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EXHIBIT 1.1
FORD CREDIT AUTO OWNER TRUST 1999-C
[CLASS A-1 [___]ASSET BACKED NOTES]
[CLASS A-2 [___]% ASSET BACKED NOTES]
CLASS A-3 [___]% ASSET BACKED NOTES
CLASS A-4 [___]% ASSET BACKED NOTES
CLASS B [___]% ASSET BACKED NOTES
CLASS C [___]% ASSET BACKED CERTIFICATES
FORD CREDIT AUTO RECEIVABLES TWO LLC
(SELLER)
[___________], [2001]
UNDERWRITING AGREEMENT
[________]
[________]
On behalf of themselves and
as representatives (the "Representatives")
of the several Underwriters
c/o [_________]
[_________]
[_________]
Ladies and Gentlemen:
1. Introductory. Ford Credit Auto Receivables Two LLC, a Delaware
limited liability company (the "Seller"), proposes to sell to the Underwriters
named herein:
(a) [$[___________] principal amount of Class A-1 [___]% Asset Backed
Notes (the "Class A-1 Notes")];
(b) [$[___________] principal amount of Class A-2 [___]% Asset Backed
Notes (the "Class A-2 Notes")];
(c) $[___________] principal amount of Class A-3 [___]% Asset Backed
Notes (the "Class A-3 Notes");
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(d) $[___________] principal amount of Class A-4 [___]% Asset Backed
Notes (the "Class A-4 Notes");
(e) $[___________] principal amount of Class B [___]% Asset Backed
Notes (the "Class B Notes" and, together with the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, the "Underwritten Notes");
and
(f) $[___________] principal balance of Class C [___]% Asset Backed
Certificates (the "Class C Certificates"),
in each case issued by Ford Credit Auto Owner Trust [2001-_] (the "Trust").
Simultaneously with the issuance and sale of the Underwritten Notes and the
Class C Certificates as contemplated herein, the Trust will issue
[$[___________] principal amount of Class A-5 [___]% Asset Backed Notes (the
"Class A-5 Notes")], [$[___________] principal amount of Class A-6 [___]% Asset
Backed Notes (the "Class A-6 Notes" and, together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class A-5
Notes, the "Class A Notes")] and [$[___________] principal balance of Class D
8.00% Asset Backed Certificates (the "Class D Certificates" and, together with
the Class C Certificates, the "Certificates")].
The Class A Notes and the Class B Notes (together, the "Notes") will be
secured by the Receivables (as hereinafter defined) and certain other property
of the Trust. The Notes will be issued pursuant to the Indenture to be dated as
of [___________] (the "Indenture") by and between the Trust and
[__________________] (the "Indenture Trustee"). Payments in respect of the Class
B Notes, to the extent specified in the Indenture and the Sale and Servicing
Agreement (as hereinafter defined), are subordinated to the rights of the
holders of the Class A Notes.
Each Certificate will represent a beneficial interest in the Trust, the
assets of which will include the Receivables and certain other property. The
Certificates will be issued pursuant to the Amended and Restated Trust
Agreement (the "Trust Agreement") to be dated as of [___________] among the
Seller, as deposi-
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tor, [_____________________________] (the "Delaware Trustee") and
[__________________] (the "Owner Trustee"). Payments in respect of the
Certificates, to the extent specified in the Indenture, the Sale and Servicing
Agreement and the Trust Agreement, are subordinated to the rights of the
holders of the Notes.
The property of the Trust will include, among other things, a pool of
retail installment sale contracts for new and used automobiles and light trucks
(the "Receivables") and certain monies due or in some cases received thereunder
on or after [___________], such Receivables to be sold to the Trust by the
Seller and to be serviced for the Trust by Ford Motor Credit Company, a Delaware
corporation (the "Servicer" or "Ford Credit"), pursuant to the Sale and
Servicing Agreement (the "Sale and Servicing Agreement") to be dated as of
[___________] by and among the Seller, the Servicer and the Trust.
Capitalized terms used herein and not other wise defined shall have the
meanings given them in Appendix A to the Sale and Servicing Agreement.
2. Representations and Warranties of the Seller. The Seller represents
and warrants to and agrees with the several underwriters named in Schedule I
hereto (the "Underwriters") that:
(a) Registration statement on Form S-3 No. [________], including a
form of prospectus and such amendments thereto as may have been required to the
date hereof, relating to the Underwritten Notes and the Class C Certificates and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has become effective. Such registration statement, as
amended at the Effective Time, including the exhibits thereto (but excluding
Form T-1) and any material incorporated by reference therein, is hereinafter
referred to as the "Registration Statement," and the prospectus (including the
base prospectus and any prospectus supplement) relating to the Underwritten
Notes and the Class C Certificates, as last filed, or mailed for filing, with
the Commission pursuant to Rule
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424(b) ("Rule 424(b)") under the Act is hereinafter referred to as the
"Prospectus." For purposes of this Underwriting Agreement, "Effective Time"
means the date and time as of which such Registration Statement, or the most
recent post-effective amendment thereto, is declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
(b) On the Effective Date, the Registration Statement did conform in
all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), where applicable, and the rules
and regulations of the Commission under the Act or the Exchange Act, as
applicable, and did not, as of the Effective Date, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
how ever, that this representation and warranty shall not apply to any statement
or omission made in reliance upon and in conformity with information furnished
in writing to the Seller by the Underwriters through the Representatives
expressly for use in the Registration Statement; when the Registration Statement
became effective the Indenture was, and at all times thereafter the Indenture
has been and will be, duly qualified under the Trust Indenture Act, and when the
Registration Statement be came effective the Indenture conformed, and at all
times thereafter the Indenture has conformed and will conform, in all material
respects to the requirements of the Trust Indenture Act. On the date of this
Underwriting Agreement, the Registration Statement conforms, and at the time of
the last filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"), and, except as aforesaid, neither of
such documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) Other than with respect to any Derived Information (as to which
the Seller makes no representation) the documents incorporated by reference
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in the Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and
regulations thereunder; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act
and the rules and regulations thereunder.
(d) The Seller has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, and is duly qualified to transact business and is in good standing in
each jurisdiction in the United States of America in which the conduct of its
business or the ownership of its property requires such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the transactions contemplated herein or in the Basic
Documents.
(e) The consummation by the Seller of the transactions contemplated
by this Underwriting Agreement and the Basic Documents, and the fulfillment of
the terms hereof and thereof, will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation of any lien, charge, or encumbrance upon any of the property or
assets of the Seller pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement, or similar
agreement or instrument under which the Seller is a debtor or guarantor.
(f) This Underwriting Agreement has been duly authorized, executed
and delivered by the Seller; on the Closing Date (as hereafter defined), the
Notes will have been duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of the Trust entitled to the benefits
provided by the Indenture; on the Closing Date, the Certificates will have been
duly executed, authenticated, issued and delivered and entitled to the benefits
provided by the Trust Agreement; on the Closing Date, the Basic Documents to
which the Seller is a party will have been duly authorized, executed and
delivered
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by and will constitute valid and binding obligations of the Seller enforceable
in accordance with their terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law; and the Basic Documents will conform to the
description thereof in the Prospectus in all material respects.
(g) The computer tape with respect to the Receivables (the "Computer
Tape") to be delivered by Ford Credit as seller under the Purchase Agreement to
each of the Owner Trustee, the Indenture Trustee and the Representatives, will
be complete and accurate in all material respects as of the date thereof.
3. Purchase, Sale, and Delivery of Underwritten Notes and the Class C
Certificates. On the basis of the representations, warranties, and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Seller agrees to sell to the Underwriters, and the Underwriters agree, severally
and not jointly, to purchase from the Seller, the aggregate principal amounts of
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class B Notes and the Class C Certificates set forth opposite the
names of the Underwriters in Schedule I hereto. The Underwritten Notes and Class
C Certificates are to be purchased at the purchase prices set forth below:
Purchase Price (as
a % of the aggregate
principal amount)
[Class A-1 Notes [___________]]
[Class A-2 Notes [___________]]
Class A-3 Notes [___________]
Class A-4 Notes [___________]
Class B Notes [___________]
Class C Certificates [___________]
Against payment of the purchase price in immediately available funds drawn
to the order of the Seller, the Seller will deliver the [Class A-1 Notes and
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the Class A-2 Notes] to [___________________________], at the office of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP on [___________], at 9:00 a.m., New York time,
or at such other time not later than seven full business days thereafter as the
Representatives and the Seller deter mine, such time being herein referred to as
the "Closing Date." Against payment of the purchase price in immediately
available funds drawn to the order of the Seller, the Seller will deliver the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Certificates to the Representatives, for the account of the Underwriters, at the
office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP on the Closing Date. Each of
the Underwritten Notes to be so delivered will be initially represented by one
or more Notes registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of such
Underwritten Notes will be represented by book entries on the records of DTC and
participating members thereof. The Class C Certificates to be so delivered will
be in definitive form, registered in such names and in such denominations as the
Representatives shall re quest in writing not later than two full Business Days
prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Under written Notes and the Class C Certificates for sale
to the public (which may include selected dealers), as set forth in the
Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with the
Underwriters:
(a) If required, to file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the time specified therein.
The Seller will advise the Underwriters promptly of any such filing pursuant to
Rule 424(b).
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented prior to the Closing
Date, with out furnishing the Representatives with a copy of the proposed form
thereof and providing the Representatives with a reasonable opportunity to
review the same; and during such same period to advise the
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Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of the
Underwritten Notes or the Class C Certificates for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus as amended or supplemented or
for additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any prospectus
relating to the Underwritten Notes or the Class C Certificates or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal.
(c) Promptly from time to time to take such action as the
Representatives may reasonably request in order to qualify the Underwritten
Notes and the Class C Certificates for offering and sale under the securities
laws of such states as the Representatives may request and to continue such
qualifications in effect so long as necessary under such laws for the
distribution of such Underwritten Notes and Class C Certificates, provided that
in connection therewith the Seller shall not be required to qualify as a foreign
limited liability company to do business, or to file a general consent to
service of process in any jurisdiction, and provided further that the expense of
maintaining any such qualification more than one year from the Closing Date with
respect to such Underwritten Notes and Class C Certificates shall be at the
Representatives' expense.
(d) To furnish the Underwriters with copies of the Registration
Statement (including exhibits) and copies of the Prospectus as amended or
supplemented in such quantities as the Representatives may from time to time
reasonably request; and if, before a period of six months shall have elapsed
after the Closing Date and the delivery of a prospectus shall be at the time
required by law in connection with sales of any such Under written Notes or
Class C Certificates, either (i) any event shall have occurred as a result of
which the
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Prospectus would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary during such same period to amend
or supplement the Prospectus as amended or supplemented, to notify the
Representatives and to prepare and furnish to the Representatives as the
Representatives may from time to time reasonably request an amendment or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required by law to
deliver a prospectus in connection with sales of any of such Underwritten Notes
or Class C Certificates at any time six months or more after the Closing Date,
upon the Representatives' request, but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as the Representatives
may request of an amended or supplemented prospectus complying with Section
10(a)(3) of the Act.
(e) To make generally available to Noteholders and Certificateholders
as soon as practicable, but in any event no later than eighteen months after
the Closing Date, an earnings statement of the Seller complying with Rule 158
under the Act and covering a period of at least twelve consecutive months
beginning after the Closing Date.
(f) To furnish to the Representatives copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives reasonably request.
(g) So long as any of the Underwritten Notes or Class C Certificates
are outstanding, to furnish the Representatives copies of all reports or other
communications (financial or other) furnished to Noteholders or Class C
Certificateholders, and to deliver to the Representatives during such same
period, (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission; (ii) copies of each
amendment to any of the
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Basic Documents; (iii) on each Determination Date or as soon there after as
practicable, notice by facsimile of the Pool Factor as of the related Record
Date; and (iv) such additional information concerning the business and
financial condition of the Seller or the Trust as the Representatives may from
time to time reasonably request.
(h) To pay or cause to be paid the following costs and expenses
incident to the performance of its obligations hereunder: (i) the Commission's
filing fees with respect to the Notes and the Class C Certificates; (ii) all
fees of any rating agencies rating the Notes or the Class C Certificates; (iii)
all fees and expenses of the Indenture Trustee, the Delaware Trustee and the
Owner Trustee; (iv) all reasonable fees and expenses of
[______________________], counsel to the Indenture Trustee; (v) all reasonable
fees and expenses of [_________________________], counsel to the Owner Trustee;
(vi) all reasonable fees and expenses of [_______________________], special
Delaware counsel to the Delaware Trustee; (vii) all fees and expenses of
[________________________] relating to the letter referred to in Section 6(a)
hereof; (viii) all fees and expenses of accountants incurred in connection with
the delivery of any accountant's or auditor's reports required pursuant to the
Indenture or the Sale and Servicing Agreement; (ix) the cost of printing any
term sheets, computational materials and preliminary and final prospectuses
provided to investors (including any amendments and supplements thereto required
within six months from the Closing Date pursuant to Section 5(d) hereof)
relating to the Underwritten Notes or the Class C Certificates, and the
Registration Statement; and (x) any other fees and expenses incurred in
connection with the performance of its obligations hereunder.
The Underwriters shall pay the following costs and expenses incident
to the performance of their obligations hereunder: (i) all Blue Sky fees and
expenses as well as reasonable fees and expenses of counsel in connection with
state securities law qualifications and any legal investment surveys; and (ii)
the reasonable fees and expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
Except as provided in this subsection (h) and Section 10 hereof, the
Underwriters will pay all their own costs and expenses, including, without
limitation, the cost of printing any agreement
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among underwriters, the fees and expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel to the Underwriters, transfer taxes on resale of the
Underwritten Notes or the Class C Certificates by the Underwriters, and any
advertising expenses connected with any offers that the Underwriters may make.
(i) For a period from the date of this Underwriting Agreement until
the retirement of the Under written Notes and the Class C Certificates, or until
such time as the Underwriters shall cease to maintain a secondary market in the
Underwritten Notes or the Class C Certificates, whichever occurs first, to
deliver to the Representatives (i) copies of each certificate, the annual
statements of compliance and the annual independent certified public
accountants' servicing reports furnished to the Owner Trustee and the Indenture
Trustee pursuant to Article III of the Sale and Servicing Agreement, by
first-class mail as soon as practicable after such statements and reports are
furnished to the Owner Trustee and the Indenture Trustee, (ii) copies of each
certificate and the annual statements of compliance delivered to the Indenture
Trustee pursuant to Article III of the Indenture, by first-class mail as soon as
practicable after such statements and reports are furnished to the Indenture
Trustee, (iii) copies of each amendment to any Basic Document and (iv) on or
about each Distribution Date, a copy of the statement furnished by the Indenture
Trustee to the Noteholders and by the Owner Trustee to the Certificateholders
pursuant to Section 4.9 of the Sale and Servicing Agreement, by express mail or
telecopy.
(j) On or before the Closing Date, the Seller shall cause Ford
Credit's computer records relating to the Receivables to be marked to show the
Trust's absolute ownership of the Receivables, and from and after the Closing
Date neither the Seller nor the Servicer shall take any action inconsistent with
the Trust's ownership of such Receivables, other than as permitted by the Basic
Documents.
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(k) To the extent, if any, that the ratings provided with respect to
the Underwritten Notes or the Class C Certificates by the rating agency or
agencies that initially rate the Underwritten Notes or the Class C Certificates
are conditional upon the furnishing of documents or the taking of any other
actions by the Seller, the Seller shall furnish such documents and take any such
other actions.
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Underwritten Notes and the Class C
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Seller herein, to the accuracy of the statements
of officers of the Seller and ▇▇▇▇ Credit made pursuant to the provisions
hereof, to the performance by the Seller of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the Closing Date, [________________________] shall
have furnished to the Representatives a letter dated as of the Closing Date
substantially in the form and substance of the draft to which the
Representatives previously agreed.
(b) On the Closing Date, the Registration Statement shall be
effective and no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller, shall be contemplated by the Commission.
(c) The Representatives shall have received as of the Closing Date an
officer's certificate signed by an officer, Member of the Company, the Chairman
of the Board of Managers or the President, on behalf of the Seller representing
and warranting that, as of the Closing Date, except to the extent that they
relate expressly to another date in which case they will be true and correct as
of such date on the Closing Date, the representations and warranties of the
Seller in this Underwriting Agreement will be true and correct in all material
respects, that the Seller has
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complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date in all material
respects, that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that neither the
Registration Statement nor the Prospectus as amended or supplemented contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that no such certificate shall apply to any
statements or omissions made in reliance upon and in conformity with (i)
information furnished by an Under writer through the Representatives expressly
for use therein or (ii) the Derived Information (as defined in Section 8).
(d) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of the
Seller, or any material adverse change in the financial position or results or
operations of the Seller, otherwise than as set forth or contemplated in the
Prospectus, which in any such case makes it impracticable or inadvisable in the
Representatives' reasonable judgment to proceed with the public offering or the
delivery of the Underwritten Notes or the Class C Certificates on the terms and
in the manner contemplated in the Prospectus as amended or supplemented.
(e) Since the respective dates as of which information is provided in
the Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of Ford
Credit and its subsidiaries considered as a whole, or any material adverse
change in the financial position or results of operations of Ford Credit and its
subsidiaries considered as a whole, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, which makes it impracticable or
inadvisable in the Representatives' reasonable judgment to proceed with the
public offering
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or the delivery of the Underwritten Notes or the Class C Certificates on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented.
(f) Subsequent to the execution and delivery of this Underwriting
Agreement, the United States shall not have become engaged in hostilities which
have resulted in the declaration of a national emergency or a declaration of
war, which makes it impracticable or inadvisable in the Representatives'
reasonable judgment to proceed with the public offering or the delivery of the
Underwritten Notes on the terms and in the manner contemplated in the Prospectus
as amended or supplemented.
(g) [ ] [Secretary and Corporate Counsel] of Ford
Credit, or other counsel satisfactory to the Representatives in their
reasonable judgment, shall have furnished to the Representatives, his written
opinion, dated as of the Closing Date, in form satisfactory to the
Representatives in their reasonable judgment, to the effect that:
(i) The Seller has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, and is duly qualified to transact business and is
in good standing in each jurisdiction in the United States of America
in which the conduct of its business or the ownership of its property
requires such qualification.
(ii) This Underwriting Agreement has been duly authorized,
executed and delivered by the Seller.
(iii) The Purchase Agreement, the Trust Agreement and the Sale
and Servicing Agreement have been duly authorized, executed and
delivered by, and each constitutes a valid and binding obligation of,
the Seller.
(iv) The consummation of the transactions contemplated by this
Underwriting Agreement and the Basic Documents, and the fulfillment of
the terms hereof and thereof,
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will not conflict with or result in a material breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any material lien, charge or encumbrance
upon any of the property or assets of the Seller pursuant to the terms
of, any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument known to
such counsel under which the Seller is a debtor or guarantor, nor will
such action result in any violation of the provisions of the
Certificate of Formation or the Limited Liability Company Agreement of
the Seller.
(v) The Notes have been duly authorized; when executed by the
Owner Trustee and authenticated by the Indenture Trustee in accordance
with the Indenture and delivered and paid for by the purchasers
thereof, the Notes will constitute valid and binding obligations of
the Trust enforceable in accordance with their terms.
(vi) The Certificates have been duly authorized; when executed
by the Owner Trustee and authenticated by the Owner Trustee or its
authenticating agent in accordance with the Trust Agreement and
delivered and paid for by the purchasers thereof, the Certificates
will be duly issued and entitled to the benefits of the Trust
Agreement.
(vii) The Registration Statement has become effective under the
Act and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission; the Registration Statement and the
Prospectus as amended or supplemented and any further amendments and
supplements thereto made by the Seller prior to the Closing Date
(other than the financial statements and other accounting information
contained in the Registration Statement or the Prospectus as amended
or
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supplemented or any further amendments or supplements thereto, or
omitted therefrom, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder and the Trust
Indenture Act.
(viii) Such counsel believes that neither the Registration
Statement (other than the financial statements and other accounting
information contained therein or omitted therefrom, as to which such
counsel need express no opinion) nor any amendment thereto, at the
time the same became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(ix) Such counsel believes that at the Closing Date the
Prospectus as amended or supplemented (other than the financial
statements and the other accounting information contained therein or
omitted therefrom, as to which such counsel need express no opinion)
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(x) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be de
scribed in the Registration Statement or the Prospectus as amended or
supplemented which is not filed or incorporated by reference or de
scribed as required.
(xi) Such counsel does not know of any legal or governmental
proceedings pending to which the Seller is a party or of
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which any property of the Seller is the subject, and no such
proceedings are known by such counsel to be threatened or contemplated
by governmental authorities or threatened by others, other than as
set forth or contemplated in the Prospectus as amended or
supplemented and other than such proceedings which, in his opinion,
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 Seller and will not materially and adversely affect the
performance by the Seller of its obligations under, or the validity
and enforceability of, this Underwriting Agreement, the Basic
Documents, the Notes or the Class C Certificates.
(xii) The Notes, the Class C Certificates, the Basic Documents
and this Underwriting Agreement each conform in all material respects
with the descriptions thereof contained in the Registration Statement
and the Prospectus.
(xiii) The Seller is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated herein or in the Basic Documents, except
such as may be required under the Act, the Trust Indenture Act and
other federal and state securities laws; filings with respect to the
trans fer of the Receivables to the Seller pursuant to the Purchase
Agreement and to the Trust pursuant to the Sale and Servicing
Agreement and the grant of a security interest in the Receivables to
the Indenture Trustee pursuant to the Indenture; and such other
approvals as have been obtained.
Such opinion may be made subject to the qualifications that the
enforceability of the terms of the Indenture, the Purchase Agreement, the Trust
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Agreement, the Sale and Servicing Agreement and the Notes may be limited by
bankruptcy, insolvency, reorganizations or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(h) [ ], [Secretary and Corporate Counsel] of
Ford Credit, or other counsel satisfactory to the Representatives in their
reasonable judgment, shall have furnished to the Representatives his written
opinion, dated as of the Closing Date, in form satisfactory to the
Representatives in their reasonable judgment, to the effect that:
(i) Ford Credit has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, and is duly qualified to transact business and is
in good standing in each jurisdiction in the United States of America
in which the conduct of its business or the ownership of its property
requires such qualification, with only such exceptions as are not
material to the business of Ford Credit and its subsidiaries
considered as a whole.
(ii) The indemnification agreement relating to the Underwritten
Notes and the Class C Certificates (the "Indemnification Agreement")
dated as of [______], [200_] between Ford Credit and the
Underwriters, has been duly authorized, executed and delivered by Ford
Credit.
(iii) The Limited Liability Company Agreement, the Purchase
Agreement, the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized, executed and delivered by, and
each constitutes a valid and binding obligation of, Ford Credit.
(iv) The consummation of the transactions contemplated by this
Underwriting Agreement, the Indemnification Agreement and the Basic
Documents, and the
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fulfillment of the terms hereof and thereof, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under (in each case material to Ford Credit and its
subsidiaries considered as a whole), or result in the creation or
imposition of any lien, charge or encumbrance (in each case material
to Ford Credit and its subsidiaries considered as a whole) upon any of
the property or assets of Ford Credit pursuant to the terms of, any in
denture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument known to such
counsel under which Ford Credit is a debtor or guarantor, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of Ford Credit.
(v) Such counsel does not know of any legal or governmental
proceedings pending to which Ford Credit is a party or of which any
property of Ford Credit is the subject, and no such proceedings are
known by such counsel to be threatened or contemplated by governmental
authorities or threatened by others, other than as set forth or
contemplated in the Prospectus as amended or supplemented and other
than such proceedings which, in his opinion, will not have a material
adverse effect upon the general affairs, financial position, net worth
or results of operations (on an annual basis) of Ford Credit and its
subsidiaries considered as a whole and will not materially and
adversely affect the performance by Ford Credit of its obligations
under, or the validity and enforceability of, the Basic Documents or
the Indemnification Agreement.
(vi) Ford Credit has full power and authority to sell and
assign the property to be sold and assigned to the Seller pursuant to
the Purchase Agreement and has duly authorized such sale and
assignment to the Seller by all necessary corporate action.
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(vii) The Seller has full power and authority to sell and assign
the property to be sold and assigned to the Trust pursuant to the Sale
and Servicing Agreement and has duly authorized such sale and
assignment to the Trust by all necessary limited liability company
action.
(viii) The Trust has full power and authority to grant a security
interest in the property to be pledged to the Indenture Trustee
pursuant to the Indenture and has duly authorized such grant by all
necessary trustee action.
(ix) The statements in the Prospectus under the caption
"Certain Legal Aspects of the Receivables," to the extent they
constitute matters of law or legal conclusions, are correct in all
material respects.
(x) Immediately prior to the sale of the Receivables to the
Seller, Ford Credit owned the Receivables free and clear of any lien,
security interest or charge; immediately prior to the assignment of
the Receivables to the Trust, the Seller owned the Receivables free
and clear of any lien, security interest or charge; and immediately
prior to the grant of a security interest in the Receivables to the
Indenture Trustee, the Trust owned the Receivables free and clear of
any lien, security interest or charge. With respect to each Receivable
constituting part of the Trust, such Receivable is secured by a
validly perfected first priority security interest in the vehicle
financed thereby in favor of Ford Credit as a secured party or Ford
Credit has instituted appropriate procedures that if followed (and
such counsel has no reason to believe that they will not be so
followed) will result in the perfection of a first priority security
interest in the vehicle financed thereby in favor of Ford Credit as a
secured party. Each such Receivable has been duly and validly assigned
to the Seller by Ford Credit and to the Trust by the Seller, and a
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security interest in each such Receivable has been duly and validly
granted to the Indenture Trustee by the Trust.
(xi) All filings necessary under applicable law to perfect the
sale of the Receivables by Ford Credit to the Seller pursuant to the
Purchase Agreement, the sale of the Receivables by the Seller to the
Trust pursuant to the Sale and Servicing Agreement and the grant of a
security interest in the Receivables to the Indenture Trustee pursuant
to the Indenture have been made and, provided that neither Ford
Credit nor the Seller relocates its principal place of business in a
state other than Michigan, no other filings (other than the filing of
continuation statements) need be made to maintain the perfection of
the sale of the Receivables either to the Seller pursuant to the
Purchase Agreement or to the Trust pursuant to the Sale and Servicing
Agreement and of the grant of a security interest in the Receivables
to the Indenture Trustee pursuant to the Indenture.
(xii) The Trust Agreement is not required to be qualified under
the Trust Indenture Act, the Indenture has been duly qualified under
the Trust Indenture Act, and neither the Trust nor Ford Credit is
required to be registered under the Investment Company Act of 1940,
as amended.
(xiii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated herein or in the Basic Documents or the
Indemnification Agreement, except such as may be required under the
Act, the Trust Indenture Act and other federal and state securities
laws; filings with respect to the transfer of the Receivables to the
Seller pursuant to the Purchase Agreement and to the Trust pursuant
to the Sale and Servicing Agreement and the grant of a security
interest in the Receivables to the Indenture Trustee pursuant to the
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Indenture; and such other approvals as have been obtained.
(xiv) Such counsel does not know of any legal or governmental
proceedings pending to which either Ford Credit or the Seller is a
party or of which any property of either Ford Credit or the Seller is
the subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened
by others (1) seeking to prevent the issuance of the Notes or the
Class C Certificates or the consummation of any of the transactions
contemplated by this Underwriting Agreement, the Indemnification
Agreement or the Basic Documents, or (2) seeking adversely to affect
the federal income tax attributes of the Notes or the Class C
Certificates as described in the Prospectus under the heading "Certain
Federal Income Tax Consequences."
(xv) Neither the issuance or sale of the Notes or the Class C
Certificates, nor the execution and delivery of the Notes, the Class C
Certificates, this Underwriting Agreement, the Indemnification
Agreement or the Basic Documents, nor the consummation of any of the
other transactions contemplated herein or in the Indemnification
Agreement or the Basic Documents by Ford Credit or the Seller, as the
case may be, will contravene the terms of any material provision of
any statute, order, or regulation applicable to Ford Credit or the
Seller, as the case may be, the failure with which to comply could
have a material adverse effect on Ford Credit and its subsidiaries
considered as a whole or the Seller, as the case may be.
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(i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or such other
counsel satisfactory to the Representatives) shall have furnished their written
opinion, dated the Closing Date, with respect to the characterization of the
transfer of the Receivables by Ford Credit to the Seller as a sale and with
respect to the security interest of the Trust in the Receivables (which opinion
shall state that it may be relied upon by the Indenture Trustee), to the
Representatives and to Ford Credit, and such opinion shall be in substantially
the form previously discussed with the Representatives and counsel to the
Representatives and in any event
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satisfactory in form and in substance to the Representatives and to counsel to
the Representatives and to Ford Credit.
(j) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or such other counsel
satisfactory to the Representatives), special counsel to Ford Credit, shall have
furnished their written opinion, dated the Closing Date, with respect to the
nonconsolidation under the Bankruptcy Code of the assets and liabilities of the
Seller with the assets and liabilities of Ford Credit in the event that Ford
Credit were to become the subject of a case under the Bankruptcy Code to the
Representatives and to Ford Credit, and such opinion shall be in substantially
the form previously discussed with the Representatives and counsel to the
Representatives and in any event satisfactory in form and in substance to the
Representatives and counsel to the Representatives and to Ford Credit.
(k) ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel to
the Seller, shall have furnished to the Representatives their written opinion,
dated as of the Closing Date, in form and in substance satisfactory to the
Representatives in their reasonable judgment, to the effect that:
(i) The Trust will not be classified as an association taxable
as a corporation for federal income tax purposes, the Class A Notes
will be characterized as debt for federal income tax purposes and,
while the issue is not free from doubt, the Class B Notes should be
treated as debt for federal income tax purposes.
(ii) The statements in the Registration Statement and Prospectus
under the heading "Summary--Tax Status" as they relate to federal
income tax matters and under the heading "Certain Federal Income Tax
Consequences," to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects.
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(l) [ ] [Secretary and Corporate Counsel of Ford]
Credit, or such other counsel satisfactory to the Representatives in their
reasonable judgment, shall have furnished to the Representatives his written
opinion, dated as of the Closing Date, in form satisfactory to the
Representatives in their reasonable judgment, to the effect that, assuming the
Seller and the Trust will each not be classified as an association taxable as a
corporation for federal income tax purposes and the Notes will be characterized
as debt for federal income tax purposes:
(i) The Trust should have no Michigan single business tax
liability.
(ii) The Notes will be characterized as debt for Michigan
income and single business tax purposes.
(iii) Note Owners not otherwise subject to tax in Michigan should
not be subject to tax in Michigan solely because of a Note Owner's
ownership of the Notes.
(iv) The statements in the Registration Statement and
Prospectus under the heading "Summary--Tax Status" as they relate to
Michigan tax matters and under the heading "Certain State Tax
Consequences," to the extent that they constitute matters of law or
legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects.
(m) The Representatives shall have received an opinion addressed to
the Representatives of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the
Closing Date, with respect to the validity of the Notes and the Certificates and
such other related matters as the Representatives shall require and the Seller
shall have furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(n) The Representatives shall have received an opinion addressed to
the Representatives, the Seller and Ford Credit of [___________], counsel to the
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Owner Trustee, dated the Closing Date and satisfactory in form and substance to
the Representatives and counsel to the Representatives, addressing such matters
as the Representatives may request and substantially to the effect that:
(i) The Owner Trustee is a banking corporation duly created,
validly existing and in good standing under the laws of the State of
New York.
(ii) The Owner Trustee has all necessary power and authority to
execute and deliver the Trust Agreement and the Certificate of Trust
and to execute and deliver, on behalf of the Trust, each of the
Indenture, the Sale and Servicing Agreement, the Administration
Agreement and the Control Agreement. The Owner Trustee has all
necessary power and authority to execute the Certificates and the
Notes on behalf of the Trust and to authenticate the Certificates.
(iii) Each of the Trust Agreement and the Certificate of Trust
has been duly executed and delivered by the Owner Trustee and each of
the Indenture, the Sale and Servicing Agreement, the Administration
Agreement and the Control Agreement has been duly executed and
delivered by the Owner Trustee on behalf of the Trust. Each of the
Certificates and each of the Notes has been duly executed and
delivered by the Owner Trustee, on behalf of the Trust, and each of
the Certificates has been duly authenticated by the Owner Trustee.
(iv) The execution and delivery of the Trust Agreement and the
Certificate of Trust by the Owner Trustee and the execution and
delivery of the Indenture, Sale and Servicing Agreement,
Administration Agreement, Control Agreement, the Notes and the
Certificates by the Owner Trustee, on behalf of the Trust, does not
conflict with or result in a breach of or constitute a default under
the Owner Trustee's organization certificate or by-
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laws, any federal or New York State law, rule or regulation governing
its banking or trust powers or, to the best of counsel's knowledge,
without independent investigation, any judgment or order applicable to
it or its acts, proper ties or, to the best of counsel's knowledge,
without independent investigation, any indenture, mortgage, contract
or other agreement or instrument to which the Owner Trustee in its
respective capacities is a party or by which it is bound.
(v) Neither the execution and delivery by the Owner Trustee, on
behalf of the Trust, of the Indenture, Sale and Servicing Agreement,
Administration Agreement, Control Agreement, the Certificates or the
Notes nor the execution and delivery of the Trust Agreement or the
Certificate of Trust by the Owner Trustee, requires the consent,
authorization, order or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to,
any governmental authority or agency under the laws of the State of
New York or the federal laws of the United States governing the
banking or trust powers of the Owner Trustee.
(vi) To the best of counsel's knowledge, without independent
investigation, there are no actions or proceedings pending or
threatened against the Owner Trustee in any court or before any
governmental authority, arbitration board or tribunal of the State of
New York which involve the Trust Agreement, the Indenture, the Sale
and Servicing Agreement, the Administration Agreement, the Control
Agreement, the Certificate of Trust, the Notes or the Certificates or
would question the right, power or authority of the Owner Trustee to
enter into or perform its obligations under the Trust Agreement or the
Certificate of Trust or to execute and deliver, on behalf of the
Trust, the Indenture, Sale and Servicing Agreement, Administration
Agreement, Control Agreement, the Certificates or the Notes.
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(o) The Representatives shall have received an opinion addressed to
the Representatives, the Seller and Ford Credit of [___________], counsel to the
Delaware Trustee, dated the Closing Date and satisfactory in form and substance
to the Representatives and counsel to the Representatives, addressing such
matters as the Representatives may request and substantially to the effect that:
(i) The Delaware Trustee is duly incorporated and validly
existing as a banking corporation under the laws of the State of
Delaware.
(ii) The Delaware Trustee has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement.
(iii) The Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes a legal, valid and
binding agreement of the Delaware Trustee, enforceable against the
Delaware Trustee, in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation by the
Delaware Trustee of any of the transactions contemplated thereby,
requires the consent, authorization, order or approval of, the giving
of notice to, the registration with or the taking of any other action
in respect of, any governmental authority or agency under the laws of
the State of Delaware or any federal law of the United States
governing the banking or trust powers of the Delaware Trustee, other
than the filing of the Certificate of Trust with the Secretary of
State (which Certificate of Trust has been duly filed).
(v) Neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation by the
Delaware Trustee of any of
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the transactions contemplated thereby, (i) conflicts with or
constitutes a breach of or default under the Certificate of Trust,
the Trust Agreement, the certificate of incorporation or by-laws of
the Delaware Trustee or, to the best of counsel's knowledge, without
independent investigation, any agreement, indenture or other
instrument to which the Delaware Trustee is a party or by which it or
any of its properties may be bound or (ii) violates any law,
governmental rule or regulation of the State of Delaware or any
federal law of the United States of America governing the banking or
trust powers of the Delaware Trustee, or, to the best of counsel's
knowledge, without independent investigation, any court decree
applicable to the Delaware Trustee.
(vi) To the best of counsel's knowledge, without independent
investigation, there are no actions or proceedings pending or
threatened against the Delaware Trustee in any court or before any
governmental authority, arbitration board or tribunal of the State of
Delaware which involve the Trust Agreement or would question the
right, power or authority of the Delaware Trustee to enter into or
perform its obligations under the Trust Agreement.
(vii) To the best of counsel's knowledge, without independent
investigation, there exist no liens, security interests or charges
affecting any of the property of the Trust resulting from acts of or
claims against the Delaware Trustee that are unrelated to the
transactions contemplated by the Trust Agreement.
(p) The Representatives shall have received an opinion addressed to
the Representatives, the Seller and Ford Credit of [___________], counsel to the
Trust, dated the Closing Date and satisfactory in form and substance to the
Representatives and counsel to the Representatives, addressing such matters as
the Representatives may request and substantially to the effect that:
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(i) The Trust has been duly formed and is validly existing as a
business trust under the Delaware Business Trust Act, 12 Del. C. ss.
3801, et seq. (the "Delaware Act"), and has the power and authority
under the Trust Agreement and the Delaware Act to execute, deliver and
perform its obligations under the Trust Agreement, the Indenture, the
Sale and Servicing Agreement, the Administration Agreement, the
Control Agreement, the Note Depository Agreement, the Certificates
and the Notes.
(ii) The Trust Agreement is the legal, valid and binding
agreement of the Depositor and the Owner Trustee, enforceable against
the Depositor and the Owner Trustee, in accordance with its terms.
(iii) The Trust has the power and authority under the Trust
Agreement and the Delaware Act to Grant the Indenture Trust Estate to
the Indenture Trustee pursuant to the Indenture.
(iv) Each of the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the Control
Agreement, the Note Depository Agreement and the Notes have been duly
authorized by the Trust.
(v) The issuance and sale of the Certificates have been duly
authorized by the Trust, and the Certificates, when duly executed by
the Owner Trustee on behalf of the Trust and authenticated by the
Owner Trustee in accordance with the Trust Agreement and delivered to
and paid for by the purchasers thereof in accordance with the Trust
Agreement, will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement.
(vi) Neither the execution, delivery and performance by the Trust
of the Trust Agreement, the Indenture, the Sale and
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Servicing Agreement, the Administration Agreement, the Control
Agreement, the Note Depository Agreement, the Certificates and the
Notes, nor the consummation by the Trust of any of the transactions
contemplated thereby, requires the consent or approval of, the giving
of notice to, the registration with, or the taking of any other action
with respect to, any court, or governmental or regulatory authority or
agency under the laws of the State of Delaware, except for the filing
of the Certificate of Trust with the Secretary of State (which
Certificate of Trust has been duly filed).
(vii) Neither the execution, delivery and performance by the
Trust of the Trust Agreement, the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Control Agreement and
the Note Depository Agreement, including the execution and delivery
of such documents by the Owner Trustee on behalf of the Trust, nor the
consummation by the Trust or the Owner Trustee on behalf of the Trust
of any of the transactions contemplated thereby, is in violation of
the Trust Agreement or of any law, rule or regulation of the State of
Delaware applicable to the Trust or the Owner Trustee or, to the best
of counsel's knowledge, without independent investigation, any
agreement, indenture, instrument, order, judgment or decree to which
the Trust or any of its property is subject.
(viii) To the best of counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Trust before any court or other governmental
authority of the State of Delaware which, if adversely decided, would
adversely affect the Trust Property or the ability of the Trust to
carry out the transactions contemplated by the Trust Agreement, the
Indenture, the Sale and Servicing Agreement, the Administration
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Agreement, the Control Agreement and the Note Depository
Agreement.
(ix) Under the Delaware Act, the Trust constitutes
a separate legal entity, separate and distinct from the holder of
any Certificate and any other entity and, insofar as the
substantive law of the State of Delaware is applicable, the Trust
rather than the holder of any Certificate in such Trust will hold
whatever title to such property as may be conveyed to it from time
to time pursuant to the Trust Agreement and the Sale and Servicing
Agreement, except to the extent that such Trust has taken action
to dispose of or otherwise transfer or encumber any such property.
(x) Except as otherwise provided in the Trust
Agreement, under Section 3805(c) of the Delaware Act, a holder of
a Certificate has no interest in specific business trust property.
(xi) Under Section 3805(b) of the Delaware Act, no
creditor of any holder of a Certificate shall have any right to
obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in
accordance with the terms of the Trust Agreement.
(xii) Under the Trust Agreement, the Owner Trustee
has the authority to execute and deliver on behalf of the Trust
the Basic Documents to which the Trust is a party.
(q) The Representatives shall have received an opinion
addressed to the Representatives, the Seller and Ford Credit of
[ ], counsel to the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to the Representatives and
counsel to the Representatives, to the effect that:
(i) The Indenture Trustee has been duly
incorporated and is validly existing as a bank and trust company
in good standing
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under the laws of the State of New York with full corporate trust
power and authority to enter into and perform its obligations
under the Indenture.
(ii) The Indenture has been duly executed and
delivered by the Indenture Trustee, and, insofar as the laws
governing the trust powers of the Indenture Trustee are concerned
and assuming due authorization, execution and delivery thereof by
the Owner Trustee, the Indenture constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against
the Indenture Trustee in accordance with its terms, except (1) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights, and (2) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(iii) The Notes have been duly authenticated and
delivered by the Indenture Trustee.
(iv) Neither the execution nor delivery by the
Indenture Trustee of the Indenture nor the consummation of any of
the trans actions by the Indenture Trustee contemplated thereby
required the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect
to, any governmental authority or agency under any existing
federal or New York State law governing the trust powers of the
Indenture Trustee, except such as have been obtained, made or
taken.
(v) The execution and delivery by the Indenture
Trustee of the Indenture and the performance by the Indenture
Trustee of its obligations thereunder do not conflict with or
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result in a breach or violation of any of the terms, conditions or
provisions of any law, governmental rule or regulation of the
United States or the State of New York governing the banking or
trust powers of the Indenture Trustee or the Certificate of
Incorporation or By-Laws of the Indenture Trustee or, to such
counsel's knowledge, any order, writ, injunction or decree of any
court or governmental authority against the Indenture Trustee or
by which it or any of its properties is bound or, to such
counsel's knowledge, any indenture, mortgage or contract or other
agreement or instrument to which the Indenture Trustee is a party
or by which it or any of its properties is bound, or constitute a
default thereunder.
(r) The Representatives shall have received an officer's
certificate dated the Closing Date of the Chairman of the Board, the
President, the Executive Vice President-Finance, the Treasurer or any
Assistant Treasurer of:
(i) Ford Credit, in which such officers shall state
that, to the best of their knowledge after reasonable
investigation, the representations and warranties of the Servicer
contained in the Sale and Servicing Agreement and of Ford Credit
contained in the Purchase Agreement are true and correct in all
material respects and that Ford Credit has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the
Closing Date in all material respects.
(ii) The Seller, in which such officers shall state
that, to the best of their knowledge after reasonable
investigation, the representations and warranties of the Seller
contained in the Trust Agreement, the Sale and Servicing Agreement
and the Purchase Agreement are true and correct in all material
respects, and that the Seller has complied with all agreements and
satisfied all conditions on its
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part to be performed or satisfied under such agreements at or
prior to the Closing Date in all material respects.
(s) The Class A-1 Notes and the Class A-2 Notes shall
have been rated in the highest short-term rating category by each of
▇▇▇▇▇'▇ and Standard & Poor's; the Class A-3 Notes, the Class A-4
Notes, the Class A-5 Notes and the Class A-6 Notes shall have been
rated in the highest long-term rating category by each of ▇▇▇▇▇'▇ and
Standard & Poor's; the Class B Notes shall have been rated at least in
the "A" category or its equivalent by each of ▇▇▇▇▇'▇ and Standard &
Poor's; and the Class C Certificates shall have been rated at least in
the "BBB" category or its equivalent by each of ▇▇▇▇▇'▇ and Standard
and Poor's.
(t) At the Closing Date, the Class A-5 Notes and the
Class A-6 Notes shall have been validly issued and paid for by Ford
Credit, and the Class D Certificates shall have been validly issued and
paid for by the Seller.
7. Indemnification and Contribution. (a) The Seller will
indemnify and hold each Underwriter harmless against any losses,
claims, damages, or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
related preliminary prospectus or any
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portion of the 8-K Information constituting Pool Information or
Prospectus Information or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reason ably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Seller will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to the Seller by any Underwriter through the Representatives
specifically for use therein or (ii) the Derived Information; and
provided further, that the Seller shall not be liable to any
Underwriter or any person controlling any Underwriter under the
indemnity agreement in this subsection (a) with respect to any of such
documents to the extent that any such loss, claim, damage or liability
of such Underwriter or such controlling person results from the fact
that such Underwriter sold the Underwritten Notes or Class C
Certificates to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most
recent, if the Seller has previously furnished copies thereof to such
Underwriter.
The indemnity agreement in this subsection (a) shall be in
addition to any liability which the Seller may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Seller against any losses, claims,
damages or liabilities to which the Seller may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any
amendment
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or supplement thereto, or any related preliminary prospectus or 8-K
Information, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made (i) in reliance upon and in conformity with written
information furnished to the Seller by such Underwriter through the
Representatives specifically for use therein or (ii) in the Derived
Information prepared by such Underwriter, and will reimburse any legal
or other expenses reasonably incurred by the Seller in connection with
investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) shall be
in addition to any liability which each Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls the Seller within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) of written notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof, and
in the event that such indemnified party shall not so notify the
indemnifying party within 30 days following receipt of any such notice
by such indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless the
indemnifying party shall have received other notice addressed and
delivered in the manner provided in Section 11 hereof of the
commencement of such action; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party in
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its reasonable judgment, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Seller on the one hand and the Underwriters on the other from
the offering of the Underwritten Notes and the Class C Certificates.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Seller
on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages, or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received
by the Seller on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Seller bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus as amended or supplemented with respect to the Under
written Notes and the Class C Certificates. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Seller or by the Underwriters and the parties' relative intent,
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knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission, including, with respect to any
Underwriter, the extent to which such losses, claims, damages or
liabilities (or actions in respect thereof) result from the fact that
such Underwriter sold such Underwritten Notes or Class C Certificates
to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the
Prospectus as then supplemented or amended (excluding documents
incorporated by reference), whichever is more recent, if the Seller has
previously furnished copies thereof to such Underwriter. The Seller and
the Underwriters, severally and not jointly, agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages, or liabilities (or actions
in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any action or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten
Notes and the Class C Certificates underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages which such Underwriter has other wise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of the
Underwritten Notes and the Class C Certificates in this subsection (d)
to contribute are several and not joint in proportion to their
respective underwriting obligations with respect to such Notes and
Class C Certificates as set forth in Schedule I hereto.
8. 8-K Information and Derived Information.
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(a) Each Underwriter may prepare and provide to
prospective investors "Computational Materials," "ABS Term Sheets" and
"Collateral Term Sheets" (collectively, the "8-K Information") in
connection with its offering of the Notes, as described in the
No-Action Letter of May 20, 1994 issued by the Commission to ▇▇▇▇▇▇,
Peabody Acceptance Corporation I and certain affiliates, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "▇▇▇▇▇▇/PSA Letter"), and the requirements
of the No-Action Letter of February 17, 1995 issued by the Commission
to the Public Securities Association (the "PSA Letter" and, together
with the ▇▇▇▇▇▇/PSA Letter, the "No-Action Letters"); subject to the
following conditions: (i) such Underwriter shall comply with the
requirements of the No-Action Letters, (ii) for purposes hereof,
"Computational Materials" shall have the meaning given such term in the
No-Action Letters, but with respect to any Underwriter shall include
only those Computational Materials that have been prepared by such
Under writer for prospective investors and for purposes hereof and "ABS
Term Sheets" and "Collateral Term Sheets" shall have the meanings given
such terms in the PSA Letter but with respect to any Underwriter shall
include only those ABS Term Sheets or Collateral Term Sheets that have
been prepared by such Underwriter for prospective investors; (iii) each
Underwriter shall provide to the Seller any 8-K Information which is
provided to investors no later than the second Business Day preceding
the date such 8-K Information is required to be filed pursuant to the
applicable No-Action Letters and each Underwriter may provide copies of
the foregoing in a consolidated or aggregated form including all
information required to be filed; and (iv) in the event that the Seller
or any Underwriter discovers an error in the 8-K Information, the
Underwriter that prepared such material shall prepare corrected 8-K
Information and deliver it to the Seller for filing.
(b) The Seller will cause to be filed with the
Commission one or more current reports on Form 8-K with respect to the
8-K Information.
(c) Each Underwriter shall cause [____________________]
to furnish the Seller a letter
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dated no later than the Closing Date, in form and substance
satisfactory to the Seller, with respect to any 8-K Information
prepared by such Underwriter.
(d) Each Underwriter represents and warrants to, and
covenants with, the Seller that the Derived Information prepared by
such Underwriter for prospective investors, when read in conjunction
with the Prospectus, is not misleading and not inaccurate in any
material respect.
For purposes of this Underwriting Agreement, the term
"Derived Information" means such portion, if any, of 8-K Information
that is not Pool Information or Prospectus Information; provided,
however, that 8-K Information that is not Pool Information or
Prospectus Information shall not constitute Derived Information to the
extent such information is inaccurate or misleading in any material
respect directly as a result of it being based on Pool Information or
Prospectus Information that is inaccurate or misleading in any material
respect. "Pool Information" means the Computer Tape and the other
information furnished by magnetic tape, diskette or any other computer
readable format, or in writing to the Underwriters by the Seller or
Ford Credit regarding the Receivables and "Prospectus Information"
means the information contained in (but not incorporated by reference
in) any preliminary prospectus, provided, however, that if any
information that would otherwise constitute Pool Information or
Prospectus Information is presented in the 8-K Information in a way
that is either inaccurate or misleading in any material respect when
read in conjunction with the Prospectus and would not be inaccurate or
misleading in any material respect but for the manner in which such
information is presented, such information shall not be Pool
Information or Prospectus Information.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and
other statements (including, without limitation, Section 5(k) hereof)
of the Seller or the officers of the General Partner on behalf of the
Seller and of the Underwriters set forth in or made pursuant to this
Underwriting Agreement will remain in full force and effect, regardless
of any investigation or statement as to the results thereof,
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made by or on behalf of any Underwriter, the Seller or any of their
respective representatives, officers or directors of any controlling
person, and will survive delivery of and payment for the Underwritten
Notes and the Class C Certificates.
10. Failure to Purchase the Underwritten Notes or Class C
Certificates. If the purchase of the Underwritten Notes or the Class C
Certificates shall not be consummated because the circumstances
described in Section 6(f) shall have occurred, then the Seller shall
not have any liability to the Underwriters with respect to the
Underwritten Notes or the Class C Certificates except as provided in
Section 5(h) and Section 7 hereof; but if for any other reason the
Underwritten Notes or the Class C Certificates are not delivered to the
Underwriters as provided herein, the Seller will be liable to reimburse
the Underwriters, through the Representatives, for all out-of-pocket
expenses, including counsel fees and disbursements reasonably incurred
by the Underwriters in making preparations for the offering of the
Underwritten Notes and the Class C Certificates, but the Seller shall
not then have any further liability to any Underwriter with respect to
the Underwritten Notes or Class C Certificates except as provided in
Section 5(h) and Section 7 hereof. If any Underwriter or Underwriters
default on their obligations to purchase Underwritten Notes or Class C
Certificates hereunder and the aggregate principal amount of
Underwritten Notes or Class C Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of the Underwritten Notes and
the Class C Certificates, the Representatives may make arrangements
satisfactory to the Seller for the purchase of such Underwritten Notes
or Class C Certificates by other persons, including the non-defaulting
Underwriter or Underwriters, but if no such arrangements are made by
the Closing Date, the non-defaulting Underwriter or Underwriters shall
be obligated, in proportion to their commitments hereunder, to
purchase the Underwritten Notes and Class C Certificates that such
defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters so default and the aggregate
principal amount of Underwritten Notes or Certificate Balance of Class
C Certificates with respect to which such default or defaults occur
exceeds 10% of the total
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principal amount of the Underwritten Notes and the Class C Certificates
and arrangements satisfactory to the non-defaulting Underwriter or
Underwriters and the Seller for the purchase of such Underwritten Notes
and Class C Certificates by other persons are not made within 36 hours
after such default, this Underwriting Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Seller,
except as provided in Section 5(h) and Section 7 hereof. As used in
this Underwriting Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Under writer or Underwriters from liability for
its default.
11. Notices. All communications hereunder will be in writing
and will be mailed, delivered or sent by facsimile transmission and
confirmed. Communications to the Representatives or the Underwriters
shall be given to the Representatives at [______________], Attention:
[___________] - facsimile number [____________]. Communications to the
Seller shall be given to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of the Secretary - facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
12. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the Underwriters and the Seller and
their respective successors and the officers and directors and
controlling persons referred to in Section 7, and no other person will
have any right or obligations hereunder.
13. Applicable Law. This Underwriting Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York.
14. Counterparts. This Underwriting Agreement may be executed
by each of the parties hereto in any number of counterparts, and by
each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
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If the foregoing is in accordance with your under standing, please sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement.
Very truly yours,
FORD CREDIT AUTO RECEIVABLES
TWO LLC
By:
-------------------------------
Name:
Title:
Accepted in New York,
New York, as of the date hereof:
[ ]
-------------------
By:
-------------------------------
Name:
Title:
Acting on behalf of themselves and
as the Representatives of the
several Underwriters
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SCHEDULE I
Initial Initial Initial Initial Initial Initial
Principal Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4 Class B Class C
Notes Notes Notes Notes Notes Certificates
----- ----- ----- ----- ----- ------------
[ ]
-----------
[ ]
-----------
[ ]
-----------
[ ]
-----------
Total................. $ $ $ $ $ $
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