EXHIBIT 1.2
FORD MOTOR CREDIT COMPANY
Euro Medium-Term Notes
Euro Sales Agency Agreement
October 10, 1995
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Peterborough Court
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Ford Motor Credit Company, a Delaware corporation (the
"Company"), proposes to issue and sell up to $4,000,000,000 principal amount
of its Euro Medium-Term Notes Due from 9 Months to 30 Years from Date of
Issue having the terms specified from time to time in each Prospectus
referred to below or any amendment or supplement thereto (the "Notes").
Subject to the terms and conditions stated herein, the Company hereby (i)
appoints ▇▇▇▇▇▇▇ Sachs International as agent of the Company, for the
purpose of soliciting purchases of the Notes from the Company and you hereby
agree to use your best efforts to solicit purchases of the Notes, (ii)
reserves the right to sell Notes directly on its own behalf and,
substantially contemporaneously herewith, to enter into agreements
substantially identical hereto (hereinafter called the "Other Agreements")
with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Limited and CS First Boston Limited and
(iii)agrees that, except as otherwise contemplated herein, whenever it
determines to sell Notes directly to you as principal, it will enter into a
separate agreement (each a "Terms Agreement"), substantially in the form of
Annex I hereto, with such additions and deletions as the parties thereto may
determine, in accordance with Section 3(c) hereof.
1. The Company represents and warrants to you that:
(a) Registration statement (No. 33-55945) in respect of
the Notes has been filed with the Securities and Exchange
Commission (the "Commission") in the form heretofore delivered to
you (the various parts of such registration statement, including
all exhibits thereto but excluding Form T-1, as amended at the time
such part became effective, being hereinafter called the
"Registration Statement", and each prospectus relating to the Notes
described therein, in the form in which it has most recently been
filed with the Commission on or prior to the date of this
Agreement, pursuant to Rule 424 under the Securities Act of 1933,
as amended (the "Act"), being hereinafter called the "Prospectus";
any reference herein to the Registration Statement or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as
of the effective date of the Registration Statement or the date of
such Prospectus, as the case may be; any reference to any amendment
or supplement to the Registration Statement or the Prospectus shall
be deemed to include any documents filed after the effective date
of the Registration Statement or the date of such Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and so incorporated by reference; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as each time amended
or supplemented with respect to Notes sold pursuant to this
Agreement, in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act in accordance with Section 4(a)
hereof); and the Registration Statement has become effective under
the Act and 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;
(b) No order preventing or suspending the use of the
Prospectus has been issued by the Commission, and the Prospectus,
at the time of filing thereof, conformed in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not 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; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in the Prospectus in reliance upon
and in conformity with information furnished in writing to the
Company by you expressly for use therein;
(c) The documents incorporated by reference 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 of the Commission thereunder, and any
further documents so filed and incorporated by reference, when they
are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(d) The Registration Statement and the Prospectus conform,
and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Act, the Exchange Act,
where applicable, and the rules and regulations of the Commission
under the Act or the Exchange Act, as applicable, and do not and
will not, as of the applicable effective date of the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any supplement thereto, 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 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 Company by you expressly for use
therein; when the Registration Statement became effective and at
all times thereafter, the Indenture dated as of February 1, 1985,
as heretofore supplemented (the "Indenture"), between the Company
and Chemical Bank as successor to Manufacturers Hanover Trust
Company, as Trustee (the "Trustee"), under which the Notes are to
be issued, has been duly qualified under, and conforms in all
material respects to the requirements of, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act");
(e) The Company and Ford Holdings, Inc. ("Holdings") have
each been duly incorporated, and each is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation; and each has corporate power and authority, and
has all licenses, permits, orders and other governmental and
regulatory approvals, to own or lease its properties and conduct
its business in the jurisdictions in which such business is
transacted as described in the Prospectus, with only such
exceptions as are not material to the business of the Company and
its subsidiaries considered as a whole;
(f) This Agreement has been duly authorized, executed and
delivered on behalf of the Company and is a valid and legally
binding agreement of the Company in accordance with its terms; each
Note has been or will be duly authorized prior to the issuance and
sale thereof and, when duly authorized and when completed and
authenticated as contemplated by the Indenture and delivered and
paid for in accordance with this Agreement, the Other Agreements
and any Terms Agreements, will have been duly authorized, executed,
authenticated, issued and delivered and will constitute a valid and
legally binding obligation of the Company in accordance with its
terms and will be entitled to the benefits provided by the
Indenture, which will be substantially in the form included as an
exhibit to the Registration Statement; and the Indenture has been
duly authorized by the Company and, as executed and delivered by
the Company and the Trustee, constitutes a valid and legally
binding instrument of the Company in accordance with its 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;
(g) There is no consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body having jurisdiction
over the Company which is required for, and the absence of which
would materially affect, the issue and sale of the Notes as
contemplated by this Agreement, the Other Agreements and any Terms
Agreements or the execution, delivery or performance of the
Indenture, except the registration under the Act of the Notes, the
qualification of the Indenture under the Trust Indenture Act and
such other consents, approvals, authorizations, registrations or
qualifications as may be required; and
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P. ("Coopers & ▇▇▇▇▇▇▇"), who
have certified certain of the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, are, to the best of the
knowledge of the Company, independent certified public accountants
as required by the Act and the rules and regulations of the
Commission thereunder.
2. You propose to solicit purchases of the Notes upon the
terms and conditions set forth in the Registration Statement, as amended or
supplemented from time to time, and in connection therewith will use the
Prospectus as then amended or supplemented which has been most recently
distributed to you by the Company, only as permitted or contemplated
thereby, and will solicit purchases of the Notes only as permitted by the
Act and the applicable securities laws or regulations of any jurisdiction.
3. (a) The Company agrees to pay you a commission equal
to the following percentage of the principal amount of Notes sold; provided
that the purchase of such notes was solicited by you:
Range of Maturities Commission
More than 9 months to up to 1 year .050%
1 year to up to 18 months .075%
18 months to up to 2 years .125%
2 years to up to 3 years .175%
3 years to up to 4 years .250%
4 years to up to 5 years .300%
5 years to up to 6 years .350%
6 years to up to 7 years .375%
7 years to up to 8 years .400%
8 years to up to 9 years .425%
9 years to up to 10 years .450%
10 years to up to 15 years .475%
15 years to up to 20 years .550%
20 years to up to 30 years .600%
30 years .600%
(b) Unless otherwise instructed by the Company, you shall
communicate to the Company, orally or in writing, each offer to purchase
Notes. Unless otherwise agreed by the Company and you, the Company shall
have the sole right to accept offers to purchase Notes offered through you
and may reject any proposed purchase of Notes as a whole or in part. You
shall have the right, in your discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection
shall not be deemed a breach of your agreements contained herein.
Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, Notes are set forth in the Euro
Medium-Term Note Procedure attached hereto as Exhibit A (the "Procedure").
The provisions of the Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. You and the
Company each agree to perform the respective duties and obligations
specifically provided to be performed by each in the Procedure as amended
from time to time. The Procedure may only be amended by written agreement
of the Company and you. The Company will furnish a copy of the Procedure
from time to time in effect to the Trustee, each authenticating agent or
paying agent designated pursuant to the Indenture and the common depositary
for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels Office, as operator
of the Euroclear System, and Cedel Bank, societe anoyme. The documents
required to be delivered by Section 5 hereof shall be delivered at the
office of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 10:00 a.m., New York City time, on October 10, 1995, or at such
other time and date as you and the Company may agree upon in writing, the
time and date of such delivery being herein called the "Closing Date".
(c) Each sale of Notes to you as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and
you shall otherwise agree) a Terms Agreement (which may be written or oral)
that will provide for the sale of such Notes to, and the purchase thereof
by, you. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Notes by you. Your commitment to purchase Notes as
principal, whether pursuant to any Terms Agreement or otherwise, shall be
deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by you pursuant thereto, the price
to be paid to the Company for such Notes, any provisions relating to rights
of, and default by, underwriters acting together with you in the reoffering
of the Notes and the time and date and place of delivery of and payment for
such Notes. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates
pursuant to Section 7 hereof.
For each sale of Notes to you as principal that is not made
pursuant to a Terms Agreement, the principal amount and any other term of
such Notes and the procedural details relating to the issue and delivery of
such Notes and payment therefor shall be as set forth in the Procedure. For
each such sale of Notes to you as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay you a commission as provided in
Section 3(a) hereof and in accordance with the schedule set forth therein,
and such sale shall be on such other terms as described in the Prospectus as
amended or supplemented.
Each time and date of delivery of and payment for Notes to
be purchased by you as principal, whether set forth in a Terms Agreement or
in accordance with the Procedure, is referred to herein as a "Time of
Delivery".
(d) The Company represents and agrees with you that all
sales of Notes denominated in Yen made pursuant to this Agreement, whether
sold on an agency basis in accordance with the Procedure or sold to you as
principal pursuant to a Terms Agreement, will be made in accordance with the
additional provisions set forth in Annex II and you agree to comply with the
provisions of paragraph 4 of Annex II.
4. The Company agrees:
(a) (i) To make no amendment or supplement to the
Registration Statement or Prospectus (A) prior to the Closing Date
which shall be disapproved by you promptly after reasonable notice
thereof or (B) after the date of any Terms Agreement or purchase by
you as principal prior to the related Time of Delivery which shall
be disapproved by you promptly after reasonable notice thereof;
(ii) to prepare, with respect to any Notes to be sold pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in
a form previously approved by you and to file such Pricing
Supplement pursuant to Rule 424 under the Act; (iii) to make no
amendment or supplement to the Registration Statement or the
Prospectus at any other time prior to having furnished you with a
copy of the proposed form thereof and given you a reasonable
opportunity to review the same; (iv) to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is
required by law in connection with the sale of any of the Notes;
(v) to advise you promptly, after the Company has been notified, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to or amendment of the
Prospectus has been filed or mailed for filing, of the issuance of
any stop order by the Commission or the initiation or threatening
of any proceeding for any such purpose, and of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and (vi)
in the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus, to use promptly
its best efforts to obtain its withdrawal;
(b) To furnish you with copies of each amendment to the
Registration Statement and of each amendment and supplement to the
Prospectus relating to Notes sold by you in such quantities as you
may from time to time reasonably request; and if at any time when
the delivery of a prospectus shall be required by law in connection
with sales of any of the Notes (including Notes purchased from the
Company by you as principal), either (i) any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented 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 to amend or supplement the Prospectus, as then
amended or supplemented, or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act, to notify you promptly to
suspend solicitation of purchases of the Notes; and forthwith upon
receipt of such notice, you shall suspend your solicitation of
purchases of the Notes and shall cease using the Prospectus as then
amended or supplemented which has been most recently distributed to
you by the Company; and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then
amended or supplemented, it will promptly advise you by telephone
(with confirmation in writing) and will promptly prepare and file
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus which will correct such statement or
omission or effect such compliance and will advise you when you are
free to resume such solicitation; provided, however, that if during
such same period you continue to own Notes purchased from the
Company by you as principal pursuant to a Terms Agreement, and a
period of six months shall not have elapsed after the Time of
Delivery relating to such Notes, the Company shall promptly
prepare, file with the Commission and deliver to you as many copies
as you may request of such an amendment or supplement; and in case
you are required by law to deliver a prospectus in connection with
the sales of any Notes at any time six months or more after the
Time of Delivery relating to such Notes, upon your request, but at
your expense, to prepare, file with the Commission and deliver to
you as many copies as you may request of an amended or supplemented
prospectus complying with Section 10(a)(3) of the Act; and provided
further that if during such same period you continue to own Notes
purchased from the Company by you as principal otherwise than
pursuant to a Terms Agreement, and if a period of six months shall
not have elapsed after the Time of Delivery relating to such Notes,
the Company shall promptly prepare, file with the Commission and
deliver to you as many copies as you may request of such an
amendment or supplement; and in case you are required by law to
deliver a prospectus in connection with the sales of any Notes at
any time six months or more after the Time of Delivery relating to
such Notes, upon your request, but at your expense, to prepare,
file with the Commission and deliver to you, subject to a delay of
not more than 30 days if the Company at that time shall have
suspended sales of Notes generally, as many copies as you may
request of an amended or supplemented prospectus complying with
Section 10(a)(3) of the Act;
(c) To make generally available to its security holders as
soon as practicable, but in any event no later than eighteen months
after the effective date of the Registration Statement (as such
date is defined in Rule 158(c) under the Act), an earning statement
of the Company and its consolidated subsidiaries complying with
Rule 158 under the Act and covering a period of at least twelve
consecutive months beginning after such effective date;
(d) To the extent not otherwise provided pursuant to
subsection (b) hereof, to furnish to you (i) forthwith after the
Company is required to file the same with the Commission, copies of
any information, documents and other reports which the Company is
required to file with the Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act and (ii) at the earliest time the Company
makes the same available to others, copies of its annual reports
and other financial reports furnished or made available to banks or
to the public generally;
(e) To pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder,
including, but not limited to, any fees of rating agencies with
respect to the Notes, the cost of printing the Prospectus and any
amendment or supplement thereto and this Agreement, the cost of
listing the Notes on the Luxembourg Stock Exchange or any other
stock exchange, any advertising expenses connected with the
offering and sale of Notes so long as such advertising expenses
have been approved by the Company, and any transfer taxes on resale
of any of the Notes by you (it being understood that except as
provided in this subsection and Section 11 hereof, you will pay all
of your own costs and expenses, including fees of your counsel),
and to indemnify you and hold you harmless on any documentary stamp
or similar issue tax and any related interest or penalty on the
issue or sale of the Notes to you;
(f) On any date on which Ford Motor Company ("Ford") shall
release to the general public interim financial information
included in or derived from Ford's consolidated statement of income
for a period ending on the last day of the preceding calendar
quarter, the Company shall cause Coopers & ▇▇▇▇▇▇▇ forthwith to
furnish you a letter, dated no earlier than two days prior to the
date of such release, substantially in the form of Annex III
hereto; and
(g) To furnish any and all documents, instruments,
information and undertakings that may be reasonably necessary in
order to effect the listing of the Notes on the Luxembourg Stock
Exchange and to use their best efforts to cause such listing to be
obtained by the Closing Date and so long as the Notes remain
outstanding, to maintain such listing (or if it becomes
impracticable to maintain such listing, to obtain and maintain a
listing of the Notes on another stock exchange of international
standing as the Company may select after consultation with you).
5. Your obligations to proceed hereunder, as agent or as
principal, pursuant to any Terms Agreement or otherwise, shall be subject,
in your discretion, to the condition that all representations and warranties
and other statements of the Company herein (and, in the case of any
obligation of yours under a Terms Agreement, in or incorporated in such
Terms Agreement by reference) are, at and as of the Closing Date or any Time
of Delivery, true and correct, the condition that the Company shall have
performed all its obligations hereunder theretofore to be performed, in all
material respects, and the following additional conditions:
(a) The Registration Statement shall have become effective
and you shall have received notice thereof; no stop order
suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part
of the Commission shall have been complied with or otherwise
satisfied.
(b) ▇.▇. ▇▇▇▇▇▇▇▇▇, Esq., an Assistant General Counsel and
Secretary of Ford, and ▇.▇. ▇▇▇▇▇▇▇▇, Esq., Vice President -
General Counsel of the Company, or other counsel satisfactory to
you in your reasonable judgment, shall have furnished to you their
written opinion, dated the Closing Date and each applicable date
referred to in Section 7(c) hereof, in form satisfactory to you in
your reasonable judgment, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the State of Delaware, with corporate power
under the laws of such State to own its properties and
conduct its business as described in the Prospectus, and is
duly qualified and in good standing to do business as a
foreign corporation in the State of Michigan;
(ii) The Company has an authorized capital stock
as set forth in the Prospectus and all the outstanding
shares of its capital stock have been duly and validly
authorized and issued and are owned of record and
beneficially by Ford, and have not been pledged or
otherwise encumbered by Ford;
(iii) Holdings has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware, with corporate power
under the laws of the State of Delaware to own its
properties and conduct its business as presently conducted;
(iv) This Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered
by the Company;
(v) The Indenture has been duly authorized,
executed and delivered by, and constitutes a valid and
binding instrument of, the Company and has been duly
qualified under the Trust Indenture Act;
(vi) The Notes have been duly authorized and,
when duly executed, completed and authenticated in
accordance with the Indenture and delivered and paid for as
provided in this Agreement, any applicable Terms Agreement
and the Other Agreements, will have been duly issued under
the Indenture and will constitute valid and binding
obligations of the Company entitled to the benefits
provided by the Indenture;
(vii) The issue and sale of the Notes and the
compliance by the Company with all provisions of the Notes,
the Indenture, this Agreement, any applicable Terms
Agreement and the Other Agreements 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 the
Company 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 the Company and its
subsidiaries considered as a whole) upon any of the
property or assets of the Company or Holdings pursuant to
the terms of, any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or other
similar agreement or instrument known to such counsel under
which the Company or Holdings is a debtor or a guarantor,
nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the By-
Laws of the Company;
(viii) The documents incorporated by reference in the
Prospectus (other than the financial statements and other
accounting information contained or incorporated by reference
therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(ix) 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
and any further amendments and supplements thereto made by
the Company prior to the date of such opinion (other than
Exhibits 12-A and 12-B to the Registration Statement and
the financial statements and other accounting information
contained in the Registration Statement and the Prospectus
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
of the Commission thereunder; and the statements in the
Registration Statement and the Prospectus under the caption
"Description of Notes" are accurate and fairly present the
information required or purported to be shown;
(x) The Amended and Restated Profit Maintenance
Agreement dated as of July 1, 1993 between Ford and the
Company (filed as an exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 1994) has been
duly authorized, executed and delivered by the parties
thereto and is a valid and binding agreement of such
parties;
(xi) Such counsel believe that neither the
Registration Statement nor the Prospectus, as amended or
supplemented (other than Exhibits 12-A and 12-B to the
Registration Statement and the financial statements and
other accounting information contained in the Registration
Statement and the Prospectus or omitted therefrom, as to
which such counsel need express no opinion), 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;
(xii) Such counsel do 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 or required
to be described in the Registration Statement or the
Prospectus which is not filed or incorporated by reference
or described as required; and
(xiii) Such
counsel do not know of any legal or governmental
proceedings pending to which the Company or Holdings is a
party or of which any property of the Company or Holdings
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 and other than such
proceedings which, in their 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 Company and its subsidiaries considered as a
whole.
Such opinion may be made subject to the qualification that the
enforceability of the terms of the Indenture, the Notes and that
certain agreement referred to in paragraph (x) of this subsection
(b) 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 enforceability of the terms
of the Indenture and the Notes may (i) be subject to provisions of
law which require that a judgment for money damages rendered by a
court in the United States be expressed only in United States
dollars and (ii) be limited insofar as it concerns the Company's
indemnity against any loss in obtaining any foreign currency from
the proceeds of a court judgment.
(c) Shearman & Sterling shall have furnished to you their
written opinion, dated the Closing Date and each applicable date
referred to in Section 7(e) hereof, in form satisfactory to you in
your reasonable judgment, to the effect that:
(i) The Company is a corporation duly
incorporated and validly existing in good standing under
the laws of the State of Delaware and has the corporate
power under the laws of such State to own its properties
and carry on its business as set forth in the Prospectus;
(ii) The Indenture has been duly qualified under
the Trust indenture Act and has been duly authorized,
validly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company;
(iii) The Notes have been duly authorized by the
Company and, when executed by the Company and completed and
authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in this
Agreement, any applicable Terms Agreement and the Other
Agreements, will have been duly issued under the Indenture
and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture;
(iv) The documents incorporated by reference in
the Prospectus (other than the financial statements and
other accounting information contained or incorporated by
reference therein or omitted therefrom, as to which such
counsel need express no opinion), when they were filed with
the Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of
the Exchange Act and the rules and regulations of the
Commission thereunder;
(v) The Registration Statement has become
effective under the Act, is still effective, and to the
best knowledge of such counsel no proceedings for a stop
order are pending or threatened;
(vi) The Registration Statement and the
Prospectus (other than Exhibits 12-A and 12-B to the
Registration Statement and the financial statements and
other accounting data contained in the Registration
Statement and the Prospectus or omitted therefrom, as to
which such counsel need express no opinion) appear on their
face to be appropriately responsive in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder;
(vii) The Indenture and the Notes conform as to
legal matters with the descriptions thereof contained in
the Registration Statement and the Prospectus; and
(viii) This
Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company.
Such opinion shall also confirm their advice set forth under
"United States Taxation" in the Prospectus as amended or
supplemented and may be made subject to the qualification that the
enforceability of the terms of the Indenture and the Notes (i) 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, (ii) may be subject to provisions of law which require
that a judgment for money damages rendered by a court in the United
States be expressed only in United States dollars and (iii) may be
limited insofar as it concerns the Company's indemnity against any
loss in obtaining any foreign currency from the proceeds of a court
judgment.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel for the
Company, shall have furnished to you their written opinion, dated
the Closing Date and each applicable date referred to in Section
7(e) hereof, in form satisfactory to you in your reasonable
judgment, as to matters set forth under "United States Taxation" in
the Prospectus as amended or supplemented.
(e) If the Notes are denominated in a currency other than
U.S. dollars, the Company shall have caused to be furnished to you
a written opinion of counsel expert in the laws of the country of
such currency, based on the laws of such country in effect on each
applicable date referred to in Section 7(e) hereof, dated each
applicable date referred to in Section 7(e) hereof, in form and
substance satisfactory to you in your reasonable judgment, relating
to exchange control authorization, or any other authorization,
approval, permission or consent of, or filing, recording or
registration necessary under the laws of such country, deduction or
withholding for or on account of taxes of any nature whatsoever
imposed or levied by or on behalf of such country, compliance with
the laws or regulations of such country, all in connection with the
execution, authentication, issue, sale and delivery of the Notes,
the execution and delivery of this Agreement and the Indenture, and
any other related matters as you may reasonably request.
(f) Coopers & ▇▇▇▇▇▇▇ shall have furnished to you a letter
(which letter shall be substantially identical to the draft of such
letter which shall have been delivered to you at 10:00 a.m., New
York City time, on the business day preceding the date that such
letter is delivered), dated the date of the Closing Date, and each
applicable date referred to in Section 7(d) hereof, in form
satisfactory to you in your reasonable judgment, to the effect set
forth in Annex IV hereto.
(g) The Company shall have caused to be furnished to you
at or prior to the Closing Date such additional letters from
Coopers & ▇▇▇▇▇▇▇ relating to financial statements of Holdings and
its subsidiaries included in the Registration Statement and the
Prospectus, if any, in such form and dated as of such dates as you
shall reasonably request.
(h) The Company shall have furnished or caused to be
furnished to you at the Closing Date and each applicable date
referred to in Section 7(b) hereof certificates in form
satisfactory to you in your reasonable judgment to the effect that
(i) the representations and warranties of the Company contained in
this Agreement and any Terms Agreement are true and correct on and
as of the date of such certificate as though made at and as of the
date of such certificate; (ii) the Company has duly performed, in
all material respects, all obligations required to be performed by
it pursuant to the terms of this Agreement or any Terms Agreement
at or prior to the date of such certificate; (iii) the Registration
Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been initiated or, to the knowledge
of the Company, threatened by the Commission and all requests for
additional information on the part of the Commission have been
complied with or otherwise satisfied; and (iv) at and as of the
date of such certificate, 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 information furnished in writing to the
Company by you expressly for use therein.
(i) For each sale of Notes to you as principal, prior to
the Time of Delivery (a) there shall not have been since the trade
date thereof such a change in United States or international
financial, political, or economic conditions, currency exchange
rates or currency exchange controls as would, in your reasonable
judgment, render it impracticable or inadvisable to consummate the
sale and delivery of the Notes, (b) 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 and
which, in your reasonable judgment, make it impracticable or
inadvisable to proceed with such sale and delivery, and (c) 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 Company and its subsidiaries
considered as a whole, or any material adverse change in the
financial position or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, which in
any such case makes it impracticable or inadvisable in your
reasonable judgment to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated
in the Prospectus as amended or supplemented.
6. You represent and agree as follows:
(a) (i) You represent and agree that, except to the extent
permitted under United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D) (the "D Rules"), (A) you have not offered or sold,
and, (x) at any time if a Note in bearer form is held by you as
part of an unsold allotment or subscription in connection with your
acting as principal pursuant to Section 3(c) hereof, or (y) during
the period beginning on the earlier of the closing date (or the
date on which the Company receives the proceeds of the offering if
there is no closing with respect to the Note) or the first date on
which the obligation is offered to persons other than a distributor
and ending on the expiration of the 40-day period beginning on the
closing date (or the date on which the Company receives the
proceeds of the offering if there is no closing with respect to the
Note) (a sale of a Note described in clause (x) or made during the
period described in clause (y) are hereinafter referred to as made
during the "restricted period"), you will not offer or sell, any
such Note in bearer form to a person who is within the United
States or its possessions or to a United States person and (B) you
have not delivered and will not deliver within the United States or
its possessions definitive Notes in bearer form that are sold
during the restricted period; (ii) you represent and agree that you
have and throughout the restricted period will have in effect
procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Notes in bearer form are
aware that such Notes may not be offered or sold during the
restricted period to a person who is within the United States or
its possessions or to a United States person, except as permitted
by the D Rules; (iii) if you are a United States person, you
represent and agree that when you are acting as principal pursuant
to Section 3(c) hereof you are acquiring the Notes in bearer form
for purposes of resale in connection with their original issuance
and, if you retain Notes in bearer form for your own account, you
will only do so in accordance with the requirements of United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6); and (iv)
with
respect to each affiliate that acquires from you Notes in bearer
form, which Notes in bearer form you acquired as principal pursuant
to Section 3(c) hereof, for the purpose of offering or selling such
Notes during the restricted period, you either (a) repeat and
confirm the representations and agreements contained in clauses
(i), (ii) and (iii) of this Section 6(a) on behalf of such
affiliate or (b) agree that you will obtain from such affiliate for
the Company's benefit the representations and agreements contained
in clauses (i), (ii) and (iii) of this Section 6(a).
You further represent and agree that you have not and will
not enter into any contractual arrangement with respect to the
distribution or delivery of the Notes, except with your affiliates
or with the prior written consent of the Company.
Terms used in this Section 6(a) have the meanings given to
them by the United States Internal Revenue Code and regulations
thereunder, including the D Rules.
(b) You further represent and agree that (i) you have not
offered or sold and, prior to the expiration of the period six
months from the Time of Delivery, will not offer or sell any Notes
to persons in the United Kingdom except to those persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (ii) you have complied and will comply
with all applicable provisions of the Financial Services Act of
1986 with respect to anything done by you in relation to the Notes
in, from or otherwise involving the United Kindom and (iii) you
have only issued or passed on and will only issue or pass on in the
United Kingdom any document received by you in connection with the
issue of the Notes to a person who is of a kind described in
Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1995 or is a person to whom the
document may otherwise lawfully be issued or passed on.
(c) No action is being taken or is contemplated by you
that would permit a public offering of the Notes or distribution of
the Prospectus in any jurisdiction where, or in any other
circumstances in which, action for those purposes is required. You
understand and agree that, accordingly, you are responsible for
compliance with all laws applicable to offers and sales by you of
Notes and distribution by you of the Prospectus as amended or
supplemented, and you agree to comply with all such laws.
Accordingly, you will not, as principal or agent, directly or
indirectly, offer, sell or deliver the Notes or distribute the
Prospectus, any advertisement or other offering material in any
country or jurisdiction except in compliance with any applicable
laws and regulations. In addition, you may not make any
representations or use any information other than that contained in
the Prospectus as amended or supplemented.
7. The Company agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes hereunder (including any purchase by you as principal not
pursuant to a Terms Agreement), and each execution and delivery by
the Company of a Terms Agreement with you, shall be deemed to be an
affirmation that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and
correct at the time of such acceptance or of such Terms Agreement
and an undertaking that such representations and warranties will be
true and correct at the settlement date for the Note or Notes
relating to such acceptance or as of the Time of Delivery relating
to such sale, as the case may be, as though made at and as of each
such time (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented to each such time);
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the
interest rates offered on the Notes or a change in the principal
amount of the Notes remaining to be sold or similar changes) and
each time the Company sells Notes to you as principal and the
applicable Terms Agreement specifies the delivery of a certificate
under this Section 7(b) as a condition to the purchase of Notes
pursuant to such Terms Agreement, the Company shall furnish or
cause to be furnished forthwith to you a certificate in form
satisfactory to you in your reasonable judgment to the effect that
the statements contained in the certificates referred to in
Section 5(h) hereof which were last furnished to you are true and
correct at the time of such amendment, supplement or Time of
Delivery as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented to such time) or, in
lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 5(h) but modified to
relate to the Registration Statement and the Prospectus as amended
or supplemented to the time of delivery of such certificates;
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the
interest rates offered on the Notes or a change in the principal
amount of the Notes remaining to be sold or similar changes) and
each time the Company sells Notes to you as principal and the
applicable Terms Agreement specifies the delivery of an opinion
under this Section 7(c) as a condition to the purchase of Notes
pursuant to such Terms Agreement, the Company shall furnish or
cause to be furnished forthwith to you a written opinion of ▇.▇.
▇▇▇▇▇▇▇▇▇, Esq., an Assistant General Counsel and Secretary of
Ford, and ▇.▇. ▇▇▇▇▇▇▇▇, Esq., Vice President - General Counsel of
the Company, or other counsel satisfactory to you in your
reasonable judgment, dated the date of delivery of such opinion, in
form satisfactory to you in your reasonable judgment, of the same
tenor as the opinion referred to in Section 5(b) hereof but
modified to relate to the Registration Statement and the Prospectus
as amended or supplemented to the time of delivery of such opinion
or, in lieu of such opinion, counsel last furnishing such an
opinion to you shall furnish you with a letter to the effect that
you may rely on such last opinion to the same extent as though it
were dated the date of such letter authorizing reliance (except
that statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter authorizing
reliance);
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to set forth financial
information included in or derived from the Company's consolidated
statement of income through the end of the preceding calendar
quarter, and each time that the Registration Statement or the
Prospectus shall be amended or supplemented to set forth financial
information included in or derived from the Company's financial or
accounting records and each time the Company sells Notes to you as
principal and the applicable Terms Agreement specifies the delivery
of a letter under this Section 7(d) as a condition to the purchase
of Notes pursuant to such Terms Agreement, the Company shall cause
Coopers & ▇▇▇▇▇▇▇ forthwith to furnish you a letter, dated the date
of filing of such amendment or supplement with the Commission or
Time of Delivery, in form satisfactory to you in your reasonable
judgment, of the same tenor as the portions of the letter referred
to in clauses (i) and (ii) of Annex IV hereof and of the same
general tenor as the portions of the letter referred to in
clause (iii) of said Annex IV with such changes as may be necessary
to reflect changes in the financial statements and other
information included in or derived from the accounting records of
the Company, to the extent such financial statements and other
information are available as of a date not more than eight business
days prior to the date of such letter; and
(e) Each time the Registration Statement or the Prospectus
shall be amended or supplemented by a Pricing Supplement to provide
for the offer and sale of Notes denominated in a currency other
than U.S. dollars, each time the Company sells Notes to you as
principal and the applicable Terms Agreement specifies the delivery
of an opinion or opinions by Shearman & Sterling or ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ and each time Notes denominated in a currency other than
U.S. dollars are sold to you as principal pursuant to a Terms
Agreement and counsel expert in the laws of the country of such
foreign currency is required to deliver an opinion as a condition
to the purchase of Notes pursuant to such Terms Agreement, the
Company shall furnish to each such counsel such papers and
information as they may reasonably request to enable them to
furnish to you the opinion or opinions referred to in Section 5
hereof.
8. (a) The Company will indemnify you and hold you
harmless against any losses, claims, damages or liabilities, joint or
several, to which you 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 or supplement thereto, 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 you for any legal or
other expenses reasonably incurred by you in connection with investigating
or defending any such action or claim; provided, however, that the Company
shall 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 or omission or alleged omission made
in the Registration Statement or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Company by you expressly for use therein; and
provided, further, that the Company shall not be liable to you or any person
controlling you under the indemnity agreement in this subsection (a) with
respect to the Prospectus to the extent that any such loss, claim, damage or
liability to you or such controlling person results from the fact that you
sold Notes to a person to whom there was not sent or given, at or prior to
the earlier of either the mailing or delivery of the written confirmation of
such sale or the delivery of such Notes to such person, a copy of the
Prospectus as then amended or supplemented (excluding documents incorporated
by reference), if the Company has previously furnished copies thereof to
you, and if you are required by applicable law so to make available such
documents.
The indemnity agreement in this subsection (a) shall be in
addition to any liability which the Company may otherwise have and shall
extend upon the same terms and conditions to each person, if any, who
controls you within the meaning of the Act.
(b) You will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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 or supplement thereto, 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 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 the Registration Statement or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Company by you expressly for use therein; and
will reimburse the Company for any legal fees or other expenses reasonably
incurred by the Company 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 you may otherwise have and shall extend upon
the same terms and conditions to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of
the Act.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any
action such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing 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
subdivision to such indemnified party unless such indemnifying party shall
have received other notice addressed and delivered in the manner provided in
Section 12 hereof of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection.
In case any such action shall be brought against any indemnified party, and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it shall wish, 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 shall 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 8
is unavailable to 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 the 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 Company on the one hand and you 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 the 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 Company on the one hand and you 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 Company on the one hand and you 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 Company bear to the total
commissions received by you, in each case as set forth in the table on the
cover page of the Prospectus. 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 Company or you and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, including, with respect to
you, the extent to which such losses, claims, damages or liabilities (or
actions in respect thereof) with respect to the Prospectus result from the
fact that you sold Notes to a person to whom there was not sent or given, at
or prior to the earlier of either the mailing or delivery of the written
confirmation of such sale or the delivery of such Notes to such person, a
copy of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference), if the Company has previously furnished copies
thereof to you, and if you are required by applicable law so to make
available such documents. The Company and you 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 or payable 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 such action or
claim. Notwithstanding the provisions of this subsection (d), you shall not
be required to contribute any amount in excess of the amount by which the
total price at which the Notes distributed by you to the public were offered
to the public exceeds the amount of any damages which you have 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.
9. In soliciting purchases of Notes from the Company
(other than in respect of any purchases by you as principal), you are acting
solely as agent for the Company, and not as principal. You will make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been accepted by the Company,
but you shall not have any liability to the Company in the event such
purchase is not consummated for any reason. Under no circumstances shall
you be obligated to purchase any Notes for your own account.
10. The respective indemnities, agreements,
representations, warranties and other statements by you and the Company set
forth in this Agreement or made by each, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of you or the Company or any of its officers or directors or any
controlling person, and shall survive each delivery of and payment for any
of the Notes.
11. The provisions of this Agreement relating to the
solicitation of offers to purchase Notes from the Company may be terminated
at any time by either party hereto upon the giving of written notice of such
termination to the other party hereto. In the event of any such
termination, neither party shall have any liability to the other party
hereto, except as provided in the first sentence of Section 3, Section 4(e),
Section 8 and Section 10 and except that, if at the time of termination an
offer for the purchase of Notes shall have been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes
relating thereto shall not yet have occurred, the Company shall have the
obligations provided in Section 7.
12. Except as otherwise specifically provided herein, all
statements, requests, notices and advices hereunder shall be in writing, or
by telephone if promptly confirmed in writing, and if to you shall be
sufficient in all respects if delivered or sent by telecopier or registered
mail to you at Peterborough Court, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, and if to the Company shall be sufficient in all respects if
delivered or sent by telecopier or registered mail to the Company at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Secretary.
13. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, you and the Company, and
to the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and any person who controls you or the Company, and
the respective personal representatives, successors and assigns of each, and
no other person shall acquire or have any right under or by virtue of this
Agreement and any Terms Agreement.
14. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
15. This Agreement and any Terms 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, and upon acceptance
hereof by you, this letter and such acceptance hereof shall constitute a
binding agreement between the Company and you.
Very truly yours,
FORD MOTOR CREDIT COMPANY
By:
Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:
Name:
Title:
ANNEX I
FORD MOTOR CREDIT COMPANY
[Title of Security]
Terms Agreement
, 19
▇▇▇▇▇▇▇ Sachs International
Peterborough Court
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Ford Motor Credit Company (the "Company") proposes, subject
to the terms and conditions stated herein and in the Euro Sales Agency
Agreement, dated October 10, 1995 (the "Agency Agreement"), between the
Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, to issue and sell to ▇▇▇▇▇▇▇ Sachs
International the Notes specified in Schedule I hereto (the "Purchased
Notes"). ▇▇▇▇▇▇▇ ▇▇▇▇▇ International proposes to offer the Notes for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented relating to the Purchased Notes. Each of the provisions of the
Agency Agreement not specifically related to the solicitation by ▇▇▇▇▇▇▇
Sachs International, as agent of the Company, of offers to purchase Notes is
incorporated herein by reference in its entirety, and shall be deemed to be
part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Nothing contained herein or in the Agency
Agreement shall make any party hereto an agent of the Company or make such
party subject to the provisions therein relating to the solicitation of
offers to purchase securities from the Company, solely by virtue of its
execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of
the date of this Terms Agreement, except that each representation and
warranty set forth in Section 1 of the Agency Agreement relating to the
Prospectus shall be deemed to have been made as of the date of the Agency
Agreement and, with respect to the Prospectus as amended or supplemented
applicable to the Purchased Notes covered by this Terms Agreement, shall be
deemed to have been made as of the date of this Terms Agreement. Unless
otherwise defined herein, terms defined in the Agency Agreement are used
herein as therein defined.
An amendment to the Registration Statement, or an amendment
or supplement to the Prospectus, as the case may be, relating to the
Purchased Notes, in the form heretofore delivered to you, is now proposed to
be filed or, in the case of an amendment or supplement to the Prospectus,
mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in
the Agency Agreement incorporated herein by reference, the Company agrees to
issue and sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and ▇▇▇▇▇▇▇ Sachs
International agrees to purchase from the Company the Purchased Notes, at
the time and place, in the principal amount and at the purchase price set
forth in Schedule I hereto.
Notwithstanding anything herein or in the Agency Agreement
contained, you may, by notice to the Company given at any time prior to the
Time of Delivery when payment would otherwise be due to the Company
hereunder, terminate this Agreement if (i) there shall have been since the
date hereof such a change in United States or international financial,
political, or economic conditions, currency exchange rates or currency
exchange controls as would, in your reasonable judgment, render it
impracticable or inadvisable to consummate the sale and delivery of the
Notes, (ii) the United States shall have become engaged in hostilities which
have resulted in the declaration of a national emergency or a declaration of
war and which, in your reasonable judgment, make it impracticable or
inadvisable to proceed with such sale and delivery, or (iii) since the
respective dates as of which information is given in the Prospectus as
amended or supplemented, there shall 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 Company and its
subsidiaries considered as a whole, or any material adverse change in the
financial position or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, which in any such
case makes it impracticable or inadvisable in your reasonable judgment to
proceed with the public offering or the delivery of the Notes on the terms
and in the manner contemplated in the Prospectus as amended or supplemented.
If this Agreement shall be terminated by you (a) because of
any failure or refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of the Agreement, or (b) if for any
reason the Company shall become unable to perform its obligations under this
Agreement, except for the reasons set forth in the immediately preceding
paragraph, the Company agrees to reimburse you for all out-of-pocket
expenses (including fees and expenses of your counsel) reasonably incurred
by you in connection with the proposed offer and sale of the Notes. The
provisions of Section 10 of the Agency Agreement shall survive the
termination or cancellation of this Agreement.
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance
hereof by you this letter and such acceptance hereof, including those
provisions of the Agency Agreement incorporated herein by reference, shall
constitute a binding agreement between you and the Company.
FORD MOTOR CREDIT COMPANY
By:
Accepted:
By:____________________________
(▇▇▇▇▇▇▇ ▇▇▇▇▇ International)
SCHEDULE I TO TERMS AGREEMENT
Title of Purchased Notes:
[ %] [Fixed Rate] [Floating Rate] Euro Medium-Term Notes
Aggregate Principal Amount:
$
Denominations:
[$ ]
Price to Public:
% of the principal amount of the Purchased Notes, plus accrued
interest from to [and accrued amortization, if
any, from to ]
Purchase Price by [▇▇▇▇▇▇▇ Sachs International] [Underwriters]:
% of the principal amount of the Purchased Notes, plus accrued
interest from to [and accrued amortization, if
any, from to ]
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[no redemption provisions]
[The Purchased Notes may be redeemed, [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, in the
amount of $ or in an integral multiple thereof,
[on or after , at the following
redemption prices (expressed in percentages of principal amount). If
[redeemed on or before , , %, and if] redeemed
during the 12-month period beginning , ,
Year Redemption
Price
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Purchased Notes are entitled to the benefit of a sinking fund to
retire $ principal amount of Purchased Notes on in
each of the years
through at 100% of their principal amount
plus accrued interest] [, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional $
principal amount of Purchased Notes in the years
through at 100% of their principal amount plus accrued
interest.]
[If Purchased Notes are Extendable Debt Securities, insert--
Extendable Provisions:
The Purchased Notes are repayable on , at the option of
the holder, at their principal amount with accrued interest. The initial
annual interest rate will be %, and thereafter the annual interest
rate will be adjusted on , , and to a rate
not less than % of the effective annual interest rate on
obligations with year maturities as of the [interest date 15
days prior to maturity date] prior to such [insert maturity date].]
[If Purchased Notes are Floating Rate Debt Securities,
insert--
Floating Rate Provisions: ]
Time of Delivery:
Closing Location:
Method of and Specified Funds for Payment of Purchase Price:
[New York] Clearing House Funds
[Wire Transfer]
Documents to be Delivered:
The following documents referred to in the Agency Agreement shall be
delivered as a condition to the Closing:
[(1) The opinion or opinions referred to in Section 7(e).]
[(2) The opinion referred to in Section 7(c).]
[(3) The accountants' letter referred to in Section 7(d).]
[(4) The officers' certificate referred to in Section 7(b).]
Other Provisions (including Syndicate Provisions, if applicable):
ANNEX II
Additional Provisions Relating to Notes
Denominated in Yen ("Yen Notes")
1. No Yen Notes will have a stated maturity of less than one year.
2. No Yen Notes will be sold which include payment provisions based on
structured issues
without the approval of the Japanese Ministry of Finance.
3. The Company will not take the proceeds of any sale of a Yen Note
into Japan.
4. Neither you nor the Company will offer, sell or deliver, directly
or indirectly, any Yen Note in Japan or to residents of Japan, including any
corporation or other entity organized under the laws of Japan, or to others
for reoffering, resale or delivery of any Yen Note, directly or indirectly,
in Japan or to any residents of Japan, including any corporation or other
entity organized under the laws of Japan, without complying with Japanese law
and regulations.
5. The Company or its designated agent shall submit such reports or
information as may be required from it from time to time under applicable
laws, regulations and guidelines promulgated by Japanese governmental and
regulatory authorities in the context of the issue and purchase of Yen Notes.
6. Yen Notes will each be issued in a minimum denomination of
Y1,000,000 or integral multiples thereof.
ANNEX III
At the request of Ford Motor Company, we are enclosing a copy of the
unaudited condensed consolidated financial statements of Ford Motor Company
and Consolidated Subsidiaries as of [the end of the most recent fiscal
quarter and the same fiscal quarter for the preceding fiscal year], together
with a manually signed copy of our review report thereon. Our review was
made in accordance with standards established by the American Institute of
Certified Public Accountants.
A review of interim financial information consists principally of
obtaining an understanding of the system for the preparation of interim
financial information, applying analytical review procedures to financial
data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an examination in
accordance with generally accepted auditing standards, the objective of which
is the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion on the financial
statements referred to above. However, as set forth in the attached report,
based on our review, we are not aware of any material modifications that
should be made to the financial statements referred to above for them to be
in conformity with generally accepted accounting principles.
[As further set forth in the attached report, we have previously
audited, in accordance with generally accepted auditing standards, the
consolidated balance sheet as of [the end of the most recent
fiscal year] and the related consolidated statements of income, stockholders'
equity and cash flows for the year then ended (not presented herein); and in
our report dated [the date of such opinion], we expressed an
unqualified opinion on those consolidated financial statements. In our
opinion, the information set forth in the condensed consolidated balance
sheet as of [the end of the most recent fiscal year] appearing in
Ford's First Quarter press release is fairly stated in all material respects
in relation to the consolidated balance sheet from which it has been
derived.]*
We are independent certified public accountants with respect to Ford
Motor Company and its subsidiaries within the meaning of the Securities Act
of 1933 and the applicable published rules and regulations thereunder.
* Paragraph will be deleted from the letters for the second and third
fiscal quarters.
ANNEX IV
Matters to Be Covered by Letters of
Coopers & ▇▇▇▇▇▇▇
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder, and the statement
in the Registration Statement in answer to Item 10 of Form S-3 is accurate
insofar as it relates to them;
(ii) In their opinion, the audited consolidated financial
statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Company's Annual Report on Form 10-K
most recently filed with the Commission and covered by their report included
therein (the "audited financials") comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange Act,
as applicable, and the published rules and regulations under the Act or the
Exchange Act, as applicable;
(iii) On the basis of limited procedures, not constituting an audit,
which have been carried out through a specified date not more than two
business days prior to the date of each such letter, including
(1) performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in Statements on Auditing Standards No. 71, "Interim
Financial Information," on the unaudited condensed consolidated financial
statements of the Company and its subsidiaries from the beginning of the
Company's fiscal year through the date of such letter (the "quarterly
financials"), (2) a reading of the minutes of the meetings of the Board of
Directors, Finance Committee and stockholder of the Company since the date of
the audited financials, (3) inquiries of certain officials of
the Company, responsible for financial and accounting matters as to
transactions and events subsequent to the date of the audited financials, and
(4) such other procedures and inquiries as may be described in each
such letter, nothing has come to their attention which has caused them to
believe that:
(A) any material modifications should be made to the quarterly
financials for them to be in conformity with generally accepted
accounting principles; or
(B) the quarterly financials do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations; or
IV - 2
(C) At a recent date specified in each letter and in each case
satisfactory to the Agents in their reasonable judgment, there
was any change with respect to the Company and its consolidated
subsidiaries in the capital stock or any net change (i) in
excess of $350,000,000 in consolidated short-term debt
(excluding the current portion of long-term debt) or (ii) in
excess of $25,000,000 in consolidated long-term debt (including
the current portion thereof), as compared, in each case, with
the corresponding amounts in the consolidated balance sheet of
the Company and its consolidated subsidiaries as of the date of
the most recent quarterly financials, except, in all instances,
for changes which the most recent report filed with the
Commission containing financial statements disclosed have
occurred or may occur or which are described in each such
letter; and (iv) They have performed certain specified
procedures, including comparisons with certain specified
accounting records of the Company and its subsidiaries, with
respect to certain items of information included in the
Registration Statement or in the Prospectus as amended or
supplemented through the date of such letter, and have found
such items to be in agreement with such records.
EXHIBIT A
FORD MOTOR CREDIT COMPANY
Euro Medium-Term Note Procedure
October 10, 1995
The administrative procedures and specific terms of the offering of the
Notes, on a continuous basis by Ford Motor Credit Company ("Ford Credit")
pursuant to the Euro Sales Agency Agreements to which these procedures are
attached (each an "Agency Agreement"), between Ford Credit and each of
▇▇▇▇▇▇▇ Sachs International, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Limited and CS First
Boston Limited (each an "Agent"), are explained below. In the Agency
Agreements, each Agent has agreed to use its best efforts to solicit
purchases of the Notes. Each Agent, as principal, may purchase Notes for its
own account pursuant to the terms and settlement details of a Terms Agreement
entered into between Ford Credit and such Agent, as contemplated by each
Agency Agreement. Unless otherwise defined herein, terms defined in any
Agency Agreement, Indenture or the Prospectus, as amended or supplemented,
shall be used herein as therein defined.
Ford Credit may, from time to time, designate any Agent to act as a
coordinating agent (the "Coordinating Agent") for the purposes of (a)
coordinating advice to the Agents, (b) posting rates, confirming rates,
acknowledging trades, and providing information to Ford Credit and (c)
providing such information as may be necessary to satisfy the listing
requirements of the Luxembourg Stock Exchange. The information to be
provided to the Listing Agent (defined below) may include, but need not be
limited to, representative prices and yields at which Notes were sold in
secondary market trading for the various ranges of Note maturities.
Each Note will be issued under the Indenture dated as of February 1,
1985, as supplemented (the "Indenture"), between Ford Credit and Chemical
Bank as successor to Manufacturers Hanover Trust Company, as Trustee (the
"Trustee"). Notes will bear interest at either fixed rates ("Fixed Rate
Notes") or floating rates ("Floating Rate Notes").
Ford Credit has appointed the principal office of Chemical Bank in
London as principal paying agent for the payment of the principal of and
interest on the Notes (the "Principal Paying Agent") and has appointed
Kredietbank S.A. Luxembourgeoise in Luxembourg as an additional paying agent
(the "Paying Agent"). Administrative responsibilities will be handled for
Ford Credit by its Treasurer's Office; accountable document control and
record-keeping responsibilities will be performed by Ford Credit's Accounting
Services Department.
Ford Credit has appointed Kredietbank S.A. Luxembourgeoise as listing
agent (the "Listing Agent"), which will coordinate with the Principal Paying
Agent and the Coordinating Agent on a regular basis for the purpose of
providing the Luxembourg Stock Exchange with such information regarding Notes
issued and outstanding as such Exchange may require.
I. PROCEDURES FOR EURO MEDIUM-TERM NOTES
Form of Notes:
Notes will be issued only in bearer form.
All Notes originally issued on the same day, being
denominated in the same currency and having the same
interest rate and Stated Maturity will be represented
initially by a temporary note, in global form (a "Temporary
Global Note", or a "Global Note", which term shall also
include a Permanent Global Note (as defined below) unless
otherwise indicated herein), which shall be deposited with a
common depositary (the "Depositary") outside of the United
States for ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System
("Euroclear") and Cedel Bank, societe anonyme ("Cedel").
Each interest in a Temporary Global Note will be
exchangeable for an equivalent interest in a permanent note
in global form (a "Permanent Global Note"), no earlier than
the 40th day after the date of issue of any Note (the
"Exchange Date"), upon written certification, in the form
set forth in the Indenture, by the person entitled to
receive the Notes represented by the Permanent Global Note
or, if interest is payable with respect to an Interest
Payment Date occurring prior to the Exchange Date, by the
person entitled to receive such interest, to the effect that
the Notes to be represented by such Permanent Global Note,
or upon which such interest is to be paid, are owned by (i)
a person that is not a United States person, (ii) a United
States person that is (A) a foreign branch of a United
States financial institution (as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v)) purchasing
for its own account or for resale or (B) a United States
person who acquired Notes through a foreign branch of a
United States financial institution and who holds the Notes
through such financial institution on the date of such
certification (provided in either case that the financial
institution furnishes certification that it agrees to comply
with Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code and the United States Treasury
Regulations issued thereunder) or (iii) a financial
institution that acquired Notes for purposes of resale
during the restricted period (as defined in Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)), and such
financial institution certifies that it has not acquired the
Notes for purposes of resale directly or indirectly within
the United States or its possessions or to a United States
person. As used herein, "United States" means the United
States of America (including the States and the District of
Columbia), and its "possessions" include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands. A financial institution,
whether or not described in (i) or (ii) above, that
purchases Notes for purposes of resale during the restricted
period, may only give the certification described in (iii)
above. Each Permanent Global Note will be deposited with
the Depositary outside the United States for Euroclear and
Cedel for the accounts of Holders whose Notes are
represented by interests in such Permanent Global Note.
Interests in a Permanent Global Note will be exchangeable on
or after the date such Permanent Global Note is issued, upon
not less than 30 days' notice to the Trustee, for definitive
Notes in bearer form, with coupons attached.
Date of Issuance:
Each Note will be authenticated and issued as of the date of
its delivery by the Principal Paying Agent. Each Note will
bear a date of original issue, which will be (i) with
respect to a Temporary Global Note (or any portion thereof),
the date of its original issue as specified in such Note and
(ii) with respect to any Permanent Global Note or Note in
definitive form (or portion thereof) issued subsequently
upon transfer or exchange of a Note or in lieu of a
destroyed, lost or stolen Note, the date of original issue
of the predecessor Note, regardless of the date of
authentication of such subsequently issued Note.
Maturities:
Each Note will mature from nine months to thirty years from
its date of issue. A Floating Rate Note will mature on an
Interest Payment Date.
Denominations:
Unless otherwise indicated in the applicable Pricing
Supplement, Notes, other than Foreign Currency Notes, will
be issued in denominations of U.S.$5,000 or in integral
multiples thereof, subject to a minimum order of
U.S.$10,000. Foreign Currency Notes will be issued in the
denomination or denominations set forth in the applicable
Pricing Supplement. Ford Credit may offer Notes denominated
in U.S. dollars, Australian dollars, Canadian dollars,
Danish kroner, Dutch guilders, Italian lire, New Zealand
dollars or European Currency Units. Ford Credit reserves
the right to offer Foreign Currency Notes denominated in
other currencies, including other composite currencies.
A Note in definitive form may be presented for exchange at
the office of the Principal Paying Agent located outside the
United States for other Notes in other authorized
denominations of the same Maturity and terms without service
charge.
Interest:
General. Each Note will bear interest at the annual rate,
or at a rate determined pursuant to an interest rate
formula, stated therein and in the applicable Pricing
Supplement, until the principal thereof is paid or made
available for payment. Interest will be payable on each
Interest Payment Date and at Maturity. Interest rates and
interest rate formulas are subject to change by Ford Credit
from time to time, but no such change will affect any Note
theretofore issued or which Ford Credit has agreed to sell.
Each date on which interest is payable on a Note is referred
to herein as an "Interest Payment Date". Unless otherwise
indicated in the applicable Pricing Supplement, the Interest
Payment Dates for Fixed Rate Notes and Floating Rate Notes
shall be as described below.
Fixed Rate Notes. Interest on each Fixed Rate Note will be
payable on September 15 of each year and at Maturity.
Floating Rate Notes. Interest on each Floating Rate Note
will be payable on the date or dates provided in the
applicable Pricing Supplement and at Maturity.
Calculation of Interest:
Fixed Rate Notes. Interest on Fixed Rate Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve thirty-day months.
(Examples of interest calculations are as follows: 3-15-89
to 9-15-89, equals 6 months, 0 days or 180 days; the
interest paid equals 180/360 times the annual rate of
interest times the face value. The period from 4-17-89 to
9-15-89 equals four months, 28 days or 148 days; the
interest paid equals 148/360 times the annual rate of
interest times face value.) Interest does not accrue on the
31st day of any month.
Floating Rate Notes. Interest on Floating Rate Notes will
accrue from the date of issue or from the last date to which
interest has been paid up to but excluding the next
succeeding Interest Payment Date (each such time period an
"Interest Period"). With respect to a Floating Rate Note,
accrued interest shall be calculated by multiplying the
principal amount of such Floating Rate Note by an accrued
interest factor. Such accrued interest factor will be
computed by adding the interest factors calculated for each
day in the Interest Period or from the last date from which
accrued interest is being calculated. For LIBOR Notes, the
interest factor for each such day is computed by dividing
the interest rate in effect on such day by 360.
Payments of Principal
and Interest:
General. Payments of principal and interest in respect of
each Permanent Global Note and any portion of a Temporary
Global Note for which appropriate certification has been
obtained will be made to each of Euroclear and Cedel with
respect to that portion of any such Global Note held for its
account. Each of Euroclear and Cedel will undertake in such
circumstances to credit such principal and interest received
by it to the accounts of the Holders whose Notes are
represented by interests in such Global Note.
Payments in respect of Definitive Notes and coupons will be
made only at the offices of such paying agents located
outside the United States as Ford Credit may from time to
time appoint, upon presentation and surrender of the Notes
or appropriate coupons, as the case may be. At the
direction of the Holder of any Definitive Note or coupon,
and subject to applicable laws and regulations, payment on
such Note or coupon will be made by check drawn on a bank in
a city in the country issuing the currency in which a Note
is denominated (New York for Notes denominated in U.S.
dollars) or by wire transfer to an account denominated in
such currency maintained by such Holder with a bank located
outside the United States. If payment in U.S. dollars at
the offices of all such paying agents outside the United
States becomes illegal or is effectively precluded because
of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts
in U.S. dollars, Ford Credit will appoint an office or agent
in the United States at which such payment may be made.
Except as described in the preceding sentence, no payment on
the Notes will be made by mail to an address in the United
States or by transfer to an account maintained by the Holder
in the United States. Notes presented to a paying agent at
Maturity for payment will be forwarded to the Trustee for
cancellation and delivered to Ford Credit with an
appropriate debit advice.
Acceptance and Rejection
of Offers:
Unless otherwise agreed by Ford Credit and each Agent, Ford
Credit has the sole right to accept offers to purchase Notes
and may reject any such offer in whole or in part. Each
Agent may reject any offer to purchase Notes received by it
in whole or in part in the reasonable exercise of its
discretion. Each Agent will advise Ford Credit or the
Coordinating Agent of offers to purchase Notes. Unless
otherwise instructed by Ford Credit, until 8:00 A.M. (New
York time), each Agent will advise the Coordinating Agent of
all accepted offers to purchase Notes under the terms and
conditions set forth by Ford Credit. After such time, each
Agent will advise Ford Credit promptly by telephone of all
offers to purchase Notes received by such Agent for offers
in excess of a specified amount, other than those rejected
by it. No offer for less than a minimum amount specified
from time to time by Ford Credit (which initially shall be
U.S.$10,000, or, in the case of Foreign Currency Notes, the
amount indicated in the applicable Pricing Supplement) shall
be accepted by Ford Credit.
Settlement:
The receipt of immediately available funds by Ford Credit in
payment for a Note, the receipt by the Depositary of a
properly completed and authenticated Temporary Global Note
representing such Note and the selling Agent's receipt of
immediately available funds shall, with respect to such
Note, constitute "settlement". All offers for Notes
accepted by Ford Credit will be settled on the fifth
succeeding Business Day pursuant to the timetable for
settlement set forth below, unless in any such case Ford
Credit, the Agent and the purchaser agree to settlement on a
different date; provided, however, that in the case of a
delayed settlement Ford Credit will notify the Principal
Paying Agent at least 24 hours prior to the time Settlement
Procedures "B" and "C" are due to be performed, as set forth
in the timetable below.
Settlement Procedures:
Settlement Procedures with regard to each Note sold by an
Agent, as agent, shall be as follows:
A. Such Agent will advise the Principal Paying Agent
by telephone, confirmed by telex or telefax, and
Ford Credit by telefax, of the following settlement
information:
1. Principal amount (and currency of issuance).
2. Stated Maturity.
3. In the case of a Fixed Rate Note, the
interest rate, or, in the case of a
Floating Rate Note, the initial interest
rate, Index Maturity and Spread and, if
applicable, the Minimum Interest Rate and
Maximum Interest Rate.
4. Issue/Settlement date (expected to be one
and the same date).
5. Price.
6. Agent's commission.
7. Agent's account number at Euroclear or
Cedel.
▇. ▇▇▇▇ Credit will then confirm to the Principal
Paying Agent the information set forth in
Settlement Procedure "A" above. Ford Credit will,
for Foreign Currency Notes, communicate the
equivalent U.S. dollar principal amount to the
Principal Paying Agent and the Trustee.
C. The Principal Paying Agent will prepare and
authenticate a Temporary Global Note and deliver it
to the Depositary who will instruct Euroclear or
Cedel, as the case may be, to credit such Note to
the account with Euroclear or Cedel, as the case
may be, of the Agent through which such Note was
sold. Concurrently therewith and in consideration
thereof, such Agent will give instructions to
Euroclear or Cedel, as the case may be, to credit
the account of the Principal Paying Agent with an
amount equal to the initial public offering price
of such Note, less the applicable commission
determined as provided in Section 3 of the Agency
Agreement for credit to the account of Ford Credit.
The Principal Paying Agent will notify Ford Credit
of both the Euroclear and Cedel Reference Numbers
for such Note and will notify the Listing Agent of
the issuance of such Note.
▇. ▇▇▇▇ Credit receives immediately available funds in
payment for the Note. The Principal Paying Agent
will telefax a copy of such Temporary Global Note
to Ford Credit's Treasury Department.
Periodically, the Principal Paying Agent will also
send to Ford Credit's Treasury Department a
statement setting forth the principal amount of the
Notes outstanding as of the date of such statement
after giving effect to all orders of which Ford
Credit has advised the Principal Paying Agent but
which have not yet been settled.
In the event of a purchase of Notes by any Agent, as
principal pursuant to a Terms Agreement, appropriate
settlement details will be set forth in the applicable terms
agreement to be entered into between such Agent and Ford
Credit pursuant to the relevant Agency Agreement.
Settlement Procedures
Timetable
For offers of Notes accepted by Ford Credit, Settlement
Procedures "A" through "D" set forth above shall be
completed on or before the respective times set forth below:
Settlement
Procedure Time
A 11:00 A.M., London time, a minimum of one business
day before the settlement date
B-C 3:00 P.M., London time, on the business day before
the settlement date
D 5:00 P.M., London time, on the settlement date
Failure to Settle:
In the event that a purchaser shall fail to make payment for
any Note, the Agent will forthwith notify the Principal
Paying Agent and Ford Credit by telephone. Upon the
Principal Paying Agent's receipt of such notification, the
parties will use their best efforts to promptly reverse the
settlement procedures to the extent possible. The account
of the Principal Paying Agent at Euroclear or Cedel, as the
case may be, will be debited in an amount equal to the
amount previously credited thereto in respect of the Note
and the account of the Agent will be credited in like
amount. If Ford Credit shall have received payment in
connection with such failed delivery, it shall promptly
repay such payment to the Principal Paying Agent. Such
debits, credits and repayment will be made on the settlement
date if possible, and in any event not later than the day
following the settlement date. The Principal Paying Agent
and the Depositary will make such revisions to the Temporary
Global Note representing such purchaser's interest as are
necessary to reflect the cancellation of such purchaser's
interest in such Temporary Global Note.
If such failure shall have occurred for any reason other
than default by an Agent in the performance of its
obligations hereunder and under the relevant Agency
Agreement, Ford Credit will reimburse the Agent or the
Principal Paying Agent, as appropriate, on an equitable
basis for its loss of the use of the funds during the period
when they were credited to the account of Ford Credit.
Procedure for Rate Changes:
When Ford Credit has determined to change the interest rates
of Notes being offered, it will promptly advise each Agent,
and each Agent will forthwith suspend solicitation of offers
at those rates. At such time as Ford Credit has advised the
Agents of the new interest rates, the Agents may resume
solicitation of offers. Until such time only "indications
of interest" may be recorded. When the Coordinating Agent
is acting upon behalf of Ford Credit, the Agents may only
accept offers after the rate is confirmed with the
Coordinating Agent. Within five business days after the
first sale at any of such new interest rates, Ford Credit
will file with the Securities and Exchange Commission a
Pricing Supplement to the Prospectus as amended or
supplemented relating to the Notes that reflects such new
interest rates and will deliver copies of such Pricing
Supplement to each Agent and the Principal Paying Agent.
Suspension of Solicitation;
Amendment or Supplement:
Ford Credit may instruct the Agents to suspend solicitation
of purchases at any time. Upon receipt of such
instructions, each Agent will forthwith suspend solicitation
until such time as Ford Credit has advised it that
solicitation of offers may be resumed. If Ford Credit
decides to amend or supplement the Registration Statement or
the Prospectus (other than to change rates), it will
promptly advise each Agent and will furnish each of them
with the proposed amendment or supplement, all consistent
with its obligations under each Agency Agreement. In the
event that at the time the Agents are instructed to suspend
solicitation of offers there shall be any orders for
settlement outstanding, Ford Credit will, consistent with
its obligations under each Agency Agreement, promptly advise
each Agent whether such orders may be settled and whether
copies of the Prospectus as in effect at the time of the
suspension may be delivered in connection with the
settlement of such orders. Ford Credit will have the sole
responsibility for such decision and for any arrangements
which may be made in the event that Ford Credit determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus:
A copy of the Prospectus as most recently amended or
supplemented must accompany each written confirmation of a
sale sent to a customer or his agent. If notice of a change
in the terms of the Notes is received by an Agent between
the time an order for Notes is placed and the time written
confirmation thereof is sent to a customer or his agent,
such confirmation shall be accompanied by a Prospectus
bearing a supplement setting forth the rates in effect when
the order was placed and a supplement setting forth the
revised rates. Subject to the preceding paragraph, each
Agent will make deliveries of the Prospectus as herein
described with respect to all Notes sold by it. The
Principal Paying Agent will make such delivery if a Note is
sold directly by Ford Credit.
Advertising:
Ford Credit will determine with the Agents the amount of
advertising that may be appropriate in offering the Notes.
Advertising expenses will be paid by Ford Credit.
