EXHIBIT 10.1
EXECUTION COPY
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2004-1
FLOATING RATE ASSET BACKED NOTES
INDEMNIFICATION AGREEMENT
Indemnification Agreement, dated July 22, 2004, among Ford
Motor Credit Company (the "Servicer" or "Ford Credit"), Citigroup Global Markets
Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, in their individual capacities and as representatives (the
"Representatives") of the several underwriters (collectively, the
"Underwriters") named in Schedule I to the Underwriting Agreement (as
hereinafter defined).
Ford Credit Floorplan Corporation ("FCF Corp") and Ford Credit
Floorplan LLC ("FCF LLC" and, together with FCF Corp, collectively, the
"Transferors" and individually, a "Transferor") and the Underwriters have
entered into an Underwriting Agreement (the "Underwriting Agreement") dated July
22, 2004, providing for the sale by the Transferors to the Underwriters of:
(a) the Series 2004-1 Class A Floating Rate Asset Backed
Notes (the "Class A Notes") and
(b) the Series 2004-1 Class B Floating Rate Backed Notes
(the "Class B Notes" and, together with the Class A
Notes, the "Notes"), each to be issued by Ford Credit
Floorplan Master Owner Trust A (the "Issuer").
The Notes will be secured by the Receivables and certain other
property of the Issuer. The Notes will be issued pursuant to an indenture, dated
as of August 1, 2001 (the "Base Indenture"), between the Issuer and JPMorgan
Chase Bank, formerly known as The Chase Manhattan Bank, as indenture trustee
(the "Indenture Trustee"), as supplemented by the Series 2004-1 supplement to
the Base Indenture, to be dated as of July 1, 2004 (the "Indenture Supplement"),
between the Issuer and the Indenture Trustee. Payments in respect of the Class B
Notes are, to the extent specified in the Indenture, subordinated to the rights
of the holders of the Class A Notes.
This Indemnification Agreement is being entered into by the
parties hereto as a condition to the Underwriting Agreement and to induce the
Underwriters to enter into the same. The provisions of this Indemnification
Agreement relate solely to the Notes.
Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Underwriting Agreement.
1. Indemnification and Contribution.
(a) Ford Credit will indemnify and hold each
Underwriter harmless against any losses, claims, damages, or liabilities, joint
or several, to which such
Underwriter may become subject, under the Securities Act of 1933, as amended
(the "Act") or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any related preliminary prospectus or any portion of the 8-K Information
constituting Receivables Information or Prospectus Information, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that Ford Credit will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon (i) an untrue statement or alleged untrue statement in, or omission or
alleged omission from, any of such documents in reliance upon and in conformity
with written information furnished to Ford Credit or either Transferor by any
Underwriter through any Representative specifically for use therein or (ii) the
Derived Information (as defined in Section 8 of the Underwriting Agreement); and
provided, further, that Ford Credit shall not be liable to any Underwriter or
any Person controlling any Underwriter under the indemnity agreement in this
subsection (a) with respect to any of such documents to the extent that any such
loss, claim, damage or liability of such Underwriter or such controlling Person
results from the fact that such Underwriter sold Notes to a Person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
the Transferors had previously furnished copies thereof to such Underwriter.
The indemnity agreement in this subsection (a) is in addition
to any liability which Ford Credit may otherwise have and extends, upon the same
terms and conditions, to each Person, if any, who controls any Underwriter
within the meaning of the Act.
(b) Each Underwriter, severally and not jointly,
will indemnify and hold harmless Ford Credit against any losses, claims, damages
or liabilities to which Ford Credit may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any related preliminary
prospectus, or the 8-K Information, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made (i) in
reliance upon and in conformity with written information furnished to Ford
Credit or either Transferor by such Underwriter through any Representative
specifically for use therein or (ii) in the Derived Information (as such term is
defined in Section 8 of the Underwriting Agreement) prepared by such
2
Underwriter, and will reimburse any legal or other expenses reasonably incurred
by Ford Credit in connection with investigating or defending any such action or
claim.
The indemnity agreement in this subsection (b) is in addition
to any liability which each Underwriter may otherwise have and extends upon the
same terms and conditions, to each Person, if any, who controls Ford Credit
within the meaning of the Act.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) of written notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof, and in the event that such
indemnified party shall not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the indemnifying
party shall have no further liability under such subsection to such indemnified
party unless the indemnifying party shall have received other notice addressed
and delivered in the manner provided in Section 3 hereof of the commencement of
such action; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party in its reasonable judgment, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this
Section 1 is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party 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 Transferors on the one hand and the
Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party 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
Transferors on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages, or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Transferors on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the
3
Transferors bear to the total underwriting discounts and commissions received by
the Underwriters as set forth in the table on the cover page of the Prospectus
as amended or supplemented. The relative fault 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 Transferors or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission, including, with respect
to any Underwriter, the extent to which such losses, claims, damages or
liabilities (or actions in respect thereof) result from the fact that such
Underwriter sold Notes to a Person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus or the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference), whichever is most recent, if the Transferors had previously
furnished copies thereof to such Underwriter. Ford Credit and the Underwriters,
severally and not jointly, agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages,
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount pursuant to this
Indemnification Agreement and the Underwriting Agreement (collectively) in
excess of the amount by which the total price at which the Notes underwritten by
it and distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several and not joint in proportion to their
respective underwriting obligations with respect to the Notes as set forth in
Schedule I to the Underwriting Agreement.
2. Payment of Expenses. Ford Credit will pay all
expenses incident to the performance of the obligations of each Transferor
pursuant to Sections 5(d), 5(h) and 10 of the Underwriting Agreement.
3. Notices. All communications hereunder will be in
writing and, if sent to the Representative or the Underwriters, will be mailed,
delivered or sent by facsimile transmission and confirmed to the Representatives
at (i) Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, (ii)
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4 World Financial Center,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇ and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
4
and if sent to Ford Credit, will be mailed, delivered or sent by facsimile
transmission and confirmed to it at Ford Motor Credit Company, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
4. Counterparts. This Indemnification Agreement may be
executed in any number of counterparts, each of which when so executed will be
deemed to be an original, but all of such counterparts will together constitute
one instrument.
5. GOVERNING LAW. THIS INDEMNIFICATION AGREEMENT IS TO
BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE STATE OF NEW YORK (INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK, WITHOUT OTHERWISE GIVING REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES).
5
IN WITNESS WHEREOF, the parties hereto have entered into this
Indemnification Agreement as of the date first above written.
FORD MOTOR CREDIT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
Acting on behalf of themselves and as the
Representatives of the Several Underwriters
6
