FORD CREDIT AUTO LOAN MASTER TRUST II
[______%] [FLOATING RATE] AUTO LOAN
ASSET BACKED CERTIFICATES, SERIES 199__-__
FORD CREDIT AUTO RECEIVABLES LLC
(Transferor)
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UNDERWRITING AGREEMENT
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,
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As Representative of the
Several Underwriters,
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Dear Sirs:
1. Introductory. Ford Credit Auto Receivables LLC, a Delaware limited
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liability company (the "Transferor"), proposes to sell $__________ principal
amount of its [_______%] [Floating Rate] Asset Backed Certificates, Series
199__-__ (the "Certificates"), of the Ford Credit Auto Loan Master Trust II (the
"Trust"). Each Certificate will represent a fractional undivided interest in the
Trust. The assets of the Trust include, among other things, a pool of wholesale
receivables (the "Receivables") generated from time to time in a portfolio of
revolving financing arrangements (the "Accounts") with automobile dealers to
finance their automobile and light duty truck inventory and collections on the
Receivables, and certain monies due thereunder on or after __________, ____ (the
"Cutoff Date"), such Receivables having been sold to the Trust and serviced for
the Trust by Ford Motor Credit Company, a Delaware corporation (the "Master
Servicer" or "Ford Credit"). The Certificates will be issued in an aggregate
principal amount of $__________, which is approximately equal to ___% of the
aggregate principal balance of the Receivables, as of the Cutoff Date. The
Certificates will be issued pursuant to a pooling and servicing agreement, dated
as of September 30, 1997 (the "Pooling Agreement"), among the Transferor, the
Master Servicer and The Chase Manhattan Bank, as trustee (the "Trustee"), and
the Series 199__-__ Supplement to the Pooling Agreement, dated as of __________,
____ (the "Supplement" and, together with the Pooling Agreement, the "Pooling
and Servicing Agreement"), among the Transferor, the Master Servicer and the
Trustee. [In connection with the issuance of the Certificates, the Trust and
Ford Credit will enter into two interest rate swap agreements to be dated as of
_________, ____ (together, the "Interest Rate Swap Agreements").]
Capitalized terms used herein but not otherwise defined shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Transferor. The Transferor
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represents and warrants to and agrees with the several underwriters named in
Schedule I hereto (the "Underwriters") (if there is only one Underwriter listed
in Schedule I, then "Representative" and "Underwriters" shall each refer to such
Underwriter) that:
(a) A registration statement (No. 333-_______), including a form of
prospectus, on Form S-3 in respect of the Certificates has been filed with the
Securities and Exchange Commission (the "Commission") in the form heretofore
delivered to the Underwriters, and has been declared effective. Such
registration statement and any post-effective amendment thereto, at the time
when it became or becomes effective, as applicable, including the exhibits
thereto and any material incorporated by reference therein, is hereinafter
referred to as the "Registration Statement," and the form of prospectus, as
then amended, is hereinafter referred to as a "Prospectus", with such form
being referred to as the "Prospectus". For purposes of this Agreement,
"Effective Time" means the most recent date and time as of which such
Registration Statement is declared effective by the Commission, and "Effective
Date" means the date of the Effective Time.
(b) On the Effective Date, the Registration Statement conformed or will
conform, as applicable, in all material respects to the requirements of the
Securities Act of 1933, as amended (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 or will 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, however, 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 Transferor by the Underwriters
expressly for use in the Registration Statement relating to the Certificates.
On the date of this Agreement, the Registration Statement conforms, and at the
Effective Time the Registration Statement and the Prospectus did conform or
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) The consummation by the Transferor of
the transactions contemplated by this Agreement, the Receivables Purchase
Agreement and the Pooling and Servicing Agreement, 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 Transferor 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 Transferor is a debtor or guarantor.
(d) This Agreement has been duly authorized, executed and delivered by
the Transferor.
3. Purchase, Sale, and Delivery of Certificates. On the basis of the
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representations, warranties and agreements herein contained, but subject to
the terms and conditions set forth herein, the Transferor agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Transferor the aggregate principal amount of Certificates
set forth opposite the names of the Underwriters in Schedule I hereto. The
Certificates are to be purchased at the purchase price of __________% of the
aggregate principal amount thereof.
Against payment of the purchase price in immediately available funds
drawn to the order of the Transferor, the Transferor will deliver the
Certificates to the Representative, for the account of the Underwriters, at
the offices of Brown & Wood LLP, New York, New York, on __________, ____ at
__:00 __.m., New York time, or at such other time not later than seven full
business days thereafter as the Representative and the Transferor determine,
such time being herein referred to as the "Closing Date". The Certificates to
be so delivered will be initially represented by one or more Certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of the Certificates will
be represented by book entries on the records of DTC and participating members
thereof. Definitive Certificates will be available only under limited
circumstances.
4. Offering by Underwriters. It is understood that, after the
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Registration Statement becomes effective, the Underwriters propose to offer
the Certificates for sale to the public (which may include selected dealers),
as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor covenants and agrees with
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the Underwriters:
(a) If required, to file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) of the Rule 424(b) not later than the
time specified therein. The Transferor 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 to the Prospectus as amended or supplemented prior to the Closing Date,
without furnishing the Representative with a copy of the proposed form thereof
and providing the Representative with a reasonable opportunity to review the
same; and during such same period to advise the Representative, 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 an 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 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 the
Prospectus 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 Representative
may reasonably request in order to qualify the Certificates for offering and
sale under the securities laws of such states as the Representative may request
and to continue such qualifications in effect so long as necessary under such
laws for the distribution of such Certificates, provided that in connection
therewith the Transferor 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 Certificates shall be at the Representative's 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 Representative may from time to time reasonably
request; and if, before a period of six months shall have elapsed after the
Effective Date and the delivery of the Prospectus shall be at the time
required by law in connection with sales of any such Certificates, either (i)
any event shall have occurred as a result of which the 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
Representative and to prepare and furnish to the Representative as the
Representative may from time to time reasonably request an amendment or a
supplement to the Prospectus that 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 Certificates at
any time six months or more after the Closing Date, upon the Representative's
request, but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as the Representative may request of the
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act.
(e) To make generally available to Certificateholders of the Trust as
soon as practicable after the Effective Date of the Registration Statement (as
such date is defined in Rule 158(c) under the Act), an earnings statement of
the Transferor complying with Rule 158 under the Act and covering a period of
at least twelve consecutive months beginning after such Effective Date.
(f) The Transferor will furnish to the Representative copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each form of 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 Representative reasonably requests.
(g) So long as any of the Certificates are outstanding, to furnish the
Representative copies of all reports or other communications (financial or
other) furnished to Certificateholders of the Trust, and to deliver to the
Representative 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 and (ii) such additional information concerning the business and
financial condition of the Transferor as the Representative may from time to
time reasonably request.
(h) To pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder including any fees charged by the
rating agency or rating agencies that initially rate the Certificates, and the
reasonable expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto required within
six months from the Effective Date pursuant to Section 5(d) hereof) it being
understood that, except as provided in this paragraph (h) and Section 9
hereof, the Underwriters will pay all their own costs and expenses, including,
without limitation, the cost of printing any agreement among underwriters,
transfer taxes on resale of the Certificates by the Underwriters, and any
advertising expenses connected with any offers that the Underwriters may make.
Notwithstanding anything to the contrary contained in the foregoing, (i) the
Underwriters shall pay directly (A) 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 (B) the reasonable
fees and expenses of Brown & Wood LLP as Underwriters' counsel and (ii) the
Transferor shall pay (A) the Commission the filing fee with respect to the
Certificates; (B) all fees of any rating agencies rating the Certificates; (C)
all fees and expenses of the Trustee; (D) all reasonable fees and expenses of
counsel to the Trustee; (E) all fees and expenses of [Accountants] relating to
the letter referred to in Section 6(a) of the Underwriting Agreement; (F) all
fees and expenses of accountants incurred in connection with the delivery of
any accountant's or auditor's reports required pursuant to the Pooling and
Servicing Agreement; (G) the cost of printing any preliminary and final
prospectus relating to the Certificates, and the Registration Statement; and
(H) any other fees and expenses incurred in connection with the performance of
its obligations under the Underwriting Agreement.
(i) For a period from the date of this Agreement until the retirement of
the Certificates, or until such time as the Underwriters shall cease to
maintain a secondary market in the Certificates, whichever occurs first, to
deliver to the Representative the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Trustee pursuant to Article III of the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(j) On or before the Closing Date, the Transferor shall cause Ford
Credit's computer records relating to the Receivables contained in any
Accounts to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Transferor nor
the Master Servicer shall take any action inconsistent with the Trust's
ownership of such Receivables other than as permitted by the Pooling and
Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to the
Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Transferor, the Transferor shall furnish such
documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters. The obligation of
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the Underwriters to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the
Transferor herein, to the accuracy of the statements of officers of the
Transferor made pursuant to the provisions hereof, to the performance by the
Transferor of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the Closing Date, [Accountants] shall have furnished
to the Representative a letter dated as of the Closing Date substantially in
the form and substance of the draft to which the Representative previously
agreed.
(b) The Registration Statement shall have become effective not later than
__:00 __.m., New York time, on the day following the date of this Agreement or
such later date as shall have been consented to by the Representative; and
prior to the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Transferor,
shall be contemplated by the Commission.
(c) The Representative shall have received as of the Closing Date an
officer's certificate signed by a member or manager of the Transferor
representing and warranting that, as of the Closing Date, the representations
and warranties of the Transferor in this Agreement will be true and correct in
all material respects, that the Transferor has 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.
(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
Trust, the Transferor, Ford Credit or Ford Motor Company or any material
adverse change in the financial position or results or operations of the
Trust, the Transferor, Ford Credit or Ford Motor Company otherwise than as set
forth or contemplated in the Prospectus, which in any such case makes it
impracticable or inadvisable in the Representative's reasonable judgment to
proceed with the public offering or the delivery of the Certificates on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented.
(e) Subsequent to the execution and delivery of this Agreement, the
United States shall not have become engaged in hostilities that have resulted
in the declaration of a national emergency or a declaration of war that makes
it impracticable or inadvisable in the Representative's reasonable judgment to
proceed with the public offering of the delivery of the Certificates on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented.
(f) ____________, of Ford Credit and the Transferor, or other counsel
satisfactory to the Representative in its reasonable judgment, shall have
furnished to the Representative, his written opinion, dated the Closing Date,
in form reasonably satisfactory to the Representative in its reasonable
judgment, to the effect that:
(i) The Transferor 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.
(ii) This Agreement has been duly authorized, executed and delivered
by the Transferor.
(iii) The Pooling and Servicing Agreement and the Receivables Purchase
Agreement have been duly authorized, executed and delivered by, and each
constitutes a valid and binding obligation of, the Transferor.
(iv) The consummation of the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement[,][and] the Receivables
Purchase Agreement[ and the Interest Rate Swap Agreements], and the
fulfillment of the terms thereof, 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
Transferor 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 Transferor is
a debtor or guarantor, nor will such action result in any violation of the
provisions of the Limited Liability Company Agreement of the Transferor.
(v) The Certificates have been duly authorized and executed by the
Transferor; when authenticated by the Trustee in accordance with the
Pooling and Servicing Agreement and delivered and paid for pursuant to the
Underwriting Agreement, the Certificates will constitute valid and binding
obligations entitled to the benefits provided by the Pooling and Servicing
Agreement.
(vi) 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
Transferor 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 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.
(vii) 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 hereto, 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.
(viii) 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.
(ix) 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 described in the Registration Statement
or the Prospectus as amended or supplemented that is not filed or
incorporated by reference or described as required.
(x) Such counsel does not know of any legal or governmental
proceedings pending to which the Transferor is a party or to which any
property of the Transferor is 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 that,
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 Transferor and will not materially and adversely
affect the performance by the Transferor of its obligations under, or the
validity and enforceability of, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement or the Certificates.
(xi) The Certificates, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement and this Agreement each conform in all
material respects with the descriptions thereof contained in the
Registration Statement and the Prospectus.
(xii) The Transferor has full power and authority to sell and assign
the property sold or to be sold and assigned to and deposited with the
Trustee as part of the Trust and has duly authorized such sale and
assignment to the Trustee by all necessary action.
(xiii) Prior to any sale or assignment thereof by the Transferor to
the Trust, the Transferor was the sole owner of all right, title and
interest in, and had good and marketable title to, the Receivables
transferred by it to the Trust. The assignment of the Receivables, all
documents and instruments relating thereto and all proceeds thereof to the
Trustee, pursuant to the Pooling and Servicing Agreement, vest in the
Trustee all interests that were purported to be conveyed thereby, were free
and clear of any liens, security interests or encumbrance except as
specifically permitted pursuant to the Pooling and Servicing Agreement.
(xiv) Immediately prior to the transfer of the Receivables to the
Trustee, the Transferor's interest in the Receivables, the Related
Security, the security interests in the Vehicles securing the Receivables
and the proceeds of each of the foregoing was perfected upon the filing of
the UCC-1 financing statement the form of which is attached to such opinion
with the Secretary of State of the State of Michigan and constituted a
perfected first priority interest therein. If a court concludes that the
transfer of the Receivables from the Transferor to the Trustee is a sale,
the interest of the Trustee in the Receivables, the Related Security, the
security interests in the Vehicles securing the Receivables and the
proceeds of each of the foregoing will be perfected upon the filing of the
UCC-1 financing statement the form of which is attached to such opinion
with the Secretary of State of the State of Michigan and will constitute a
first priority perfected interest therein. If a court concludes that such
transfer is not a sale, the Pooling and Servicing Agreement constitutes a
grant by the Transferor to the Trustee of a valid security interest in the
Receivables, the Related Security, the security interests in the Vehicles
securing the Receivables and the proceeds of each of the foregoing, which
security interest is perfected upon the filing of the UCC-1 financing
statement the form of which is attached to such opinion with the Secretary
of State of the State of Michigan and will constitute a first priority
perfected security interest therein. No filing or other action, other than
the filing of the UCC-1 financing statements with the Secretary of State of
the State of Michigan referred to above, is necessary to perfect and
maintain the interest or the security interest of the Trustee in the
Receivables, the security interests in the Vehicles securing the
Receivables and the proceeds of each of the foregoing against third
parties.
(xv) The Transferor is not, and will not as a result of the offer and
sale of the Certificates as contemplated by this Agreement become, an
"investment company" as defined in the Investment Company Act.
(xvi) The statements in the Prospectus under the heading "Certain
State and Local Tax Considerations" accurately describe the material
Michigan tax consequences to holders of the Certificates.
Such opinion may be made subject to the qualifications that the enforceability
of the terms of the Pooling and Servicing Agreement, the Receivables Purchase
Agreement and the Certificates 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.
(g) ___________, __________ of Ford Credit and the Transferor, or other
counsel satisfactory to the Representative in its reasonable judgment, shall
have furnished to the Representative his written opinion, dated as of the
Closing Date, in form satisfactory to the Representative in its 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.
(ii) The indemnification agreement (the "Indemnification Agreement")
dated as of the date hereof, between Ford Credit and the Underwriters, has
been duly authorized, executed and delivered by Ford Credit.
(iii) The Pooling and Servicing Agreement, the Receivables Purchase
Agreement [and the Interest Rate Swap Agreements] 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 the Pooling
and Servicing Agreement, the Receivables Purchase Agreement[, the Interest
Rate Swap Agreements] and the Indemnification Agreement, and the
fulfillment of the terms 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 indenture, 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 to which any
property of Ford Credit is 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 that,
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 Pooling
and Servicing Agreement, the Receivables Purchase Agreement[, the Interest
Rate Swap Agreements] or the Indemnification Agreement.
(vi) Ford Credit had and has full power and authority to sell and
assign the property sold and assigned or to be sold and assigned to the
Transferor pursuant to the Receivables Purchase Agreement and has duly
authorized such sale and assignment to the Transferor by all necessary
corporate action.
(vii) The statements in the Prospectus under the caption "Risk
Factors--Certain Legal Aspects" and 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.
(viii) The Receivables are "chattel paper" under the Uniform
Commercial Code.
(ix) Immediately prior to the sale of the Receivables to the
Transferor, Ford Credit 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 Transferor by Ford Credit.
(x) All filings necessary under applicable law to perfect both the
sale of the Receivables by Ford Credit to the Transferor pursuant to the
Receivables Purchase Agreement have been made and, provided that neither
Ford Credit nor the Transferor relocated its principal place of business in
a state other than Michigan and that Ford Credit maintains the list of
Receivables for inspection by interested parties as described above, 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 Transferor pursuant to the Receivables Purchase Agreement or to the
Trustee pursuant to the Pooling and Servicing Agreement.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
is not, and will not be as a result of the offer and sale of the
Certificates contemplated by this Agreement, required to be registered
under the Investment Company Act of 1940, as amended.
(xii) 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 Pooling and Servicing Agreement,
the Receivables Purchase Agreement[, the Interest Rate Swap Agreements] or
the Indemnification Agreement, except such as may be required under federal
or state securities laws in connection with the acquisition by the
Underwriters of the Certificates, filings with respect to the transfer of
the Receivables to the Transferor pursuant to the Receivables Purchase
Agreement and to the Trustee pursuant to the Pooling and Servicing
Agreement and such other approvals as have been obtained.
(xiii) Such counsel does not know of any legal or governmental
proceedings pending to which either Ford Credit or the Transferor is a
party or to which any property of either Ford Credit or the Transferor is
subject, and no such proceedings are known by such counsel to be threatened
or contemplated by governmental authorities or threatened by others (A)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement, the Receivables Purchase Agreement[, the Interest Rate
Swap Agreements] or the Indemnification Agreement, or (B) seeking adversely
to affect the federal income tax attributes of the Certificates as
described in the Prospectus under the heading "Certain Federal Income Tax
Considerations."
(xiv) Neither the issuance or sale of the Certificates, nor the
execution and delivery of the Certificates, the Pooling and Servicing
Agreement, the Receivables Purchase Agreement[, the Interest Rate Swap
Agreements], the Indemnification Agreement or this Agreement, nor the
consummation of any of the other transactions contemplated herein or in the
Pooling and Servicing Agreement, the Receivables Purchase Agreement[, the
Interest Rate Swap Agreements] or the Indemnification Agreement by Ford
Credit or the Transferor, as the case may be, contravenes or will
contravene the terms of any material provision of any statute, order, or
regulation applicable to Ford Credit or the Transferor, 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 Transferor,
as the case may be.
(h) Xxxxx & Wood LLP (or such other counsel satisfactory to the
Representative) 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 Transferor as a sale, and with respect to the
characterization of the transfer of the Receivables from the Transferor to the
Trust, to the Representative and to Ford Credit, and such opinion shall be in
substantially the form previously discussed with the Representative and their
counsel and in any event satisfactory in form and in substance to the
Representative and their counsel and to Ford Credit.
(i) Xxxxx & Wood LLP, special federal tax counsel to the Transferor,
shall have furnished to the Representative their written opinion, dated as of
the Closing Date, in form and in substance satisfactory to the Representative
in its reasonable judgment, to the effect that the statements in the
Registration Statement and each Prospectus under the headings "Certain Federal
Income Tax Considerations" and "ERISA Considerations," 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.
(j) The Representative shall have received an opinion of Xxxxx & Wood LLP
addressed to the Representative, dated the Closing Date, with respect to the
validity of the Certificates and such other related matters as the
Representative shall require and the Transferor 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.
(k) The Representative shall have received an opinion addressed to the
Representative, the Transferor and the Master Servicer of __________, counsel
to the Trustee, dated the Closing Date and satisfactory in form and substance
to the Representative and to counsel to the Underwriters, to the effect that:
(i) The Trustee has been duly incorporated and is validly existing as
a ________ in good standing under the laws of ________ with full corporate
trust power and authority to enter into and perform its obligations under
the Pooling and Servicing Agreement[ and the Interest Rate Swap
Agreements].
(ii) The Pooling and Servicing Agreement [and the Interest Rate Swap
Agreements] [has] [have] been duly executed and delivered by the Trustee,
and, insofar as the laws governing the trust powers of the Trustee are
concerned and assuming due authorization, execution and delivery thereof by
the Transferor and the Master Servicer, the Pooling and Servicing Agreement
[and the Interest Rate Swap Agreements each] constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except (A) 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
(B) 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 Certificates have been duly authenticated and delivered by
the Trustee.
(iv) Neither the execution nor delivery by the Trustee of the Pooling
and Servicing Agreement[, the Interest Rate Swap Agreements] nor the
consummation of any of the transactions by the 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 _______ law
governing the trust powers of the Trustee, except such as have been
obtained, made or taken.
(l) The Representative shall have received an officer's certificate dated
the Closing Date of the Chairman of the Board, the President, the Executive
Vice President-Finance or the Treasurer of each of Ford Credit, the Transferor
and the Master Servicer in which such officers shall state that, to the best
of their knowledge after reasonable investigation, the representations and
warranties of the Transferor and the Master Servicer contained in the Pooling
and Servicing Agreement and the representations and warranties of Ford Credit
and the Transferor contained in the Receivables Purchase Agreement are true
and correct in all material respects, that Ford Credit, the Transferor or the
Master Servicer, as the case may be, 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.
(m) The Interest Rate Swap shall have been duly authorized, executed and
delivered by each party thereto and all fees due and payable to Ford Credit
thereunder shall have been paid in full on or prior to the Closing Date.
(n) The Certificates shall have been rated in the highest rating category
by Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., and
Xxxxx'x Investors Service, Inc.
7. Indemnification and Contribution.
--------------------------------
(a) The Transferor 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, either
of the Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, 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 reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Transferor 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 the Transferor by any Underwriter through the
Representative specifically for use therein; and provided further, that the
Transferor shall not be liable to any Underwriter or any person controlling
any Underwriter under the indemnity agreement in this paragraph with respect
to any of such documents to the extent that any such loss, claim, damage or
liability of the Underwriters or such controlling person results from the fact
that such Underwriter sold the 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 related Prospectus or of the related Prospectus as then amended or
supplemented (excluding documents incorporated by reference), whichever is
most recent, if the Transferor has previously furnished copies thereof to such
Underwriter.
The indemnity agreement in this paragraph shall be in addition to any
liability which the Transferor 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 will indemnify and hold harmless the Transferor
against any losses, claims, damages or liabilities to which the Transferor 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, either of the Prospectuses or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omissions 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 in reliance upon and in conformity with written
information furnished to the Transferor by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Transferor in connection with
investigating or defending any such action or claim.
The indemnity agreement in this paragraph 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 Transferor
within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under paragraph (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 paragraph (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 paragraph to such indemnified party
unless the indemnifying party shall have received other notice addressed and
delivered in the manner provided in Section 10 hereof of the commencement of
such actions 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 paragraph. 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 paragraph 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 paragraph (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 Transferor on the one hand and the Underwriters on the other from the
offering of the 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 Transferor 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 Transferor 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 Transferor 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 related Prospectus as amended or supplemented
with respect to the 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 Transferor 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 such 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 related Prospectus or the related Prospectus as then
supplemented or amended (excluding documents incorporated by reference),
whichever is more recent, if the Transferor has previously furnished copies
thereof to such Underwriter. The Transferor and the Underwriters, severally
and not jointly, agree that it would not be just and equitable if contribution
pursuant to this paragraph 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 paragraph. 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 paragraph 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 paragraph, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by it and distributed to
the public were offered 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.
8. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements of
the Transferor (including, without limitation, Section 5(k)) or its officers
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation or statement
as to the results thereof, made by or on behalf of any Underwriter or the
Transferor or any of their respective representatives, officers or directors
of any controlling person, and will survive delivery of and payment for the
Certificates.
9. Failure to Purchase the Certificates. If the purchase of the
------------------------------------
Certificates shall not be consummated by the Underwriters because the
condition set forth in Section 6(e) has occurred, then the Transferor shall be
under no liability to the Underwriters with respect to the Certificates except
as provided in Section 5(h) and Section 7 hereof; but if for any other reason
any Certificates are not delivered by the Transferor as provided herein, the
Transferor will be liable to reimburse the Underwriters, through the
Representative, for all out-of-pocket expenses, including counsel fees and
disbursements reasonably incurred by the Underwriters in making preparations
for the offering of the Certificates, but the Transferor shall then have no
further liability to any Underwriter with respect to such Certificates except
as provided in Section 5(h) and Section 7 hereof. If any Underwriter or
Underwriters default on their obligations to purchase Certificates hereunder
and the aggregate principal amount of Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of Certificates, the Representative may make
arrangements satisfactory to the Transferor for the purchase of such
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 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
Certificates with respect to which such default or defaults occur exceeds 10%
of the total principal amount of Certificates and arrangements satisfactory to
the non-defaulting Underwriter or Underwriters and the Transferor for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Transferor, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter or Underwriters from liability for its
default.
10. Notices. All communications hereunder will be in writing and, if sent
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to the Representative or the Underwriters, will be mailed, delivered or sent
by facsimile transmission and confirmed to ____________, Attention:
__________, if sent to the Transferor, will be mailed, delivered or sent by
facsimile transmission, and confirmed to it at Ford Credit Auto Receivables
LLC, The American Road, Dearborn, Michigan 48121, Attention: Secretary.
11. Successors. This Agreement will inure to the benefit of and be
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binding upon the Underwriters and the Transferor 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.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
-------------
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. Counterparts. This 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.
If the foregoing is in accordance with your understanding, 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 LLC
By: ___________________________
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
------------------------------
Acting on their own behalf and
as Representative of the
several Underwriters.
By: ______________________
Name:
Title:
SCHEDULE I
Series 199__-__ Certificates
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___________________............................................... $__________
___________________............................................... $__________
Series 199__-__ Certificate Total .................................$__________
