Ford Credit Floorplan Master Owner Trust __ SERIES __ FLOATING RATE ASSET BACKED NOTES INDEMNIFICATION AGREEMENT
Exhibit 1.2
Ford Credit Floorplan Master Owner Trust __
SERIES __
FLOATING RATE ASSET BACKED NOTES
SERIES __
FLOATING RATE ASSET BACKED NOTES
Indemnification Agreement, dated , 20___(this “Agreement”), among Ford Motor Credit
Company (the “Servicer” or “Ford Credit”), [Underwriter] and [Underwriter], in their individual
capacities and as representatives (the “Representatives”) of the several underwriters
(collectively, the “Underwriters”) named in Schedule I to the Underwriting Agreement (as
hereinafter defined).
[Ford Credit Floorplan Corporation (“FCF Corp”)] [and] [Ford Credit Floorplan LLC (“FCF LLC"]
[and, together with FCF Corp, collectively, the “Transferors” and individually,] [the]/[a]
"Transferor”) and the Underwriters have entered into an Underwriting Agreement (the “Underwriting
Agreement”) dated , 20___, providing for the sale by the Transferors to the Underwriters of:
| (a) | the Series ___Class A Floating Rate Asset Backed Notes (the “Class A Notes”); and | ||
| (b) | the Series ___Class B Floating Rate Backed Notes (the “Class B Notes” and, together with the Class A Notes, the “Notes”). |
The Notes will be issued by Ford Credit Floorplan Master Owner Trust ___(the “Issuer”), a
Delaware statutory trust established under a trust agreement (the “Trust Agreement”) between the
Transferors and an owner trustee (“Owner Trustee”) and a Delaware trustee (“Delaware Trustee”).
The Notes will be secured by the Receivables and certain other property of the Issuer. The Notes
will be issued pursuant to an indenture, dated as of , 20___(the “Base Indenture”), between
the Issuer and [Indenture Trustee], as indenture trustee (the “Indenture Trustee”), as supplemented
by the Series ___supplement to the Base Indenture, to be dated as of , 20___(the “Indenture
Supplement”), between the Issuer and the Indenture Trustee. Payments in respect of the Class B
Notes are, to the extent specified in the Indenture, subordinated to the rights of the holders of
the Class A Notes.
This Agreement is being entered into by the parties hereto as a condition precedent to the
obligation of the Underwriters under the Underwriting Agreement and to induce the Underwriters to
enter into the same. The provisions of this Agreement relate solely to the Notes.
Capitalized terms used herein and not otherwise defined shall have the meanings given them in
the Underwriting Agreement.
1. Indemnification and Contribution.
(a) Ford Credit 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
Securities Act of 1933, as amended (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, the Preliminary Prospectus, or any amendment or supplement to any of such
documents, or any Issuer Free Writing Prospectus or the Time of Sale 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 in light of the
circumstances under which they were made, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that Ford Credit
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 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 Ford Credit or either Transferor by any Underwriter through any
Representative specifically for use therein; and provided, further, that Ford Credit 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 results from the fact that such Underwriter sold Notes to a Person to
whom there was not sent or given, at or prior to the Time of Sale, a copy of the Preliminary
Prospectus or the Time of Sale Information, whichever is more recent, if the Transferors have
previously furnished copies thereof to such Underwriter.
The indemnity agreement in this subsection (a) will be in addition to any liability which Ford
Credit may otherwise have and will 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 Ford Credit
against any losses, claims, damages or liabilities to which Ford Credit 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, the Preliminary Prospectus,
any amendment or supplement thereto, or any Free Writing Prospectus or the Time of Sale
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 the light of the circumstances under which they were made, 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 in any such documents (i) in reliance upon and in conformity with
written information furnished to Ford Credit or either Transferor by such Underwriter through any
Representative specifically for use therein or (ii) in an
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Underwriter Free Writing Prospectus prepared by such Underwriter and is not Issuer
Information, and will reimburse any legal or other expenses reasonably incurred by Ford Credit in
connection with investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) will be in addition to any liability which each
Underwriter may otherwise have and will extend upon the same terms and conditions, to each Person,
if any, who controls Ford Credit 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 does
not so notify the indemnifying party within 30 days following receipt of any such notice by such
indemnified party, the indemnifying party will have no further liability under such subsection to
such indemnified party unless the indemnifying party has received other notice addressed and
delivered in the manner provided in Section 3 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 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 1 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 will 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 Transferors on the
one hand and the Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law, then
each indemnifying party will 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 Transferors 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 Transferors on the one hand and the Underwriters on the other will be deemed to be
in the same proportion as
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the total net proceeds from the offering (before deducting expenses) received by the
Transferors bear to the total underwriting discounts and commissions received by the Underwriters
as set forth in the table on the cover page of the Prospectus as amended or supplemented. The
relative fault will 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 Transferors or by the Underwriters and the parties’
relative intent, 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 Notes to a Person to whom there was not sent or given, at or prior to the Time of
Sale, a copy of the Preliminary Prospectus or the Time of Sale Information, whichever is more
recent, if the Transferors have previously furnished copies thereof to such Underwriter.
Ford Credit 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 pursuant to this Agreement and the Underwriting Agreement (collectively) in
excess of the amount by which the total price at which the Notes underwritten by it and distributed
to the public exceeds the amount of any damages which such Underwriter has otherwise 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 in this subsection (d) to contribute are
several and not joint in proportion to their respective underwriting obligations with respect to
the Notes as set forth in Schedule I to the Underwriting Agreement.
2. Payment of Expenses. Ford Credit will pay all expenses incident to the performance
of the obligations of each Transferor pursuant to Sections 5(d), 5(h) and 10 of the Underwriting
Agreement.
3. Notices. All notices, requests, demands, consents, waivers or other communications
to or from the parties to this Agreement must be in writing and will be deemed to have been given
and made:
(a) upon delivery or, in the case of a letter mailed by registered first class mail, postage
prepaid, 3 days after deposit in the mail,
(b) in the case of a fax, when receipt is confirmed by telephone, reply email or reply fax
from the recipient,
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(c) in the case of an email, when receipt is confirmed by telephone or reply email from the
recipient.
Communications to the Representatives or the Underwriters will be given to the Representatives
at:
(i) ,
(ii) , and
(iii) .
Communications to Ford Credit will be given to:
Ford Motor Credit Company |
Xxx Xxxxxxxx Xxxx |
Xxxxx 0000, Xxxxxx 000-000 |
Xxxxxxxx, Xxxxxxxx 00000 |
Attention: Corporate Secretary |
Telephone: (000) 000-0000 |
Fax: (000) 000-0000 |
4. Successors. This Agreement will inure to the benefit of and be binding upon the
Underwriters and Ford Credit and their respective successors and the officers and directors and
controlling persons referred to in Section 1, and no other person will have any right or
obligations hereunder.
5. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
6. Submission to Jurisdiction. The parties submit to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of any New York State
Court sitting in New York, New York for purposes of all legal proceedings arising out of or
relating to this Agreement. The parties irrevocably waive, to the fullest extent they may do so,
any objection that they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
7. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
8. Severability. If any of the covenants, agreements or terms of this Agreement is
held invalid, illegal or unenforceable, then it will be deemed severable from
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the remaining covenants, agreements or terms of this Agreement and will in no way affect the
validity, legality or enforceability of the remaining Agreement.
9. Counterparts. This Agreement may be executed in any number of counterparts. Each
counterpart will be an original, and all counterparts will together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first
above written.
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| [UNDERWRITER] | ||
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| [UNDERWRITER] | ||
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| [UNDERWRITER] | ||
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Acting on behalf of themselves and as the
Representatives of the Several Underwriters
Representatives of the Several Underwriters
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