Certificateholders except as set forth in this Section
5.2(b).
(c) On and after the date on which the Indenture has been
satisfied and discharged pursuant to Section 4.1 thereof, all amounts deposited
or to be deposited into the Series 1995-1 Payments Account shall be deposited
in the
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Certificate Distribution Account for distribution in the following priority:
(i) to the Administrative Agent, the Series 1995-1
Administrative Fee, for the related Accrual Period;
(ii) to the Lease Trust Certificateholders, to the
extent of funds available, the interest due and
payable on the Aggregate Certificate Balance of
the Lease Trust Certificates, as determined
pursuant to Section 3.2(b), pro rata;
(iii) to the Lease Trust Certificateholders, to the
extent of the funds available (x) pro rata until
such time as the Aggregate Certificate Balance of
the Lease Trust Certificates has been reduced to
zero and (y) thereafter to the holders of the RCL
Lease Trust Certificates.
On the Payment Date on which the Aggregate Certificate Balance of the Lease
Trust Certificates has been reduced to zero, the Lease Trustee shall release to
the RCL Trust 1995-1 all of the Lease Trust's right, title and interest in, to
and under any remaining Reserve Account Property. In addition, after the
Aggregate Certificate Balance of the Lease Trust Certificates has been reduced
to zero, all remaining assets of the Lease Trust shall be distributed to the
holders of the RCL Lease Trust Certificates in payment of the remaining balance
of the Deferred Amount. Following such distribution, the Lease Trust shall be
terminated.
(d) On each Payment Date, the Lease Trustee shall send to
each Lease Trust Certificateholder a report (a "Lease Trust Distribution
Statement") based on information supplied by the Administrative Agent setting
forth the following information:
(i) the Aggregate Certificate Balance and the
Certificate Balance for each $100,000 Lease Trust
Certificate on the immediately preceding Payment
Date, or if the current Payment Date is the first
Payment Date, on the Closing Date;
(ii) the aggregate amount of interest accrued and paid
on the Aggregate Certificate Bal-
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ance and the interest accrued per $100,000 Lease
Trust Certificate during the preceding Accrual
Period;
(iii) the aggregate amount of principal paid with
respect to the Aggregate Certificate Balance and
the principal paid with respect to each $100,000
Lease Trust Certificate on such Payment Date; and
(iv) the Aggregate Certificate Balance and the
Certificate Balance of each $100,000 Lease Trust
Certificate after giving effect to any payment of
principal on such Payment Date.
(e) In the event that any withholding tax is imposed on the
Lease Trust's payment (or, if the Lease Trust is treated as a partnership for
federal income tax purposes, allocations of income) to a Lease Trust
Certificateholder, such tax shall reduce the amount otherwise distributable to
such Lease Trust Certificateholder in accordance with this Section 5.2. The
Lease Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to such Lease Trust Certificateholder sufficient funds
for the payment of any withholding tax that is legally owed by the Lease Trust
(but such authorization shall not prevent the Lease Trustee from contesting any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Lease Trust Certificateholder shall
be treated as cash distributed to such Lease Trust Certificateholder at the
time it is withheld by the Lease Trust for remittance to the appropriate taxing
authority. If the Lease Trustee determines that there is a possibility that
withholding tax is payable with respect to a distribution, the Lease Trustee
may in its sole discretion withhold such amounts in accordance with this
Section 4.2(d). In the event that a Lease Trust Certificateholder wishes to
apply for a refund of any such withholding tax, the Lease Trustee shall
reasonably cooperate with such Lease Trust Certificateholder in making such
claim so long as such Lease Trust Certificateholder agrees to reimburse the
Lease Trustee for any out-of-pocket expenses incurred.
Section 5.3 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Lease Trust Certificateholders on any
Payment Date shall be made
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to each Lease Trust Certificateholder of record on the preceding Lease
Certificate Record Date either by wire transfer, in immediately available
funds, to the account of such Lease Trust Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Lease Trust
Certificateholder shall have provided to the Lease Trust Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date and such Lease Trust Certificateholder's Lease Trust Certificates
in the aggregate evidence a denomination of not less than $100,000 (or if such
Lease Trust Certificateholder is the Depositor or an Affiliate thereof), or, if
not, by check mailed to such Lease Trust Certificateholder at the address of
such Lease Trust Certificateholder appearing in the Lease Trust Certificate
Register.
Section 5.4 No Segregation of Monies; No Interest. Subject
to Sections 5.1 and 5.2, monies received by the Lease Trustee hereunder need
not be segregated in any manner except to the extent required by law and may be
deposited under such general conditions as may be prescribed by law, and the
Lease Trustee shall not be liable for any interest thereon.
Section 5.5 Accounting and Reports to the Noteholders, Lease
Trust Certificateholders, the Internal Revenue Service and Others. (a) The
Lease Trustee shall, based on information provided by the Depositor, (i)
maintain (or cause to be maintained) the books of the Lease Trust on a calendar
year basis on the accrual method of accounting (except as required by Annex A),
(ii) deliver to each Lease Trust Certificateholder such information as may be
required by the Code and applicable Treasury Regulations with respect to
instruments such as the Lease Trust Certificates, that are consistent with the
position that the Lease Trust Certificates (other than the RCL Lease Trust
Certificates) will be treated as debt for federal income tax and state income
and franchise tax purposes, and (iii) in addition to the Lease Trustee's rights
under Section 5.2, take such action as instructed by the holders of the RCL
Lease Trust Certificates to collect or cause to be collected and paid over to
applicable authorities any withholding tax as described in and in accordance
with Section 5.2 or Annex A with respect to income or distributions to Lease
Trust Certificateholders. The Lease Trustee shall make all elections pursuant
to Annex A as directed by the Depositor.
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(b) The Depositor, as the holder of the RCL Trust
Certificate, shall maintain such books and records, and shall prepare and file
such reports and returns, as are required pursuant to Sections 2.11, 5.5 and
11.2.
ARTICLE VI
AUTHORITY AND DUTIES OF LEASE TRUSTEE
Section 6.1 General Authority. To the extent permitted by
Section 2.3, the Lease Trustee is authorized and directed to execute and
deliver the Basic Documents to which the Lease Trust is to be a party and each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents to which the Lease Trust is to be a party, in each case, in
such form as the Depositor shall approve as evidenced conclusively by the Lease
Trustee's execution thereof and the Depositor's execution of this Agreement,
and to direct the Indenture Trustee to authenticate and deliver Notes in the
aggregate principal amount not to exceed $_________. In addition to the
foregoing, the Lease Trustee is authorized to take all actions required of the
Lease Trust pursuant to the Basic Documents. The Lease Trustee is further
authorized from time to time to take such action on behalf of the Lease Trust
as is permitted by the Basic Documents and which the Administrative Agent
recommends with respect to the Basic Documents, except to the extent that this
Agreement expressly requires the consent of Lease Trust Certificateholders for
such action.
Section 6.2 General Duties. It shall be the duty of the
Lease Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other Basic
Documents to which it is to be a party and to administer the Lease Trust in the
interest of the Lease Trust Certificateholders, subject to the lien of the
Indenture and in accordance with provisions of this Agreement and the other
Basic Documents.
Section 6.3 Action upon Instruction. (a) Subject to Article
IV, the Depositor may by written instruction, direct the Lease Trustee in the
administration of the Lease Trust, subject to, and in accordance with the terms
of this Agreement; provided, that no such instruction shall, as evidenced by an
Opinion of Counsel, materially adversely effect on Noteholders or Lease Trust
Certificateholders.
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(b) The Lease Trustee shall not be required to take any
action hereunder or under any Basic Document if the Lease Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Lease Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise contrary
to law.
(c) Whenever the Lease Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, the Lease Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the Lease
Trust Certificateholders requesting instruction as to the course of action to
be adopted, and to the extent the Lease Trustee acts in good faith in
accordance with any written instruction of the Lease Trust Certificateholders
holding not less than a majority of the Aggregate Certificate Balance, the
Lease Trustee shall not be liable on account of such action to any Person. If
the Lease Trustee shall not have received appropriate instruction within ten
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall deem
to be in the best interests of the Lease Trust Certificateholders, and shall
have no liability to any Person for such action or inaction.
(d) In the event that the Lease Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement or any other Basic Document permits any determination by the Lease
Trustee or is silent or is incomplete as to the course of action that the Lease
Trustee is required to take with respect to a particular set of facts, the
Lease Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Lease Trust Certificateholders requesting instruction
and, to the extent that the Lease Trustee acts or refrains from acting in good
faith in accordance with any such instruction received from Lease Trust
Certificateholders holding not less than a majority of the Aggregate
Certificate Balance and in accordance with Sections 6.4 and 6.5, the Lease
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Lease Trustee shall not have received appro-
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priate instruction within 10 days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other
Basic Documents, as it shall deem to be in the best interests of the Lease
Trust Certificateholders, and shall have no liability to any Person for such
action or inaction.
Section 6.4 No Duties Except as Specified in this Agreement
or in Instructions. The Lease Trustee shall not have any right, duty, or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of or otherwise deal with the Lease Trust Estate, or to otherwise take
or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Lease Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Lease Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Lease Trustee. The Lease Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
ownership or security interest in the Lease Trust Estate or to prepare or file
any Securities and Exchange Commission filing, if any, for the Lease Trust or
to record this Agreement or any other Basic Document. The Lease Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any liens (other than the lien of
the Indenture) on any part of the Lease Trust Estate that result from actions
by, or claims against, the Lease Trustee that are not related to the ownership
or the administration of the Lease Trust Estate.
Section 6.5 No Action Unless Specifically Authorized. The
Lease Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Lease Trust Estate except (a) in accordance with the
powers granted to and the authority conferred upon the Lease Trustee pursuant
to this Agreement, (b) in accordance with the other Basic Documents to which
the Lease Trust or the Lease Trustee is a party and (c) in accordance with any
document or instruction delivered to the Lease Trustee pursuant to Section 6.3.
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Section 6.6 Restrictions. The Lease Trustee shall not take
any action (a) that is contrary to or inconsistent with the purposes of the
Lease Trust set forth in Section 2.3 or (b) that, to the actual knowledge of
the Lease Trustee, would (i) affect the treatment of the Notes as debt for
federal income tax purposes, (ii) be deemed to cause a taxable exchange of the
Notes for federal income tax purposes or (iii) cause the Lease Trust, the
Depositor or FCTT to be taxable as an association or publicly traded
partnership taxable as a corporation for federal or Delaware income tax
purposes. The Lease Trust Certificateholders shall not direct the Lease
Trustee to take action that would violate the provisions of this Section 6.6.
ARTICLE VII
CONCERNING THE LEASE TRUSTEE
Section 7.1 Acceptance of Trusts and Duties. The Lease
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Lease Trustee also agrees to disburse all moneys actually
received by it constituting part of the Lease Trust Estate upon the terms of
this Agreement and the other Basic Documents to which the Lease Trust or the
Lease Trustee is a party. The Lease Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by the Lease Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Lease Trustee shall not be liable for any error
of judgment made by a responsible officer of the Lease Trustee;
(b) the Lease Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of any Lease Trust Certificateholder, the Indenture
Trustee, the Depositor or the Administrative Agent;
(c) no provision of this Agreement or any other Basic
Document shall require the Lease Trustee to expend or risk funds or
otherwise incur any financial
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liability in the performance of any of its rights or powers hereunder
or under any other Basic Document if the Lease Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Lease Trustee be liable
for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Lease Trust Certificates;
(e) the Lease Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Lease
Trust Estate or for or in respect of the validity or sufficiency of
the other Basic Documents, other than the certificate of
authentication on the Lease Trust Certificates, and the Lease Trustee
shall in no event be deemed to have assumed or incurred any liability,
duty or obligation to any Noteholder or to any Lease Trust
Certificateholder or any third party dealing with the Lease Trust or
the Lease Trust Estate, other than as expressly provided for herein
and in the other Basic Documents;
(f) the Lease Trustee shall not be liable for the
misfeasance, malfeasance or nonfeasance of the Administrative Agent,
the Depositor or the Indenture Trustee, under any of the Basic
Documents or otherwise, and the Lease Trustee shall have no obligation
or liability to perform the obligations of the Lease Trust under this
Agreement or the Basic Documents that are required to be performed by
the Administrative Agent under the Administrative Agency Agreement or
the Series 1995-1 Supplement, the Depositor under the Transfer
Agreement or the Program Operating Lease, or the Indenture Trustee
under the Indenture; and
(g) the Lease Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this Agreement
or otherwise or in relation to this Agreement or any other Basic
Document, at the request, order or direction of any of the Lease Trust
Certificateholders, unless such Lease
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Trust Certificateholders have offered to the Lease Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Lease Trustee therein or
thereby. The right of the Lease Trustee to perform any discretionary
act enumerated in this Agreement or in any other Basic Document shall
not be construed as a duty, and the Lease Trustee shall not be
answerable for other than its bad faith, negligence or willful
misconduct in the performance of any such act.
Section 7.2 Furnishing of Documents. The Lease Trustee shall
furnish to any Lease Trust Certificateholder promptly upon receipt of a written
request by such Lease Trust Certificateholder (at the expense of the requesting
Lease Trust Certificateholder) therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Lease Trustee under the Basic Documents.
Section 7.3 Representations and Warranties. The Lease
Trustee hereby represents and warrants to the Depositor, for the benefit of the
Lease Trust Certificateholders, that:
(a) It is a [banking corporation] duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any Federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Lease Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
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(d) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding agreement of it, enforceable
against the Lease Trustee in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
Section 7.4 Reliance; Advice of Counsel. (a) The Lease
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Lease Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Lease Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Lease Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or
the other Basic Documents, the Lease Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into with any of them,
and the Lease Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Lease Trustee with reasonable care and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care and
employed by it. The Lease Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the [written]
opinion or advice of any such counsel, accountants or other such persons and
not contrary to this Agreement or any other Basic Document.
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Section 7.5 Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created PNC Bank,
Delaware acts solely as Lease Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Lease Trustee by reason
of the transactions contemplated by this Agreement or any Basic Document shall
look only to the Lease Trust Estate for payment or satisfaction thereof.
Section 7.6 Lease Trustee Not Liable for Lease Trust
Certificates. The recitals contained herein and in the Lease Trust
Certificates (other than the signature and counter signature of the Lease
Trustee on the Lease Trust Certificates and its representations and warranties
in Section 7.3) shall be taken as the statements of the Depositor and the Lease
Trustee assumes no responsibility for the correctness thereof. The Lease
Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any other Basic Document or of the Lease Trust Certificates
(other than the signature and countersignature of the Lease Trustee on the
Lease Trust Certificates) or the Notes. The Lease Trustee shall at no time
have any responsibility or liability for or with respect to the legality,
validity or enforceability of any Basic Document to which the Lease Trustee is
to be a party (except for enforceability against the Lease Trustee), or the
perfection and priority of any security interest created by or under any Basic
Document, or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Lease Trust Estate or its ability to
generate the payments to be distributed to Lease Trust Certificateholders under
this Agreement or the Noteholders under the Indenture, including, without
limitation: the validity of the transfer of the Series 1995-1 Certificates to
the Lease Trust pursuant to the Transfer Agreement; the lease of the Series
1995-1 Certificates to RCL Trust 1995-1 pursuant to the Program Operating
Lease; the compliance by the Depositor or the Administrative Agent with any
warranty or representation made under any Basic Document or the accuracy of any
such warranty or representation or any action of the Administrative Agent or
the Indenture Trustee taken in the name of the Lease Trustee.
Section 7.7 Lease Trustee May Own Lease Trust Certificates
and Notes. The Lease Trustee in its individual or any other capacity may
become the owner or pledgee of Lease Trust Certificates or Notes and may deal
with the Depositor, the Administrative Agent and the Indenture Trustee, and
their respective Affiliates, in banking transactions
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with the same rights as it would have if it were not Lease Trustee.
ARTICLE VIII
COMPENSATION OF LEASE TRUSTEE
Section 8.1 Lease Trustee's Fees and Expenses. The Lease
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Depositor
and the Lease Trustee. The Administrative Agent (in exchange for receipt of
the Series 1995-1 Administrative Fee) has agreed pursuant to the Series 1995-1
Supplement to pay such fees of the Lease Trustee as are agreed upon by the
Depositor and the Lease Trustee, and shall reimburse the Lease Trustee for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Lease Trustee may employ in connection with the exercise and performance
of its rights and its duties hereunder. The Depositor shall make no claim upon
the Lease Trust Estate for the payment or reimbursement of such fees and
expenses.
Section 8.2 Indemnification. The holders of the RCL Lease
Trust Certificates shall be liable as primary obligor for, and shall indemnify
the Lease Trustee and its successors, assigns, agents, servants officers and
employees (collectively, the "Indemnified Parties") from and against any
Expenses which may at any time be imposed on, incurred by, or asserted against
the Lease Trustee or any Indemnified Party in any way relating to or arising
out of this Agreement, the other Basic Documents, the Lease Trust Estate, the
administration of the Lease Trust Estate or the action or inaction of the Lease
Trustee hereunder, except only that the holders of the RCL Lease Trust
Certificates shall not be liable for or required to indemnify the Lease Trustee
from and against Expenses arising or resulting from any of the matters
described in the second clause of the third sentence of Section 7.1. The
indemnities contained in this Section 8.2 shall survive the resignation or
termination of the Lease Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section 8.2, the Lease Trustee's choice of legal counsel shall
be subject to the approval of the Depositor, which approval shall not be
unreasonably withheld. The holders of the RCL Trust Certif-
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icates shall make no claim upon the Lease Trust Estate for the payment of such
Expenses.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.1 Termination of Trust Agreement. (a) This
Agreement (other than Article VIII) and the Lease Trust shall terminate and be
of no further force or effect, (i) upon the final distribution by the Lease
Trustee of all moneys or other property or proceeds of the Lease Trust Estate
in accordance with the terms of the Indenture and the payment of the Aggregate
Certificate Balance pursuant to Article V or (ii) at the times provided in
Section 9.2 or 9.3. The bankruptcy, liquidation, dissolution, termination
death or incapacity of any Lease Trust Certificateholder, other than the
Depositor or Ford Credit Leasing as described in Section 9.2 or 9.3, shall not
(x) operate to terminate this Agreement or the Lease Trust, nor (y) entitle
such Lease Trust Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Lease Trust or Lease Trust Estate nor (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the
Depositor nor any Lease Trust Certificateholder shall be entitled to revoke or
terminate the Lease Trust.
(c) Notice of any termination of the Lease Trust Agreement
pursuant to Section 9.1(a) shall be given by the Lease Trustee by letter to
Lease Trust Certificateholders mailed within five Business Days of receipt of
notice of such termination from the Administrative Agent, stating (i) the
Payment Date upon or with respect to which final payment of the Lease Trust
Certificates shall be made upon presentation and surrender of the Lease Trust
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Lease Certificate Record
Date otherwise applicable to such Payment Date is not applicable, payments
being made only upon presentation and surrender of the Lease Trust Certificates
at the office of the Paying Agent therein specified. The Lease Trustee shall
give such notice to the Lease Trust Certificate Registrar (if other than the
Lease Trustee) and the
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Paying Agent at the time such notice is given to Lease Trust
Certificateholders. Upon presentation and surrender of the Lease Trust
Certificates, the Paying Agent shall cause to be distributed to Lease Trust
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.3.
In the event that all of the Lease Trust Certificateholders
shall not surrender their Lease Trust Certificates for cancellation within six
months after the date specified in the above mentioned written notice, the
Lease Trustee shall give a second written notice to the remaining Lease Trust
Certificateholders to surrender their Lease Trust Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice all the Lease Trust Certificates shall not have been
surrendered for cancellation, the Lease Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining Lease
Trust Certificateholders concerning surrender of their Lease Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Lease Trust after exhaustion of such remedies shall be distributed by the Lease
Trustee to the Depositor.
Section 9.2 Dissolution upon Bankruptcy of the Depositor. In
the event that a Bankruptcy shall occur with respect to the Depositor or Ford
Credit Leasing, or the Depositor shall be terminated in accordance with the
terms of the Basic Documents, this Agreement shall be terminated in accordance
with Section 9.1 upon the occurrence of such Bankruptcy or termination, and
shall commence to wind down. Promptly after the occurrence of any Bankruptcy
or termination with respect to the Depositor or Ford Credit Leasing, (i) the
Depositor or Ford Credit Leasing, as the case may be, shall give the Indenture
Trustee, the Lease Trustee and the Rating Agencies written notice of such
Bankruptcy or termination, (ii) the Lease Trustee shall, upon the receipt of
such written notice from the Depositor or Ford Credit Leasing, give prompt
written notice to the Lease Trust Certificateholders of the occurrence of such
Bankruptcy or termination and (iii) the Indenture Trustee shall, upon receipt
of written notice of such Bankruptcy or termination from the Lease Trustee, the
Depositor or Ford Credit Leasing, give prompt written notice to the Noteholders
of the occurrence of such Bankruptcy or termination; provided, however, that
any failure to give a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Lease Trust pursuant to the first
sentence of
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this Section 9.2. Upon the receipt of such notice or actual knowledge of a
termination pursuant to this Section 9.2, the Lease Trustee shall direct the
Indenture Trustee promptly to sell the assets of the Lease Trust (other than
the Series 1995-1 Payments Account) in a commercially reasonable manner and on
commercially reasonable terms. The Lease Trustee has no liability with respect
to the procedures of the Indenture Trustee in connection with such sale or the
sufficiency or adequacy of the proceeds therefrom.
Section 9.3. Prepayment of the Lease Trust Certificates.
(a) The Lease Trust Certificates shall be prepaid in
whole, but not in part, on any Payment Date on which the Administrative Agent
exercises its option to purchase the Series 1995-1 Certificates pursuant to
Section 7.1 of the Series 1995-1 Supplement, for a purchase price equal to the
Prepayment Price; provided, however, that the Lease Trust has available funds
sufficient to pay the Prepayment Price. The Administrative Agent or the Lease
Trustee shall furnish the Rating Agencies notice of such Prepayment. If the
Lease Trust Certificates are to be prepaid pursuant to this Section 9.3, the
Lease Trustee shall or shall cause the Administrative Agent to furnish notice
of such election to the Lease Trust Certificateholders not later than
[twenty-five] days prior to the Prepayment Date. In accordance with Section
5.2(e) of the Series 1995-1 Supplement, if any of the Notes are outstanding on
the Prepayment Date, then on the Prepayment Date the Administrative Agent shall
deposit the Prepayment Price in the Series 1995-1 Collections Account, and if
none of the Notes are outstanding on the Prepayment Date, then on the
Prepayment Date the Administrative Agent shall deposit the Prepayment Price in
the Certificate Distribution Account, where upon all of the Lease Trust
Certificates shall be due and payable on the Prepayment Date upon the
furnishing of a notice complying with Section 9.3(b) to each Lease Trust
Certificateholder.
(b) Notice of Prepayment under Section 9.3(a) shall be
given by the Lease Trustee by facsimile or by first-class mail, postage
prepaid, transmitted or mailed at least [fifteen]days prior to the applicable
Prepayment Date to each Lease Trust Certificateholder, on the Lease Certificate
Record Date preceding the applicable Prepayment Date, at such Lease Trust
Certificateholder's address appearing in the Lease Trust Certificate Register.
All notices of prepayment shall state:
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(i) the Prepayment Date;
(ii) The Prepayment Price; and
(iii) the place where such Lease Trust
Certificates are to be surrendered for
payment of the Prepayment Price (which
shall be the office or agency of the Lease
Trustee to be maintained as provided in
Section 3.8).
Notice of prepayment of the Lease Trust Certificates shall be
given by the Lease Trustee in the name and at the expense of the Lease Trust.
Failure to give notice of prepayment, or any defect therein, to any Lease Trust
Certificateholder shall not impair or affect the validity of the prepayment of
any other Lease Trust Certificate.
(c) The Lease Trust Certificate to be prepaid shall,
following notice of redemption as required by Section 9.3(b) on the Prepayment
Date become due and payable at the Prepayment Price and (unless the Lease Trust
shall default in the payment of the Prepayment Price) no interest shall accrue
on the Prepayment Price for any period beginning with and including the
Prepayment Date.
ARTICLE X
SUCCESSOR LEASE TRUSTEES AND ADDITIONAL LEASE TRUSTEES
Section 10.1 Eligibility Requirements for Lease Trustee. The
Lease Trustee shall at all times be authorized to exercise corporate trust
powers and be a Person with a long term debt rating of investment grade by the
Rating Agencies (or is otherwise acceptable to the Rating Agencies) and having
a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authorities. If such Person
shall publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 10.1, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Lease Trustee
shall cease to be eligible in accordance with the provisions of this Section
10.1, the Lease Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2.
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Section 10.2 Resignation or Removal of Lease Trustee. The
Lease Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrative Agent, the
Depositor and the Lease Trust Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor Lease Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Lease Trustee and one copy to the successor Lease
Trustee. If no successor Lease Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Lease Trustee may petition any court of competent
jurisdiction for the appointment of a successor Lease Trustee.
If at any time the Lease Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Administrative Agent, the Depositor or Lease
Trust Certificateholders holding not less than a majority of the Aggregate
Certificate Balance, or if at any time the Lease Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the
Lease Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Lease Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then the
Administrative Agent, the Depositor or such Lease Trust Certificateholders may
remove the Lease Trustee. If the Administrative Agent, the Depositor or Lease
Trust Certificateholders holding not less than a majority of the Aggregate
Certificate Balance shall remove the Lease Trustee under the authority of the
immediately preceding sentence, the Administrative Agent or the Depositor shall
promptly appoint a successor Lease Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Lease Trustee
so removed and one copy to the successor Lease Trustee.
Any resignation or removal of the Lease Trustee and
appointment of a successor Lease Trustee pursuant to any of the provisions of
this Section 10.2 shall not become effective until acceptance of appointment by
the successor Lease Trustee pursuant to Section 10.3 and payment of all fees
and expenses owed to the outgoing Lease Trustee. The Depositor shall provide
notice of such resignation or removal of the Lease Trustee to each of the
Rating Agencies, the Indenture Trustee and the Lease Trust Certificateholders.
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Section 10.3 Successor Lease Trustee. Any successor Lease
Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Administrative Agent and to its predecessor Lease Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Lease Trustee shall become effective
and such successor Lease Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations
of its predecessor under this Agreement, with like effect as if originally
named as Lease Trustee. The predecessor Lease Trustee shall upon payment of
its fees and expenses deliver to the successor Lease Trustee all documents and
statements and monies held by it under this Agreement; and the Depositor and
the predecessor Lease Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Lease Trustee all such rights, powers, duties
and obligations.
No successor Lease Trustee shall accept appointment as
provided in this Section 10.3 unless at the time of such acceptance such
successor Lease Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Lease Trustee
pursuant to this Section 10.3, the Depositor shall mail notice of the successor
of such Lease Trustee to all Lease Trust Certificateholders, the Indenture
Trustee, and the Rating Agencies. If the Depositor shall fail to mail such
notice within 10 days after acceptance of appointment by the successor Lease
Trustee, the successor Lease Trustee shall cause such notice to be mailed at
the expense of the Depositor.
Section 10.4 Merger or Consolidation of Lease Trustee. Any
Person into which the Lease Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Lease Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Lease Trustee, shall be the successor of the Lease Trustee hereunder, provided
such Person shall be eligible pursuant to Section 10.1, without the execution
or filing of any instrument or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
further that the Lease Trustee shall mail notice of such merger, conversion,
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or consolidation to the Rating Agencies, the Indenture Trustee and the Lease
Trust Certificateholders.
Section 10.5 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Lease Trust Estate may at the time be located, the Depositor and the
Lease Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons to act as co-trustee, jointly
with the Lease Trustee, or separate trustee or separate trustees, of all or any
part of the Lease Trust Estate, and to vest in such Person, in such capacity,
such title to the Lease Trust, or any part thereof, and, subject to the other
provisions of this Section 10.5, such powers, duties, obligations, rights and
trusts as the Depositor and the Lease Trustee may consider necessary or
desirable. If the Depositor shall not have joined in such appointment within
15 days after the receipt by it of a request so to do, the Lease Trustee alone
shall have the power to make such appointment. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Lease Trustee shall be conferred upon and exercised
or performed by the Lease Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Lease
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Lease Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Lease Trust or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely
at the direction of the Lease Trustee;
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(b) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(c) jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Lease
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article X. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Lease Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Lease Trustee. Each such instrument shall
be filed with the Lease Trustee and a copy thereof given to the Administrative
Agent and the Depositor.
Any separate trustee or co-trustee may at any time appoint the
Lease Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Lease Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
TAX MATTERS
Section 11.1 Income Tax Characterization. It is the
intention of the parties hereto that the Lease Trust not constitute a separate
entity for federal income tax or state income or franchise taxes. If, however,
the Lease Trust is characterized as a separate entity for federal income tax
purposes, it is the intention of the parties that it qualify as a partnership
for such purposes.
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Section 11.2 Annex A. The provisions of Annex A are intended
to apply to the extent the Lease Trust is classified as a partnership for
federal income tax purposes. Annex A shall be considered to be a part of this
Agreement for all purposes. The Administrative Agent, on behalf of the Lease
Trust, will maintain books and records sufficient to effectuate the provisions
of Annex A.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Supplements and Amendments.
(a) Without Consent of the Noteholders or the Lease Trust
Certificateholders. This Agreement may be amended by the Depositor and the
Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Noteholders or the Lease-Trust
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement, to add any provisions to or change in any
manner or eliminate any of the provisions in this Agreement or to modify in any
manner the rights of the Noteholders or the Lease Trust Certificateholders;
provided, however, that such action shall not, (i) as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of the
Indenture Trustee, any Noteholder or Lease Trust Certificateholder, (ii) as
confirmed by each Rating Agency rating the Notes and the Lease Trust
Certificates, cause the then current rating of any Class of Notes or the Lease
Trust Certificates to be withdrawn or reduced or (iii) cause the Lease Trust,
the Depositor or FCTT to be taxable as an "association" or publicly traded
partnership taxable as a corporation for federal income tax purposes.
(b) With Consent of the Noteholders and the Lease Trust
Certificateholders. This Agreement may also be amended from time to time by
the Depositor and the Lease Trustee, with prior written notice to the Rating
Agencies, with the consent of the Noteholders holding not less than a majority
of the Outstanding Amount of each Class of Notes and, to the extent affected
thereby, the consent of Lease Trust Certificateholders holding not less than a
majority of the Aggregate Certificate Balance for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Lease Trust
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Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of distributions that are required to be made for the benefit of the
Noteholders or the Lease Trust Certificateholders, or (b) reduce the percentage
of the Outstanding Amount of each Class of the Notes and the Aggregate
Certificate Balance required to consent to any such amendment, without the
consent of the holders of 100% of all outstanding Lease Trust Certificates
(other than the RCL Lease Trust Certificates), and provided, further that an
Opinion of Counsel shall be furnished to the Indenture Trustee and the Lease
Trustee to the effect that such amendment shall not (i) affect the treatment of
the Notes as debt for federal income tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income tax purposes or (iii) cause
the Lease Trust or the Series 1995-1 Certificates to be taxable as an
association or publicly traded partnership taxable as a corporation for federal
income tax purposes.
Promptly after the execution of any such amendment or consent,
the Lease Trustee shall furnish written notification of the substance of such
amendment or consent to each Lease Trust Certificateholder, the Indenture
Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Lease Trust
Certificateholders, the Noteholders or the Indenture Trustee pursuant to this
Section 12.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Lease Trust Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof by
Lease Trust Certificateholders shall be subject to such reasonable requirements
as the Lease Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the
Lease Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. The Lease Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Lease Trustee's
own rights, duties or immunities under this Agreement or otherwise.
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Section 12.2 No Legal Title to Lease Trust Estate in Lease
Trust Certificateholders. The Lease Trust Certificateholders shall not have
legal title to any part of the Lease Trust Estate. The Lease Trust
Certificateholders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Articles V
and IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Lease Trust Certificateholders to and in their ownership
interest in the Lease Trust Estate shall operate to terminate this Agreement or
the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Lease Trust Estate.
Section 12.3 Limitations on Rights of Others. Except for
Section 2.7, the provisions of this Agreement are solely for the benefit of the
Lease Trustee, the Depositor, the Lease Trust Certificateholders, the
Administrative Agent, the Indenture Trustee and the Noteholders, and nothing in
this Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Lease Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 12.4 Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing and
shall be deemed given upon receipt by the intended recipient or three Business
Days after mailing if mailed by certified mail, postage prepaid (except that
notice to the Lease Trustee shall be deemed given only upon actual receipt by
the Lease Trustee), or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
1) If to the Lease Trustee:
PNC Bank, Delaware
222 Delaware Avenue
Wilmington, Delaware 19801
Attention: Michael B. McCarthy
2) If to the Depositor:
RCL Trust 1995-1
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue
Wilmington, Delaware 19801
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(b) Any notice required or permitted to be given to a Lease
Trust Certificateholder shall be given by first-class mail, confirmed,
facsimile or overnight courier, postage prepaid, at the address of such Lease
Trust Certificateholder as shown in the Lease Trust Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Lease Trust
Certificateholder receives such notice.
Section 12.5 Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 12.6 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 12.7 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Depositor, the Lease Trustee and its successors and each Lease Trust
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Lease Trust Certificateholder shall bind the successors and
assigns of such Lease Trust Certificateholder.
Section 12.8 No Petition. The Lease Trustee and the
Depositor, by entering into this Agreement, each Lease-Trust Certificateholder,
by accepting a Lease Trust Certificate, the Indenture Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenants and
agrees that, for a period of one year and one day after payment in full of the
Series 1995-1 Certificates, they will not at any time institute against FCTT,
the Depositor, the Lease Trust or Ford Credit Leasing, or join in any
institution against, FCTT, the Depositor, the Lease Trust or Ford Credit
Leasing of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Lease Trust
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Certificates, the Notes, this Agreement or any of the other Basic Documents;
provided, however, (x) that Noteholders holding 100% of the Outstanding Amount
of the Notes may at any time institute, or join in any institution of, any such
proceeding against the Lease Trust or the Depositor and (y) that 100% of the
Holders of Specified Beneficial Certificates of FCTT may institute or join the
institution of any such proceeding against FCTT.
Section 12.9 No Recourse. Each Lease Trust Certificateholder
by accepting an Lease Trust Certificate acknowledges that such Lease Trust
Certificateholder's Lease Trust Certificates represent beneficial interests in
the Lease Trust only and do not represent any other interest in the property or
assets of the Lease Trust or interests in or obligations of the Administrative
Agent, the Depositor, the Lease Trustee, the Indenture Trustee or any Affiliate
thereof and no recourse may be had against such parties or their assets, except
as may be expressly set forth or contemplated in this Agreement, the Lease
Trust Certificates or the other Basic Documents.
Section 12.10 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 12.11 GOVERNING LAW. THIS AGREEMENT SHALL BE
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.
Section 12.12 Administrative Agent. The Administrative Agent is
authorized to prepare and execute on behalf of the Lease Trust all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Lease Trust to prepare, file or deliver pursuant to the
Basic Documents. Upon written request, the Lease Trustee shall execute and
deliver to the Administrative Agent a power of attorney appointing the
Administrative Agent its agent and attorney-in-fact to execute all such
documents, reports, filings, instruments, certificates and opinions, including,
without limitation, Issuer Orders, Officers' Certificates and Issuer's Requests
(each as defined in the Indenture).
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IN WITNESS WHEREOF the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
PNC BANK, DELAWARE
not in its individual capacity but solely
as Lease Trustee
By:
---------------------------------------
Name:
Title:
RCL TRUST 1995-1
By: The Chase Manhattan Bank (USA), not in
its individual capacity but solely as
trustee of RCL Trust 1995-1
By:
--------------------------------------
Name:
Title:
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ANNEX A
Partnership Matters
Section 1. Application. This Annex A contains provisions
accounting for income, gain, loss, and deductions if the Trust is classified
as a partnership for federal income tax purposes. The Depositor, on behalf of
the Lease Trust, shall at all times maintain [records sufficient to enable it
to calculate] Capital Account balances in accordance with the provisions of
this Annex A. This Annex A shall be considered to be a part of the Lease Trust
Agreement for all purposes.
Section 2. Annex A, the following capitalized terms shall have
meanings set forth below:
"Adjusted Capital Account Deficit" shall mean the deficit
balance, if any, in any Certificateholder's Capital Account as of the end of
the relevant Fiscal Year, after giving effect to the following adjustments: (a)
credit to such Capital Account any amounts which such Certificateholder is
obligated to restore pursuant to any provision of this Agreement or is deemed
to be obligated to restore pursuant to Section Section 1.704-1(b)(2)(ii)(c),
1.704-1(b)(2)(ii)(h), 1.704-2(g) or 1.704-2(i)(5) of the Regulations; (b) debit
to such Capital Account the items described in Section Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations. The foregoing
definition of Adjusted Capital Account Deficit is intended to comply with the
provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations (captioned
"Alternate Test for Economic Effect") and shall be interpreted consistently
therewith.
"Adjusted Fair Market Value" shall mean with respect to any
item of Lease Trust property, the greater of (i) the fair market value of such
property or (ii) the amount of any nonrecourse indebtedness to which such
property is subject within the meaning of Section 7701(g) of the Code.
"Capital Account" shall mean the account maintained by the
Lease Trust for each Certificateholder as provided in Section 4 of this Annex
A .
"Capital Contribution" shall mean the amount of cash or the
Gross Asset Value of property contributed to the Lease Trust by any
Certificateholder or the holder of the RCL Lease Trust Certificates. [Upon
initial sale of the Lease Trust Certificates, the Capital Contribution of each
Annex-1
<PAGE> 51
Certificateholder (other than the Depositor) shall equal the amount paid by
such Certificateholder for its Lease Trust Certificates. [Discuss initial
Capital Contribution of RCL Trust 1995-1].
"Certificateholder Nonrecourse Debt" means "partner
nonrecourse debt" within the meaning set forth in Section 1.704-2(b)(4) of the
Regulations.
"Certificateholder Nonrecourse Debt Minimum Gain" means
"partner nonrecourse debt minimum gain" within the meaning set forth in Section
1.704-2(i)(2) of the Regulations.
"Certificateholder Nonrecourse Deductions" means "partner
nonrecourse deductions" within the meaning set forth in Section Section
1.704-2(i)(1) and (2) of the Regulations.
"Code" means the Internal Revenue Code of 1986, as amended,
any successor statutory provisions, and the Regulations promulgated thereunder.
"Depreciation" means, for each fiscal or other period, an
amount equal to the depreciation, amortization or other cost recovery
deductions allowable with respect to an asset for such year or period under the
Code, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such year or
other period, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation,
amortization or other cost recovery deduction for such year or other beginning
adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value or any reasonable method selected by the Depositor.
"Fiscal Year" means the taxable year of the Lease Trust
which, except in the case of a short taxable year, shall be the calendar year
(or such other year as is required by Section 706(b) of the Code).
"Gross Asset Value" means, with respect to any asset, such
asset's adjusted basis for federal income tax purposes except as follows:
(a) The initial Gross Asset Value of any asset contributed by
a Certificateholder to the Lease Trust shall be the gross fair market
value of such asset at
Annex-2
<PAGE> 52
the time of contribution, as determined by the contributing
Certificateholder and the Lease Trust.
(b) The Gross Asset Values of all Lease Trust assets shall be
adjusted to equal their respective Adjusted Fair Market Values, as
reasonably determined by the Depositor as of the liquidation of the
Lease Trust within the meaning of Section 1.704-1(b)(2)(ii)(g) of
the Regulations.
(c) The Gross Asset Values of Lease Trust assets shall be
increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to Section 734(b) or Section 743(b) of
the Code, but only to the extent that such adjustments are taken into
account in determining Capital Accounts pursuant to Section
1.704-1(b)(2)(iv)(m) of the Regulations; provided, however, that Gross
Asset Values shall not be adjusted pursuant to this subsection (d) to
the extent that RCL Trust 1995-1 determines that an adjustment
pursuant to subsection (b) of this definition is necessary or
appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this subsection (c);]
(d) If the Gross Asset Value of an asset has been
determined or adjusted pursuant to any of subsections (a), (b) or (d)
of this definition, such Gross Asset Value (if any) shall thereafter
be adjusted by the Depreciation taken into account with respect to
such asset for purposes of computing income, gain, loss and deduction
to be allocated to the Capital Accounts of the Certificateholders and
RCL Trust 1995-1; and
(e) For purposes of allocating Gross Asset Values with
respect to Lease Trust assets, the RCL Trust 1995-1 shall make such
allocation in accordance with the respective Adjusted Fair Market
Values of such Assets, and such allocations shall be effective for all
purposes under this Agreement.
"Interest" means the ownership interest of a Certificateholder
(or the Depositor as holder of the RCL Lease Trust Certificates) in the Lease
Trust at any particular time, including the right of such Certificateholder to
any and all benefits to which such Certificateholder may be entitled as
provided in this Agreement, together with the obligations of such
Certificateholder to comply with all the terms and provisions of this
Agreement.
Annex-3
<PAGE> 53
"Lease Trust Minimum Gain" means "partnership minimum gain"
within the meaning set forth in Section Section 1.704-2(b)(2) and (d) of the
Regulations.
"Nonrecourse Deductions" means "partnership nonrecourse
deductions" within the meaning set forth in Section Section 1.704-2(b)(1) and
(c) of the Regulations. The amount of Nonrecourse Deductions for an Lease
Trust Fiscal Year shall equal the net increase, if any, in the amount of the
Lease Trust Minimum Gain during that fiscal year determined in accordance with
the provisions of Section 1.704-2(c) of the Regulations.
"Regulations" means the Treasury Regulations promulgated under
the Code, including proposed regulations.
"Regulatory Allocations" means the allocations set forth in
Section 6 of this Annex A .
[Revaluation Event]
Section 3. Initial Capital Contributions. [TO BE DISCUSSED.]
On the Closing Date, the Capital Account of each Certificateholder will be
credited with its initial Capital Contribution.
Section 4. Capital Accounts. The Depositor, on behalf of the
Lease Trust, shall maintain a separate Capital Account for each
Certificateholder and for RCL Trust 1995-1 in accordance with federal income
tax accounting principles and Section Section 1.704-1(b) and 1.704-2 of the
Regulations, which account shall, as of any given date, reflect the Capital
Contributions made to the Lease Trust by each Certificateholder, net of any
liabilities that the Lease Trust is considered to assume or "take subject to"
pursuant to Section 752 of the Code, (i) increased to reflect its distributive
share of Lease Trust income (including income exempt from tax) and gain (or any
item thereof) but excluding items of taxable income and gain described in
Section 1.704-1(b)(4)(i) of the Regulations and (ii) decreased to reflect:
(x) its distributive share of Trust loss and deduction (or any item thereof),
(y) its distributive share of expenditures of the Lease Trust described in
Section 705(a)(2)(B) of the Code (which share shall be determined in accordance
with this Agreement) for each Fiscal Year or fraction thereof and (z) the
amount of cash or the fair market value of property distributed by the Lease
Trust to it, net of any liabilities assumed by such Certificateholder or to
which the property is subject under Section 752 of the Code. It is the
intention of the
Annex-4
<PAGE> 54
Certificateholders that Capital Accounts shall be maintained in accordance with
Section 704(b) of the Code and with the Regulations thereunder so that the
allocations of income, gain, loss and deduction (or items thereof) provided in
this Agreement have substantial economic effect thereunder. [If in the opinion
of the Lease Trust's outside legal counsel the manner in which Capital Accounts
are to be maintained pursuant to the preceding provisions of this Section
should be modified in order to comply with the requirements of Section 704(b)
of the Code and the Regulations thereunder, then not withstanding anything to
the contrary contained in the preceding provisions of this Section 12.3, RCL
Trust 1995-1 may amend this Agreement to alter the method in which Capital
Accounts are maintained in order to comply with Section 704(b) of the Code;
provided, however, that any change in the manner of maintaining Capital
Accounts shall not materially alter the economic agreement among the
Certificateholders without the consent of such Certificateholders.]
The following rules shall apply in maintaining Capital
Accounts:
(a) If any Interest in the Lease Trust is
transferred in accordance with the terms of this Agreement,
the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred
Interest.
(b) For purposes of this Section 4, amounts
described in Section 709 of the Code (other than amounts with
respect to which an election is in effect under Section
709(b) of the Code) shall be treated as described in Section
705(a)(2)(B) of the Code.
(c) If, in any Fiscal Year, the Lease Trust has in
effect an election under Section 754 of the Code, Capital
Accounts shall be adjusted in accordance with Section
1.704-1(b)(2)(iv)(m) of the Regulations.
Section 5. Maintenance of Capital Account Balance of RCL Trust 1995-1;
Restoration of Negative Capital Account Balances.
(a) The Depositor, as owner of the RCL Lease Trust
Certificates, shall maintain at all times (and make additional capital
contributions, to the extent necessary to maintain) a Capital Account Balance
at least equal to the lesser of (x) 1% of the total Capital Account balances of
all of the Certificateholders and (y) $500,000.
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<PAGE> 55
(b) Subject to the following sentence, at no time during the
term of the Lease Trust or upon the dissolution and liquidation of the Lease
Trust shall a Certificateholder with a negative balance in its Capital Account
have any obligation to the Lease Trust or to any other Certificateholder to
restore such negative balance, except as may be required by law or in respect
of any negative balance resulting from withdrawal of capital or a distribution
in contravention of this Agreement. [Notwithstanding the foregoing, RCL Trust
1995-1 shall be obligated to restore any negative balance in its Capital
Account in an amount equal to the greater of (i) the amount available to be
drawn pursuant to the Ford Credit RV Guaranty and (ii) an amount sufficient to
cause its Capital Account (immediately prior to making liquidating
distributions) to equal the lesser of (x) 1.01% of the total Capital Accounts
of the Certificateholders (immediately prior to making liquidating
distributions) and (y) $500,000.
Section 6. Allocation of Profits and Losses.
(a) All income and losses of the Lease Trust (i.e., each
item of Trust income, gain, loss and deduction) shall be determined
[quarterly][monthly] by RCL Trust 1995-1 or accountants designated by it in
accordance with the federal income tax accounting rules in Section 703 of the
Code and Section 1.704-1(b)(2)(iv) of the Regulations.
(b) Except as provided otherwise in this Annex A , on each
Payment Date, prior to making distributions pursuant to Article V:
(i) items of gross income and gain of the Lease
Trust shall be allocated to the
Certificateholders until the Capital Account
of each Certificateholder is equal to the sum
of (x) the initial [Capital Contribution
credited to the Certificateholders], (y) any
amounts which would be required to be accrued
as original issue discount (or de minimis
original issue discount) in accordance with
Section Section 1272 and 1273 of the Code
and the Regulations thereunder if the Lease
Trust Certificates were characterized as debt
instruments for federal income tax purposes
and (z) any Certificate Interest accrued
[through the close of the most recently ended
Collection Period]
Annex-6
<PAGE> 56
but not paid with respect to the Lease Trust
Certificates; and
(ii) all other items of income, gain, loss, and
deduction shall be allocated to RCL Trust
1995-1.
(c) Notwithstanding the foregoing, if any allocation in accordance
with Section 6(b) above would increase the Adjusted Capital Account Deficit of
RCL Trust 1995-1, as holder of the RCL Lease Trust Certificates, [to an amount
in excess of amounts available to the Lease Trust pursuant to the Residual
Value Guaranty,] items of loss and deduction that would create such excess
shall be allocated to Certificateholders (other than RCL Trust 1995-1) until
the Capital Accounts of such Certificateholders have been reduced to zero.
Section 7. Additional Special Allocations.
(a) Qualified Income Offset. In the event that any
Certificateholder unexpectedly receives any adjustments, allocations or
distributions described in Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the
Regulations, items of Trust income and gain shall be specially allocated to
each such Certificateholder in an amount and manner sufficient to as quickly as
possible eliminate, to the extent required by the Regulations, the Adjusted
Capital Account Deficit of such Certificateholder or the Depositor created by
such adjustments, allocations and distributions. An allocation pursuant to
this Section 6 shall be made for an accounting period if and to the extent that
such Certificateholder or the Depositor would have an Adjusted Capital Account
Deficit after all other allocations provided for in this Annex A have been
tentatively made.
(b) Minimum Gain Chargeback. Except as otherwise
provided in Section 1.704-2(f) of the Regulations, notwithstanding any other
provision of this Annex A , if there is a net decrease in Trust Minimum Gain
during any [Fiscal Year][Accounting Period], each Certificateholder and the
Depositor shall to the extent required by Section 1.704-2(f) of the
Regulations, be specially allocated items of Lease Trust income and gain for
such year (and, if necessary, subsequent years) in an amount equal to the
portion of such Certificateholder's (and the Depositor's) share of the net
decrease in Lease Trust Minimum Gain, determined in accordance with Section
1.704-2(g)(2) of the Regulations and this Agreement. The items to be so
allocated shall be determined
Annex-7
<PAGE> 57
in accordance with Section 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations.
This Section 7(b) is intended to comply with the minimum gain chargeback
requirement in Section 1.704-2(f) of the Regulations and shall be interpreted
consistently therewith.
(c) Lease Trust Certificateholder Minimum Gain
Chargeback. Subject to Section 7(a), but notwithstanding any other provision
of this Annex A , if there is a net decrease in Certificateholder Nonrecourse
Debt Minimum Gain during any Fiscal Year, each Certificateholder (including the
Depositor) that has a share of the Certificateholder Nonrecourse Debt Minimum
Gain shall, to the extent required by Section 1.704-2(i)(5) of the
Regulations, be specially allocated items of Trust income and gain for such
year (and, if necessary, subsequent years) in an amount equal to the portion of
such Certificateholder's share of the net decrease in Certificateholder
Nonrecourse Debt Minimum Gain, determined in accordance with Section
1.704-2(i)(4) of the Regulations. The items to be so allocated shall be
determined in accordance with Section 1.704-2(i)(4) of the Regulations.
This Section 7(c) is intended to comply with the partner nonrecourse
debt minimum gain chargeback requirement in Section 1.704-2(i) of the
Regulations and shall be interpreted consistently therewith.
(d) Certificateholder Nonrecourse Deductions. Any
Certificateholder Nonrecourse Deductions shall be allocated to the
Certificateholder that bears the economic risk of loss with respect to the
Certificateholder Nonrecourse Debt to which such Certificateholder Nonrecourse
Deductions are attributable in accordance with Section 1.704-2(i)(1) of the
Regulations.
(e) Section 754 Adjustments. To the extent an adjustment
to the adjusted tax basis of any Trust asset pursuant to Section 734(b) of the
Code or Section 743(b) of the Code is required to be taken into account in
determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m)(2) or
Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Certificateholders in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such Sections of the
Regulations.
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<PAGE> 58
(f) Gross Income Allocation. In the event that any
Certificateholder (including the Depositor) has an Adjusted Capital Account
Deficit at the end of any [Fiscal Year][Accounting Period], each such
Certificateholder shall be specially allocated items of Lease Trust income and
gain in the amount of such Adjusted Capital Account Deficit as quickly as
possible; provided that an allocation pursuant to this Section 7(f) shall be
made only if and to the extent that such Certificateholder would have an
Adjusted Capital Account Deficit after all other allocations provided for in
this Annex A have been made, [as if Section [ ] and this Section 7(f) were not
in this Annex A ].
Section 8. Tax Allocations; Code Section 704(c).
(a) Income, gains, losses and deductions with respect to
any property (other than money) contributed to the capital of the Lease Trust
shall, solely for tax purposes, be allocated among the Certificateholders
(including the Depositor) so as to take account of any variation between the
adjusted basis of such property to the Lease Trust for federal income tax
purposes and its initial Gross Asset Value in accordance with Section 704(c)
of the Code and the applicable Regulations promulgated thereunder.
(b) In the event the Gross Asset Value of any Trust
asset is adjusted (pursuant to the definition of Gross Asset Value), subsequent
allocations of income, gain, loss and deduction with respect to such asset
shall take account of any variation between the adjusted basis of such asset
for federal income tax purposes and its Gross Asset Value in the same manner as
under Section 704(c) of the Code and the applicable Regulations promulgated
thereunder.
(c) Any elections or other decisions relating to such
allocations shall be made by the Depositor, as holder of the RCL Lease Trust
Certificates, in any manner that reasonably reflects the purpose and intention
of this Agreement. Allocations pursuant to this Section 7(c) are solely for
purposes of federal, state and local taxes and shall not affect, or in any way
be taken into account in computing, any Certificateholder's Capital Account or
share of profits, losses, other items or distributions pursuant to any
provision of this Agreement.
Section 9. on behalf of the Lease Trust, to adjust the basis of the
Lease Trust assets pursuant to Section 754 of the Code.
Annex-9
<PAGE> 59
Section 10. Allocations With Respect to Transferred Interests.
Profits and losses allocable to an Interest assigned or reissued during a
Fiscal Year shall be allocated to each Person who was the holder of such
Interest during such Fiscal Year, in proportion to the number of days that each
such holder was recognized as the owner of such Interest during such Fiscal
Year or by an interim closing of the books or in any other proportion permitted
by the Code and selected by RCL Trust 1995-1, as holder of the RCL Lease Trust
Certificates, in accordance with this Agreement, without regard to the results
of Trust operations or the date, amount or recipient of any distributions which
may have been made with respect to such Interest. The effective date of the
assignment shall be (i) in the case of a voluntary assignment, the actual date
the assignment is recorded on the books of the Lease Trust or (ii) in the case
of involuntary assignment, the date of the operative event.
Section 11. Curative Allocations. The allocations set forth Sections
7 and 8 (the "Regulatory Allocations") are intended to comply with certain
requirements of Section 1.704-1(b) of the Regulations. Notwithstanding any
other provision of this Appendix A (other than the Regulatory Allocations), the
Regulatory Allocations shall be taken into account in allocating other Lease
Trust items of income, gains, loss and deduction among the Certificateholders
so that, to the extent possible, the net amount of such allocations of other
Trust items and the Regulatory Allocations shall be equal to the net amount
that would have been allocated to the Certificateholders if the Regulatory
Allocations had not occurred.
Section 12. Books and Records. The Depositor, as holder of the RCL
Lease Trust Certificates, shall (a) maintain such information as may be
required, if it should later be determined that the Lease Trust should be
classified as a partnership for federal income tax purposes, to enable each
Certificateholder to prepare its Federal and state income tax returns, and (c)
if it should be determined that the Lease Trust is properly classified as a
partnership for federal or other income tax purposes, prepare and file or cause
to be prepared and filed by the Lease Trustee such tax returns, if any,
relating to the Lease Trust [consistent with Section 2.12 of the Agreement],
and make such elections as may from time to time be required or appropriate
under any applicable state or Federal statute or rule or regulation thereunder.
[The Depositor shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the assets of the
Lease Trust.]
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<PAGE> 60
Section 13. Signature on Returns; Tax Matters Partner.
(a) In the event that the Lease Trust shall be required to
file federal or other income tax returns as a partnership, such returns shall
be signed by an authorized signatory for RCL Trust 1995-1, as holder of the RCL
Lease Trust Certificates, or such other person as shall be required by law to
sign such returns of the Trust.
(b) By acceptance of its beneficial interest in a Lease Trust
Certificate, each Lease Trust Certificateholder agrees that in the event that
the Lease Trust is classified as a partnership for federal income tax purposes,
RCL Trust 1995-1, as the holder of the RCL Lease Trust Certificates, shall be
the "tax matters partner" of the Lease Trust pursuant to the Code.
Annex-11
<PAGE> 61
EXHIBIT A
NUMBER $
R- CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE ISSUER
AND THE TRANSFEROR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY INSIDE THE UNITED STATES (1) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (3) [IN CERTIFICATED FORM] IN MINIMUM
DENOMINATIONS OF $250,000 TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE ISSUER
AND THE LEASE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE
LEASE TRUST AGREEMENT REFERRED TO BELOW OR (B) THE RECEIPT BY THE ISSUER AND
THE LEASE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE ISSUER THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT
AND OTHER APPLICABLE LAWS, OR (D) TO THE ISSUER OR ITS AFFILIATES, IN EACH CASE
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
A-1
<PAGE> 62
SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE LEASE TRUSTEE, THE DEPOSITOR AND THE LEASE TRUST CERTIFICATE
REGISTRAR SHALL HAVE EACH RECEIVED A REPRESENTATION LETTER FROM THE TRANSFEREE
OF THIS CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRANSFEROR, TO THE EFFECT THAT SUCH TRANSFEREE WILL NOT ACQUIRE THIS
CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"). EACH PROSPECTIVE TRANSFEREE WILL ALSO BE REQUIRED TO DELIVER TO THE
DEPOSITOR, THE LEASE TRUST CERTIFICATE REGISTRAR AND THE LEASE TRUSTEE AN
AFFIDAVIT STATING WHETHER SUCH PROSPECTIVE TRANSFEREE IS A BENEFIT PLAN
INVESTOR WITHIN THE MEANING OF THE DEPARTMENT OF LABOR REGULATIONS. NO
TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS CERTIFICATE WILL BE MADE TO
ANY BENEFIT PLAN INVESTOR, AND THE LEASE TRUST CERTIFICATE REGISTRAR WILL NOT
REGISTER ANY SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION TO A BENEFIT PLAN
INVESTOR.
THE PRINCIPAL OF THIS LEASE TRUST CERTIFICATE IS DISTRIBUTABLE
AS SET FORTH IN THE LEASE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL OF THIS LEASE TRUST CERTIFICATE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1995-1
____% LEASE TRUST CERTIFICATE
evidencing a beneficial interest in certain distributions of the Lease Trust,
as defined below, the property of which includes: (i) the right to receive
certain payments as program lessor under the Program Operating Lease pursuant
to which trust certificates representing a beneficial interest in certain
specified retail automobile and light truck leases were leased to the program
lessee; and (ii) an interest in such certificates upon the expiration of such
Program Operating Lease. The property of the Lease Trust has been pledged to
the Indenture Trustee pursuant to the Indenture to secure the payment of the
Notes issued thereunder.
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<PAGE> 63
(This Lease Trust Certificate does not represent an interest in or obligation
of the Depositor, Ford Motor Credit Company, Ford Credit Leasing Company, Inc.
or any of their respective Affiliates, except to the extent described below.)
THIS CERTIFIES THAT is the registered
owner of DOLLARS nonassessable, fully-paid, beneficial
ownership interest in Lease Trust Certificates having an initial Aggregate
Certificate Balance of $__________ of Ford Credit Auto Lease Trust 1995-1 (the
"Lease Trust") formed by RCL Trust 1995-1 (the "Depositor"). The Aggregate
Certificate Balance of the Lease Trust Certificates bear interest at a rate of
__% per annum (the "Certificate Rate").
LEASE TRUSTEE'S
CERTIFICATE OF
AUTHENTICATION
This is one of the Lease Trust Certificates referred to in the
within-mentioned Lease Trust Agreement.
PNC Bank, Delaware PNC Bank, Delaware
as Lease Trustee or as Lease Trustee
By
------------------
Authenticating Agent
By By
-------------------------- ------------------------
The Lease Trust was created pursuant to a Lease Trust
Agreement, dated ________, 1995 (the "Lease Trust Agreement"), between the
Depositor and PNC Bank, Delaware, as trustee (the "Lease Trustee"), a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Lease Trust Agreement and the definitions
appendices incorporated by reference therein.
This Certificate is one of the duly authorized Lease Trust
Certificates designated as "___ Lease Trust Certificates" (the "Lease Trust
Certificates"). Also issued under the Indenture dated as of ________, 1995
(the "Indenture"), between the Lease Trust and
A-3
<PAGE> 64
__________, as trustee (the "Indenture Trustee"), are the ___% Class A-1 Notes,
the ___% Class A-2 Notes and the ___% Class A-3 Notes (collectively, the
"Notes"). This Lease Trust Certificate is issued under and is subject to the
terms, provisions and conditions of the Lease Trust Agreement, to which Lease
Trust Agreement the holder of this Lease Trust Certificate by virtue of the
acceptance hereof assents and by which such Lease Trust Certificateholder is
bound. The property of the Lease Trust includes (i) the rights of the Lease
Trust under the Series 1995-1 Certificates, (ii) the rights as lessor under the
Program Operating Lease, (iii) a security interest with respect to amounts on
deposit from time to time in the Series 1995-1 Collection Account, Series
1995-1 Payahead Account and the Series 1995-1 Payments Account and all
investment including all income thereon and proceeds thereof, (iv) the rights
of the Depositor under the Asset Contribution Agreement, (v) the rights of the
Lease Trust as beneficiary of the Limited RV Guaranty, (vi) the rights of the
Lease Trust of the holder of the Series 1995-1 Certificates under the
Administrative Agency Agreement and the Series 1995-1 Supplement, (vii) the
security interest of the Lease Trust in amounts credited to the Reserve Account
and the right to make withdrawals therefrom and (viii) all proceeds of the
foregoing. THE RIGHTS OF THE LEASE TRUSTEE IN THE FOREGOING PROPERTY OF THE
LEASE TRUST HAVE BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF
THE NOTES.
Under the Lease Trust Agreement, there will be distributed on
_______ 15, ________ 15, ________ 15, and ________ 15, of each year, commencing
__________ 15, 1995, (or, if such 15th day is not a Business Day, the next
Business Day) (the "Payment Date"), to the Person in whose name this Lease
Trust Certificate is registered at the close of business on the last day of the
preceding calendar month) (the "Lease Certificate Record Date") such Lease
Trust Certificateholder's percentage interest in the amount to be distributed
with respect to the Aggregate Certificate Balance of the Lease Trust
Certificates on such Payment Date.
The holder of this Lease Trust Certificate acknowledges and
agrees that its rights to receive payments in respect of this Lease Trust
Certificate are subordinated to the rights of the Noteholders as
described in the Indenture and the Lease Trust Agreement, as applicable.
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<PAGE> 65
It is the intent of the Depositor and Lease Trust
Certificateholders that the Lease Trust Certificates be treated as indebtedness
of the Depositor and Ford Credit Leasing for purposes of federal income tax or
state income and franchise taxes. If, however, the Lease Trust is
characterized as a separate entity for federal income tax purposes, it is the
intention of the parties that it qualify as a partnership for such purposes and
the Lease Trust Certificateholders (including the Depositor) will be treated as
partners in that partnership. The Depositor and the other Lease Trust
Certificateholders by acceptance of a Lease Trust Certificate, agree to take no
action inconsistent with such tax treatment of the Lease Trust Certificates.
Each Lease Trust Certificateholder, by its acceptance of a
Lease Trust Certificate, covenants and agrees that such Lease Trust
Certificateholder, for a period of one year and a day after payment in full of
the Aggregate Certificate Balance of the Lease Trust Certificates, will not
institute against the Depositor, the Lease Trust or Ford Credit Leasing or join
in any institution against the Depositor, the Lease Trust or Ford Credit
Leasing of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Lease Trust Certificates, the Notes, the Lease Trust Agreement or any of
the other Basic Documents.
Distributions on this Lease Trust Certificate will be made as
provided in the Lease Trust Agreement by the Lease Trustee by wire transfer (to
holders of Lease Trust Certificates in original denominations of $100,000 or
more) or check mailed to the Lease Trust Certificateholder of record in the
Lease Trust Certificate Register without the presentation or surrender of this
Lease Trust Certificate or the making of any notation hereon. Except as
otherwise provided in the Lease Trust Agreement and notwithstanding the above,
the final distribution on this Lease Trust Certificate will be made after due
notice by the Lease Trustee of the pendency of such distribution and only upon
presentation and surrender of this Lease Trust Certificate at the office or
agency maintained for the purpose by the Lease Trustee [in the Borough of
Manhattan, The City of New York].
A-5
<PAGE> 66
Reference is hereby made to the further provisions of this
Lease Trust Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Lease Trustee, by manual
signature, this Lease Trust Certificate shall not entitle the holder hereof to
any benefit under the Lease Trust Agreement or be valid for any purpose.
THIS LEASE TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Lease Trustee, on behalf of the Lease
Trust and not in its individual capacity, has caused this Lease Trust
Certificate to be duly executed.
FORD CREDIT AUTO LEASE TRUST 1995-1
By: PNC BANK, DELAWARE
as Lease Trustee
Dated: By:
-------------------------------
Authorized Officer
A-6
<PAGE> 67
(Reverse of Lease Trust Certificate)
The Lease Trust Certificates do not represent an obligation
of, or an interest in, the Depositor, the Administrative Agent, the Lease
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Lease Trust Agreement or the other Basic
Documents. In addition, this Lease Trust Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries (and certain other amounts) respecting the
assets of the Lease Trust, all as more specifically set forth in the Indenture.
A copy of each of the Indenture and the Lease Trust Agreement may be examined
during normal business hours at the principal office of the Depositor, and at
such other places, if any, designated by the Depositor, by any Lease Trust
Certificateholder upon written request.
The Lease Trust Agreement may be amended by the Depositor and
the Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Noteholders or the Lease Trust
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provisions in the Lease Trust Agreement, to add any provisions to or change
in any manner or eliminate any of the provisions in the Lease Trust Agreement
or to modify in any manner the rights of the Noteholders or the Lease Trust
Certificateholders; provided, however, that such action shall not, (i) as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of the Indenture Trustee, any Noteholder or Lease Trust
Certificateholder, (ii) as confirmed by each Rating Agency rating the Notes
and the Lease Trust Certificates, cause the then current rating of any Class of
Notes or the Lease Trust Certificates to be withdrawn or reduced or, (iii) as
evidenced by an Opinion of Counsel cause the Lease Trust to be taxed as an
"association" or publicly traded partnership taxable as a corporation for
federal income tax purposes.
A-7
<PAGE> 68
The Lease Trust Agreement may also be amended from time to
time by the Depositor and the Lease Trustee, with prior written notice to the
Rating Agencies, with the consent of the Noteholders holding not less than a
majority of the Outstanding Amount of each Class of Notes and, to the extent
affected thereby, the consent of Lease Trust Certificateholders holding not
less than a majority of the Aggregate Certificate Balance, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Lease Trust Agreement or of modifying in any manner the
rights of the Noteholders or the Lease Trust Certificateholders; provided,
however, that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of distributions that are required
to be made for the benefit of the Noteholders or the Lease Trust
Certificateholders, (b) reduce the percentage of the Outstanding Amount of each
Class of the Notes and the Aggregate Certificate Balance required to consent to
any such amendment, without the consent of the holders of 100% of all
outstanding Lease Trust Certificates (other than the RCL Lease Trust
Certificates), or (c) as evidenced by an Opinion of Counsel to the Indenture
Trustee and the Lease Trustee to the effect that such amendment shall not (i)
affect the treatment of the Notes as debt for federal income tax purposes, (ii)
be deemed to cause a taxable exchange of the Notes for federal income tax
purposes or (iii) cause the Lease Trust to be taxable as an "association" or
publicly traded partnership taxable as a corporation for federal income tax
purposes.
As provided in the Lease Trust Agreement and subject to
certain limitations therein set forth, the transfer of this Lease Trust
Certificate is registerable in the Lease Trust Certificate Register upon
surrender of this Lease Trust Certificate for registration of transfer at the
offices or agencies of the Lease Trust Certificate Registrar maintained by the
Lease Trustee in the Borough of Manhattan, The City of New York, accompanied by
a written instrument of transfer in form satisfactory to the Lease Trustee and
the Lease Trust Certificate Registrar duly executed by the Lease Trust
Certificateholder hereof or such Lease Trust Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Lease Trust Certificates
of the same class and in authorized denominations evidencing the same aggregate
interest in the Lease Trust will be issued to the designated transferee. The
initial Lease Trust Certificate Registrar appointed under the Lease Trust
Agreement is _______________.
Except for Lease Trust Certificates issued to the Depositor,
the Lease Trust Certificates are issuable only as registered Lease Trust
Certificate without coupons in denominations of $_______ or multiples thereof.
As provided in the Lease Trust Agreement and subject to certain limitations
therein set forth, Lease Trust Certificates are exchangeable for new Lease
Trust Certificates of the same class and in authorized denominations evidencing
the same aggregate denomination, as requested by the Lease Trust
Certificateholder surrendering the same. No service charge will be made for
any such registration of transfer or exchange, but the Lease Trustee or the
Lease Trust Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Lease Trustee, the Lease Trust Certificate Registrar and
any agent of the Lease Trustee or the Lease Trust Certificate Registrar may
treat the Person in whose name this Lease Trust Certificate is registered as
the owner hereof for all purposes, and none of the Lease Trustee, the Lease
Trust Certificate Registrar or any such agent shall be affected by any notice
to the contrary.
The obligations and responsibilities created by the Lease
Trust Agreement and the Lease Trust created thereby shall terminate upon the
payment to Lease Trust Certificateholders of all amounts required to be paid to
them pursuant to the Lease Trust Agreement and the Indenture and the
disposition of all property held as part of the Lease Trust.
Any prospective transferee of a Lease Trust Certificate will
be required to represent to the Lease Trustee, the Lease Trust Certificate
Registrar and the Initial Purchaser that such prospective transferee is not a
Benefit Plan Investor. The Lease Trust Certificates may not be transferred,
sold, pledged or otherwise disposed to or for the account of a Benefit Plan
Investor. The term "Benefit Plan Investor" means (i) any employee benefit plan
as defined in Section 3(3) of ERISA, whether or not it is subject to Title I of
ERISA, (ii) any plan described in Section 4975(e)(1) of the Code, (iii) any
governmental plan, as defined in Section 3(32) of ERISA, subject to any
federal, state or local law which is, to a material extent, similar to the
provisions of ERISA or
A-8
<PAGE> 69
Section 4975 of the Code or (iv) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (within the meaning
of Department of Labor Regulation 29 C.F.R. Section 251.3-101), other than the
general asset account of an insurance company.
A-9
<PAGE> 70
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
----------------------------------------------------------------------
the within Lease Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
--------------------------------------------------------------------------
Attorney to transfer said Lease Trust Certificate on the books of the
Lease Trust Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------
Signature Guaranteed:
*
-----------------------
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Lease Trust Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
A-10
<PAGE> 71
EXHIBIT B
NUMBER $
R- CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE
AMENDED AND RESTATED TRUST AGREEMENT DATED AS OF_____ __, 1995, AMONG FORD
MOTOR CREDIT COMPANY, FORD CREDIT LEASING COMPANY, INC., AND THE CHASE
MANHATTAN BANK (USA), AS TRUSTEE OF THE RCL TRUST 1995-1 (THE "LEASE TRUST
AGREEMENT") AND ANY TRANSFER IN VIOLATION OF THIS SECTION SHALL BE NULL AND
VOID.
THE PRINCIPAL OF THIS LEASE TRUST CERTIFICATE IS DISTRIBUTABLE
IN INSTALLMENTS AS SET FORTH IN THE LEASE TRUST AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL OF THIS LEASE TRUST CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1995-1
____% LEASE TRUST CERTIFICATE
evidencing a beneficial interest in certain distributions of the Lease Trust,
as defined below, the property of which includes: (i) the right to receive
certain payments as program lessor under the Program Operating Lease pursuant
to which certificates representing a beneficial interest in certain specified
retail automobile and light truck leases were leased to the program lessee; and
(ii) an interest in such certificates upon the expiration of such Program
Operating Lease. The property of the Lease Trust has been pledged to the
Indenture Trustee pursuant to the Indenture to secure the payment of the Notes
issued thereunder.
B-1
<PAGE> 72
(This Lease Trust Certificate does not represent an interest in or obligation
of the Depositor, Ford Motor Credit Company, Ford Credit Leasing Company, Inc.
or any of their respective Affiliates, except to the extent described below.)
THIS CERTIFIES THAT is the registered owner of a
nonassessable, fully-paid, ___% beneficial ownership interest in Lease Trust
Certificates having (i) an initial Aggregate Certificate Balance of $__________
of Ford Credit Auto Lease Trust 1995-1 (the "Lease Trust") and (ii) an initial
Deferred Amount of $___________, in Ford Credit Auto Lease Trust 1995-1, formed
by RCL Trust 1995-1 (the "Depositor"). In addition, the Lease Trust
Certificates represent a beneficial interest in any other assets of the Ford
Credit Auto Lease Trust remaining after the Aggregate Certificate Balance has
been reduced to zero. The Lease Trust Certificates bear interest at a rate of
__% per annum (the "Certificate Rate").
LEASE TRUSTEE'S
CERTIFICATE OF
AUTHENTICATION
This is one of the two RCL Lease Trust Certificates referred to in the
within-mentioned Lease Trust Agreement.
PNC Bank, Delaware, PNC Bank, Delaware,
as Lease Trustee or as Lease Trustee
By
-------------------------
Authenticating Agent
By By
-------------------------- ------------------------
The Lease Trust was created pursuant to a Lease Trust
Agreement, dated ________, 1995 (the "Lease Trust Agreement"), between the
Depositor and PNC Bank, Delaware, as trustee (the "Lease Trustee"), a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned
B-2
<PAGE> 73
to them in the Lease Trust Agreement and the definitions appendices
incorporated by reference therein.
This Certificate is one of the duly authorized Lease Trust
Certificates designated as "___% Lease Trust Certificates" (the "Lease Trust
Certificates"). Also issued under the Indenture dated as of ________, 1995
(the "Indenture"), between the Lease Trust and __________, as trustee (the
"Indenture Trustee"), are the ___% Class A-1 Notes, the ___% Class A-2 Notes
and the ___% Class A-3 Notes (collectively, the "Notes"). This Lease Trust
Certificate is issued under and is subject to the terms, provisions and
conditions of the Lease Trust Agreement, to which Lease Trust Agreement the
holder of this Lease Trust Certificate by virtue of the acceptance hereof
assents and by which such Lease Trust Certificateholder is bound. The property
of the Lease Trust includes (i) the rights of the Lease Trust under the Series
1995-1 Certificates, (ii) the rights as lessor under the Program Operating
Lease, (iii) a security interest with respect to amounts on deposit from time
to time in the Series 1995-1 Collection Account, Series 1995-1 Payahead Account
and the Series 1995-1 Payments Account and all investment including all income
thereon and proceeds thereof, (iv) the rights of the Depositor under the Asset
Contribution Agreement, (v) the rights of the Lease Trust as beneficiary of the
Limited RV Guaranty, (vi) the rights of the Lease Trust of the holder of the
Series 1995-1 Certificates under the Administrative Agency Agreement and the
Series 1995-1 Supplement, (vii) the security interest of the Lease Trust in
amounts credited to the Reserve Account and the right to make withdrawals
therefrom and (viii) all proceeds of the foregoing. THE RIGHTS OF THE LEASE
TRUSTEE IN THE FOREGOING PROPERTY OF THE LEASE TRUST HAVE BEEN PLEDGED TO THE
INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Under the Lease Trust Agreement, there will be distributed on
_______ 15, ________ 15, ________ 15, and ________ 15, of each year, commencing
__________ 15, 1995, (or, if such 15th day is not a Business Day, the next
Business Day) (the "Payment Date"), to the Person in whose name this Lease
Trust Certificate is registered at the close of business on the last day of the
preceding calendar month) (the "Lease Certificate Record Date") such Lease
Trust Certificateholder's percentage interest in the amount to be distributed
with respect to the Aggregate Certificate Balance of the Lease Trust
Certificates on such Payment Date. In addition, the holder of
B-3
<PAGE> 74
this Lease Trust Certificate is entitled to receive such Lease Trust
Certificateholder's percentage interest in the Deferred Amount distributed on
each Payment Date.
The holder of this Lease Trust Certificate acknowledges and
agrees that its rights to receive payments in respect of this Lease Trust
Certificate are subordinated to the rights of the Noteholders as described in
the Indenture and the Lease Trust Agreement, as applicable.
It is the intent of the Depositor and Lease Trust
Certificateholders that the Lease Trust Certificates be treated as indebtedness
of the Depositor and Ford Credit Leasing for purposes of federal income tax or
state income and franchise taxes. If, however, the Lease Trust is
characterized as a separate entity for federal income tax purposes, it is the
intention of the parties that it qualify as a partnership for such purposes and
the Lease Trust Certificateholders (including the Depositor) will be treated as
partners in that partnership. The Depositor and the other Lease Trust
Certificateholders by acceptance of a Lease Trust Certificate, agree to take no
action inconsistent with such tax treatment of the Lease Trust Certificates.
Each Lease Trust Certificateholder, by its acceptance of a
Lease Trust Certificate, covenants and agrees that such Lease Trust
Certificateholder, for a period of one year and a day after payment in full of
the Aggregate Certificate Balance of the Lease Trust Certificates, will not
institute against the Depositor, the Lease Trust or Ford Credit Leasing or join
in any institution against the Depositor, the Lease Trust or Ford Credit
Leasing of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Lease Trust Certificates, the Notes, the Lease Trust Agreement or any of
the other Basic Documents.
Distributions on this Lease Trust Certificate will be made as
provided in the Lease Trust Agreement by the Lease Trustee by wire transfer (to
holders of Lease Trust Certificates in original denominations of $100,000 or
more) or check mailed to the Lease Trust Certificateholder of record in the
Lease Trust Certificate Register
B-4
<PAGE> 75
without the presentation or surrender of this Lease Trust Certificate or the
making of any notation hereon. Except as otherwise provided in the Lease Trust
Agreement and notwithstanding the above, the final distribution on this Lease
Trust Certificate will be made after due notice by the Lease Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Lease Trust Certificate at the office or agency maintained for the purpose by
the Lease Trustee [in the Borough of Manhattan, The City of New York].
Reference is hereby made to the further provisions of this
Lease Trust Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Lease Trustee, by manual
signature, this Lease Trust Certificate shall not entitle the holder hereof to
any benefit under the Lease Trust Agreement or be valid for any purpose.
THIS LEASE TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Lease Trustee, on behalf of the Lease
Trust and not in its individual capacity, has caused this Lease Trust
Certificate to be duly executed.
FORD CREDIT AUTO LEASE TRUST 1995-1
By: PNC BANK, DELAWARE
as Lease Trustee
Dated: By:
-----------------------------
Authorized Officer
B-5
<PAGE> 76
(Reverse of Lease Trust Certificate)
The Lease Trust Certificates do not represent an obligation
of, or an interest in, the Depositor, the Administrative Agent, the Lease
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Lease Trust Agreement or the other Basic
Documents. In addition, this Lease Trust Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries (and certain other amounts) respecting the
assets of the Lease Trust, all as more specifically set forth in the Indenture.
A copy of each of the Indenture and the Lease Trust Agreement may be examined
during normal business hours at the principal office of the Depositor, and at
such other places, if any, designated by the Depositor, by any Lease Trust
Certificateholder upon written request.
The Lease Trust Agreement may be amended by the Depositor and
the Lease Trustee, with prior written notice by the Depositor to the Rating
Agencies, without the consent of any of the Noteholders or the Lease Trust
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provisions in the Lease Trust Agreement, to add any provisions to or change
in any manner or eliminate any of the provisions in the Lease Trust Agreement
or to modify in any manner the rights of the Noteholders or the Lease Trust
Certificateholders; provided, however, that such action shall not, (i) as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of the Indenture Trustee, any Noteholder or Lease Trust
Certificateholder, (ii) as confirmed by each Rating Agency rating the Notes
and the Lease Trust Certificates, cause the then current rating of any Class of
Notes or the Lease Trust Certificates to be withdrawn or reduced or (iii) as
evidenced by an Opinion of Counsel cause the Lease Trust to be taxed as an
"association" or publicly traded partnership taxable as a corporation for
federal income tax purposes.
B-6
<PAGE> 77
The Lease Trust Agreement may also be amended from time to
time by the Depositor and the Lease Trustee, with prior written notice to the
Rating Agencies, with the consent of the Noteholders holding not less than a
majority of the Outstanding Amount of each Class of Notes and, to the extent
affected thereby, the consent of Lease Trust Certificateholders holding not
less than a majority of the Aggregate Certificate Balance, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Lease Trust Agreement or of modifying in any manner the
rights of the Noteholders or the Lease Trust Certificateholders; provided,
however, that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of distributions that are required
to be made for the benefit of the Noteholders or the Lease Trust
Certificateholders, (b) reduce the percentage of the Outstanding Amount of each
Class of the Notes and the Aggregate Certificate Balance required to consent to
any such amendment, without the consent of the holders of 100% of all
outstanding Lease Trust Certificates (other than the RCL Lease Trust
Certificates), or (c) as evidenced by an Opinion of Counsel to the Indenture
Trustee and the Lease Trustee to the effect that such amendment shall not (i)
affect the treatment of the Notes as debt for federal income tax purposes, (ii)
be deemed to cause a taxable exchange of the Notes for federal income tax
purposes or (iii) cause the Lease Trust to be taxable as an association or
publicly traded partnership taxable as a corporation for federal income tax
purposes.
As provided in the Lease Trust Agreement, the transfer of this
Lease Trust Certificate is prohibited; provided, that upon a dissolution of the
Depositor this Lease Trust Certificate shall be distributed to the
beneficiaries of the Depositor in accordance with their percentage beneficial
interests therein. Any such distribution of this Lease Trust Certificate is
registerable in the Lease Trust Certificate Register upon surrender of this
Lease Trust Certificate for registration of transfer at the offices or agencies
of the Lease Trust Certificate Registrar maintained by the Lease Trustee in the
Borough of Manhattan, The City of New York, accompanied by a written instrument
of transfer in form satisfactory to the Lease Trustee and the Lease Trust
Certificate Registrar duly executed by the Lease Trust Certificateholder hereof
or such Lease Trust Certificateholder's attorney duly authorized in writing,
and thereupon a new Lease Trust Certificate of the same class and in the same
B-7
<PAGE> 78
denomination evidencing the same interest in the Lease Trust will be issued to
such beneficiary of the Depositor. The initial Lease Trust Certificate
Registrar appointed under the Lease Trust Agreement is _______________.
The Lease Trustee, the Lease Trust Certificate Registrar and
any agent of the Lease Trustee or the Lease Trust Certificate Registrar may
treat the Person in whose name this Lease Trust Certificate is registered as
the owner hereof for all purposes, and none of the Lease Trustee, the Lease
Trust Certificate Registrar or any such agent shall be affected by any notice
to the contrary.
The obligations and responsibilities created by the Lease
Trust Agreement and the Lease Trust created thereby shall terminate upon the
payment to Lease Trust Certificateholders of all amounts required to be paid to
them pursuant to the Lease Trust Agreement and the Indenture and the
disposition of all property held as part of the Lease Trust. On and after the
date upon which the Aggregate Certificate Balance has been reduced to zero, all
amounts deposited in the Certificate Distribution Account shall be distributed
to the Holder of the RCL Lease Trust Certificates; provided, that in the event
that prior to such date there shall have occurred a dissolution of the
Depositor, such amounts shall be distributed ratably to the beneficiaries of
the Depositor, in accordance with their percentage beneficial interest in the
Depositor immediately prior to such dissolution.
B-8
<PAGE> 79
EXHIBIT C
FORM OF RULE 144A TRANSFEROR CERTIFICATE
[Date]
PNC Bank, Delaware
as Lease Trustee and
Lease Trust Certificate Registrar
222 Delaware Avenue
Wilmington, Delaware 19801
Dear Sirs:
This is to notify you as to the transfer of $___________
initial principal balance of Asset Backed Lease Trust Certificates (the
"Certificates") of Ford Credit Auto Lease Trust 1995-1 (the "Issuer").
The undersigned is the holder of the Certificates and with
this notice hereby deposits with the Lease Trustee $___________ initial
principal balance of Certificates and requests that Certificates in the same
initial principal balance be issued, executed and authenticated and registered
to the purchaser on ___________, 199_, as specified in the Lease Trust
Agreement, as follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned
(i) reasonable believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933 (the "Act"), (ii) such
purchaser has acquired the Certificates in a transaction effected in accordance
with the exemption from the registration requirements of the Act provided by
Rule 144A and, (iii) if the purchaser has purchased the Certificates for one or
more accounts for which it is acting as fiduciary or agent, (A) each such
account is a qualified institutional buyer and (B) the purchaser is acquiring
Certificates for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than $250,000 for each such account.
C-1
<PAGE> 80
Very truly yours,
[NAME OF HOLDER
OF CERTIFICATES]
By:
---------------------------------
Name:
Title:
C-2
<PAGE> 81
EXHIBIT D
FORM OF INVESTMENT LETTER -
QUALIFIED INSTITUTIONAL BUYER
[Date]
Ford Credit Auto Lease Trust 1995-1
as Issuer
PNC Bank, Delaware
as Lease Trustee and
Lease Trust Certificate Registrar
222 Delaware Avenue
Wilmington, Delaware 19801
J.P. Morgan Securities Inc.
as Initial Purchaser in connection with
the Offering Memorandum referred to below
60 Wall Street
New York, New York 10260
Dear Sirs:
In connection with our proposed purchase of the __%
Asset-Backed Lease Trust Certificates (the "Certificates") of Ford Credit Auto
Lease Trust 1995-1 (the "Issuer"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum") dated ________ __, 1995, relating to the Certificates
and such other information as we deem necessary in order to make our investment
decision. We understand that the Offering Memorandum speaks only as of its
date and that the information contained therein may not be correct or complete
as of any time subsequent to such date.
2. We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and conditions set forth in the
Lease Trust Agreement dated as of ________ __, 1995 relating to the
Certificates and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
3. We understand that the offer and sale of the Certificates
has not been registered under the Secu-
D-1
<PAGE> 82
rities Act, and that the Certificates may not be offered or sold except
as permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that if
we should sell any Certificates prior to ________ __, 1998 (the expiration of
the three-year holding period set forth in Rule 144(k) under the Securities
Act), we will do so only inside the United States (A) to the Issuer or any
subsidiary thereof, (B) to a "qualified institutional buyer" (as defined below)
in compliance with Rule 144A under the Securities Act, (C) in minimum
denominations of $250,000 to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3), or (7) under the Securities Act) that, prior to
such transfer, furnishes to the Lease Trustee or the Lease Trust Certificate
Registrar, as applicable, a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Certificates
(the form of which letter can be obtained from the Lease Trustee or the Lease
Trust Certificate Registrar, as applicable), (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available) or
(E) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the
Certificates from us a notice advising such purchaser that resales of the
Certificates are restricted as stated herein.
4. We understand that, on any proposed resale of any
Certificates prior to ________ __, 1998, we will be required to furnish to the
Issuer and the Lease Trustee or the Lease Trust Certificate Registrar, as the
case may be, such certifications, legal opinions and other information as the
Issuer and the Lease Trustee or the Lease Trust Certificate Registrar, as the
case may be, may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Certificates
prior to ________ __, 1998 purchased by us will bear a legend to the foregoing
effect.
5. We are a "qualified institutional buyer" (within the
meaning of Rule 144A under the Securities Act) (a "QIB") and we are acquiring
the Certificates for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities
Act, and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in
D-2
<PAGE> 83
the Certificates, and we and any accounts for which we are acting are each able
to bear the economic risk of our or their investment.
6. We are acquiring the Certificates purchased by us for our
own account or for one or more accounts (each of which is a QIB) as to each of
which we exercise sole investment discretion.
7. We are not (A) an employee benefit plan as defined in
Section 3(3) of Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not it is subject to Title I of ERISA, (B) a plan
described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (the "Code"), (C) a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, state or local law which is, to a material
extent, similar to the provisions of ERISA or Section 4975 of the Code or (D)
an entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of Labor Regulation
29 C.F.R. Section 251.3-101), other than the general asset account of an
insurance company.
8. We are a person who is either (A) a citizen or resident of
the United States, (B) a corporation, partnership or other entity organized in
or under the laws of the United States or any political subdivision thereof or
(C) an estate or trust the income of which is includible in gross income for
United States federal income tax purposes, regardless of source.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
--------------------------
Name:
Title:
Securities To Be Purchased:
$________________ principal amount of Certificates
D-3
<PAGE> 84
EXHIBIT E
FORM OF INVESTMENT LETTER -
INSTITUTIONAL ACCREDITED INVESTOR
[Date]
Ford Credit Auto Lease Trust 1995-1
as Issuer
PNC Bank, Delaware
as Lease Trustee and
Lease Trust Certificate Registrar
222 Delaware Avenue
Wilmington, Delaware 19801
J.P. Morgan Securities Inc.
as Initial Purchaser in connection with
the Offering Memorandum referred to below
60 Wall Street
New York, New York 10260
Dear Sirs:
In connection with our proposed purchase of the __%
Asset-Backed Lease Trust Certificates (the "Certificates") of Ford Credit Auto
Lease Trust 1995-1 (the "Issuer"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum") dated ________ __, 1995, relating to the Certificates
and such other information as we deem necessary in order to make our investment
decision. We understand that the Offering Memorandum speaks only as of its
date and that the information contained therein may not be correct or complete
as of any time subsequent to such date.
2. We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and conditions set forth in the
Lease Trust Agreement dated as of ________ __, 1995 relating to the
Certificates and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
3. We understand that the offer and sale of the Certificates
has not been registered under the Secu-
E-1
<PAGE> 85
rities Act, and that the Certificates may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we
should sell any Certificates prior to ________ __, 1998 (the expiration of the
three-year holding period set forth in Rule 144(k) under the Securities Act),
we will do so only inside the United States (A) to the Issuer or any subsidiary
thereof, (B) to a "qualified institutional buyer" in compliance with Rule 144A
under the Securities Act, (C) in minimum denominations of $250,000 to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes to the Lease Trustee or the Lease Trust Certificate
Registrar, as applicable, a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Certificates
(the form of which letter can be obtained from the Lease Trustee or the Lease
Trust Certificate Registrar, as applicable), (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available) or
(E) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the
Certificates from us a notice advising such purchaser that resales of the
Certificates are restricted as stated herein.
4. We understand that, on any proposed resale of any
Certificates prior to ________ __, 1998, we will be required to furnish to the
Issuer and the Lease Trustee or the Lease Trust Certificate Registrar, as the
case may be, such certifications, legal opinions and other information as the
Issuer and the Lease Trustee or the Lease Trust Certificate Registrar, as the
case may be, may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Certificates
prior to ________ __, 1998 purchased by us will bear a legend to the foregoing
effect.
5. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3), or (7) under the Securities Act) and we are
acquiring the Certificates for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act, and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Certificates, and we and any accounts
E-2
<PAGE> 86
for which we are acting are each able to bear the economic risk of our or their
investment.
6. We are acquiring the Certificates purchased by us for our
own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
7. We are not (A) an employee benefit plan as defined in
Section 3(3) of Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not it is subject to Title I of ERISA, (B) a plan
described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (the "Code"), (C) a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, state or local law which is, to a material
extent, similar to the provisions of ERISA or Section 4975 of the Code or (D)
an entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of Labor Regulation
29 C.F.R. Section 251.3-101), other than the general asset account of an
insurance company.
8. We are a person who is either (A) a citizen or resident of
the United States, (B) a corporation, partnership or other entity organized in
or under the laws of the United States or any political subdivision thereof or
(C) an estate or trust the income of which is includible in gross income for
United States federal income tax purposes, regardless of source.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
------------------------
Name:
Title:
Securities To Be Purchased:
$________________ principal amount of Certificates
E-3
<PAGE> 1
EXHIBIT 4.2
================================================================================
FORD CREDIT AUTO LEASE TRUST 1995-1
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
------------------------
INDENTURE
Dated as of ________, 1995
------------------------
CHEMICAL BANK
Indenture Trustee
===============================================================================
<PAGE> 2
CROSS REFERENCE TABLE(1)
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.(2)
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8; 6.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.14
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5; 11.5
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6
</TABLE>
- ------------------------
(1) Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
(2) N.A. means Not Applicable.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE II
THE NOTES
Section 2.1 Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.2 Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.3 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.4 Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 13
Section 2.5 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.6 Persons Deemed Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.7 Payment of Principal and Interest; Defaulted Interest . . . . . . . . . . . . . . . . . . 16
Section 2.8 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.9 Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.10 Book-Entry Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.11 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.12 Definitive Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.13 Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE III
COVENANTS
Section 3.1 Payment of Principal and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.3 Money for Payments To Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.4 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.5 Protection of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.6 Opinions as to Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.7 Performance of Obligations; Administration of Specified Assets . . . . . . . . . . . . . . 26
Section 3.8 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.9 Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 3.10 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.11 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.12 No Other Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.13 No Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.14 Administrative Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.15 Guarantees, Loans, Advances and Other Liabilities . . . . . . . . . . . . . . . . . . . . . 30
Section 3.16 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.17 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.18 Notice of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.19 Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V
EVENTS OF DEFAULT
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 35
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee . . . . . . . . . 36
Section 5.4 Remedies; Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.5 Optional Preservation of the Series 1995-1 Specified Assets . . . . . . . . . . . . . . . . 42
Section 5.6 Limitation of Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest . . . . . . . . . . . 43
Section 5.8 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.9 Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.10 Delay or Omission Not a Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.11 Control by Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.12 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 5.14 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 5.15 Action on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.16 Performance and Enforcement of Certain Obligations . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.2 Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.3 Individual Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.4 Indenture Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.5 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.6 Reports by Indenture Trustee to Noteholders . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.8 Replacement of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.9 Successor Indenture Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee . . . . . . . . . . . . . 55
Section 6.11 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.12 Preferential Collection of Claims Against Lease Trust . . . . . . . . . . . . . . . . . . . 57
Section 6.13 Removal of Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.1 Lease Trustee To Furnish Indenture Trustee Names and Addresses of Noteholders . . . . . . . 57
Section 7.2 Preservation of Information; Communications to Noteholders . . . . . . . . . . . . . . . . 58
Section 7.3 Reports by Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.4 Reports by Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.2 Account Series 1995-1 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.3 Reserve Account Certificate; RV Guaranty Draw Certificate; Disbursement and
Payment Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.4 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.5 General Provisions Regarding Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 8.6 Release of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Noteholders . . . . . . . . . . . . . . . . . . 67
Section 9.2 Supplemental Indentures with Consent of Noteholders . . . . . . . . . . . . . . . . . . . . 69
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 9.4 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.5 Conformity With Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.6 Reference in Notes to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X
REDEMPTION OF NOTES
Section 10.1 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 10.2 Form of Redemption Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 10.3 Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE XI
MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.2 Form of Documents Delivered to Indenture Trustee . . . . . . . . . . . . . . . . . . . . . 77
Section 11.3 Acts of Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.4 Notices, etc., to Indenture Trustee, Lease Trustee and Rating Agencies . . . . . . . . . . 79
Section 11.5 Notices to Noteholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.6 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 11.7 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.9 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.10 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.11 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.14 Recording of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.15 Trust Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.16 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.17 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Testimonium, Signatures and Seals
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
Exhibits
- --------
<S> <C>
Exhibit A-1 Form of Class A-1 Note
Exhibit A-2 Form of Class A-2 Note
Exhibit A-3 Form of Class A-3 Note
Exhibit B Form of Depositary Agreement
</TABLE>
v
<PAGE> 8
INDENTURE dated as of ________, 1995, between PNC BANK,
DELAWARE, a Delaware banking corporation, not in its individual capacity but
solely as trustee (together with its successors under the Lease Trust
Agreement, the "Lease Trustee") of FORD CREDIT AUTO LEASE TRUST 1995-1 (the
"Lease Trust"), and CHEMICAL BANK, a New York corporation, not in its
individual capacity but solely as trustee hereunder (together with its
successors hereunder, the "Indenture Trustee").
PRELIMINARY STATEMENT
The Lease Trustee is duly authorized to execute and deliver
this Indenture on behalf of the Lease Trust to provide for the Notes issuable
as provided in this Indenture. All covenants and agreements made by the Lease
Trust herein are for the benefit and security of the Noteholders and the
Indenture Trustee. The Lease Trustee is entering into this Indenture on behalf
of the Lease Trust, and the Indenture Trustee is accepting the trusts created
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement
of the Lease Trust in accordance with the agreement's terms have been done.
GRANTING CLAUSE
The Lease Trust hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Noteholders, all of
the Lease Trust's right, title and interest in and to (i) the Lease Trust
Estate and (ii) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all
of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every
<PAGE> 9
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction except as
set forth herein, and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders, acknowledges such Grant and accepts the trusts under this
Indenture in accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. (a) Whenever used in this
Indenture 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 to Articles, Sections, and
subsections are to Articles, Sections and subsections in this Indenture unless
otherwise specified.
"Act" has the meaning set forth in Section 11.3(a).
"Administrative Agent Default" has the meaning set forth in
Section 3.7(d).
"Authorized Officer" means, with respect to the Lease Trust,
any officer of the Lease Trustee who is authorized to act for the Lease Trustee
in matters relating to the Lease Trust and who is identified on the list of
Authorized Officers delivered by the Lease Trustee to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from time to
time there-
2
<PAGE> 10
after) and, so long as the Administrative Agency Agreement is in
effect, any Vice President or more senior officer of the Administrative Agent
who is authorized to act for the Administrative Agent in matters relating to
the Lease Trust and to be acted upon by the Administrative Agent pursuant to
the Administrative Agency Agreement and who is identified on the list of
Authorized Officers delivered by the Administrative Agent to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter); provided, however, that for purposes of Section 3.9
such officer of the Administrative Agent must be any of principal executive
officer, principal financial officer or principal accounting officer.
"Book-Entry Notes" means a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Class A-1 Notes" means the ___% Class A-1 Notes,
substantially in the form of Exhibit A-1.
"Class A-2 Notes" means the ___% Class A-2 Notes,
substantially in the form of Exhibit A-2.
"Class A-3 Notes" means the ___% Class A-3 Notes,
substantially in the form of Exhibit A-3.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Collateral" has the meaning set forth in the Granting Clause
of this Indenture.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particu-
3
<PAGE> 11
lar time its corporate trust business shall be administered which
office at the date of the execution of this Indenture is located at 450 West 33
Street, New York, New York 10001; or at such other address as the Indenture
Trustee may designate from time to time by notice to the Noteholders and the
Lease Trustee, or the principal corporate trust office of any successor
Indenture Trustee (the address of which the successor Indenture Trustee will
notify the Noteholders and the Lease Trustee).
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Default Rate" has the meaning set forth in Section 2.7(c).
"Definitive Notes" has the meaning set forth in Section 2.10.
"Depository Agreement" means the agreement among the Lease
Trust, the Indenture Trustee, the Administrative Agent and The Depository Trust
Company, as the initial Clearing Agency, dated as of the Closing Date,
substantially in the form of Exhibit B.
"Disbursement and Payment Instructions" has the meaning set
forth in Section 8.3(c).
"Event of Default" has the meaning set forth in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any general
partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create and grant a lien
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to this Indenture. A Grant of
4
<PAGE> 12
the Collateral or of any other agreement or instrument shall include all
rights, powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of the
Collateral and all other moneys payable thereunder, to give and receive notices
and other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the granting party or
otherwise and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Indenture Trust Estate" means all money, instruments, rights
and other property that are subject or intended to be subject to the lien and
security interest of this Indenture for the benefit of the Noteholders
(including, without limitation, the Collateral Granted to the Indenture
Trustee), including all proceeds.
"Independent" means, when used with respect to any specified
Person, that the Person (a) is in fact independent of the Lease Trust, any
other obligor upon the Notes, the Administrative Agent and any Affiliate of any
of the foregoing Persons, (b) does not have any direct financial interest or
any material indirect financial interest in the Lease Trust, any such other
obligor, the Administrative Agent or any Affiliate of any of the foregoing
Persons and (c) is not connected with the Lease Trust, any such other obligor,
the Administrative Agent or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1, made by
an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
5
<PAGE> 13
"Issuer Order" and "Issuer Request" means a written order or
request of the Lease Trust signed in the name of the Lease Trust by any one of
its Authorized Officers and delivered to the Indenture Trustee.
"Note Owner" means, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Note Pool Factor" shall mean, with respect to each Class of
Notes on any Payment Date, the seven digit decimal equivalent of a fraction the
numerator of which is the Outstanding Amount of such Class on the Payment Date
(after giving effect to any payment of principal on such Payment Date) and the
denominator of which is the Outstanding Amount of such Class on the Closing
Date.
"Note Register" and "Note Registrar" have the respective
meanings set forth in Section 2.4.
"Notice of Default" has the meaning set forth in Section
5.1(v).
"Officers' Certificate" means a certificate signed by any
Authorized Officer of the Lease Trustee, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference
in this Indenture to an Officers' Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Lease Trustee.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Lease Trustee or the Administrative Agent and
who shall be satisfactory to the Indenture Trustee, and which opinion or
opinions shall be addressed to the Indenture Trustee, shall comply with any
applicable requirements of Section 11.1, and shall be in form and substance
satisfactory to the Indenture Trustee.
6
<PAGE> 14
"Outstanding" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the
Note Registrar or delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the
payment for which money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for
the related Noteholders (provided, however, that if such Notes are to
be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor, satisfactory to the Indenture
Trustee); and
(iii) Notes in exchange for or in lieu of
other Notes which have been authenticated and delivered pursuant to
this Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a bona fide purchaser;
provided that in determining whether Noteholders holding the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes owned by the Lease Trust, RCL Trust 1995-1, the Administrative Agent or
any Affiliate of any of the foregoing Persons shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer knows to be so owned shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is
not the Lease Trust, RCL Trust 1995-1, the Administrative Agent or any
Affiliate of any of the foregoing Persons.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee set forth in
Section 6.11 and is
7
<PAGE> 15
authorized by the Lease Trustee to make the payments to and distributions from
the Series 1995-1 Payments Account, including payment of principal of or
interest on the Notes on behalf of the Lease Trust.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.5 in lieu of a mutilated,
destroyed, lost, or stolen Note shall be deemed to evidence the same debt as
the mutilated, destroyed, lost, or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given 10 days' prior notice thereof and
that the Rating Agencies shall have notified the Administrative Agent and the
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current ratings of the Notes.
"Record Date" means, with respect to a Payment Date or
Redemption Date, the close of business on the fourteenth day of the calendar
month in which such Payment Date or Redemption Date occurs (or, if Definitive
Notes are issued, the last day of the preceding calendar month).
"Redemption Date" means the Payment Date specified by the
Administrative Agent or the Lease Trustee pursuant to Section 10.1.
"Redemption Price" means an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest thereon
at the applicable Note Interest Rate to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Responsible Officer" means any officer of the Indenture
Trustee, including any Vice President, Assis-
8
<PAGE> 16
tant Vice President, Assistant Treasurer, Assistant Secretary or any
other officer of the Indenture Trustee customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Stamp" has the meaning set forth in Section 2.4.
"State" means any one of the 50 states of the United States of
America or the District of Columbia.
"Stated Maturity" means when used with respect to any
security, including a Note, the date specified in such security as the fixed
date which the final payment of principal on such security is due and payable
or, if such date is not a Business Day, the next following Business Day.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as amended and as in force on the date hereof, unless otherwise
specifically provided.
(b) All terms defined in this Indenture shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Indenture and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Indenture or in any such certificate or other document, and
accounting terms partly defined in this Indenture or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent
that the definitions of accounting terms in this Indenture or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Indenture or in any such certificate or other document shall control.
9
<PAGE> 17
(d) Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months for all purposes of this Indenture.
Section 1.2 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Lease Trust
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
Section 2.1 Form. The form of the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth
respectively as Exhibit A-1, Exhibit A-2 and Exhibit A-3, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any
10
<PAGE> 18
portion of the text of any Note may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The
terms of the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes set
forth respectively in Exhibit A-1, Exhibit A-2 and Exhibit A-3 are part of the
terms of this Indenture.
<TABLE>
<CAPTION>
Original Note
Principal Interest Stated
Designation Amount Rate Maturity
- ----------- --------- -------- --------
<S> <C> <C> <C>
Class A-1 Notes $___________ ____% ________
Class A-2 Notes $___________ ____% ________
Class A-3 Notes $___________ ____% ________
</TABLE>
Section 2.2 Execution, Authentication and Delivery. The
Notes shall be executed by the Lease Trustee by any of its Authorized Officers
on behalf of the Lease Trust. The signature of any such Authorized Officer on
the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Lease Trust shall bind the
Lease Trust, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver the Class A-1 Notes for original issue in a principal amount of
$____________, the Class A-2 Notes for original issue in a principal amount of
$_____, and the Class A-3 Notes for original issue in a principal amount of
$______. The aggregate principal
11
<PAGE> 19
amount of Notes outstanding at any time may not exceed such amount except as
provided in Section 2.5.
The Notes shall be issuable as registered Notes in minimum
denominations of $1,000 and in integral multiples thereof (except for one Note
of each Class which may be issued in a denomination other than $1,000).
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.3 Temporary Notes. Pending the preparation of
Definitive Notes, the Lease Trustee may execute, on behalf of the Lease Trust,
and upon receipt of an Issuer Order the Indenture Trustee shall authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially of the tenor of the
Definitive Notes in lieu of which they are issued and with such variations not
inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Lease Trust will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at the office or agency
of the Lease Trustee to be maintained as provided in Section 3.2, without
charge to the Noteholder. Upon surrender for cancellation of any one or more
temporary Notes, the Lease Trustee shall execute, on behalf of the Lease Trust,
and the Indenture Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations. Until
so exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
12
<PAGE> 20
Section 2.4 Registration; Registration of Transfer and
Exchange. The Lease Trustee shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Lease Trustee shall provide for the registration of Notes and
the registration of transfers of Notes. The Indenture Trustee is hereby
appointed "Note Registrar" for the purpose of registering Notes and transfers
of Notes as herein provided. Upon any resignation of any Note Registrar, the
Lease Trustee shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Lease Trustee as Note Registrar, the Lease Trustee will give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and of
the location, and any further change in such location, of the Note Register,
and the Indenture Trustee shall have the right to inspect the Note Register at
all reasonable times and to obtain copies thereof, and the Indenture Trustee
shall have the right to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Noteholders and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Lease Trustee to be maintained as provided in Section
3.2, if the requirements of Section 8-401(1) of the UCC are met the Lease
Trustee shall execute, on behalf of the Lease Trust, and the Indenture Trustee
shall authenticate and the Noteholder shall obtain from the Indenture Trustee,
in the name of the designated transferee or transferees, one or more new Notes
in any authorized denominations, of a like aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for
other Notes in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met, the Lease Trustee shall execute, on behalf
of the Lease Trust, the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee,
13
<PAGE> 21
the Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Lease Trust, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder thereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("Stamp") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, Stamp,
all in accordance with the Exchange Act, and (ii) accompanied by such other
documents as the Indenture Trustee may require.
No service charge shall be made to a Noteholder for any
registration of transfer or exchange of Notes, but the Lease Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Sections 2.3 or 9.6 not
involving any transfer.
The preceding provisions of this Section 2.4 notwithstanding,
the Lease Trustee shall not be required to make and the Note Registrar need not
register transfers or exchanges of Notes selected for redemption or of any Note
for a period of 15 days preceding the due date for any payment with respect to
the Note.
Section 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to
14
<PAGE> 22
the Indenture Trustee such security or indemnity as may be required by it to
hold the Lease Trust, the Lease Trustee and the Indenture Trustee harmless,
then, in the absence of notice to the Lease Trustee, the Note Registrar or the
Indenture Trustee that such Note has been acquired by a bona fide purchaser,
and provided that the requirements of Section 8-405 of the UCC are met, the
Lease Trustee shall execute, on behalf of the Lease Trust, and upon Issuer
Request the Indenture Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note; provided, however, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall become due
and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Lease Trust may pay such destroyed, lost or stolen Note
when so due or payable or upon the Redemption Date. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant
to the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment
such original Note, the Lease Trust and the Indenture Trustee shall be entitled
to recover such replacement Note (or such payment) from the Person to whom it
was delivered or any Person taking such replacement Note from such Person to
whom such replacement Note was delivered or any assignee of such Person, except
a bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Lease Trust or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section
2.5, the Lease Trustee may require the payment by the Noteholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.5 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Lease Trust, whether or
not the mutilated, destroyed, lost or stolen Note
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shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.6 Persons Deemed Owner. Prior to due presentment
for registration of transfer of any Note, the Lease Trustee, the Indenture
Trustee and any agent of the Lease Trustee or the Indenture Trustee may treat
the Person in whose name any Note is registered (as of the day of
determination) as the owner of such Note for the purpose of receiving payments
of principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Lease Trustee,
the Indenture Trustee nor any agent of the Lease Trustee or the Indenture
Trustee shall be affected by notice to the contrary.
Section 2.7 Payment of Principal and Interest; Defaulted
Interest. (a) The Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes shall accrue interest during each Interest Accrual Period at the
applicable Note Interest Rate specified in Section 2.1. Interest on the Notes
shall be due and payable on each Payment Date immediately following the related
Interest Accrual Period. Any installment of interest or principal, if any,
payable on any Note which is punctually paid or duly provided for by the Lease
Trust on the applicable Payment Date shall be paid to the Person in whose name
such Note (or one or more Predecessor Notes) is registered on the Record Date,
by check mailed first-class, postage prepaid to such Person's address as it
appears on the Note Register on such Record Date, except that, unless
Definitive Notes have been issued pursuant to Section 2.12, with respect to
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Stated Maturity of such Note (and
except for the Redemption Price for any
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Note called for redemption pursuant to Section 10.1) which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b) The principal of the Notes of each Class shall be payable
in installments in accordance with the priorities set forth in Section 8.4(b)
on each Payment Date until the Outstanding Amount of each Class of Notes has
been reduced to zero as provided in the forms of the Notes set forth
respectively in Exhibit A-1, Exhibit A-2 and Exhibit A-3 unless the entire
unpaid principal amounts of the Notes becomes due and payable by declaration of
acceleration, call for redemption or otherwise. The entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Noteholders representing not less than a majority of
the Outstanding Amount of the Notes have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2. All principal payments
on the Notes shall be made pro rata to the Noteholders of the Class entitled
thereto. The Indenture Trustee shall notify the Person in whose name a Note is
registered on the Record Date preceding the Payment Date on which the Lease
Trustee expects that the final installment of principal of and interest on such
Note will be paid. Such notice shall be mailed or transmitted by facsimile
prior to such final Payment Date and shall specify that such final installment
will be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for payment
of such installment. Notices in connection with redemptions of Notes shall be
mailed to Noteholders as provided in Section 10.2.
(c) If the Lease Trust defaults in a payment of interest on
the Notes, the Lease Trust shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful) at the applicable Note Interest Rate
plus 2% (the "Default Rate") in any lawful manner. The Lease Trust may pay
such defaulted interest to the persons who are Noteholders on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Lease Trustee shall fix or cause to be fixed any such
special record date and
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payment date, and, at least 15 days before any such special record date, the
Lease Trustee shall mail to each Noteholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Lease Trustee
may at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Lease Trustee may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
2.8, except as expressly permitted by this Indenture. All cancelled Notes may
be held or disposed of by the Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless the Lease Trustee
shall direct by an Issuer Order that they be destroyed or returned to it;
provided that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
Section 2.9 Release of Collateral. Subject to Section 11.1,
the Indenture Trustee shall release property from the lien of this Indenture
only upon receipt of an Issuer Request accompanied by an Officers' Certificate,
an Opinion of Counsel and Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(l) or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any such
Independent Certificates. If the Commission shall issue an exemptive order
under TIA Section 304(d) modifying the Lease Trustee's obligations under TIA
Sections 314(c) and 314(d)(1), the Indenture Trustee shall release property
from the lien of this Indenture in accordance with the conditions and
procedures set forth in such exemptive order.
Section 2.10 Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to
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be delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Lease Trust. Such Notes shall initially be registered on
the Note Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Note Owner will receive a Definitive Note representing
such Note Owner's interest in such Note, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in
full force and effect;
(b) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Indenture (including the payment of principal of and interest on
the Notes and the giving of instructions or directions hereunder) as
the sole holder of the Notes, and shall have no obligation to the Note
Owners;
(c) to the extent that the provisions of this
Section 2.10 conflict with any other provisions of this Indenture, the
provisions of this Section 2.10 shall control;
(d) the rights of Note Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to
the Depository Agreement, unless and until Definitive, Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Noteholders evidencing a specified percentage of the Outstanding
Amount of the Notes, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions
to such effect from Note Owners
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and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Notes and has delivered such instructions to the Indenture
Trustee.
Section 2.11 Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Noteholders to the Clearing
Agency, and shall have no obligation to the Note Owners.
Section 2.12 Definitive Notes. If (i) the Administrative
Agent advises the Indenture Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Notes, and the Administrative Agent is unable to locate a qualified
successor, (ii) the Administrative Agent at its option advises the Indenture
Trustee in writing that it elects to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of an Event of Default, Note
Owners representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Note Owners, then the Clearing Agency shall notify
all Note Owners and the Indenture Trustee of the occurrence of any such event
and of the availability of Definitive Notes to Note Owners requesting the same.
Upon surrender to the Indenture Trustee of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Lease Trustee shall execute, on behalf of the
Lease Trust, and the Indenture Trustee shall authenticate the Definitive Notes
in accordance with the instructions of the Clearing Agency. None of the Lease
Trustee, the Note Registrar or the Indenture Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize as Noteholders the Persons whose
names are registered in the Note Register.
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Section 2.13 Authenticating Agents. Upon the request of the
Lease Trustee, the Indenture Trustee shall, and if the Indenture Trustee so
chooses the Indenture Trustee may, appoint one or more Authenticating Agents
with power to act on its behalf and subject to its direction in the
authentication of Notes in connection with issuance, transfers and exchanges
under Sections 2.2, 2.4, 2.5 and 9.6, as fully to all intents and purposes as
though each such Authenticating Agent had been expressly authorized by those
Sections to authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section
2.13 shall be deemed to be the authentication of Notes "by the Indenture
Trustee."
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Lease Trustee.
The Indenture Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Lease Trustee. Upon receiving such notice of
resignation or upon such a termination, the Indenture Trustee shall promptly
appoint a successor Authenticating Agent and shall give written notice of such
appointment to the Lease Trustee.
The Indenture Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services, and
reimbursement for its reasonable expenses relating thereto and the Indenture
Trustee shall be entitled to be reimbursed for such payments, subject to
Section 6.7. The provisions of Sections 2.8 and 6.4 shall be applicable to any
Authenticating Agent.
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ARTICLE III
COVENANTS
Section 3.1 Payment of Principal and Interest. The Lease
Trust will duly and punctually pay the principal of and interest on the Notes
in accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, the Lease Trustee, on behalf of the Lease Trust, will cause the
Indenture Trustee to distribute to Noteholders and the Lease Trust Certifi-
cateholders all amounts on deposit in the Series 1995-1 Payments Account
payable to the Noteholders and the Lease Trust Certificateholders pursuant to
Section 8.4. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered to
have been paid by the Lease Trust to such Noteholder for all purposes of this
Indenture.
Section 3.2 Maintenance of Office or Agency. The Note
Registrar, on behalf of the Lease Trustee, will maintain at the Corporate Trust
Office or at such other location in the Borough of Manhattan, The City of New
York, chosen by the Note Registrar, acting for the Lease Trustee an office or
agency, where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Lease Trustee in respect
of the Notes and this Indenture may be served. The Lease Trustee hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
Section 3.3 Money for Payments To Be Held in Trust. As
provided in Sections 8.4(b) and 5.4(b), all payments of amounts due and payable
with respect to any Notes that are to be made from amounts withdrawn from the
Series 1995-1 Payments Account shall be made on behalf of the Lease Trust by
the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn
therefrom for payments of Notes shall be paid over to the Lease Trust except as
provided in this Section 3.3.
On or before each Payment Date and Redemption Date, the Lease
Trustee shall, on behalf of the Lease Trust, deposit or cause to be deposited
in the Series 1995-1 Payments Account an aggregate sum sufficient to pay the
amounts then becoming due under the Notes, such
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sum to be held in trust for the benefit of the Persons entitled thereto and
(unless the Paying Agent is the Indenture Trustee) shall promptly notify the
Indenture Trustee of its action or failure so to act.
The Lease Trustee will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees to the extent
relevant), subject to the provisions of this Section 3.3, that such Paying
Agent will:
(i) hold all sums held by it for the
payment of amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and pay
such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of
any default by the Lease Trust of which it has actual knowledge (or
any other obligor upon the Notes) in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of
any such default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust by
such Paying Agent;
(iv) immediately resign as a Paying Agent
and forthwith pay to the Indenture Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the
Code with respect to the withholding from any payments made by it on
any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
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The Lease Trustee may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, by Issuer Order direct any Paying Agent to pay to the Indenture
Trustee all sums held in trust by such Paying Agent, such sums to be held by
the Indenture Trustee upon the same trusts as those upon which the sums were
held by such Paying Agent; and upon such payment by any Paying Agent to the
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Lease Trust on Issuer Request; and such
Noteholder shall thereafter, as an unsecured general creditor, look only to the
Lease Trust for payment thereof (but only to the extent of the amounts so paid
to the Lease Trust by the Indenture Trustee or the Paying Agent), and all
liability of the Indenture Trustee or such Paying Agent with respect to such
trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Lease Trust cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Lease Trust. The
Indenture Trustee shall also adopt and employ, at the expense of the Lease
Trust, any other reasonable means of notification of such repayment (including,
but not limited to, mailing notice of such repayment to Noteholders whose Notes
have been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Noteholder).
Section 3.4 Existence. The Lease Trust will keep in full
effect its existence, rights and franchises
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under the laws of its jurisdiction of organization, and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and the Indenture
Trust Estate.
Section 3.5 Protection of Indenture Trust Estate. The Lease
Trustee on behalf of the Lease Trust will from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(i) maintain or preserve the lien and
security interest (and the priority thereof) of this Indenture or
carry out more effectively the purposes hereof;
(ii) perfect, publish notice of or
protect the validity of any Grant made or to be made by this
Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the
Indenture Trust Estate and the rights of the Indenture Trustee and the
Noteholders in such Indenture Trust Estate against the claims of all
Persons and parties.
The Lease Trust hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required by the Indenture Trustee pursuant to this Section
3.5; provided, however, the Indenture Trustee shall be under no obligation to
file any such financing statement, continuation statement or other instrument
required under this Section 3.5.
Section 3.6 Opinions as to Indenture Trust Estate. (a)
Promptly after the execution of this Indenture, the Lease Trustee shall furnish
to the Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with
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respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements
and any other action that may be required by law, as are necessary to perfect
and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before April 30 in each calendar year, beginning on
or before April 30, 1996, the Lease Trustee, shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements and any other action
that may be required by law as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until April 30 in the following calendar
year.
Section 3.7 Performance of Obligations; Administration of
Specified Assets. (a) The Lease Trust will not take any action and will use
its best efforts not to permit any action to be taken by others, including but
not limited to the Administrative Agent, that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in the Basic Documents.
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(b) The Lease Trustee may contract with other Persons to
assist it in performing its duties under this Indenture, and any performance of
such duties by a Person identified to the Indenture Trustee in an Officers'
Certificate of the Lease Trustee shall be deemed to be action taken by the
Lease Trustee. Initially, the Lease Trustee has contracted with the
Administrative Agent and the Administrative Agent has agreed to assist the
Lease Trustee in performing its duties under this Indenture.
(c) The Lease Trustee will, and shall cause the
Administrative Agent to, punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Indenture Trust Estate, including
but not limited to filing or causing to be filed all UCC financing statements
and continuation statements required to be filed by the terms of this Indenture
and the other Basic Documents in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided
therein, the Lease Trustee, as a party to the other Basic Documents and as a
Holder of the Series 1995-1 Certificates, shall not, and shall cause the
Administrative Agent not to, waive, amend, modify, supplement or terminate any
Basic Document or any provision thereof without the consent of the Indenture
Trustee or the Noteholders of at least a majority of the Outstanding Amount of
the Notes.
(d) If the Lease Trustee shall have knowledge of the
occurrence of an event of default by the Administrative Agent under the
Administrative Agency Agreement ("Administrative Agent Default"), the Lease
Trustee shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Lease Trustee
is taking in respect of such default. If an Administrative Agent Default shall
arise from the failure of the Administrative Agent to perform any of its duties
or obligations under the Administrative Agency Agreement with respect to the
Series 1995-1 Assets, the Lease Trustee shall take all reasonable steps
available to it to remedy such failure.
(e) Upon any termination of the Administrative Agent's
rights and powers pursuant to Section 7.1 or 7.3 of the Administrative Agency
Agreement or resignation of the Administrative Agent pursuant to Section 7.2 of
the
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Administrative Agency Agreement, the Lease Trustee shall promptly, but in any
event within two Business Days, notify the Indenture Trustee. As soon as a
substitute Administrative Agent is appointed pursuant to Section 7.1 of the
Administrative Agency Agreement or a successor Administrative Agent is
appointed pursuant to Section 7.3 of the Administrative Agency Agreement, the
Lease Trustee shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such substitute or successor
Administrative Agent.
Section 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Lease Trust shall not:
(i) other than the lease of the Series
1995-1 Certificates pursuant to the Program Operating Lease, which
lease is subject to the lien of this Indenture, and except as
expressly permitted by this Indenture or the other Basic Documents,
sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Lease Trust, including those included in the
Indenture Trust Estate, unless directed to do so by the Indenture
Trustee;
(ii) claim any credit on, or make any
deduction from the principal or interest payable in respect of, the
Notes (other than amounts properly withheld from such payments under
the Code) or assert any claim against any present or former Noteholder
by reason of the payment of the taxes levied or assessed upon any part
of the Indenture Trust Estate; or
(iii) (A) permit the validity or
effectiveness of this Indenture to be impaired, or permit the lien of
this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants
or obligations under this Indenture except as may be expressly
permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or otherwise arise upon or
burden the Indenture Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than
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tax liens, mechanics' liens and other liens that arise by operation of
law, in each case on any Series 1995-1 Assets and arising solely as a
result of an action or omission of the related Lessee) or (C) permit
the lien of this Indenture not to constitute a valid first priority
(other than with respect to any such tax, mechanics' or other lien)
security interest in the Indenture Trust Estate.
Section 3.9 Annual Statement as to Compliance. The Lease
Trustee will deliver to the Indenture Trustee, within 120 days after the end of
each calendar year (commencing with the calendar year 1995), an Officers'
Certificate stating, as to the Authorized Officer signing such Officers'
Certificate, that
(i) a review of the activities of the
Lease Trust during such year and of performance under this Indenture
has been made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized
Officer's knowledge, based on such review, the Lease Trust has
complied with all conditions and covenants under this Indenture
throughout such year, or, if there has been a Default in the
compliance of any such condition or covenant, specifying each such
Default known to such Authorized Officer and the nature and status
thereof.
Section 3.10 [Reserved]
Section 3.11 [Reserved]
Section 3.12 No Other Activities. The Lease Trust shall not
engage in any activities other than financing, acquiring, owning, leasing
(subject to the lien of this Indenture), pledging and managing the Series
1995-1 Certificates in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
Section 3.13 No Borrowing. Other than as contemplated by the
Basic Documents, the Lease Trust shall not issue, incur, assume, guarantee or
otherwise become liable, directly or indirectly, for any indebtedness.
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Section 3.14 Administrative Agent's Obligations. The Lease
Trust shall cause the Administrative Agent to comply with the terms and
provisions of the Basic Documents to which the Administrative Agent is a party.
Section 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Basic Documents or this Indenture,
the Lease Trust shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 3.16 Capital Expenditures. Except as contemplated by
the Basic Documents, the Lease Trust shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty or
personalty).
Section 3.17 [Reserved]
Section 3.18 Notice of Events of Default. The Lease Trustee
agrees to give the Indenture Trustee and the Rating Agencies prompt written
notice of each Event of Default hereunder on the part of the Administrative
Agent and each Lease Event of Default on the part of the RCL Trustee as lessee
under the Program Operating Lease.
Section 3.19 Further Instruments and Acts. Upon request of
the Indenture Trustee, the Lease Trustee, on behalf of the Lease trust, will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.3,
3.4, 3.5, 3.8, 3.12 and 3.13, (v) the rights, obligations and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.7 and the obligations of the Indenture Trustee under Section
4.2) and (vi) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with the Indenture Trustee payable to all or any of
them, and the Indenture Trustee, on demand and at the expense of the Lease
Trustee, on behalf of the Lease Trust, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(A) either
(1) all Notes theretofore authenticated and delivered
(other than (i) Notes that have been mutilated, destroyed,
lost or stolen and that have been replaced or paid as provided
in Section 2.5) and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Lease Trust and thereafter repaid to the Lease
Trust or discharged from such trust, as provided in Section
3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their
Stated Maturity within one year, or
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(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Indenture
Trustee for the giving of notice of
redemption by the Indenture Trustee
in the name, and at the expense, of
the Lease Trust,
and the Lease Trust, in the case of (i), (ii) or (iii) above,
has (x) received an Opinion of Counsel to the effect that the
release of the Collateral or the release of the Lease Trust
from the liability hereunder will not be treated as a
repayment of the Notes or an exchange pursuant to Section 1001
of the Code and (y) irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on
such Notes (including interest) not theretofore delivered to
the Indenture Trustee for cancellation when due to their
Stated Maturity or Redemption Date (if Notes shall have been
called for redemption pursuant to Section 10.1(a)) and all
fees due and payable to the Lease Trustee or the Indenture
Trustee, as the case may be;
(B) the Lease Trust has paid or caused to be paid all
other sums payable hereunder by the Lease Trust; and
(C) the Lease Trustee has delivered to the Indenture
Trustee an Officers' Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each
meeting the applicable requirements of Section 11.1 and each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
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Section 4.2 Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the particular Notes for
the payment or redemption of which such moneys have been deposited with the
Indenture Trustee of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Administrative Agency Agreement or required by
law.
Section 4.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Lease Trustee, be paid to the Indenture Trustee to be
held and applied according to Section 3.3 and thereupon such Paying Agent shall
be released from all further liability with respect to such moneys.
ARTICLE V
EVENTS OF DEFAULT
Section 5.1 Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any
interest on any Note when the same becomes due and payable, and such
default shall continue for a period of five days; or
(ii) on any date, the Outstanding Amount of
Notes is greater than or equal to the Pool Balance; or
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(iii) default in the payment of the
principal of any Note at Stated Maturity or upon the Redemption Date;
(iv) the occurrence of a Lease Event of
Default;
(v) default in the observance or
performance of any covenant or agreement of the Lease Trust made in
this Indenture (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this Section 5.1
specifically dealt with), or any representation or warranty of the
Lease Trust made in this Indenture or in any certificate or other
writing delivered pursuant hereto or in connection herewith proving to
have been incorrect in any material respect as of the time when the
same shall have been made, and such default shall continue or not be
cured, or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 60 days or in the case
of a materially incorrect representation or warranty, 30 days, after
there shall have been given, by registered or certified mail, to the
Lease Trustee by the Indenture Trustee or to the Lease Trustee and the
Indenture Trustee by the Noteholders holding not less than 25% of the
Outstanding Amount of the Notes of any Class, a written notice
specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(vi) the filing of a decree or order for
relief by a court having jurisdiction in the premises in respect of
the Lease Trust or any substantial part of the Indenture Trust Estate
in an involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Lease Trust or for
any substantial part of the Indenture Trust Estate, or the winding-up
or liquidation of the Lease Trust's affairs, and such decree or order
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shall remain unstayed and in effect for a period of 60 consecutive
days; or
(vii) the commencement by the Lease Trust
of a voluntary case under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by the Lease Trust to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Lease Trust
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Lease Trust or for any substantial part of the Indenture Trust Estate,
or the making by the Lease Trust of any general assignment for the
benefit of creditors, or the failure by the Lease Trust generally to
pay its debts as such debts become due, or the taking of action by the
Lease Trust in furtherance of any of the foregoing.
The Lease Trustee shall deliver to the Indenture Trustee,
within five days after the occurrence thereof, written notice in the form of an
Officers' Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under clauses (ii), (iv) and
(v), its status and what action the Lease Trustee is taking or proposes to take
with respect thereto.
Section 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default should occur and be continuing, then and in
every such case the Indenture Trustee or the Noteholders representing not less
than a majority of the Outstanding Amount of the Notes may declare all the
Notes to be immediately due and payable, by a notice in writing to the Lease
Trustee (and to the Indenture Trustee if given by Noteholders), and upon any
such declaration the unpaid principal amount of such Notes, together with
accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter set forth in this Article
V, the Noteholders representing not less than a
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majority of the Outstanding Amount of the Notes, by written notice to the Lease
Trustee and the Indenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Lease Trust has paid or
deposited with the Indenture Trustee a sum sufficient to pay
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default giving
rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than
the nonpayment of the principal of the Notes that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) The Lease Trust covenants that if (i)
default is made in the payment of any interest on any Note when the same
becomes due and payable, and such default continues for a period of five days,
or (ii) default is made in the payment of the principal of any Note at Stated
Maturity or the Redemption Date, the Lease Trust will, upon demand of the
Indenture Trustee, pay to it, for the benefit of such Noteholders, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest,
at the applicable Default Rate borne by the Notes and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reason-
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able compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents, attorneys and counsel.
(b) In case the Lease Trust shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Lease Trust or other obligor upon
such Notes and collect in the manner provided by law out of the property of the
Lease Trust or other obligor upon such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by law.
(d) In case there shall be pending, relative to the Lease
Trust or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Indenture Trust Estate, Proceedings under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Lease Trust or its
property or such other obligor or Person, or in case of any other comparable
judicial Proceedings relative to the Lease Trust or other obligor upon the
Notes, or to the creditors or property of the Lease Trust or such other
obligor, the Indenture Trustee, irrespective of whether the principal of any
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made any
demand
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pursuant to the provisions of this Section 5.3, shall be entitled and
empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims
for the whole amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances and disbursements
made, by the Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the Noteholders
allowed in such Proceedings;
(ii) unless prohibited by applicable law
and regulations, to vote on behalf of the Noteholders in any election
of a trustee, a standby trustee or Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any moneys or
other property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of the
Noteholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee or the Noteholders allowed in
any judicial proceedings relative to the Lease Trust, its creditors
and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys
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and counsel, and all other expenses and liabilities incurred, and all advances
and disbursements made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith, and any other amounts
due the Indenture Trustee under Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any related Noteholder or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of
the expenses, advances, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel shall be for the ratable benefit of the Noteholders in
respect of which such judgment has been recovered.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
Section 5.4 Remedies; Priorities. (a) If an Event of
Default shall have occurred and be continuing, the Indenture Trustee may do one
or more of the following (subject to Section 5.5):
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(i) institute Proceedings in its own
name and as trustee of an express trust for the collection of all
amounts then payable on the Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Lease Trust and any other obligor upon
such Notes moneys adjudged due;
(ii) institute Proceedings from time to
time for the complete or partial foreclosure of this Indenture with
respect to the Indenture Trust Estate;
(iii) exercise any remedies of a secured
party under the UCC and take any other appropriate action to protect
and enforce the rights and remedies of the Indenture Trustee and the
Noteholders; and
(iv) after a declaration of acceleration
of the maturity of the Notes pursuant to Section 5.2, sell the
Indenture Trust Estate or any portion thereof or rights or interest
therein, at one or more public or private sales called and conducted
in any manner permitted by law;
provided, however, that, unless directed to sell the Indenture Trust
Estate in accordance with Section 9.2 of the Lease Trust Agreement,
the Indenture Trustee may not sell or otherwise liquidate the
Indenture Trust Estate following an Event of Default, other than an
Event of Default described in Section 5.1(i) or (iii), unless (A)
Noteholders holding 100% of the Outstanding Amount of the Notes
consent thereto, (B) the proceeds of such sale or liquidation are
sufficient to discharge in full all amounts then due and unpaid upon
the Notes for principal and interest and all amounts payable to the
Lease Trust Certificateholders or (C) the Indenture Trustee determines
that the Indenture Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared
due and payable, and the Indenture Trustee obtains the consent of
Noteholders holding not less than 66-2/3% of the Outstanding Amount of
the Notes. In determining such sufficiency or in-
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sufficiency with respect to clauses (B) and (C), the Indenture
Trustee may, but need not, obtain, at the expense of the Lease Trust,
and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Indenture Trust
Estate for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V upon sale of the Indenture Trust Estate, it shall
pay out such money or property held as Collateral for the benefit of the
Noteholders in the following order:
FIRST: to the Indenture Trustee for all amounts due under
Section 6.7;
SECOND: to the Administrative Agent for reimbursement of all
outstanding Sale Proceeds Advances and Monthly Payment Advances;
THIRD: to the Administrative Agent for amounts due in respect
of unpaid Series 1995-1 Administrative fees;
FOURTH: to Noteholders for amounts due and unpaid on the
Notes for interest, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
interest;
FIFTH: to the Class A-1 Noteholders, Class A-2 Noteholders
and Class A-3 Noteholders for amounts due and unpaid on the Notes for
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A-1 Notes, Class
A-2 Notes and Class A-3 Notes for principal; and
SIXTH: to the Lease Trust for distribution, ratably, without
preference or priority of any kind, according to the amounts due and
payable to the Lease Trust Certificateholders.
The Indenture Trustee may fix a record date and payment date
for any payment to Noteholders pursuant to
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this Section 5.4(b). At least 15 days before such record date, the Lease
Trustee shall mail to each Noteholder and the Indenture Trustee a notice that
states the record date, the payment date and the amount to be paid.
Section 5.5 Optional Preservation of the Series 1995-1
Assets. If the Notes have been declared to be due and payable under Section
5.2 following an Event of Default and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, unless
directed to sell pursuant to Section 9.2 of the Lease Trust Agreement, but need
not, elect to maintain possession of the Indenture Trust Estate. It is the
desire of the parties hereto and the Noteholders that there be at all times
sufficient funds for the payment of principal of and interest on the Notes, and
the Indenture Trustee shall take such desire into account when determining
whether or not to maintain possession of the Indenture Trust Estate. In
determining whether to maintain possession of the Indenture Trust Estate, the
Indenture Trustee may, but need not, obtain at the expense of the Lease Trust
and rely upon an opinion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed action and
as to the sufficiency of the Indenture Trust Estate for such purpose.
Notwithstanding the foregoing provisions of this Section 5.5 and Section 5.4,
the Indenture Trustee shall sell the Indenture Trust Estate, subject to the
lien of this Indenture, if so instructed by the Lease Trustee pursuant to
Section 9.2 of the Lease Trust Agreement.
Section 5.6 Limitation of Suits. No Noteholder shall have
any right to institute any Proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Noteholder has previously given
written notice to the Indenture Trustee of a continuing Event of
Default;
(ii) Noteholders holding not less than
25% of the Outstanding Amount of the Notes have made written request
to the Indenture Trustee to institute such Proceeding in respect of
such Event
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of Default in its own name as Indenture Trustee hereunder;
(iii) such Noteholder or Noteholders have
offered to the Indenture Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in complying with such
request;
(iv) the Indenture Trustee for 60 days
after its receipt of such notice, request and offer of indemnity has
failed to institute such Proceedings; and
(v) no direction inconsistent with such
written request has been given to the Indenture Trustee during such
60-day period by the Noteholders holding not less than a majority of
the Outstanding Amount of the Notes;
it being understood and intended that no Noteholder, or group of Noteholders,
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Noteholders or to obtain or to seek to obtain priority or preference
over any other Noteholders or to enforce any right under this Indenture, except
in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Noteholders,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, any Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note
or in this Indenture (or, in the case of redemption, on or after the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Noteholder.
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Section 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Lease Trust, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Indenture Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Noteholder to exercise any right or
remedy accruing upon any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such Default or Event of Default
or an acquiescence therein. Every right and remedy given by this Article V or
by law to the Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Indenture Trustee
or by the Noteholders, as the case may be.
Section 5.11 Control by Noteholders. The Noteholders holding
not less than a majority of the Outstanding Amount of the Notes shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided that
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(i) such direction shall not be in
conflict with any rule of law or with this Indenture;
(ii) subject to the express terms of
Section 5.4, any direction to the Indenture Trustee to sell or
liquidate the Indenture Trust Estate shall be by the Noteholders
holding not less than 100% of the Outstanding Amount of the Notes;
(iii) if the conditions set forth in
Section 5.5 have been satisfied and the Indenture Trustee elects to
retain the Indenture Trust Estate pursuant to such Section 5.5, and
except in the case of a sale of the Indenture Trust Estate pursuant to
Section 9.2 of the Lease Trust Agreement then any direction to the
Indenture Trustee by Noteholders holding less than 100% of the
Outstanding Amount of the Notes to sell or liquidate the Indenture
Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any
other action deemed proper by the Indenture Trustee that is not
inconsistent with such direction;
provided, however, that the Indenture Trustee need not take any action that it
determines might expose it to personal liability or might materially adversely
affect or unduly prejudice the rights of any Noteholders not consenting to such
action.
Section 5.12 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as provided in
Section 5.2, Noteholders holding not less than a majority of the Outstanding
Amount of the Notes may waive any past Default or Event of Default and its
consequences except a Default (a) in payment of principal of or interest on any
of the Notes or (b) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of each Noteholder. In the case of
any such waiver, the Lease Trust, the Indenture Trustee and the Noteholders
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or impair
any right consequent thereto.
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Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Section 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Noteholder by such Noteholder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on
or after the respective Stated Maturity expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Lease
Trust covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Lease Trust (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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Section 5.15 Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Lease Trust or by the levy of any execution under such judgment upon any
portion of the Indenture Trust Estate or upon any of the assets of the Lease
Trust.
Section 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to
do so, the Lease Trustee, on behalf of and at the expense of the Lease Trust,
agrees to take all such lawful action as the Indenture Trustee may request to
compel or secure the performance and observance by Ford Credit, RCL Trust
1995-1 and the Administrative Agent, as applicable, of each of their
obligations to the Lease Trust under or in connection with the Limited RV
Guaranty, the Program Operating Lease and the Administrative Agency Agreement,
respectively, in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Lease Trust
under or in connection with each such agreement to the extent and in the manner
directed by the Indenture Trustee, including the transmission of notices of
default on the part of the Administrative Agent thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Administrative Agent of its obligations under the
Administrative Agency Agreement.
(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of
Noteholders holding not less than 66-2/3% of the Outstanding Amount of the
Notes shall, exercise all rights, remedies, powers, privileges and claims of
the Lease Trust against Ford Credit, the RCL Trustee and the Administrative
Agent under or in connection with the Limited RV Guaranty, the Program
Operating Lease, the Administrative Agency Agreement and the Series 1995-1
Supplement, respectively, including the right or power to take
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any action to compel or secure performance or observance by the Administrative
Agent of its obligations to the Lease Trust thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the
Administrative Agency Agreement, and any right of the Lease Trust to take such
action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent Person would exercise or use
under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to
perform such duties and only such duties as are specifically set forth
in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its
part, the Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; however, the
Indenture Trustee shall examine any such certificates and opinions,
which by any provision hereof are specifically to be furnished to the
Indenture Trustee, to determine whether or not they conform to the
requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
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(i) this paragraph does not limit the
effect of Section 6.1(b);
(ii) the Indenture Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Indenture 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 5.11.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject of Sections 6.1(a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Lease Trustee.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Administrative Agency Agreement.
(g) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds to believe
that repayments of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions of
the TIA.
(i) The Indenture Trustee shall not be deemed to have
knowledge of any Default or other event unless a Responsible Officer has actual
knowledge thereof or has
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received written notice thereof in accordance with the provisions of this
Indenture.
Section 6.2 Rights of Indenture Trustee. (a) The Indenture
Trustee may rely and shall be protected in acting or refraining form acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Indenture Trustee need not investigate any fact or
matter stated in any such document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officers' Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, the Administrative Agent, any co-trustee or
separate trustee appointed in accordance with the provisions of Section 6.10 or
any other such agent, attorney, custodian or nominee appointed with due care by
it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice of such counsel or any Opinion of Counsel relating to this Indenture and
the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
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(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or to honor
the request or direction of any of the Noteholders pursuant to this Indenture
unless such Noteholders shall have offered to the Indenture Trustee reasonable
security or indemnity against the reasonable costs, expenses, disbursements,
advances and liabilities which might be incurred by it, its agents and its
counsel in compliance with such request or direction.
(g) Any request or direction of the Lease Trust mentioned
herein shall be sufficiently evidenced by an Issuer Request.
Section 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Lease Trust or its
Affiliates with the same rights it would have if it were not Indenture Trustee.
Any Paying Agent, Note Registrar, co-registrar, co-paying agent, co-trustee or
separate trustee agent may do the same with like rights. However, the
Indenture Trustee must comply with Sections 6.11 and 6.12.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Lease Trust's use of the proceeds from the Notes, and it
shall not be responsible for any statement in the Indenture or in any document
issued in connection with the sale of the Notes or in the Notes, all of which
shall be taken as the statements of the Lease Trust, other than the Indenture
Trustee's certificate of authentication.
Section 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall notify the Rating Agencies within two
Business Days and shall mail to each Noteholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of principal
of or interest on any Note (including payments pursuant to the mandatory
redemption provisions of such Note), the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
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determines that withholding the notice is in the interests of Noteholders;
provided, however, that in the case of any Default of the character specified
in Section 5.1(v), no such notice to Noteholders shall be given until at least
30 days after the occurrence thereof.
Section 6.6 Reports by Indenture Trustee to Noteholders. The
Indenture Trustee shall deliver, if provided to the Indenture Trustee by the
Lease Trust, to each Noteholder such information as may be required to enable
such holder to prepare its federal and state income tax returns.
Section 6.7 Compensation and Indemnity. The Lease Trust
shall or shall cause the Administrative Agent to pay to the Indenture Trustee
from time to time reasonable compensation for its services rendered by it
hereunder. The Indenture Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Lease Trust shall or
shall cause the Administrative Agent to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses, advances and disbursements incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Indenture Trustee's agents,
counsel, accountants and experts. The Lease Trust shall or shall cause the
Administrative Agent to indemnify the Indenture Trustee individually or in its
capacity as Indenture Trustee for, and to hold it harmless against, any and all
loss, liability or expense (including attorneys' fees) incurred by it in
connection with the acceptance or the administration of this trust and the
performance of its duties hereunder including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Indenture Trustee
shall notify the Lease Trustee and the Administrative Agent promptly of any
claim for which it may seek indemnity. Failure by the Indenture Trustee to so
notify the Lease Trustee and the Administrative Agent shall not relieve the
Lease Trust or the Administrative Agent of its obligations hereunder. The
Lease Trust shall or shall cause the Administrative Agent to defend the claim
if so requested by the Indenture Trustee and the Indenture Trustee may have
separate counsel and the Lease Trust shall or shall cause the
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Administrative Agent to pay the fees and expenses of such counsel. Neither the
Lease Trust nor the Administrative Agent need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own wilful misconduct, negligence or
bad faith.
The Lease Trust's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the discharge of this Indenture.
When the Indenture Trustee incurs expenses after the occurrence of a Default
set forth in Section 5.1(iv) or (v) with respect to the Lease Trust, the
expenses are intended to constitute expenses of administration under Title 11
of the United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law.
Section 6.8 Replacement of Indenture Trustee. Noteholders
holding not less than a majority in Outstanding Amount of the Notes may remove
the Indenture Trustee without cause by so notifying the Lease Trustee and the
Indenture Trustee and following such removal may appoint a successor
Indenture Trustee. The Indenture Trustee may resign at any time by so
notifying the Lease Trustee and the Noteholders. The Lease Trustee shall
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to
comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a
bankrupt or insolvent;
(iii) a receiver or other public officer
takes charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise
becomes incapable of acting.
If the Indenture Trustee resigns or is removed by Noteholders
holding not less than a majority of the Outstanding Amount of the Notes or by
the Lease Trustee or if a vacancy exists in the office of Indenture Trustee for
any reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee),
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the Lease Trustee shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Lease Trustee. Thereupon the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee, without
any further act, deed or conveyance, shall have all the rights, powers and
duties of the Indenture Trustee under this Indenture subject to satisfaction of
the Rating Agency Condition. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders, which shall include the name of the
successor Indenture Trustee and the address of its principal corporate trust
office. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the
retiring Indenture Trustee, the Lease Trust or Noteholders holding not less
than a majority in Outstanding Amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder who has been a bona fide Noteholder for at least six months may
petition any court of competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and
appointment of a successor Indenture Trustee pursuant to any of the provisions
of this Section 6.8 shall not become effective until acceptance of appointment
by the successor Indenture Trustee pursuant to this Section 6.8 and payment of
all fees and expenses owed to the outgoing Indenture Trustee. Notwithstanding
the replacement of the Indenture Trustee pursuant to this Section 6.8, the
Lease Trust's and the Administrative Agent's obligations under Section 6.7
shall continue for the benefit of the retiring Indenture Trustee.
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Section 6.9 Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee.
The Indenture Trustee shall provide the Rating Agencies prior written notice of
any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Indenture Trustee shall
have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any of the Collateral may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Collateral, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Collateral, or any part
hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
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(b) Every separate trustee and co-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 Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized
to act separately without the Indenture 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 Indenture Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no separate trustee or co-trustee
hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder; and
(iii) the Indenture Trustee may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every
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such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a).
The Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition and it shall have a long term debt rating of investment grade or
better by the Rating Agencies. The Indenture Trustee shall comply with TIA
Section 310(b).
Section 6.12 Preferential Collection of Claims Against Lease
Trustee. The Indenture Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). An
Indenture Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
Section 6.13 Removal of Administrative Agent. So long as any
Notes are Outstanding, the Lease Trustee shall not take any action with respect
to the removal of, or substitution for, the Administrative Agent pursuant to
Sections 7.1 and 7.3 of the Administrative Agency Agreement without the consent
of the Indenture Trustee.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.1 Lease Trustee To Furnish Indenture Trustee Names
and Addresses of Noteholders. The Lease Trustee will furnish or cause to be
furnished to the Indenture Trustee (i) not more than five days after each
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Record Date, a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Noteholders as of such Record Date,
(ii) at such other times as the Indenture Trustee may request in writing,
within 30 days after receipt by the Lease Trustee of any such request, a list
of similar form and content as of a date not more than 10 days prior to the
time such list is furnished; provided, however, that so long as (i) the
Indenture Trustee is the Note Registrar or (ii) the Notes are issued as
Book-Entry Notes no such list shall be required to be furnished to the
Indenture Trustee.
Section 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee as provided in
Section 7.1 and the names and addresses of Noteholders received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312
(b) with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Lease Trustee, the Indenture Trustee and the Note
Registrar shall have the protection of TIA Section 312(c).
Section 7.3 Reports by Lease Trustee. (a) The Lease Trustee,
on behalf of the Lease Trust, shall:
(i) file with the Indenture Trustee,
within 15 days after the Lease Trust is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Lease Trust may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
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(ii) file with the Indenture Trustee and
the Commission in accordance with rules and regulations prescribed
from time to time by the Commission such additional information,
documents and reports with respect to compliance by the Lease Trust
with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and
the Indenture Trustee shall transmit by mail to all Noteholders
described in TIA Section 313(c)) such summaries of any information,
documents and reports required to be filed by the Lease Trustee on
behalf of the Lease Trust pursuant to clauses (i) and (ii) of this
Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Lease Trust otherwise determines, the fiscal
year of the Lease Trust shall end on December 31 of each year.
Section 7.4 Reports by Indenture Trustee. If required by TIA
Section 313(a), within 60 days after each May 15 beginning with May 15, 1996,
the Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and
each stock exchange, if any, on which the Notes are listed.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Indenture Trust Estate,
the Indenture Trustee may take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V.
Section 8.2 Series 1995-1 Payment Account. The Indenture
Trustee shall, prior to the Closing Date, establish and maintain an Eligible
Account in the name of the Indenture Trustee which shall be designated as the
"Series 1995-1 Payments Account." The Series 1995-1 Payments Account shall be
held in trust for the benefit of the Noteholders and the Lease Trust
Certificateholders. The Series 1995-1 Payments Account shall be under the sole
dominion and control of the Indenture Trustee. All monies deposited from time
to time in the Series 1995-1 Payments Account pursuant to this Indenture and
the Series 1995-1 Supplement shall be held by the Indenture Trustee as part of
the Collateral and shall be applied to the purposes herein provided. If the
Series 1995-1 Payments Account shall cease to be an Eligible Account, the
Indenture Trustee shall, within 10 Business Days (or such longer period not to
exceed 30 calendar days as to which each Rating Agency may consent), move the
Series 1995-1 Payments Account, to an institution at which it shall be an
Eligible Account.
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Section 8.3 Reserve Account Certificate; RV Guaranty Draw
Certificate; Disbursement and Payment Instructions. (a) On the Business Day
preceding each Payment Date, the Lease Trustee shall cause the Administrative
Agent to deliver to the Indenture Trustee, on behalf of the Lease Trust, a
certificate (the "Reserve Account Certificate") setting forth the following
information with respect to such Payment Date:
(i) the Series 1995-1 Administrative Agent Fee for the
preceding Accrual Period;
(ii) the Required Interest Payment;
(iii) the Pool Balance Decline;
(iv) the Available Funds;
(v) the Reserve Account Amount as of the previous Payment
Date;
(vi) the RV Guaranty Draw Amount, if any, and the RV Guaranty
Draw Shortfall, if any; and
(vii) the Reserve Account Draw Amount or the Reserve Account
Deposit Amount, as applicable.
If there is a Reserve Account Draw Amount, on the Payment Date, the Indenture
Trustee shall withdraw from the Reserve Account and deposit in the Series
1995-1 Payments Account the Reserve Account Draw Amount set forth in the
related Reserve Account Certificate.
(b) On the second Business Day preceding each Payment Date, the Lease
Trustee shall cause the Administrative Agent, on behalf of the Lease Trust, to
deliver to the Indenture Trustee a certificate (the "RV Guaranty Draw
Certificate") setting forth the following information with respect to such
Payment Date:
(i) the Available Limited RV Guaranty Amount;
(ii) the Required Sale Proceeds Payment;
(iii) the Available Sale Proceeds; and
(iv) the RV Guaranty Draw Amount, if any.
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On the Payment Date, the Indenture Trustee, as assignee of the Limited RV
Guaranty, shall demand payment from the Guarantor of the RV Guaranty Draw
Amount by delivering a copy of the RV Guaranty Draw Certificate, together with
instructions stating that the RV Guaranty Draw Amount is to be deposited on the
Payment Date in the Series 1995-1 Payments Account, to the Guarantor at the
address specified in the Limited RV Guaranty.
(c) On the Business Day preceding each Payment Date the Lease Trustee
shall cause the Administrative Agent, on behalf of the Lease Trust, to deliver
to the Indenture Trustee a certificate (the "Disbursement and Payment
Instructions") setting forth the following information with respect to such
Payment Date:
(i) the Available Funds, including amounts with respect to
each of items (i) through (x) of the definition thereof;
(ii) the Reserve Account Amount and the Required Reserve
Account Amount, each as of the beginning and end of the related
Accrual Period;
(iii) the Reserve Account Draw Amount, if any, or Reserve
Account Deposit Amount, if any;
(iv) the Reserve Account Release Amount, if any;
(v) the RV Guaranty Draw Amount, if any;
(vi) the RV Guaranty Draw Shortfall, if any;
(vii) the Basic Payment and Additional Payment
(viii) the amount of interest accrued during the preceding
Interest Accrual Period on the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, respectively;
(ix) the amount of interest accrued during the preceding
Interest Accrual Period on the outstanding Lease Trust Certificates;
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(x) the Outstanding Amount of the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, respectively, on the day
immediately preceding such Payment Date; and
(xi) the Limited RV Guaranty Fee for the preceding Accrual
Period.
(d) The Indenture Trustee shall have no duty or obligation to
verify or confirm the accuracy of any of the information or numbers set forth
in any of the certificates required to be delivered to the Indenture Trustee in
accordance with this Section 8.3 and the Indenture Trustee shall be fully
protected in relying upon such certificates.
Section 8.4 Disbursement of Funds. (a) Pursuant to Section
5.2(e) of the Series 1995-1 Supplement, amounts on deposit in the Series 1995-1
Collections Account shall be deposited in the Series 1995-1 Payments Account on
each Payment Date. On each Payment Date, based on the calculations set forth
in Section 8.3, the Reserve Account Draw Amount (if any), and the RV Guaranty
Draw Amount (if any) with respect to such Payment Date shall be deposited in,
and the Reserve Account Release Amount (if any) shall be withdrawn from the
Series 1995-1 Payments Account.
(b) On each Payment Date the Indenture Trustee shall, in
accordance with the Disbursement and Payment Instructions received from the
Administrative Agent pursuant to Section 8.3(c), withdraw from the Series
1995-1 Payments Account the Total Available Funds on deposit therein and apply
such amounts in accordance with the following priorities:
(i) to the Administrative Agent, the Series 1995-1
Administrative Fee for the preceding Accrual Period;
(ii) to the Noteholders, an amount equal to interest
accrued at the applicable Note Interest Rate set forth in
Section 2.1 during the preceding Interest Accrual Period on
all Outstanding Classes of Notes plus interest on any
defaulted interest at the applicable Default Rate, provided
however, that if there are
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not sufficient funds to pay the entire amount of accrued and unpaid
interest then due on the Notes, such funds shall be applied to the
payment of such interest at the applicable Note Interest Rate on each
Class of Notes pro-rata on the basis of the total such interest due on
the Notes;
(iii) to the Certificate Distribution Account, an
amount equal to the interest accrued at the Certificate
Interest Rate plus interest on any defaulted interest at the
applicable Default Rate during the preceding Interest Accrual
Period on the Aggregate Certificate Balance of Lease Trust
Certificates;
(iv) to Ford Credit, an amount equal to the Limited
RV Guaranty Fee;
(v) to the Reserve Account, the Reserve Account
Deposit Amount, if any;
(vi) to the Noteholders, as payments of principal in
the following order of priority (except on a Payment Date
occurring after the maturity of the Notes has been accelerated
pursuant to Section 5.2):
(A) to the Class A-1 Noteholders pro rata,
until the Class A-1 Notes have been paid in full;
(B) to the Class A-2 Noteholders pro rata,
until the Class A-2 Notes have been paid in full; and
(C) to the Class A-3 Noteholders pro rata,
until the Class A-3 Notes have been paid in full.
Amounts remaining, if any, after the application of funds pursuant to clauses
(i) through (vii) above shall be deposited in the Certificate Distribution
Account for distribution in accordance with the Lease Trust Agreement.
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(c) On each Payment Date the Indenture Trustee will send, by
first class mail, a report to each Person who was a Noteholder on the prior
Record Date setting forth the following information with respect to such
Payment Date:
(i) the Note Pool Factor of each Class of Notes;
(ii) the amount of interest paid to each Outstanding Class of
Notes;
(iii) the amount of principal paid to each Outstanding Class
of Notes;
(iv) the aggregate amount of Collections deposited in the
Series 1995-1 Payments Account;
(v) the aggregate Net Sale Proceeds Advances deposited in the
Series 1995-1 Payments Account;
(vi) the aggregate Net Monthly Payment Advances deposited in
the Series 1995-1 Payments Account;
(vii) the amount of Available Funds;
(viii) the Reserve Account Draw Amount and/or the Reserve
Account Release Amount, if any;
(ix) the amount of Total Available Funds;
(x) the RV Guaranty Draw Amount, if any;
(xi) the amount of interest paid to the Lease Trust
Certificateholders;
(xii) Limited RV Guaranty Fee;
(xiii) the Reserve Account Deposit Amount, if any;
(xiv) the Outstanding Amount of each Class of Notes, the
Aggregate Certificate Balance of the Lease Trust Certificates and
the Pool Balance (separately stated);
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(xv) the Available RV Guaranty Draw Amount (after giving
effect to the RV Guaranty Draw Amount for such Payment Date, if any);
(xvi) the Reserve Account Amount (after giving effect to the
Reserve Account Draw Amount, Reserve Account Release Amount and/or the
Reserve Account Deposit Amount for such Payment Date);
(xvii) the aggregate of the Series 1995-1 Credit Losses for
the preceding Accrual Period; and
(xviii) the aggregate of the Series 1995-1 Residual Losses for
the preceding Accrual Period.
Section 8.5 General Provisions Regarding Accounts. (a)
Subject to Section 8.5(c), so long as no Default or Event of Default shall have
occurred and be continuing, all or a portion of the funds in the Series 1995-1
Payments Account shall be invested and reinvested by the Indenture Trustee upon
Issuer Order in Permitted Investments which mature no later than the next
succeeding Payment Date. No such investment shall be sold prior to maturity.
Each Business Day the Indenture Trustee shall deposit all income or other gain
realized from investments of moneys deposited in the Series 1995-1 Payments
Account in the Reserve Account, and any loss realized from such investments
shall be charged to such account. The Lease Trustee will not direct the
Indenture Trustee, on behalf of the Lease Trust, to make any investment of any
funds held in the Series 1995-1 Payments Account unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Lease Trustee shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee
shall not in any way be held liable by reason of any insufficiency in the
Series 1995-1 Payments Account resulting from any loss on any Permitted
Investment included therein except for losses attributable to the Indenture
Trustee's failure to make payments on such
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Permitted Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
Section 8.6 Release of Indenture Trust Estate. The
Indenture Trustee shall, at such time as there are no Notes Outstanding and all
sums due the Indenture Trustee pursuant to Section 6.7 have been paid, release
any remaining portion of the Indenture Trust Estate that secured the Notes from
the lien of this Indenture and release to the Lease Trustee or any other Person
entitled thereto any funds then on deposit in the Series 1995-1 Payments
Account. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.6 only upon receipt of an Issuer Request
accompanied by an Officers' Certificate, an Opinion of Counsel and (if required
by the TIA) Independent Certificates in accordance with TIA Sections 314(c)
and 314(d)(1) meeting the applicable requirements of Section 11.1.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of
Noteholders. (a) Without the consent of the Noteholders, but with prior notice
to the Rating Agencies, the Lease Trustee, on behalf of the Lease Trust, and
the Indenture Trustee, when requested by an Issuer Request, at any time and
from time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the provisions of the TIA as in force at the date of
the execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the
description of any property at any time subject to the lien of this
Indenture, or better to assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subjected to the lien
of this Indenture, or to subject to the lien of this Indenture
additional property;
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(ii) to evidence the succession, in
compliance with the applicable provisions hereof, of another Person to
the Lease Trust, and the assumption by any such successor of the
covenants of the Lease Trust herein and in the Notes contained;
(iii) to add to the covenants of the Lease
Trust, for the benefit of the Noteholders, or to surrender any right
or power herein conferred upon the Lease Trust;
(iv) to convey, transfer, assign,
mortgage or pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or
supplement any provision herein or in any supplemental indenture which
may be defective or inconsistent with any other provision herein or in
any supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture or in any
supplemental indenture which shall not be inconsistent with the
provisions of this Indenture; provided that such other provisions
shall not adversely affect the interests of the Noteholders; or
(vi) to evidence and provide for the
acceptance of the appointment hereunder by a successor trustee with
respect to the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(vii) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the TIA or under any
similar Federal statute hereafter enacted and to add to this Indenture
such other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained.
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(b) The Lease Trustee, on behalf of the Lease Trust, and the
Indenture Trustee, when requested by an Issuer Request, may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner (other than the modifications
set forth in Section 9.2 which require consent of the Holder of each Note
affected thereby) the rights of the Noteholders under this Indenture; provided,
however, that (i) such action shall not, as evidenced by an Opinion of Counsel,
materially adversely affect the interests of any Noteholder, (ii) the Rating
Agency Condition shall have been satisfied with respect to such action and
(iii) such action shall not, as evidenced by an Opinion of Counsel, (x) affect
the treatment of the Notes as debt for federal income tax purposes, (y) be
deemed to cause a taxable exchange of the Notes for federal income tax purposes
or (z) cause the Issuer, RCL Trust 1995-1 or FCTT to be taxable as an
"association" or publicly traded partnership taxable as a corporation for
federal income tax purposes.
Section 9.2 Supplemental Indentures with Consent of
Noteholders. The Lease Trustee, on behalf of the Lease Trust, and the
Indenture Trustee, when requested by an Issuer Request, also may, with the
consent of Noteholders holding not less than a majority of the Outstanding
Amount of the Notes, by Act of such Noteholders delivered to the Lease Trustee
and the Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner
or eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Noteholder of each Outstanding Note affected thereby:
(i) change Stated Maturity of or the
date of payment of any installment of principal of or interest on any
Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the
provision of this Indenture relating to the application of collections
on, or the proceeds of the sale of, the Indenture Trust Estate to
payment of principal of or interest on the Notes, or change any place
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of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(ii) reduce the percentage of the
Outstanding Amount of the Notes, the consent of the Noteholders of
which is required for any such supplemental indenture, or the consent
of the Noteholders of which is required for any waiver of compliance
with provisions of this Indenture or Defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of
the proviso to the definition of the term "Outstanding";
(iv) reduce the percentage of the
Outstanding Amount of the Notes required to direct the Indenture
Trustee to direct the Lease Trustee to sell or liquidate the Indenture
Trust Estate pursuant to
Section 5.4;
(v) modify any provision of this Section
9.2 except to increase any percentage specified herein or to provide
that certain additional provisions of this Indenture or the other
Basic Documents cannot be modified or waived without the consent of
the Noteholder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this
Indenture in such manner as to affect the calculation of the amount of
any payment of interest or principal due on any Note on any Payment
Date (including the calculation of any of the individual components of
such calculation) or to affect the rights of the Noteholders to the
benefit of any provisions for the mandatory redemption of the Notes
contained herein; or
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(vii) permit the creation of any lien
ranking prior to or on a parity with the lien of this Indenture with
respect to any part of the Indenture Trust Estate or, except as
otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive any
Noteholder of the security provided by the lien of this Indenture.
Any such supplemental indenture shall be executed only upon
delivery of an Opinion of Counsel to the same effect as in clause (b)(3)(z)
above. The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon all Noteholders, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Lease Trustee, on behalf
of the Lease Trust, and the Indenture Trustee of any supplemental indenture
pursuant to this Section 9.2, the Indenture Trustee shall mail to the
Noteholders to which such amendment or supplemental indenture relates a notice
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Indenture Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to,
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enter into any such supplemental indenture that affects the Indenture Trustee's
own rights, duties, liabilities or indemnities under this Indenture or
otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this Indenture of the Indenture Trustee, the Lease Trust, the Lease
Trustee and the Noteholders thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 9.5 Conformity With Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall conform to the requirements of the TIA as
then in effect so long as this Indenture is required to be qualified under the
TIA.
Section 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Lease Trustee
or the Indenture Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Lease Trustee, to any
such supplemental indenture may be prepared and executed by the Lease Trustee,
on behalf of the Trust, and authenticated and delivered by the Indenture
Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
Section 10.1 Redemption. The Notes shall be redeemed in
whole, but not in part, on any Payment Date
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on which the Administrative Agent exercises its option to purchase the Series
1995-1 Certificates pursuant to Section 7.1 of the Series 1995-1 Supplement,
for a purchase price equal to the Redemption Price; provided, however, that the
Lease Trust has available funds sufficient to pay the Redemption Price. The
Administrative Agent or the Lease Trustee shall furnish the Rating Agencies
notice of such redemption. If the Notes are to be redeemed pursuant to this
Section 10.1, the Lease Trustee shall or shall cause the Administrative Agent
to furnish notice of such election to the Indenture Trustee not later than
fifty-five days prior to the Redemption Date. Pursuant to Section 5.2(e) of
the Series 1995-1 Supplement, on the Redemption Date the Administrative Agent
(unless a shorter notice shall be satisfactory to the Indenture Trustee) shall
deposit the Redemption Price with the Indenture Trustee in the Series 1995-1
Payments Account whereupon all such Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.2 to
each Noteholder.
Section 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1 shall be given by the Indenture Trustee by facsimile or by
first-class mail, postage prepaid, transmitted or mailed at least fifteen days
prior to the applicable Redemption Date to each Noteholder, on the Record Date
preceding the applicable Redemption Date, at such Noteholder's address
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be
surrendered for payment of the Redemption Price (which shall be the
office or agency of the Lease Trustee to be maintained as provided in
Section 3.2); and
(iv) that on the Redemption Date, the
Redemption Price will become due and payable upon each such Note and
that interest thereon shall cease to accrue for and after said date.
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Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Lease Trust. Failure
to give notice of redemption, or any defect therein, to any Noteholder shall
not impair or affect the validity of the redemption of any other Note.
Section 10.3 Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section 10.2,
become due and payable on the Redemption Date at the Redemption Price and
(unless the Lease Trust shall default in the payment of the Redemption Price)
no interest shall accrue on the Redemption Price for any period from and
including the Redemption Date.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Lease Trustee to the Indenture Trustee
to take any action under any provision of this Indenture, the Lease Trustee
shall furnish to the Indenture Trustee (i) an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of
such certificate or opinion has read such cove-
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nant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature
and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are
based;
(iii) a statement that, in the opinion of
each such signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether, in the
opinion of each such signatory, such condition or covenant has been
complied with.
(b) (i) Prior to the deposit of any Collateral or
other property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien of this
Indenture, the Lease Trustee shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of each
Person signing such certificate as to the fair value (within 90 days of such
deposit) to the Lease Trust of the Collateral or other property or securities
to be so deposited.
(ii) Whenever the Lease Trustee is required to
furnish to the Indenture Trustee an Officers' Certificate certifying
or stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Lease Trustee shall also deliver to
the Indenture Trustee an Independent Certificate as to the same
matters, if the fair value of the property or securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current
calendar year of the Lease Trust, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 10% or
more of the Outstanding Amount of the Notes, but such a certificate
need not
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be furnished with respect to any securities so deposited, if the fair
value thereof to the Lease Trust as set forth in the related Officers'
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Whenever any property or securities
are to be released from the lien of this Indenture, the Lease Trustee
shall also furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each Person signing such
certificate as to the fair value (within 90 days of such release) of
the property or securities proposed to be released and stating that in
the opinion of such Person the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Lease Trustee is
required to furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of any signer thereof as to the
matters described in clause (iii) above, the Lease Trustee shall also
furnish to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value of the property or securities and of
all other property, or securities released from the lien of this
Indenture since the commencement of the then current calendar year, as
set forth in the certificates required by clause (iii) above and this
clause (iv), equals 10% or more of the Outstanding Amount of the
Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set
forth in the related Officers' Certificate is less than $25,000 or
less than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any
other provision of this Section 11.1, the Lease Trustee may (A)
collect, liquidate, sell or otherwise dispose of the Collateral as and
to the extent permitted or required by the Basic Documents and (B)
make cash payments out of the Series 1995-1 Payments Account as and to
the extent permitted or required by the Basic Documents.
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Section 11.2 Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Administrative Agent, the RCL Trustee or the Lease Trustee, stating
that the information with respect to such factual matters is in the possession
of the Administrative Agent, the RCL Trustee or the Lease Trustee, unless such
officer or counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Lease Trustee shall deliver, on behalf of the Lease Trust, any document as a
condition of the granting of such application, or as evidence of the Lease
Trust's compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the effective
date of such certificate or report (as the case
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may be), of the facts and opinions stated in such document shall in such case
be conditions precedent to the right of the Lease Trust to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
Section 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Lease Trustee. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Noteholders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Lease Trustee, if made in the manner provided in this Section
11.3.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the holder of any Note shall bind the holder
of every Note issued upon the registration thereof or in exchange therefor or
in lieu thereof, in respect of anything done, omitted or suffered to be done by
the Indenture Trustee or the Lease Trustee in reliance thereon, whether or not
notation of such action is made upon such Note.
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Section 11.4 Notices, etc., to Indenture Trustee, Lease
Trustee and Rating Agencies. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to or filed
with:
(a) the Indenture Trustee by any Noteholder, or by the Lease
Trustee shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office, or
(b) the Lease Trustee by the Indenture Trustee, or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage prepaid, to the Lease Trustee
addressed to: Ford Credit Auto Lease Trust 1995-1, in care of PNC
BANK, Delaware, 222 Delaware Avenue, Wilmington, Delaware 19801,
Attention: Michael B. McCarthy, or at any other address previously
furnished in writing to the Indenture Trustee by the Lease Trustee.
The Lease Trustee shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Lease Trustee or the Indenture Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested to (i) in the
case of Moody's Investors Service, at the following address: 99 Church Street,
New York, NY 10007, Attention _____________________ and (ii) in the case of
Standard & Poor's Ratings Group, at the following address: Standard & Poor's
Ratings Group, 26 Broadway (15th Floor), New York, New York 10004, Attention of
Asset Backed Surveillance Department; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
Section 11.5 Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest
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and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Noteholder shall affect the sufficiency of such notice with respect
to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event of Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
a Default or Event of Default.
Section 11.6 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that
impose duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a part of and
govern this Indenture, whether or not physically contained herein.
80
<PAGE> 88
Section 11.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 11.8 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Lease Trust shall bind its
successors and assigns, whether so expressed or not.
All agreements of the Indenture Trustee in this Indenture
shall bind its successors.
Section 11.9 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.10 Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, and the Noteholders,
and any other party secured hereunder, and any other Person with an ownership
interest in any part of the Indenture Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 11.11 Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
Section 11.12 GOVERNING LAW. THIS INDENTURE 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.
Section 11.13 Counterparts. This Indenture may be executed
in any number of counterparts, each of
81
<PAGE> 89
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 11.14 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Lease Trustee, on behalf of the Lease Trust,
accompanied by an Opinion of Counsel (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to
the effect that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of any
right or remedy granted to the Indenture Trustee under this Indenture.
Section 11.15 Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Lease Trust, the
Lease Trustee, or the Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Lease Trustee in its individual
capacity, (ii) any Lease Trust Certificateholder or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Lease Trustee in its individual capacity, any Lease Trust
Certificateholder, the Lease Trustee or the Indenture Trustee of any successor
or assign of the Indenture Trustee or the Lease Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Lease Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
For all purposes of this Indenture, in the performance of any duties or
obligations of the Lease Trust hereunder, the Lease Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Article VI,
VII and VIII of the Lease Trust Agreement.
Section 11.16 No Petition. The Indenture Trustee, by
entering into this Indenture, and each Noteholder, by accepting a Note, hereby
covenant and
82
<PAGE> 90
agree that for a period of one year and one day after payment in full of the
Series 1995-1 Certificates they will not institute against FCTT, RCL Trust
1995-1 or the Lease Trust, or join in any institution against FCTT, RCL Trust
1995-1 or the Lease Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the other Basic
Documents; provided, however, that Noteholders holding 100% of the Outstanding
Amount of the Notes may at any time institute, or join in any institution of,
any such proceeding against the Lease Trust or RCL Trust 1995-1. Nothing in
this Section 11.16 shall preclude, or be deemed to stop, the Indenture Trustee
(i) from taking any action prior to the expiration of the aforementioned one
year and one day period in (A) any case or proceeding voluntarily filed by the
Lease Trust or (B) any involuntary insolvency proceeding filed or commenced by
a Person other than the Indenture Trustee, or (ii) from commencing against the
Lease Trust or any of its properties any legal action which is not a
bankruptcy, moratorium or liquidation.
Section 11.17 Inspection. The Lease Trust agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Lease Trust's normal business hours, to examine all the
books of account, records, reports, and other papers of the Lease Trust, to
make copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Lease Trust's
affairs, finances and accounts with the Lease Trust's officers, employees, and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
[THIS SPACE LEFT INTENTIONALLY BLANK]
83
<PAGE> 91
IN WITNESS WHEREOF, the Lease Trustee, on behalf of the Lease
Trust, and the Indenture Trustee have caused this Indenture to be duly executed
by their respective officers, thereunto duly authorized, all as of the day and
year first above written.
FORD CREDIT AUTO LEASE TRUST
1995-1
By PNC BANK, DELAWARE, not in
its individual capacity but
solely as Lease Trustee,
By:
-----------------------------
Name:
Title:
CHEMICAL BANK, not in its indi-
vidual capacity but solely as
Indenture Trustee,
By:
-----------------------------
Name:
Title:
84
<PAGE> 92
[Form of Class A-1 Note] EXHIBIT A-1
REGISTERED
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ________
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Lease
Trustee or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1995-1
___% CLASS A-1 NOTE
Ford Credit Auto Lease Trust 1995-1 (the "Lease Trust"), a
trust created pursuant to a trust agreement dated as of _______ __, 1995
between The Chase Manhattan Bank (USA), not in its individual capacity but
solely as trustee of RCL Trust 1995-1, as Depositor and PNC Bank, Delaware, not
in its individual capacity but solely as trustee of the Lease Trust (the "Lease
Trustee"), for value received, hereby promises to pay to _______, or registered
assigns, upon presentation and surrender of this
A-1-1
<PAGE> 93
Note the principal sum of _____ DOLLARS (U.S. $_____) on the earlier of the
______, _____ Payment Date (the "Stated Maturity") and the Redemption Date, if
any, pursuant to Section 10.1 of the Indenture. The Lease Trust will pay
interest on this Note at the rate per annum shown above (the "Note Interest
Rate") on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made
on the preceding Payment Date). Interest on this Note will accrue for each
Payment Date from and including the 15th day of the Collection Period third
preceding the Collection Period in which such Payment Date occurs, through and
including the 14th day of the Collection Period in which such Payment Date,
occurs, or, if no interest has yet been paid, from ______, 1995. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Lease Trust with respect to this Note shall be applied first to interest due
and payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-1-2
<PAGE> 94
IN WITNESS WHEREOF, the Lease Trust has caused this instrument
to be signed, manually or in facsimile, by its Authorized Officer as of the
date set forth below.
Date: FORD CREDIT AUTO LEASE TRUST 1995-1,
by PNC BANK, DELAWARE, not in its individual
capacity but solely as Lease Trustee under
the Lease Trust Agreement,
By:
-----------------------------------------
Name:
Title:
A-1-3
<PAGE> 95
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: CHEMICAL BANK, not in its individual capacity
but solely as Indenture Trustee,
By:
------------------------------------------
Authorized Signatory
A-1-4
<PAGE> 96
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Lease Trust, designated as its "Class A-1 Notes" (herein called the "Class A-1
Notes") issued under an Indenture, dated as of ____ __, 1995 (such indenture,
as supplemented or amended, is herein called the "Indenture"), between the
Lease Trust and Chemical Bank, as trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Lease
Trust, the Indenture Trustee and the Noteholders. Also issued under the
Indenture are the __% Class A-2 Notes (the "Class A-2 Notes") and the __% Class
A-3 Notes (the "Class A-3 Notes" and together with the Class A-1 Notes and the
Class A-2 Notes, collectively, the "Notes"). The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Notes are and will be equally and ratably secured by the
Collateral as provided in the Indenture.
Under the Indenture, interest will be payable on _______ 15,
________ 15, ________ 15, and ________ 15, of each year, commencing __________
15, 1995, (or, if such 15th day is not a Business Day, the next Business Day
(the "Payment Date"), to the Person in whose name this Note is registered at
the close of business on the 14th day of the calendar month in which such
Payment Date occurs, or if Definitive Certificates have been issued, to the
Person in whose name this Note is registered on the last day of the calendar
month preceding such Payment Date) (the "Record Date"). On each Payment Date,
there shall be distributed to such Noteholder the interest accrued at the Note
Interest Rate during the preceding Interest Accrual Period on the Outstanding
Amount of this Note and the principal, if any, available to be paid on such
Payment Date in accordance with the terms of the Indenture; provided, however,
that no principal shall be paid on the Class A-2 Notes until the Class A-1
Notes have been paid in full, and no principal shall be paid on
A-1-5
<PAGE> 97
the Class A-3 Notes until the Class A-2 notes have been paid in full.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Stated Maturity and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. On such date all principal payments
on the Notes shall be made to the Noteholders of the Class A-1 Notes, the Class
A-2 Notes, and the Class A-3 Notes ratably and without preference or priority
of any kind until the Outstanding Amount of the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes have been reduced to zero.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Noteholders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a
A-1-6
<PAGE> 98
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Lease Trust, will notify the Person who was the Registered Holder hereof as of
the Record Date preceding such Payment Date by notice mailed prior to such
Payment Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Lease Trust shall pay interest on overdue installments of
interest at the Note Interest Rate plus 2% to the extent lawful.
As provided in the Indenture, the Notes shall be redeemed in
whole, but not in part, on any Payment Date on or after the date on which the
Pool Balance is less than ten percent of the initial Pool Balance and on which
the Administrative Agent exercises its option to purchase the Series 1995-1
Certificates. The Notes to be redeemed shall, following notice of redemption
as required by Section 10.2 of the Indenture become due and payable on the
Redemption Date at the Redemption Price and (unless the Issuer shall default in
the payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period from and including the Redemption Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Lease Trustee pursuant to the Indenture,
(i) duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Indenture Trustee duly executed by, the Noteholder of
this Note or his attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar which requirements include membership or participation in
Securities Transfer Agent's Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the Exchange
Act, and (ii) accompanied by such other documents as the Indenture Trustee
A-1-7
<PAGE> 99
may require, and thereupon one or more new Notes of authorized denominations
and in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Lease Trust, the Lease Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee or the Lease Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Lease Trust or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Lease Trustee in its individual
capacity, any holder of a beneficial interest in the Lease Trust, the Lease
Trustee or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Lease Trustee in its individual capacity, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law,
for any unpaid consideration for stock, unpaid capital contribution or failure
to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note covenants and agrees
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Issuer, Ford Credit Leasing, FCTT or the
Depositor, or join in any institution against the Issuer, Ford Credit Leasing
or the Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents; provided, however, that Noteholders
holding 100% of the Outstanding
A-1-8
<PAGE> 100
Amount of the Notes may institute or join in any institution of any such
proceedings.
Prior to the due presentment for registration of transfer of
this Note, the Lease Trustee, the Indenture Trustee and any agent of the Lease
Trustee or the Indenture Trustee may treat the Person in whose name this Note
(as of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Note be overdue, and neither the Lease Trustee, the Indenture Trustee
nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Lease Trust and the rights of the Noteholders under the
Indenture at any time by the Lease Trust with the consent of Noteholders
representing not less than a majority of the Outstanding Amount of the Notes.
The Indenture also contains provisions permitting Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
Noteholders, to waive compliance by the Lease Trust with certain provisions of
the Indenture and certain past Defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
the Noteholders.
The term "Lease Trust" as used in this Note includes any
successor to the Lease Trust under the Indenture.
The Lease Trust is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders.
A-1-9
<PAGE> 101
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
THIS NOTE AND THE INDENTURE 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 AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Lease
Trust, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place, and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither PNC Bank, Delaware in its
individual capacity, any owner of a beneficial interest in the Lease Trust, nor
any of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Lease Trustee for the sole purposes of binding the interests of the
Lease Trustee in the assets of the Lease Trust. The Noteholder of this Note by
the acceptance hereof agrees that except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Lease Trust for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
A-1-10
<PAGE> 102
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
___________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: (1)
------------------------------ ---------------------------------
Signature Guaranteed:
---------------------------------
- --------------------------------------
- --------------------
(1) NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-1-11
<PAGE> 103
[Form of Class A-2 Note] EXHIBIT A-2
REGISTERED
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ________
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Lease
Trustee or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1995-1
___% CLASS A-2 NOTE
Ford Credit Auto Lease Trust 1995-1 (the "Lease Trust"), a
trust created pursuant to a trust agreement dated as of _______ __, 1995
between The Chase Manhattan Bank (USA), not in its individual capacity but
solely as trustee of RCL Trust 1995-1, as Depositor and PNC Bank, Delaware, not
in its individual capacity but solely as trustee of the Lease Trust (the "Lease
Trustee"), for value received, hereby promises to pay to ______, or registered
assigns, upon presentation and surrender of this
A-2-1
<PAGE> 104
Note the principal sum of _____ DOLLARS (U.S.$______) on the earlier of the
______, _____ Payment Date (the "Stated Maturity") and the Redemption Date, if
any, pursuant to Section 10.1 of the Indenture. The Lease Trust will pay
interest on this Note at the rate per annum shown above (the "Note Interest
Rate") on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made
on the preceding Payment Date). Interest on this Note will accrue for each
Payment Date from and including the 15th day of the Collection Period third
preceding the Collection Period in which such Payment Date occurs, through and
including the 14th day of the Collection Period in which such Payment Date
occurs, or, if no interest has yet been paid, from ______, 1995. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Lease Trust with respect to this Note shall be applied first to interest due
and payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-2-2
<PAGE> 105
IN WITNESS WHEREOF, the Lease Trust has caused this instrument
to be signed, manually or in facsimile, by its Authorized Officer as of the
date set forth below.
Date: FORD CREDIT AUTO LEASE TRUST 1995-1,
by PNC BANK, DELAWARE, not in its individual capacity
but solely as Lease Trustee under the Lease
Trust Agreement,
By:
--------------------------------------------------
Name:
Title:
A-2-3
<PAGE> 106
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: CHEMICAL BANK, not in its individual capacity
but solely as Indenture Trustee,
By:
------------------------------------------
Authorized Signatory
A-2-4
<PAGE> 107
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Lease Trust, designated as its "Class A-2 Notes" (herein called the "Class A-2
Notes") issued under an Indenture, dated as of ____ __, 1995 (such indenture,
as supplemented or amended, is herein called the "Indenture"), between the
Lease Trust and Chemical Bank, as trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Lease
Trust, the Indenture Trustee and the Noteholders. Also issued under the
Indenture are the _% Class A-1 Notes (the "Class A-1 Notes"), the ____% Class
A-3 Notes (the "Class A-3 Notes" and together with the Class A-1 Notes and the
Class A-2 Notes, collectively, the "Notes"). The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Notes are and will be equally and ratably secured by the
Collateral as provided in the Indenture.
Under the Indenture, interest will be payable on _______ 15,
________ 15, ________ 15, and ________ 15, of each year, commencing __________
15, 1995, (or, if such 15th day is not a Business Day, the next Business Day
(the "Payment Date"), to the Person in whose name this Note is registered at
the close of business on the 14th day of the calendar month in which such Date
occurs, or if Definitive Certificates have been issued, to the Person in whose
name this Note is registered on the last day of the calendar month preceding
such Payment Date) (the "Record Date"). On each Payment Date, there shall be
distributed to such Noteholder the interest accrued at the Note Interest Rate
during the preceding Interest Accrual Period on the Outstanding Amount of this
Note and the principal, if any, available to be paid on such Payment Date in
accordance with the terms of the Indenture; provided, however, that no
principal shall be paid on the Class A-2 Notes until the Class A-1 Notes have
been paid in full, and no principal shall be paid on the
A-2-5
<PAGE> 108
Class A-3 Notes until the Class A-2 notes have been paid in full.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Stated Maturity and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. On such date all principal payments
on the Notes shall be made to the Noteholders of the Class A-1 Notes, the Class
A-2 Notes, and the Class A-3 Notes ratably and without preference or priority
of any kind until the Outstanding Amount of the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes have been reduced to zero.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Noteholders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a
A-2-6
<PAGE> 109
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Lease Trust, will notify the Person who was the Registered Holder hereof as of
the Record Date preceding such Payment Date by notice mailed prior to such
Payment Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Lease Trust shall pay interest on overdue installments of
interest at the Note Interest Rate plus 2% to the extent lawful.
As provided in the Indenture, the Notes shall be redeemed in
whole, but not in part, on any Payment Date on or after the date on which the
Pool Balance is less than ten percent of the initial Pool Balance and on which
the Administrative Agent exercises its option to purchase the Series 1995-1
Certificates. The Notes to be redeemed shall, following notice of redemption
as required by Section 10.2 of the Indenture become due and payable on the
Redemption Date at the Redemption Price and (unless the Issuer shall default in
the payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period from and including the Redemption Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Lease Trustee pursuant to the Indenture,
(i) duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Indenture Trustee duly executed by, the Noteholder of
this Note or his attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar which requirements include membership or participation in
Securities Transfer Agent's Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the Exchange
Act, and (ii) accompanied by such other documents as the Indenture Trustee
A-2-7
<PAGE> 110
may require, and thereupon one or more new Notes of authorized denominations
and in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Lease Trust, the Lease Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee or the Lease Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Lease Trust or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Lease Trustee in its individual
capacity, any holder of a beneficial interest in the Lease Trust, the Lease
Trustee or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Lease Trustee in its individual capacity, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law,
for any unpaid consideration for stock, unpaid capital contribution or failure
to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note covenants and agrees
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Issuer, Ford Credit Leasing, FCTT or the
Depositor, or join in any institution against the Issuer, Ford Credit Leasing
or the Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents; provided, however, that Noteholders
holding 100% of the Outstanding
A-2-8
<PAGE> 111
Amount of the Notes may institute or join in any institution of any such
proceedings.
Prior to the due presentment for registration of transfer of
this Note, the Lease Trustee, the Indenture Trustee and any agent of the Lease
Trustee or the Indenture Trustee may treat the Person in whose name this Note
(as of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Note be overdue, and neither the Lease Trustee, the Indenture Trustee
nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Lease Trust and the rights of the Noteholders under the
Indenture at any time by the Lease Trust with the consent of Noteholders
representing not less than a majority of the Outstanding Amount of the Notes.
The Indenture also contains provisions permitting Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
Noteholders, to waive compliance by the Lease Trust with certain provisions of
the Indenture and certain past Defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
the Noteholders.
The term "Lease Trust" as used in this Note includes any
successor to the Lease Trust under the Indenture.
The Lease Trust is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders.
A-2-9
<PAGE> 112
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
THIS NOTE AND THE INDENTURE 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 AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Lease
Trust, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place, and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither PNC Bank, Delaware in its
individual capacity, any owner of a beneficial interest in the Lease Trust, nor
any of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Lease Trustee for the sole purposes of binding the interests of the
Lease Trustee in the assets of the Lease Trust. The Noteholder of this Note by
the acceptance hereof agrees that except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Lease Trust for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
A-2-10
<PAGE> 113
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number
of assignee
____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: (2)
---------------------- ------------------------------------
Signature Guaranteed:
------------------------------------
- ----------------------------
- --------------------
(2) NOTE: The signature to this assignment must correspond with
the name of the registered owner as it appears on the face
of the within Note in every particular, without alteration,
enlargement or any change whatsoever.
A-2-11
<PAGE> 114
[Form of Class A-3 Note] EXHIBIT A-3
REGISTERED
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ________
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Lease
Trustee or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1995-1
___% CLASS A-3 NOTE
Ford Credit Auto Lease Trust 1995-1 (the "Lease Trust"), a
trust created pursuant to a trust agreement dated as of _______ __, 1995
between The Chase Manhattan Bank (USA), not in its individual capacity but
solely as trustee of RCL Trust 1995-1, as Depositor and PNC Bank, Delaware, not
in its individual capacity but solely as trustee of the Lease Trust (the "Lease
Trustee"), for value received, hereby promises to pay to ________, or registered
assigns, upon presentation and surrender of this
A-3-1
<PAGE> 115
Note the principal sum of _____ DOLLARS (U.S.$_____) on the earlier of the
______, _____ Payment Date (the "Stated Maturity") and the Redemption Date, if
any, pursuant to Section 10.1 of the Indenture. The Lease Trust will pay
interest on this Note at the rate per annum shown above (the "Note Interest
Rate") on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made
on the preceding Payment Date). Interest on this Note will accrue for each
Payment Date from and including the 15th day of the Collection Period third
preceding the Collection Period in which such Payment Date occurs, through and
including the 14th day of the Collection Period in which such Payment Date
occurs or, if no interest has yet been paid, from ______, 1995. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Lease Trust with respect to this Note shall be applied first to interest due
and payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-3-2
<PAGE> 116
IN WITNESS WHEREOF, the Lease Trust has caused this instrument
to be signed, manually or in facsimile, by its Authorized Officer as of the
date set forth below.
Date: FORD CREDIT AUTO LEASE TRUST 1995-1, by PNC BANK,
DELAWARE, not in its individual capacity but solely
as Lease Trustee under the Lease Trust Agreement,
By:
-----------------------------------------------
Name:
Title:
A-3-3
<PAGE> 117
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: CHEMICAL BANK, not in its individual capacity
but solely as Indenture Trustee,
By:
-----------------------------------------
Authorized Signatory
A-3-4
<PAGE> 118
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Lease Trust, designated as its "Class A-3 Notes" (herein called the "Class A-3
Notes") issued under an Indenture, dated as of ____ __, 1995 (such indenture,
as supplemented or amended, is herein called the "Indenture"), between the
Lease Trust and Chemical Bank, as trustee (the "Indenture Trustee", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Lease
Trust, the Indenture Trustee and the Noteholders. Also issued under the
Indenture are the _% Class A-1 Notes (the "Class A-1 Notes") and the _% Class
A-2 Notes (the "Class A-2 Notes") and together with the Class A-1 Notes and
the Class A-2 Note, collectively, the "Notes"). The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Notes are and will be equally and ratably secured by the
Collateral as provided in the Indenture.
Under the Indenture, interest will be payable on _______ 15,
________ 15, ________ 15, and ________ 15, of each year, commencing __________
15, 1995, (or, if such 15th day is not a Business Day, the next Business Day
(the "Payment Date"), to the Person in whose name this Note is registered at
the close of business on the 14th day of the calendar month in which such Date
occurs, or if Definitive Certificates have been issued, to the Person in whose
name this Note is registered on the last day of the calendar month preceding
such Payment Date) (the "Record Date"). On each Payment Date, there shall be
distributed to such Noteholder the interest accrued at the Note Interest Rate
during the preceding Interest Accrual Period on the Outstanding Amount of this
Note and the principal, if any, available to be paid on such Payment Date in
accordance with the terms of the Indenture; provided, however, that no
principal shall be paid on the Class A-2 Notes until the Class A-1 Notes have
been paid in full, and no principal shall be paid on the
A-3-5
<PAGE> 119
Class A-3 Notes until the Class A-2 notes have been paid in full.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Stated Maturity and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. On such date all principal payments
on the Notes shall be made to the Noteholders of the Class A-1 Notes, the Class
A-2 Notes, and the Class A-3 Notes ratably and without preference or priority
of any kind until the Outstanding Amount of the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes have been reduced to zero.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Noteholders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a
A-3-6
<PAGE> 120
Payment Date, then the Indenture Trustee, in the name of and on behalf of the
Lease Trust, will notify the Person who was the Registered Holder hereof as of
the Record Date preceding such Payment Date by notice mailed prior to such
Payment Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Lease Trust shall pay interest on overdue installments of
interest at the Note Interest Rate plus 2% to the extent lawful.
As provided in the Indenture, the Notes shall be redeemed in
whole, but not in part, on any Payment Date on or after the date on which the
Pool Balance is less than ten percent of the initial Pool Balance and on which
the Administrative Agent exercises its option to purchase the Series 1995-1
Certificates. The Notes to be redeemed shall, following notice of redemption
as required by Section 10.2 of the Indenture become due and payable on the
Redemption Date at the Redemption Price and (unless the Issuer shall default in
the payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period from and including the Redemption Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Lease Trustee pursuant to the Indenture,
(i) duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Indenture Trustee duly executed by, the Noteholder of
this Note or his attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar which requirements include membership or participation in
Securities Transfer Agent's Medallion Program ("Stamp") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, Stamp, all in accordance with the Exchange
Act, and (ii) accompanied by such other documents as the Indenture Trustee
A-3-7
<PAGE> 121
may require, and thereupon one or more new Notes of authorized denominations
and in the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Lease Trust, the Lease Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee or the Lease Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Lease Trust or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Lease Trustee in its individual
capacity, any holder of a beneficial interest in the Lease Trust, the Lease
Trustee or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Lease Trustee in its individual capacity, except as any such
Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law,
for any unpaid consideration for stock, unpaid capital contribution or failure
to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note covenants and agrees
that by accepting the benefits of the Indenture that such Noteholder will not
at any time institute against the Issuer, Ford Credit Leasing, FCTT or the
Depositor, or join in any institution against the Issuer, Ford Credit Leasing
or the Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents; provided, however, that Noteholders
holding 100% of the Outstanding
A-3-8
<PAGE> 122
Amount of the Notes may institute or join in any institution of such
proceedings.
Prior to the due presentment for registration of transfer of
this Note, the Lease Trustee, the Indenture Trustee and any agent of the Lease
Trustee or the Indenture Trustee may treat the Person in whose name this Note
(as of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Note be overdue, and neither the Lease Trustee, the Indenture Trustee
nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Lease Trust and the rights of the Noteholders under the
Indenture at any time by the Lease Trust with the consent of Noteholders
representing not less than a majority of the Outstanding Amount of the Notes.
The Indenture also contains provisions permitting Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
Noteholders, to waive compliance by the Lease Trust with certain provisions of
the Indenture and certain past Defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
the Noteholders.
The term "Lease Trust" as used in this Note includes any
successor to the Lease Trust under the Indenture.
The Lease Trust is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders.
A-3-9
<PAGE> 123
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
THIS NOTE AND THE INDENTURE 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 AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Lease
Trust, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place, and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither PNC Bank, Delaware in its
individual capacity, any owner of a beneficial interest in the Lease Trust, nor
any of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Lease Trustee for the sole purposes of binding the interests of the
Lease Trustee in the assets of the Lease Trust. The Noteholder of this Note by
the acceptance hereof agrees that except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Lease Trust for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
A-3-10
<PAGE> 124
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: (3)
--------------------- ---------------------------------------
Signature Guaranteed:
---------------------------------------
- ---------------------------
(3) NOTE: The signature to this assignment must correspond with
the name of the registered owner as it appears on the face
of the within Note in every particular, without alteration,
enlargement or any change whatsoever.
A-3-11
<PAGE> 1
EXHIBIT 4.6
LIMITED RV GUARANTY
1995-1
This LIMITED RV GUARANTY 1995-1 (this "Guaranty") is dated as
of __________, 1995 is made by Ford Motor Credit Company, a Delaware
corporation (in its individual capacity, "Ford Credit" and in its capacity as
guarantor hereunder, the "Guarantor"), in favor of PNC Bank, Delaware, a
Delaware banking corporation, not in its individual capacity but solely as
trustee with respect to Ford Credit Auto Lease Trust 1995-1 (in such capacity,
the "Lease Trustee"). Capitalized terms used herein but not otherwise defined
herein have the meanings assigned to such terms in Appendix A attached hereto.
WHEREAS, it is a condition precedent to the Asset Contribution
Agreement that the Guarantor execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the foregoing and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
Section 1. Scope of Guaranty. Subject to the terms and
conditions hereof, as a limited guaranty of the Residual Value of the Series
1995-1 Leased Vehicles, the Guarantor hereby absolutely and irrevocably agrees
to pay to the holder of this Guaranty on each Payment Date the full amount of
any RV Guaranty Draw Amount up to, but not exceeding, the Available RV Guaranty
Amount as of such Payment Date.
Section 2. Assignment to Indenture Trustee. The Guarantor
acknowledges the assignment of this Guaranty, pursuant to the terms of the
Indenture, by the Lease Trustee to the Indenture Trustee, such assignment to be
in full force and effect until such time as the lien of the Indenture is
released. All references herein to the "holder" of this Guaranty shall mean
the Indenture Trustee, until such time as the lien of the Indenture is
released, and thereafter shall mean the Lease Trustee.
Section 3. Expenses. The Guarantor agrees to pay upon demand
all expenses and charges (including, without limitation, court costs and
reasonable attorney's fees) paid or incurred by the Lease Trustee and the
Indenture Trustee relating to or arising out of, the enforcement of, and
preservation of the rights of the Lease Trustee and the Indenture Trustee under
this Guaranty. All payments made by the Guarantor hereunder
<PAGE> 2
shall be made to the holder of this Guaranty in lawful money of the United
States of America in immediately available funds.
Section 4. No Waiver; Exercise of Rights and Remedies. No
delay on the part of the holder of this Guaranty in the exercise of any right
or remedy arising under this Guaranty shall operate as a waiver thereof, and no
single or partial exercise by the holder of this Guaranty of any such right or
remedy shall prelude any further exercise thereof. No modification or waiver
of any of the provisions of this Guaranty shall be binding upon the Lease
Trustee (or the Indenture Trustee as the assignee of the Lease Trustee) except
as expressly set forth in a writing duly executed and delivered by the Lease
Trustee (and the Indenture Trustee so long as the lien of the Indenture is
outstanding).
Section 5. Termination. Unless otherwise consented to in
writing by the Lease Trustee (and the Indenture Trustee so long as the lien of
the Indenture is outstanding) and subject to Section 4, this Guaranty shall
continue in full force and effect and may not be terminated or otherwise
revoked until the earlier to occur of the following events (and shall then
terminate automatically upon such occurrence): (i) the Available RV Guaranty
Amount becomes less than or equal to zero and (ii) the Outstanding Amount of
the Notes and the Aggregate Certificate Balance of the Lease Trust Certificates
have each been reduced to zero. In connection with such termination, the Lease
Trustee (and the Indenture Trustee so long as the lien of the Indenture is
outstanding) shall provide such documents of release or discharge as the
Guarantor may reasonably request.
Section 6. Guaranty Unconditional; No right of Set-Off. (a)
The Guarantor's obligations under this Guaranty constitute full recourse
obligations of the Guarantor enforceable against it to the full extent of its
assets and property and shall be unconditional and irrevocable, irrespective
of:
(i) the absence of any attempt by or on
behalf of the Lease Trustee or the Indenture Trustee to collect, or
take any other action to enforce, all or any part of obligation to it
pursuant to any Basic Document;
(ii) the election of any remedy by or on
behalf of the Lease Trustee or the
2
<PAGE> 3
Indenture Trustee with respect to or pursuant to any Basic Document;
(iii) the waiver, consent, extension,
forbearance or granting of any indulgence by or on behalf of the Lease
Trustee or the Indenture Trustee with respect to any provision of the
Basic Documents; or
(iv) any other occurrence or circumstance
whatsoever, whether similar or dissimilar to the foregoing, that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of the Guarantor or that might otherwise limit recourse
against the Guarantor.
(b) The Guarantor hereby waives any right of set-off
it may otherwise have against the Lease Trustee or the Indenture Trustee or any
other Person with respect to its obligations under this Guaranty.
Section 7. Notices. All demands, notices and communications
upon or to the Guarantor 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 following address (or
at such other address as shall be designated by the Guarantor in a written
notice to the Lease Trustee and, so long as the lien of the Indenture is
outstanding, the Indenture Trustee):
Ford Motor Credit Company
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
Section 8. Severability. If any one or more of the
covenants, agreements, provisions or terms of this Guaranty 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 Guaranty and shall in no way affect the validity or
enforceability of the other provisions of this Guaranty.
3
<PAGE> 4
Section 9. Counterparts. This Guaranty 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. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns, all
as herein provided. This Guaranty may not be assigned by Ford Credit. Any
request, notice, direction, consent, waiver or other instrument or action by a
party hereto shall bind the successors and assigns of such party.
Section 11. Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 12. GOVERNING LAW. THIS GUARANTY 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.
4
<PAGE> 5
IN WITNESS WHEREOF, FORD MOTOR CREDIT COMPANY, as Guarantor,
has caused this Limited RV Guaranty 1995-1 to be duly executed by an officer
hereunto duly authorized, as of the day and year first above written.
FORD MOTOR CREDIT COMPANY,
as Guarantor
By: ______________________
Name:
Title:
As Acknowledged and Accepted:
PNC BANK, DELAWARE, as trustee
of FORD CREDIT AUTO LEASE TRUST 1995-1
By: ________________________
Name:
Title:
CHEMICAL BANK, as trustee on
behalf of the Noteholders, as assignee
By: _________________________
Name:
Title:
5
<PAGE> 1
EXHIBIT 10.1
AMENDED AND RESTATED TRUST AGREEMENT
dated as of January 31, 1994
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.
As Grantors and initial Beneficiaries
and
COMERICA BANK,
as trustee
<PAGE> 2
FCTT AGREEMENT
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ORGANIZATION . . . . . . . . . . . . . . . . 2
Section 2.1 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.2 Purposes and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.3 Appointment of Comerica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.4 FCTT Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.5 Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.6 Liability of the Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.7 Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.8 Representations and Warranties of the Grantors . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
THE CERTIFICATES . . . . . . . . . . . . . . . 6
Section 3.1 Issuance of Exchangeable Beneficial Certificates . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.2 Form of Exchangeable Beneficial Certificates . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.3 Issuance and Form of Specified Beneficial Certificates . . . . . . . . . . . . . . . . . . . 7
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . 7
Section 3.5 Persons Deemed Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.6 Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . . . . 8
Section 3.7 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
ADDITION OF FCTT ASSETS; ADMINISTRATIVE
AGENT; SERIES SPECIFIED ASSETS . . . . . . . . . . . 9
Section 4.1 Additional Contributions to FCTT Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.2 Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.3 Designation of Series Specified Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V
APPLICATION OF FCTT FUNDS; CERTAIN DUTIES . . . . . . . . . 13
Section 5.1 Establishment of FCTT Collection Account . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.2 Application of FCTT Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.3 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.4 Accounting and Reports to Beneficiaries, the Internal Revenue Service and Others . . . . . . 17
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VI
COMERICA . . . . . . . . . . . . . . . . . 18
Section 6.1 Duties of Comerica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.2 Rights of Comerica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.3 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.4 Action upon Instruction by Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.5 Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.6 Representations and Warranties of Comerica . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.7 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.8 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.9 Resignation or Removal of Comerica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.10 Merger or Consolidation of Comerica . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.11 Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.12 Eligibility Requirements for Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VII
TERMINATION OF TRUST AGREEMENT . . . . . . . . . . . 28
Section 7.1 Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII
AMENDMENTS . . . . . . . . . . . . . . . . 29
Section 8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . . . 29
Section 9.1 No Legal Title to FCTT Assets; Direction of Comerica Actions . . . . . . . . . . . . . . . . 29
Section 9.2 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.7 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.8 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
EXHIBITS
Exhibit A Form of Exchangeable Beneficial Certificate
Exhibit B Form of Specified Beneficial Certificate
ii
<PAGE> 4
AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as of January
31, 1994 (as modified, supplemented or amended from time to time, the
"Agreement") among (i) FORD MOTOR CREDIT COMPANY, a Delaware corporation
("Ford Credit") as a Grantor and as an initial Beneficiary, (ii) FORD CREDIT
LEASING COMPANY, INC., a Delaware corporation ("Ford Credit Leasing") as a
Grantor and an initial Beneficiary and (iii) COMERICA BANK, a Michigan banking
corporation, as trustee under this Agreement (in such capacity, together with
any successor or permitted assign, "Comerica").
WHEREAS, the parties hereto intend to amend and restate, on the terms
and conditions set forth herein, that certain Trust Agreement, dated as of
January 31, 1994, among Ford Credit, Ford Credit Leasing and Comerica.
NOW, THEREFORE, Ford Credit, Ford Credit Leasing and Comerica hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in Appendix I,
attached hereto. All references herein to "this Agreement" are to this Trust
Agreement, and all references herein to Articles, Sections and subsections are
to Articles, Sections and subsections of this Agreement unless otherwise
specified.
<PAGE> 5
ARTICLE II
ORGANIZATION
Section 2.1 Office. The office of FCTT shall be in care of Comerica at
the Comerica Office or at such other address as Comerica may designate by
written notice to the Grantors and the Beneficiaries.
Section 2.2 Purposes and Powers. The purpose of FCTT is to engage
solely in the following activities, all in accordance with the terms of this
Agreement:
(a) to acquire from Dealers identified by the Grantors certain Leased
Vehicles and Leases, and to conserve and hold such Leases, Leased Vehicles
and the other FCTT Assets, all in accordance with terms of this Agreement
and in accordance with the Administrative Agency Agreement;
(b) in exchange for cash or other assets, to issue from time to time
Exchangeable Beneficial Certificates and Specified Beneficial Certificates
representing the respective undivided or divided interests of the
Beneficiaries in FCTT and the FCTT Assets in accordance with the terms of
this Agreement;
(c) to perform its obligations under agreements, instruments or other
documents to which it is to be a party;
(d) to engage in those activities, including executing agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(e) to engage in such other activities as may be required in connection
with conservation of the FCTT Assets and the making of distributions to the
Holders of Certificates.
Section 2.3 Appointment of Comerica. The Grantors hereby appoint
Comerica Bank as trustee of FCTT effective as of the date hereof, to have all
the rights, powers and duties set forth herein.
2
<PAGE> 6
Section 2.4 FCTT Assets. (a) On the date on which FCTT was
established, Ford Credit as a Grantor sold, assigned, transferred, conveyed and
set over to Comerica, as of the date thereof, the sum of $9800. On such date,
Ford Credit Leasing as a Grantor sold, assigned, transferred, conveyed and set
over to Comerica, as of the date thereof, the sum of $200. Comerica has
acknowledged receipt in trust from each Grantor, as of the date thereof, of the
foregoing contributions, which constituted the initial FCTT Assets. The
Grantors have paid the organizational expenses of FCTT and, prior to the
issuance of any Series of Specified Beneficial Certificates, shall either
continue to pay the organizational expenses of FCTT as they may arise or shall,
upon the request of Comerica, promptly reimburse Comerica for any such expenses
paid by Comerica.
(b) As set forth in Article IV, the Grantors shall sell, assign, convey
and set over to FCTT from time to time additional cash or other assets in
proportion to their respective percentage beneficial interests represented by
the Exchangeable Beneficial Certificates. On any date, the Exchangeable
Beneficial Certificate held by Ford Credit shall represent a 98% beneficial
interest in the Non-Specified Assets and the Exchangeable Beneficial
Certificate held by Ford Credit Leasing shall represent a 2% beneficial
interest in the Non-Specified Assets.
Section 2.5 Declaration of Trust. The trust created by this Agreement
shall be known as "Ford Credit Titling Trust." Comerica hereby declares that
it shall hold all FCTT Assets conveyed or to be conveyed to FCTT, including all
monies and proceeds of such FCTT Assets, in trust for the benefit of the
Beneficiaries. Effective as of the date hereof, Comerica shall have all
rights, powers and duties set forth herein with respect to accomplishing the
purposes of FCTT.
Section 2.6 Liability of the Beneficiaries. (a) Each Holder of an
Exchangeable Beneficial Certificate shall be severally liable to third parties
and shall indemnify, defend and hold harmless Comerica, including its officers,
directors, employees and agents, for all losses, claims, damages, liabilities
and expenses ("Liabilities") incurred in connection with the Non-Specified
Assets; (b) each Holder of a Series of Specified Beneficial Certificate shall
be severally liable to third
3
<PAGE> 7
parties and shall indemnify, defend and hold harmless Comerica, including its
officers, directors, employees and agents, for all Liabilities incurred in
connection with the related Series Specified Assets; (c) no Holder of a Series
of Specified Beneficial Certificates and none of the related Series Specified
Assets shall be subject to Liabilities arising from or with respect to
Comerica, any Non-Specified Assets or the Series Specified Assets relating to
any other Series; (d) Ford Credit and Ford Credit Leasing shall be liable (to
the extent necessary after giving effect to clauses (a), (b) and (c) above)
directly to third parties and shall indemnify, defend and hold harmless
Comerica, including its officers, directors, employees and agents, for all
Liabilities of FCTT to the extent that Ford Credit and Ford Credit Leasing
would each be liable if FCTT was a partnership under the Delaware Revised
Uniform Limited Partnership Act and Ford Credit and Ford Credit Leasing were
each a general partner thereof; and (e) Comerica and its successors, assigns,
agents and servants shall be indemnified, defended and held harmless with
respect to any Liabilities arising out of or incurred in connection with
Comerica's acceptance or performance of the trusts and duties contained in this
Agreement and in the Administrative Agency Agreement, as set forth in clauses
(a), (b), (c) and (d) above; provided, however, that in no event shall Comerica
be indemnified or held harmless for any Liabilities incurred solely (i) by
reason of Comerica's willful malfeasance, bad faith or negligence or (ii) by
reason of Comerica's breach of its representations and warranties set forth in
Section 6.6.
Section 2.7 Title to Trust Property. Legal title to all the FCTT
Assets shall be vested at all times in FCTT or Comerica, or, if required by
applicable law, a co-trustee and/or a separate individual trustee, as the case
may be. Comerica or any such co-trustee and/or separate individual trustee
shall at all times hold the FCTT Assets on behalf of the related Beneficiaries.
Section 2.8 Representations and Warranties of the Grantors. Ford
Credit and Ford Credit Leasing as Grantors hereunder hereby each represent and
warrant (each only as to itself) to Comerica that:
(a) it has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such prop-
4
<PAGE> 8
erties 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 FCTT
Assets to be deposited with Comerica as part of FCTT 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) 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 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 executed and delivered by it and
constitutes the legal, valid and binding agreement of it, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
5
<PAGE> 9
ARTICLE III
THE CERTIFICATES
Section 3.1 Issuance of Exchangeable Beneficial Certificates. (a) Upon
the formation of FCTT by the contribution by the Grantors pursuant to Section
2.4(a), Comerica issued to each Beneficiary a certificate representing such
Beneficiary's interest in FCTT. As of the date hereof, such certificates are
deemed to be Exchangeable Beneficial Certificates and shall be exchanged for
Exchangeable Beneficial Certificates in substantially the form attached hereto
as Exhibit A. An Exchangeable Beneficial Certificate may not be transferred or
assigned by the Holder thereof; provided, that the interest in FCTT represented
by an Exchangeable Beneficial Certificate may be reduced by and to the extent
that Specified Beneficial Certificates are issued in accordance with Sections
3.3 and 4.3.
(b) Upon the issuance of Specified Beneficial Certificates, the
beneficial interest in FCTT and the FCTT Assets represented by the Exchangeable
Beneficial Certificates shall be reduced by the beneficial interest in FCTT and
the related Series Specified Assets represented by such Specified Beneficial
Certificates.
Section 3.2 Form of Exchangeable Beneficial Certificates. (a) The
Exchangeable Beneficial Certificates shall be executed on behalf of FCTT by
manual or facsimile signature of a Responsible Officer. Exchangeable
Beneficial Certificates bearing the manual or facsimile signatures of
individuals who were authorized to sign on behalf of FCTT at the time when such
signatures were affixed, shall be valid and binding representations of
interests in FCTT notwithstanding that any or all of such individuals shall
have ceased to be so authorized prior to or did not hold such offices at the
date of authentication and delivery of such Exchangeable Beneficial
Certificates.
(b) The Exchangeable Beneficial Certificates may be typewritten or
produced by any other method, all as determined by the Responsible Officer
executing such Exchangeable Beneficial Certificates, as evidenced by their
execution of such Exchangeable Beneficial Certificates.
6
<PAGE> 10
(c) The terms of the Exchangeable Beneficial Certificates set forth in
Exhibit A shall form part of this Agreement.
Section 3.3 Issuance and Form of Specified Beneficial Certificates.
(a) Specified Beneficial Certificates shall be issued on each Series Issue
Date in accordance with the provisions of Section 4.3.
(b) Each Specified Beneficial Certificate shall be substantially in the
form set forth in Exhibit B, subject to modifications as required by this
Agreement or permitted in any Supplement. Each Specified Beneficial
Certificate shall be executed on behalf of FCTT by manual or facsimile
signature of a Responsible Officer. Each Specified Beneficial Certificate
bearing the manual or facsimile signatures of individuals who were authorized
to sign on behalf of FCTT at the time when such signatures were affixed, shall
be valid and binding representations of interests in FCTT notwithstanding
that any or all of such individuals shall have ceased to be so authorized prior
to or did not hold such offices at the date of authentication and delivery of
such Specified Beneficial Certificate.
(c) Specified Beneficial Certificates may be typewritten or produced by
any other method, all as determined by the Responsible Officer executing such
Specified Beneficial Certificates, as evidenced by their execution of such
Specified Beneficial Certificates.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to Comerica, or Comerica receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to Comerica such security or indemnity
as may be required by it to indemnify and hold it harmless, then Comerica shall
execute on behalf of FCTT and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a replacement Certificate of
the same class and proportionate beneficial interest in FCTT and the
Non-Specified Assets or any Series Specified Assets, as the case may be. Such
substitute Certificate shall constitute for all purposes a substitute for the
original Certificate, which original Certificate shall be deemed
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canceled and the books and records of Comerica shall indicate such
cancellation.
Section 3.5 Persons Deemed Holders. Prior to due presentation of a
Specified Beneficial Certificate for registration of transfer, Comerica shall
regard the Person in whose name such Specified Beneficial Certificate shall be
registered as the Holder of such Certificate for the purpose of receiving
distributions pursuant to Article V and for all other purposes whatsoever;
provided, that such Holder may enter into agreements with any Person with
respect to the exercise of any of its rights as Holder of such Specified
Beneficial Certificate.
Section 3.6 Registration of Transfer and Exchange of Certificates. (a)
The FCTT Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.7, a FCTT Register in which, subject to such
reasonable regulations as it may prescribe, Comerica shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. Comerica shall be the initial FCTT Registrar.
(b) Upon surrender for registration of transfer of any Certificate
(together with, in the case of Exchangeable Beneficial Certificates, evidence
satisfactory to Comerica of the consent of all other Holders of Exchangeable
Beneficial Certificates), at the Comerica Office, a Responsible Officer shall
execute, authenticate, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by Comerica.
(c) Every Specified Beneficial Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to Comerica and the FCTT Registrar
duly executed by the Holder or his attorney duly authorized in writing. Each
Specified Beneficial Certificate surrendered for registration of transfer and
exchange shall be cancelled and subsequently disposed of by Comerica.
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(d) No service charge shall be made for any registration of transfer or
exchange of Specified Beneficial Certificates, but Comerica may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Specified Beneficial
Certificates.
Section 3.7 Maintenance of Office or Agency. Comerica shall maintain
in Michigan an office or offices or agency or agencies where Specified
Beneficial Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon Comerica in respect of the
Specified Beneficial Certificates and this Agreement may be served. Comerica
initially designates the Comerica Office as its office for such purposes. The
Comerica shall give prompt written notice to the Administrative Agent and to
the Holders of Specified Beneficial Certificates of any change in the location
of the FCTT Register or the Comerica Office.
ARTICLE IV
ADDITION OF FCTT ASSETS; ADMINISTRATIVE
AGENT; SERIES SPECIFIED ASSETS
Section 4.1 Additional Contributions to FCTT Assets. (a) The parties
hereto contemplate that the Grantors will make additional contributions of
assets to FCTT from time to time.
(b) On an ongoing basis Ford Credit and Ford Credit Leasing shall
contribute cash or other assets to FCTT such that Ford Credit has a capital
investment in the Non-Specified Assets equal to a 98% beneficial interest in
the portion of FCTT comprised of the Non-Specified Assets represented by its
Exchangeable Beneficial Certificate and Ford Credit Leasing has a capital
investment in the Non-Specified Assets equal to a 2% beneficial interest in the
portion of FCTT comprised of the Non-Specified Assets represented by its
Exchangeable Beneficial Certificate.
(c) Either Ford Credit or Ford Credit Leasing may, upon at least 90
days written notice to the other, Comerica and the Administrative Agent, cease
contributing additional cash or other assets to FCTT. As of the date specified
in such notice, no additional Leases or Leased
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Vehicles may be added as FCTT Assets, unless and until the party which had
delivered such notice delivers a further notice stating that as of the date set
forth in such further notice, it shall resume making the pro rata contributions
specified in Section 4.1(b); provided, however, that no additional
contributions shall be made to FCTT by either Ford Credit and Ford Credit
Leasing until both parties agree to resume making such contributions. In
addition, upon the occurrence of a Bankruptcy with respect to Ford Credit, Ford
Credit Leasing and Ford Credit shall cease making additional contributions of
Leases and Leased Vehicles to FCTT as soon as reasonably practicable.
Section 4.2 Administrative Agent. (a) Ford Credit and Ford Credit
Leasing hereby direct Comerica to appoint Ford Credit as Administrative Agent
for FCTT and to enter into the Administrative Agency Agreement. The duties of
the Administrative Agent are set forth in the Administrative Agency Agreement.
Each Holder of a Specified Beneficial Certificate, by acceptance thereof, shall
be deemed to have consented to the appointment of Ford Credit as Administrative
Agent; provided, that the Holders of any Series may direct Comerica to instruct
the Administrative Agent to assign or delegate certain of its servicing
functions with respect to the related Series Specified Assets to another
Person, and any such assignment or delegation shall relieve the Administrative
Agent from any responsibility with respect to such functions; provided,
further, that any such assignment or delegation shall require the assignee or
delegee to remit Collections to the Administrative Agent for remittance to the
FCTT Collection Account, or directly to the FCTT Collection Account, at the
times required by this Agreement.
(b) In accordance with procedures set forth in the Administrative
Agency Agreement, the Administrative Agent shall provide information with
respect to FCTT Assets to Comerica in detail sufficient to permit Comerica to
maintain on an ongoing basis adequate records with respect to the capital
investments of Ford Credit and Ford Credit Leasing in FCTT and to provide
Holders with any information required pursuant to this Agreement. Comerica has
no responsibility for determining, monitoring or verifying the value or quality
of any assets contributed to or held by FCTT. Comerica, upon receipt of all
certificates, statements, opinions, reports, docu-
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ments, orders, other instruments or property furnished to Comerica which are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are on their face in
the form required by this Agreement. If any such item is found on its face not
to conform to the requirements of this Agreement in a material manner, Comerica
shall take such action as it deems appropriate to have the item corrected by
the Administrative Agent, and if the item is not corrected to Comerica's
reasonable satisfaction by the Administrative Agent, Comerica will provide
notice thereof to the applicable Beneficiaries.
Section 4.3 Designation of Series Specified Assets. (a) At least one
Business Day prior to any Series Issue Date, the Administrative Agent, acting
at the unanimous direction of the Holders of the Exchangeable Beneficial
Certificates, shall deliver to Comerica a notice (a "Series Specification
Notice") signed by the Administrative Agent identifying (i) the FCTT Assets to
be designated as certain Series Specified Assets as of the Series Issue Date
(by listing the related Specified Leased Vehicles by vehicle identification
number or other identifying characteristic, listing the related Specified
Leases by account number, and including any other information as reasonably
required by Comerica to separately identify such Series Specified Assets), (ii)
the date from which the Holders of the related Specified Beneficial
Certificates are entitled to receive any payments with respect to such Series
Specified Assets (such date, the "Series Cut-Off Date") and (iii) the date on
which the related Specified Beneficial Certificates shall be issued. On the
Series Issue Date set forth in such Series Specification Notice, Comerica, at
the direction of the Administrative Agent acting on behalf of Ford Credit and
Ford Credit Leasing, shall, pursuant to the related Supplement, issue to each
of Ford Credit and Ford Credit Leasing, as the Holders of the Exchangeable
Beneficial Certificates, a Specified Beneficial Certificate representing their
respective percentage undivided beneficial interests in the related Series
Specified Assets.
(b) Each Series shall be issued only upon delivery of an Opinion of
Counsel that such issuance shall not cause FCTT to be taxable as an
"association" or "publicly traded partnership" taxable as an association.
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(c) No Series may be issued unless (x) the issuance of such Series will
not cause the aggregate Series outstanding to exceed 80% of all FCTT Assets,
based on the respective aggregate Adjusted Balance Subject to Lease Charges of
all FCTT Assets and all Series Specified Assets and (y) each Specified
Beneficial Certificate of such Series represents a beneficial interest in
Series Specified Assets with an Adjusted Balance Subject to Lease Charges equal
to or greater than $20,000.
(d) Specified Beneficial Certificates issued on any Series Issue Date
shall represent a beneficial interest only in the Series Specified Assets
listed in the Schedule of Leases attached to the related Series Specification
Notice and Supplement, and no such Specified Beneficial Certificate shall
represent an interest in any non-related Series Specified Assets. As of any
date, the entire beneficial interest in FCTT and the FCTT Assets shall be
represented by the Exchangeable Beneficial Certificates and all Specified
Beneficial Certificates outstanding as of such date.
(e) Subject to Section 5.1, Comerica shall account for and record
separately all proceeds received by Comerica relating to a Series Specified
Assets from all other Series Specified Assets and Non-Specified Assets.
(f) Specified Beneficial Certificates of a Series may be pledged,
transferred, assigned and conveyed only to the extent provided in the related
Supplement. For all purposes of this Agreement, the transferee of a Specified
Beneficial Certificate shall be considered a "Beneficiary" with respect only to
those FCTT Assets constituting the related Series Specified Assets, and shall
be entitled to all rights and privileges of a Beneficiary only with respect to
its beneficial interest in such related Series Specified Assets. The Holders
of all the Specified Beneficial Certificates of any Series may collectively at
any time direct Comerica to distribute to such Holders the related Specified
Leased Vehicles and Specified Leases and any other related Series Specified
Assets and the proceeds of such Series Specified Assets. Comerica shall effect
any such distribution through the Administrative Agent.
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(g) Ford Credit and Ford Credit Leasing, as the Holders of the
Exchangeable Beneficial Certificates, shall each be considered a "Beneficiary"
with respect to all Non-Specified Assets and shall have the right at any time
to direct Comerica to deliver to them the Leased Vehicles and Leases which are
Non-Specified Assets and any other Non-Specified Assets and the proceeds of the
Non-Specified Assets; provided, however, that for so long as any Specified
Beneficial Certificates are outstanding, Ford Credit and Ford Credit Leasing
agree that they will maintain an interest in FCTT such that the Non-Specified
Assets represented by the Exchangeable Beneficial Certificates constitute at
least 80% of the FCTT Assets (based on the aggregate Adjusted Balance Subject
to Lease Charges.)
(h) Any notice, direction or instruction of any kind, whether required
hereunder or otherwise, from a Beneficiary to the Administrative Agent,
Comerica or any other party shall be in writing.
ARTICLE V
APPLICATION OF FCTT FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of FCTT Collection Account. (a) Comerica
shall establish and maintain a deposit account initially with Comerica Bank in
the name of Comerica as trustee for FCTT to be designated as the Ford Credit
Titling Trust Collection Account (the "FCTT Collection Account"), bearing an
additional designation clearly indicating that the funds deposited therein are
held by Comerica for the benefit of the Holders of the Certificates. Comerica
shall possess all right, title and interest in and to all funds on deposit from
time to time in the FCTT Collection Account and in all proceeds thereof.
Except as otherwise provided herein, the FCTT Collection Account shall be under
the sole dominion and control of Comerica. Funds shall be deposited into and
transferred from the FCTT Collection Account in accordance with Sections 5.1(b)
and 5.2(b) and (c). Any funds remaining in the FCTT Collection Account at the
end of any Business Day shall be invested in Permitted Investments at the
direction of the Administrative Agent. If Comerica Bank is no longer an
Eligible Institution, Comerica, with the assistance of the Administrative
Agent, shall within 10 Business Days following notifica-
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tion of such occurrence (or such longer period which, if there are securities
outstanding rated on the basis of any Specified Beneficial Certificates, shall
be acceptable to each Rating Agency rating such securities) cause the FCTT
Collection Account to be moved to (i) a bank or trust company which is an
Eligible Institution or (ii) segregated trust account at the corporate trust
department of Comerica Bank.
(b) Subject to Section 5.2(d), on each Business Day, the Administrative
Agent, acting on behalf of Comerica, pursuant to the terms of the
Administrative Agency Agreement, shall deposit (i) into the FCTT Collection
Account, all Collections received with respect to FCTT Assets from Lessees or
any other Person and (ii) into an account established pursuant to the
Administrative Agency Agreement, all contributions of capital received from the
Grantors in connection with the maintenance of their respective proportionate
interests in FCTT and the Non-Specified Assets.
Section 5.2 Application of FCTT Assets. (a) On each Business Day the
Administrative Agent, acting on behalf of Comerica, pursuant to the terms of
the Administrative Agency Agreement, shall identify all amounts deposited in
the FCTT Collection Account as either relating to Non-Specified Assets or
Series Specified Assets, and if more than one Series is outstanding, the Series
Specified Assets to which such amounts relate.
(b) On each Business Day the Administrative Agent, acting on behalf of
Comerica, pursuant to the terms of the Administrative Agency Agreement shall
withdraw all amounts on deposit in the FCTT Collection Account which relate to
Non-Specified Assets and apply such amounts in the following order of priority:
first, to the payment of any Use and Lease Tax Amounts to the
appropriate authorities and,
second, to the payment of any amounts which remain owing and unpaid
under any indemnity made by the Holders of the Exchangeable Beneficial
Certificates to the Holder of any Series Specified Certificate or any Person
with an interest in any Series Specified Certificate;
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third, to the payment of the Non-Specified Asset Comerica Fee and the
Non-Specified Asset Administrative Fee; and
fourth, to the distribution of any remaining funds to the Holders of the
Exchangeable Beneficial Certificates by depositing such remaining funds in
an account established pursuant to the Administrative Agency Agreement for
the benefit of the Holders of the Exchangeable Beneficial Certificates for
further distribution, as directed by such Holders.
(c) On each Business Day the Administrative Agent, acting on behalf of
Comerica, pursuant to the terms of the Administrative Agency Agreement, shall,
with respect to each Series, withdraw all amounts on deposit in the FCTT
Collection Account which relate to related Series Specified Assets and apply
such amounts in the following order of priority:
first, after payment of Use and Lease Tax Amounts to the appropriate
authorities; and
second, to the distribution of any remaining funds to the Holders of the
related Specified Beneficial Certificates by depositing such remaining funds
in the applicable Series Collection Account established pursuant to the
Administrative Agency Agreement for the benefit of the Holders of the
related Specified Beneficial Certificates.
(d) Notwithstanding the provisions of Sections 5.2(b) and (c), for so
long as (i) Ford Credit is the Administrative Agent and (ii) with respect to
any Series, unless otherwise provided in the related Supplement (x) the rating
of Ford Credit's short-term unsecured debt is at least P-1 by Moody's Investors
Service, Inc. and is at least A-1 by Standard & Poor's Ratings Group, (y) no
Event of Default shall have occurred under the Administrative Agency Agreement
and (z) any other condition defined in the related Supplement as a Monthly
Remittance Condition for such Series is satisfied (each, a "Monthly
Remittance Condition"), Collections and other amounts to be deposited in the
FCTT Collection Account relating to Series Specified Assets need not be
remitted to and deposited in the FCTT Collection Account on a daily basis but
instead may be held by the Administrative Agent and
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remitted to the FCTT Collection Account on a less frequent basis, as specified
in the related Supplement.
The Administrative Agent shall not be required to segregate or otherwise
hold separate Collections relating to Non-Specified Assets or other amounts
held by the Administrative Agent as described above but shall be required to
deposit such amounts in the FCTT Collection Account on a less frequent basis as
directed by the Holders of the Exchangeable Beneficial Certificates, but in any
event not less than monthly. Any such amounts to be deposited with respect to
Non-Specified Assets may be deposited on a net basis after subtracting
therefrom any amounts to be distributed to Ford Credit and Ford Credit Leasing
as the Holders of the Exchangeable Beneficial Certificates; provided that the
Administrative Agent shall account on its books and records for such deposits
and distributions as if such amounts were deposited or distributed separately.
So long as each Monthly Remittance Condition is satisfied, the
Administrative Agent shall not be required to segregate or otherwise hold
separate Collections relating to Series Specified Assets or other amounts held
by the Administrative Agent as described above but shall be required to deposit
such amounts in the FCTT Collection Account on the related Distribution Date.
As set forth in the Administrative Agency Agreement, any such amounts retained
by the Administrative Agent shall be distributed to Ford Credit and Ford Credit
Leasing as distributions on their Exchangeable Beneficial Certificates. At any
time that any Monthly Remittance Condition is not satisfied, the Administrative
Agent shall deposit in the FCTT Collection Account the amount of any
Collections or other amounts then held or received by it with respect to Series
Specified Assets.
(e) Within five Business Days after the end of each Collection Period,
Comerica, in reliance on a report prepared by the Administrative Agent, shall
send to each Holder of an Exchangeable Beneficial Certificate a statement,
setting forth the aggregate amount deposited in the FCTT Collection Account
during the related Collection Period and each of the amounts distributed during
such Collection Period in accordance with Section 5.2(b). Within five Business
Days after the end of each Collection Period, Comerica, in reliance on a report
prepared
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by the Administrative Agent, shall send to each Holder of a Specified
Beneficial Certificate a statement setting forth, among other things, the
amount allocated to each such Holder and deposited in the FCTT Collection
Account (or, if the Administrative Agent has retained such Collections because
each Monthly Remittance Condition relating to such Series has been satisfied,
to be deposited in the FCTT Collection Account). Such statement shall include
an accounting of the source of such proceeds as requested by the Holders of the
related Series.
Section 5.3 Method of Payment. Distributions required to be made to or
from the FCTT Collection Account shall be made by wire or electronic transfer,
in immediately available funds.
Section 5.4 Accounting and Reports to Beneficiaries, the Internal
Revenue Service and Others. Comerica shall (a) maintain (or cause to be
maintained) the books of FCTT on a calendar year basis on the accrual method of
accounting, (b) deliver to each Beneficiary such information as may be required
by the Code and applicable Treasury Regulations or otherwise, including such
information as may be required to enable each Holder to prepare its federal
income tax returns, (c) file (or cause to be filed) any tax returns relating to
FCTT and make (or cause to be made) such elections as may from time to time be
required or appropriate under any applicable federal or state statute or rule
or regulation thereunder, and (d) cause such tax returns to be signed in the
manner required by law. Comerica, upon request, will furnish the
Administrative Agent with all such information known to Comerica as may be
reasonably required in connection with the preparation of any tax returns
required to be filed by FCTT. To the extent one may be required, Ford Credit
shall be the "tax matters partner" of FCTT pursuant to the Code.
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ARTICLE VI
COMERICA
Section 6.1 Duties of Comerica. (a) Comerica shall perform such
duties, and only such duties, as are specifically set forth in this Agreement,
including the conservation of FCTT and the FCTT Assets in the interest of the
Beneficiaries. No implied covenants or obligations shall be read into this
Agreement.
(b) In the absence of bad faith on its part, Comerica may conclusively
rely upon certificates or opinions furnished to Comerica 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
Comerica shall have examined such certificates or opinions so as to determine
compliance of the same with the requirements of this Agreement.
(c) Comerica 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 the other
provisions of Article VI;
(ii) Comerica shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that Comerica was
grossly negligent in ascertaining the pertinent facts; and
(iii) Comerica 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, Comerica need not segregate funds
received hereunder in any manner except to the extent required by law and may
deposit such funds under such general conditions as may be prescribed by law,
and Comerica shall not be liable for any interest thereon.
(e) A Beneficiary shall not direct Comerica to take any action that (i)
is inconsistent with the purpos-
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es of FCTT set forth in Section 2.2 or (ii) would result in FCTT's becoming
taxable as an "association" for federal income tax purposes.
Section 6.2 Rights of Comerica. Comerica is authorized and directed to
execute and deliver this Agreement and each certificate or other document
attached as an exhibit to or contemplated by this Agreement to which FCTT is to
be a party, in such form as the Beneficiaries shall approve, such approval to
be evidenced by the signature of an authorized officer of the Beneficiaries on
the signature page hereto. The Beneficiaries shall not direct Comerica to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of FCTT or Comerica under this Agreement or would be contrary
to Section 2.2, nor shall Comerica be obligated to follow any such direction,
if given.
Section 6.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created Comerica
acts solely as trustee hereunder and not in its individual capacity and all
Persons having any claim against Comerica by reason of the transactions
contemplated by this Agreement shall be entitled to payment or satisfaction
thereof only in the manner and to the extent set forth in Section 2.6.
Comerica 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. Comerica also agrees to disburse all moneys actually received by it
constituting part of the FCTT Assets upon the terms of this Agreement.
Comerica shall not be liable or accountable hereunder under any circumstances,
except (i) 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 any
representation or warranty contained in Section 6.6 and expressly made by
Comerica. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) Comerica shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the instructions of any
Beneficiary;
(b) no provision of this Agreement shall require Comerica to expend or
risk funds or otherwise
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incur any financial liability in the performance of any of its rights or powers
hereunder, if Comerica shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(c) Comerica shall not be responsible for or in respect of and makes no
representation as to the validity or sufficiency of any provision of this
Agreement or for the due execution hereof by Ford Credit and Ford Credit
Leasing or for the form, character, genuineness, sufficiency, value or validity
of any of the FCTT Assets or for or in respect of the validity or sufficiency
of the Certificates or any related documents, and Comerica shall in no event
assume or incur any liability, duty or obligation to any Beneficiary, other
than as expressly provided for herein; and
(d) Comerica shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend
any litigation under this Agreement or otherwise or in relation to this
Agreement, at the request, order or direction of any Beneficiary, unless such
Beneficiary has offered to Comerica security or indemnity satisfactory to it
against the fees, costs, expenses and liabilities that may be incurred by
Comerica therein or thereby. The right of Comerica to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty, and Comerica 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 Beneficiaries. (a) Those
Beneficiaries holding a beneficial interest in any FCTT Assets may direct
Comerica or the Administrative Agent to take action or refrain from taking
action with respect to those FCTT Assets in which they have a beneficial
interest. Such direction may be exercised at any time by written instructions
of the Beneficiaries holding a 100% beneficial interest in such Non-Specified
Assets or any Series Specified Assets.
(b) Notwithstanding the foregoing, and in accordance with Section
6.3(d), Comerica shall not be required to take any action or refrain from
taking action hereunder if Comerica shall have reasonably determined,
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or shall have been advised by counsel, that such action is likely to result in
liability on the part of Comerica or is contrary to the terms hereof or is
otherwise contrary to law.
(c) Whenever Comerica 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, Comerica 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 Beneficiaries requesting
instruction as to the course of action to be adopted, and, to the extent
Comerica acts in good faith in accordance with such Opinion of Counsel or any
such instruction received from such Beneficiaries, as the case may be, Comerica
shall not be liable on account of such action to any Person. If Comerica 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 reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action which is
consistent, in its view, with this Agreement, and as it shall deem to be in the
best interests of the Beneficiaries, and Comerica shall have no liability to
any Person for any such action or inaction.
Section 6.5 Furnishing of Documents. Comerica shall furnish to the
Beneficiaries, promptly upon receipt of a written request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to Comerica by the
Administrative Agent or others.
Section 6.6 Representations and Warranties of Comerica. Comerica
hereby represents and warrants to the Beneficiaries that:
(a) it is a banking corporation duly organized, validly existing and in
good standing under the laws of the State of Michigan;
(b) it has full power, authority and legal right to execute, deliver
and perform this Agreement, and
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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)
shall not violate any provision of any law or regulation governing the banking
and trust powers of Comerica or any order, writ, judgment or decree of any
court, arbitrator or governmental authority applicable to Comerica or any of
its assets, (ii) shall not violate any provision of the corporate charter or
by-laws of Comerica, and (iii) shall not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any lien on any properties of Comerica
pursuant to the provisions of any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default or lien
could reasonably be expected to have a materially adverse effect on Comerica's
performance or ability to perform its duties as trustee under this Agreement or
on the transactions contemplated in this Agreement;
(d) the execution, delivery and performance by Comerica 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 Michigan;
and
(e) this Agreement has been duly executed and delivered by Comerica and
constitutes the legal, valid and binding agreement of Comerica, 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.
Section 6.7 Reliance; Advice of Counsel. (a) Comerica shall incur no
liability to any Person in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper 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
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or matter in any such document. Comerica may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter
the method of the determination of which is not specifically prescribed herein,
Comerica 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 Comerica 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, Comerica:
(i) may act directly or through its agents, attorneys, custodians or nominees
pursuant to agreements entered into with any of them, and Comerica 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 Comerica with reasonable care and (ii) may consult with counsel,
accountants and other skilled professionals to be selected with reasonable care
and employed by it. Comerica 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 such accountants or other such skilled professionals and not contrary
to this Agreement.
Section 6.8 Compensation and Indemnity. (a) Comerica shall receive as
compensation for its services hereunder such fees as shall be separately agreed
upon from time to time between the Holders of the Exchangeable Beneficial
Certificates and Comerica. Comerica shall be entitled at all times to be
reimbursed by the Beneficiaries for its reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, custodians, nominees, representatives, experts and counsel as Comerica
may employ in connection with the exercise and performance of its rights and
its duties hereunder; provided, however, that (i) the Holders of the
Exchangeable Beneficial Certificates shall pay the Non-Specified Asset Comerica
Fee and (ii) the Holders of each Series shall pay the related Specified Asset
23
<PAGE> 27
Comerica Fee in the manner and at the times set forth in the related
supplement.
(b) The Non-Specified Asset Administrative Fee shall accrue and be
payable monthly in arrears to the Administrative Agent in accordance with the
distribution of funds set forth in Section 5.2(b). The Holders of each Series
shall pay the related Specified Asset Administrative Fee in the manner and at
the times set forth in the related Supplement.
Section 6.9 Resignation or Removal of Comerica. (a) Comerica shall not
resign without the consent of the Beneficiaries unless Comerica shall cease to
be eligible in accordance with the provisions of Section 6.12 or Comerica shall
be incapable of acting or it shall be illegal for Comerica to act.
(b) The Holders of 100% of the Exchangeable Beneficial Certificates may
remove Comerica (and shall remove Comerica in the case of the occurrence of an
event described in clause (i) or (iv)):
(i) if Comerica shall cease to be eligible in accordance with the
provisions of Section 6.12 and shall fail to resign after a written request
therefor by the Holders of 100% of the Exchangeable Beneficial Certificates;
(ii) if Comerica shall be adjudged bankrupt or insolvent;
(iii) if a receiver or other public officer shall be appointed or take
charge or control of Comerica or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation;
(iv) if Comerica shall otherwise be incapable of acting or it shall be
illegal for Comerica to act; or
(v) at their discretion.
(c) If Comerica is removed or if a vacancy exists in the office of
trustee for any reason, the Holders of the Exchangeable Beneficial Certificates
shall promptly appoint a successor trustee by written instru-
24
<PAGE> 28
ment, in duplicate (one copy of which instrument shall be delivered to the
outgoing trustee so removed and one copy to the successor trustee). All costs
associated with the resignation or removal of Comerica and the appointment of a
successor, including without limitation the costs associated with retitling any
Leased Vehicles in the name of the successor trustee, shall be borne by the
Holders of the Exchangeable Beneficial Certificates and the Holders of the
Specified Beneficial Certificates based on the Non-Specified Asset Percentage
and the related Series Specified Asset Percentage of such costs, respectively;
provided that if the Holders of the Exchangeable Beneficial Certificates remove
Comerica pursuant to Section 6.9(b)(v), all such costs shall be borne
exclusively by the Holders of the Exchangeable Beneficial Certificates (and
shall be accounted for as a contribution to the capital of the initial
transferees of the related Specified Beneficial Certificates).
(d) Any resignation or removal of Comerica and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.9 shall
not become effective until a written acceptance of appointment is delivered by
the successor trustee. Any successor trustee appointed pursuant to this
Section 6.9 shall be eligible to act in such capacity in accordance with
Section 6.12 and, following compliance with the preceding sentence, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
trustee.
(e) The predecessor trustee shall upon payment of its fees and expenses
deliver to the successor trustee all books, records, accounts, documents,
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 to fully and certainly vest and confirm 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, monies held by
it under this Agreement and any other relevant information relating to the FCTT
Assets.
(f) Upon the acceptance by a successor trustee of its appointment
pursuant to this Section 6.9, the
25
<PAGE> 29
Holders of Exchangeable Beneficial Certificates shall mail notice of such
appointment to each Holder of a Specified Beneficial Certificate; provided,
however, that if a Holder of an Exchangeable Beneficial Certificate fails to
mail such notice with ten (10) days after the successor trustee has accepted
its appointment hereunder, the successor trustee shall cause such notice to be
mailed at the expense of such Holder.
Section 6.10 Merger or Consolidation of Comerica. Any corporation or
other Person which may be merged, converted or consolidated with Comerica, or
any corporation resulting from any merger, conversion or consolidation to which
Comerica shall be a party, or any corporation or other Person succeeding to all
or substantially all of the corporate trust business of Comerica, shall be
deemed the successor of Comerica hereunder; provided, however, that such
corporation shall be eligible in accordance with the provisions of Section
6.12, and without the execution or filing of any instrument or any further act
on the part of any of the parties hereto.
Section 6.11 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 FCTT
Assets may then be located, the Holders of Exchangeable Beneficial Certificates
hereby grant Comerica the authority and power to execute and deliver all
instruments to appoint one or more Persons to act as co-trustee, jointly with
Comerica, or as separate trustee or trustees, of all or any part of FCTT and
the FCTT Assets, and to vest in such Person, in such capacity, such title to
FCTT, or any FCTT Assets, and, subject to the other provisions of this Section
6.11, such powers, duties, obligations, rights and trusts as Comerica 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 6.12; provided, however, that no co-trustee or separate trustee under
this Agreement may be a Beneficiary or any Affiliate thereof.
(b) Each co-trustee and separate trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
26
<PAGE> 30
(i) all rights, powers, duties and obligations conferred or imposed
upon Comerica shall be conferred upon and exercised or performed by Comerica
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 Comerica 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, Comerica 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 FCTT 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 Comerica;
(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 Beneficiaries with respect to the affected FCTT Assets and
Comerica acting jointly may at any time accept the resignation of or remove
any co-trustee or separate trustee appointed with respect to such FCTT
Assets.
(c) Any notice, request or other writing given to Comerica shall be
deemed to have been given to each of the then co-trustees and separate
trustees, as effectively as if given to each of them. Comerica shall deliver
copies of all such notices, requests or other writings to each Beneficiary to
which such notice, request or writing relates. Every instrument appointing any
co-trustee or separate trustee shall refer to this Agreement and the conditions
of this Article VI. 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 Comerica 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, Comerica.
Each such instrument shall be filed with Comerica and a copy thereof given to
each related Beneficiary.
27
<PAGE> 31
(d) Any co-trustee or separate trustee may at any time appoint Comerica
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 die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by Comerica, to the extent permitted by law, without the appointment of a new
or successor trustee.
Section 6.12 Eligibility Requirements for Trustee. The trustee of FCTT
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; and (c) be qualified to act as a
trustee and hold FCTT Assets in those states in which FCTT Assets are located
(or have appointed a co-trustee or separate trustee to hold FCTT Assets in
such state).
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 2.6) and FCTT shall terminate and be of
no further force or effect on the earlier of: (A) the final distribution by
Comerica of all moneys or other property constituting FCTT Assets or (B) the
Bankruptcy, insolvency or termination of Ford Credit Leasing. With respect to
Series Specified Assets, FCTT shall be deemed terminated solely with respect to
such assets upon the Bankruptcy, insolvency or termination of any Holder of the
related Specified Beneficial Certificates or the Bankruptcy, insolvency or
termination of any initial transferee of any Specified Beneficial Certificates
from the Holders of the Exchangeable Beneficial Certificates. Upon such
termination of FCTT with respect to any Series Specified Assets, Comerica shall
distribute to such Holders all related Series Specified Assets. This Agreement
and FCTT may also terminate at the express written direction of the Holders of
the Exchangeable Beneficial Certificates so long as no Series of Specified
Beneficial Certificates are outstanding. Notwithstanding the foregoing, in no
event, however,
28
<PAGE> 32
shall FCTT continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Hurley David Smith, currently residing in
Clarkston, Michigan, living on the date of this Agreement.
(b) Upon termination of FCTT, Comerica shall distribute to each Holder of a
Specified Beneficial Certificate, its interest in the related Series Specified
Assets and to the Holders of the Exchangeable Beneficial Certificates their
respective interests in the Non-Specified Assets.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. This Agreement may be amended by the Holders
of the Exchangeable Beneficial Certificates and Comerica without the consent of
any Holder of any Specified Beneficial Certificates 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 an outstanding
Specified Beneficial Certificate (unless each such Holder has consented
thereto), (y) as confirmed by each nationally recognized statistical 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 the
Holders of any Specified Beneficial Certificates to be treated as holding an
interest in an "association" for federal income tax purposes.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Legal Title to FCTT Assets; Direction of Comerica
Actions. The Beneficiaries shall not have legal title to any FCTT Assets. The
Beneficiaries shall be entitled to receive distributions with respect to their
ownership interest therein only in accordance with Articles V and VII and the
Administrative Agency Agreement; provided, however, that the Holders of any
Specified Beneficial Certificates and the Holders of Exchangeable Beneficial
Certificates may direct Comerica to deliver the FCTT Assets to such Holders as
set forth in Sections 4.3(d) and (e). Notwithstanding anything
29
<PAGE> 33
herein to the contrary, Comerica shall take no action with respect to entering
into, disposing of or making any payment or distribution with respect to any
Leased Vehicle, Lease, Certificate of Title or Insurance Policy except in
accordance with the procedures set forth in the Administrative Agency Agreement
or as directed by the related Beneficiaries in accordance with Section 6.4(a).
Section 9.2 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Comerica, the Grantors and the
Beneficiaries and nothing in this Agreement, whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy
or claim in FCTT or the FCTT Assets or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
Section 9.3 Notices. All demands, notices and communications upon or
to the Grantors, the Beneficiaries 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.
(a) in the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Treasurer
Fax: 313-594-0735
Telephone: 313-845-4072
(b) In the case of Ford Credit:
Ford Motor Credit Company
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
30
<PAGE> 34
(c) In the case of Comerica:
Comerica Bank
411 Lafayette - 4th Floor
Detroit, Michigan 48226-3461
Attention: Corporate Trust Department
Fax: 313-222-2985
Telephone: 313-222-4380
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 9.4 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 of the Certificates
or the rights of the Holders thereof.
Section 9.5 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 9.6 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Grantors, Comerica and each Beneficiary and (with respect to Comerica and the
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 9.7 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 Grantors, Comerica or any Affiliate thereof and no recourse
may be had against such parties
31
<PAGE> 35
or their assets, except as may be expressly set forth or contemplated in this
Agreement or the Certificates.
Section 9.8 No Petition. Comerica shall not have the power to commence
a voluntary proceeding in bankruptcy relating to FCTT without the unanimous
prior approval of all Beneficiaries and the delivery to Comerica by each such
Beneficiary of a certificate certifying that such Beneficiary reasonably
believes that FCTT is insolvent. Notwithstanding the foregoing, Comerica 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, or other similar
proceeding, under the laws of the United States.
Section 9.9 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 9.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN, 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.
32
<PAGE> 36
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as
of the day and year first above written.
COMERICA BANK,
as trustee
By:___________________________
Name:
Title:
FORD CREDIT LEASING COMPANY, INC.,
as a Grantor and Beneficiary
By:___________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as a Grantor and Beneficiary
By:___________________________
Name:
Title:
<PAGE> 37
EXHIBIT A
[Form of Exchangeable Beneficial Certificate]
FORD CREDIT TITLING TRUST
EXCHANGEABLE BENEFICIAL CERTIFICATE
No. __
evidencing a fractional undivided interest in all FCTT Assets (as defined
below), other than Series Specified Assets (as defined below).
(This Exchangeable Beneficial Certificate does not represent an interest in or
obligation of Ford Motor Credit Company, Ford Credit Leasing Company, Inc., or
Comerica Bank or any of their respective Affiliates, except to the extent
described below.)
THIS CERTIFIES THAT ___________ is the registered owner of a
nonassessable, fully-paid, _____% fractional undivided interest in Ford Credit
Titling Trust ("FCTT") and the FCTT Assets deposited therein other than Series
Specified Assets.
FCTT was created pursuant to an Amended and Restated Trust Agreement,
dated as of January 31, 1994 (as amended and supplemented from time to time,
the "FCTT Agreement"), by and among Ford Motor Credit Company ("Ford Credit")
and Ford Credit Leasing Company, Inc. ("Ford Credit Leasing") as grantors and
initial beneficiaries (in their capacities as grantors, each a "Grantor" and
collectively, the "Grantors" and in their capacity as beneficiaries, each a
"Beneficiary" and collectively, the "Beneficiaries") and Comerica Bank, as
trustee ("Comerica"). A summary of certain of the pertinent provisions of the
FCTT Agreement is set forth below. To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in the
FCTT Agreement.
This Certificate is one of the duly authorized Certificates designated
as "Exchangeable Beneficial Certificates" (the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the FCTT Agreement and the Administrative Agency Agreement, dated
as of January 31, 1994 (the "Administrative Agency Agreement"), among Ford
Credit and Ford Credit Leasing, to which FCTT Agreement and Administrative
Agency Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. The property of FCTT
consists of the FCTT Assets (the "FCTT Assets"), which initially includes only
cash and any amounts on deposit in
A-1
<PAGE> 38
the FCTT Collection Account but will include, in addition, certain retail lease
contracts for automobiles and light-duty trucks ("Leases") and the proceeds
thereof, the automobiles and light-duty trucks (the "Leased Vehicles") which
are subject to the Leases and the proceeds thereof including the proceeds from
the sale of the Leased Vehicles to third parties, certificates of title or
other evidence of ownership of a Leased Vehicle, the benefits of certain
insurance policies, certain other properties and rights, including, but not
limited to, certain rights of recourse, relating to the Leases and the Leased
Vehicles and all proceeds of the foregoing, all as more fully described in the
FCTT Agreement.
It is contemplated under the FCTT Agreement that from time to time
certain Leased Vehicles, Leases and related FCTT Assets will be identified
(such assets, the "Series Specified Assets") and that certificates representing
a beneficial interest in such Series Specified Assets ("Specified Beneficial
Certificates") will be issued to the Holder of this Exchangeable Beneficial
Certificate. Upon the issuance of such Specified Beneficial Certificate, the
beneficial interest in FCTT and the FCTT Assets represented by this
Exchangeable Beneficial Certificate shall be reduced by the amount of the FCTT
Assets represented by such Specified Beneficial Certificates.
Under the FCTT Agreement, there shall be distributed on the 15th day of
each month or such other date as may be determined from time to time pursuant
to the Administrative Agency Agreement or, if such day is not a Business Day,
the next Business Day (each, a "Distribution Date"), commencing on _____ ,
1994, to the Person in whose name this Certificate is registered such Holder's
fractional undivided interest in the amount on deposit in the FCTT Collection
Account, subject to the limitations set forth in Section 5.2 of the FCTT
Agreement. Distributions on this Certificate shall be made as provided in the
FCTT Agreement.
The FCTT Agreement may be amended by the Holders of the Exchangeable
Beneficial Certificates and Comerica without the consent of any Holder of any
Specified Beneficial Certificates 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 an outstanding Specified
Beneficial Certificate (unless each such Holder has consented thereto), (y) as
confirmed by each nationally recognized statistical 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 the Holders of any Specified
Beneficial Certificates to be treated as holding an interest in an
"association" for federal income tax purposes.
A-2
<PAGE> 39
Each Beneficiary, by acceptance of a Certificate, 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 the FCTT 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, or other similar proceeding, under the laws of the United States.
As provided in the FCTT Agreement, this Certificate (and the interest in
FCTT and the FCTT Assets which it represents) may not be transferred, pledged,
sold, assigned or otherwise conveyed, and any such transfer, pledge, sale,
assignment or conveyance shall be null, void and of no effect.
Comerica shall keep the certificate register with respect to this
Certificate, and the Holder of this Certificate shall notify Comerica of any
change of address or instructions on the distribution of funds.
The FCTT Agreement (other than Section 2.6) and FCTT shall terminate and
be of no further force or effect on the earlier of: (i) the final distribution
by Comerica of all moneys or other property constituting FCTT Assets; (ii) the
bankruptcy or insolvency of Ford Credit Leasing or the initial transferee of
any Specified Beneficial Certificate. With respect to Series Specified Assets,
FCTT shall be deemed terminated solely with respect to such assets upon the
bankruptcy or insolvency of the then Holder of the related Specified Beneficial
Certificates and Comerica shall distribute to such Holder all related Series
Specified Assets. The FCTT Agreement and FCTT may also terminate at the
express written direction of the Holders of the Exchangeable Beneficial
Certificates so long as no Series of Specified Beneficial Certificates are
outstanding. Notwithstanding the foregoing, however, in no event shall FCTT
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Hurley David Smith, currently residing in Clarkston,
Michigan, living on the date of the FCTT Agreement. Upon termination of FCTT,
the Holder of this Certificate shall, after presenting this Certificate to
Comerica, receive distributions of such Holder's share of FCTT As sets.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
MICHIGAN, 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.
Unless this Certificate shall have been executed by a Responsible
Officer, this Certificate shall not entitle the Holder thereof to any benefit
under the FCTT Agreement or be valid for any purpose.
A-3
<PAGE> 40
IN WITNESS WHEREOF, Comerica, on behalf of FCTT and not in its individual
capacity, has caused this Exchangeable Beneficial Certificate to be duly
executed.
FORD CREDIT TITLING TRUST
COMERICA BANK,
not in its individual capacity
but as trustee
Dated:_____________ By:__________________________
Name:
Title:
A-4
<PAGE> 41
Schedule A
<TABLE>
<CAPTION>
Series Series Specified
Issue Series Asset Amount as of
Date Designation Series Issue Date
- ------------- ----------- -------------------
<S> <C> <C>
</TABLE>
A-5
<PAGE> 42
EXHIBIT B
[Form of Specified Beneficial Certificate]
FORD CREDIT TITLING TRUST
SERIES 199_-_ SPECIFIED BENEFICIAL CERTIFICATE
No. __
evidencing a fractional undivided interest in the Series 199_-_ Assets (as
defined below).
(This Series 199_-_ Specified Beneficial Certificate does not represent an
interest in or obligation of Ford Motor Credit Company, Ford Credit Leasing
Company, Inc., or Comerica Bank or any of their respective affiliates, except
to the extent described below.)
THIS CERTIFIES THAT ___________ is the registered owner of a
nonassessable, fully-paid, _____% fractional undivided interest in the Series
199_-_ Assets deposited in Ford Credit Titling Trust ("FCTT").
FCTT was created pursuant to an Amended and Restated Trust Agreement,
dated as of January 31, 1994 (as amended and supplemented from time to time,
the "FCTT Agreement"), by and among Ford Motor Credit Company ("Ford Credit")
and Ford Credit Leasing Company, Inc. ("Ford Credit Leasing") as grantors and
initial beneficiaries (in their capacities as grantors, each a "Grantor" and
collectively, the "Grantors" and in their capacity as beneficiaries, each a
"Beneficiary" and collectively, the "Beneficiaries") and Comerica Bank, as
trustee ("Comerica"). A summary of certain of the pertinent provisions of the
FCTT Agreement is set forth below.
This Certificate is one of a duly authorized Series of Specified
Beneficial Certificates (as defined below). This Certificate is issued under
and is subject to the terms, provisions and conditions of the FCTT Agreement,
the Administrative Agency Agreement, dated January 31, 1994 (the
"Administrative Agency Agreement") and the Series 199_-_ Supplement, dated as
of ______ ___, 199_, among Ford Credit and Ford Credit Leasing, and ___________
("RCL Trustee"), as trustee for RCL Trust 199_-_ (the "Supplement"), to which
FCTT Agreement, Administrative Agency Agreement and Supplement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. To the extent not otherwise defined herein, the capital-
B-1
<PAGE> 43
ized terms used herein have the meanings assigned to them in the Supplement.
The property of FCTT consists of the FCTT Assets (the "FCTT Assets"),
which includes cash and any amounts on deposit in the FCTT Collection Account,
certain retail lease contracts for automobiles and light-duty trucks ("Leases")
and the proceeds thereof, the automobiles and light-duty trucks (the "Leased
Vehicles") which are subject to the Leases and the proceeds thereof including
the proceeds from the sale of the Leased Vehicles to third parties,
certificates of title or other evidence of ownership of a Leased Vehicle, the
benefits of certain insurance policies, certain other properties and rights,
including, but not limited to, certain rights of recourse, relating to the
Leases and the Leased Vehicles and all proceeds of the foregoing, all as more
fully described in the FCTT Agreement. Ownership of the FCTT Assets was
initially represented by "Exchangeable Beneficial Certificates."
Under the FCTT Agreement from time to time the Holders of Exchangeable
Beneficial Certificates may direct Comerica to issue to such Holders of the
Exchangeable Beneficial Certificates a series of certificates ("Specified
Beneficial Certificates") representing a beneficial interest in certain
specified Leased Vehicles, Leases and related FCTT Assets (such assets, the
"Series Specified Assets"). Upon the issuance of such Specified Beneficial
Certificates, the beneficial interest in FCTT and the FCTT Assets represented
by the Exchangeable Beneficial Certificate shall be reduced by the amount of
the FCTT Assets represented by such Specified Beneficial Certificates. This
Certificate was issued pursuant to the Supplement which identified certain
Series Specified Assets therein (the "Series 199_-_ Assets").
Under the Series 199_-_ Supplement, there shall be distributed on the
15th day of each month or, if such day is not a Business Day, the next Business
Day (each, a "Distribution Date"), commencing _______, 199_ to the Person in
whose name this Certificate is registered such Holder's fractional undivided
interest in the amount on deposit in the Series 199_-_ Collection Account.
Distributions on this Certificate shall be made as provided in the FCTT
Agreement and the Supplement.
The FCTT Agreement may be amended by the Holders of the Exchangeable
Beneficial Certificates and Comerica without the consent of any Holder of any
Specified Beneficial Certificates 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 an outstanding Specified
Beneficial Certificate (unless each such Holder has consented thereto), (y) as
confirmed by each nationally recognized statistical rating agency which is then
rating securities based on such
B-2
<PAGE> 44
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 the Holders of any Specified Beneficial Certificates to be
treated as holding an interest in an "association" for federal income tax
purposes.
Each Beneficiary, by acceptance of a Certificate, 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 the FCTT 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, or other similar proceeding, under the laws of the United States.
Comerica shall keep the certificate register with respect to this
Certificate, and the Holder of this Certificate shall notify Comerica of any
change of address or instructions on the distribution of funds.
The FCTT Agreement (other than Section 2.6) and FCTT shall terminate and
be of no further force or effect on the earlier of: (i) the final distribution
by Comerica of all moneys or other property constituting FCTT Assets; (ii) the
bankruptcy or insolvency of Ford Credit Leasing Company, Inc., or the initial
transferee of any Specified Beneficial Certificate. With respect to Series
Specified Assets, FCTT shall be deemed terminated solely with respect to such
assets upon the bankruptcy or insolvency of the then Holder of the related
Specified Beneficial Certificates and Comerica shall distribute to such Holder
all related Series Specified Assets. The FCTT Agreement and FCTT may also
terminate at the express written direction of the Holders of the Exchangeable
Beneficial Certificates so long as no Series of Specified Beneficial
Certificates are outstanding. Notwithstanding the foregoing, however, in no
event shall FCTT continue beyond the expiration of 21 years from the death of
the last survivor of the descendants of Hurley David Smith, currently residing
in Clarkston, Michigan, living on the date of the FCTT Agreement. Upon
termination of FCTT, the Holder of this Certificate shall, after presenting
this Certificate to Comerica, receive distributions of such Holder's share of
FCTT Assets.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
MICHIGAN, 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.
Unless this Certificate shall have been executed by a Responsible
Officer, this Certificate shall not entitle the Holder thereof to any benefit
under the FCTT Agreement or be valid for any purpose.
B-3
<PAGE> 45
IN WITNESS WHEREOF, Comerica, on behalf of FCTT and not in its individual
capacity, has caused this Series 199_-_ Specified Beneficial Certificate to be
duly executed.
FORD CREDIT TITLING TRUST
COMERICA BANK,
not in its individual capacity
but as trustee
Dated:_____________ By:____________________________
Name:
Title:
B-4
<PAGE> 1
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
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.4 Purchase of Leases and Leased
Vehicles; Lease Purchase Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.5 Vehicle Purchase Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
i
<PAGE> 3
<TABLE>
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<S> <C> <C>
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.4 Custody of Lease Files; Custodial
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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 . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.2 Exercise of Dealer Purchase Option
for Leased Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI
REMITTANCE OF PAYMENTS
Section 6.1 Allocation of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.2 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.3 Monthly Payment Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.4 Statements to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
ii
<PAGE> 4
<TABLE>
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ARTICLE VII
ADMINISTRATIVE AGENT DEFAULT
Section 7.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 7.2 Administrative Agent Not to Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.3 Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.4 Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.5 Notification to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.6 Waiver by Beneficiary of Past
Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.2 No Legal Title to FCTT Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.3 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.8 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.9 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
EXHIBITS
A Form of Lease
B Form of Vehicle Purchase Certificate
C Form of Administrative Agent's Certificate
Schedule A Location of Lease Files
iii
<PAGE> 5
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.
<PAGE> 6
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.
2
<PAGE> 7
(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.
3
<PAGE> 8
(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-
4
<PAGE> 9
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
5
<PAGE> 10
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 Comerica, FCTT or the Beneficiaries, except as provided under this
Agreement, 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 willful misfeasance or bad faith in the performance of duties or by reason
of reckless disregard of
6
<PAGE> 11
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 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.
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
7
<PAGE> 12
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.
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 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
8
<PAGE> 13
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
Ford Credit Titling Trust, Comerica Bank as Trustee.
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.
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
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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.
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 (without 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
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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 (a) the particular Leases and Leased Vehicles purchased
by FCTT in the preceding Collection Period and the Balance Subject to Lease
Charges for each such Leased Vehicle; (b) the aggregate Lease Purchase Advances
outstanding as of the beginning and end of the preceding Collection Period; (c)
the aggregate amount withdrawn from the
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Vehicle Purchase Account to purchase Leases and Leased Vehicles in the
preceding Collection Period; (d) the balance in the Vehicle Purchase Account as
of the beginning and end of the preceding Collection Period; (e) the amount of
capital contributions made to FCTT during the preceding Collection Period by
Ford Credit; (f) the amount of capital contributions made to FCTT during the
preceding Collection Period by Ford Credit Leasing; and (g) 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 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
gener-
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ality 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 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.
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(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; provided, that the aggregate Term Extensions and Payment
Extensions granted pursuant to this Section 4.2(b) with respect to any
Specified Lease shall not exceed six months. 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.
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 forego-
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ing 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 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
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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 A 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 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 A 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 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 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
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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 of Specified Assets under Section 7.1, the
appointment of the Administrative Agent as custodian with respect to Lease
Files relating to such Series of 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 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).
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(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, 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 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 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 and 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 second Collection Period
following such discovery (or, at the Administrative Agent's election, the last
day of the first following Collection Period or at such other date
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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, the Administrative Agent shall be deemed to have waived its
right to reimbursement for any outstanding Monthly Payment Advances or Sale
Proceeds Advances 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 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 with respect to any Specified Lease
or Specified Leased Vehicles pursuant to this Section 4.7.
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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, and any Series Payahead Account 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 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 12-month period (or
such shorter period from the effective date of this
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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 automotive 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
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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.
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
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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.
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
Certificate of Title and the related original Lease to such Dealer.
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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.
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 Lease 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 Advance") 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.
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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:
(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
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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 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
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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:
(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 Recov-
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eries 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 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 Section 5.2(b)
of the FCTT Agreement, on each Distribution Date the Administrative Agent shall
deposit Collections 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 direct that the
Administrative Agent make such deposits on a more frequent basis. Such
deposits of Collections shall be made net of any Use and Lease Tax Amounts
credited pursuant to Sections 6.1(a)(i) and (ii) and other amounts due in
connection with sales, use and lease taxes credited pursuant to Sections
6.1(b)(i) and 6.1(c)(i). No funds may be withdrawn from the Vehicle Purchase
Account until such
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time as the balance is equal to $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).
(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 Ad-
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vance") 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 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, 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 Total 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, Insurance
Proceeds, Voluntary Early Termination Proceeds and Liquidation
Proceeds received by
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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 security 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 Total Monthly Payments and the
aggregate Monthly Payments received by the Administrative Agent with
respect to the related Series Specified Assets;
(ii) the aggregate Use and Lease Tax Amounts
received by the Administrative Agent with respect to related Series
Specified Assets;
(iii) 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;
(iv) the amount of the related Specified Asset
Administrative Fee payable to the Administrative Agent;
(v) the related Specified Asset Charged-Off Amount;
(vi) the aggregate Administrative Purchase Amount
paid pursuant to Sections 4.5 and 4.7, and pursuant to the terms of
the related Supplement, with respect to beneficial
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interests in related Specified Leases and Specified Leased Vehicles;
(vii) the aggregate Sales Proceeds, Insurance
Proceeds, Voluntary Early Termination Proceeds, Liquidation Proceeds
and Recoveries received by the Administrative Agent with respect to
related Series Specified Assets (separately stated);
(viii) 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;
(ix) the outstanding Sale Proceeds Advances as of
the beginning and end of the Related Collection Period and the
aggregate Residual Values of related Specified Leased Vehicles, the
related Specified Leases which have expired, which are unsold as of
the beginning and end of the Related Collection Period; and
(x) 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
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. If any one of the following
events ("Events of Default") shall occur and be continuing:
(a) any failure by the Administrative Agent to
deliver to Comerica for distribution to Beneficiaries or to distribute directly
to Beneficiaries any
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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;
(b) 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 and 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 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 and adverse affect with respect to any Series
shall be determined by reference to the Beneficiaries of such Series;
(c) 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 remedied, shall have been given (i) to the Administrative Agent by
Comerica or (ii) to the Administrative Agent and Comerica by any Beneficiary
provided, however, that (x) any such incorrect representation, warranty, report
or certification made with respect to any Series shall be an Event of Default
only
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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 (y) the determination of a
material and adverse affect with respect to any Series shall be determined by
reference to the Beneficiaries of such Series;
(d) 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
(e) 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
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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 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.
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 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.
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In connection with any termination of the Administrative Agent
by Comerica pursuant to the second preceding paragraph or by the Holders of a
Series of Specified Beneficial Certificates pursuant to the preceding
paragraph, 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 such
Series, 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, or any related Series 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 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
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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 entitled 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 re-
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spect 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 Certificate 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
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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. 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 and 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
nationally recognized statistical 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 taxed as an "association" for federal
income tax purposes.
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
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<PAGE> 44
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.
(i) In the case of the Administrative Agent:
Ford Motor Credit Company
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
(ii) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Treasurer
Fax: 313-594-0735
Telephone: 313-845-4072
40
<PAGE> 45
(iii) In the case of Ford Credit:
Ford Motor Credit Company
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
(iv) In the case of Comerica:
Comerica Bank
411 Lafayette - 4th Floor
Detroit, Michigan 48226-3461
Attention: Corporate Trust Department
Fax: 313-222-2985
Telephone: 313-222-4380
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 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
41
<PAGE> 46
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, or other similar proceeding, under the laws of the
United States or any state thereof.
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.
42
<PAGE> 47
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:___________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Administrative Agent
By:___________________________
Name:
Title:
FORD CREDIT LEASING COMPANY, INC.,
as a Grantor and Beneficiary
By:___________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as a Grantor and Beneficiary
By:___________________________
Name:
Title:
43
<PAGE> 48
EXHIBIT A
[FORM OF LEASE]
A-1
<PAGE> 49
EXHIBIT B
[FORM OF VEHICLE PURCHASE CERTIFICATE]
B-1
<PAGE> 50
EXHIBIT C
[FORM OF ADMINISTRATIVE AGENT'S CERTIFICATE]
C-1
<PAGE> 1
EXHIBIT 10.3
SERIES 1995-1 SUPPLEMENT
dated as of
_____________, 1995
to
ADMINISTRATIVE AGENCY AGREEMENT
dated as of
_______ __, 1995
among
COMERICA BANK,
as trustee of Ford Credit Titling Trust,
FORD MOTOR CREDIT COMPANY,
as Administrative Agent and initial Beneficiary
of Ford Credit Titling Trust,
and
FORD CREDIT LEASING COMPANY, INC.
as initial Beneficiary of
Ford Credit Titling Trust
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DESIGNATION OF SUPPLEMENT FOR
SERIES 1995-1 CERTIFICATES
<S> <C> <C>
Section 1.1 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
DEFINITIONS
Section 2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
THE LEASES
Section 3.1 Representations and Warranties of Administrative Agent . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV
FEES AND EXPENSES
Section 4.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
COLLECTIONS
Section 5.1 Establishment of Series Collections Account and Series Payaheads Account . . . . . . . . . . 8
Section 5.2 Application and Distribution of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.3 RCL Trust 1995-1 Purchase Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.4 Monthly Payment Advances and Sale Proceeds Advances . . . . . . . . . . . . . . . . . . . . . 12
Section 5.5 Administrative Purchase upon Term Extension . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
REPORTS TO CERTIFICATEHOLDERS
Section 6.1 Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
ARTICLE VII
OPTIONAL PURCHASE
<S> <C> <C>
Section 7.1 Optional Purchase of Series 1995-1 Certificates . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Provision of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.2 Ratification of Administrative Agency Agreement . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.3 Actions on Behalf of the Lease Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.4 Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Exhibit A - Schedule of Series 1995-1 Leases and Series 1995-1 Leased Vehicles
Exhibit B - Form of Lease
</TABLE>
ii
<PAGE> 4
SERIES 1995-1 SUPPLEMENT, dated and effective as of ______ __, 1995
(this "Supplement"), among FORD MOTOR CREDIT COMPANY, a Delaware corporation
("Ford Credit"), as Administrative Agent, initial Beneficiary of Ford Credit
Titling Trust ("FCTT") and Holder of an Exchangeable Beneficial Certificate,
FORD CREDIT LEASING COMPANY, INC., a Delaware corporation ("Ford Credit
Leasing") as initial Beneficiary of FCTT and Holder of an Exchangeable
Beneficial Certificate, and COMERICA BANK, a Michigan banking corporation, not
in its individual capacity but as trustee for FCTT ("Comerica").
WHEREAS, pursuant to Section 4.3 of the FCTT Agreement, the
Administrative Agent, acting at the unanimous direction of the Holders of
Exchangeable Beneficial Certificates, has delivered to Comerica a Series
Specification Notice listing certain FCTT Assets which are to be designated as
Series 1995-1 Assets;
WHEREAS, on the Series Issue Date Comerica shall issue a Series of
Specified Beneficial Certificates designated as the "Series 1995-1 Certificates"
representing in the aggregate a 100 percent interest in the Series Specified
Assets designated as the Series 1995-1 Assets;
WHEREAS, Ford Credit and Ford Credit Leasing intend to contribute their
interest in their respective Series 1995-1 Certificates to RCL Trust 1995-1,
including their rights under the Administrative Agency Agreement and this
Supplement; and
WHEREAS, in order to administer and service the Series 1995-1 Assets in
the manner contemplated by the Administrative Agency Agreement the parties
hereto have determined that it is in the best interests of each of the
Beneficiaries of FCTT, the transferees of such Beneficiaries, the Administrative
Agent and Comerica to enter into this Supplement;
NOW THEREFORE, Ford Credit, Ford Credit Leasing and Comerica hereby
agree as follows:
<PAGE> 5
ARTICLE I
DESIGNATION OF SUPPLEMENT FOR
SERIES 1995-1 CERTIFICATES
Section 1.1 Designation. (a) Pursuant to Sections 3.3 and 4.3 of the
FCTT Agreement, the Administrative Agent, acting on behalf of FCTT and the
Holders of Exchangeable Beneficial Certificates, has designated the Leases and
Leased Vehicles listed in the Series 1995-1 Specifications Notice and in Exhibit
A attached hereto, as the Series Specified Assets with respect to Series 1995-1
(the "Series 1995-1 Assets") and, in accordance with instructions of the Holders
of the Exchangeable Beneficial Certificates set forth in the Series 1995-1
Specifications Notice, hereby issues to the Holders of the Exchangeable
Beneficial Certificates the Specified Beneficial Certificates representing the
beneficial interest in such Series 1995-1 Assets to be known as the Series
1995-1 Certificates. The parties hereto agree to the following supplemental
provisions to the Administrative Agency Agreement with respect to the Series
1995-1 Certificates.
(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Administrative Agency Agreement, the terms and provisions of this Supplement
shall govern.
ARTICLE II
DEFINITIONS
Section 2.1 Definitions. All capitalized terms which are used herein
and are not defined herein have the meanings assigned to such terms in Appendix
A attached hereto. References to "this Supplement" are to this Series 1995-1
Supplement to the Administrative Agency Agreement. References to "the
Administrative Agency Agreement" are to the Administrative Agency Agreement, as
supplemented by this Supplement, and as may be otherwise supplemented, amended
or modified from time to time. To the extent that any term is defined in both
the Administrative Agency Agreement (or Appendix I attached thereto) and this
Supplement (or Appendix A attached hereto), the definition set forth in this
Supplement (or Appendix A) shall be controlling. All references to
2
<PAGE> 6
Articles, Sections, subsections and schedules are to Articles, Sections,
subsections and schedules of this Supplement unless otherwise specified.
ARTICLE III
THE LEASES
Section 3.1 Representations and Warranties of Administrative Agent.
Ford Credit, in its capacity as Administrative Agent, makes the following
representations and warranties as to the Series 1995-1 Assets, on which Comerica
relies in executing and authenticating the Series 1995-1 Certificates and on
which Ford Credit and Ford Credit Leasing, in their capacities as initial
Beneficiaries, rely in making subsequent transfers of the Series 1995-1
Certificates. Such representations and warranties speak as of the execution and
delivery of this Supplement, and shall survive the sale, transfer, and
assignment of the Series 1995-1 Certificates by Ford Credit and Ford Credit
Leasing to RCL Trust and any subsequent transferee:
(a) New Vehicle. Each Series 1995-1 Leased Vehicle was a new
automobile or light-duty truck at the inception of the related 1995-1
Lease.
(b) Certificate of Title. Each Series 1995-1 Leased Vehicle was titled
in the name of "Ford Credit Titling Trust," "Ford Credit Titling Trust,
Comerica Bank, Trustee" or such substantially similar words acceptable to
the relevant Governmental Authority.
(c) Residual Value. The Residual Value of each Series 1995-1 Leased
Vehicle does not exceed an amount established by the Administrative Agent
consistent with its policies and practices regarding the setting of
residual values as applied with respect to closed-end retail automobile and
light-duty truck leases.
(d) Pool Balance. At the Series 1995-1 Cut-Off Date the Pool Balance
was $_________.
(e) Interest in Lease and Leased Vehicle. Each Series 1995-1 Lease was
entered into by a
3
<PAGE> 7
Dealer located in the United States, as lessor, and a Lessee with a billing
address in the United States, as lessee, and all of the Dealer's right,
title and interest in such Series 1995-1 Lease and the related Series
1995-1 Leased Vehicle was validly assigned by such Dealer to FCTT.
(f) Customary and Enforceable Provisions. Each Series 1995-1 Lease (i)
was originated by a Dealer in the ordinary course of its business and in
compliance with the Administrative Agent's, normal credit and collection
policies and practices, (ii) contains customary and enforceable
provisions and (iii) is substantially in the form of Exhibit B.
(g) Total Monthly Payments. Each Series 1995-1 Lease provides for
Total Monthly Payments which include Constant Yield Payments that fully
amortize the Balance Subject to Lease Charges of such Series 1995-1 Lease
to a final payment equal to the Residual Value of the related Series 1995-1
Leased Vehicle over the term of such Series 1995-1 Lease.
(h) Compliance with Law. At the time it was originated or made, and as
of the date of this Supplement, each Series 1995-1 Lease complied in all
material respects with all requirements of applicable federal, state, and
local laws, and regulations thereunder.
(i) Binding Obligation. Each Series 1995-1 Lease represents the
genuine, legal, valid and binding payment obligation in writing of the
related Lessee, enforceable by the holder thereof in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally
and general principles of equity.
(j) No Government Lessee. None of the Series 1995-1 Leases is an
obligation of the United States of America or any state or of any agency,
department, or instrumentality of the United States of America or any
state.
4
<PAGE> 8
(k) Leases in Force. As of the Series 1995-1 Specification Date, no
Series 1995-1 Lease had been satisfied, subordinated, rescinded, cancelled
or terminated.
(l) No Waiver. No provision (other than the assessment of a Security
Deposit or Reconditioning Reserve) of a Series 1995-1 Lease has been
waived.
(m) No Defenses. No right of rescission, setoff, counterclaim, or
defense has been asserted or threatened with respect to any Series 1995-1
Lease.
(n) No Default. As of the Series 1995-1 Specification Date, no default
in payment by any Lessee of any payments due with respect to a Series
1995-1 Lease had occurred and was continuing for a period of more than
thirty days; and no continuing condition that with notice or the lapse of
time would constitute a default, breach, violation, or event permitting
termination or cancellation under the terms of any Series 1995-1 Lease had
arisen.
(o) No Recourse to Dealer. No Series 1995-1 Lease provides for
recourse to the related Dealer.
(p) Insurance. Each Lessee, to the best knowledge of the Administrative
Agent, has obtained or agreed to obtain physical damage insurance and
liability insurance covering the related Series 1995-1 Leased Vehicle as
required under the related Series 1995-1 Lease.
(q) Title. No Series 1995-1 Asset has been sold, transferred,
assigned, or pledged by any Dealer to any Person other than FCTT.
Comerica, as trustee for FCTT and for the benefit of the Holders of Series
1995-1 Certificates, has good and marketable title to each Series 1995-1
Lease and each Series 1995-1 Leased Vehicle, free and clear of all Liens,
encumbrances, security interests, and rights of others, including liens or
claims for work, labor or material relating to such Series 1995-1 Leased
Vehicle.
5
<PAGE> 9
(r) Valid Assignment. No Series 1995-1 Lease was originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer,
and assignment of such Series 1995-1 Lease to FCTT or of a beneficial
interest in such Series 1995-1 Lease pursuant to transfers of Series 1995-1
Certificates is unlawful, void, or voidable. No Series 1995-1 Leased
Vehicle is subject to the laws of any jurisdiction under which the sale,
transfer, and assignment of such Series 1995-1 Leased Vehicle to FCTT or of
a beneficial interest in such Series 1995-1 Leased Vehicle pursuant to
transfers of Series 1995-1 Certificates is unlawful, void, or voidable. No
Dealer has entered into any agreement with any Lessee that prohibits,
restricts or conditions the assignment of any portion of a Series 1995-1
Lease.
(s) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give Comerica, on behalf of FCTT,
a first perfected ownership interest in each Series 1995-1 Lease have been
made.
(t) Chattel Paper. Each Series 1995-1 Lease constitutes "chattel
paper" as defined in the UCC.
(u) One Original. There is only one original of each Series 1995-1
Lease, which is held by the Administrative Agent on behalf of FCTT.
(v) No Deferred Gross. No Series 1995-1 Lease is subject to a holdback
of Excess Deferred Gross.
(w) Origination. Each Series 1995-1 Lease has an origination date on
or after ______ __, 199_.
(x) Maturity of Leases. Each Series 1995-1 Lease has a Scheduled Lease
End Date of not greater than 36 months from the date on which it was
entered into.
(y) Minimum Retail Operating Lease Factor. Each Series 1995-1 Lease
has a Retail Operating Lease Factor equal to or greater than __%.
6
<PAGE> 10
(z) Location of Lease Files. The Lease Files relating to each Series
1995-1 Lease are maintained at the offices of the Administrative Agent.
(aa) Scheduled Payments. Each Series 1995-1 Lease has a first
scheduled Total Monthly Payment due on or prior to ______ __, 1995 and no
Series 1995-1 Lease has a Total Monthly Payment that was more than 30 days
overdue as of the Series 1995-1 Cut-Off Date.
(ab) No Extensions. No Term Extension or Payment Extension had been
granted to the Lessee under any Series 1995-1 Lease prior to the Series
1995-1 Cut-Off Date.
(ac) Advanced Payment Program. No Series 1995-1 Lease was originated
under the Advanced Payment Program.
(ad) Other Data. The information relating to the Series 1995-1 Leases
and Series 1995-1 Leased Vehicles contained in the Schedule of Series
1995-1 Assets attached hereto as Exhibit A is true and correct in all
material respects and no selection procedures believed to be adverse to the
Holders of Series 1995-1 Certificates were utilized in selecting the Series
1995-1 Assets.
(ae) Administrative Agency Agreement. The representations and
warranties made by the Administrative Agent in the Administrative Agency
Agreement are true and correct.
ARTICLE IV
FEES AND EXPENSES
Section 4.1 Fees and Expenses. On each Payment Date, the
Administrative Agent shall be paid the Series 1995-1 Administrative Fee in
accordance with terms of the Indenture. In consideration for the payment of
such fees, the Administrative Agent shall pay on each Payment Date (i) the
Series 1995-1 Comerica Fee to Comerica, (ii) the fees and expenses of the
Indenture Trustee as agreed upon in Section 6.7 of the Indenture
7
<PAGE> 11
and (iii) the fees and expenses of the Lease Trustee as agreed upon in Section
8.1 of the Lease Trust Agreement.
ARTICLE V
COLLECTIONS
Series 1995-1 Collections shall be allocated to the Series 1995-1
Certificates and distributed as set forth in Article V and Article VI of the
Administrative Agency Agreement, as modified pursuant to this Article V.
Section 5.1 Establishment of Series Collection Account and Series
Payahead Account. (a) The Administrative Agent shall establish and maintain an
account in the name of the RCL Trustee at an Eligible Institution (which
initially shall be ______) to be designated as the FCTT Specified Assets
Collection Account, Series 1995-1 (the "Series 1995-1 Collection Account"),
bearing an additional designation clearly indicating that the funds deposited
therein are held by the RCL Trustee, subject to the security interest of the
Lease Trustee and the Indenture Trustee. The Series 1995-1 Collection Account
is the "Series Collection Account" for Series 1995-1. The Series 1995-1
Collection Account shall be under the sole dominion and control of the RCL
Trustee; provided, that the rights of the RCL Trustee with respect to the Series
1995-1 Collection Account and to any funds on deposit from time to time therein
shall be subject to the security interest of the Indenture Trustee until the
Outstanding Amount of the Notes has been reduced to zero, and thereafter, to the
security interest of the Lease Trustee until the Aggregate Certificate Balance
has been reduced to zero; provided, further, that the Administrative Agent may
make deposits to and withdrawals from the Series 1995-1 Collection Account in
accordance with clause second of Section 5.2(c) and Section 5.2(d) of the FCTT
Agreement, Section 6.2(b) of the Administrative Agency Agreement and Section
5.2(a) hereof. All deposits to and withdrawals from the Series 1995-1
Collection Account shall be made only upon the terms and conditions of the Basic
Documents.
Any amounts on deposit in the Series 1995-1 Collection Account shall be
invested by the Administrative Agent, acting on behalf of the RCL Trustee and at
the direction of Ford Credit and Ford Credit Leasing, in
8
<PAGE> 12
Permitted Investments with a maturity date no later than the next succeeding
Payment Date. All investment earnings on amounts deposited to the Series
1995-1 Collection Account, including any proceeds thereof, shall be credited to
the Series 1995-1 Collection Account, and losses, if any, resulting from
Permitted Investments in the Series 1995-1 Collection Account shall be charged
to the Series 1995-1 Collection Account. All such investment income shall be
reported for federal income tax purposes as earned (i) 99% by RCL Trust and
(ii) 1% by Ford Credit Leasing: the 99% accruing to RCL Trust shall be reported
in accordance with the Percentage Interests of Ford Credit and Ford Credit
Leasing in RCL Trust. The authority of the Administrative Agent to make
deposits to and withdrawals from the Series 1995-1 Collection Account and to
invest the amounts on deposit therein is revocable at any time by the RCL
Trustee, acting at the direction of the Indenture Trustee until the Outstanding
Amount of Notes has been reduced to zero, and thereafter, the Lease Trustee
until the Aggregate Certificate Balance has been reduced to zero. If the
institution at which the Series 1995-1 Collection Account is established ceases
to be an Eligible Institution, then the Series 1995-1 Collection Account shall
be moved to an Eligible Institution within 10 Business Days (or such longer
period not to exceed 30 calendar days as to which each Rating Agency may
consent).
(b) The Administrative Agent shall establish and maintain an account in
the name of RCL Trust 1995-1 at an Eligible Institution (which initially shall
be ______) to be designated as the "Series 1995-1 Payahead Account," bearing an
additional designation clearly indicating that funds deposited therein are held
by the RCL Trustee, subject to the security interest of the Indenture Trustee.
The Series 1995-1 Payahead Account is the "Series Payahead Account" for Series
1995-1. The Series 1995-1 Payahead Account shall be under the sole dominion and
control of the RCL Trustee; provided, that the rights of the RCL Trustee with
respect to the Series 1995-1 Payahead Account and to any funds on deposit from
time to time therein shall be subject to the security interest of the Indenture
Trustee until the Outstanding Amount of the Notes has been reduced to zero, and
thereafter, to the security interest of the Lease Trustee until the Aggregate
Certificate Balance has been reduced to zero; provided, further, that the
Administrative Agent may make deposits to and withdrawals from the Series 1995-1
Payahead Account in accordance with Section 6.1(a) of the Administrative Agency
Agreement and Section 5.2(b) here-
9
<PAGE> 13
of. All deposits to and withdrawals from the Series 1995-1 Payahead Account
shall be made only upon the terms and conditions of the Basic Documents.
Any amounts on deposit in the Series Payahead Account shall be invested
by the Administrative Agent, acting on behalf of the RCL Trustee and at the
direction of Ford Credit and Ford Credit Leasing, in Permitted Investments which
mature no later than the next succeeding Payment Date. All investment earnings
on amounts deposited to the Series 1995-1 Payahead Account shall be credited to
the RCL Account, and losses, if any, resulting from Permitted Investments in the
Series 1995-1 Payahead Account shall be charged to the RCL Account. All such
investment income shall be reported for federal income tax purposes as earned
(i) 99% by RCL Trust 1995-1 and (ii) 1% by Ford Credit Leasing: the 99% accruing
to RCL Trust shall be reported in accordance with the Percentage Interests of
Ford Credit and Ford Credit Leasing in RCL Trust. The authority of the
Administrative Agent to make deposits to and withdrawals from the Series 1995-1
Payahead Account and to invest the amounts on deposit therein is revocable at
any time by the RCL Trustee, acting at the direction of the Indenture Trustee
until the Outstanding Amount of Notes has been reduced to zero, and thereafter,
the Lease Trustee until the Aggregate Certificate Balance has been reduced to
zero. If the institution at which the Series 1995-1 Collection Account is
established is no longer on Eligible Institution, then the Series 1995-1
Collection Account shall be moved to an Eligible Institution within 10 Business
Days (or such longer period not to exceed 30 calendar days) as to which each
Rating Agency may consent.
Section 5.2 Application and Distribution of Funds. (a) On each
Business Day the Administrative Agent shall deposit (i) Series 1995-1
Collections in the Series 1995-1 Collection Account pursuant to Section 6.2(b)
of the Administrative Agency Agreement and (ii) any Administrative Purchase
Amounts with respect to beneficial interests in each Series 1995-1 Asset
purchased pursuant to Sections 4.2, 4.5 and 4.7 of the Administrative Agency
Agreement, Section 3.3 or Section 5.6 of the Asset Contribution Agreement;
provided, however, for so long as each Monthly Remittance Condition is
satisfied, the Administrative Agent may make such deposits with respect to a
Collection Period on the related Distribution Date.
10
<PAGE> 14
(b) On each Business Day the Administrative Agent shall deposit
Payaheads with respect to Series 1995-1 Assets in the Series 1995-1 Payahead
Account pursuant to Section 6.1(a) of the Administrative Agency Agreement;
provided, however, that for so long as each Monthly Remittance Condition is
satisfied, the Administrative Agent shall not be required to deposit Payaheads
in the Series 1995-1 Payahead Account or to segregate or otherwise hold separate
any Payaheads remitted by Lessees, but shall be required on each Distribution
Date to deposit Payaheads with respect to any Series 1995-1 Lease for which the
related Lessee has failed to remit all or a portion of the Monthly Payment due
during the preceding Collection Period in the Series 1995-1 Collection Account
in an amount equal to the lesser of (x) the Payahead Balance outstanding on such
Distribution Date with respect to such Series 1995-1 Lease and (y) the portion
of such Monthly Payment not received.
(c) In accordance with Section 5.4(a), on each Payment Date, the
Administrative Agent shall deposit to, or withdraw from, the Series 1995-1
Collection Account the sum of the Aggregate Net Sale Proceeds Advances for the
preceding three Collection Periods.
(d) In accordance with Section 5.4(b), on each Payment Date, the
Administrative Agent shall deposit to, or withdraw from, the Series 1995-1
Collection Account the sum of the Aggregate Net Monthly Payment Advances for
Preceding three Collection Periods.
(e) On each Payment Date, the Administrative Agent shall withdraw all
amounts on deposit in the Series 1995-1 Collection Account, after making the
deposits and withdrawals set forth in Sections 5.2(a), (b), (c) and (d), and
deposit all amounts therein including any investment income earned on the
amounts deposited therein and proceeds thereof, to (i) the Series 1995-1
Payments Account, if the Outstanding Amount of the Notes is greater than zero,
or, (ii) the Certificate Distribution Account, if the Outstanding Amount of the
Notes has been reduced to zero. On each Payment Date, the Administrative Agent
shall charge to the Series 1995-1 Collection Account losses, if any, resulting
from Permitted Investments in the Series 1995-1 Collection Account. All such
investment income shall be reported for federal income tax purposes as earned
(i) 99% by RCL Trust 1995-1 and (ii) 1% by Ford Credit Leasing: the 99% accruing
to RCL Trust shall be reported in accordance with the Percentage
11
<PAGE> 15
Interests of Ford Credit and Ford Credit Leasing in RCL Trust.
(f) On each Payment Date, the Administrative Agent shall withdraw all
investment income earned on amounts deposited in the Series 1995-1 Payahead
Account and any proceeds thereof and deposit such amounts in the RCL Account. On
each Payment Date, the Administrative Agent shall charge to the RCL Account all
losses, if any, resulting from Permitted Investments in the Series 1995-1
Payahead Account.
Section 5.3 RCL Trust 1995-1 Purchase Option. To the extent that the
proceeds received by the Administrative Agent from the sale of any Series 1995-1
Leased Vehicle after the expiration of the related Series 1995-1 Lease exceeds
the Residual Value for such Series 1995-1 Leased Vehicle, RCL Trust 1995-1 will
be assumed to have exercised its option, granted in the Program Operating Lease,
to purchase the beneficial interest in such Series 1995-1 Leased Vehicle at the
RCL Purchase Option Price, and to have caused the Administrative Agent to have
subsequently sold the beneficial interest in such Series 1995-1 Leased Vehicle
on behalf of RCL Trust 1995-1 for an amount equal to the proceeds from such
sale. Such assumption with respect to the beneficial interest in any Series
1995-1 Leased Vehicle shall be rebutted upon receipt of written direction from
the RCL Trustee that RCL Trust has not exercised its option to purchase the
beneficial interest in such Series 1995-1 Leased Vehicle. Sale Proceeds in
excess of the RCL Purchase Option Price shall be distributed by the
Administrative Agent to RCL Trust and shall be property of RCL Trust.
Section 5.4 Monthly Payment Advances and Sale Proceeds Advances. (a)
On each Payment Date, the Administrative Agent shall make a Sale Proceeds
Advance with respect to each Series 1995-1 Leased Vehicle with respect to which
the related Scheduled Lease End Date has occurred in the related Accrual Period
and the related Sale Proceeds have not been deposited in the Series 1995-1
Collections Account. The Administrative Agent shall be reimbursed for any
outstanding Sale Proceeds Advances with respect to a Series 1995-1 Leased
Vehicle (without interest) as follows:
first, by retaining the Sale Proceeds of the related Series 1995-1 Leased
Vehicle;
12
<PAGE> 16
second, by retaining Sales Proceeds from other Series 1995-1 Leased
Vehicles; and
third, from a draw on the Limited RV Guaranty after the Outstanding Amount
of the Notes and the Aggregate Certificate Balance each have been reduced
to zero.
(b) On each Payment Date, the Administrative Agent shall make Monthly
Payment Advances with respect to each overdue Monthly Payment, determined as of
the end of the related Accrual Period, for all Series 1995-1 Leases (other than
Liquidated Leases) in accordance with Section 6.3 of the Administrative Agency
Agreement. The Administrative Agent shall be reimbursed for any outstanding
Monthly Payment Advances with respect to a Series 1995-1 Lease as follows:
first, by retaining any subsequent Collections (other than Sales Proceeds)
with respect to the related Series 1995-1 Lease or the related Series
1995-1 Leased Vehicle;
second, by retaining Collections (other than Sale Proceeds) with respect
to Series 1995-1; and
third, from a draw on the Reserve Account after the Outstanding Amount of
the Notes and the Aggregate Certificate Balance each have been reduced
to zero.
Section 5.5 Administrative Purchase upon Term Extension.
Notwithstanding Section 4.7 of the Administrative Agency Agreement, on each
Distribution Date, the Administrative Agent, on behalf of the Holders of
Exchangeable Beneficial Certificates, shall deposit in the Series 1995-1
Collections Account the Administrative Purchase Amount for each Series 1995-1
Leased Vehicle the related Lease of which has been subject to a Term Extension
during the Related Collection Period.
13
<PAGE> 17
ARTICLE VI
REPORTS TO CERTIFICATEHOLDERS
Section 6.1 Statements to Certificateholders. (a) On each Distribution
Date, Comerica shall include with each distribution to each Holder of a Series
1995-1 Certificate, the information required to be delivered pursuant to Section
6.4(b) of the Administrative Agency Agreement.
(b) In addition to the information delivered pursuant to Section
6.1(a), the Administrative Agent shall provide to Comerica, and Comerica shall
provide to each Holder of a Series 1995-1 Certificate the following information
in connection with each Payment Date:
(i) the Series 1995-1 Credit Loss with respect to the preceding
Accrual Period; and
(ii) the Series 1995-1 Residual Loss with respect to the preceding
Accrual Period.
ARTICLE VII
OPTIONAL PURCHASE
Section 7.1 Optional Purchase of Series 1995-1 Certificates. On any
Payment Date following the last day of a Collection Period as of which the
Series 1995-1 Asset Amount, as a percentage of the initial Series 1995-1 Asset
Amount as of the Series 1995-1 Cut-Off Date, is less than 10%, the
Administrative Agent shall have the option to purchase the Series 1995-1
Certificates. To exercise such option, the Administrative Agent shall give
Comerica and the Holders of the Series 1995-1 Certificates at least twenty-five
days prior written notice of the Payment Date on which the Administrative Agent
intends to exercise such option, and shall, on such Payment Date, deposit an
amount in immediately available funds equal to the Series 1995-1 Asset Amount as
of the last day of the Related Collection Period to the Series 1995-1 Collection
Account.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Provision of Information. The Administrative Agent shall
provide such information as is requested from time to time by the Holders of the
Series
14
<PAGE> 18
1995-1 Certificates for the purpose of making distributions with respect to
such Series 1995-1 Certificates or with respect to payment on any securities
based on such Series 1995-1 Certificates.
Section 8.2 Ratification of Administrative Agency Agreement. As
supplemented by this Supplement, the Administrative Agency Agreement is in all
respects ratified and confirmed and the Administrative Agency Agreement as so
supplemented by this Supplement shall be read, taken and construed as one and
the same instrument.
Section 8.3 Actions on Behalf of the Lease Trust. The Administrative
Agent hereby accepts the authorization granted pursuant to Section 12.12 of the
Lease Trust Agreement, and agrees that it shall prepare and execute on behalf of
the Lease Trust all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Lease Trust to prepare, file or
deliver pursuant to the Basic Documents. In addition, the Administrative Agent
shall maintain the books and records required by Section 11.2 of the Lease Trust
Agreement.
Section 8.4 Insurance Policies. So long as any Series 1995-1
Certificates are outstanding, the Administrative Agent will maintain and pay
when due all premiums with respect to, and the Administrative Agent may not
terminate or cause the termination of: (i) each contingent and excess liability
Insurance Policy unless (A) a replacement Insurance Policy or policies is
obtained providing coverage against third party claims that may be raised
against the FCTT Trustee, on behalf of FCTT, with respect to any Series 1995-1
Leased Vehicle in an amount at least equal to $__________ per claim, not
subject, to this extent, to any annual or aggregate cap (which policy or
policies may be a blanket insurance policy or policies covering the
Administrative Agent and one or more of its Affiliates), and (B) either (i) each
Rating Agency has delivered a letter to the Indenture Trustee for so long as the
Outstanding Amount of the Notes is greater than zero and thereafter to the Lease
Trustee to the effect that the obtaining of any such replacement insurance
policy or policies, in and of itself, will not cause the rating of any of the
Notes or Lease Trust Certificates to be reduced or withdrawn. The obligations
of the Administrative Agent pursuant to this Section 8.4 shall survive any
termination of the Administrative Agent's obligations with respect to the Series
15
<PAGE> 19
1995-1 Leases and Series 1995-1 Leased Vehicles under this Supplement or the
Agreement.
Section 8.5 Counterparts. This Supplement 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 8.6 Notices. All directions, notices and instructions to the
Trustee shall be in writing (which may be facsimile).
Section 8.7 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 8.8 GOVERNING LAW. THIS SUPPLEMENT 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.
16
<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have caused this Supplement 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: ___________________________
Name:
Title:
FORD MOTOR CREDIT COMPANY,
as Administrative Agent
and initial Beneficiary of
Ford Credit Titling Trust
By:___________________________
Name:
Title:
FORD CREDIT LEASING COMPANY, INC.,
as initial Beneficiary of Ford
Credit Titling Trust
By:___________________________
Name:
Title:
17
<PAGE> 21
EXHIBIT A
[SCHEDULE OF SERIES 1995-1 LEASES
AND SERIES 1995-1 LEASED VEHICLES]
18
<PAGE> 22
EXHIBIT B
[Form of Lease]
19
<PAGE> 1
EXHIBIT 10.4
ASSET CONTRIBUTION AGREEMENT
dated as of
, 1995
-------------
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.,
as Contributors,
and
THE CHASE MANHATTAN BANK (USA),
as trustee of RCL Trust 1995-1,
as Contributee
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
PURCHASE AND SALE OF SERIES 1995-1
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1 Contribution of Series 1995-1 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.2 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . 3
Section 3.1 Warranties of the RCL Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.2 Representations and Warranties of the Contributors . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.3 Repurchase upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.1 Conditions to Obligation of the RCL Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.2 Conditions to Obligation of the Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
COVENANTS OF THE CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . 12
Section 5.1 Protection of Right, Title and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.2 Other Liens or Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.3 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.5 Absolute Transfer; Sale
or Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.1 Obligations of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.2 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.4 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.5 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.6 Representations of the Contributors and the RCL Trustee . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 6.7 Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.11 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
Exhibit A-- Schedule of Series 1995-1 Assets
Exhibit B-- Form of Series 1995-1 Lease
ii
<PAGE> 4
ASSET CONTRIBUTION AGREEMENT, dated and effective as of
_________, 1995, among (i) FORD MOTOR CREDIT COMPANY, a Delaware corporation,
as a contributor ("Ford Credit"), (ii) FORD CREDIT LEASING COMPANY, INC., a
Delaware corporation, as a contributor ("Ford Credit Leasing" and, collectively
with Ford Credit, in their capacities as contributors hereunder, the
"Contributors"), and (iii) THE CHASE MANHATTAN BANK (USA), not in its
individual capacity but solely as trustee for RCL Trust 1995-1 (in such
capacity, the "RCL Trustee") as contributee.
WHEREAS, Ford Credit, Ford Credit Leasing and Comerica Bank,
as trustee, pursuant to the FCTT Agreement, have created Ford Credit Titling
Trust ("FCTT") for the purpose of holding Leases and Leased Vehicles and other
FCTT Assets;
WHEREAS, pursuant to the FCTT Agreement, Ford Credit and Ford
Credit Leasing, as holders of the Exchangeable Beneficial Certificates, have
directed Comerica Bank to issue to each of them the Series 1995-1 Certificates
representing a beneficial interest in FCTT and the Series 1995-1 Assets;
WHEREAS, Ford Credit, Ford Credit Leasing and the RCL Trustee
wish to set forth the terms pursuant to which the Series 1995-1 Certificates
are to be contributed by Ford Credit and Ford Credit Leasing to RCL Trust
1995-1; and
WHEREAS, Ford Credit, Ford Credit Leasing and the RCL Trustee
intend to engage in the other transactions contemplated by the Basic Documents.
NOW, THEREFORE, Ford Credit, Ford Credit Leasing and the RCL
Trustee hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement capitalized
terms have the meanings assigned to them herein or, if not defined herein, as
defined in Appendix A attached hereto. To the extent that the definitions set
forth herein conflict with the defini-
<PAGE> 5
tions 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 Asset Contribution Agreement, and all references
herein to Articles, Sections and subsections are to Articles, Sections and
subsections of this Agreement unless otherwise specified.
"Removal Event" has the meaning set forth in Section 3.3.
"Schedule of Series 1995-1 Assets" means the list of Series
1995-1 Leased Vehicles and Series 1995-1 Leases annexed hereto as Exhibit A,
which may be in the form of microfiche or a computer tape.
ARTICLE II
CONTRIBUTION OF SERIES 1995-1
CERTIFICATES
Section 2.1 Contribution of Series 1995-1 Certificates. On
the Closing Date, subject to the terms and conditions of this Agreement, each
of the Contributors agrees to contribute to RCL Trust 1995-1, and the RCL
Trustee on behalf of RCL Trust 1995-1 agrees to accept from the Contributors,
the Series 1995-1 Certificates and the other property relating thereto, as
specified in the following paragraph.
On the Closing Date and immediately preceding the transactions
contemplated by the Transfer Agreement, the Contributors shall contribute,
transfer, assign and otherwise convey to the RCL Trustee, without recourse, all
right, title and interest of the Contributors, whether now owned or hereafter
acquired, in and to the following: (i) the Series 1995-1 Certificates,
including all monies paid thereon and due thereon on or after the Series
1995-1 Cut-Off Date (including any monies received prior to the Series 1995-1
Cut-Off Date that are due on or after the Series 1995-1 Cut-Off Date and were
not used to reduce the principal balance of the Series 1995-1 Certificates) and
(ii) the Administrative Agency Agreement and the Series 1995-1 Supplement. The
Series 1995-1 Certificates shall become RCL Assets and the interests of the
Contributors as beneficiaries of RCL Trust 1995-1 shall reflect such additions.
2
<PAGE> 6
Section 2.2 The Closing. The contribution of the Series
1995-1 Certificates shall take place at a closing at the offices of Skadden,
Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, New York 10022 on the
Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Warranties of the RCL Trustee. The RCL Trustee
hereby represents and warrants to each of the Contributors as of the date
hereof and as of the Closing Date:
(a) Organization and Good Standing. The RCL
Trustee is a banking corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) Power and Authority. The RCL Trustee has full
power, authority and legal right to execute, deliver and perform this
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement.
(c) No Violation. The execution, delivery and
performance by it of this Agreement (i) shall not violate any provision of any
law or regulation 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 by-laws of the RCL Trustee,
and (iii) shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, any mortgage, indenture, contract,
agreement or other undertaking to which the RCL Trustee is a party.
(d) Governmental Approvals. 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
3
<PAGE> 7
or trust companies in the jurisdiction in which RCL was formed.
(e) Validity; Binding Obligation. This Agreement
has been duly executed and delivered by the RCL Trustee and constitutes the
legal, valid, 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.
(f) No Litigation. 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 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 3.2 Representations and Warranties of the
Contributors. (a) Ford Credit and Ford Credit Leasing each hereby represents
and warrants, as to itself, to the RCL Trustee as of the date hereof and as of
the Closing Date:
(i) Organization. Such Contributor has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are
presently owned and such business is presently conducted.
(ii) Good Standing. Such Contributor is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualifications.
4
<PAGE> 8
(iii) Power and Authority. Such Contributor has the full
power and authority to execute and deliver this Agreement, to carry
out its terms, and to contribute and assign the property contributed
and assigned by it to RCL Trust 1995-1 hereunder and has duly
authorized such contribution and assignment by all necessary corporate
action.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of
this Agreement do not conflict with, result in any breach of any of
the terms and provisions of or constitute (with or without notice or
lapse of time) a default under, such Contributor's certificate of
incorporation or by-laws, or any indenture, agreement or other
instrument to which it is a party or by which it is bound, or result
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument, or violate any law or, to the best of such Contributor's
knowledge, any order, rule or regulation applicable to it of any court
or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over it or any
of its properties.
(v) Validity; Binding Obligation. This Agreement has been
duly authorized, executed and delivered by it and constitutes the
legal, valid and binding agreement of such Contributor, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(vi) No Proceedings. No legal or governmental proceedings
are pending to which such Contributor is a party or of which any
property of such Contributor is the subject, and no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others, other than such proceedings which will not have
a material adverse effect upon the general affairs, financial
position, net worth
5
<PAGE> 9
or results of operations (on an annual basis) of such Contributor and
its subsidiaries considered as a whole and will not materially and
adversely affect the performance by such Contributor of its
obligations under, or the validity and enforceability of, this
Agreement.
(b) Each of the Ford Credit and Ford Credit Leasing makes
the following representations and warranties as to the Series 1995-1 Assets, on
which RCL Trust 1995-1 relies in accepting the Series 1995-1 Certificates.
Such representations and warranties speak as of the execution and delivery of
this Agreement, but shall survive the contribution, transfer, and assignment of
the Series 1995-1 Certificates to RCL Trust 1995-1 and any subsequent
assignment or transfer by RCL Trust 1995-1:
(i) New Vehicle. Each Series 1995-1 Leased Vehicle was a new
automobile or light-duty truck at the inception of the related Series
1995-1 Lease.
(ii) Certificate of Title. Each Series 1995-1 Leased Vehicle
was titled in the name of "Ford Credit Titling Trust," "Ford Credit
Titling Trust, Comerica Bank, Trustee" or such substantially similar
words acceptable to the relevant Governmental Authority.
(iii) Residual Value. The Residual Value of each Series
1995-1 Leased Vehicle does not exceed an amount established by the
Administrative Agent consistent with its policies and practices
regarding the setting of residual values as applied with respect to
closed-end retail automobile and light-duty truck leases.
(iv) Pool Balance. At the Series 1995-1 Cut-Off Date the
Pool Balance was $_________.
(v) Interest in Lease and Leased Vehicle. Each Series 1995-1
Lease was entered into by a Dealer located in the United States, as
lessor, and a Lessee with a billing address in the United States, as
lessee, and all of the Dealer's right, title and interest in such
Series 1995-1 Lease and the related Series 1995-1 Leased Vehicle was
validly assigned by such Dealer to FCTT.
6
<PAGE> 10
(vi) Customary and Enforceable Provisions. Each Series
1995-1 Lease (x) was originated by a Dealer in the ordinary course of
its business and in compliance with the Administrative Agent's normal
credit and collection policies and practices, (y) contains customary
and enforceable provisions and (z) is substantially in the form of
Exhibit B.
(vii) Total Monthly Payments. Each Series 1995-1 Lease
provides for Total Monthly Payments which include Constant Yield
Payments that fully amortize the Balance Subject to Lease Charges of
such Series 1995-1 Lease to a final payment equal to the Residual
Value of the related Series 1995-1 Leased Vehicle over the term of
such Series 1995-1 Lease.
(viii) Compliance with Law. At the time it was originated or
made, and as of the date of this Agreement, each Series 1995-1 Lease
complied in all material respects with all requirements of applicable
federal, state, and local laws, and regulations thereunder.
(ix) Binding Obligation. Each Series 1995-1 Lease represents
the genuine, legal, valid and binding payment obligation in writing of
the related Lessee, enforceable by the holder thereof in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally and general principles of equity.
(x) No Government Lessee. None of the Series 1995-1 Leases
is an obligation of the United States of America or any state or of
any agency, department, or instrumentality of the United States of
America or any state.
(xi) Leases in Force. As of the Series 1995-1 Specification
Date, no Series 1995-1 Lease had been satisfied, subordinated,
rescinded, cancelled or terminated.
(xii) No Waiver. No provision (other than the assessment of
a Security Deposit or Reconditioning Reserve) of a Series 1995-1 Lease
has been waived.
7
<PAGE> 11
(xiii) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or threatened with respect
to any Series 1995-1 Lease.
(xiv) No Default. As of the Series 1995-1 Specification
Date, no default in payment by any Lessee of any payments due with
respect to a Series 1995-1 Lease had occurred and was continuing for a
period of more than thirty days; and no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation, or event permitting termination or cancellation under the
terms of any Series 1995-1 Lease had arisen.
(xv) No Recourse to Dealer. No Series 1995-1 Lease provides
for recourse to the related Dealer.
(xvi) Insurance. Each Lessee, to the best knowledge of the
Administrative Agent, has obtained or agreed to obtain physical damage
insurance and liability insurance covering the related Series 1995-1
Leased Vehicle as required under the related Series 1995-1 Lease.
(xvii) Title. No Series 1995-1 Asset has been sold,
transferred, assigned, or pledged by any Dealer to any Person other
than FCTT. Comerica, as trustee for FCTT and for the benefit of the
Holders of Series 1995-1 Certificates, has good and marketable title
to each Series 1995-1 Lease and each Series 1995-1 Leased Vehicle,
free and clear of all Liens, encumbrances, security interests, and
rights of others, including liens or claims for work, labor or
material relating to such Series 1995-1 Leased Vehicle.
(xviii) Valid Assignment. No Series 1995-1 Lease was
originated in, or is subject to the laws of, any jurisdiction under
which the sale, transfer, and assignment of such Series 1995-1 Lease
to FCTT or of a beneficial interest in such Series 1995-1 Lease
pursuant to transfers of Series 1995-1 Certificates is unlawful, void,
or voidable. No Series 1995-1 Leased Vehicle is subject to the laws
of any jurisdiction under which the sale, transfer, and assignment of
such Series 1995-1 Leased Vehicle to
8
<PAGE> 12
FCTT or of a beneficial interest in such Series 1995-1 Leased Vehicle
pursuant to transfers of Series 1995-1 Certificates is unlawful, void,
or voidable. No Dealer has entered into any agreement with any Lessee
that prohibits, restricts or conditions the assignment of any portion
of a Series 1995-1 Lease.
(xix) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give
Comerica, on behalf of FCTT, a first perfected ownership interest in
each Series 1995-1 Lease have been made.
(xx) Chattel Paper. Each Series 1995-1 Lease constitutes
"chattel paper" as defined in the UCC.
(xxi) One Original. There is only one original of each
Series 1995-1 Lease, which is held by the Administrative Agent on
behalf of FCTT.
(xxii) No Deferred Gross. No Series 1995-1 Lease is subject
to a holdback of Excess Deferred Gross.
(xxiii) Origination. Each Series 1995-1 Lease has an
origination date on or after December 1, 1994.
(xxiv) Maturity of Leases. Each Series 1995-1 Lease has a
Scheduled Lease End Date of not greater than 36 months from the date
on which it was entered into.
(xxv) Minimum Retail Operating Lease Factor. Each Series
1995-1 Lease has a Retail Operating Lease Factor equal to or greater
than __%.
(xxvi) Location of Lease Files. The Lease Files relating to
each Series 1995-1 Lease are maintained at the offices of the
Administrative Agent.
(xxvii) Scheduled Payments. Each Series 1995-1 Lease has a
first scheduled Total Monthly Payment due on or prior to ______ __,
1995 and no Series 1995-1 Lease has a Total Monthly Payment that
9
<PAGE> 13
was more than 30 days overdue as of the Series 1995-1 Cut-Off Date.
(xxviii) No Extensions. No Term Extension or Payment
Extension had been granted to the Lessee under any Series 1995-1 Lease
prior to the Series 1995-1 Cut-Off Date.
(xxix) Advanced Payment Program. No Series 1995-1 Lease was
originated under the Advanced Payment Program.
(xxx) Other Data. The information relating to the Series
1995-1 Leases and Series 1995-1 Leased Vehicles contained in the
Schedule of Series 1995-1 Assets attached hereto as Exhibit A is true
and correct in all material respects and no selection procedures
believed to be adverse to the Holders of Series 1995-1 Certificates
were utilized in selecting the Series 1995-1 Assets.
(xxxi) Administrative Agency Agreement. The representations
and warranties made by the Administrative Agent in the Administrative
Agency Agreement are true and correct.
(xxxii) True Lease. Each Series 1995-1 Lease is a "true
lease" for federal income tax purposes.
Section 3.3 Repurchase upon Breach. Each of Ford Credit and
Ford Credit Leasing shall inform the parties to this agreement promptly in
writing, upon the discovery of any breach or failure to be true of the
representations and warranties made by it in Section 3.2(b). Unless the breach
or failure to be true of the representations and warranties contained in
Section 3.2(b) shall have been cured by the last day of the second Collection
Period following discovery (or, at the election of the Contributors, the last
day of the first following Collection Period) by Ford Credit (in its capacity
as a Contributor or in its capacity as Administrative Agent) or Ford Credit
Leasing of such breach or failure, each of the Contributors hereby agrees that
such an occurrence shall constitute an event (a "Removal Event") obligating the
Contributors to (i) instruct Comerica and the Administrative Agent, in the
manner set forth in Section 4.7 of the Administrative Agency Agree-
10
<PAGE> 14
ment, to cause the Series 1995-1 Certificates to no longer represent a
beneficial interest in such Series 1995-1 Lease and Series 1995-1 Leased
Vehicle and (ii) cause to be deposited in the Series 1995-1 Collections Account
on behalf of RCL Trust 1995-1 an amount in exchange therefor equal to the
Administrative Purchase Amount. The removal and payment obligation of the
Contributors pursuant to this Section 3.3 shall constitute the sole remedy of
RCL Trust 1995-1 against the Contributors with respect to any Removal Event.
Upon payment to the RCL Trustee of such Administrative Purchase Amount with
respect to a Series 1995-1 Asset, the Series 1995-1 Certificates shall no
longer represent an interest in such asset.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions to Obligation of the RCL Trustee. The
obligation of the RCL Trustee to accept the contribution of the Series 1995-1
Certificates is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of each of the Contributors hereunder shall be
true and correct on the Closing Date with the same effect as if then made, and
each Contributor shall have performed all obligations to be performed by such
Contributor hereunder on or prior to the Closing Date.
(b) Delivery of Series 1995-1 Certificates and
Schedule of Series 1995-1 Assets. The Contributors shall deliver the Series
1995-1 Certificates registered in the name of the RCL Trustee and the Schedule
of Series 1995-1 Assets certified by an officer of the Administrative Agent to
be true, correct and complete.
(c) Documents to be delivered by the Contributors
at the Closing. (i) On or prior to the Closing Date, each Contributor shall
record and file, at its own expense, a UCC-1 financing statement in each
jurisdiction in which required by applicable law, executed by the Contributor,
as seller naming the RCL Trustee, as purchaser, and naming the Series 1995-1
Certificates and the other property conveyed hereunder as the property
11
<PAGE> 15
sold, meeting the requirements of the laws of each such jurisdiction and in
such manner as is necessary to perfect the sale, transfer, assignment and
conveyance of such property to the RCL Trustee. The Contributors shall deliver
a file-stamped copy of such filing, or other evidence satisfactory to the RCL
Trustee, to the RCL Trustee on or prior to the Closing Date.
(ii) Such other documents as the RCL
Trustee may reasonably request.
(d) Other Transactions. On or prior to the
Closing Date (i) each of the Basic Documents shall have been executed and
delivered by the parties thereto, and (ii) each of the parties to the Basic
Documents shall have performed all of their respective obligations thereunder
required to be performed on or prior to the Closing Date.
Section 4.2 Conditions to Obligation of the Contributors.
The obligation of each of the Contributors to contribute the Series 1995-1
Certificates to the RCL Trustee is subject to each representation and warranty
of the RCL Trustee hereunder being true and correct on the Closing Date as if
such representation and warranty was then made, and each obligation to be
performed by the RCL Trustee by the Closing Date having been performed.
ARTICLE V
COVENANTS OF THE CONTRIBUTORS
Ford Credit and Ford Credit Leasing each hereby agrees with
the RCL Trustee as follows, provided, however, that to the extent that any
provision of this Article V conflicts with any provision of the Administrative
Agency Agreement, the Administrative Agency Agreement shall govern:
Section 5.1 Protection of Right, Title and Interest. (a)
Each Contributor shall execute and file such financing statements and cause to
be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain, and protect
the interest of RCL Trust 1995-1 in the Series 1995-1 Certificates and in the
proceeds thereof. Each Contributor shall deliver (or cause to be delivered) to
the RCL Trustee file-stamped
12
<PAGE> 16
copies of, or filing receipts for, any document filed as provided above, as
soon as available following such filing.
(b) Each Contributor shall not change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by such Contributor in
accordance with Section 5.1(a) seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the RCL Trustee at
least five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each Contributor shall give the RCL Trustee
at least 60 days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment. The Contributors shall cause the
Administrative Agent to at all times maintain each office from which it shall
service FCTT Assets, and its principal executive office, within the United
States of America.
(d) If at any time either of the Contributors
shall propose to sell, grant a security interest in, or otherwise transfer any
interest in any other Series of Specified Beneficial Certificates to any
prospective purchaser, lender, or other transferee, such Contributor shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from back-up archives) that, if
they shall refer in any manner whatsoever to any Series 1995-1 Asset, shall
indicate clearly that such Series 1995-1 Asset is owned by Comerica as trustee
for FCTT and that the beneficial interest in such Series 1995-1 Asset has been
transferred to RCL Trust 1995-1.
(e) The Contributors shall cause the
Administrative Agent to permit the RCL Trustee and its agents (or any agents of
any assignee of the RCL Trustee contemplated by the Basic Documents) at any
time during normal business hours to inspect, audit, and make copies
13
<PAGE> 17
of and abstracts from the Administrative Agent's records regarding any Series
1995-1 Asset.
(f) Upon request of the RCL Trustee, the
Contributors shall cause the Administrative Agent to furnish to the RCL
Trustee, within twenty Business Days, a list of all Series 1995-1 Leases or
Series 1995-1 Leased Vehicles (by vehicle registration number and account
number), together with a reconciliation of such list to the Schedule of Series
1995-1 Leases.
Section 5.2 Other Liens or Interests. Except for the
conveyances hereunder and pursuant to the other Basic Documents, each of the
Contributors will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any interest
therein, and each of the Contributors shall defend the right, title, and
interest of the RCL Trustee in, to and under such Series 1995-1 Leases or
Series 1995-1 Leased Vehicles against all claims of third parties claiming
through or under such Contributor; provided, however, that the Contributors'
obligations under this Section 5.2 shall terminate upon the termination of FCTT
pursuant to the FCTT Agreement.
Section 5.3 Costs and Expenses. The Contributors agree to
pay all reasonable costs and disbursements in connection with the perfection,
as against all third parties, of the RCL Trustee's right, title and interest in
and to the Series 1995-1 Certificates.
Section 5.4 Indemnification. (a) Each Contributor shall
defend, indemnify, and hold harmless RCL Trust 1995-1 and the RCL Trustee from
and against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the failure of a Series 1995-1
Lease or Series 1995-1 Leased Vehicle to be originated in compliance with all
requirements of law and for any breach of any of the Contributors'
representations and warranties contained herein.
(b) Each Contributor shall defend, indemnify, and
hold harmless RCL Trust 1995-1 and the RCL Trustee from and against any and all
costs, expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use or operation by the Contribu-
14
<PAGE> 18
tors or any affiliate thereof or any Dealer of a Series 1995-1 Leased Vehicle.
(c) Each Contributor shall defend, indemnify, and
hold harmless RCL Trust 1995-1 and the RCL Trustee from and against any and all
taxes that may at any time be asserted against RCL Trust 1995-1 and the RCL
Trustee with respect to the transactions contemplated herein, including,
without limitation, any sales, use, gross receipts, general corporation,
tangible personal property, privilege, license or income taxes, taxes on or
measured by income, or any state or local taxes assessed on RCL Trust 1995-1
and the RCL Trustee resulting from the location of assets of RCL Trust 1995-1
or the presence of the RCL Trustee and costs and expenses in defending against
the same; provided, however, that the foregoing indemnity shall not include
income taxes on any fees payable to the RCL Trustee.
(d) Each Contributor shall defend, indemnify, and
hold harmless the RCL Trustee from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost, expense,
loss, claim, damage, or liability arose out of, or was imposed upon RCL Trust
1995-1 and the RCL Trustee through, the negligence, willful misfeasance, or bad
faith of the Contributors in the performance of their duties under the
Agreement or by reason of reckless disregard of the Contributors' obligations
and duties under the Agreement.
These indemnity obligations shall be in addition to any
obligation that each Contributor may otherwise have.
Section 5.5 Absolute Transfer; Sale or Exchange. Each
Contributor agrees to treat this conveyance for all purposes (including without
limitation tax and financial accounting purposes) as an absolute transfer;
which may be either a sale or exchange on all relevant books, records, tax
returns, financial statements and other applicable documents; provided that for
federal income tax purposes the Contributors will treat RCL Trust 1995-1 as a
grantor trust.
15
<PAGE> 19
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Obligations of Contributors. The obligations of
each of the Contributors under this Agreement shall not be affected by reason
of any invalidity, illegality or irregularity of any Series 1995-1 Asset.
Section 6.2 Acknowledgements. Each Contributor acknowledges
that: (a) Lease Trust. The RCL Trustee will, pursuant to the Transfer
Agreement, transfer the Series 1995-1 Certificates to the Lease Trust and
assign its rights under this Agreement to the Lease Trustee for the benefit of
the holders of the Lease Trust Certificates and that the representations and
warranties contained in this Agreement and the rights of the RCL Trustee under
Sections 6.2 and 6.3 are intended to benefit such Lease Trust, any holders of
Lease Trust Certificates and the Indenture Trustee as assignee of the Lease
Trustee pursuant to the terms of the Indenture.
(b) Assignment. The RCL Trustee will, pursuant to
the RCL Assignment Agreement, assign, transfer and convey to Ford Credit
Leasing a 1% interest in the RCL Assets and all of the obligations of RCL Trust
1995-1, including its rights and obligations under the Program Operating Lease
and the RCL Lease Trust Certificates and any amounts payable to RCL Trust
1995-1 pursuant to the Transfer Agreement. After giving effect to such
assignment, transfer and conveyance, Ford Credit Leasing's percentage
beneficial interest in RCL Trust 1995-1 will be reduced from 2% to the
percentage equivalent of a fraction the numerator of which is 1, and the
denominator of which is 99, and Ford Credit's percentage beneficial interest in
RCL Trust 1995-1 will be increased from 98% to the percentage equivalent of a
fraction, the numerator of which is 98, and the denominator of which is 99.
(c) Distribution. After the effective date of the
RCL Assignment Agreement, any distribution of RCL Assets to Ford Credit and
Ford Credit Leasing, as beneficiaries of RCL Trust 1995-1, shall give effect
to the RCL Assignment Agreement as provided in Section 5.2(b) of the RCL Trust
Agreement, such that an amount equal to 1% of the aggregate amount of such
distribution shall be distributed to Ford Credit Leasing, and the
16
<PAGE> 20
remaining 99% of such aggregate amount shall be distributed to Ford Credit and
Ford Credit Leasing in proportion to their respective percentage beneficial
interests in RCL Trust 1995-1, after giving effect to the RCL Assignment
Agreement, as set forth in Section 6.2(b).
Section 6.3 Amendment. This Agreement may be amended by the
parties hereto without the consent of the Holders of the Series 1995-1
Certificates at any time to (i) cure any ambiguity; (ii) correct or supplement
any provision in this Agreement which may be inconsistent with any other
provision in this Agreement; or (iii) add, change or eliminate any other
provisions with respect to matters or questions arising under this Agreement;
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
Notes or Lease Trust Certificates, (y) as confirmed by each Rating Agency
rating the Notes and the Lease Trust Certificates, cause the then current
rating of any Class of Notes or the Lease Trust Certificates to be withdrawn or
reduced or (z) as evidenced by an Opinion of Counsel, cause the Lease Trust,
RCL Trust 1995-1 or FCTT to be taxed as an "association" for federal income tax
purposes.
Section 6.4 Waivers. No failure or delay on the part of the
RCL Trustee in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
Section 6.5 Costs and Expenses. The Contributors will pay
all expenses incident to the performance of their obligations under this
Agreement and the Contributors agree to pay all reasonable out-of-pocket costs
and expenses of the RCL Trustee, including fees and expenses of counsel, in
connection with the perfection as against third parties of the RCL Trustee's
right, title and interest in and to the Series 1995-1 Assets and the
enforcement of any obligation of the Contributors hereunder.
Section 6.6 Representations of the Contributors and the RCL
Trustee. The respective agreements, representations, warranties and other
statements by each
17
<PAGE> 21
of the Contributors and the RCL Trustee set forth in or made pursuant to this
Agreement shall remain in full force and effect and will survive the closing
under Section 2.2.
Section 6.7 Confidential Information. The RCL Trustee agrees
that it will neither use nor disclose to any person the names and addresses of
the Lessees, except in connection with the enforcement of the RCL Trustee's
rights hereunder, under the Series 1995-1 Leases and Series 1995-1 Leased
Vehicles, under the Administrative Agency Agreement or as required by law.
Section 6.8 Notices. All demands, notices and communications
upon or to Ford Credit, Ford Credit Leasing and the RCL Trustee shall be in
writing, and shall be personally delivered, sent by electronic facsimile or
overnight delivery service or mailed by certified mail-return receipt
requested, and shall be deemed to have been duly given to the intended
recipient upon receipt at the respective addresses listed below, or at such
other address as shall be designated by such Person in a written notice to the
other parties to this Agreement.
(i) In the case of Ford Credit:
Ford Motor Credit Company
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Secretary
Fax: 313-337-1160
Telephone: 313-594-7765
(ii) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The American Road
FMCC Building
Dearborn, Michigan 48121
Attention: Treasurer
Fax: 313-594-0735
Telephone: 313-845-4072
18
<PAGE> 22
(iii) In the case of the RCL Trustee:
The Chase Manhattan Bank (USA)
802 Delaware Avenue
Wilmington, Delaware 19801
Attention: Trust Department
Fax: -
---- ----- -----
Telephone: - ]
----- -----
with a copy to:
The Chase Manhattan Bank, N.A.
4 Chase Metro Tech. Center
Brooklyn, New York 11245
Section 6.9 Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the Series
1995-1 Certificates or the rights of the holders thereof.
Section 6.10 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
Section 6.11 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a party hereto shall bind the successors and assigns of
such party.
Section 6.12 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 6.13 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
19
<PAGE> 23
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.
20
<PAGE> 24
IN WITNESS WHEREOF, the parties hereby have caused this Asset
Contribution Agreement to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
FORD MOTOR CREDIT COMPANY,
as a Contributor
By:
-------------------------
Name:
Title:
FORD CREDIT LEASING COMPANY,
INC., as a Contributor
By:
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK (USA),
as trustee for RCL
Trust 1995-1
By:
-------------------------
Name:
Title:
21
<PAGE> 25
Exhibit A
Schedule of Series 1995-1 Assets
A-1
<PAGE> 26
Exhibit B
Form of Series 1995-1 Lease
B-1
<PAGE> 1
EXHIBIT 10.5
TRANSFER AGREEMENT
dated as of
_____________, 1995
between
THE CHASE MANHATTAN BANK (USA),
as Trustee of RCL Trust 1995-1,
as Transferor,
and
PNC BANK, DELAWARE,
as Trustee of Ford Credit Auto Lease Trust 1995-1,
as Transferee
<PAGE> 2
TRANSFER AGREEMENT, dated as of _________, 1995, between THE
CHASE MANHATTAN BANK (USA), acting not in its individual capacity but solely as
trustee of RCL Trust 1995-1, as Transferor (the "Transferor"), and PNC BANK,
DELAWARE, acting not in its individual capacity but solely as trustee of Ford
Credit Auto Lease Trust 1995-1, as Transferee (the "Transferee").
WHEREAS, the Series 1995-1 Certificates have been contributed
to the Transferor;
WHEREAS, the Transferor and the Transferee wish to set forth
the terms pursuant to which the Series 1995-1 Certificates are to be
transferred by the Transferor to the Transferee;
WHEREAS, immediately following such transfer, the Transferee
intends first to grant to CHEMICAL BANK, in its capacity as Indenture Trustee
under the Indenture dated as of ________ __, 1995 entered into with the
Transferee, a security interest in the Series 1995-1 Certificates and then,
subject such security interest, grant to the Transferor the right to the use
of, and proceeds from, the Series 1995-1 Certificates for the term set forth
in, and pursuant to the terms and conditions of, the Program Operating Lease
between the Transferee and the Transferor;
NOW, THEREFORE, the Transferor and the Transferee agree as
follows:
Section 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.
"Agreement" means this Transfer Agreement.
"Transfer Price" means $_____________.
Section 2. Transfer of Series 1995-1 Certificates. (a) In
consideration of the Transfer Price paid by the Transferee to the Transferor,
and other good and
1
<PAGE> 3
valuable consideration, receipt of which is hereby acknowledged, the Transferor
does hereby grant, convey, bargain, assign, transfer, deliver, and set over to
the Transferee, its successors and assigns, all of the Transferor's right,
title and interest in and to the Series 1995-1 Certificates, to have and to
hold the same unto the Transferee, its successors and assigns, forever.
(b) An amount equal to ___% of the Transfer Price ($______) shall be
paid by the Transferee to the Transferor on the Closing Date in cash and ____%
of the Transfer Price $_______ shall be paid by the Transferee to the
Transferor by the issuance to the Transfer on the Closing Date of the RCL Lease
Trust Certificates entitling the holder thereof to the Series 1995-1
Certificates and all other assets of the Transferee after the Outstanding
Amount of the Notes and the Aggregate Certificate Balance of the Lease Trust
Certificates have each been reduced to zero.
Section 3. Transferor's Warranty; Reservation of Security
Interest. (a) The Transferor does hereby warrant to the Transferee, its
successors and assigns that (i) it is the true and lawful owner of the Series
1995-1 Certificates and has the legal right to transfer the Series 1995-1
Certificates; (ii) it has good and valid title to the Series 1995-1
Certificates and that the Series 1995-1 Certificates are on the date hereof
free and clear of all Liens; (iii) good, valid and indefeasible title to the
Series 1995-1 Certificates is hereby conveyed to the Transferee; and (iv) the
Transferor will warrant and defend such title against the claims of all
Persons.
(b) To the extent that the conveyance of the Series 1995-1
Certificates hereunder is characterized by a court or similar Governmental
Authority as a financing, it is intended by the Transferor and the Transferee
that the interest conveyed hereunder constitute a grant of a security interest
under the UCC as in effect in the State of New York by the Transferor to the
Transferee to secure a loan by the Transferee of the Transfer Price to the
Transferor. The Transferor hereby grants to the Transferee a first priority
security interest in and against all of the Transferor's right, title and
interest in and to the Series 1995-1 Certificates. To the extent that the
conveyance of the Series 1995-1 Certificates hereun-
2
<PAGE> 4
der is characterized by a court or similar Governmental Authority of competent
jurisdiction as a financing, the parties hereto agree that this Agreement
constitutes a "security agreement" under all applicable laws.
Section 4. Assignment of Rights. The Transferor hereby
assigns, transfers and sets over unto the Transferee all of the Transferor's
right, title and interest in and to the Asset Contribution Agreement,
including, without limitation, all rights of the Transferor, as Holder of the
Series 1995-1 Certificates, under the Administrative Agency Agreement and the
Series 1995-1 Supplement. Such transfer and assignment includes, without
limitation, all rights, powers and remedies of the Transferor as contributee
under the Asset Contribution Agreement and as Holder of the Series 1995-1
Certificates, including any rights to indemnity or other payments thereunder.
Section 5. Waivers. No failure or delay on the part of the
Transferee in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
Section 6. Confidential Information. The Transferee agrees
that it will neither use nor disclose to any person the names and addresses of
the Lessees under the Series 1995-1 Leases and Series 1995-1 Leased Vehicles,
except in connection with the enforcement of the Transferee's rights hereunder,
under the Administrative Agency Agreement or as required by law.
Section 7. 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. Signature Constitutes Acceptance. By signing this
Agreement, the Transferee hereby acknowledges receipt of and accepts the Series
1995-1 Certificates and the Transferor hereby acknowledges receipt of the
Transfer Price thereof.
3
<PAGE> 5
Section 9. Headings. The headings of the various Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10. 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.
4
<PAGE> 6
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
THE CHASE MANHATTAN BANK (USA)
as trustee of RCL Trust 1995-1,
as Transferor
By:
-------------------------
Name:
Title:
PNC BANK, DELAWARE, as trustee of
Ford Credit Auto Lease Trust
1995-1, as Transferee
By:
-------------------------
Name:
Title:
5
<PAGE> 1
EXHIBIT 10.6
[PROGRAM OPERATING LEASE]
CERTAIN RIGHTS OF THE PROGRAM LESSOR UNDER THIS AGREEMENT AND
IN THE SERIES 1995-1 CERTIFICATES COVERED HEREBY HAVE BEEN ASSIGNED TO, AND ARE
SUBJECT TO A SECURITY INTEREST IN FAVOR OF, CHEMICAL BANK AS INDENTURE TRUSTEE
UNDER AN INDENTURE, DATED AS OF ___________, 1995. THIS AGREEMENT HAS BEEN
EXECUTED IN MULTIPLE COUNTERPARTS. NO SECURITY INTEREST IN THE PROGRAM
LESSOR'S RIGHT, TITLE AND INTEREST IN AND TO THIS AGREEMENT MAY BE CREATED
THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL
COUNTERPART. THIS IS NOT THE ORIGINAL COUNTERPART UNLESS IT IS SEPARATELY
MARKED "ORIGINAL" AND BEARS THE MANUALLY-SIGNED RECEIPT OF THE INDENTURE
TRUSTEE.
================================================================================
AGREEMENT
dated as of ______, 1995
between
THE CHASE MANHATTAN BANK (USA),
as trustee of RCL Trust 1995-1, as
Program Lessee
and
PNC BANK, DELAWARE,
as trustee of Ford Credit Auto Lease Trust 1995-1, as
Program Lessor
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
LEASE OF CERTIFICATES
Section 2.1 Lease of Series 1995-1 Certificates . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
TERM AND PAYMENTS
Section 3.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.2 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.3 Form of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.4 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.5 Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV
UNCONDITIONAL OBLIGATION
Section 4.1 Unconditional Obligation . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V
RETURN OF THE SERIES 1995-1 CERTIFICATES
Section 5.1 Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.2 No Liens upon Return . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI
WARRANTY OF THE PROGRAM LESSOR
Section 6.1 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6.2 Program Lessee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6.3 Assignment and Pledge of
Series 1995-1 Certificates, Series 1995-1 Collection
Account and Series 1995-1 Payahead Account . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VII
LIENS; LOCATION AND INSPECTION
Section 7.1 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7.2 Change of Location . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7.3 Inspection and Information . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VIII
NO SUBLEASE OR RENEWAL
Section 8.1 No Rights to Sublease or Renew . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE IX
PROGRAM LESSEE PURCHASE OPTION
Section 9.1 Program Lessee's Option to Purchase . . . . . . . . . . . . . . . . . . . 10
ARTICLE X
LEASE EVENTS OF DEFAULT
Section 10.1 Lease Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE XI
REMEDIES
Section 11.1 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 11.2 No Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 11.3 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 11.4 Exercise of Other Rights or Remedies . . . . . . . . . . . . . . . . . . 14
ARTICLE XII
ASSIGNMENT OF LEASE
Section 12.1 Program Lessee's Consent to Assignment
by Program Lessor . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 12.2 Program Lessor's Consent to
Assignment by Program Lessee . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XIII
NOTICES, ETC.
Section 13.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 13.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 13.3 Right to Perform for Program Lessee . . . . . . . . . . . . . . . . . . 16
Section 13.4 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 13.5 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 13.6 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . 17
Section 13.7 Original . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 13.8 Single Transaction, Lease Characterization . . . . . . . . . . . . . . . 17
Section 13.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 13.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 13.11 Counterpart Execution and Dating . . . . . . . . . . . . . . . . . . . . 18
Section 13.12 Concerning the Program Lessor . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
ii
<PAGE> 4
This agreement, dated as of _______, 1995 (this "Program Operating
Lease"), between (i) PNC BANK, DELAWARE a [___________ corporation], not in its
individual capacity but solely as trustee of Ford Credit Auto Lease Trust
1995-1 (the "Program Lessor") and (ii) THE CHASE MANHATTAN BANK (USA), a
Delaware corporation, not in its individual capacity but solely in its capacity
as trustee of RCL Trust 1995-1 ("Program Lessee").
W I T N E S S E T H :
WHEREAS, the Series 1995-1 Certificates (such term and other
capitalized terms used herein without definition having the meanings as
provided in Article I hereof) evidence the beneficial interest in the Series
1995-1 Assets, including the right to receive any lease payments in connection
with the Series 1995-1 Leases and any proceeds from the disposition of Series
1995-1 Leased Vehicles;
WHEREAS, pursuant to that certain Transfer Agreement between RCL Trust
and the Lease Trust, the Series 1995-1 Certificates have been transferred to
the Program Lessor;
WHEREAS, pursuant to the Indenture, the Program Lessor has granted a
security interest in the Series 1995-1 Certificates to CHEMICAL BANK, as
Indenture Trustee; and
WHEREAS, the Program Lessee desires to obtain certain rights in and to
the Series 1995-1 Certificates from the Program Lessor, including all rights to
payment and distribution on the Series 1995-1 Certificates during the term
hereof, and the Program Lessor is willing to grant to the Program Lessee such
rights in and to the Series 1995-1 Certificates for the period specified herein
on the terms and conditions set forth herein.
NOW, THEREFORE, the Program Lessor and the Program Lessee hereto agree
as follows:
1
<PAGE> 5
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.
"Lease Term" has the meaning set forth in Section 3.1.
"Notice of Lease Event of Default" has the meaning set forth in
Section 11.1.
"Permitted Liens" means the respective rights and interests of the
Program Lessor and the Indenture Trustee in the Series 1995-1 Certificates and
this Program Operating Lease pursuant to the terms of the Basic Documents,
including the rights of any permitted assignee of the Program Lessor or the
Indenture Trustee.
"Program Operating Lease Termination Date" means the termination date
of this Program Operating Lease, which shall be earlier of (i) 60 days after
the latest Scheduled Lease End Date of any Series 1995-1 Lease and (ii) the
termination of the Program Operating Lease pursuant to Section 11.1(a).
Notwithstanding the Program Operating Lease Termination Date, this Program
Operating Lease will expire with respect to any right to receive payments on
the Series 1995-1 Certificates relating to each Series 1995-1 Leased Vehicle
immediately preceding the sale of such Series 1995-1 Leased Vehicle, but only
if such sale occurs on or after the related Scheduled Lease End Date.
"Program Operating Lease Termination Value" means, as of any Payment
Date, an amount equal to the sum of (i) any interest due and payable on the
Notes and the Lease Trust Certificates, (ii) the Outstanding Amount of the
Notes and the Aggregate Certificate Balance of the Lease Trust Certificates and
(iii) any other amounts payable by the Program Lessor under the Basic
Documents.
2
<PAGE> 6
ARTICLE II
LEASE OF CERTIFICATES
Section 2.1 Lease of Series 1995-1 Certificates. Subject to the
terms and conditions hereof, the Program Lessor hereby agrees to lease to the
Program Lessee, and the Program Lessee hereby agrees to lease from the Program
Lessor, for the Lease Term referred to in Section 3.1, the Series 1995-1
Certificates, including all rights to payment of money on the Series 1995-1
Certificates during the Lease Term; provided, however, that this Program
Operating Lease is subject to the prior security interest granted pursuant to
the Indenture by the Program Lessor to CHEMICAL BANK, as Indenture Trustee.
ARTICLE III
TERM AND PAYMENTS
Section 3.1 Term. The term of this Program Operating Lease (the
"Lease Term") shall begin on the Closing Date and shall end on the earlier to
occur of (a) the Program Operating Lease Termination Date and (b) the date on
which the Lease Trust Certificates are paid in full.
Section 3.2 Payments. (a) On each Payment Date during the Lease
Term, the Program Lessee shall pay the Basic Payment due on such Payment Date
to the Program Lessor.
(b) In addition to the Basic Payment payable by the Program Lessee to
the Program Lessor pursuant to Section 3.2(a), the Program Lessee shall pay the
Additional Payment to the Program Lessor on each Payment Date.
(c) On any Payment Date, the Basic Payment and the Additional Payment
shall be deemed to have been made by the Program Lessee to the extent that an
amount equal to such Basic Payment and Additional Payment has been remitted to
the Indenture Trustee by the Administrative Agent from amounts deposited in the
Series 1995-1 Collections Account or from amounts withdrawn from the Reserve
Account.
3
<PAGE> 7
Section 3.3 Form of Payment. All payments due under this Program
Operating Lease shall be made to the Program Lessor in immediately available
funds prior to 11:00 A.M., New York City time on the applicable Payment Date.
Section 3.4 Tax Treatment. The Program Lessor and Program Lessee
agree to treat the Series 1995-1 Certificates as being owned by the Program
Lessee for federal and state income and franchise tax purposes and further
agree that the Program Lessee is intended to be the owner of the Series 1995-1
Certificates for federal and state income and franchise tax purposes.
Section 3.5 Reserve Account. (a) In order to assure that each Basic
Payment is made on each Payment Date, the Program Lessee shall establish and
maintain an account in the name of the Program Lessee at an Eligible
Institution to be designated as the "Program Operating Lease Reserve Account,
Series 1995-1" (the "Reserve Account"), bearing an additional designation
clearly indicating that the funds deposited therein are held by the Program
Lessee subject to the security interest of the Program Lessor. On the Closing
Date, the Program Lessee shall deposit the Initial Reserve Account Deposit into
the Reserve Account. The Reserve Account shall not be property of the Program
Lessor. In order to provide for the prompt payment when due of each Basic
Payment and to assure the availability of amounts on deposit in the Reserve
Account, the Program Lessee hereby grants a security interest to the Program
Lessor in all amounts on deposit in and credited to the Reserve Account,
including the Initial Reserve Account Deposit and all proceeds thereof (such
amounts, the "Reserve Account Property") to secure the payment on each Payment
Date of each Basic Payment. Reserve Account Property shall be invested in
Reserve Account Investments. If the institution at which the Reserve Account
is maintained ceases to be an Eligible Institution, then the Reserve Account
shall be moved to an Eligible Institution within ten Business Days (or such
longer period not to exceed 30 calendar days as to which each Rating Agency may
consent).
(b) On each Payment Date, pursuant to Section 8.4(b) of the
Indenture, the Program Lessor agrees that the Indenture Trustee shall deposit
the Reserve Account Deposit Amount, if any, for such Payment Date into the
4
<PAGE> 8
Reserve Account, which amount shall be considered Reserve Account Property
subject to the security interest of the Program Lessor; provided, that the
Program Lessor hereby releases, on each Payment Date, its security interest in
the Reserve Account Release Amount.
(c) On each Payment Date, pursuant to Section 8.3 of the Indenture
the Program Lessor agrees that the Indenture Trustee shall (i) withdraw from
the Reserve Account the Reserve Account Draw Amount, if any, for such Payment
Date and apply such amount against the Basic Payment due on such Payment Date
and (ii) withdraw from the Reserve Account the Reserve Account Release Amount
and apply such amount against the Additional Payment due on such Payment Date.
For purposes of the Lease Event of Default set forth in Section 10.1(a), to the
extent that payment is made to the Indenture Trustee of the full Basic Payment
on each Payment Date after giving effect to application of the Reserve Account
Draw Amount, the Program Lessee shall be deemed to have made the Basic Payment
in full on such Payment Date.
(d) Any Reserve Account Property remaining at the end of the Lease
Term and after payment in full of all Basic Payments and Additional Payments
due hereunder shall be released to the Program Lessee.
ARTICLE IV
UNCONDITIONAL OBLIGATION
Section 4.1 Unconditional Obligation. The Program Lessee hereby
acknowledges and agrees that the obligation of the Program Lessee to pay all
Basic Payments and Additional Payments due hereunder, and the rights of the
Program Lessor in and to such Basic Payments and Additional Payments, shall be
absolute and unconditional and shall not be affected by any circumstance of any
character, including, without limitation,
(a) any set-off, abatement, counterclaim, suspension, recoupment,
reduction, defense or other right or claim which the Program Lessee may
have against the Program Lessor, the Indenture Trustee, in its individual
capacity or as Indenture Trustee,
5
<PAGE> 9
any holder of a Note or Lease Trust Certificate, or any other Person for any
reason whatsoever;
(b) the breach or failure of any warranty or representation made in,
or the failure to perform or comply with any of the terms of, this Program
Operating Lease by the Program Lessor, the Indenture Trustee, any holder of
a Note or Lease Trust Certificate or any other Person;
(c) any amendment or other change of, or any assignment of rights
under, this Program Operating Lease or any other Basic Document, or any
waiver, action or inaction under or in respect of this Program Operating
Lease, or any exercise or non-exercise of any right or remedy under this
Program Operating Lease, including, without limitation, the exercise of any
foreclosure or other remedy under the Indenture, this Program Operating
Lease or the sale of the Series 1995-1 Certificates, or any part thereof or
any interest therein;
(d) any insolvency, bankruptcy or similar law affecting creditors'
rights generally;
(e) any claims as a result of any other business dealings by the
Program Lessor, the Program Lessee or any Affiliate thereof, or the
Indenture Trustee;
(f) any defect in or any Lien on the title to the Series 1995-1
Certificates or any part thereof;
(g) any change, waiver, extension, indulgence or other act or omission
in respect of any obligation or liability of the Program Lessor or the
Program Lessee;
(h) any alleged failure on the part of the Program Lessor to perform
or comply with any of the terms hereof or any other agreement;
(i) any invalidity or unenforceability or disaffirmance of this
Program Operating Lease or any provision hereof or any of the other Basic
Documents;
6
<PAGE> 10
(j) any assignment, novation, merger, consolidation, sale or transfer
of assets, leasing or other similar transaction of or affecting the Program
Lessee or Program Lessor, whether with or without the approval of the
Indenture Trustee except as expressly provided in this Program Operating
Lease; or
(k) any other circumstance or happening whatsoever whether or not
similar to any of the foregoing.
Each Basic Payment and Additional Payment made by the Program Lessee
hereunder shall be final and, absent manifest error, the Program Lessee shall
not seek to have any right to recover all or any part of such payment from the
Program Lessor or any other Person for any reason whatsoever. The Program
Lessee hereby waives, to the extent permitted by Applicable Law, any and all
rights which it may now have or which at any time hereafter may be conferred
upon it, by statute or otherwise, to terminate, cancel, quit or surrender this
Program Operating Lease except in accordance with the express terms hereof.
ARTICLE V
RETURN OF THE SERIES 1995-1 CERTIFICATES
Section 5.1 Delivery. Until the lien of the Indenture is released,
the Indenture Trustee will maintain physical possession of the Series 1995-1
Certificates for the benefit of the Noteholders; provided, that the Program
Lessee will continue to have all rights with respect to the Series 1995-1
Certificates set forth in this Program Operating Lease. To the extent the
Program Lessee has physical possession of the Series 1995-1 Certificates, then
at the end of the Lease Term the Program Lessee shall deliver the Series 1995-1
Certificates to the Program Lessor.
Section 5.2 No Liens upon Return. At the time of return of the
Series 1995-1 Certificates by the Program Lessee each Series 1995-1 Certificate
shall, at the cost and expense of the Program Lessee, be free and clear of all
Liens (other than any Lien of the Program Lessor or any permitted assignee of
the Program Lessor).
7
<PAGE> 11
ARTICLE VI
WARRANTY OF THE PROGRAM LESSOR
Section 6.1 Quiet Enjoyment. The Program Lessor warrants that during
the Lease Term, so long as no Lease Event of Default shall have occurred and be
continuing, the Program Lessee's receipt of the benefits of the payments on the
Series 1995-1 Certificates (subject to the lien of the Indenture) shall not be
interrupted by the Program Lessor or any Person claiming by, through or under
the Program Lessor.
Section 6.2 Program Lessee's Rights. So long as no Lease Event of
Default shall have occurred and be continuing hereunder, the Program Lessee
shall enjoy all rights as the Holder to the Series 1995-1 Certificates during
the Lease Term and, except as otherwise specifically provided in the Basic
Documents, shall have the exclusive claim (subject to the lien of the
Indenture) during the Lease Term to receive all distributions and proceeds with
respect to the Series 1995-1 Certificates; provided, however, that (A) for
purposes of Section 7.1(a)(ii) of the FCTT Agreement, the Program Lessor shall
remain the "Holder" and (B) for purposes of Section 2.6(b) of the FCTT
Agreement, the Program Lessor and the Program Lessee shall each be a "Holder",
but the Program Lessee shall indemnify the Program Lessor against any
Liabilities pursuant to Section 2.6(b) of the FCTT Agreement.
Section 6.3 Assignment and Pledge of Series 1995-1 Certificates,
Series 1995-1 Collection Account and Series 1995-1 Payahead Account. The
Program Lessee acknowledges that its interest in the Series 1995-1 Certificates
under this Program Operating Lease is subject to the prior pledge by the
Program Lessor to the Indenture Trustee under the Indenture. The Program
Lessee hereby pledges, assigns and conveys its interest in the Series 1995-1
Certificates (i) to the Program Lessor to secure its obligations under this
Program Operating Lease and (ii) to the Indenture Trustee to secure the
obligations of the Program Lessor under the Indenture. In addition, the
Program Lessee hereby pledges, assigns and conveys all of its right, title and
interest in, to and under the Series 1995-1 Collection Account and the Series
1995-1 Payahead Account to (i) the Program Lessor to secure its obligations
under this Program Operating Lease and (ii)
8
<PAGE> 12
to the Indenture Trustee to secure the obligations of the Program Lessor under
the Indenture.
ARTICLE VII
LIENS; LOCATION AND INSPECTION
Section 7.1 Liens. The Program Lessee will not directly or
indirectly create, assume or suffer to exist any Lien on or with respect to,
among other things, the Series 1995-1 Certificates, any title thereto or any
interest therein (including any rights to payment) other than Permitted Liens.
The Program Lessee will promptly, at its own expense, take such action as may
be necessary to duly discharge any such Lien other than a Permitted Lien.
Section 7.2 Change of Location. If following the payment in full of
the Notes and the release of the lien of the Indenture, the Program Lessee
shall have obtained possession of the Series 1995-1 Certificates, then the
Program Lessee shall provide the Program Lessor with written notice of its
intention to relocate any Series 1995-1 Certificates in accordance with the
terms hereof at least one month prior to the date such relocation is commenced.
Notwithstanding the previous sentence, no relocation of any Series 1995-1
Certificates shall be commenced or made if a Lease Event of Default shall have
occurred and be continuing.
Section 7.3 Inspection and Information. At reasonable intervals
during the Lease Term and at any time a Lease Event of Default has occurred and
is continuing, the Program Lessor and its representatives shall have the right,
but not the duty, to inspect the Series 1995-1 Certificates and all records
related thereto, including all records relating to the distribution of funds
with respect to the Series 1995-1 Certificates.
ARTICLE VIII
NO SUBLEASE OR RENEWAL
Section 8.1 No Rights to Sublease or Renew. Except as set forth in
Sections 12.1 and 12.2, the Program Lessee shall not assign, pledge, sell,
transfer, sublease or otherwise dispose of its interest under this Program
Operating Lease at any time. Except as provided pursuant to the Basic
Documents, the Program Lessee will
9
<PAGE> 13
not transfer possession or relinquish control of any Series 1995-1
Certificates. The Program Lessee may not renew the term of this Program
Operating Lease.
ARTICLE IX
PROGRAM LESSEE PURCHASE OPTION
Section 9.1 Program Lessee's Option to Purchase. Upon the occurrence
of the Program Operating Lease Termination Date with respect to any payments
attributable to each Series 1995-1 Leased Vehicle, the Program Lessee may, in
the circumstances set forth in the next succeeding sentence, acquire the
Program Lessor's beneficial interest in such Series 1995-1 Leased Vehicle by
paying to the Program Lessor an amount equal to the RCL Purchase Option Price
of such Series 1995-1 Leased Vehicle. The Program Lessee shall acquire the
beneficial interest in a Series 1995-1 Leased Vehicle only if (A) (i) the
proceeds from the sale or disposition of such Series 1995-1 Leased Vehicle
(including any Insurance Proceeds available to the Program Lessor relating to
loss or damage to such Series 1995-1 Leased Vehicle), plus (ii) any amounts
collected in connection with Excess Wear and Tear and Excess Mileage with
respect to such Series 1995-1 Leased Vehicle, including application of any
Security Deposit or Reconditioning Reserve, in each case net of sales or use
taxes, minus (iii) amounts refunded pursuant to the related Series 1995-1 Lease
to the related Lessee for prepaid Excess Mileage and prepaid Excess Wear and
Tear and plus (iv) uncollected amounts due from the related Lessee in
connection with the termination of such related Series 1995-1 Lease for Excess
Mileage and Excess Wear and Tear, is greater than (B) the Residual Value of
such Series 1995-1 Leased Vehicle. Upon payment by the Program Lessee of the
RCL Purchase Option Price to the Program Lessor, such Series 1995-1 Leased
Vehicle shall no longer be a Series 1995-1 Asset, effective as of the date of
such payment, and the Program Lessor shall instruct the Administrative Agent to
change its records accordingly and deliver the Certificate of Title for such
Series 1995-1 Leased Vehicle to the Program Lessee or its designee. The
Program Lessor and the Program Lessee each intend that the Program Lessee shall
exercise such option in each instance where the amount in clause (A) of the
second preceding sentence minus the amount in clause (B) of such sentence is
greater than zero.
10
<PAGE> 14
ARTICLE X
LEASE EVENTS OF DEFAULT
Section 10.1 Lease Events of Default. The term "Lease Event of
Default," means any of the following events:
(a) on any Payment Date, the Program Lessee shall have failed to
make, or cause to be made, the Required Interest Payment portion of the
Basic Payment due on such Payment Date;
(b) the Program Lessee shall fail to perform or observe any covenant
contained in Articles V or VII;
(c) the Program Lessee shall fail to perform or observe any other
covenant, condition or agreement to be performed or observed by it under
this Program Operating Lease and such failure shall continue for a period
of 30 days after there shall have been given to the Program Lessee by the
Program Lessor a notice thereof;
(d) any representation or warranty made by the Program Lessee in this
Program Operating Lease or any other Basic Document, or any other
agreement, document or certificate to which the Program Lessee is a party
or which is delivered by the Program Lessee in connection herewith or
therewith shall prove to have been false or incorrect in any material
respect when any such representation or warranty was made or given and
shall remain a misrepresentation or breach of warranty which is material
and adverse to the Program Lessor or its interest in the Series 1995-1
Certificates at the time at which such misrepresentation or breach of
warranty is brought to the attention of the Program Lessee; provided,
however, that no such misrepresentation or breach of warranty shall
constitute a Lease Event of Default if such misrepresentation or breach is
curable and the Program Lessee is diligently pursuing the cure of such
breach or misrepresentation and has cured it within 30 days;
(e) a Bankruptcy, insolvency or termination shall have occurred with
respect to the Program
11
<PAGE> 15
Lessee or a Bankruptcy shall have occurred with respect to Ford Credit
Leasing; or
(f) there shall have occurred an Indenture Event of Default.
ARTICLE XI
REMEDIES
Section 11.1 Remedies. Upon the occurrence of any Lease Event of
Default and at any time thereafter so long as the same shall be continuing, the
Program Lessor may, with respect to the Lease Events of Default set forth in
Section 10.1 (a), (b), (c), (d) and (f), at its option, declare this Program
Operating Lease to be in default by written notice to such effect given to the
Program Lessee (a "Notice of Lease Event of Default"), and upon the occurrence
of a Lease Event of Default described in Section 10.1(e), this Program
Operating Lease shall automatically be in default, and at any time thereafter
the Program Lessor may, to the extent permitted by law, exercise one or more of
the following remedies, as the Program Lessor in its sole discretion shall
elect:
(a) the Program Lessor may, by notice to the Program Lessee, rescind
or terminate this Program Operating Lease;
(b) the Program Lessor may demand that (if the Program Lessee has
possession of the Series 1995-1 Certificates) the Program Lessee, and the
Program Lessee shall, upon the demand of the Program Lessor, re-deliver the
Series 1995-1 Certificates to the Program Lessor;
(c) subject to the terms of the Lease Trust Agreement and the
Indenture, the Program Lessor (or the Indenture Trustee) may sell the
Series 1995-1 Certificates at public or private sale, as the Program Lessor
may determine, in its sole discretion free and clear of any rights of the
Program Lessee in the Series 1995-1 Certificates and without any duty to
account to the Program Lessee with respect to such action or inaction or
any proceeds with respect thereto provided, that the Program Lessee shall
be entitled to receive any proceeds of such
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<PAGE> 16
sale remaining after payment in full of the Notes and Aggregate Certificate
Balance of the Lease Trust Certificates; or
(d) the Program Lessor may, whether or not the Program Lessor shall
have exercised or shall thereafter at any time exercise its rights under
Section 11.1(b) or (c) demand, by written notice to the Program Lessee,
that the Program Lessee pay to the Program Lessor, and the Program Lessee
shall pay to the Program Lessor, on the Payment Date next succeeding such
notice, any unpaid Basic Payments and Additional Payments (if any) due
through such Payment Date plus, as liquidated damages for loss of a bargain
and not as a penalty (in lieu of the Basic Payments and Additional Payments
(if any) due after such Payment Date), an amount equal to the Program
Operating Lease Termination Value as of such Payment Date; provided,
however, that the Program Lessor may exercise the remedy set forth in this
Section 11.1(d) only in the event that (i) the Notes have been declared
immediately due and payable pursuant to Section 5.2 of the Indenture, and
such declaration has not been rescinded and annulled, and (ii) the Lease
Trustee has directed the Indenture Trustee to sell the assets of the Lease
Trust pursuant to Section 9.2 of the Lease Trust Agreement.
Section 11.2 No Release. No rescission or termination of
this Program Operating Lease, in whole or in part, or repossession of the
Series 1995-1 Certificates or exercise of any remedy under Section 11.1 shall,
except as specifically provided therein, relieve the Program Lessee of any of
its liabilities and obligations hereunder. In addition, the Program Lessee
shall be liable, except as otherwise provided above, for any and all unpaid
Basic Payments and Additional Payments, if any, due hereunder before, after or
during the exercise of the foregoing remedies, including all reasonable legal
fees and other costs and expenses incurred by the Program Lessor.
Section 11.3 Remedies Cumulative. No remedy under Section 11.1 is
intended to be exclusive, but each shall, to the fullest extent permitted by,
but subject always to any mandatory requirements of, any applicable law or
government regulation, be cumulative and in addi-
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<PAGE> 17
tion to any other remedy provided under Section 11.1 or otherwise available to
the Program Lessor at law or in equity. No express or implied waiver by the
Program Lessor of any Lease Event of Default hereunder shall in any way be, or
be construed to be, a waiver of any future or subsequent Lease Event of
Default. The failure or delay of the Program Lessor in exercising any rights
granted it hereunder or any other Basic Document upon any occurrence of any of
the contingencies set forth herein shall not constitute a waiver of any such
right upon the continuation or recurrence of any such contingencies or similar
contingencies and any single or partial exercise of any particular right by the
Program Lessor shall not exhaust the same or constitute a waiver of any other
right provided herein.
Section 11.4 Exercise of Other Rights or Remedies. In addition to
all other rights and remedies provided in this Article XI, the Program Lessor
may exercise any other rights or remedy that may be available to it under
applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof.
ARTICLE XII
ASSIGNMENT OF LEASE
Section 12.1 Program Lessee's Consent to Assignment by Program
Lessor. (a) The Program Lessee hereby acknowledges, and consents in all
respects to, the assignment of the interest of the Program Lessor in the
Program Operating Lease by the Program Lessor to the Indenture Trustee under
and pursuant to the Indenture and agrees:
(i) to make each Basic Payment and Additional Payment due or to become
due hereunder directly to the Indenture Trustee to the account specified by
the Indenture Trustee, so long as any Notes or Lease Trust Certificates
shall be outstanding and unpaid; and
(ii) not to seek to recover any payment (other than a payment made in
mistake) made to the Indenture Trustee in accordance with the Indenture
once such payment is made.
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<PAGE> 18
(b) The Program Lessee hereby consents to and acknowledges the retention
of possession by the Indenture Trustee of the Series 1995-1 Certificates until
such time as the Notes are satisfied in full, the lien of the Indenture is
released, and the Lease Trust Certificates have been paid in full.
Section 12.2 Program Lessor's Consent to Assignment by Program Lessee.
The Program Lessor hereby consents to the assignment by the Program Lessee to
Ford Credit Leasing Company, Inc. of an undivided one percent interest in the
Program Lessee's interest in this Program Operating Lease, including but not
limited to the right to receive distributions and proceeds with respect to the
Series 1995-1 Certificates and the obligation to make Basic Payments and
Additional Payments.
ARTICLE XIII
NOTICES, ETC.
Section 13.1 Notices. All communications, notices and consents
provided for herein shall be in writing, including telecopy or other electronic
or wire transmission, and shall be effective upon delivery to the Program
Lessee at:
RCL Trust 1995-1
c/o The Chase Manhattan Bank (USA)
802 Delaware Avenue
Wilmington, Delaware 19801
Attention: Trust Department
and to the Program Lessor at:
Ford Credit Auto Lease Trust 1995-1
c/o PNC Bank, Delaware
222 Delaware Avenue
Wilmington, Delaware 19801
Attention: Michael B. McCarthy
All communications (including reports), notices and consents hereunder
shall, so long as any of the Series 1995-1 Certificates is subject to the lien
of the Indenture, be given to the Indenture Trustee as well as to the
appropriate party hereunder.
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<PAGE> 19
Section 13.2 Successors and Assigns. Neither the Program Lessor nor
the Program Lessee may assign its interest in this Program Operating Lease
except as permitted by Sections 12.1 and 12.2. This Program Operating Lease,
including all agreements, covenants, representations and warranties, shall be
binding upon and inure to the benefit of the Program Lessor and its successors
and permitted assigns, and the Program Lessee and its successors and permitted
assigns.
Section 13.3 Right to Perform for Program Lessee. If the Program
Lessee shall fail to make any Basic Payments or Additional Payments to be made
by it hereunder, or shall fail to perform or comply with any of its other
agreements contained herein or in any other Basic Document or any other
agreement entered into in connection therewith, the Program Lessor may, but
shall not be obligated to, make such payment or perform or comply with such
agreement, and the amount of such payment and the amount of all costs and
expenses (including, without limitation, reasonable attorneys' and other
professionals' fees and expenses) of the Program Lessor incurred in connection
with such payment or the performance of or compliance with such agreement, as
the case may be, together with interest thereon, at the weighted average
interest rate of the Notes, shall be due and payable by the Program Lessee upon
demand.
Section 13.4 Amendments. This Program Operating Lease 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 and adversely affect
the interests of the Noteholders or the Lease Trust Certificateholders (unless
100% of such Noteholders and the Lease Trust Certificateholders consent
thereto), (y) as confirmed by each Rating Agency then rating the Notes and the
Lease Trust Certificates, cause the then current rating of any Class of Notes
or the Lease Trust Certificates to be withdrawn or reduced or (z) as evidenced
by an Opinion of Counsel, cause the Program Lessee or the Program Lessor to be
taxed as an "association" for federal income tax purposes.
Section 13.5 Survival. All agreements, indemnities, representations
and warranties contained in this Program Operating Lease and the other Basic
Documents or any agreement, document or certificate delivered pursuant
16
<PAGE> 20
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery of this Program Operating Lease and the expiration or
other termination thereof.
Section 13.6 Severability of Provisions. Any provisions of this
Program Operating Lease which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Program Lessee hereby waives any provision of
law which renders any provision hereof prohibited or unenforceable in any
respect.
Section 13.7 Original. The single executed original of this Program
Operating Lease marked "Original" and containing the receipt of the Indenture
Trustee thereon shall be the "Original" of this Program Operating Lease. To
the extent that this Program Operating Lease constitutes chattel paper, as such
term is defined in the UCC as in effect in any applicable jurisdiction, no
security interest in this Program Operating Lease may be created through the
transfer or possession of any counterpart other than the "Original."
Section 13.8 Single Transaction. The Program Lessor and the Program
Lessee acknowledge and agree that the Basic Documents and any other agreements
of the Program Lessee entered into by the Program Lessee in connection with the
transactions contemplated by the Basic Documents are intended to be construed
and treated for all purposes as integral and constitutive elements of a single
transaction that cannot be separately assigned, assumed or rejected under the
United States bankruptcy code (Title 11 of the United States Code) or any other
applicable bankruptcy, insolvency or receivership laws.
Section 13.9 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.
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<PAGE> 21
SECTION 13.10 GOVERNING LAW. THIS PROGRAM OPERATING LEASE 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.
Section 13.11 Counterpart Execution and Dating. This Program
Operating Lease may be executed in any number of counterparts and by each of
the parties hereto on separate counterparts, all such counterparts together
constituting but one and the same instrument, with the counterparts delivered
to the Indenture Trustee pursuant to the Indenture being deemed the "Original"
and all other counterparts being deemed duplicates.
Section 13.12 Concerning the Program Lessor and the Program Lessee.
(a) PNC BANK, DELAWARE is entering into this Program Operating Lease solely in
its capacity as Lease Trustee and not in its individual capacity and in no case
shall PNC BANK, DELAWARE (or any entity acting as successor Lease Trustee) be
personally liable for or on account of any of the statements, representations,
warranties, covenants or obligations stated to be those of Program Lessor
hereunder or in the other Basic Documents; provided, however, that PNC BANK,
DELAWARE (or any such successor Lease Trustee) shall be personally liable
hereunder for its own gross negligence or willful misconduct or for its breach
of its covenants, representations and warranties contained herein, to the
extent covenanted or made in its individual capacity.
(b) THE CHASE MANHATTAN BANK (USA) is entering into this Program
Operating Lease solely in its capacity as Trustee of the RCL Trust and not in
its individual capacity and in no case shall THE CHASE MANHATTAN BANK (USA) (or
any entity acting as successor RCL Trustee) be personally liable for or on
account of any of the statements, representations, warranties, covenants or
obligations stated to be those of Program Lessee hereunder or in the other
Basic Documents; provided, however, that THE CHASE MANHATTAN BANK (USA) (or any
such successor RCL Trustee) shall be personally liable hereunder for its own
gross negligence or willful misconduct or for its breach of its covenants,
representations and warranties contained herein, to the extent covenanted or
made in its individual capacity.
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<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have caused this Program
Operating Lease to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
THE CHASE MANHATTAN BANK (USA),
as trustee of RCL Trust 1995-1,
as Program Lessee
By:
---------------------------
Name:
Title:
PNC BANK, DELAWARE, as trustee of
Ford Credit Auto Lease Trust
1995-1,
as Program Lessor
By:
---------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 10.7
APPENDIX A
SERIES 1995-1 DEFINITIONS
Terms used herein and not otherwise defined have the meanings
assigned to such terms in Appendix I to the Administrative Agency Agreement.
To the extent that the definitions set forth herein conflict with the
definitions set forth in Appendix I, or incorporated by reference therein, the
definitions set forth herein shall be controlling.
"Accrual Period" shall mean, with respect to any Payment Date other
than the first Payment Date, the period from and including the first day of the
third preceeding Collection Period up to and but excluding the last day of the
preceding Collection Period, and with respect to the first Payment Date, the
period from and including [the Closing Date][________, 1995] up to and
including the last day of the preceding Collection Period, in each case whether
or not such day is a Business Day.
"Additional Payment" means, with respect to any Payment Date, (i) the
sum of the Available Funds and the Reserve Account Release Amount minus (ii)
the sum of the Available Sale Proceeds and the Basic Payment.
"Administrative Agency Agreement" means the Administrative Agency
Agreement as supplemented by the Series 1995-1 Supplement, and as otherwise
amended, modified or supplemented from time to time.
"Aggregate Certificate Balance" means, as of any date, the aggregate
Certificate Balances of the Lease Trust Certificates as of such date.
"Aggregate Net Sale Proceeds Advances" means, with respect to any
Collection Period, an amount, which may be positive or negative, equal to the
aggregate Sale Proceeds Advances with respect to Series 1995-1 Leased Vehicles
made by the Administrative Agent pursuant to Section 5.4 of the Administrative
Agency Agreement during the preceding Collection Period minus the aggregate
Sales Proceeds Advances with respect to Series 1995-1 Leased Vehicles repaid to
the Administrative Agent pursuant to
<PAGE> 2
Section 5.4 of the Administrative Agency Agreement during such Collection
Period.
"Aggregate Net Monthly Payment Advances" means, with respect to any
Collection Period, an amount, which may be positive or negative, equal to the
aggregate Monthly Payment Advances made with respect to Series 1995-1 Leases in
accordance with Section 5.4(b) of the Series 1995-1 Supplement during the
preceding Collection Period minus the aggregate Monthly Payment Advances with
respect to Series 1995-1 Leases repaid to the Administrative Agent pursuant to
Section 6.3 of the Administrative Agency Agreement during such Collection
Period.
"Applicable Law" means all applicable laws, ordinances, judgments,
decrees, injunctions, writs and orders of any Governmental Authority and rules,
regulations, orders, interpretations, licenses and permits of any Governmental
Authority.
"Asset Contribution Agreement" means the agreement dated as of
_________ __, 1995 between Ford Credit and Ford Credit Leasing, as
contributors, and RCL Trust, as contributee.
"Auction Proceeds" means, with respect to any Series 1995-1 Leased
Vehicle which is sold at auction or otherwise disposed of by the Administrative
Agent on behalf of FCTT, all amounts received by the Administrative Agent in
connection with such sale or disposition; provided, that if RCL Trustee
exercises the purchase option pursuant to Section 9.1 of the Program Operating
Lease, the "Auction Proceeds" shall mean the related RCL Purchase Option Price.
"Available RV Guaranty Amount" means, as of any date, the Initial RV
Guaranty Amount minus the aggregate RV Guaranty Draw Amounts up to, but
excluding, such date.
"Available Funds" means, with respect to any Payment Date, the
following amounts with respect to each of the three Collection Periods
preceding such Payment Date: (i) the Monthly Payments with respect to Series
1995-1 Leases and Series 1995-1 Leased Vehicles received by the Administrative
Agent; plus (ii) the Aggregate Net Monthly Payment Advances; plus (iii)
Recoveries with respect to Series 1995-1; plus (iv) Liquidation Proceeds with
re-
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<PAGE> 3
spect to Series 1995-1; plus (v) Voluntary Early Termination Proceeds with
respect to Series 1995-1; plus (vi) Administrative Purchase Amounts deposited
in the Series 1995-1 Collections Account pursuant to Sections 4.5 and 4.7
(excluding Administrative Purchase Amounts deposited in the Series 1995-1
Collections Account pursuant to Section 4.2(b)(i) of the Administrative Agency
Agreement) of the Administrative Agency Agreement or Section 3.3 of the Asset
Contribution Agreement; plus (vii) Available Sale Proceeds; minus (viii) the
aggregate Series 1995-1 Administrative Fee and the Series 1995-1 Comerica Fee
with respect to such Collection Period; and minus (ix) the aggregate
uncollected Excess Wear and Tear and Excess Mileage as of the end of the
Collection Period with respect to Series 1995-1 Leased Vehicles.
"Available Sale Proceeds" means, with respect to any Payment Date,
the following amounts with respect to each of the three Collection Periods
preceding such Payment Date: (i) the Sale Proceeds for all Series 1995-1 Leased
Vehicles; plus (ii) the Aggregate Net Sale Proceeds Advances; plus (iii)
Administrative Purchase Amounts deposited in the Series 1995-1 Collections
Account pursuant to Section 4.2(b)(i) of the Administrative Agency Agreement;
and plus (iv) the aggregate uncollected charges relating to Excess Wear and
Tear and Excess Mileage as of the end of the Collection Period with respect to
Series 1995-1 Leased Vehicles.
"Basic Documents" means the FCTT Agreement, the Administrative Agency
Agreement, the Series 1995-1 Supplement, the Program Operating Lease, the Asset
Contribution Agreement, the Transfer Agreement, the Limited RV Guaranty, the
Lease Trust Agreement, the Indenture, and each instrument and certificate
delivered in connection therewith.
"Basic Payment" means, with respect to any Payment Date, (i) the
Required Interest Payment plus (ii) the Pool Balance Decline minus (iii) the
Required Sale Proceeds Payments, each with respect to such Payment Date.
"Benefit Plan" means (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets subject to
3
<PAGE> 4
Title I of ERISA by reason of a plan's investment in the entity.
"Certificate Balance" means, with respect to any Lease Trust
Certificate, initially, the principal balance of such Lease Trust Certificate
on the Series 1995-1 Issue Date, and thereafter, as of any date, such amount
minus all amounts distributed with respect to such Lease Trust Certificate as
principal pursuant to the Lease Trust Agreement on or before such date.
"Certificate Distribution Account" means the account designated as
such pursuant to Section 5.1 of the Lease Trust Agreement.
"Certificate Interest Rate" means the per annum rate at which
interest accrues on the Lease Trust Certificates, which shall be __%.
"Class" means all of the Notes having the same Note Interest Rate and
the same Stated Maturity.
"Closing Date" means ______ __, 1995.
"Collection Period Settlement Date" means, with respect to any
Collection Period, the Business Day preceding the related Distribution Date.
"Default Rate" means, (i) with respect to any Note, the applicable
Note Interest Rate plus 2.0% per annum and (ii) with respect to any Lease Trust
Certificate, the Certificate Interest Rate plus 2.0% per annum.
"Eligible Account" means a segregated trust account at a financial
institution having a long-term debt rating by each Rating Agency of at least
"Baa3" or the equivalent.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Indenture" means the indenture dated as of _______ __, 1995 between
the Lease Trustee and the Indenture Trustee, as amended or supplemented from
time to time.
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<PAGE> 5
"Indenture Event of Default" means any Event of Default (as defined
in the Indenture) set forth in Section 5.1 of the Indenture.
"Indenture Trustee" means Chemical Bank, a New York corporation, not
in its individual capacity but solely as trustee under the Indenture, or any
successor trustee thereunder.
"Initial RV Guaranty Amount" means $_______.
"Initial Reserve Account Deposit" means $_________.
"Interest Accrual Period" shall mean, with respect to any Payment
Date other than the first Payment Date, the period from and including the 15th
day of the Collection Period third preceding the Collection Period in which
such Payment Date occurs, through and including the 14th day of the Collection
Period in which such Payment Date occurs, and with respect to the first Payment
Date, the period from and including [the Closing Date] [________, 1995] up to
and including the 14th day of the Collection Period in which such first Payment
Date occurs, in each case whether or not such day is a Business Day.
"Lease Event of Default" means each event of default set forth in
Section 10.1 of the Program Operating Lease.
"Lease Trust" means Ford Credit Auto Lease Trust 1995-1 created
pursuant to the Lease Trust Agreement.
"Lease Trust Agreement" means the trust agreement dated as of
_________ __, 1995 between the RCL Trustee and the Lease Trustee, as amended or
supplemented from time to time.
"Lease Trust Certificate" means a certificate evidencing a beneficial
interest in the Lease Trust substantially in the form attached to the Lease
Trust Agreement as Exhibit A.
"Lease Trust Certificateholder" means, as of any date, the Person in
whose name a Lease Trust Certificate is registered on the Lease Trust
Certificate Register.
"Lease Trust Estate" means (i) the rights of the
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<PAGE> 6
Lease Trust under Series 1995-1 Certificates, (ii) the rights of the Lease
Trust as lessor under the Program Operating Lease and amounts payable to the
Lease Trust thereunder, (iii) all funds on deposit from time to time in the
Series 1995-1 Collection Account, Series 1995-1 Payahead Account and the Series
1995-1 Payments Account and in all investments and proceeds thereof (including
all investment income from amounts on deposit in the Collection Account), (iv)
the rights of the RCL Trust 1995-1 under the Asset Contribution Agreement, (v)
the rights of the Lease Trust as beneficiary under the Limited RV Guaranty,
(vi) the rights as Holder of the Series 1995-1 Certificates under the
Administrative Agency Agreement and the Series 1995-1 Supplement, (vii) the
security interest of the Lease Trust in amounts credited to the Reserve Account
and the right to make withdrawals therefrom and (viii) proceeds of the
foregoing.
"Lease Trustee" means PNC Bank, Delaware, not in its individual
capacity but solely as trustee under the Lease Trust Agreement, and any
successor trustee thereunder.
"Limited Guarantor" means Ford Credit as guarantor under the Limited
RV Guaranty.
"Limited RV Guaranty Fee" means, with respect to any Payment Date,
the fee payable to Ford Credit by the Lease Trustee as compensation for the
issuance of the Limited RV Guaranty, in the amount of ________.
"Limited RV Guaranty" means the Limited Residual Value Guaranty
1995-1 dated as of ______ __, 1995 made by Ford Credit in favor of the Lease
Trustee.
"Monthly Remittance Conditions" means, with respect to Series 1995-1
Collections, (i) Ford Credit is the Administrative Agent, (ii) the rating of
Ford Credit's short-term unsecured debt is at least P-1 by Moody's Investors
Service, Inc. and A-1 by Standard & Poor's Ratings Group and (iii) no Event of
Default with respect to Series 1995-1 shall have occurred under the
Administrative Agency Agreement.
"Note Depository Agreement" means the agreementamong the Lease
Trustee, the Indenture Trustee, the Administrative Agent and The Depository
Trust Company, as the initial Clearing Agency, dated as of the Closing
6
<PAGE> 7
Date, relating to the Notes, as the same may be amended or supplemented from
time to time.
"Noteholder" means, as of any date, the Person in whose name a Note
is registered on the Note Register. When used with respect to any Note, the
"related Noteholder" means, as of any date, the Person registered on the Note
Register with respect to such Note.
"Note Interest Rate" means with respect to the Notes of any Class,
the annual rate at which interest accrues on the Notes of such Class, as
specified in Section 2.1 of the Indenture and in such Notes.
"Notes" means the ___% Class A-1 Notes, ___% Class A-2 Notes and ___%
Class A-3 Notes, each as issued by the Lease Trust pursuant to the Indenture
and each as defined therein.
"Outstanding Amount" means, as of any date with respect to any Class
of Notes, the aggregate principal amount of all Notes of such Class which are
Outstanding (as defined in the Indenture) on such date and with respect to all
the Notes, the aggregate principal amount of all Notes which are Outstanding
(as defined in the Indenture) on such date, in each case as reduced by payments
of principal previously made on such Notes.
"Payment Date" means _______ 15, ________ 15, ________ 15, and
________ 15, of each year, commencing __________ 15, 1995, and if such day is
not a Business Day, the next succeeding Business Day.
"Permitted Investments" means any one of the following instruments,
obligations or securities:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America or any agency or
instrumentality of the United States the obligations of which are
backed by the full faith and credit of the United States;
(ii) commercial paper issued by any corporation
incorporated under the laws of the United States or any State so long
as at the time such commercial paper is issued it is rated at least
P-1 by Moody's
7
<PAGE> 8
Investors Service, Inc. and A-1 by Standard and Poor's Ratings Group;
(iii) any money-market fund or other overnight money
fund customarily used by ________ for the investment of amounts on
deposit in "sweep account" or other short-term asset management
accounts maintained on behalf of clients whose funds are under the
management of the ________ or similar department of _________ or the
parent of ________; or
(iv) any other investment otherwise approved by any
Rating Agency.
"Pool Balance" means, with respect to any date, the Series Specified
Asset Amount with respect to Series 1995-1 Assets as of such date.
"Pool Balance Decline" means, with respect to any Payment Date, the
sum of following amounts with respect to each of the three Collection Periods
preceding such Payment Date: the Pool Balance as of the beginning of such
Collection Period minus the Pool Balance as of the end of such Collection
Period.
"Prepayment Date" means the Payment Date specified by the
Administrative Agent or the Lease Trustee pursuant to Section 9.3(b) of the
Lease Trust Agreement.
"Prepayment Price" means an amount, equal to Aggregate Certificate
Balance plus accrued and unpaid interest thereon at the Certificate Interest
Rate to but excluding the Prepayment Date.
"Program Operating Lease" means the agreement dated ________ __, 1995
between RCL Trustee, as Program Lessee, and the Lease Trustee, as Program
Lessor, as amended from time to time.
"Qualified Institutional Buyer" means a "qualified institutional
buyer" as such term is defined in paragraph (a)(1) of Rule 144A of the
Securities Act.
"Rating Agency" means Moody's Investors Service, Inc. and Standard &
Poor's Ratings Group, a division of McGraw-Hill, Inc. If no such organization
or successor is any longer in existence, "Rating Agency" shall be a
8
<PAGE> 9
nationally recognized statistical rating organization or other comparable
Person designated by the Issuer, notice of which designation shall be given to
the Indenture Trustee, the Lease Trustee and the Administrative Agent.
"RCL Account" means the account designated as such pursuant to
Section 5.1 of the RCL Trust Agreement.
"RCL Assignment Agreement" means the assignment agreement dated as of
______ __, 1995 between the RCL Trustee, as assignor, and Ford Credit Leasing,
as assignee, substantially in the form attached as Exhibit B to the RCL Trust
Agreement.
"RCL Purchase Option Price" means, with respect to the beneficial
interest in any Series 1995-1 Leased Vehicle, the Residual Value of such Series
1995-1 Leased Vehicle minus any amounts due from the related Lessee with
respect to Excess Wear and Tear and Excess Mileage which were uncollected as of
the end of the Collection Period in which the related Auction Proceeds were
received.
"RCL Trust 1995-1" means RCL Trust 1995-1 established pursuant to the
RCL Trust Agreement.
"RCL Trust Agreement" means the agreement dated as of ________ __,
1995 among Ford Credit as Grantor and initial Beneficiary, Ford Credit Leasing
as Grantor and initial Beneficiary, and the RCL Trustee.
"RCL Trust Certificates" means the Lease Trust Certificates in the
form of Exhibit B to the Lease Trust Agreement issued to RCL Trust 1995-1 and
Ford Credit Leasing.
"RCL Trustee" means The Chase Manhattan Bank (USA), a Delaware
corporation, not in its individual capacity but solely as trustee of RCL Trust
1995-1.
"Required Interest Payment" means, with respect to any Payment Date,
(i) the Series 1995-1 Administrative Fee, (ii) the amount of interest accrued
during the preceding Interest Accrual Period on the Outstanding Amount of each
Class of Notes at their respective Note Interest Rates and on the Aggregate
Certificate Balance of the Lease Trust Certificates at the Certificate Interest
Rate; plus (iii) the Ford Credit RV Guaranty Fee with respect to such Payment
Date; and plus (iv) any Required Interest Payment not paid on the prior Payment
Date
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<PAGE> 10
(including interest thereon calculated by reference to the interest rate on the
Notes and Lease Trust Certificates).
"Required Reserve Account Amount" means, with respect to any Payment
Date, the lesser of (i) the product of (x) __% and (y) the Pool Balance as of
the last day of the preceding Accrual Period and (ii) the sum of the
Outstanding Amount of the Notes and the Aggregate Certificate Balance of the
Lease Trust Certificates as of such Payment Date, before giving effect to any
payments made on such Payment Date.
"Required Sale Proceeds Payment" means, with respect to any Payment
Date, an amount equal to the aggregate Residual Values of each Series 1995-1
Leased Vehicle for which the related Scheduled Lease End Date occurred during
the preceding Accrual Period.
"Reserve Account" means the account designated as such pursuant to
Section 3.5(a) of the Program Operating Lease.
"Reserve Account Amount" means, with respect to any Payment Date, the
amount on deposit in the Reserve Account including any Reserve Account Draw
Amount or Reserve Account Deposit Amount made with respect to the preceding
Accrual Period.
"Reserve Account Certificate" means the certificate designated as
such pursuant to Section 8.3(a) of the Indenture.
"Reserve Account Deposit Amount" means, with respect to any Payment
Date, the lesser of (i), if positive, the Required Reserve Account Amount with
respect to the Payment Date minus the Reserve Account Amount as of the
preceding Payment Date and (ii) the amount, if any, by which (x) the sum of the
Available Funds, the RV Guaranty Draw Amount and the RV Guaranty Draw Shortfall
exceeds (y) the sum of the Required Interest Payment and the Pool Balance
Decline, all with respect to the Payment Date.
"Reserve Account Draw Amount" means, with respect to any Payment
Date, the lesser of (i) the following amounts, if positive, with respect to the
Payment Date (v) the Required Interest Payment, plus (w) the Pool Balance
Decline, minus (x) Available Funds, minus (y) the RV Guaranty Draw Amount and
minus (z) the RV Guaranty Draw Shortfall and (ii) the Reserve Account Amount as
of
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<PAGE> 11
the preceding Payment Date. On the Payment Date on which the Aggregate
Certificate Balance of the Lease Trust Certificates has been reduced to zero,
the Reserve Account Draw Amount shall include, in addition, the aggregate
amount of Monthly Payment Advances which are outstanding.
"Reserve Account Investments" means _________; provided, than in the
event _______ is not available, all amounts on deposit in the Reserve Account
shall be invested in ________; provided, further, that if ________ and ________
are both not available, amounts on deposit in the Reserve Account shall be
invested in __________.
"Reserve Account Property" has the meaning set forth in Section
3.5(a) of the Program Operating Lease.
"Reserve Account Release Amount" means, with respect to any Payment
Date, an amount, if positive, equal to (i) the Reserve Account Amount as of the
preceding Payment Date minus (ii) the Reserve Account Draw Amount with respect
to the Payment Date minus (iii) the Required Reserve Account Amount with
respect to the Payment Date.
"RV Guaranty Draw Amount" means, with respect to any Payment Date,
the amount to be drawn on the Limited RV Guaranty, which amount shall equal the
lesser of (i) the amount, if any, by which (x) the Required Sale Proceeds
Payment exceeds (y) the Available Sale Proceeds and (ii) the Available RV
Guaranty Amount, all with respect to the Payment Date. On the Payment Date on
which the Aggregate Certificate Balance of the Lease Trust Certificates is
reduced to zero, the RV Guaranty Draw Amount shall include, in addition, the
aggregate amount of Sale Proceeds Advances which are outstanding.
"RV Guaranty Draw Certificate" means the certificate designated as
such pursuant to Section 8.3(b) of the Indenture.
"RV Guaranty Draw Shortfall" means, with respect to any Payment Date,
the amount by which (i) Required Sale Proceeds minus Available Sale Proceeds
exceeds (ii) the Available RV Guaranty Amount, all with respect to the Payment
Date.
"Securities Act" means the Securities Act of 1933, as amended.
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<PAGE> 12
"Series 1995-1" means the Series of Specified Beneficial Certificates
designated as the Series 1995-1 Specified Beneficial Certificates.
"Series 1995-1 Administrative Fee" means, with respect to any
Collection Period, the Specified Asset Administrative Fee payable to the
Administrative Agent for services rendered in connection with servicing the
Series 1995-1 Assets and administering the distributions of funds during such
Collection Period (including the payment of the fees and expenses of Comerica,
the Lease Trustee and the Indenture Trustee) which shall be equal to the
product of (i) one-twelfth of 1% and (ii) the Series 1995-1 Asset Amount as of
the last day of the preceding Collection Period.
"Series 1995-1 Asset Amount" means the Series Specified Asset Amount
with respect to Series 1995-1.
"Series 1995-1 Assets" has the meaning set forth in Section 3.1 of
the Series 1995-1 Supplement.
"Series 1995-1 Certificates" means the Series of Specified Beneficial
Certificates designated as the "Series 1995-1 Specified Beneficial
Certificates" representing in the aggregate a 100% beneficial interest in the
Series 1995-1 Assets.
"Series 1995-1 Collections" means collections relating to Series
1995-1 Assets.
"Series 1995-1 Collection Account" means the account designated as
such in Section 5.1(a) of the Series 1995-1 Supplement as the Series Collection
Account for Series 1995-1.
"Series 1995-1 Comerica Fee" means the Specified Asset Comerica Fee
relating to the Series 1995-1 Assets, which shall be equal to the Series 1995-1
Percentage of the monthly fees and expenses of Comerica payable pursuant to
Section 6.8 of the FCTT Agreement.
"Series 1995-1 Credit Loss" means, with respect to Series 1995-1 and
any Collection Period, (i) the Specified Asset Charged-Off Amount with respect
to Series 1995-1 for the Collection Period minus (ii) Recoveries with respect
to Series 1995-1 received during the Collection Period.
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<PAGE> 13
"Series 1995-1 Cut-Off Date" means the Series Cut-Off Date with
respect to the Series 1995-1 Assets and the Series 1995-1 Certificates, which
date is ______ __, 1995.
"Series 1995-1 Fees Account" means the account designated as such
pursuant to Section 4.1 of the Series 1995-1 Supplement as the Series Fee
Account for Series 1995-1.
"Series 1995-1 Issue Date" means the date designated by the
Administrative Agent, pursuant to Section 4.3 of the FCTT Agreement, as the
Series Issue Date with respect to the Series 1995-1 Assets and the Series
1995-1 Certificates, which date is __________ __, 1995.
"Series 1995-1 Lease" means each Specified Lease listed on Schedule A
to the Series 1995-1 Supplement.
"Series 1995-1 Leased Vehicle" means each Specified Leased Vehicle
listed on Schedule A to the Series 1995-1 Supplement.
"Series 1995-1 Payahead Account" means, the account designated as
such pursuant to Section 5.1(b) of the Series 1995-1 Supplement as the Series
Payahead Account for Series 1995-1.
"Series 1995-1 Payments Account" means the account designated as such
pursuant to Section 8.2(a) of the Indenture.
"Series 1995-1 Percentage" means, as of any date, the percentage
equivalent of a fraction, (i) the numerator of which is the Series 1995-1 Asset
Amount and (ii) the denominator of which is the Aggregate FCTT Asset Amount.
"Series 1995-1 Residual Loss" means, with respect to Series 1995-1
and any Collection Period, the following amounts with respect to the Collection
Period: (i) the aggregate Residual Values of all Series 1995-1 Leased Vehicles
with respect to which the Scheduled Lease End Dates has occurred and the
related Auction Proceeds have been received minus (ii) Auction Proceeds of such
Series 1995-1 Leased Vehicles and minus (iii) amounts with respect to Excess
Wear and Tear and Excess Mileage assessed in connection with such Series 1995-1
Leased Vehicles.
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<PAGE> 14
"Series 1995-1 Specification Notice" means the Series Specification
Notice relating to the Series 1995-1 Assets.
"Series 1995-1 Supplement" means the Series 1995-1 Supplement to the
Administrative Agency Agreement dated as of _______ __, 1995 among Ford Credit
as Administrative Agent and initial Beneficiary, Ford Credit Leasing as initial
Beneficiary and Comerica Bank as trustee of FCTT.
"Total Available Funds" means, with respect to any Payment Date, (i)
Available Funds, plus (ii) the Reserve Account Draw Amount, plus (iii) the
Reserve Account Release Amount, and plus (iv) the RV Guaranty Draw Amount, all
with respect to the Payment Date.
"Transfer Agreement" means the agreement dated as of _______ __, 1995
between RCL Trustee, as transferor, and Lease Trustee, as transferee.
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<PAGE> 15
APPENDIX I
DEFINED TERMS
"Accepted Servicing Practices" has the meaning set forth in Section 4.1
of the Administrative Agency Agreement.
"Additional Fee" means, with respect to any Lease, an amount payable
monthly or otherwise by the Lessee, calculated as the product of the Balance
Subject to Lease Charges of the related Leased Vehicle and 0.11%, or in such
other amount or manner as shall be established by the Administrative Agent at
the inception of the Lease.
"Adjusted Balance Subject to Lease Charges" means, as of any date with
respect to any Lease and Leased Vehicle, the Balance Subject to Lease Charges
minus the aggregate Retail Operating Lease Principal scheduled to have been
received by such date; provided, that with respect to any Lease which (i) has
become a Liquidated Lease, (ii) has been subject to a Voluntary Early
Termination, (iii) the beneficial interest in which has been purchased pursuant
to Section 4.2, 4.5 or 4.7 of the Administrative Agency Agreement or pursuant
to the terms of any applicable Supplement or (iv) has expired on its Scheduled
Lease End Date, the Adjusted Balance Subject to Lease Charges shall be zero.
"Administrative Agency Agreement" means the agreement dated as of _____
__, 1995 among the Administrative Agent, the Grantors and Comerica, as
supplemented in connection with each issuance of a Series of Specified
Beneficial Certificates, and as otherwise amended, modified or supplemented
from time to time.
"Administrative Agent" means Ford Credit in its capacity as the
administrative agent under the Administrative Agency Agreement.
"Administrative Purchase Amount" means, as of the end of any Collection
Period with respect to any Specified Lease and Specified Leased Vehicle, the
Adjusted Balance Subject to Lease Charges as of such date plus any scheduled
Monthly Payments up to and including such
<PAGE> 16
Collection Period which have not been paid by the related Lessee or advanced by
the Administrative Agent.
"Administrative Agent's Certificate" has the meaning set forth in
Section 4.9 of the Administrative Agency Agreement.
"Advanced Payment Program" means, with respect to any lease originated
under the Red Carpet Lease Plan, a payment option of the related lessee
pursuant to which such lessee prepays all monthly payments in a single advance
payment, generally discounted to reflect the present value of such single
advance payment and the reduction in the risk of credit loss.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Aggregate FCTT Asset Amount" means, as of any date, the sum of
Aggregate Non-Specified Asset Amount plus the aggregate of all Series Specified
Asset Amounts, each as of such date.
"Aggregate Non-Specified Asset Amount" means, as of any date, the
aggregate Book Value of the Non-Specified Assets as of such date, as determined
by the Administrative Agent pursuant to the Administrative Agency Agreement.
"Auction Proceeds" means, as modified in connection with the issuance of
any Series, with respect to any Leased Vehicle which is sold at auction or
otherwise disposed of by the Administrative Agent on behalf of FCTT, all
amounts received by the Administrative Agent in connection with such sale or
disposition.
"Balance Subject to Lease Charges" means with respect to any Lease and
Leased Vehicle, the amount which FCTT paid (including any amount paid as a
deferred pur-
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<PAGE> 17
chase price) to the Dealer for such Lease and Leased Vehicle in accordance with
the customary policies and procedures of the Administrative Agent, which is the
total acquisition cost used to calculate the Monthly Payment.
"Bankruptcy" means, with respect to any Person, (i) the making of a
general assignment for the benefit of creditors, (ii) the filing of a voluntary
petition in bankruptcy, (iii) being adjudged a bankrupt or insolvent, or has
entered against such Person an order for relief in any bankruptcy or insolvency
proceeding, (iv) the filing by such Person of a petition or answer seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, (v) the
filing by such Person of an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against such Person in any
proceeding specified in (v) above, (vi) seeking, consenting to or acquiescing
in the appointment of a trustee, receiver or liquidator of such Person or of
all or any substantial part of the assets of such person and (vii) the failure
to obtain dismissal within 120 days of the commencement of any proceeding
against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, or the failure to have vacated with 90 days any order appointing
a trustee, liquidator or receiver of such Person or of such Person's assets or
any substantial portion thereof.
"Beneficiary" means with respect to any Non-Specified Assets, each
Holder of an Exchangeable Beneficial Certificate, and with respect to any
Series Specified Assets, each Holder of related Specified Beneficial
Certificates.
"Book Value" means, as of any date, (i) with respect to any Specified
Lease and Specified Leased Vehicle, the Adjusted Balance Subject to Lease
Charges and (ii) with respect to any Lease and Leased Vehicle which is a
Non-Specified Asset, the amount recorded on the books and records of the
Administrative Agent as of such date as the Balance Subject to Lease Charges
minus the aggregate amount of depreciation accrued through such date. The
total depreciation for any Leased Vehicle shall equal the difference between
the Balance Subject to Lease Charges
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<PAGE> 18
and the Residual Value, which amount shall accrue over the term of the related
Lease computed on a straight line basis or by such other similar method as may
be utilized by the Administrative Agent, at the direction of the Holders of the
Exchangeable Beneficial Certificates, from time to time.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banks or trust companies in Michigan or New York, New York are authorized
or required to close.
"Certificate of Title" means the certificate of title or other evidence
of ownership of a Leased Vehicle issued by the relevant government department
or agency in the jurisdiction in which the Leased Vehicle is registered or, to
the extent that a certificate of title or other evidence of ownership has not
been issued, the application (or copy thereof) for the foregoing.
"Certificates" means the Exchangeable Beneficial Certificates and the
Specified Beneficial Certificates issued and outstanding.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collection Period" means each calendar month.
"Collections" means (i) all amounts collected from Lessees with respect
to Total Monthly Payments (other than Vehicle Insurance and Maintenance
Amounts), (ii) Sale Proceeds, (iii) Voluntary Early Termination Proceeds, (iv)
Liquidation Proceeds and (v) Recoveries.
"Comerica" means Comerica Bank, a Michigan banking corporation, in its
capacity as trustee under the FCTT Agreement, together with any successor or
permitted assign in such capacity.
"Comerica Office" means the office of Comerica at which any particular
time its corporate trust business shall be administered, which as of the date
of the Administrative Agency Agreement is 411 W. Lafayette, 4th Floor, Detroit,
Michigan 48226-3461.
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<PAGE> 19
"Constant Yield Payment" means, with respect to any Lease, a level
amount payable monthly in advance by the related Lessee (except that the first
and last monthly payments may vary, but not substantially) that will provide a
fixed internal rate of return equal to the Retail Operating Lease Factor with
respect to such Lease, and that will amortize the Balance Subject to Lease
Charges of such Lease to a final payment equal to the Residual Value of the
related Leased Vehicle over the term of the related Lease.
"Dealer" means a dealer who in the ordinary course of business leases
automobiles and light-duty trucks to lessees pursuant to the RCL Plan or such
other plan as Ford Credit or its Affiliates may implement from time to time.
"Dealer Purchase Option Price" means, with respect to any Leased Vehicle
purchased as of the related Scheduled Lease End Date, (i) the Residual Value of
such Leased Vehicle, plus (ii) any unpaid amounts due from the related Lessee,
including any unpaid Total Monthly Payments, minus (iii) any Security Deposit
or Reconditioning Reserve not required to be returned to the Lessee and minus
(iv) any excess deferred gross compensation due to the Dealer with respect to
such Leased Vehicle.
"Dealer Recourse" means, with respect to any Lease, any recourse rights
against the Dealer which originated the Lease and any successor Dealer.
"Distribution Date" means the 15th day of each month, and if such day is
not a Business Day, the next succeeding Business Day, unless otherwise
specified in a Supplement with respect to Series Specified Assets or otherwise
specified in the Administrative Agency Agreement with respect to Non-Specified
Assets; provided that the Distribution Date shall in no event occur less
frequently than quarterly.
"Eligible Institution" means a depository institution organized under
the laws of the United States of America or any one of the states thereof or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States of America or one of the States thereof and
subject to supervision and examination by federal or state banking authorities
which at
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<PAGE> 20
all times has a short-term deposit rating of P-1 by Moody's Investors Service,
Inc. and A-1+ by Standard and Poor's Ratings Group and, in the case of any such
institution organized under the laws of the United States of America, whose
deposits are insured by the Federal Deposit Insurance Corporation or any
successor thereto.
"Enhancement" means, with respect to any Series, any reserve fund,
residual value guaranty, letter of credit, guaranteed investment contract, cash
collateral account, cash collateral guaranty, interest rate swap or other
contract or agreement for the benefit of such Series.
"Events of Default" has the meaning set forth in Section 7.1 of the
Administrative Agency Agreement.
"Excess Deferred Gross" means, with respect to any Lease and Leased
Vehicle, the amount, if any, withheld from the total amount paid to the related
Dealer in connection with assignment of such Lease and Leased Vehicle. Excess
Deferred Gross is withheld if the acquisition cost of a Leased Vehicle exceeds
the manufacturer's suggested retail price of a Leased Vehicle, if the Residual
Value of a Leased Vehicle as set forth in the related Lease exceeds the maximum
amount permitted for such Leased Vehicle by the Administrative Agent, or the
security deposit or reconditioning reserve for such Lease is waived by the
Dealer.
"Excess Mileage" means, as of the Scheduled Lease End date of any Leased
Vehicle, the excess of the number of miles by which such Leased Vehicle has
been driven over the number of miles such Leased Vehicle may be driven during
the term of the related Lease without incurring an excess mileage charge
pursuant to the related Lease.
"Excess Wear and Tear" means, as of the Scheduled Lease End date of any
Leased Vehicle, all damages to such Leased Vehicle that are not the result of
normal wear and tear as more specifically described in the related Lease.
"Exchangeable Beneficial Certificates" means certificates issued to
Beneficiaries representing in the aggregate a 100% beneficial interest in that
portion of FCTT which is not represented by any Specified Beneficial
Certificates.
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<PAGE> 21
"FCTT" means the Ford Credit Titling Trust established pursuant to the
FCTT Agreement.
"FCTT Agreement" means the Amended and Restated Trust Agreement dated
and effective as of January 31, 1994 by and among Comerica, Ford Credit as
Grantor and initial Beneficiary and Ford Credit Leasing as Grantor and initial
Beneficiary, as such agreement may be supplemented, amended or modified from
time to time.
"FCTT Assets" means (i) all contributions of capital to FCTT pursuant to
Section 4.1(b) of the FCTT Agreement, (ii) all Collections (prior to
distribution to the applicable Beneficiaries) and any amounts on deposit in the
FCTT Collection Account; (iii) Leases; (iv) Leased Vehicles; (v) Certificates
of Title; (vi) the lessor's rights under Leases with respect to any Security
Deposits or Reconditioning Reserves; (vii) Dealer Recourse and (viii) all
proceeds of the foregoing.
"FCTT Collection Account" means the account established pursuant to
Section 5.1(a) of the FCTT Agreement.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation.
"Ford Credit Leasing" means Ford Credit Leasing Company, Inc., a
Delaware corporation.
"FCTT Register" and "FCTT Registrar" mean the register maintained and
the registrar appointed pursuant to Section 3.6 of the FCTT Agreement.
"Grantors" means Ford Credit and Ford Credit Leasing in their capacities
as grantors of the FCTT Assets to FCTT, together with any corporation into
which either such corporation may be merged or consolidated.
"Governmental Authority" means the United States of America, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" means the holder of a Certificate as indicated in the FCTT
Register.
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<PAGE> 22
"Insolvency Event" means, with respect to any specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (b) the commencement by such Person of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereinafter in effect, or the consent by such Person to the entry of
an order for relief in an involuntary case under any such law, or the consent
by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or the making by such
Person of any general assignment for the benefit of creditors, or the failure
by such Person generally to pay its debts as such debts become due, or the
taking of action by such Person in furtherance of any of the foregoing.
"Insurance Policies" means any residual value insurance policy,
comprehensive, collision, liability, physical damage, credit or other insurance
policies (including rights under any self-insurance provided by Ford Credit and
assigned to FCTT and Comerica), and all rights thereunder, which are maintained
by the Grantors, any Lessee or any Affiliate of either Grantor or any Lessee,
to the extent such policy or program covers or applies to any Lease, Leased
Vehicle or the ability of any Lessee to make any required payment under the
related Lease or with respect to the related Leased Vehicle, and any contingent
or excess liability insurance policy or program maintained by or on behalf of
FCTT or Comerica with respect thereto.
"Insurance Proceeds" means the proceeds of any Insurance Policy.
"Lease" means any retail lease contract for an automobile or a
light-duty truck which has been entered into
8
<PAGE> 23
between a Lessee and a Dealer and assigned by the Dealer to FCTT.
"Lease Files" means, with respect to each Lease, Leased Vehicle and
Lessee, (i) the original of the Lease; (ii) the original credit application
fully executed by the Lessee or a photocopy thereof; (iii) the original
Certificate of Title and all related documents retained on file by the
Administrative Agent, in accordance with Accepted Servicing Practices,
evidencing the ownership of the Leased Vehicle; and (iv) any and all other
documents that the Administrative Agent shall retain on file, in accordance
with Accepted Servicing Practices, relating to the Lease, the Lessee, or the
Leased Vehicle.
"Lease Purchase Advance" has the meaning set forth in Section 3.4(b) of
the Administrative Agency Agreement.
"Lease Termination Date" means, with respect to any Lease, the date
such Lease actually terminates.
"Leased Vehicle" means any automobile or light-duty truck, together will
all accessions thereto, which is subject to a Lease.
"Lessee" means the lessee of a Leased Vehicle or any Person who is
obligated to make payments on the related Lease.
"Liabilities" has the meaning set forth in Section 2.6 of the FCTT
Agreement.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing
of any financing statement under the UCC or comparable law of any jurisdiction
to evidence any of the foregoing.
"Liquidated Lease" means (i) any Lease which, by its terms, is in
default and as to which the Administrative Agent has determined, in accordance
with Accepted Ser-
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<PAGE> 24
vicing Practices, that eventual payment in full is unlikely and has repossessed
or attempted to repossess the related Leased Vehicle and (ii) any Lease the
related Lessee of which has become subject to an Insolvency Event.
"Liquidation Proceeds" means with respect to any Collection Period and
any Liquidated Lease and the related Leased Vehicle, (i) all amounts received
from the related Lessee, the Dealer or any other Person in the Collection
Period in which such Lease became a Liquidated Lease, including, without
limitation, (w) Auction Proceeds, (x) the application of any Security Deposit
or Reconditioning Reserve, (y) any Insurance Proceeds relating to loss or
damage to such Leased Vehicle and (z) any other amounts collected, in each case
net of any sales or use taxes minus (ii) the sum, with respect to the
Collection Period in which such Lease became a Liquidated Lease, of (x)
expenses incurred by the Administrative Agent for the account of the related
Lessee in connection with the collection of monies from the Lessee or the
disposition of the related Leased Vehicle and (y) any amounts to be remitted to
the related Lessee as required by applicable law.
"Monthly Payment Advance" means the amount which the Administrative
Agent advances pursuant to Section 6.3 of the Administrative Agency Agreement.
"Monthly Payment" means, with respect to any Lease, the amount payable
monthly by the related Lessee equal to the sum of the Constant Yield Payment,
the Additional Fee payable for the applicable month and certain other fees and
charges.
"Monthly Remittance Condition" has the meaning set forth in Section
5.2(d) of the FCTT Agreement.
"Non-Specified Asset Administrative Fee" means, with respect to any
Collection Period, the fee payable to the Administrative Agent in connection
with the administration of FCTT and the servicing and administration of the
Non-Specified Assets equal to (i) 1/12th of the product of _____% and the
Non-Specified Asset Amount as of the last day of such Collection Period or (ii)
if the Administrative Agent has elected to make Lease Purchase Advances
pursuant to Section 3.4(b) of the Administrative
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<PAGE> 25
Agency Agreement, and the Holders of the Exchangeable Beneficial Certificates
have required deposits of Collections relating to Non-Specified Assets to be
made more frequently than monthly, 1/12 of the product of ___% and the
Non-Specified Asset Amount as of the last day of such Collection Period. In
addition, the Non-Specified Asset Administrative Fee shall include amounts to
be reimbursed pursuant to Section 4.1 of the Administrative Agency Agreement.
"Non-Specified Asset Charged-Off Amount" means, with respect to any
Collection Period, (i) the following amounts as of the end of the Collection
Period (x) the aggregate Book Value of all Non-Specified Assets which become
Liquidated Leases during the Collection Period, plus (y) the aggregate
uncollected Monthly Payments and Excess Wear and Tear and Excess Mileage with
respect to (A) such Liquidated Leases, plus (B) all Non-Specified Assets whose
Scheduled Lease End Date has occurred and with respect to which the related
Auction Proceeds are received during the Collection Period minus (ii) the
aggregate Liquidation Proceeds received during the Collection Period with
respect to Non-Specified Assets.
"Non-Specified Credit Losses" means, with respect to any Collection
Period, the Non-Specified Asset Charged-Off Amount with respect to the
Collection Period minus Recoveries with respect to Non-Specified Assets for the
Collection Period.
"Non-Specified Asset Comerica Fee" means with respect to any Collection
Period an amount equal to the Non-Specified Asset Percentage of the fees and
expenses of Comerica payable monthly pursuant to the first sentence of Section
6.8 of the FCTT Agreement.
"Non-Specified Asset Fee" means, with respect to any Collection Period,
an amount equal to the sum of the Non-Specified Asset Administrative Fee and
the Non-Specified Asset Comerica Fee each for such Collection Period.
"Non-Specified Asset Percentage" means, as of any date, the percentage
equivalent of a fraction, (i) the numerator of which is the Aggregate
Non-Specified Asset Amount as of such date and (ii) the denominator of which is
the Aggregate FCTT Asset Amount as of such date.
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<PAGE> 26
"Non-Specified Assets" means, prior to the first Series Issue Date, all
FCTT Assets, and after any Series Issue Date, all FCTT Assets other than any
Series Specified Assets.
"Officer's Certificate" means a certificate signed by the chairman of
the board, the president, any executive vice president, any vice president, the
treasurer, any assistant treasurer, or the controller of the Administrative
Agent.
"Opinion of Counsel" means a written opinion of legal counsel, which
counsel may be an employee of Ford Credit or an Affiliate or may from time to
time provide legal services to Ford Credit or an Affiliate.
"Payahead" means, with respect to any Lease, the amounts determined in
accordance with Section 6.1(a) of the Administrative Agency Agreement.
"Payahead Balance" means, with respect to any Lease on any Business Day,
the sum of all Payaheads with respect to such Lease, reduced by the amount of
such Payaheads applied with respect to such Lease, pursuant to Sections 6.1 and
6.3 of the Administrative Agency Agreement.
"Payment Extension" has the meaning set forth in Section 4.2(b)(ii) of
the Administrative Agency Agreement.
"Permitted Investments" means, unless otherwise specified with respect
to any Series or any securities based on such Series, any investment rated A-1+
by Standard & Poor's Ratings Group and P-1 by Moody's Investors Service, Inc.
or any other investment as may be permitted by each of such rating agencies.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated association, or government
or any agency or political subdivision thereof, or any other entity of whatever
nature.
"Purchased Lease" means a Specified Lease and related Specified Leased
Vehicle the beneficial interest in
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which has been purchased by the Administrative Agent pursuant to Section 4.7 of
the Administrative Agency Agreement.
"RCL Plan" means the Ford Credit Red Carpet Lease Plan, a financing
program offered by Ford Credit and Dealers pursuant to which Dealers enter into
the Leases with Lessees for the lease of the Leased Vehicles.
"Realized Value" means, with respect to any Leased Vehicle which is the
subject of a Voluntary Early Termination, (i) the fair market wholesale value
of the Leased Vehicle as agreed to by the Dealer and the Lessee, (ii) if the
Dealer and the related Lessee do not agree, the appraised wholesale value of
the Leased Vehicle as determined by an independent professional appraiser hired
by the related Lessee and acceptable to the Dealer and the Administrative
Agent, or (iii) if the Realized Value of the Leased Vehicle has not been
determined pursuant to (i) and (ii) above, the Sale Proceeds received with
respect to the Leased Vehicle.
"Reconditioning Reserve" means, with respect to any Lease, an amount
paid by the related Lessee and held by the Administrative Agent on behalf of
FCTT to be applied, if necessary, by the Administrative Agent to offset the
cost, if any, of reconditioning the related Leased Vehicle.
"Recoveries" means, with respect to any Collection Period, (i) all
amounts received during such Collection Period, net of any applicable sales and
use taxes, with respect to (x) Leases which became Liquidated Leases prior to
such Collection Period and (y) Leases whose Scheduled Lease End Date has
occurred prior to such Collection Period and with respect to which the related
Auction Proceeds were received prior to the Collection Period minus (ii) the
sum of (x) expenses incurred by the Administrative Agent during such Collection
Period for the account of the related Lessees in connection with (A) the
collection of monies from the Lessee or (B) with respect to Liquidated Leases,
the disposition of the related Leased Vehicles and (y) any amounts remitted to
the related Lessees during the Collection Period as required by applicable law.
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"Related Collection Period" means, with respect to any Distribution Date
or any Collection Period Settlement Date, the Collection Period immediately
preceding such Distribution Date or Collection Period Settlement Date.
"Residual Value" means, with respect to any Leased Vehicle, the
anticipated value of the Leased Vehicle at the Scheduled Lease End Date as
calculated by the Administrative Agent at the inception of the related Lease
and as set forth in such Lease.
"Responsible Officer" when used with respect to Comerica means any
officer in the corporate trust department, including any vice president,
assistant vice president or any other officer of Comerica.
"Retail Operating Lease Charge" means with respect to any month and any
Lease, the portion of the Constant Yield Payment equal to the product of (i)
the Book Value of the related Leased Vehicle as of the end of the immediately
preceding month and (ii) 1/12 of the Retail Operating Lease Factor with respect
to such Lease.
"Retail Operating Lease Factor" means, with respect to any Lease, a per
annum yield determined by the Administrative Agent.
"Retail Operating Lease Principal" means, with respect to any Lease,
that portion of each Constant Yield Payment scheduled to be received from a
Lessee which is not the Retail Operating Lease Charge.
"Sale Proceeds" means, with respect to any Lease which terminated on its
Scheduled Lease End Date, (i) the Auction Proceeds, Dealer Purchase Option
Price or Insurance Proceeds (to the extent relating to loss or damage of the
related Leased Vehicle) which are received upon sale or disposition of the
related Leased Vehicle plus (ii) any amounts with respect to Excess Wear and
Tear and Excess Mileage which were collected before the end of the Collection
Period in which the Auction Proceeds are received (including any Security
Deposit or Reconditioning Reserve applied), net of any applicable sales or use
taxes minus (iii) any amounts refunded to the related Lessee in connection with
prepaid Excess Wear and Tear and prepaid Excess Mileage.
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"Sale Proceeds Advance" means the amount advanced by the Administrative
Agent pursuant to Section 5.4 of the Administrative Agency Agreement.
"Scheduled Lease End Date" means, with respect to any Lease, the date
set forth in the Lease as the termination date for such Lease.
"Schedule of Leases" means, with respect to any Series, the schedule
attached to the related Supplement which identifies the related Series
Specified Assets.
"Security Deposit" means, with respect to any Lease, an amount paid by
the related Lessee and held by the Administrative Agent on behalf of FCTT to be
applied, if necessary, by the Administrative Agent to offset any amounts owed
by the Lessee upon termination of such Lease.
"Series" means any series of Specified Beneficial Certificates and the
related Series Specified Assets.
"Series Collection Account" means, with respect to any Series, an
account established pursuant to the related Supplement.
"Series Cut-Off Date" has the meaning set forth in Section 4.3(a) of the
FCTT Agreement.
"Series Fee Account" means with respect to any Series, an account
established pursuant to the related Supplement.
"Series Issue Date" means with respect to any Series, the date on which
Comerica, pursuant to the joint written instructions of the Holders of the
Exchangeable Beneficial Certificates, issues such Series of Specified
Beneficial Certificates.
"Series Payahead Account" means each account established pursuant to
Section 6.1(a) of the Administrative Agency Agreement.
"Series Specification Notice" has the meaning set forth in Section
4.3(a) of the FCTT Agreement.
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"Series Specified Asset Amount" means, as of any date with respect to
any Series, the aggregate Adjusted Balance Subject to Lease Charges for all
related Specified Leased Vehicles.
"Series Specified Asset Percentage" means, as of any date with respect
to any Series, the percentage equivalent of a fraction, (i) the numerator of
which is the Series Specified Asset Amount and (ii) the denominator of which is
the Aggregate FCTT Asset Amount, each as of such date.
"Series Specified Assets" means, with respect to any Series, the related
Specified Leases and Specified Leased Vehicles identified in the Series
Specification Notice and the related Supplement, including the related
Certificates of Title and other FCTT Assets associated with such Specified
Leases and Specified Leased Vehicles, and all proceeds arising therefrom and
associated therewith.
"Specified Asset Administrative Fee" means, with respect to any
Collection Period and any Series, the fee payable to the Administrative Agent
in connection with the administration of the related Series Specified Assets,
as set forth in the related Supplement.
"Specified Asset Charged-Off Amount" means, with respect to any
Collection Period and any Series, (i) the following amounts as of the end of
the Collection Period (x) the aggregate Book Value of all related Specified
Leases and Specified Leased Vehicles which become Liquidated Leases during the
Collection Period, plus (y) the aggregate uncollected Monthly Payments and
Excess Wear and Tear and Excess Mileage with respect to (A) such Liquidated
Leases, plus (B) all related Specified Leases whose Scheduled Lease End Date
has occurred and with respect to which the related Auction Proceeds are
received during the Collection Period minus (ii) the aggregate Liquidation
Proceeds received during the Collection Period with respect to related
Specified Leases.
"Specified Asset Comerica Fee" means, with respect to any Collection
Period and any Series, an amount equal to the related Series Specified Asset
Percentage of the monthly fees and expenses of Comerica payable pursuant to
Section 6.8 of the FCTT Agreement.
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"Specified Asset Fee" means, with respect to any Collection Period and
any Series, the sum of the Specified Asset Administrative Fee and the Specified
Asset Comerica Fee, each for such Collection Period, related to such Series.
"Specified Beneficial Certificates" means a series of certificates
representing in the aggregate a 100% beneficial interest in FCTT Assets which
constitute the related Series Specified Assets.
"Specified Lease" means, with respect to any Series, a Lease specified
as a "Specified Lease" in the Schedule of Leases attached to the related
Supplement.
"Specified Leased Vehicle" means, with respect to any Series, a Leased
Vehicle which is leased pursuant to a Specified Lease.
"Supplement" means, with respect to any Series, a supplement to the
Administrative Agency Agreement executed in connection with the issuance of
such Series.
"Supplemental Administrative Fee" means, with respect to any Collection
Period, all late fees, prepayment charges and other administrative fees
(including fees charged in connection with Voluntary Early Terminations but
excluding the Additional Fee) and expenses or similar charges allowed by
applicable law with respect to Leases and Leased Vehicles.
"Term Extension" has the meaning set forth in Section 4.2(b)(i) of the
Administrative Agency Agreement.
"Total Monthly Payment" means, with respect to any Lease, the amount
payable monthly by the related Lessee equal to the sum of (i) the Monthly
Payment, (ii) the Use and Lease Tax Amount, and (iii) the Vehicle Insurance and
Maintenance Amount.
"Treasury Regulations" means the regulations promulgated by the U.S.
Department of Treasury.
"UCC" means the Uniform Commercial Code as in effect in any relevant
jurisdiction.
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"Use and Lease Tax Amount" means, with respect to any Lease, the amount
to be applied to pay any monthly rental receipts tax levied on the related
Monthly Payment and the related Vehicle Insurance and Maintenance Amount.
"Vehicle Insurance and Maintenance Amount" means, with respect to any
Lease, any monthly amount payable by the related Lessee to the Administrative
Agent for the account of a Dealer in connection with the monthly servicing
and/or monthly vehicle insurance of the related Leased Vehicle and included in
the Total Monthly Payment due from such Lessee.
"Vehicle Purchase Account" means the account established pursuant to
Section 3.3 of the Administrative Agency Agreement.
"Vehicle Purchase Certificate" means the monthly certificate delivered
by the Administrative Agent pursuant to Section 3.5 of the Administrative
Agency Agreement.
"Voluntary Early Termination" means, with respect to any Lease, the
voluntary early termination of such Lease by the related Lessee pursuant to the
terms thereof; provided, however, that no termination of a Lease will be
considered a "Voluntary Early Termination" unless the related Lessee has paid
in full all amounts due pursuant to such Lease.
"Voluntary Early Termination Proceeds" means, with respect to any Lease
which is subject to a Voluntary Early Termination, the sum of (i) the Realized
Value of the related Leased Vehicle and (ii) the difference at such time, if
positive, between (x) the sum of (A) the Book Value of such Lease and Leased
Vehicle and (B) any overdue Total Monthly Payments with respect to such Lease
and (y) the Realized Value of the related Leased Vehicle.
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