COLLATERAL ACCOUNT CONTROL AGREEMENT between FORD CREDIT AUTO LEASE TRUST 20_-_, as Grantor and THE BANK OF NEW YORK MELLON, as Indenture Trustee Dated as of _______, 20__
Exhibit 99.4
between
FORD CREDIT AUTO LEASE TRUST 20_-_,
as Grantor
as Grantor
and
THE BANK OF NEW YORK MELLON,
as Indenture Trustee
as Indenture Trustee
Dated as of _______, 20__
TABLE OF CONTENTS
ARTICLE I USAGE AND DEFINITIONS |
1 | |||
Section 1.1. Usage and Definitions |
1 | |||
ARTICLE II ESTABLISHMENT OF COLLATERAL ACCOUNTS |
1 | |||
Section 2.1. Description of Account |
1 | |||
Section 2.2. Account Modifications |
2 | |||
Section 2.3. Type of Account |
2 | |||
Section 2.4. Securities Account Provisions |
2 | |||
ARTICLE III SECURED PARTY CONTROL |
2 | |||
Section 3.1. Control for Purposes of UCC |
2 | |||
Section 3.2. Conflicting Orders or Instructions |
2 | |||
ARTICLE IV INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS |
3 | |||
Section 4.1. Investment of Funds |
3 | |||
ARTICLE V SUBORDINATION OF LIEN; WAIVER OF SET-OFF |
3 | |||
Section 5.1. Subordination |
3 | |||
Section 5.2. Set-off and Recoupment |
3 | |||
ARTICLE VI OTHER AGREEMENTS |
3 | |||
Section 6.1. Adverse Claim |
3 | |||
Section 6.2. Correspondence, Statements and Confirmations |
3 | |||
Section 6.3. Representation of the Financial Institution |
3 | |||
Section 6.4. Release of Financial Institution |
4 | |||
Section 6.5. Termination |
4 | |||
Section 6.6. Existence of Other Agreements |
4 | |||
Section 6.7. Notice |
4 | |||
ARTICLE VII MISCELLANEOUS |
4 | |||
Section 7.1. Amendment |
4 | |||
Section 7.2. Conflict With Other Agreement |
5 | |||
Section 7.3. Location of Financial Institution |
5 | |||
Section 7.4. GOVERNING LAW |
5 | |||
Section 7.5. Submission to Jurisdiction |
5 | |||
Section 7.6. WAIVER OF JURY TRIAL |
5 | |||
Section 7.7. Successors |
5 | |||
Section 7.8. Notices |
5 | |||
Section 7.9. Severability |
6 | |||
Section 7.10. Counterparts |
6 | |||
Section 7.11. Headings |
6 | |||
Section 7.12. No Petition |
6 |
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COLLATERAL ACCOUNT CONTROL AGREEMENT, dated as of _______, 20__ (this “Agreement”)
among FORD CREDIT AUTO LEASE TRUST 20_-_, a Delaware statutory trust, as Grantor (the
“Grantor”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Indenture
Trustee for the benefit of the Noteholders, (in such capacity, the “Secured Party”) and THE
BANK OF NEW YORK MELLON in its capacity as both a “securities intermediary” as defined in Section
8-102 of the UCC and a “bank” as defined in Section 9-102 of the UCC (in such capacities, the
“Financial Institution”).
ARTICLE I
USAGE AND DEFINITIONS
USAGE AND DEFINITIONS
Section 1.1. Usage and Definitions. Capitalized terms used but not otherwise defined in this Agreement are defined in Appendix
1 to the Exchange Note Supplement (the “Exchange Note Supplement”) to the Credit and
Security Agreement (as defined below), dated as of _______, 20__, among CAB East LLC (“CAB
East”), as a Borrower and CAB West LLC (“CAB West” and together with CAB East, the
“Titling Companies”), as a Borrower, U.S. Bank National Association (“U.S. Bank”),
as Administrative Agent, HTD Leasing LLC (“HTD”), as Collateral Agent, and Ford Motor
Credit Company LLC (“Ford Credit”), as Lender and Servicer. Capitalized terms used but not
otherwise defined in this Agreement or in Appendix 1 to the Exchange Note Supplement are defined in
Appendix A to the Amended and Restated Credit and Security Agreement (the “Credit and Security
Agreement”), dated as of December 1, 2006, among the Titling Companies and FCALM, LLC, as
Borrowers, U.S. Bank, as Administrative Agent, HTD, as Collateral Agent and Ford Credit, as Lender
and Servicer. Appendix 1 and Appendix A also contain rules as to usage applicable to this
Agreement and are incorporated by reference into this Agreement. All references to the
“UCC” mean the Uniform Commercial Code as in effect in the State of New York.
ARTICLE II
ESTABLISHMENT OF COLLATERAL ACCOUNTS
ESTABLISHMENT OF COLLATERAL ACCOUNTS
Section 2.1. Description of Account. The Financial Institution has established the following accounts (each, a “Collateral
Account”):
“Collection Account — The Bank of New York Mellon as Indenture Trustee, as secured
party for Ford Credit Auto Lease Trust 20_-_” with account number [______];
“Principal Payment Account — The Bank of New York Mellon as Indenture Trustee, as
secured party for Ford Credit Auto Lease Trust 20_-_” with account number [______]; [and
“Hedge Counterparty Collateral Account — The Bank of New York Mellon as Indenture
Trustee, as secured party for Ford Credit Auto Lease Trust 2011-WH1” with account number
[_____]].
Section 2.2. Account Modifications. Neither the Financial Institution nor the Grantor will change the name or account number of
any Collateral Account without the prior written consent of the Secured Party.
Section 2.3. Type of Account. The Financial Institution agrees that each Collateral Account is, and will be maintained
as, either (i) a “securities account” (as defined in Section 8-501 of the UCC) or (ii) a “deposit
account,” as defined in Section 9-102(a)(29) of the UCC).
Section 2.4. Securities Account Provisions. If and to the extent any Collateral Account is a securities account (within the meaning of
Section 8-501 of the UCC) the Financial Institution agrees that:
(a) all securities, financial assets or other investment property (other than cash) credited
to each Collateral Account will be registered in the name of the Financial Institution, indorsed to
the Financial Institution or in blank or credited to another securities account maintained in the
name of the Financial Institution. In no case will any financial asset credited to any Collateral
Account be registered in the name of the Grantor, payable to the order of the Grantor or specially
indorsed to the Grantor unless the foregoing have been specially indorsed to the Financial
Institution or in blank; and
(b) all financial assets delivered to the Financial Institution pursuant to the Indenture will
be promptly credited to the appropriate Collateral Account; and each item of property (whether
investment property, financial asset, security or instrument) credited to any Collateral Account
will be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
ARTICLE III
SECURED PARTY CONTROL
SECURED PARTY CONTROL
Section 3.1. Control for Purposes of UCC. If the Financial Institution receives any order from the Secured Party or its authorized
agent (i) directing disposition of funds in any Collateral Account or (ii) directing transfer or
redemption of the financial assets relating to the Collateral Accounts (a “Secured Party
Order”), the Financial Institution will comply with the Secured Party Order without further
consent by the Grantor or any other person.
Section 3.2. Conflicting Orders or Instructions. Notwithstanding anything to the contrary contained herein, if at any time, the Financial
Institution receives conflicting orders or instructions from the Secured Party and the Grantor, the
Financial Institution will follow the orders or instructions of the Secured Party and not the
Grantor. The Financial Institution will (i) have no obligation to investigate or inquire as
to whether the Secured Party is entitled pursuant to the Indenture or otherwise to deliver any
Secured Party Order and (ii) be entitled to rely on communications (including Secured Party Orders)
believed by it in good faith to be genuine and given by the appropriate party.
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ARTICLE IV
INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS
INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS
Section 4.1. Investment of Funds. If (i) the Financial Institution has not otherwise received a Secured Party Order regarding
the investment of funds held in the Collateral Accounts by 11:00 a.m. New York time (or such other
time as may be agreed between the Financial Institution and the Grantor) on the Business Day
preceding a Payment Date, or (ii) a Default or Event of Default has occurred and is continuing with
respect to the Notes and the Indenture Trustee has provided notice of such continuing Default or
Event of Default to the Financial Institution, the Financial Institution will, to the fullest
extent practicable, invest and reinvest funds on deposit in such Collateral Account in accordance
with the last investment instruction received, which will be deemed to be effective with respect to
such investment.
ARTICLE V
SUBORDINATION OF LIEN; WAIVER OF SET-OFF
SUBORDINATION OF LIEN; WAIVER OF SET-OFF
Section 5.1. Subordination. If the Financial Institution has, or subsequently obtains, by agreement, by operation of
law or otherwise a security interest in any Collateral Account (or any portion thereof), the
Financial Institution agrees that such security interest will be subordinate to the security
interest of the Secured Party.
Section 5.2. Set-off and Recoupment. The financial assets, money and other items credited to each Collateral Account will not be
subject to deduction, set-off, recoupment, banker’s lien, or any other right in favor of any person
other than the Secured Party. However, the Financial Institution may set off (i) all amounts due
to the Financial Institution in respect of customary fees and expenses for the routine maintenance
and operation of each Collateral Account, (ii) the face amount of any checks which have been
credited to a Collateral Account but are subsequently returned unpaid because of uncollected or
insufficient funds and (iii) any advances made in connection with the settlement of any investment
made with respect to the Collateral Accounts.
ARTICLE VI
OTHER AGREEMENTS
OTHER AGREEMENTS
Section 6.1. Adverse Claim. Except for the claims and interests of the Secured Party and the Grantor, the Financial
Institution does not know of any lien on, or claim to, or interest in, any Collateral Account or
in any “financial asset” (as defined in Section 8-102(a) of the UCC), cash or funds credited
thereto.
Section 6.2. Correspondence, Statements and Confirmations. The Financial Institution will promptly send copies of all statements, confirmations and
other correspondence concerning any Collateral Account and, if applicable, any financial assets
credited thereto, simultaneously to the Grantor and the Secured Party.
Section 6.3. Representation of the Financial Institution. The Financial Institution represents that this Agreement is the valid and legally binding
obligation of the Financial Institution.
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Section 6.4. Release of Financial Institution. The Grantor and the Secured Party agree that the Financial Institution is released from any
and all liabilities to the Grantor and the Secured Party arising from the terms of this Agreement
and the compliance of the Financial Institution with the terms hereof, except to the extent that
such liabilities arise from the Financial Institution’s negligence. In no event will the Financial
Institution be liable, directly or indirectly, to any person or entity for any indirect, special,
incidental or consequential damages of any kind whatsoever (including lost profit), even if the
Financial Institution has been advised of the likelihood of such loss or damage and regardless of
the form of action.
Section 6.5. Termination. The obligations of the Financial Institution to the Secured Party pursuant to this
Agreement will continue in effect until the security interests of the Secured Party in each
Collateral Account have been terminated pursuant to the terms of the Indenture and the Secured
Party has notified the Financial Institution of such termination in writing. The Financial
Institution may terminate its obligations under this Agreement if the Secured Party resigns or is
removed as Indenture Trustee pursuant to the Indenture, provided, that such termination
will not be effective until the Collateral Accounts have been established with, and transferred to,
another securities intermediary which has agreed to assume the obligations of the Financial
Institution under this Agreement. The termination of this Agreement will not terminate any
Collateral Account or alter the obligations of the Financial Institution to the Grantor pursuant to
any other agreement with respect to any Collateral Account.
Section 6.6. Existence of Other Agreements. The Financial Institution confirms and agrees that:
(a) There are no other agreements entered into between the Financial Institution and the
Grantor with respect to any Collateral Account other than the Indenture;
(b) The Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person relating to any Collateral
Account pursuant to which it has agreed to comply with entitlement orders (as defined in Section
8-102(a)(8) of the UCC) or instructions (within the meaning of Section 9-104 of the UCC) of such
other person; and
(c) The Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement purporting to limit or condition the obligation of the
Financial Institution to comply with entitlement orders or instructions.
Section 6.7. Notice. If any person asserts any lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process) against any Collateral
Account (or in any financial asset, cash or funds carried therein), the Financial Institution will
promptly notify the Secured Party.
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
Section 7.1. Amendment. No amendment to or modification of this Agreement or waiver of any right under this
Agreement will be binding on any party to this Agreement unless it is in writing and is signed by
all of the parties to this Agreement.
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Section 7.2. Conflict With Other Agreement. In the event of any conflict between this Agreement (or any portion thereof) and any other
agreement now existing or hereafter entered into, the terms of this Agreement will prevail.
Section 7.3. Location of Financial Institution. Regardless of any provision in any other agreement, for purposes of the UCC, New York will
be the location of the bank for purposes of Sections 9-301, 9-304 and 9-305 of the UCC and the
securities intermediary for purposes of Sections 9-301 and 9-305 and Section 8-110 of the UCC.
Section 7.4. GOVERNING LAW. THIS AGREEMENT AND EACH COLLATERAL ACCOUNT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.5. Submission to Jurisdiction. The parties submit to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State Court sitting in New York,
New York for purposes of all legal proceedings arising out of or relating to this Agreement.
The parties irrevocably waive, to the fullest extent they may do so, any objection that they may
now or hereafter have to the laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 7.6. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Section 7.7. Successors. The terms of this Agreement will be binding upon, and will be for the benefit of, the
parties hereto and their respective successors and assigns and will apply to any successor account
to any Collateral Account.
Section 7.8. Notices.
(a) All notices, requests, demands, consents, waivers or other communications to or from the
parties to this Agreement must be in writing and will be deemed to have been given:
(i) upon delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, three days after deposit in the mail,
(ii) in the case of a fax, when receipt is confirmed by telephone, reply email or reply
fax from the recipient,
(iii) in the case of an email, when receipt is confirmed by telephone, reply email from
the recipient, and
(iv) in the case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient stating that
such electronic posting has occurred.
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Any such notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule A to the Indenture or at such other address as any party may
designate by notice to the other parties.
(b) Any notice required or permitted to be mailed to a Noteholder must be sent by overnight
delivery, mailed by registered first class mail, postage prepaid, or sent by fax, to the address of
such Person as shown in the Note Register. Any notice so mailed within the time
prescribed in this Agreement will be conclusively presumed to have been properly given,
whether or not the Noteholder receives such notice.
Section 7.9. Severability. If any of the covenants, agreements or terms of this Agreement is held invalid, illegal or
unenforceable, then it will be deemed severable from the remaining covenants, agreements or terms
of this Agreement and will in no way affect the validity, legality or enforceability of the
remaining Agreement.
Section 7.10. Counterparts. This Agreement may be executed in any number of counterparts. Each counterpart will be an
original, and all counterparts will together constitute one and the same instrument.
Section 7.11. Headings. The headings in this Agreement are included for convenience only and will not affect the
meaning or interpretation of this Agreement.
Section 7.12. No Petition. Each party to this Agreement covenants that for a period of one year and one day (or, if
longer, any applicable preference period) after payment in full of the Notes, all Exchange Notes,
and all distributions to all Holders of Certificates and all holders of any other Securities (as
defined in the related Titling Company Agreement) the payments on which are derived in any material
part from amounts received with respect to any Titling Company Assets (as defined in the applicable
Titling Company Agreements), it will not institute against, or join any Person in instituting
against, the Issuer, the Depositor, any Holding Company, any Titling Company, or the Holders of the
Collateral Specified Interest Certificates 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 20_-_ Exchange Note,
the Notes, this Agreement or any of the other 20_-_ Basic Documents and agrees it will not
cooperate with or encourage others to file a bankruptcy petition against the Issuer, the Depositor,
any Holding Company, any Titling Company or the Holders of the Collateral Specified Interest
Certificates during the same period.
[Remainder of Page Intentionally Left Blank]
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EXECUTED BY: |
||||||
FORD CREDIT AUTO LEASE TRUST 20_-_, | ||||||
as Grantor | ||||||
By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee of Ford Credit Auto Lease Trust 20_-_ | |||||
By: | ||||||
Title: | ||||||
THE BANK OF NEW YORK MELLON, | ||||||
solely in its capacity as “Indenture Trustee” for the “Noteholders” | ||||||
By: | ||||||
Title: | ||||||
THE BANK OF NEW YORK MELLON, | ||||||
as securities intermediary | ||||||
By: | ||||||
Title: |
[Signature Page to Collateral Account Control Agreement]