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EXHIBIT 3.1
[RCL 1996-1 TRUST AGREEMENT]
AMENDED AND RESTATED TRUST AGREEMENT
dated as of November __, 1996
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.
As Grantors and RCL Beneficiaries
and
FIRST UNION BANK OF DELAWARE
As Trustee
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TABLE OF CONTENTS
Page
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 . . . . . . . . . . . . . 3
Section 2.4 Confirmation of Appointment of Trustee . . . 4
Section 2.5 RCL Assets . . . . . . . . . . . . . . . . . 4
Section 2.6 Declaration of Trust . . . . . . . . . . . . 5
Section 2.7 Liability and Indemnification . . . . . . . . 5
Section 2.8 Title to Trust Property . . . . . . . . . . . 7
ARTICLE III
THE RCL BENEFICIARIES . . . . . . . . . . 7
Section 3.1 Restrictions on Transfer . . . . . . . . . . 7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . 8
Section 4.1 Representations and Warranties of the Grant-
ors . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES . . . . 9
Section 5.1 Establishment of RCL Account . . . . . . . . 9
Section 5.2 Application of RCL Assets . . . . . . . . . . 9
Section 5.3 Accounting and Reports to RCL Beneficiaries,
the Internal Revenue Service and Others . . . 10
Section 5.4 Signature on Returns; Tax Matters Partner . . 11
ARTICLE VI
RCL TRUSTEE . . . . . . . . . . . . . 11
Section 6.1 Duties of RCL Trustee . . . . . . . . . . . . 11
Section 6.2 Rights of RCL Trustee . . . . . . . . . . . . 12
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Page
Section 6.3 Acceptance of Trusts and Duties . . . . . . . 12
Section 6.4 Action upon Instruction by RCL
Beneficiaries . . . . . . . . . . . . . . . . 14
Section 6.5 Furnishing of Documents . . . . . . . . . . . 15
Section 6.6 Representations and Warranties of RCL Trust-
ee . . . . . . . . . . . . . . . . . . . . . 15
Section 6.7 Reliance; Advice of Counsel . . . . . . . . . 16
Section 6.8 RCL Trustee May Own Lease Trust Certificates
and Senior Notes . . . . . . . . . . . . . . 17
Section 6.9 Compensation . . . . . . . . . . . . . . . . 17
Section 6.10 Resignation or Removal of RCL Trustee . . . . 18
Section 6.11 Merger or Consolidation of RCL Trustee . . . 20
Section 6.12 Appointment of Co-Trustee or Separate Trust-
ee . . . . . . . . . . . . . . . . . . . . . 20
Section 6.13 Eligibility Requirements for RCL Trustee . . 22
ARTICLE VII
TERMINATION OF TRUST AGREEMENT . . . . . . . 22
Section 7.1 Termination of Trust Agreement . . . . . . . 22
ARTICLE VIII
AMENDMENTS . . . . . . . . . . . . 23
Section 8.1 Amendments . . . . . . . . . . . . . . . . . 23
ARTICLE IX
TAX MATTERS . . . . . . . . . . . . 24
SECTION 9.1 Tax Characterization . . . . . . . . . . . . 24
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . 24
Section 10.1 No Legal Title to RCL Assets; Direction of
RCL Trustee Actions . . . . . . . . . . . . . 24
Section 10.2 Limitations on Rights of Others . . . . . . . 24
Section 10.3 Notices . . . . . . . . . . . . . . . . . . . 24
Section 10.4 Severability . . . . . . . . . . . . . . . . 26
Section 10.5 Counterparts . . . . . . . . . . . . . . . . 26
Section 10.6 Successors and Assigns . . . . . . . . . . . 26
Section 10.7 No Recourse . . . . . . . . . . . . . . . . . 26
Section 10.8 No Petition . . . . . . . . . . . . . . . . . 26
Section 10.9 Covenant of Ford Credit Leasing . . . . . . . 27
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Page
Section 10.10 Headings . . . . . . . . . . . . . . . . . 27
Section 10.11 Governing Law . . . . . . . . . . . . . . . 27
Exhibit A Form of RCL Assignment Agreement . . . . . A-1
Schedule I Demand Notes
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AMENDED AND RESTATED TRUST AGREEMENT, dated and effective as of
November __, 1996 (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) FIRST UNION BANK OF DELAWARE, a Delaware banking
corporation, as trustee (the "RCL Trustee").
WHEREAS, the parties hereto intend to amend and restate, on the terms
and conditions set forth herein, that certain Trust Agreement, dated as of
October __, 1996, among Ford Credit, Ford Credit Leasing and the RCL Trustee
(the "Original Agreement"), pursuant to which this trust was created;
WHEREAS, Ford Credit and Ford Credit Leasing intend to transfer their
respective Series 1996-1 Certificates to RCL pursuant to the terms of the Asset
Contribution Agreement;
WHEREAS, it is intended that RCL transfer the Series 1996-1
Certificates to the Lease Trust pursuant to the Transfer Agreement and,
immediately thereafter, that an interest in the Series 1996-1 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 Subordinated Notes, and each other asset of RCL (other than
certain demand notes listed on Schedule I hereto upon which Ford Credit is
maker and RCL or Ford Credit Leasing is payee) 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:
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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.
"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.
"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 and named "RCL Trust 1996-1" in
the Original Agreement.
"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 1996-1 Certificates and all proceeds thereof, as set forth in
Section 5.1, (iii) the Subordinated Notes and (iv) the Cash Collateral Account
and all amounts deposited therein.
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"RCL Assignment Agreement" means the assignment made by RCL to Ford Credit
Leasing in the form attached hereto as Exhibit A.
"RCL Beneficiaries" means Ford Credit and Ford Credit Leasing.
"RCL Trustee" means First Union Bank of Delaware, in its capacity as
trustee under this Agreement, together with its successors and any permitted
assigns.
"RCL Trustee Office" means the office of the RCL Trustee at which any
particular time its corporate trust business shall be administered, which at
the date hereof is One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
"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
this Agreement shall be known as "RCL Trust 1996-1" in which name the RCL
Trustee may conduct the activities of RCL. It is the intention of the parties
hereto that RCL shall constitute a trust under the Trust Statute and that this
Agreement constitute the governing instrument of such trust.
Section 2.2 Office. The office of RCL shall be in care of RCL
Trustee at the RCL Trustee Office or at such other address as the RCL Trustee
may designate by written notice to the Grantors and the RCL Beneficiaries.
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 1996-1 Certificates pursuant to the Asset
Contribution Agreement, transfer the Series 1996-1 Certificates to the
Lease
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Trust pursuant to the Transfer Agreement and acquire an interest in the
Series 1996-1 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 the 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 Subordinated Notes (other than the Subordinated Note
assigned to Ford Credit Leasing);
(f) to establish the Cash Collateral Account; and
(g) 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 Confirmation of Appointment of Trustee. The RCL
Beneficiaries hereby confirm their appointment of First Union Bank of Delaware
as trustee of RCL and, First Union Bank of Delaware hereby confirms its
acceptance of such appointment. Effective as of the date hereof, the RCL
Trustee shall have all the rights, powers and duties set forth herein.
Section 2.5 RCL Assets. (a) As of the date hereof, Ford Credit as a
Grantor hereby sells, assigns, transfers, conveys and sets over to RCL the sum
of $9800. Ford Credit Leasing as a Grantor hereby sells, assigns, transfers,
conveys and sets over to RCL the sum of $200. The RCL Trustee hereby
acknowledges receipt in trust from each Grantor, as of the date hereof, of the
foregoing contributions, which constitute the initial RCL Assets.
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The RCL Trustee shall deposit such contributions in the RCL Account upon
receipt thereof.
(b) On the Closing Date, each of Ford Credit and Ford Credit Leasing,
as Grantors, shall contribute and transfer the Series 1996-1 Certificates to
RCL pursuant to the Asset Contribution Agreement, and then RCL shall transfer
the Series 1996-1 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 1996-1 Certificates to RCL and then, pursuant to the RCL
Assignment Agreement, RCL shall assign to Ford Credit Leasing, and Ford Credit
Leasing shall accept, 1% of the assets and obligations of RCL. For purposes of
Section 7.1 of the FCTT Agreement, RCL and Ford Credit Leasing (after the
assignment) shall be the "initial transferees" of the Series 1996-1
Certificates.
(c) Certain organizational expenses of RCL have been paid by the
grantors of 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.
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 Liability and Indemnification. (a) Notwithstanding
Section 3803 of the Trust Statute, Ford Credit Leasing shall be directly liable
to any claimant for all losses, claims, damages, liabilities and expenses
("Liabilities") of RCL, or incurred in connection with RCL Assets and
this Agreement and the Basic Documents to the extent that Ford Credit Leasing
would be liable if RCL were a partnership under the Delaware Revised Uniform
Limited Partnership Act or the Delaware Uniform Partnership Law and Ford Credit
Leasing were a general partner thereof, and Ford Credit Leasing hereby
covenants and agrees that it will maintain net worth in
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an amount sufficient to maintain its status as a "general partner" of RCL and
the Lease Trust for federal income tax purposes. Any third party creditors of
RCL shall be deemed to be third party beneficiaries for purposes of this
Section 2.7.
(b) The RCL Beneficiaries shall indemnify, defend and hold harmless
the RCL Trustee, including its successors, assigns, officers, directors,
shareholders, employees and agents for all Liabilities, penalties and taxes
(other than income taxes relating to the fees paid to it hereunder) incurred by
it in connection with the administration of the RCL Trust (including attorneys'
fees) and the performance of its duties thereunder; 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 misconduct, bad
faith or negligence or (ii) incurred by reason of the RCL Trustee's breach of
its representations and warranties set forth in Section 6.6. The RCL Trustee
shall notify the RCL Beneficiaries promptly of any claim for which the RCL
Trustee may seek indemnity. Failure by the RCL Trustee to so notify the RCL
Beneficiaries shall not relieve the RCL Beneficiaries of their obligations
hereunder. If necessary, to the extent not otherwise reimbursed, the RCL
Trustee shall be entitled to indemnification from amounts on deposit in the RCL
Account for any claims against the RCL Trustee the indemnification for which is
provided pursuant to this Section 2.7. Any claim against the RCL Trustee shall
be defended by the RCL Beneficiaries and the RCL Trustee shall be entitled to
separate counsel, the fees and expenses of which shall be paid by such RCL
Beneficiaries. The indemnities contained in this Section 2.7 shall survive the
resignation or termination of the RCL Trustee or the termination of this
Agreement. Any amounts paid to the RCL Trustee pursuant to this Section 2.7
shall be deemed not to be RCL Assets immediately after such payment. The RCL
Trustee acknowledges that funds may be deposited in the RCL Account only as
specifically provided in the Basic Documents, and that certain funds paid to
RCL in respect of the Series 1996-1 Certificates and funds paid to RCL as
holder of the Subordinated Notes and deposited in the Cash Collateral Account
have been pledged to the Lease Trustee on behalf of the Lease Trust and the
Indenture Trustee on behalf of Senior Noteholders in accordance with the terms
of the Basic Documents.
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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.
ARTICLE III
THE RCL BENEFICIARIES
Section 3.1 Restrictions on Transfer. Neither Ford Credit nor Ford
Credit Leasing may sell, transfer, assign, hypothecate, pledge or otherwise
convey its beneficial interest in RCL to any Person. There shall be no
restriction on the ability of RCL, acting upon the 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 as contemplated by the
Basic Documents; provided however, that except pursuant to, or as specifically
contemplated by, the Basic Documents, RCL (and Ford Credit Leasing, after the
assignment) shall not transfer, convey, assign, lease or otherwise enter into
agreements with respect to the RCL Assets.
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
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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, 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.
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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 investment earnings on amounts deposited in the Series
1996-1 Payahead Account pursuant to Section 5.2(b) of the Series 1996-1
Supplement and any Transferor Purchase Option Net Proceeds not required to be
deposited into the Cash Collateral Account pursuant to Section 9.2 of the
Program Operating Lease shall be deposited into the RCL Account. The RCL
Trustee shall not invest any amounts deposited in the RCL Account. The RCL
Trustee shall have no liability for (i) the failure to invest amounts deposited
in the RCL Account, or (ii) for failing to take any action or to refrain from
taking any action for the reasons described in Sections 6.4(b) and 6.4(c).
(b) On each Distribution Date, the RCL Trustee shall withdraw all
amounts on deposit in the RCL Account and apply such amounts in the following
order of priority:
(i) to the RCL Trustee an amount equal to the sum of (x) the
fees payable to the RCL Trustee for its services hereunder and (y) its
reasonable
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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;
(iii) to Ford Credit Leasing, pursuant to the RCL Assignment
Agreement, 1% of the amount remaining after giving effect to the payment of
items (i) and (ii) above; and
(iv) to the RCL Beneficiaries in accordance with their
respective Percentage Interests in RCL, the amount remaining after giving
effect to the payment of items (i), (ii) and (iii).
(c) In connection with each distribution of funds, the RCL Trustee
shall deliver to each RCL Beneficiary and Ford Credit Leasing as assignee under
the RCL Assignment Agreement a report setting forth the amounts distributed
pursuant to Section 5.2(b).
Section 5.3 Accounting and Reports to RCL Beneficiaries, the Internal
Revenue Service and Others. 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 or cause to be delivered 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 or cause to be
filed 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.
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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, 5.2, 5.5 and 5.6, 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 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, the Underwriting Agreement
dated as of November __, 1996 (the "Underwriting Agreement") among ▇.▇. ▇▇▇▇▇▇
Securities Inc., the RCL Trustee, Ford Credit and Ford Credit Leasing, the
Certificate Purchase Agreement dated as of November __, 1996 (the "Purchase
Agreement") among ▇.▇. ▇▇▇▇▇▇ Securities Inc., the RCL Trustee, Ford Credit and
Ford Credit Leasing, and each certificate or other document attached as an
exhibit to or contemplated by this Agreement or the Basic Documents 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 be responsible for causing the RCL Trustee to comply with
its covenants under the Underwriting Agreement and the Purchase Agreement. 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 the Basic
Documents or would be contrary to Section 2.3, nor shall the RCL Trustee be
obligated to follow any such direction, if given.
Section 6.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created, First
Union Bank of Delaware acts solely as the RCL Trustee hereunder and not in its
individual capacity and all Persons having any claim against the RCL Trustee by
reason of the transactions contemplated by this Agreement or the Basic
Documents and 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
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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 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
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that may be incurred by the RCL Trustee therein or thereby. The right of
the RCL Trustee to perform any discretionary act enumerated in this
Agreement shall not be construed as a duty, and the RCL Trustee shall not
be answerable for other than its negligence or willful misconduct in the
performance of any such act.
Section 6.4 Action upon Instruction by RCL 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 except to the extent that such action or inaction would conflict with
any provision hereof or of the Basic Documents (including, without limitation,
Section 3.1 and Section 7.1(b) hereof). Such direction may be exercised at any
time by written instructions of the RCL 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 Beneficia-
▇▇▇▇, 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
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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 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
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notice to, the filing or registration with, or the taking of any other action
in respect of, any governmental authority or agency regulating the banking and
corporate trust activities of banks or trust companies in the jurisdiction in
which RCL was formed;
(e) this Agreement has been duly executed and delivered by the RCL
Trustee and constitutes the legal, valid and binding agreement of the RCL
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law; and
(f) no legal or governmental proceedings are pending to which the
RCL Trustee is a party or of which any property of the RCL Trustee is the
subject, and no such proceedings are threatened or 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 offi-
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cers of the relevant party, as to such fact or matter, and such certificate
shall constitute full protection to the RCL Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement, the RCL
Trustee: (i) may act directly or through its agents, attorneys, custodians or
nominees pursuant to agreements entered into with any of them, and the RCL
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the RCL Trustee with reasonable care and
(ii) may consult with counsel, accountants and other skilled professionals to
be selected with reasonable care and employed by it. The RCL Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance with any Opinion of Counsel or advice of any accountants or other
such skilled professionals and not contrary to this Agreement.
Section 6.8 RCL Trustee May Own Lease Trust Certificates and Senior
Notes. The RCL Trustee in its individual or any other capacity may become the
owner or pledgee of Lease Trust Certificates or Senior Notes and may deal with
the RCL 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 the RCL Account in accordance with
Section 5.2(c) (which amounts, following the execution of the RCL Assignment
Agreement, shall be charged 99% to amounts beneficially owned by RCL and 1%
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to amounts beneficially owned by Ford Credit Leasing), 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 (who shall promptly notify the Lease Trustee and the Indenture
Trustee).
(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
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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 successor trustee appointed pursuant
to this Section 6.10 shall be eligible to act in such capacity in accordance
with Section 6.13 and, following compliance with the preceding sentence, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
trustee.
(e) The predecessor trustee shall upon payment of its fees and
expenses 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
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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 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
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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 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
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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); (d) have its principal place of business in the State of Delaware and
(e) have a long-term debt rating of at least Baa3 by ▇▇▇▇▇ Investors Service,
Inc.
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 RCL shall dissolve 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 at
such time as the Series 1996-1 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 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, currently residing in Clarkston, Michigan,
living on the date of this Agreement.
(b) Upon termination of RCL, (i) after satisfaction of all creditors,
if any, of RCL, the RCL Trustee shall distribute the RCL Assets to the RCL
Beneficiaries in accordance with Section 5.2(b) and (ii) a certificate of
cancellation shall be filed with the Delaware Secretary of State pursuant to 12
Del. Code Section 3810(c).
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. 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
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Series 1996-1 Certificate (unless each such Holder has consented thereto), (y)
as confirmed by each Rating Agency rating the Senior Notes and the Lease Trust
Certificates, cause the then current rating of any Class of Senior Notes or the
Lease Trust Certificates to be withdrawn or reduced, or (z) as evidenced by an
Opinion of Counsel, (i) affect the treatment of the Senior Notes as debt for
federal income tax purposes, (ii) be deemed to cause a taxable exchange of the
Senior Notes for federal income tax purposes or (iii) cause RCL, FCTT or the
Lease Trust to be classified as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes.
Notwithstanding the foregoing, this Agreement may be amended (with
notice of such amendment being delivered to each Rating Agency) at any time by
the RCL Beneficiaries and the RCL Trustee to the extent reasonably necessary to
assure that none of FCTT, the Lease Trust, or RCL will be classified as an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes.
ARTICLE IX
TAX MATTERS
SECTION 9.1 Tax Characterization. It is the intention of the parties
hereto that, for purposes of federal, state and local income taxes and state
franchise taxes, and the Michigan Single Business Tax, RCL shall be treated as
a grantor trust. The parties agree that, unless otherwise required by
appropriate tax authorities, RCL shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of RCL as a grantor trust for such tax purposes. 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.
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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 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 Leasing:
Ford Credit Leasing Company, Inc.
The ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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(ii) In the case of Ford Credit:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(iii) In the case of the RCL Trustee
First Union Bank of Delaware
One ▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Trust Department
with a copy to:
First Union National Bank of North Carolina
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Pablo de La Canal
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.
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.
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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 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 1996-1 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 or liquidation
proceeding, or other similar proceeding, under the laws of the United States
without the consent of 100% of the Holders of the Specified Beneficial
Certificates (excluding Ford Credit Leasing, RCL Trust 1996-1, or any of their
Affiliates).
Section 10.9 Covenant of Ford Credit Leasing. Ford Credit
Leasing covenants (for the benefit of Ford Credit, the Lease Trust, RCL and the
Indenture Trustee) to maintain at all times a net worth (exclusive of its
interest in RCL, the Lease Trust or FCTT or any other entity in which it may be
treated for federal income tax purposes as a "general partner") at least equal
to $[10,000,000], THIS AMOUNT IS TO BE INCREASED IN PROPORTION TO THE INCREASE
IN THE 1996-1 OFFERING OVER THE 1995-1 OFFERING] unless an Opinion of Counsel
is delivered to the effect that not maintaining such net worth
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would not cause FCTT, RCL or the Lease Trust to be classified as an association
(or publicly traded partnership) taxable as a corporation for federal income
tax purposes.
Section 10.10 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 10.11 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
FIRST UNION BANK OF DELAWARE,
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: Secretary
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EXHIBIT A
Form of RCL Assignment Agreement
Reference is made to RCL Trust 1996-1 ("RCL"), established
pursuant to the Trust Agreement, dated as of ______ ___, 1996 (the "RCL Trust
Agreement"), among Ford Motor Credit Company ("Ford Credit"), Ford Motor Credit
Leasing, Inc. ("Ford Credit Leasing") and First Union Bank of Delaware, 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
hereby assigns, transfers and otherwise conveys to Ford Credit Leasing a 1%
interest in each asset, right, and liability of RCL, including without
limitation the Cash Collateral Account (subject to the pledge to the Lease
Trustee and the Indenture Trustee pursuant to the Program Operating Lease and
the Indenture) and the obligations of RCL under the Program Operating Lease and
Section 2.3(c) of the Transfer Agreement, but excluding those certain demand
notes listed on Schedule I to the RCL Trust Agreement and Ford Credit Leasing
hereby accepts such assignment, transfer and conveyance. Such assignment,
transfer and conveyance shall include the assignment of a Subordinated Note
evidencing 1% of the initial Outstanding Amount of the Subordinated Notes and
any amounts payable to RCL pursuant to the Transfer Agreement. RCL and Ford
Credit Leasing hereby agree that following such assignment, Ford Credit Leasing
shall be a "Holder" of the Series 1996-1 Certificates to the same extent as RCL
Trust 1996-1. 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 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 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%
of all funds coming into the possession of RCL that are not required to be held
or paid over to the Lease Trust or deposited in the Cash Collateral Account
shall be the property of Ford Credit Leasing and shall be paid by the RCL
Trustee to Ford Credit Leasing.
A-1
34
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 OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2
35
IN WITNESS WHEREOF, the parties hereto have caused this RCL
Assignment Agreement to be duly executed as of November __, 1996.
RCL TRUST 1996-1,
assignor
By: FIRST UNION BANK OF DELAWARE,
not in its individual capacity but
solely as RCL 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:
A-3
36
Schedule I
1. Demand Note dated November __, 1996 from Ford Credit as maker and Ford
Credit Leasing as payee in a principal amount of $_______ and assigned
to RCL Trust.
2. Demand Note dated November __, 1996 from Ford Credit as maker and Ford
Credit Leasing as payee in a principal amount of $_______ and assigned
to RCL Trust.
3. Demand Note dated November __, 1996 from Ford Credit as maker and RCL
Trust as payee in a principal amount of $__________.
4. Demand Note dated November __, 1996 from Ford Credit as maker and RCL
Trust as payee in a principal amount of $__________.
