1
EXHIBIT 10.4
ASSET CONTRIBUTION AGREEMENT
dated as of
November __, 1996
among
FORD MOTOR CREDIT COMPANY
and
FORD CREDIT LEASING COMPANY, INC.,
as Contributors,
and
RCL TRUST 1996-1,
2
TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . 1
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONTRIBUTION OF SERIES 1996-1
CERTIFICATES . . . . . . . . . . . . . 2
Section 2.1 Contribution of Series 1996-1
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 RCL
Trust 1996-1 . . . . . . . . . . . . . . . . . . . . . . . 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
i
3
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 . . . . . . . . . . . . . 18
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
Exhibit A-- Schedule of Series 1996-1 Assets . . . . . . . . . . . . A-1
Exhibit B-- Form of Series 1996-1 Lease . . . . . . . . . . . . . . . B-1
ii
4
ASSET CONTRIBUTION AGREEMENT, dated and effective as of
November __, 1996, 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)
RCL TRUST 1996-1, a Delaware business trust ("RCL Trust 1996-1").
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 1996-1 Certificates representing a beneficial interest in
FCTT and the Series 1996-1 Assets;
WHEREAS, Ford Credit, Ford Credit Leasing and the RCL Trustee
wish to set forth the terms pursuant to which the Series 1996-1
Certificates are to be contributed by Ford Credit and Ford Credit
Leasing to RCL Trust 1996-1; and
WHEREAS, Ford Credit, Ford Credit Leasing and RCL Trust 1996-1
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
definitions set forth in Appendix A, or incorporated by reference
therein, the definitions set forth herein shall be
5
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.
"RCL Trustee" means First Union Bank of Delaware not in its
individual capacity but solely as trustee of RCL Trust 1996-1.
"Removal Event" has the meaning set forth in Section 3.3.
"Schedule of Series 1996-1 Assets" means the list of Series
1996-1 Leased Vehicles and Series 1996-1 Leases annexed hereto as
Exhibit A, which may be in the form of microfiche or a computer
tape.
ARTICLE II
CONTRIBUTION OF SERIES 1996-1
CERTIFICATES
Section 2.1 Contribution of Series 1996-1 Certificates. On
the Closing Date, subject to the terms and conditions of this
Agreement, each of the Contributors agrees to contribute to RCL
Trust 1996-1, and the RCL Trustee on behalf of RCL Trust 1996-1
agrees to accept from the Contributors, the Series 1996-1
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 RCL Trust
1996-1, without recourse, all right, title and interest of the
Contributors, whether now owned or hereafter acquired, in and to the
following: (i) the Series 1996-1 Certificates, including all monies
paid thereon and due thereon on or after the Series 1996-1 Cut-Off
Date (including any monies received prior to the Series 1996-1
Cut-Off Date that are due on or after the Series 1996-1 Cut-Off Date
and were not used to reduce the principal balance of the Series
1996-1 Certificates) and (ii) their respective rights and
obligations under the Administrative Agency Agreement and the Series
1996-1 Supplement. The Series 1996-1 Certificates shall become
property of RCL Trust 1996-1 and the inter-
2
6
ests of the Contributors as beneficiaries of RCL Trust 1996-1 shall reflect
such additions.
Section 2.2 The Closing. The contribution of the Series
1996-1 Certificates shall take place at a closing at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 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. [First Union Bank of
Delaware is a [national] banking corporation duly organized, validly
existing and in good standing under the laws of the [State of
Delaware] [with its principal place of business in 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
3
7
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) Validity; Binding Obligation. 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.
(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 li-
4
8
censes and approvals in all jurisdictions in which the ownership
or lease of property or the conduct of its business requires such
qualifications.
(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 1996-1 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 threat-
5
9
ened 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 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 Ford Credit and Ford Credit Leasing makes the
following representations and warranties as to the Series 1996-1
Assets, on which RCL Trust 1996-1 relies in accepting the Series
1996-1 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 1996-1 Certificates to
RCL Trust 1996-1 and any subsequent assignment or transfer by RCL Trust 1996-1:
(i) New Vehicle. Each Series 1996-1 Leased Vehicle
was a new automobile or light-duty truck at the inception
of the related Series 1996-1 Lease.
(ii) Certificate of Title. Each Series 1996-1 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 1996-1 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 1996-1 Cut-Off
Date the Pool Balance was $_____________.
(v) Interest in Lease and Leased Vehicle. Each
Series 1996-1 Lease was entered into by a Dealer located
in the United States, as lessor, and a Lessee with a
billing address in an Eligible
6
10
State, as lessee, and all of the Dealer's right, title and
interest in such Series 1996-1 Lease and the related Series 1996-1
Leased Vehicle was validly assigned by such Dealer to FCTT.
(vi) Customary and Enforceable Provisions. Each
Series 1996-1 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 1996-1
Lease provides for Total Monthly Payments which include
Constant Yield Payments that fully amortize the Balance
Subject to Lease Charges of such Series 1996-1 Lease to a
final payment equal to the Residual Value of the
related Series 1996-1 Leased Vehicle over the term of such
Series 1996-1 Lease.
(viii) Compliance with Law. At the time it was
originated or made, and as of the date of this Agreement,
each Series 1996-1 Lease complied in all material respects
with all requirements of applicable federal, state, and
local laws, and regulations thereunder.
(ix) Binding Obligation. Each Series 1996-1 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 1996-1
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 1996-1
Specification Date, no Series 1996-1 Lease had been
7
11
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 1996-1 Lease has been waived.
(xiii) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or threatened
with respect to any Series 1996-1 Lease.
(xiv) No Default. As of the Series 1996-1
Specification Date, no default in payment by any Lessee of
any payments due with respect to a Series 1996-1 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 1996-1 Lease had arisen.
(xv) No Recourse to Dealer. No Series 1996-1 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 1996-1 Leased Vehicle as
required under the related Series 1996-1 Lease.
(xvii) Title. No Series 0000-0 Xxxxx 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 1996-1
Certificates, has good and marketable title to each Series
1996-1 Lease and each Series 1996-1 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 1996-1 Leased
Vehicle.
(xviii) Valid Assignment. No Series 1996-1 Lease
was originated in, or is subject to the laws of, any
jurisdiction under which the sale, transfer,
8
12
and assignment of such Series 1996-1 Lease to FCTT or of a
beneficial interest in such Series 1996-1 Lease pursuant
to transfers of Series 1996-1 Certificates is unlawful,
void, or voidable. No Series 1996-1 Leased Vehicle is
subject to the laws of any jurisdiction under which the
sale, transfer, and assignment of such Series 1996-1
Leased Vehicle to FCTT or of a beneficial interest in such
Series 1996-1 Leased Vehicle pursuant to transfers of
Series 1996-1 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 1996-1 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 1996-1 Lease
have been made.
(xx) Chattel Paper. Each Series 1996-1 Lease
constitutes "chattel paper" as defined in the UCC.
(xxi) One Original. There is only one original of
each Series 1996-1 Lease, which is held by the
Administrative Agent on behalf of FCTT.
(xxii) No Excess Deferred Gross. No Series 1996-1
Lease is subject to a holdback of Excess Deferred Gross.
(xxiii) Origination. Each Series 1996-1 Lease has
an origination date on or after ________ __, 199_.
(xxiv) Maturity of Leases. Each Series 1996-1 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 1996-1 Lease has a Retail Operating Lease Factor
equal to or greater than __%.
9
13
(xxvi) Location of Lease Files. The Lease Files
relating to each Series 1996-1 Lease are maintained at the
offices of the Administrative Agent.
(xxvii) No Delinquency. No Series 1996-1 Lease has
a Total Monthly Payment that was more than 30 days overdue
as of the Series 1996-1 Cut-Off Date.
(xxviii) No Extensions. No Term Extension or
Payment Extension had been granted to the Lessee under any
Series 1996-1 Lease prior to the Series 1996-1 Cut-Off
Date.
(xxix) Advance Payment Program. No Series 1996-1
Lease was originated under the Advance Payment Program.
(xxx) Other Data. The information relating to the
Series 1996-1 Leases and Series 1996-1 Leased Vehicles
contained in the Schedule of Series 1996-1 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 1996-1 Certificates were
utilized in selecting the Series 1996-1 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 1996-1 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 Accrual Period in which such
breach or failure either occurred or was discovered by Ford Credit
(in its capacity as a Contributor or in its capacity as
Administrative Agent) or Ford Credit Leasing each of the Contributors
10
14
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 Agreement, to cause the Series 1996-1 Certificates to no
longer represent a beneficial interest in such Series 1996-1 Lease and Series
1996-1 Leased Vehicle and (ii) cause to be deposited in the Series 1996-1
Collection Account on behalf of RCL Trust 1996-1 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 1996-1 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 1996-1 Asset, the Series 1996-1
Certificates shall no longer represent an interest in such asset.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions to Obligation of RCL Trust 1996-1. The obligation
of RCL Trust 1996-1 to accept the contribution of the Series 1996-1
Certificateis 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 & 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 1996-1 Certificates and Schedule of
Series 1996-1 Assets. The Contributors shall deliver the Series 1996-1
Certificates registered in the name of the RCL Trustee and the Schedule of
Series 1996-1 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
11
15
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 1996-1 Certificates and the
other property conveyed hereunder as the property 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
1996-1 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
12
16
and in such places as may be required by law fully to preserve, maintain, and
protect the interest of RCL Trust 1996-1 in the Series 1996-1 Certificates and
in the proceeds thereof. Each Contributor shall deliver (or cause to be
delivered) to the RCL Trustee file-stamped 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 1996-1 Asset, shall indicate clearly that such
Series 0000-0 Xxxxx is owned by Comerica as trustee for FCTT and that the
beneficial interest in such Series 0000-0 Xxxxx has been transferred to RCL
Trust 1996-1.
13
17
(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 of
and abstracts from the Administrative Agent's records regarding any
Series 1996-1 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 1996-1 Leases or Series 1996-1 Leased
Vehicles (by vehicle registration number and account number), together with a
reconciliation of such list to the Schedule of Series 1996-1 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 1996-1 Leases or Series 1996-1 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 1996-1 Certificates.
Section 5.4 Indemnification. (a) Each Contributor shall
defend, indemnify, and hold harmless RCL Trust 1996-1 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 1996-1 Lease or Series 1996-1
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.
14
18
(b) Each Contributor shall defend, indemnify, and hold harmless
RCL Trust 1996-1 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 such Contributors or any affiliate of such
contributor or any Dealer of a Series 1996-1 Leased Vehicle.
(c) Each Contributor shall defend, indemnify, and hold harmless
RCL Trust 1996-1 and the RCL Trustee from and against any and all taxes that
may at any time be asserted against RCL Trust 1996-1 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 1996-1 and the RCL Trustee
resulting from the location of assets of RCL Trust 1996-1 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 1996-1 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
15
19
income tax purposes the Contributors will treat RCL Trust 1996-1 as a grantor
trust.
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 1996-1 Asset.
Section 6.2 Acknowledgements. Each Contributor acknowledges that: (a)
Lease Trust. The RCL Trustee will, pursuant to the Transfer Agreement,
transfer the Series 1996-1 Certificates to the Lease Trust and assign its
rights under this Agreement to the Lease Trustee for the benefit of the holders
of the Senior Notes, the Subordinated Notes and the Lease Trust Certificates
and that the representations and warranties contained in this Agreement and the
rights of the RCL Trustee under Sections 3.3 and 5.4 are intended to benefit
such Lease Trust, any holders of Senior Notes, Subordinated Notes or 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 1996-1,
including its rights and obligations under the Program Operating Lease and the
Subordinated Notes and any amounts payable to RCL Trust 1996-1 pursuant to the
Transfer Agreement. After giving effect to such assignment, transfer and
conveyance, Ford Credit Leasing's percentage beneficial interest in RCL Trust
1996-1 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 1996-1 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 property of RCL Trust 1996-1 to Ford
Credit and Ford
16
20
Credit Leasing, as beneficiaries of RCL Trust 1996-1, 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 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 1996-1, 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 at any time; provided, however, that such action shall not, (x) as
evidenced by an Opinion of Counsel, materially adversely affect the interests
of the Senior Noteholders or Lease Trust Certificateholders (unless 100% of the
Senior Noteholders and Lease Trust Certificateholders materially adversely
affected thereby consent thereto), (y) as confirmed by each Rating Agency
rating the Senior Notes or 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 and (z) as evidenced by an Opinion of Counsel, cause the
Lease Trust, RCL Trust 1996-1 or FCTT to be classified as an "association" (or
publicly traded partnership) taxable as a corporation 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 1996-1 Assets and the enforcement of any
obligation of the Contributors hereunder.
17
21
Section 6.6 Representations of the Contributors and the RCL
Trustee. The respective agreements, representations, warranties and
other statements by each 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 1996-1
Leases and Series 1996-1 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
Xxx Xxxxxxxx Xxxx
XXXX Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Fax: 000-000-0000
Telephone: 000-000-0000
(ii) In the case of Ford Credit Leasing:
Ford Credit Leasing Company, Inc.
The Xxxxxxxx Xxxx
XXXX Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Fax: 000-000-0000
Telephone: 000-000-0000
18
22
(iii) In the case of RCL Trust 1996-1:
c/o First Union Bank of Delaware
One Xxxxxx Square
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Trust Department
with a copy to:
First Union National Bank of North Carolina
000 Xxxxx Xxxxx Xxxxxx XXX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Pablo de La Canal
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 1996-1
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
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
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: Xxxxxx X. Xxxxx
Title: Secretary
FORD CREDIT LEASING COMPANY,
INC., as a Contributor
By: ____________________________
Name:
Title:
RCL TRUST 1996-1
By: First Union Bank of Delaware,
not in its individual capacity,
but solely as RCL Trustee
By: ____________________________
Name:
Title:
25
Exhibit A
Schedule of Series 1996-1 Assets
A-1
26
Exhibit B
Form of Series 1996-1 Lease
B-1
