EXHIBIT 1.1
EXECUTION COPY
FORD CREDIT FLOORPLAN MASTER OWNER TRUST A
SERIES 2004-1
FLOATING RATE ASSET BACKED NOTES
FORD CREDIT FLOOR PLAN CORPORATION
FORD CREDIT FLOORPLAN LLC
(TRANSFERORS)
New York, New York
July 22, 2004
UNDERWRITING AGREEMENT
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated,
On behalf of themselves and as representatives
(the "Representatives") of the
several Underwriters listed on Schedule I hereto
(the "Underwriters")
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introduction. Ford Credit Floorplan Corporation, a Delaware
corporation ("FCF Corp"), and Ford Credit Floorplan LLC, a Delaware limited
liability company ("FCF LLC"), propose to sell to the Underwriters listed on
Schedule I hereto (the "Underwriters"):
(a) $2,904,500,000 principal amount of Series 2004-1 Class A
Floating Rate Asset Backed Notes (the "Class A Notes");
and
(b) $95,500,000 principal amount of Series 2004-1 Class B
Floating Rate Asset Backed Notes (the "Class B Notes"
and, together with the Class A Notes, the "Notes"),
in each case issued by Ford Credit Floorplan Master Owner Trust A (the
"Issuer"). FCF Corp and FCF LLC are sometimes referred to in this Underwriting
Agreement jointly as the "Transferors" and each individually as a "Transferor".
The Issuer is a Delaware statutory trust formed pursuant to a trust agreement
dated as of June 29, 2001 among the Transferors, The Bank of New York, a New
York banking corporation as owner trustee (the "Owner Trustee"), and The Bank of
New York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), as amended by an amended
and restated trust agreement dated as of August 1, 2001 by and among the
Transferors, the Owner Trustee and the Delaware Trustee (the "Trust Agreement").
Each Note will represent an obligation of the Issuer and will
be secured by assets of the Issuer (as hereinafter described). The assets of the
Issuer include, among other things, a pool of dealer floorplan receivables (the
"Receivables") arising from time to time in connection with the purchase and
financing by various retail motor vehicle dealers of their new and used
automobile and light-duty truck inventory and the Related Security and certain
monies due thereunder on or after the close of business on June 30, 2004 (the
"Series Cutoff Date"). The assets of the Issuer as of the Series Cutoff Date
also include an interest in Other Floorplan Assets comprised of a participation
interest in a pool of Receivables existing outside of the Issuer. References
herein to the Receivables include the Receivables held by the Issuer both
directly and indirectly through any participation interest.
The Receivables arising from the purchase by dealers of
Ford-manufactured or -distributed vehicles ("In-Transit Receivables") will be
or have been sold by Ford Motor Company, a Delaware corporation ("Ford"), to
Ford Motor Credit Company, a Delaware corporation ("Ford Credit"), pursuant to
an amended and restated sale and assignment agreement between Ford and Ford
Credit dated as of June 1, 2001 (the "Sale and Assignment Agreement"). All
Receivables have been or will be sold by Ford Credit to each Transferor pursuant
to an amended and restated receivables purchase agreement between Ford Credit
and the applicable Transferor dated as of December 19, 2002 (together, the
"Receivables Purchase Agreements"), and in turn transferred by each Transferor
to the Issuer and serviced for the Issuer by Ford Credit (in such capacity, the
"Servicer") pursuant to an amended and restated transfer and servicing agreement
dated as of December 19, 2002 among the applicable Transferor, the Servicer and
the Issuer (together, the "Transfer and Servicing Agreements"). The Notes will
be issued in an aggregate principal amount of $3,000,000,000. 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. The Base Indenture and the Indenture Supplement are
collectively referred to as the "Indenture." Payments in respect of the Class B
Notes, to the extent specified in the Indenture, are subordinated to the rights
of the holders of the Class A Notes.
Ford Credit has agreed to provide notices and perform on
behalf of the Issuer certain other administrative obligations required of the
Issuer by the Transfer and Servicing Agreements, the Base Indenture and each
indenture supplement for each series of Notes issued by the Issuer pursuant to
an amended and restated administration agreement dated as of December 19, 2002
(the "Administration Agreement"), among Ford Credit, as administrator (in such
capacity, the "Administrator"), the Indenture Trustee and the Issuer. This
Underwriting Agreement, the indemnification agreement dated July 22, 2004 (the
"Indemnification Agreement"), among Ford Credit and the Representatives, the
Sale and Assignment Agreement, the Receivables Purchase
-2-
Agreements, the Transfer and Servicing Agreements, the Indenture, the Trust
Agreement and the Administration Agreement are referred to herein, collectively,
as the "Transaction Documents."
Capitalized terms used herein and not otherwise defined have
the meanings given them in the Transaction Documents.
2. Representations and Warranties of the Transferors. Each
Transferor represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-60756/333-60756-01), including a form of prospectus and such amendments
thereto as may have been required to the date hereof, relating to the Notes and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has been declared effective by the Commission. Such
registration statement, as amended at the Effective Time, including the exhibits
thereto (but excluding Form T-1) and any material incorporated by reference
therein, is hereinafter referred to as the "Registration Statement," and such
forms of prospectus and prospectus supplement, as then amended, and last filed,
or mailed for filing, with the Commission pursuant to Rule 424(b) ("Rule
424(b)") under the Act are hereinafter referred to together as the "Prospectus".
For purposes of this Underwriting Agreement, "Effective Time" means the most
recent date and time as of which such Registration Statement, or the most recent
post-effective amendment thereto, is declared effective by the Commission, and
"Effective Date" means the date of the Effective Time.
(b) On the Effective Date, the Registration Statement
conformed or will conform, as applicable, in all material respects to the
requirements of the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), where applicable, and the rules and regulations of the
Commission under the Act or the Exchange Act, as applicable, and did not or will
not as of the Effective Date, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty does not apply to any statement or omission made in
reliance upon and in conformity with information furnished in writing to the
Transferors by the Underwriters through the Representatives expressly for use in
the Registration Statement relating to the Notes. On the date of this
Underwriting Agreement, the Registration Statement conforms, and at the time of
the last filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"), and, except as aforesaid, neither of
such documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) Other than with respect to any Derived Information (as to
which the Transferor makes no representation), the documents incorporated by
reference in the
-3-
Prospectus, when they were filed with the Commission conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations
thereunder; and any further documents so filed and incorporated by reference in
the Prospectus, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and the rules
and regulations thereunder.
(d) FCF Corp has been duly organized and is validly existing
and in good standing as a corporation under the Delaware General Corporation Law
and is in good standing in each jurisdiction in the United States of America in
which the conduct of its business or the ownership of its property requires such
qualification and FCF LLC has been duly organized and is validly existing and in
good standing as a limited liability company under the Delaware Limited
Liability Company Act and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the ownership of its
property requires such qualification.
(e) The consummation of the transactions contemplated by the
Transaction Documents, and the fulfillment of the terms thereof, will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of FCF Corp or FCF LLC
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or similar agreement or
instrument under which FCF Corp or FCF LLC is a debtor or guarantor, nor will
such action result in any violation of the provisions of the Amended and
Restated Certificate of Incorporation or the Bylaws of FCF Corp or the FCF LLC
Agreement.
(f) This Underwriting Agreement has been duly authorized,
executed and delivered by each Transferor; on the Closing Date (as hereafter
defined), the Notes will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the Issuer
entitled to the benefits provided by the Indenture; on the Closing Date, the
Transaction Documents to which each Transferor is a party will have been duly
authorized, executed and delivered by, and each constitutes the valid and
binding obligation of, each Transferor enforceable in accordance with their
terms except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
and the Notes, the Transaction Documents and this Underwriting Agreement will
each conform with the description thereof in the Prospectus in all material
respects.
(g) When the Indenture Supplement is executed by the parties
thereto, the Indenture will conform in all material respects with the Trust
Indenture Act and at all times thereafter the Indenture will be duly qualified
under the Trust Indenture Act.
3. Purchase, Sale, and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Transferors agree to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Transferors, the
-4-
aggregate principal amounts of the Notes set forth opposite the names of the
Underwriters on Schedule I hereto. The Notes are to be purchased at the
following purchase prices:
Purchase Price (as a % of the
Class aggregate principal amount)
----- -----------------------------
Class A 99.79167%
Class B 99.74167%
Against payment of the purchase price in immediately available
funds drawn to the order of the Transferors, the Transferors will deliver the
Notes to the Representatives, for the account of the Underwriters, at the office
of Xxxxx Xxxxxxxxxx LLP on July 28, 2004 at 10:00 a.m., New York time, or at
such other time not later than seven full business days thereafter as the
Representatives and the Transferors determine, such time being herein referred
to as the "Closing Date." The Notes to be so delivered will be initially
represented by one or more notes registered in the name of Cede & Co., the
nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive Notes will be available only under
limited circumstances.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers), as set forth in the Prospectus.
5. Covenants of the Transferors. Each Transferor covenants and
agrees with the Underwriters:
(a) If required, to file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b) under the Act not later than the
time specified therein. The Transferors will advise the Representatives promptly
of any such filing pursuant to Rule 424(b).
(b) To make no amendment or any supplement to the Registration
Statement or to the Prospectus as amended or supplemented prior to the Closing
Date, without furnishing the Representatives with a copy of the proposed form
thereof and providing the Representatives with a reasonable opportunity to
review the same; and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective, or any supplement to
the Prospectus as amended or supplemented or any amended Prospectus has been
filed or mailed for filing, of the issuance of any stop order by the Commission,
of the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus as amended or supplemented or
for additional information; and, in the event of the issuance of any such stop
order or of any order
-5-
preventing or suspending the use of any prospectus relating to the Notes or
suspending any such qualification, to use promptly its best efforts to obtain
the withdrawal of such order.
(c) Promptly from time to time to take such action as the
Representatives may reasonably request in order to qualify the Notes for
offering and sale under the securities laws of such states as the
Representatives may request and to continue such qualifications in effect so
long as necessary under such laws for the distribution of such Notes; provided
that in connection therewith such Transferor will not be required to qualify as
a foreign corporation in the case of FCF Corp, or as a foreign limited liability
company in the case of FCF LLC, to do business, or to file a general consent to
service of process in any jurisdiction; and provided, further, that the expense
of maintaining any such qualification more than one year from the Closing Date
with respect to such Notes shall be at the Representatives' expense.
(d) To furnish the Underwriters with copies of the
Registration Statement (including exhibits) and copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request; and if, before a period of six months has elapsed
after the Closing Date and the delivery of a prospectus will be at the time
required by law in connection with sales of any such Notes, either (i) any event
occurs as a result of which the Prospectus would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it becomes necessary during
such same period to amend or supplement the Prospectus as amended or
supplemented, to notify the Representatives and to prepare and furnish to the
Representatives as the Representatives may from time to time reasonably request
an amendment or a supplement to the Prospectus that corrects such statement or
omission or effects such compliance; and if any Underwriter is required by law
to deliver a prospectus in connection with sales of any of such Notes at any
time six months or more after the Closing Date, upon the Representatives'
request, but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representatives may reasonably request of an
amended or supplemented prospectus complying with Section 10(a)(3) of the Act.
(e) To make generally available to Noteholders as soon as
practicable, but in any event no later than 18 months after the Closing Date, an
earnings statement of such Transferor complying with Rule 158 under the Act and
covering a period of at least twelve consecutive months beginning from such
Closing Date.
(f) To furnish to the Representatives copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each form of preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representatives may reasonably request.
(g) So long as any of the Notes are outstanding, to furnish
the Representatives copies of all reports or other communications (financial or
other)
-6-
furnished to Noteholders, and to deliver to the Representatives during such same
period, (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission, (ii) such additional
information concerning the business and financial condition of such Transferor
or the Trust as the Representatives may from time to time reasonably request,
and (iii) executed versions of the Transaction Documents, and (iv) copies of
each amendment to any of the Transaction Documents.
(h) To pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including any fees charged by
the rating agency or rating agencies that initially rate the Notes, and the
reasonable expenses incurred in distributing the preliminary prospectus and the
Prospectus (including any amendments and supplements thereto required within six
months from the Closing Date pursuant to Section 5(d) hereof) it being
understood that, except as provided in this subsection (h) and Section 9 hereof,
the Underwriters will pay all their own costs and expenses, including, without
limitation, the cost of printing any agreement among underwriters, transfer
taxes on resale of the Notes by the Underwriters, and any advertising expenses
connected with any offers that the Underwriters may make. Notwithstanding
anything to the contrary contained in the foregoing, (i) the Underwriters will
pay directly (A) all Blue Sky fees and expenses as well as reasonable fees and
expenses of counsel in connection with state securities law qualifications and
any legal investment surveys; and (B) the reasonable fees and expenses of XxXxx
Xxxxxx LLP, Underwriters' counsel and (ii) the Transferors will pay (A) the
filing fee of the Commission with respect to the Notes; (B) all fees of any
rating agencies rating the Notes; (C) all fees and expenses of the Indenture
Trustee, and all reasonable fees and expenses of Xxxxxx Xxxx & Xxxxxx LLP,
counsel to the Indenture Trustee; (D) all fees and expenses of the Owner
Trustee, and all reasonable fees and expenses of Xxxxx, Xxxxxx & Xxxxxx, LLP,
counsel to the Owner Trustee; (E) all fees and expenses of the Delaware Trustee
and all reasonable fees and expenses of Xxxxxxxx, Xxxxxx & Finger, special
Delaware counsel to the Delaware Trustee, (F) all fees and expenses of
PricewaterhouseCoopers LLP relating to the letter referred to in Section 6(a) of
this Underwriting Agreement; (G) all fees and expenses of accountants incurred
in connection with the delivery of any accountants' or auditors' reports
required pursuant to the Indenture or the Transfer and Servicing Agreements; (H)
the cost of printing any term sheets, computational materials, preliminary and
final prospectus relating to the Notes, and the Registration Statement; and (I)
any other fees and expenses incurred in connection with the performance of its
obligations under this Underwriting Agreement.
(i) For a period from the date of this Underwriting Agreement
until the retirement of the Notes, or until such time as the Underwriters cease
to maintain a secondary market in the Notes, whichever occurs first, to deliver
to the Representatives by first class mail or express delivery (i) copies of
each certificate, the annual statements of compliance and the annual independent
certified public accountants' reports furnished to the Owner Trustee and the
Indenture Trustee pursuant to Article III of the related Transfer and Servicing
Agreement, as soon as practicable after such statements and reports are
furnished to the Owner Trustee and the Indenture Trustee, (ii) copies of each
certificate and statement delivered to the Owner Trustee and the Indenture
Trustee pursuant to Section 5.03 of the Indenture Supplement, as soon as
practicable after such
-7-
certificates and statements are furnished to the Owner Trustee and the Indenture
Trustee, and (iii) copies of each amendment to any Transaction Document as soon
as practicable after such amendment is executed by the parties thereto.
(j) On or before the Closing Date, to cause Ford Credit's
computer records relating to the Receivables contained in any Accounts
designated to the Issuer by such Transferor to be marked to show the Issuer's
absolute ownership of the Receivables, and from and after the Closing Date
neither such Transferor nor the Servicer will take any action inconsistent with
the Issuer's ownership of such Receivables other than as permitted by the
related Transfer and Servicing Agreement.
(k) To the extent, if any, that the ratings provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes are conditional upon the furnishing of documents or the taking of any
other actions by such Transferor, to furnish such documents and take any such
other actions.
6. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Notes will be subject
to the accuracy of the representations and warranties on the part of each
Transferor herein, to the accuracy of the statements of officers of each
Transferor made pursuant to the provisions hereof, to the performance by each
Transferor of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the Closing Date, PricewaterhouseCoopers
LLP will furnish to the Representatives a letter dated as of the Closing Date
substantially in the form and substance of the draft to which the
Representatives previously agreed.
(b) On the Closing Date, the Registration Statement will be
effective and no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment will have been issued and no
proceedings for that purpose will have been instituted or, to the knowledge of
either Transferor, be contemplated by the Commission.
(c) The Representatives will have received as of the Closing
Date an officer's certificate signed by the Chairman of the Board, the
President, an Executive Vice President, a Vice President, the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary of each
Transferor representing and warranting that, as of the Closing Date (except to
the extent such certificate relates expressly to another date, in which case
they will be true and correct as of such date or the Closing Date), the
representations and warranties of such Transferor in this Underwriting Agreement
will be true and correct in all material respects, that such Transferor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date in all material
respects, that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of such Transferor, are contemplated by the
Commission, and that neither the Registration Statement nor the Prospectus, as
amended or supplemented, contains any untrue statement of a material fact or
omits to
-8-
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that no such certificate
will apply to any statements or omissions made in reliance upon and in
conformity with (i) information furnished by an Underwriter through the
Representatives expressly for use therein or (ii) the Derived Information (as
defined in Section 8 hereof).
(d) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented, there will 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
Issuer or either of the Transferors, or any material adverse change in the
financial position or results or operations of the Issuer or either of the
Transferors, otherwise than as set forth or contemplated in the Prospectus, that
in any such case makes it impracticable or inadvisable in the Representatives'
reasonable judgment to proceed with the public offering or the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus as amended
or supplemented.
(e) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented, there will not have occurred
any material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of Ford
Credit and its subsidiaries or Ford Motor Company and its subsidiaries, in each
case considered as a whole, or any material adverse change in the financial
position or results or operations of Ford Credit and its subsidiaries or Ford
Motor Company and its subsidiaries, in each case considered as a whole,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, that in any such case makes it impracticable or inadvisable in the
Representatives' reasonable judgment to proceed with the public offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(f) Subsequent to the execution and delivery of this
Underwriting Agreement:
(i) (A) there shall not have occurred a declaration
of a general moratorium on commercial banking activities by
either the Federal or New York State authorities or a material
disruption in the securities settlement or clearance systems
in the United States, which moratorium or disruption remains
in effect and which, in the Representatives' reasonable
judgment, substantially impairs the Underwriters' ability to
settle the transaction; provided that the exercise of such
judgment shall take into account the availability of
alternative means for settlement and the likely duration of
such moratorium or disruption with the understanding that if
the Commission or with respect to a banking moratorium, the
Board of Governors of the Federal Reserve System or New York
State banking authority, as applicable, has unequivocally
stated prior to the Closing Date that the resumption of such
systems will occur within 3 business days of the scheduled
Closing Date for the Notes, the ability to settle the
transaction shall not be deemed to be substantially impaired
and (B) the
-9-
United States shall not have become engaged in hostilities
which have resulted in the declaration of a national emergency
or a declaration of war, which makes it impracticable or
inadvisable, in the Representatives' reasonable judgment, to
proceed with the public offering or the delivery of the Notes
on the terms and in the manner contemplated in the Prospectus
as amended or supplemented or the offering, and
(ii) there shall not have occurred (A) any
suspension or limitation on trading in securities generally on
the New York Stock Exchange or the National Association of
Securities Dealers National Market system, or any setting of
minimum prices for trading on such exchange or market system,
(B) any suspension of trading of any securities of Ford Motor
Company on any exchange or in the over-the-counter market or
(C) any material outbreak or material escalation of
hostilities involving the engagement of armed conflict in
which the United States is involved or (D) any material
adverse change in the general economic, political, legal, tax,
regulatory or financial conditions or currency exchange rates
in the United States (whether resulting from events within or
outside the United States) which, in the Representatives view
has caused a substantial deterioration in the price and/or
value of the Notes, that in the case of clause (A), (B), (C)
or (D), in the mutual reasonable determination of the
Representatives and Ford Credit, the effect of any such event
or circumstance makes it impracticable or inadvisable 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.
(g) Xxxxx X. Xxxxxx, secretary of and counsel to, the
Transferors, or other counsel satisfactory to the Representatives in their
reasonable judgment, will have furnished to the Representatives, her written
opinion, dated as of the Closing Date, in form reasonably satisfactory to the
Representatives in their reasonable judgment, to the effect that:
(i) FCF Corp has been duly organized and is
validly existing and in good standing as a corporation under
the Delaware General Corporation Law and is in good standing
in each jurisdiction in the United States of America in which
the conduct of its business or the ownership of its property
requires such qualification.
(ii) FCF LLC has been duly organized and is
validly existing and in good standing as a limited liability
company under the Delaware Limited Liability Company Act and
is in good standing in each jurisdiction in the United States
of America in which the conduct of its business or the
ownership of its property requires such qualification.
(iii) FCF Corp has the corporate power and
authority to execute, deliver and perform all its obligations
under the Transaction Documents to
-10-
which it is a party under the Delaware General Corporation
Law. The execution and delivery of the Transaction document to
which it is a party and the consummation of the transaction
contemplated thereby have been duly authorized by all
requisite action on the part of FCF Corp under the Delaware
General Corporation Law. Each of the Transaction Documents to
which FCF Corp is a party has been duly executed and delivered
by FCF Corp under the Delaware General Corporation Law.
(iv) FCF LLC has the limited liability company
power and authority to execute, deliver and perform all its
obligations under the Transaction Documents to which it is a
party under the Delaware Limited Liability Company Act. The
execution and delivery of the Transaction document to which it
is a party and the consummation of the transaction
contemplated thereby have been duly authorized by all
requisite action on the part of FCF LLC under the Delaware
Limited Liability Company Act. Each of the Transaction
Documents to which FCF LLC is a party has been duly executed
and delivered by FCF LLC under the Delaware Limited Liability
Company Act.
(v) The consummation of the transactions
contemplated by the Transaction Documents, and the fulfillment
of the terms thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets
of FCF Corp or FCF LLC pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument
known to me under which FCF Corp or FCF LLC is a debtor or
guarantor, nor will such action result in any violation of the
provisions of the Amended and Restated Certificate of
Incorporation or the Bylaws of FCF Corp or the FCF LLC
Agreement. The Registration Statement (other than the
financial statements and other accounting information
contained therein or omitted therefrom, as to which such
counsel may express no opinion), at the time it became
effective, did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(vi) The Registration Statement (other than the
financial statements and other accounting information
contained therein or omitted therefrom, as to which such
counsel may express no opinion), at the time it became
effective, did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(vii) The Prospectus (other than the financial
statements and the other accounting information contained
therein or omitted therefrom and the information contained
therein provided by the Underwriters, as to
-11-
which such counsel may express no opinion) on the date thereof
did not, and on the Closing Date does not, contain any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(viii) Such counsel does not know of any
contract or other document of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to
be described in the Registration Statement or the Prospectus
that is not filed or incorporated by reference or described as
required.
(ix) The Notes and the Transaction Documents
conform in all material respects with the descriptions thereof
contained in the Registration Statement and the Prospectus.
(x) To such counsel's knowledge, there exists
no legal or governmental proceedings pending to which either
FCF Corp or FCF LLC is a party or of which any property of
either FCF Corp or FCF LLC is the subject, and, to my
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(xi) To such counsel's knowledge, there exists
no legal or governmental proceedings threatened or
contemplated by governmental authorities or threatened by
others (a) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by the
Transaction Documents or (b) seeking adversely to affect the
federal income tax attributes of the Notes as described in the
Prospectus under the heading "Material Federal Income Tax
Consequences."
(xii) Immediately prior to the sale or
assignment of the Receivables and the Related Security by FCF
Corp and FCF LLC to the Trust, FCF Corp and FCF LLC, as
applicable, owned the Receivables and the Related Security
free and clear of any lien, security interest or charge. The
assignment of the Receivables and the Related Security, all
documents and instruments relating thereto and all proceeds
thereof to the Trust pursuant to the Transfer and Servicing
Agreements vests in the Trust all interests that were
purported to be conveyed thereby, free and clear or any lien,
security interest or charge, except as specifically permitted
pursuant to the Transfer and Servicing Agreements or other
Transaction Documents.
(xiii) No consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation of the transactions contemplated in the
Transaction Documents, except such as may be required under
the Act, the Trust Indenture Act and other federal
-12-
and state securities laws; filings with respect to the
transfer of the Receivables to FCF Corp and FCF LLC pursuant
to the Receivables Purchase Agreements and to the Trust
pursuant to the Transfer and Servicing Agreements and the
grant of a security interest in the Receivables to the
Indenture Trustee pursuant to the Indenture; and such other
approvals as have been obtained.
(xiv) Neither the issuance or sale of the
Notes, nor the execution and delivery of the Notes or the
Transaction Documents, nor the consummation of any of the
other transactions contemplated in the Transaction Documents,
by FCF Corp or FCF LLC, as the case may be, will contravene
the terms of any material provision of any statute, order or
regulation applicable to FCF Corp or FCF LLC, as the case may
be, where such contravention could have a material adverse
effect on FCF Corp of FCF LLC, as the case may be.
Such opinion may be made subject to the qualifications that
the enforceability of the terms of the Transaction Documents and the Notes 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.
(h) Xxxxx X. Xxxxxx, Secretary of Ford Credit, or other
counsel satisfactory to the Representatives in their reasonable judgment, will
have furnished to the Representatives her written opinion, dated as of the
Closing Date, in form satisfactory to the Representatives in their reasonable
judgment, to the effect that:
(i) Ford Credit has been duly organized and is
validly existing and in good standing as a corporation under
the Delaware General Corporation Law and is in good standing
in each jurisdiction in the United States of America in which
the conduct of its business or the ownership of its property
requires such qualification.
(ii) Ford Credit has the corporate power and
authority to execute, deliver and perform all its obligations
under the Transaction Documents to which it is a party under
the Delaware General Corporation Law. The execution and
delivery of the Transaction document to which it is a party
and the consummation of the transaction contemplated thereby
have been duly authorized by all requisite action on the part
of Ford Credit under the Delaware General Corporation Law.
Each of the Transaction Documents to which Ford Credit is a
party has been duly executed and delivered by Ford Credit
under the Delaware General Corporation Law.
(iii) The consummation of the transactions
contemplated by the Transaction Documents, and the fulfillment
of the terms thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or
-13-
constitute a default under (in each case material to Ford
Credit and its subsidiaries considered as a whole), or result
in the creation or imposition of any lien, charge or
encumbrance (in each case material to Ford Credit and its
subsidiaries considered as a whole) upon any of the property
or assets of Ford Credit pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument
known to me under which Ford Credit is a debtor or guarantor,
nor will such action result in any violation of the provisions
of the Certificate of Incorporation or the By-Laws of Ford
Credit.
(iv) To my knowledge, there exists no legal or
governmental proceedings pending to which Ford Credit is a
party or of which any property of Ford Credit is the subject,
and, to my knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others, other than such proceedings set forth or contemplated
in the Prospectus and other than such proceedings which, in my
opinion, will not (i) have a material adverse effect upon the
general affairs, financial position, net worth or results of
operations (on an annual basis) of Ford Credit and its
subsidiaries considered as a whole, or (ii) materially and
adversely affect the performance by Ford Credit of its
obligations under, or the validity and enforceability of, the
Transaction Documents.
(v) The statements in the Prospectus under the
caption "Material Legal Aspects of the Receivables", to the
extent they constitute matters of the law or legal
conclusions, are correct in all material respects.
(vi) Immediately prior to the sale of the
Receivables by Ford Credit to FCF Corp and FCF LLC, Ford
Credit owned the Receivables free and clear of any lien,
security interest or charge. Ford Credit has duly and validly
assigned each Receivable to FCF Corp or FCF LLC, as
applicable.
(vii) No consent, approval, authorization or
order of any court or governmental agency or body is required,
with respect to Ford Credit, for the consummation of the
transactions contemplated by the Transaction Documents, except
such as may be required under the Act, the Trust Indenture Act
and other federal and state securities laws, filings with
respect to the transfer of the In-Transit Receivables from
Ford to Ford Credit pursuant to the Sale and Assignment
Agreement, the transfer of the Receivables from Ford Credit to
FCF Corp and FCF LLC pursuant to the Receivables Purchase
Agreements and from FCF Corp and FCF LLC to the Trust pursuant
to the Transfer and Servicing Agreements and the grant of a
security interest in the Receivables to the Indenture Trustee
pursuant to the Indenture; and such other approvals as have
been obtained.
-14-
(viii) Neither the issuance or sale of the
Notes, nor the execution and delivery of the Notes or the
Transaction Documents, nor the consummation of any of the
other transactions contemplated in the Transaction Documents,
by Ford Credit will contravene the terms of any material
provision of any statute, order or regulation applicable to
Ford Credit, where such contravention could have a material
adverse effect on Ford Credit and its subsidiaries considered
as a whole.
(i) Xxxxx X. Xxxxxx, Xx., Assistant General Counsel of Ford,
or other counsel satisfactory to the Representatives in their reasonable
judgment, will have furnished to the Representatives his written opinion, dated
as of the Closing Date, in form satisfactory to the Representatives in their
reasonable judgment, to the effect that:
(i) Ford has been duly organized and is validly
existing and in good standing as a corporation under the
Delaware General Corporation Law and is in good standing in
each jurisdiction in the United States of America in which the
conduct of its business or the ownership of its property
requires such qualification.
(ii) Ford has the corporate power and authority
to execute, deliver and perform all its obligations under the
Sale and Assignment Agreement under the Delaware General
Corporation Law. The execution and delivery of the Sale and
Assignment Agreement and the consummation of the transaction
contemplated thereby have been duly authorized by all
requisite action on the part of Ford under the Delaware
General Corporation Law. The Sale and Assignment Agreement has
been duly executed and delivered by Ford under the Delaware
General Corporation Law.
(iii) The consummation of the transactions
contemplated by the Sale and Assignment Agreement, and the
fulfillment of the terms thereof, will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under (in each case material to Ford and
its subsidiaries considered as a whole), or result in the
creation or imposition of any lien, charge or encumbrance (in
each case material to Ford and its subsidiaries considered as
a whole) upon any of the property or assets of Ford pursuant
to the terms of any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or similar
agreement or instrument known to me under which Ford is a
debtor or guarantor, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or the By-Laws of Ford.
(iv) To my knowledge, there exists no legal or
governmental proceedings pending to which Ford is a party or
of which any property of Ford is the subject, and, to my
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others, other
than such proceedings set forth in Ford's periodic filings
with
-15-
the Securities and Exchange Commission and other than such
proceedings which, in my opinion, will not (i) have a material
adverse effect upon the general affairs, financial position,
net worth or results of operations (on an annual basis) of
Ford and its subsidiaries considered as a whole, or (ii)
materially and adversely affect the performance by Ford of its
obligations under, or the validity and enforceability of, the
Sale and Assignment Agreement.
(v) Immediately prior to the sale of the
In-Transit Receivables by Ford to Ford Credit, Ford owned the
In-Transit Receivables free and clear of any lien, security
interest or charge. Ford has duly and validly assigned each
In-Transit Receivable to Ford Credit.
(vi) No consent, approval, authorization or
order of any court or governmental agency or body is required,
with respect to Ford, for the consummation of the transactions
contemplated by the Sale and Assignment Agreement, except for
filings with respect to the transfer of the In-Transit
Receivables from Ford to Ford Credit; and such other approvals
as have been obtained.
(vii) Neither the execution and delivery of the
Sale and Assignment Agreement by Ford nor the consummation of
the transactions contemplated thereby by Ford will contravene
the terms of any material provision of any statute, order or
regulation applicable to Ford, where such contravention could
have a material adverse effect on Ford and its subsidiaries
considered as a whole.
(j) Xxxxx Xxxxxxxxxx LLP (or such other counsel satisfactory
to the Representatives) will have furnished their written opinion, dated the
Closing Date, with respect to the characterization of the transfer of the
In-Transit Receivables by Ford to Ford Credit as a sale, the transfer of the
Receivables by Ford Credit to the applicable Transferor as a sale, with respect
to the characterization of the transfer of the Receivables from the Transferors
to the Issuer, as well as certain related matters, to the nonconsolidation under
the Bankruptcy Code of the assets and liabilities of the Transferors with the
assets and liabilities of Ford Credit in the event that Ford Credit were to
become the subject of a case under the Bankruptcy Code, and with respect to the
security interest of the Trust in the Receivables, and such opinion will be in
substantially the form previously discussed with the Representatives and Ford
Credit and in any event satisfactory in form and in substance to the
Representatives and to Ford Credit.
(k) Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel, will
have furnished an opinion, dated the Closing Date, addressing such matters as
the Representatives and their counsel may reasonably request regarding various
Delaware UCC matters.
(l) Xxxxx Xxxxxxxxxx LLP, federal tax counsel to the
Transferors, will have furnished their written opinion, dated as of the Closing
Date, in form and in
-16-
substance satisfactory to the Representatives in their reasonable judgment, to
the effect that:
(i) the statements in the Registration
Statement and the Prospectus under the headings "Prospectus
Summary -- Tax Status," "Prospectus Supplement Summary -- Tax
Status," "-- ERISA Considerations," "Material Federal Income
Tax Consequences" and "ERISA Considerations," to the extent
that they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(ii) the Issuer will not be classified as an
association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes and
the Class A and Class B Notes will be characterized as debt
for United States federal income tax.
(m) The Representatives will have received an opinion of Xxxxx
Xxxxxxxxxx LLP, addressed to the Representatives, dated the Closing Date, with
respect to the validity of the Notes and such other related matters as the
Representatives will require and the Transferors shall have furnished or caused
to be furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(n) The Representatives will have received an opinion
addressed to the Representatives, the Transferors and the Servicer of Xxxxx,
Xxxxxx & Xxxxxx, LLP, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representatives and to counsel to the
Underwriters, to the effect that:
(i) The Owner Trustee has been duly
incorporated and is validly existing as a banking corporation
in good standing under the laws of the State of New York.
(ii) The Owner Trustee has all necessary power
and authority to execute and deliver the Trust Agreement and
the Certificate of Trust and to execute and deliver, on behalf
of the Issuer, each of the Transfer and Servicing Agreements,
the Indenture and the Administration Agreement. The Owner
Trustee has all necessary power and authority to execute the
Notes on behalf of the Issuer.
(iii) Each of the Trust Agreement and the
Certificate of Trust has been duly executed and delivered by
the Owner Trustee and each of the Transfer and Servicing
Agreements, the Indenture and the Administration Agreement has
been duly executed and delivered by the Owner Trustee on
behalf of the Issuer. Each of the Notes has been duly executed
and delivered by the Owner Trustee on behalf of the Issuer.
(iv) Neither the execution and delivery of the
Trust Agreement and the Certificate of Trust by the Owner
Trustee nor the execution and
-17-
delivery of the Transfer and Servicing Agreements, the
Indenture, the Administration Agreement and the Notes, on
behalf of the Issuer, conflict with or result in a breach of
or constitute a default under the Owner Trustee's
organizational certificate or by-laws, any federal or New York
State law, rule or regulation governing its banking or trust
powers or, to the best of such counsel's knowledge, without
independent investigation, any judgment or order applicable to
the Owner Trustee or its acts, properties or, to the best of
such counsel's knowledge, without independent investigation,
any indenture, mortgage, contract or other agreement or
instrument to which the Owner Trustee in its respective
capacities is a party or by which it is bound.
(v) Neither the execution and delivery by the
Owner Trustee, on behalf of the Issuer, of the Transfer and
Servicing Agreements, the Indenture, the Administration
Agreement or the Notes nor the execution and delivery by the
Owner Trustee of the Trust Agreement or the Certificate of
Trust require the consent, authorization, order or approval
of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any governmental
authority or agency under the laws of the State of New York or
the federal laws of the United States governing the banking or
trust powers of the Owner Trustee.
(vi) To the best of such counsel's knowledge,
without independent investigation, there are no actions or
proceedings pending or threatened against the Owner Trustee in
any court or before any governmental authority, arbitration
board or tribunal of the State of New York which involve the
Trust Agreement, the Certificate of Trust, the Transfer and
Servicing Agreements, the Indenture, the Administration
Agreement or the Notes or would question the right, power or
authority of the Owner Trustee to enter into or perform its
obligations under the Trust Agreement or the Certificate of
Trust or to execute and deliver, on behalf of the Issuer, the
Transfer and Servicing Agreements, the Indenture, the
Administration Agreement or the Notes.
(o) The Representatives will have received an opinion
addressed to the Representatives, the Transferors and the Servicer of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Delaware Trustee, dated the Closing Date and
satisfactory in form and substance to the Representatives and counsel to the
Underwriters, addressing such matters as the Representatives may request and
substantially to the effect that:
(i) The Delaware Trustee is duly incorporated
and validly existing as a banking corporation under the laws
of the State of Delaware.
(ii) The Delaware Trustee has the power and
authority to execute, deliver and perform its obligations
under the Trust Agreement.
-18-
(iii) The Trust Agreement has been duly
authorized, executed and delivered by the Delaware Trustee and
constitutes a legal, valid and binding agreement of the
Delaware Trustee, enforceable against the Delaware Trustee, in
accordance with its terms.
(iv) Neither the execution, delivery and
performance by the Delaware Trustee of the Trust Agreement,
nor the consummation by the Delaware Trustee of any of the
transactions contemplated thereby, requires the consent,
authorization, order or approval of, the giving of notice to,
the registration with or the taking of any other action in
respect of, any governmental authority or agency under the
laws of the State of Delaware or any federal law of the United
States governing the banking or trust powers of the Delaware
Trustee, other than the filing of the Certificate of Trust
with the Secretary of State (which Certificate of Trust has
been duly filed).
(v) Neither the execution, delivery and
performance by the Delaware Trustee of the Trust Agreement,
nor the consummation by the Delaware Trustee of any of the
transactions contemplated thereby, (i) conflicts with or
constitutes a breach of or default under the Certificate of
Trust, the Trust Agreement, the certificate of incorporation
or by-laws of the Delaware Trustee or, to the best of
counsel's knowledge, without independent investigation, any
agreement, indenture or other instrument to which the Delaware
Trustee is a party or by which it or any of its properties may
be bound or (ii) violates any law, governmental rule or
regulation of the State of Delaware or any federal law of the
United States of America governing the banking or trust powers
of the Delaware Trustee, or, to the best of such counsel's
knowledge, without independent investigation, any court decree
applicable to the Delaware Trustee.
(vi) To the best of such counsel's knowledge,
without independent investigation, there are no actions or
proceedings pending or threatened against the Delaware Trustee
in any court or before any governmental authority, arbitration
board or tribunal of the State of Delaware which involve the
Trust Agreement or would question the right, power or
authority of the Delaware Trustee to enter into or perform its
obligations under the Trust Agreement.
(vii) To the best of such counsel's knowledge,
without independent investigation, there exist no liens,
security interests or charges affecting any of the property of
the Issuer resulting from acts or claims against the Delaware
Trustee that are unrelated to the transactions contemplated by
the Trust Agreement.
(p) The Representatives will have received an opinion
addressed to the Representatives, the Transferors and the Servicer of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Issuer, dated the Closing Date and satisfactory
in form and substance to the
-19-
Representatives and counsel to the Underwriters, addressing such matters as the
Representatives may request and substantially to the effect that:
(i) The Issuer has been duly formed and is
validly existing as a statutory trust under the Delaware
Business Trust Act, 12 Del. C. Section 3801 et seq. (the
"Act"), and has the power and authority under the Trust
Agreement and the Act to execute, deliver and perform its
obligations under the Indenture, the Transfer and Servicing
Agreements, the Administration Agreement and the Notes.
(ii) The Trust Agreement is the legal, valid
and binding agreement of the Transferors and the Owner
Trustee, enforceable against the Transferors and the Owner
Trustee, in accordance with its terms.
(iii) The Issuer has the power and authority
under the Trust Agreement and the Act to Grant the Indenture
Trust Estate to the Indenture Trustee pursuant to the
Indenture.
(iv) Each of the Indenture, the Transfer and
Servicing Agreements, the Administration Agreement and the
Notes has been duly authorized by the Issuer.
(v) The issuance of the Transferor Interest has
been duly authorized by the Issuer and the Transferor
Interest, when executed and delivered to and paid for by the
purchasers thereof in accordance with the Trust Agreement,
will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement.
(vi) Neither the execution, delivery and
performance by the Issuer of the Indenture, the Transfer and
Servicing Agreements, the Administration Agreement and the
Notes, nor the consummation by the Issuer of any of the
transactions contemplated thereby, requires the consent or
approval of, the giving of notice to, the registration with,
or the taking of any other action with respect to, any court,
or governmental or regulatory authority or agency under the
laws of the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State (which
Certificate of Trust has been duly filed).
(vii) Neither the execution, delivery and
performance by the Issuer of the Indenture, the Transfer and
Servicing Agreements and the Administration Agreement,
including the execution and delivery of such documents by the
Owner Trustee on behalf of the Issuer, nor the consummation by
the Issuer or the Owner Trustee on behalf of the Issuer of any
of the transactions contemplated thereby, is in violation of
the Trust Agreement or of any law, rule or regulation of the
State of Delaware applicable to the Issuer or the Owner
Trustee or, to the best of such counsel's knowledge, without
independent investigation, any agreement,
-20-
indenture, instrument, order, judgment or decree to which the
Issuer or any of its property is subject.
(viii) To the best of such counsel's knowledge,
without independent investigation, there are no pending or
threatened actions, suits or proceedings affecting the Issuer
before any court or other governmental authority of the State
of Delaware which, if adversely decided, would adversely
affect the Trust Assets or the ability of the Issuer to carry
out the transactions contemplated by the Trust Agreement, the
Indenture, the Transfer and Servicing Agreements and the
Administration Agreement.
(ix) Under the Act, the Issuer constitutes a
separate legal entity, separate and distinct from the holder
of the Transferor Interest and any other entity and, insofar
as the substantive law of the State of Delaware is applicable,
the Issuer rather than the holder of the Transferor Interest
will hold whatever title to such property as may be conveyed
to it from time to time pursuant to the Trust Agreement and
the Transfer and Servicing Agreements, except to the extent
that such Issuer has taken action to dispose of or otherwise
transfer or encumber any such property.
(x) Except as otherwise provided in the Trust
Agreement, under Section 3805(a) of the Act, a holder of a
Transferor Interest has no interest in specific statutory
trust property.
(xi) Under Section 3805(b) of the Act, no
creditor of any holder of a Transferor Interest shall have any
right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Issuer
except in accordance with the terms of the Trust Agreement.
(xii) Under the Trust Agreement, the Owner
Trustee has the authority to execute and deliver on behalf of
the Issuer the Transaction Documents to which the Issuer is a
party.
(q) The Representatives will have received an opinion
addressed to the Representatives, the Transferors and the Servicer of Xxxxxx
Xxxx & Xxxxxx LLP, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representatives and to counsel to the
Underwriters, to the effect that:
(i) The Indenture Trustee has been duly
organized and is validly existing in good standing as a
corporation under the laws of the State of New York.
(ii) The Indenture Trustee has the corporate
power and authority to enter into, and perform its obligations
under, the Indenture Supplement and has duly authorized,
executed and delivered the Indenture. Assuming that the
Indenture is the legal, valid, binding and enforceable
obligation of the other party thereto, the Indenture
constitutes the legal, valid and binding obligation of the
Indenture Trustee
-21-
enforceable against the Indenture Trustee in accordance with
its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to or affecting
enforcement of creditors' rights and the application of
equitable principles in any action, at law or in equity.
(iii) The execution and delivery of the
Indenture and the performance by the Indenture Trustee of its
terms do not conflict with, result in a breach or violation
of, or constitute a default under, any of the terms,
conditions or provisions of any law, governmental rule or
regulation of the United States or the State of New York
governing the banking or trust powers of the Indenture Trustee
or the Organization Certificate or By-laws of the Indenture
Trustee or of any agreement, instrument, order, writ, judgment
or decree known to such counsel to which the Indenture Trustee
is a party or is subject.
(iv) No approval, authorization or other action
by, or filing with, any United States of America or State of
New York governmental authority having jurisdiction over the
banking or trust powers of the Indenture Trustee is required
in connection with its execution and delivery of the Indenture
Supplement.
(v) Based solely on certificates of the
Indenture Trustee, the Notes have been duly authenticated and
delivered by the Indenture Trustee, as Trustee under the
Indenture.
(r) The Representatives will have received an officer's
certificate dated the Closing Date of the Chairman of the Board, the President,
an Executive Vice President, a Vice President, the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of each of Xxxx, Xxxx
Credit, the Transferors and the Servicer in which such officers state that, to
the best of their knowledge after reasonable investigation, the representations
and warranties of Ford and Ford Credit contained in the Sale and Assignment
Agreement, the representations and warranties of Ford Credit and the Transferors
contained in the Receivables Purchase Agreement, the representations and
warranties of the Transferors and the Servicer contained in the Transfer and
Servicing Agreements and the representations and warranties of the Transferors
contained in the Trust Agreement, as the case may be, are true and correct in
all material respects, that Xxxx, Xxxx Credit, each Transferor or the Servicer,
as the case may be, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements at or
prior to the Closing Date in all material respects.
(s) The Class A Notes will have been rated in the highest
rating category for long-term debt obligations, and the Class B Notes will have
been rated no lower than the "A" rating category or its equivalent for long-term
debt obligations, in each case by at least one nationally recognized rating
organization.
-22-
7. Indemnification and Contribution.
(a) Each Transferor will indemnify and hold each Underwriter
harmless against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or any portion of the 8-K Information constituting Receivables
Information or Prospectus Information (as such terms are defined in Section 8
below) 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 such Transferor will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (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); and provided, further, that such Transferor 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 the Underwriters or
such controlling Person results from the fact that such Underwriter sold the
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 as then amended or
supplemented (excluding documents incorporated by reference), whichever is most
recent, if the Transferors have previously furnished copies thereof to such
Underwriter.
The indemnity agreement in this subsection (a) is in addition
to any liability which each Transferor may otherwise have and will extend, upon
the same terms and conditions, to each Person, if any, who controls any
Underwriter within the meaning of the Act.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless each Transferor against any losses, claims, damages
or liabilities to which such Transferor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus or 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 any Underwriter
-23-
through any Representative specifically for use therein or (ii) in the Derived
Information prepared by such Underwriter, and will reimburse any legal or other
expenses reasonably incurred by such Transferor 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 either
Transferor within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under
subsection (a) or subsection (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 subsection (b) above
notify the indemnifying party of the commencement thereof, and in the event that
such indemnified party does not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the indemnifying
party will have no further liability under such subsection to such indemnified
party unless the indemnifying party receives other notice addressed and
delivered in the manner provided in Section 11 hereof of the commencement of
such action; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party in 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 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party will contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Transferors on the one hand and the
Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party will contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Transferors on the one hand and the Underwriters on the other in connection with
the statements or omissions that 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
-24-
other will be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Transferors bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus as
amended or supplemented with respect to the Notes. The relative fault is
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 such 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 supplemented or amended (excluding
documents incorporated by reference), whichever is more recent, if the
Transferors have previously furnished copies thereof to such Underwriter. The
Transferors 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 that 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) are 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 will be required to contribute any amount
pursuant to this Underwriting Agreement and the Indemnification Agreement
(collectively) in excess of the amount by which the total price at which the
Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will 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
hereto.
8. 8-K Information and Derived Information.
(a) Each Underwriter may prepare and provide to prospective
investors "Computational Materials," "ABS Term Sheets" and "Collateral Term
Sheets" (collectively, the "8-K Information") in connection with its offering of
the Notes, as described in the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I and certain affiliates,
as made applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May 24, 1994
(collectively, the "Xxxxxx/PSA Letter"), and the requirements of the No-Action
Letter of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter, the
"No-Action Letters"); subject to the following conditions: (i) such Underwriter
-25-
must comply with the requirements of the No-Action Letters; (ii) for purposes
hereof, "Computational Materials" has the meaning given such term in the
No-Action Letters, but with respect to any Underwriter shall include only those
Computational Materials that have been prepared by such Underwriter for
prospective investors and for purposes hereof and "ABS Term Sheets" and
"Collateral Term Sheets" have the meanings given such terms in the PSA Letter
but with respect to any Underwriter include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared by such Underwriter for
prospective investors; (iii) each Underwriter must provide to the Transferors
any 8-K Information that is provided to investors no later than the second
Business Day preceding the date such 8-K Information is required to be filed
pursuant to the applicable No-Action Letters and each Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed; and (iv) in the event that the Transferors or
any Underwriter discovers an error in the 8-K Information, the Underwriter that
prepared such material must prepare corrected 8-K Information and deliver it to
the Transferors for filing.
(b) The Transferors will cause to be filed with the Commission
one or more current reports on Form 8-K with respect to the 8-K Information.
(c) Each Underwriter will cause PricewaterhouseCoopers LLP to
furnish the Transferors a letter dated no later than the Closing Date, in form
and substance satisfactory to the Transferors, with respect to any 8-K
Information prepared by such Underwriter.
(d) Each Underwriter represents and warrants to, and covenants
with, each Transferor that the Derived Information prepared by such Underwriter
for prospective investors, when read in conjunction with the Prospectus, is not
misleading and not inaccurate in any material respect.
For purposes of this Underwriting Agreement, the term "Derived Information"
means such portion, if any, of the 8-K Information that is not Receivables
Information or Prospectus Information; provided, however, that 8-K Information
that is not Receivables Information or Prospectus Information will not
constitute Derived Information to the extent such information is inaccurate or
misleading in any material respect directly as a result of its being based on
Receivables Information or Prospectus Information that is inaccurate or
misleading in any material respect. "Receivables Information" means any
information furnished by magnetic tape, diskette or any other computer readable
format, or in writing to the Underwriters by the Transferors or Ford Credit
regarding the Receivables and "Prospectus Information" means the information
contained in (but not incorporated by reference in) any preliminary prospectus;
provided, however, that if any information that would otherwise constitute
Receivables Information or Prospectus Information is presented in the 8-K
Information in a way that is either inaccurate or misleading in any material
respect when read in conjunction with the Prospectus and would not be inaccurate
or misleading in any material respect but for the manner in which such
information is presented, such information will not be Receivables Information
or Prospectus Information.
-26-
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of each Transferor (including, without limitation, Section 5(k)) or
its officers and of the Underwriters set forth in or made pursuant to this
Underwriting Agreement will remain in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
any Underwriter or such Transferor or any of their respective representatives,
officers or directors of any controlling Person, and will survive delivery of
and payment for the Notes.
10. Failure to Purchase the Notes. If the purchase of the
Notes is not consummated by the Underwriters because the condition set forth in
Section 6(f) has occurred, then the Transferors will not have any liability to
the Underwriters with respect to the Notes except as provided in Section 5(h)
and Section 7 hereof; but if for any other reason any Notes are not delivered to
the Underwriters as provided herein, the Transferors will be liable to reimburse
the Underwriters, through the Representatives, for all out-of-pocket expenses,
including counsel fees and disbursements reasonably incurred by the Underwriters
in making preparations for the offering of the Notes, but the Transferors will
then have no further liability to any Underwriter with respect to the Notes
except as provided in Section 5(h) and Section 7 hereof. If any Underwriter or
Underwriters default on their obligations to purchase Notes hereunder and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Notes, the Representatives may make arrangements
satisfactory to the Transferors for the purchase of such Notes by other Persons,
including the non-defaulting Underwriter or Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriter or
Underwriters will be obligated, in proportion to their commitments hereunder, to
purchase the Notes that such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Notes with respect to which such default or
defaults occur exceeds 10% of the total principal amount of the Notes and
arrangements satisfactory to the non-defaulting Underwriter or Underwriters and
the Transferors for the purchase of such Notes by other Persons are not made
within 36 hours after such default, this Underwriting Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the
Transferors, except as provided in Section 5(h) and Section 7 thereof. As used
in this Underwriting Agreement, the term "Underwriter" includes any Person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter or Underwriters from liability for its default.
11. Notices. All communications hereunder will be in writing
and will be mailed, delivered or sent by facsimile transmission or other
electronic means. Communications to the Representatives or the Underwriters will
be given to the Representatives at (i) Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx,
facsimile number (000) 000-0000, (ii) Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated, 4 World Financial Center, 10th Floor, New York, New York 10080,
Attention: General Counsel, facsimile number (000) 000-0000 and (iii) Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
-27-
York 10036, Attention: Xxxxxx Xxxxxxx, facsimile number (000) 000-0000 with a
copy to Xxxxxx Xxxxxxx & Co. Incorporated, 1585 Broadway, New York, New York
19936, Attention: Xxxxxxxx Xxxxx. Communications to either Transferor will be
given to such Transferor c/o Ford Credit SPE Management Office, c/o Ford Motor
Company, World Headquarters ---- Suite 322-E1, Xxx Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx, 00000 Attention: Corporate Secretary, facsimile number (000) 000-0000.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the Underwriters and the Transferors and their respective
successors and the officers and directors and controlling Persons referred to in
Section 7, and no other Person will have any right or obligations hereunder.
13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT IS TO BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE 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).
14. Counterparts. This Underwriting Agreement may be executed
by each of the parties hereto in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, will be deemed to be an original, but all such
counterparts will together constitute but one and the same instrument.
-28-
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance hereof will constitute a binding agreement.
Very truly yours,
FORD CREDIT FLOORPLAN
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
FORD CREDIT FLOORPLAN LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
-29-
Accepted in New York, New York,
as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: Vice President
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
Acting on behalf of themselves and as the
Representatives of the Several Underwriters
-30-
SCHEDULE I
Initial Principal Initial Principal Xxxxxx
Xxxxxx of of
Underwriter Class A Notes Class B Notes
----------- ----------------- ------------------------
Citigroup Global Markets Inc. ......................... $677,717,000 $31,833,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated..... $677,717,000 $31,833,000
Xxxxxx Xxxxxxx & Co. Incorporated...................... $677,716,000 $31,834,000
HSBC Securities (USA), Inc. ........................... $290,450,000 $0
Xxxxxx Brothers Inc. .................................. $290,450,000 $0
UBS Securities LLC..................................... $290,450,000 $0
I-1
