EXHIBIT 4-P
DECLARATION OF TRUST
OF
FORD CREDIT CAPITAL TRUST III
DECLARATION OF TRUST, dated as of December 7, 2001, between Ford Motor
Credit Company, a Delaware corporation, as Sponsor, and Xxxxxxx X. Xxxxxxx,
Xxxxx X. Xxxxxx, and Xxxxx Manhattan Bank USA, National Association, as
Trustees. The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Ford Credit Capital
Trust III" (the "Trust"), in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C. Sec. 3801 et seq. (the "Business Trust Act"), and that
this document constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Secretary of State of the State of Delaware in accordance with the
provisions of the Business Trust Act. The Trust is hereby established by the
Sponsor and the Trustees for the purposes of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
debt securities of the Sponsor, (ii) issuing and selling common securities
("Common Securities") representing undivided beneficial interests in the assets
of the Trust to the Sponsor in exchange for cash and investing the proceeds
thereof in additional debt securities of the Sponsor and (iii) engaging in such
other activities as are necessary, convenient or incidental thereto.
3. At the time of issuance of the Preferred Securities, the Sponsor and
the Trustees will enter into an amended and restated Declaration of Trust (the
"Amended and Restated Declaration of Trust"), satisfactory to each such party
and having substantially the terms described in the Prospectus (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of the Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed necessary or advisable to effect the transactions contemplated in the
Amended on Restated Declaration of Trust.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, in its discretion (i) to prepare and
distribute on behalf of the Trust a registration statement for filing with the
Securities and Exchange Commission (the "Commission"), including one or more
prospectuses, together with any necessary or desirable amendments thereto and
any exhibits contained therein or forming a part thereof (the "Prospectus")
relating to the registration under the Securities Act of 1933, as amended, of
the
Preferred Securities and the Common Securities of the Trust; (ii) to prepare and
distribute on behalf of the Trust a registration statement on Form 8-A for
filing with the commission (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities and the Common Securities of the Trust
under Section 12 (b) of the Securities Exchange Act of 1934, as amended; (iii)
to file with The New York Stock Exchange and execute on behalf of the Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on The New York Stock Exchange; (iv) to file
and execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorneys for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under, or obtain for the Preferred Securities on exemption
from, the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; (v) to execute on behalf
of the Trust such underwriting or purchase agreements and related agreements
with one or more underwriters, purchasers, or agents relating to the offering of
the Preferred Securities, as the Sponsor, on behalf of the Trust, may deem
necessary or desirable; (vi) to execute on behalf of the Trust any or all
documents, papers or instruments as may be desirable in connection with any of
the foregoing; and (vii) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
or consultants and provide for reasonable compensation to carry out any of the
purposes of the Trust. In the event that any filing referred to in clauses
(i)-(iv) above is required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Trustees, the Sponsor and any of the Trustees
appointed pursuant to Section 6 hereof are hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Chase Manhattan Bank USA, National
Association, in their capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or state securities or blue sky laws. In connection with all of
the foregoing, the Sponsor and each Trustee, solely in its capacity as Trustee
of the Trust, hereby constitutes and appoints Xxxxx X. Xxxxx-Xxxxxxx, as his,
her or its, as the case may be, true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for the Sponsor or such Trustee
or in the Sponsor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all registration statements and any amendments
(including post-effective amendments) to any registration statement referred to
herein and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Sponsor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that to the extent required by the Business Trust
Act, one Trustee shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware or otherwise meets the requirements of
applicable Delaware law (the "Delaware Trustee"). Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
Any Trustee may resign upon thirty days prior
notice to the Sponsor; provided, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee. Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements ofss.3807 of the
Business Trust Act.
7. The Trust may terminate without issuing any Preferred Securities or
Common Securities at the election of the Sponsor.
8. The Declaration of Trust shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
FORD MOTOR CREDIT COMPANY,
as Sponsor
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, as Trustee
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, as Trustee
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
