EXHIBIT 1.1
FORD CREDIT AUTO RECEIVABLES TWO LLC
ASSET-BACKED SECURITIES
UNDERWRITING AGREEMENT
[_____________], 200[_]
Each of the Underwriters party to
this agreement,
as an Underwriter and as a Representative
of the other Underwriters named in
the Terms Annex
Ladies and Gentlemen:
1. Introduction. Ford Credit Auto Receivables Two LLC, a Delaware limited
liability company (the "Depositor"), formed under the Amended and Restated
Certificate of Formation of Ford Credit Auto Receivables Two LLC (such
certificate, the "Certificate of Formation") and operating pursuant to an
Amended and Restated Limited Liability Company Agreement, dated as of March 1,
2001, executed by Ford Credit, as sole member (the "Limited Liability Company
Agreement"), proposes to sell the notes (the "Notes") described in the Terms
Annex (the "Terms Annex") that is attached as Annex A and incorporated into and
made part of this agreement (this agreement including the Terms Annex, this
"Agreement"). The Notes registered with the Securities and Exchange Commission
(the "Commission" and such Notes, as set forth in the Terms Annex, the "Publicly
Registered Notes") will be sold to the applicable underwriters listed in the
Terms Annex through the representatives (as set forth in the Terms Annex, the
"Representatives") signing this Agreement on behalf of themselves and such
underwriters (the Representatives and the other underwriters of the Publicly
Registered Notes, the "Public Note Underwriters"). The Notes exempt from
registration pursuant to Section 3(a)(3) of the Securities Act of 1933, as
amended (the "Act"), as set forth in the Terms Annex, will be sold to the
applicable underwriters listed in the Terms Annex (the "Exempt Note
Underwriters" and together with the Public Note Underwriters, the
"Underwriters").
The Notes will be issued by a Delaware statutory trust (the "Trust")
identified in the Terms Annex and established under a trust agreement (the
"Trust Agreement") between the Depositor and an owner trustee (the "Owner
Trustee"), and will be secured by a pool of retail installment sale contracts
for new and used cars and light trucks (the "Receivables") and certain other
property of the Trust. The Notes will be issued pursuant to an indenture (the
"Indenture") between the Trust and an indenture trustee (the "Indenture
Trustee").
Ford Motor Credit Company, a Delaware corporation ("Ford Credit") will
sell the Receivables to the Depositor pursuant to a purchase agreement (the
"Purchase Agreement") and the Depositor will sell the Receivables to the Trust
pursuant to a sale and servicing agreement (the "Sale and Servicing Agreement").
Ford Credit (in such capacity, the "Servicer") will service the Receivables on
behalf of the Trust pursuant to the Sale and Servicing Agreement. Ford Credit
will also act as administrator for the Trust pursuant to an administration
agreement (the "Administration Agreement") among Ford Credit, the Trust and the
Indenture Trustee.
In order to perfect the security interest of the Indenture Trustee in
certain accounts, the Trust, the Indenture Trustee and the financial institution
acting as the securities intermediary will enter into an account control
agreement (the "Control Agreement").
The Receivables pay interest at a fixed rate. If any of the Notes are
issued as floating rate notes, the Trust will enter into one or more interest
rate swap or cap agreements (each, an "Interest Rate Swap") to hedge its
interest rate risk.
Ford Credit and the Representatives have entered into an
indemnification agreement (the "Indemnification Agreement").
The Trust Agreement, the Purchase Agreement, the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the Control Agreement
and the Interest Rate Swaps (if any) are collectively called the "Basic
Documents." The Basic Documents, the Indemnification Agreement and this
Agreement are collectively called the "Transaction Documents."
The Depositor has prepared and filed with the Commission under the Act
and the rules and regulations of the Commission under the Act (the "Rules and
Regulations"), a registration statement on Form S-3 (having the registration
number stated in the Terms Annex), including a form of prospectus and all
amendments that are required as of the date of this Agreement relating to the
Publicly Registered Notes and the offering of notes from time to time in
accordance with Rule 415 under the Act. The registration statement, as amended,
has been declared effective by the Commission. Such registration statement, as
amended at the time of effectiveness, including all material incorporated by
reference therein, is referred to in this Agreement as the "Registration
Statement." The Depositor also has filed with, or will file with, the Commission
pursuant to Rule 424(b) ("Rule 424(b)") under the Act a prospectus supplement
relating to the Notes (the "Prospectus Supplement"). The prospectus relating to
the Notes in the form first required to be filed to satisfy the condition set
forth in Rule 172(c) under the Act is referred to as the "Base Prospectus", and
the Base Prospectus as supplemented by the Prospectus Supplement required to be
filed to satisfy the condition set forth in Rule 172(c) under the Act is
referred to as the "Prospectus." The Depositor also has prepared an offering
memorandum (an "Offering Memorandum") relating to the Class A-1 Notes exempt
from registration by Section 3(a)(3) of the Act (the "Exempt Notes," and
together with the Publicly Registered Notes, the "Underwritten Notes"). Any
reference in this Agreement to the Registration Statement, any preliminary
prospectus used in connection
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with the offering of the Notes described in the Terms Annex (the "Preliminary
Prospectus"), preliminary offering memorandum relating to the Exempt Notes (the
"Preliminary Offering Memorandum"), the Prospectus or the Offering Memorandum
will be deemed to refer to and include any exhibits thereto and any documents
incorporated by reference therein, as of the effective date of the Registration
Statement or the date of such Preliminary Prospectus, Preliminary Offering
Memorandum, Prospectus or Offering Memorandum, as the case may be. The Depositor
has posted certain static pool information (the "Static Pool Information")
relating to prior securitized pools to the website listed in the Prospectus
Supplement under "Transaction Parties-Static Pool Information."
At or prior to the time that the Representatives first sold the Notes
to investors, which time will be specified in the Terms Annex (such time, the
"Time of Sale"), the Depositor had prepared the Preliminary Prospectus and the
information (including any "free-writing prospectus," as defined pursuant to
Rule 405 under the Act (a "Free Writing Prospectus")) listed in the Terms Annex
under "Time of Sale Information" (collectively, the "Time of Sale Information").
If, subsequent to the date of this Agreement, the Depositor and the
Representatives determine that such information included an untrue statement of
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and the Representatives advise the Depositor that they have
reformed the purchase contracts with investors of the Notes, then "Time of Sale
Information" will refer to the information available to purchasers at the time
of entry into the first reformed purchase contract, including any information
that corrects such material misstatements or omissions (such new information,
the "Corrective Information") and the Terms Annex will be deemed to be amended
to include such Corrective Information in the Time of Sale Information.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to and agrees with the Underwriters that, as of the date
of this Agreement:
(a) Registration Statement and Prospectus. The Registration Statement
has been declared effective by the Commission under the Act; no stop order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose has been instituted or, to the
knowledge of the Depositor, threatened by the Commission, and the Registration
Statement and the Prospectus and any amendment thereto, at the time the
Registration Statement became effective complied, and as of the date of the
Prospectus Supplement will comply, in all material respects with the Act and the
Registration Statement did not at the time the Registration Statement became
effective and will not on the Closing Date contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and as of the date of
the Prospectus and any amendment or supplement thereto and on the date of this
Agreement, the Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
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provided that the Depositor makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Depositor in writing by
such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement
thereto; and the conditions to the use by the Depositor of a registration
statement on Form S-3 under the Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Registration Statement and the
Prospectus. When the Indenture is executed by all the parties to the Indenture,
it will conform in all material respects with the Trust Indenture Act of 1939,
as amended (the "TIA") and at all times thereafter will be duly qualified under
the TIA.
(b) Time of Sale Information. The Time of Sale Information, at the
Time of Sale did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Depositor makes no
representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information furnished to the Depositor by
an Underwriter through the Representatives expressly for use in such Time of
Sale Information, provided that if subsequent to the Time of Sale but prior to
or on the Closing Date the Depositor and the Representatives determine that the
Time of Sale Information included an untrue statement of material fact or
omitted to state a material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading, for
purposes of this paragraph as it refers to the Closing Date, Time of Sale
Information will include information available to purchasers on the Closing Date
including Corrective Information.
(c) Trust Free Writing Prospectus. Other than the Preliminary
Prospectus and the Prospectus, the Depositor (including its agents and
representatives other than the Underwriters in their capacity as such) has not
prepared or authorized, and will not prepare or authorize any "written
communication" (as defined in Rule 405 under the Act) that constitutes an offer
to sell or solicitation of an offer to buy the Notes other than the documents,
if any, listed as a Trust Free Writing Prospectus (each, a "Trust Free Writing
Prospectus") under "Time of Sale Information" in the Terms Annex. Each such
Trust Free Writing Prospectus complied in all material respects with the Act,
has been filed in accordance with Section 8 (to the extent required by Rule 433
under the Act) and, when taken together with the Preliminary Prospectus, such
Trust Free Writing Prospectus, did not at the Time of Sale, and at the Closing
Date will not, contain any untrue statements of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that
the Depositor makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information
furnished to the Depositor by an Underwriter through the Representatives
expressly for use in such Trust Free Writing Prospectus.
(d) Exempt Notes. The Exempt Notes specified in the Terms Annex (if
any) constitute exempt securities under Section 3(a)(3) of the Act, and
registration of
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the Exempt Notes under the Act is not required in connection with their offer,
issuance, sale or delivery.
(e) Documents Incorporated by Reference. The documents incorporated by
reference in the Prospectus, when they were filed with the Commission, conformed
in all material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (collectively, the
"Exchange Act"); 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.
(f) Organization and Qualification. The Depositor is duly organized
and validly existing as a limited liability company in good standing under the
laws of the State of Delaware. The Depositor is qualified as a foreign limited
liability company in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect on
the Depositor's ability to perform its obligations under the Transaction
Documents to which it is a party.
(g) No Conflicts and No Violation. The consummation of the
transactions contemplated by the Transaction Documents to which the Depositor is
a party and the fulfillment of the terms of the Transaction Documents to which
the Depositor is a party will not (i) conflict with or result in a breach of the
terms or provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument
under which the Depositor is a debtor or guarantor, (ii) result in the creation
or imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Depositor pursuant to the terms of any such indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument
(other than the lien pursuant to the Sale and Servicing Agreement), (iii)
violate the Certificate of Formation or Limited Liability Company Agreement, or
(iv) violate any law or, to the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties, in each case which
conflict, breach, default, lien, or violation would reasonably be expected to
have a material adverse effect on the Depositor's ability to perform its
obligations under the Transaction Documents.
(h) Power, Authorization and Enforceability. The Depositor has the
power and authority to execute, deliver and perform the terms of each of the
Transaction Documents to which it is a party. The Depositor has authorized the
execution, delivery and performance of the terms of this Agreement and on the
Closing Date, the other Transaction Documents to which the Depositor will be a
party will have been duly authorized, executed and delivered by the Depositor.
Each of the Transaction Documents to which the Depositor will be a party is the
legal, valid and binding obligation of the
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Depositor enforceable against the Depositor, except as may be limited by
insolvency, bankruptcy, reorganization or other laws relating to the enforcement
of creditors' rights generally or by general equitable principles.
(i) Conformity of Transaction Documents. The Transaction Documents
will conform to their descriptions in the Prospectus and in the Offering
Memorandum in all material respects.
(j) Enforceability of Notes. On the Closing Date, the Notes will have
been duly executed, issued and delivered, and when authenticated by the
Indenture Trustee and paid for by the Underwriters in accordance with this
Agreement, will constitute valid and binding obligations of the Trust entitled
to the benefits provided by the Indenture.
(k) Schedule of Receivables. The Schedule of Receivables to be
delivered by Ford Credit as sponsor under the Purchase Agreement will be true
and correct in all material respects as of the date specified in the Schedule of
Receivables.
(l) Representations and Warranties in the Basic Documents. The
representations and warranties of the Depositor in the Basic Documents to which
it will be a party will be true and correct in all material respects as of the
date specified.
(m) Ineligible Issuer. The Depositor is not, and on the date on which
the first bona fide offer of the Notes is made will not be, an "ineligible
issuer", as defined in Rule 405 under the Act.
(n) Static Pool Information. The Static Pool Information will be true
and correct in all material respects as of the date of the Preliminary
Prospectus and as of the date of the Prospectus.
3. Purchase, Sale, and Delivery of the Notes. On the Closing Date, on the
basis of the representations, warranties and agreements contained in this
Agreement, but subject to the terms and conditions set forth in this Agreement,
the Depositor agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Depositor, the respective
principal amounts of the Notes set forth opposite such Underwriter's name in the
Terms Annex. The Notes will be purchased by the Underwriters at the purchase
prices set forth in the Terms Annex.
Payment of the Notes will be made to the Depositor or to its order by
wire transfer of immediately available funds at 10:00 a.m., New York City time,
on the closing date specified in the Terms Annex (the "Closing Date") or at such
other time not later than seven (7) full Business Days after such specified
closing date as the Representatives and the Depositor may determine.
Payment for the Exempt Notes will be made against delivery to the
Exempt Note Underwriters at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP at 9:00 a.m., New York time, on the Closing Date, and payment for the
Publicly Registered Notes will be made against delivery to the Representatives,
for the account of
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the Underwriters, at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP on
the Closing Date. Each of 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 its participating members.
4. Offering by Underwriters. The Depositor understands that the Public Note
Underwriters intend to offer the Publicly Registered Notes for sale to the
public (which may include selected dealers) upon the terms set forth in the
Prospectus and that the Exempt Note Underwriters intend to offer the Exempt
Notes (if any) for sale to institutional investors upon the terms set forth in
the Offering Memorandum.
5. Covenants of the Depositor. The Depositor covenants and agrees with the
Underwriters:
(a) Preparation of Offering Documents. Immediately following the
execution of this Agreement, to prepare a prospectus supplement and an Offering
Memorandum, each setting forth such information from the Terms Annex and such
other information as the Depositor deems appropriate.
(b) Filing of Prospectus and any Trust Free Writing Prospectus. If
required, to transmit the Prospectus to the Commission within the applicable
time period prescribed for such filings under the Rules and Regulations by a
means reasonably calculated to result in a timely filing with the Commission
pursuant to Rule 424(b) and subject to Section 8, file any Trust Free Writing
Prospectuses to the extent required by Rule 433 under the Act.
(c) Delivery of Proposed Amendment or Supplement. Prior to the Closing
Date, to furnish the Representatives with a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus and to give the
Representatives reasonable opportunity to review such amendment or supplement
before it is filed.
(d) Notice to the Representatives. Prior to the Closing Date, to
advise the Representatives promptly (i) when any amendment to the Registration
Statement or supplement to the Prospectus is filed or becomes effective, (ii) of
any request by the Commission for any amendment to the Registration Statement or
any supplement to the Prospectus, (iii) of any stop order issued by the
Commission suspending the effectiveness of the Registration Statement or the
initiation or threat of any proceeding for that purpose, and (iv) of the receipt
of any notification with respect to any suspension of the qualification of the
Underwritten Notes for offer and sale in any jurisdiction or the initiation or
threat of any proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order or notification and, if issued, to
promptly use its best efforts to obtain its withdrawal.
(e) Blue Sky Compliance. To endeavor to qualify the Underwritten Notes
for offer and sale under the securities laws of such states as the
Representatives
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may reasonably request and to continue such qualifications in effect so long as
necessary under such laws for the distribution of such Underwritten Notes,
provided that the Depositor will not be required to qualify as a foreign limited
liability company to do business, or to file a general consent to service of
process in any jurisdiction, and provided further that the expense of
maintaining any such qualification more than one year from the Closing Date with
respect to the Publicly Registered Notes will be at the Representatives' expense
and the expense of maintaining any such qualification with respect to the Exempt
Notes will be at the expense of the Exempt Note Underwriters.
(f) Delivery of Prospectus and Offering Memorandum. To furnish the
Underwriters with copies of the Prospectus and the Offering Memorandum as
amended or supplemented in such quantities as the Representatives may reasonably
request prior to the Closing Date. If the delivery of a prospectus or offering
document is required by law in connection with sales of any Underwritten Notes
in the six-month period following the Closing Date, and either (i) an event has
occurred as a result of which the Prospectus or the Offering Memorandum would
include an untrue statement of a material fact or omit to state a 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 is necessary during such same period to amend or supplement the
Prospectus or the Offering Memorandum 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 or the Offering Memorandum that will correct such
statement or omission or effect such compliance. If an Underwriter is required
by law to deliver a prospectus or other offering document in connection with
sales of any Underwritten Notes at any time six months or more after the Closing
Date, upon the Representatives' request, but at the expense of such Underwriter,
the Depositor will prepare and deliver to such Underwriter as many copies as the
Representatives may reasonably request of an amended or supplemented prospectus
or offering document complying with the Act.
(g) Earnings Statement. To make generally available to Noteholders as
soon as practicable, but in any event no later than eighteen months after the
Closing Date, an earnings statement for the Trust complying with Rule 158 under
the Act and covering a period of at least twelve consecutive months beginning
after the Closing Date; provided that this covenant may be satisfied by posting
the monthly investor report for the Trust on a publicly available website.
(h) Payment of Costs and Expenses. To pay or cause to be paid the
following costs and expenses incident to the performance of its obligations
hereunder: (i) the Commission's filing fees with respect to the Publicly
Registered Notes; (ii) all fees of any rating agencies rating the Notes; (iii)
all fees and expenses of the Indenture Trustee and the Owner Trustee; (iv) all
reasonable fees and expenses of counsel to the Indenture Trustee; (v) all
reasonable fees and expenses of counsel to the Owner Trustee; (vi) all fees and
expenses of the independent accountants relating to the letter referred to in
Section 6(a); (vii) 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 Sale and Servicing Agreement; (viii) the cost of printing
any preliminary and final
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prospectuses and any preliminary and final offering memoranda provided to
investors (including any amendments and supplements thereto required within six
months from the Closing Date pursuant to Section 5(f)) relating to the Notes and
the Registration Statement; and (ix) any other fees and expenses incurred in
connection with the performance of its obligations hereunder.
The Underwriters will pay the following costs and expenses incident to
the performance of their obligations under this Agreement: (i) 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
(ii) the reasonable fees and expenses of counsel to the Underwriters. Except as
provided in this subsection (h) and Section 10, the Underwriters will pay all
their own costs and expenses, including the cost of printing any agreement among
underwriters, transfer taxes on resale of the Underwritten Notes by the
Underwriters, and any advertising expenses in connection with any offers that
the Underwriters may make.
(i) Delivery of Reports. From the date of this Agreement until the
retirement of the Underwritten Notes, or until such time as the Representatives
advise the Depositor that the Underwriters have ceased to maintain a secondary
market in the Publicly Registered Notes, whichever occurs first, to deliver to
the Representatives upon request to the extent not otherwise available from any
publicly available source copies of: (i) the annual statement of compliance, the
Servicer's report on its assessment of compliance with the minimum servicing
criteria and the related attestation report delivered pursuant to Article III of
the Sale and Servicing Agreement, (ii) each certificate and the annual
statements of compliance delivered to the Indenture Trustee pursuant to Article
III of the Indenture, (iii) each material amendment to any Basic Document and
(iv) each monthly investor report for the Trust.
(j) Cooperation with Rating Agencies. If 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 the Depositor, the Depositor will furnish such documents and
take any such other actions.
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Underwritten Notes will be subject
to the accuracy of the representations and warranties of the Depositor in this
Agreement, to the accuracy of the statements of officers of the Depositor and
Ford Credit made pursuant to the provisions of this Agreement, to the
performance by the Depositor of its obligations under this Agreement and to the
following additional conditions precedent:
(a) Accountant's Letter. On or prior to the Closing Date,
PricewaterhouseCoopers LLP (or other independent accountants reasonably
acceptable to the Representatives) will have furnished 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, concerning information
at the Time of Sale and as of the Closing Date.
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(b) Registration Compliance; No Stop Order. The Prospectus and each
Trust Free Writing Prospectus will have been timely filed with the Commission
under the Act (in the case of an Trust Free Writing Prospectus, to the extent
required by Rule 433 under the Act) and in accordance with Section 5(b) of this
Agreement; and, as of the Closing Date, no stop order will have been issued
suspending the effectiveness of the Registration Statement or any post-effective
amendment, and no proceedings for such purpose will be pending before or, to the
knowledge of the Depositor, threatened by the Commission.
(c) Officer's Certificates as to Representations and Warranties. 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 of:
(i) Ford Credit, in which such officer will state that, to his or
her knowledge after reasonable investigation, the representations and
warranties of the Servicer contained in the Sale and Servicing Agreement
and of Ford Credit contained in the Purchase Agreement are true and correct
in all material respects and that Ford Credit has complied with all
agreements and satisfied all conditions to be performed by it or satisfied
by it under such agreements in all material respects.
(ii) The Depositor, in which such officer will state that, to his
or her knowledge after reasonable investigation, the representations and
warranties of the Depositor contained in the Trust Agreement, the Sale and
Servicing Agreement and the Purchase Agreement are true and correct in all
material respects, and that the Depositor has complied with all agreements
and satisfied all conditions to be performed by it or satisfied by it under
such agreements in all material respects.
(d) Officer's Certificates as to Conditions Precedent. The
Representatives will have received as of the Closing Date an officer's
certificate signed by the Chairman of the Board of Managers, the President, the
Executive Vice President - Finance, the Treasurer or the Assistant Treasurer of
the Depositor representing and warranting that the representations and
warranties of the Depositor in this Agreement are true and correct in all
material respects, and that the Depositor has complied with all agreements and
satisfied all conditions to be performed by it or satisfied by it under this
Agreement in all material respects.
(e) No Material Adverse Change. Since the respective dates as of which
information is given in the Prospectus and the Offering Memorandum, as amended
or supplemented, there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or affecting
particularly (i) the business or assets of the Depositor, or any material
adverse change in the financial position or results of operations of the
Depositor or (ii) the business or assets of Ford Credit and its subsidiaries
considered as a whole, or any material adverse change in the financial position
or results of operations of Ford Credit and its subsidiaries considered as
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a whole, otherwise than as set forth or contemplated in the Prospectus, which in
any case makes it impracticable or inadvisable in the Representatives'
reasonable judgment to proceed with the public offering or the delivery of the
Publicly Registered Notes on the terms and in the manner contemplated in the
Prospectus or the offering or the delivery of the Exempt Notes on the terms and
in the manner contemplated in the Offering Memorandum.
(f) War Out. Subsequent to the execution and delivery of this
Agreement, the United States has not 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 Publicly
Registered Notes on the terms and in the manner contemplated in the Prospectus
as amended or supplemented or the offering or the delivery of the Exempt Notes
on the terms and in the manner contemplated in the Offering Memorandum as
amended or supplemented.
(g) Inhouse Opinion. Xxxxx X. Xxxxxx, Esq., Secretary of the Depositor
and Ford Credit and Managing Counsel, Ford Credit Global & Structured Finance,
of Ford Motor Company, 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, substantially to the effect that:
(i) Ford Credit is validly existing and in good standing as a
corporation under the Delaware General Corporation Law. Ford Credit is duly
qualified to transact business and is in good standing in each jurisdiction
in the United States of America in which the conduct of its business or the
ownership of its properties requires such qualification, unless the failure
to obtain such qualification would not reasonably be expected to have a
material adverse effect on the ability of Ford Credit to perform its
obligations under the Transaction Documents to which it is a party.
(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. Ford Credit has duly authorized the execution and delivery of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby by all requisite corporate action under
the Delaware General Corporation Law. Ford Credit has duly executed and
delivered each of the Transaction Documents to which it is a party under
the Delaware General Corporation Law.
(iii) The Depositor is validly existing and in good standing as a
limited liability company under the Delaware Limited Liability Company Act,
6 Delaware Code Section 18-101 et seq., as amended (the "Delaware Limited
Liability Company Act"). The Depositor is duly qualified to transact
business and is in good standing in each jurisdiction in the United States
of America in which the conduct of its business or the ownership of its
properties requires such
11
qualification, unless the failure to obtain such qualification would not
reasonably be expected to have a material adverse effect on the ability of
the Depositor to perform its obligations under the Transaction Documents to
which it is a party.
(iv) The Depositor 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 Depositor has duly authorized the execution and
delivery of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated thereby by all requisite
action under the Delaware Limited Liability Company Act. The Depositor has
duly executed and delivered each of the Transaction Documents to which it
is a party under the Delaware Limited Liability Company Act.
(v) The execution and delivery by Ford Credit of each of the
Transaction Documents to which it is a party and the consummation by Ford
Credit of the transactions contemplated thereby, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default (in each case material to Ford Credit and its subsidiaries
considered as a whole) under 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), other than pursuant to the Transaction
Documents, upon any of the properties 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 conflict with or violate any of the provisions of the Certificate of
Incorporation or the By-Laws of Ford Credit.
(vi) The execution and delivery by the Depositor and the Trust of
each of the Transaction Documents to which it is a party and the
consummation by each such Person of the transactions contemplated thereby
(including the issuance and delivery of the Notes), 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, other than pursuant to the Transaction Documents, upon any
of the properties or assets of the Depositor or the Trust pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under which
the Depositor or the Trust is a debtor or guarantor, nor will any such
action conflict with or violate any of the provisions of the Certificate of
Formation or the LLC Agreement of the Depositor or the Certificate of Trust
or the Trust Agreement of the Trust.
(vii) Such counsel does not know of any legal or governmental
proceedings pending or threatened against Ford Credit, the Depositor or the
Trust, or to which their respective properties are subject, (i) seeking any
determination or ruling that could reasonably be expected to have a
material adverse effect on the ability of Ford Credit, the Depositor or the
Trust to enter into or perform their
12
respective obligations under any of the Transaction Documents to which they
are parties or have a material adverse effect on the validity and
enforceability of any of the Transaction Documents to which they are
parties, or (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by the Transaction
Documents, or to adversely affect the characterization of the Notes as
indebtedness for U.S. federal income tax purposes.
(viii) Each Receivable is secured by a validly perfected first
priority security interest in the vehicle financed in favor of Ford Credit
as a secured party or Ford Credit has established procedures that if
followed (and such Counsel has no reason to believe that they will not be
followed) will result in the perfection of a first priority security
interest in the vehicle financed in favor of Ford Credit as a secured
party.
(ix) No consent, approval, authorization or order of any United
States federal or Michigan State court or governmental agency or body,
which has not been obtained or taken and is not in full force and effect,
is required for the consummation of the transactions contemplated in the
Transaction Documents.
(x) Neither the issuance or sale of the Notes, nor the execution
and delivery by Ford Credit of the Transaction Documents to which it is a
party nor the consummation of any of the other transactions contemplated in
the Transaction Documents to which it is a party will contravene the terms
of any material provision of any United States federal or Michigan State
statute, order or regulation applicable to Ford Credit or the Delaware
General Corporation Law, unless such contravention would not reasonably be
expected to have a material adverse effect on the ability of Ford Credit to
enter into or perform its obligations under the Transaction Documents, or
have a material adverse effect on the validity or enforceability of the
Transaction Documents.
(xi) Ford Credit is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as amended.
(h) Bankruptcy Opinion. Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (or
such other counsel satisfactory to the Representatives in their reasonable
judgment) will have furnished their written opinions, dated the Closing Date, to
the Representatives, the Indenture Trustee and Ford Credit, with respect to the
characterization of the transfer of the Receivables by Ford Credit to the
Depositor as a sale and that so long as the Notes remain outstanding and the
Noteholders have not been paid in full, a creditor or trustee of Ford Credit (or
Ford Credit as debtor in possession) would not have valid grounds to have a
court disregard the separate legal existence of the Depositor so as to cause a
substantive consolidation of the assets and liabilities of the Depositor with
the assets and liabilities of Ford Credit, in a manner prejudicial to the
Noteholders, and such opinion will be in substantially the form previously
discussed with the Representatives and their counsel and satisfactory in form
and substance to the Representatives and to their counsel in their reasonable
judgment.
13
(i) Corporate Opinion. Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (or
such other counsel satisfactory to the Representatives in their reasonable
judgment) will have furnished their written opinion, dated the Closing Date, in
form satisfactory to the Representatives in their reasonable judgment, to the
effect that:
(i) The Trust has been duly formed and is validly existing under
Chapter 38 of Title 12 of the Delaware Code, 12 Delaware Code Section 3801
et seq., as amended (the "Delaware Statutory Trust Act"). The Trust has
full power and authority to execute, deliver and perform all its
obligations under the Basic Documents to which it is a party.
(ii) The execution and delivery of the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the Interest Rate Swap
(if any) and the Control Agreement and the issuance of the Notes have been
duly authorized by all requisite action on the part of the Trust under the
Delaware Statutory Trust Act.
(iii) The execution and delivery by the Owner Trustee, on behalf
of the Trust, of each of the Basic Documents to which the Trust is a party
and the performance by the Trust of its obligations under each such Basic
Document, each in accordance with its terms, including the issuance of the
Notes, do not conflict with the Certificate of Trust of the Trust or the
Trust Agreement.
(iv) The execution and delivery by each of Ford Credit, the
Depositor and the Trust of the Transaction Documents to which it is a party
and the compliance by each of Ford Credit, the Depositor and the Trust with
the terms and provisions of such agreements, including the issuance of the
Notes, will not contravene any provision of any Applicable Law of the State
of New York or the State of Delaware or any Applicable Law of the United
States of America.
(v) No governmental approval (other than the filing of UCC
financing statements with respect to (x) the sale or transfer of the
Receivables by Ford Credit to the Depositor pursuant to the Purchase
Agreement and by the Depositor to the Trust pursuant to the Sale and
Servicing Agreement and (y) the grant by the Trust of a security interest
in such Receivables to the Indenture Trustee pursuant to the Indenture),
which has not been obtained or taken and is not in full force and effect,
is required to authorize, or is required in connection with, the execution
or delivery of the Transaction Documents by each of Ford Credit, the
Depositor and the Trust, or the enforceability of any of the Basic
Documents against each of Ford Credit, the Depositor and the Trust, as
applicable.
(vi) Assuming due execution and delivery by the Owner Trustee on
behalf of the Trust, and assuming due authorization, execution and delivery
by the Indenture Trustee, the Indenture constitutes the valid and binding
obligation of the Trust enforceable against the Trust in accordance with
its terms under the Applicable Laws (as defined in such opinion) of the
State of New York.
14
(vii) Assuming due execution by the Owner Trustee on behalf of
the Trust and assuming due authentication and delivery of the Notes by the
Indenture Trustee in accordance with the Indenture and delivery and payment
by the purchasers of the Notes, the Notes will be duly and validly issued
and delivered and will constitute valid and binding obligations of the
Trust entitled to the benefits of the Indenture and enforceable in
accordance with their terms under the Applicable Laws of the State of New
York.
(viii) Assuming due execution and delivery by the Owner Trustee
on behalf of the Trust, the Sale and Servicing Agreement, the Indenture,
the Administration Agreement, the Interest Rate Swap (if any) and the
Control Agreement each constitutes the valid and binding obligation of the
Trust enforceable against the Trust in accordance with its terms under the
Applicable Laws of the State of New York.
(ix) The Sale and Servicing Agreement, the Trust Agreement, the
Purchase Agreement and the Control Agreement each constitutes the valid and
binding obligation of the Depositor enforceable against the Depositor in
accordance with its terms under the Applicable Laws of the State of New
York or the State of Delaware, as applicable.
(x) The Purchase Agreement, the Administration Agreement and the
Sale and Servicing Agreement each constitutes the valid and binding
obligation of Ford Credit enforceable against Ford Credit in accordance
with its terms under the Applicable Laws of the State of New York.
(xi) Assuming that the Exempt Notes (if any) are sold by the
Exempt Note Underwriters in accordance with the Underwriting Agreement, the
sale of the Exempt Notes is not required to be registered under the Act
pursuant to the exemption from registration provided by Section 3(a)(3) of
the Act.
(xiv) The Indenture has been qualified under the Trust Indenture
Act of 1939, as amended, and the Trust Agreement is not required to be
qualified under the Trust Indenture Act.
(xv) Each of the Depositor and the Trust is not and, solely after
giving effect to the offering and sale of the Notes and the application of
the proceeds of the Notes as described in the Basic Documents, will not be
subject to registration and regulation as an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(i) Tax Opinion. Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (or
such other counsel satisfactory to the Representatives in their reasonable
judgment), special tax counsel to the Depositor, will have furnished to the
Representatives their written opinion, dated as of the Closing Date, in
form and in substance satisfactory to the Representatives in their
reasonable judgment, to the effect that the Trust will not be classified as
an association taxable as a
15
corporation for federal income tax purposes, and the Class A Notes, the
Class B Notes and the Class C Notes will be, and the Class D Notes should
be, characterized as debt for federal income tax purposes (as specified in
the Prospectus and in the Offering Memorandum).
(j) Negative Assurances. Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (or
such other counsel satisfactory to the Representatives in their reasonable
judgment), special counsel to the Depositor and Ford Credit, will have furnished
their written letter dated the Closing Date to the Representatives with respect
to the Registration Statement, the Time of Sale Information and the final
Prospectus and the final Offering Memorandum and such letter will be in
substantially the form previously discussed with the Representatives and their
counsel and satisfactory in form and substance to the Representatives and to
their counsel in their reasonable judgment.
(k) Security Interest Opinion. Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP (or such other counsel satisfactory to the Representatives in their
reasonable judgment) will have furnished their written opinion, dated the
Closing Date, to the Representatives, the Indenture Trustee and Ford Credit,
with respect to the security interest of the Trust in the Receivables (which
opinion will state that it may be relied upon by the Indenture Trustee) and such
opinion will be in substantially the form previously discussed with the
Representatives and their counsel and satisfactory in form and substance to the
Representatives and to their counsel in their reasonable judgment.
(l) Underwriters Counsel Opinion. The Representatives will have
received an opinion addressed to the Representatives of [_____] (or such other
counsel satisfactory to the Representatives in their reasonable judgment),
counsel to the Underwriters, dated the Closing Date, with respect to the
validity of the Notes, exemption from registration with the Commission of the
Exempt Notes and such other related matters as the Representatives require and
the Depositor will 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.
(m) Owner Trustee Opinion. The Representatives will have received an
opinion addressed to the Representatives, the Depositor and Ford Credit of
Xxxxxxxx, Xxxxxx & Finger P.A. (or such other counsel satisfactory to the
Representatives in their reasonable judgment), counsel to the Owner Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representatives and counsel to the Representatives, addressing such matters as
the Representatives may request and substantially to the effect that:
(i) The Owner Trustee is a national banking association duly
created, validly existing and in good standing under the laws of the United
States, with its principal place of business in the State of Delaware.
(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 Trust, each of the Indenture, the
Sale and
16
Servicing Agreement, the Administration Agreement, the Interest Rate Swap
(if any) and the Control Agreement. The Owner Trustee has all necessary
power and authority to execute the Notes on behalf of the Trust.
(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
Indenture, the Sale and Servicing Agreement, the Administration Agreement,
the Interest Rate Swap (if any) and the Control Agreement has been duly
executed and delivered by the Owner Trustee on behalf of the Trust. Each of
the Notes has been duly executed and delivered by the Owner Trustee, on
behalf of the Trust.
(iv) The execution and delivery of the Trust Agreement and the
Certificate of Trust by the Owner Trustee and the execution and delivery of
the Indenture, Sale and Servicing Agreement, Administration Agreement, the
Interest Rate Swap (if any), Control Agreement and the Notes by the Owner
Trustee, on behalf of the Trust, does not conflict with or result in a
breach of or constitute a default under the Owner Trustee's organization
certificate or by-laws, any federal or Delaware law, rule or regulation
governing its banking or trust powers or, to the best of counsel's
knowledge, without independent investigation, any judgment or order
applicable to it or its acts, properties or, to the best of 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 Trust, of the Indenture, Sale and Servicing Agreement,
Administration Agreement, Interest Rate Swap (if any), Control Agreement or
the Notes nor the execution and delivery of the Trust Agreement or the
Certificate of Trust by the Owner Trustee, requires 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 Delaware or
the federal laws of the United States governing the banking or trust powers
of the Owner Trustee.
(vi) To the best of 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 Delaware which
involve the Trust Agreement, the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Interest Rate Swap (if any),
the Control Agreement, the Certificate of Trust 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 Trust, the Indenture,
Sale and Servicing Agreement, Administration Agreement, Interest Rate Swap
(if any), Control Agreement or the Notes.
17
(n) Delaware Trust Opinion. The Representatives will have received an
opinion addressed to the Representatives, the Depositor and Ford Credit of
Xxxxxxxx, Xxxxxx & Finger P.A. (or such other counsel satisfactory to the
Representatives in their reasonable judgment), counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the Representatives and
counsel to the Representatives, addressing such matters as the Representatives
may request and substantially to the effect that:
(i) The Trust has been duly formed and is validly existing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del. C. Section
3801, et seq. (the "Delaware Act"), and has the power and authority under
the Trust Agreement and the Delaware Act to execute, deliver and perform
its obligations under the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the Interest Rate Swap
(if any), the Control Agreement, the DTC Letter and the Notes.
(ii) The Trust Agreement is the legal, valid and binding
agreement of the Depositor and the Owner Trustee, enforceable against the
Depositor and the Owner Trustee, in accordance with its terms.
(iii) The Trust has the power and authority under the Trust
Agreement and the Delaware Act to Grant the Indenture Trust Estate to the
Indenture Trustee pursuant to the Indenture.
(iv) Each of the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Administration Agreement, the Interest Rate Swap
(if any), the Control Agreement, the DTC Letter and the Notes have been
duly authorized by the Trust.
(v) Neither the execution, delivery and performance by the Trust
of the Trust Agreement, the Indenture, the Sale and Servicing Agreement,
the Administration Agreement, the Interest Rate Swap (if any), the Control
Agreement, the DTC Letter and the Notes, nor the consummation by the Trust
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).
(vi) Neither the execution, delivery and performance by the Trust
of the Trust Agreement, the Indenture, the Sale and Servicing Agreement,
the Administration Agreement, the Interest Rate Swap (if any), the Control
Agreement and the DTC Letter, including the execution and delivery of such
documents by the Owner Trustee on behalf of the Trust, nor the consummation
by the Trust or the Owner Trustee on behalf of the Trust 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 Trust or the Owner Trustee or, to the best of counsel's knowledge,
without independent investigation, any
18
agreement, indenture, instrument, order, judgment or decree to which the
Trust or any of its property is subject.
(vii) To the best of such counsel's knowledge, without
independent investigation, there are no pending or threatened actions,
suits or proceedings affecting the Trust before any court or other
governmental authority of the State of Delaware which, if adversely
decided, would adversely affect the Trust Property or the ability of the
Trust to carry out the transactions contemplated by the Trust Agreement,
the Indenture, the Sale and Servicing Agreement, the Administration
Agreement, the Interest Rate Swap (if any), the Control Agreement and the
DTC Letter.
(viii) Under the Delaware Act, the Trust constitutes a separate
legal entity, separate and distinct from the holder of the Certificate of
Trust and any other entity and, insofar as the substantive law of the State
of Delaware is applicable, the Trust rather than the holder of the
Certificate of Trust will hold whatever title to such property as may be
conveyed to it from time to time pursuant to the Trust Agreement and the
Sale and Servicing Agreement, except to the extent that such Trust has
taken action to dispose of or otherwise transfer or encumber any such
property.
(ix) Except as otherwise provided in the Trust Agreement, under
Section 3805(c) of the Delaware Act, a holder of the Certificate of Trust
has no interest in specific statutory trust property.
(x) Under Section 3805(b) of the Delaware Act, no creditor of any
holder of the Certificate of Trust will have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(xi) Under the Trust Agreement, the Owner Trustee has the
authority to execute and deliver on behalf of the Trust the Basic Documents
to which the Trust is a party.
(o) Indenture Trustee Opinion. The Representatives will have received
an opinion addressed to the Representatives, the Depositor and Ford Credit of
Xxxxxxx Xxxxxxxx & Xxxx (or such other counsel satisfactory to the
Representatives in their reasonable judgment), counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representatives and counsel to the Representatives, to the effect that:
(i) The Indenture Trustee has been legally incorporated under the
laws of the State of New York and, based upon a certificate of good
standing issued by that State, is validly existing as a banking association
in good standing under the laws of that State, and has the requisite entity
power and authority to execute and deliver the Indenture and the
Administration Agreement and to perform its obligations thereunder.
19
(ii) With respect to the Indenture Trustee, the performance of
its obligations under the Indenture and the Administration Agreement and
the consummation of the transactions contemplated thereby do not require
any consent, approval, authorization or order of, filing with or notice to
any court, agency or other governmental body, except such as may be
required under the securities laws of any state or such as have been
obtained, effected or given.
(iii) With respect to the Indenture Trustee, the performance of
its obligations under the Indenture and the Administration Agreement and
the consummation of the transactions contemplated thereby will not result
in: (i) any breach or violation of its certificate of incorporation or
bylaws, (ii) to such counsel's knowledge, any breach, violation or
acceleration of or default under any indenture or other material agreement
or instrument to which the Indenture Trustee is a party or by which it is
bound or (iii) any breach or violation of any statute or regulation or, to
such counsel's knowledge any order of any court, agency or other
governmental body.
(iv) To such counsel's knowledge, with respect to the Indenture
Trustee, there is no legal action, suit, proceeding or investigation before
any court, agency or other governmental body pending or threatened against
it which, either in one instance or in the aggregate, draws into question
the validity of the Indenture or the Administration Agreement, seeks to
prevent the consummation of any of the transactions contemplated by the
Indenture or the Administration Agreement or would impair materially the
ability of the Indenture Trustee to perform its obligations under the
Indenture or the Administration Agreement.
(v) Each of the Indenture and the Administration Agreement has
been duly authorized, executed and delivered by the Indenture Trustee and,
assuming the necessary authorization, execution and delivery of such
agreements by the other parties thereto, is a valid and legally binding
agreement under the laws of the State of New York, enforceable thereunder
against the Indenture Trustee in accordance with its terms.
(vi) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(p) Ratings Letters. The Depositor will have received ratings letters
that assign the ratings to the Notes specified in the Terms Annex.
(q) Transaction Documents. Each Transaction Document will have been
executed and delivered by the parties to such Transaction Document.
(r) Consideration. At the Closing Date, the Notes will have been
validly issued by the Trust and paid for by the Depositor.
7. Indemnification and Contribution. (a) The Depositor 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,
20
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, the Offering Memorandum, the Preliminary Prospectus, the Preliminary
Offering Memorandum, the Static Pool Information, or any amendment or supplement
to any of such documents, or any Trust Free Writing Prospectus or the Time of
Sale Information or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, 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 action or claim; provided,
however, that the Depositor will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Depositor by any Underwriter through the
Representatives specifically for use therein; and provided further, that the
Depositor will not be liable to any Underwriter or any person controlling any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any of such documents to the extent that any such loss, claim, damage or
liability results from the fact that such Underwriter either (i) sold the
Publicly Registered Notes to a person to whom there was not sent or given, at or
prior to the Time of Sale, a copy of the Preliminary Prospectus, the Time of
Sale Information or the Prospectus, whichever is more recent, if the Depositor
has previously furnished copies thereof to such Underwriter, or (ii) sold the
Exempt Notes to a person to whom there was not sent or given, at or prior to the
Time of Sale, a copy of the Preliminary Offering Memorandum (including the
Preliminary Prospectus attached thereto), the Time of Sale Information or the
Offering Memorandum, whichever is more recent, if the Depositor has previously
furnished copies thereof to such Underwriter.
The indemnity agreement in this subsection (a) will be in addition to
any liability which the Depositor 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 the Depositor against any losses, claims, damages or liabilities
to which the Depositor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
the Offering Memorandum, the Preliminary Prospectus, the Preliminary Offering
Memorandum, or any amendment or supplement to any such documents, or any Free
Writing Prospectus or the Time of Sale Information, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any of such
documents (i) in reliance upon
21
and in conformity with written information furnished to the Depositor by such
Underwriter through the Representatives specifically for use therein or (ii) in
an Underwriter Free Writing Prospectus (as defined herein) prepared by such
Underwriter and is not Trust Information (as defined herein), and will reimburse
any legal or other expenses reasonably incurred by the Depositor in connection
with investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) will be in addition to
any liability which each Underwriter may otherwise have and will extend, upon
the same terms and conditions, to each person, if any, who controls the
Depositor within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) of written notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, and in the event that such indemnified party does not so
notify the indemnifying party within 30 days following receipt of any such
notice by such indemnified party, the indemnifying party will have no further
liability under such subsection to such indemnified party unless the
indemnifying party has received other notice addressed and delivered in the
manner provided in Section 12 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 Depositor on the one hand and such Underwriter
on the other from the offering of the Underwritten 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
Depositor on the one hand and such Underwriter 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
22
equitable considerations. The relative benefits received by the Depositor on the
one hand and such Underwriter on the other will be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor bear to the total underwriting discounts and
commissions received by such Underwriter, in each case (i) as set forth in the
table on the cover page of the Prospectus as amended or supplemented with
respect to the Publicly Registered Notes and (ii) with respect to the Exempt
Notes, measured by the excess of the price to investors over the price to the
Underwriters of the Exempt Notes. The relative fault will be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Depositor and its affiliates or by such
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission,
including, with respect to such Underwriter, the extent to which such losses,
claims, damages or liabilities (or actions in respect thereof) result from the
fact that such Underwriter either (x) sold the Publicly Registered Notes to a
person to whom there was not sent or given, at or prior to the Time of Sale, a
copy of the Preliminary Prospectus, the Time of Sale Information or the
Prospectus, whichever is more recent, if the Depositor has previously furnished
copies thereof to such Underwriter, or (y) sold the Exempt Notes to a person to
whom there was not sent or given, at or prior to the Time of Sale, a copy of the
Preliminary Offering Memorandum (including the Preliminary Prospectus attached
thereto), the Time of Sale Information or the Offering Memorandum, whichever is
more recent, if the Depositor has previously furnished copies thereof to such
Underwriter.
The Depositor 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 (even if the Underwriters
were treated as one entity for such purpose) 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) will 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 will be required to
contribute any amount pursuant to this Agreement and the Indemnification
Agreement (collectively) in excess of either (A) the amount by which the total
price at which the Publicly Registered Notes underwritten by it and distributed
to the public were offered to the public, or (B) the amount by which the total
price at which the Exempt Notes underwritten by it and distributed to investors
as described in the Offering Memorandum were offered to investors, 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 of the Underwritten Notes in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Underwritten Notes as set forth in the Terms Annex and not joint.
23
8. Free Writing Prospectuses; Delivery of Preliminary Prospectus
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, no Public Note Underwriter will convey
or deliver any written communication to any person in connection with the
initial offering of the Publicly Registered Notes unless such written
communication (i) is made in reliance on Rule 134 under the Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B under the Act
or (iii) constitutes a Free Writing Prospectus.
(b) Each Public Note Underwriter represents and agrees with the
Depositor and Ford Credit that (i) it has not and will not prepare or use any
Free Writing Prospectus (any Free Writing Prospectus prepared by or on behalf of
a Public Note Underwriter is referred to as an "Underwriter Free Writing
Prospectus") that contains any information other than (x) information included
in the Preliminary Prospectus or to be included in the final Prospectus ("Trust
Information") or (y) expected pricing parameters for the Underwritten Notes and
status of subscriptions or allocations for the Underwritten Notes, unless
otherwise agreed to by the Depositor, (ii) it will discuss with the Depositor
and Ford Credit the information to be included, prior to its first use, in any
Underwriter Free Writing Prospectus that includes pricing-related information
(including class size, coupons or spread and price placed on Bloomberg screens)
unless such pricing-related information was contained in an Underwriter Free
Writing Prospectus previously discussed with the Depositor, and (iii) it will
not use any "ABS informational and computational material," as defined in Item
1101(a) of Regulation AB under the Act in reliance upon Rules 167 and 426 under
the Act. Each Public Note Underwriter will deliver to the Depositor any
Underwriter Free Writing Prospectus required to be filed with the Commission
(other than an Underwriter Free Writing Prospectus referred to in Section 8(f))
the Business Day prior to its first use (except as otherwise agreed by the
Depositor), except that the Representatives agree to provide an Underwriter Free
Writing Prospectus with all final pricing information as soon as practicable on
the day the Publicly Registered Notes are priced.
(c) The Depositor represents and agrees with the Public Note
Underwriters that is has not prepared any Free Writing Prospectuses other than
any listed in the Terms Annex under "Trust Free Writing Prospectuses."
(d) Each Public Note Underwriter represents and agrees with the
Depositor and Ford Credit that each Underwriter Free Writing Prospectus prepared
or used by such Public Note Underwriter, if any, when read in conjunction with
the Preliminary Prospectus, will not, as of the date such Free Writing
Prospectus was conveyed or delivered to any prospective purchaser of Notes,
include any untrue statement of a material fact or omit any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that such Public Note Underwriter makes no representation to the extent such
misstatements or omissions were the result of any inaccurate Trust Information
supplied by the Depositor or Ford Credit to the Representatives or such Public
Note Underwriter, which information was not corrected
24
by Corrective Information subsequently supplied by the Depositor or Ford Credit
to the Representatives or such Public Note Underwriter prior to the Time of
Sale.
(e) The Depositor agrees to file with the Commission when required
under the Rules and Regulations the following:
(i) the Preliminary Prospectus;
(ii) each Trust Free Writing Prospectus required to be filed
pursuant to Rule 433(d) under the Act;
(iii) any Underwriter Free Writing Prospectus required to be
filed pursuant to Rule 433(d) under the Act (other than an Underwriter Free
Writing Prospectus required to be filed pursuant to Rule 433(d)(1)(ii)
under the Act), provided such Underwriter Free Writing Prospectus was
delivered to the Depositor reasonably in advance of the time required to be
filed pursuant to Rule 433(d) under the Act; and
(iv) any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized and approved information
that is prepared and published or disseminated by a person unaffiliated
with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating communications.
(f) Each Public Note Underwriter agrees to file with the Commission
any Underwriter Free Writing Prospectus prepared by it when required to be filed
under Rule 433(d)(1)(ii) under the Act, and upon request, deliver a copy to the
Depositor and Ford Credit.
(g) Notwithstanding the provisions of Section 8(e) and Section 8(f),
neither the Depositor nor any Public Note Underwriter will be required to file
any Free Writing Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the Commission.
(h) The Depositor and each Public Note Underwriter agree that any Free
Writing Prospectuses prepared by it will contain substantially the following
legend:
The Issuer has filed a registration statement (including a prospectus)
with the SEC for the offering to which this free writing prospectus
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the Issuer has filed with
the SEC for more complete information about the Issuer and this
offering. You may get these documents for free by visiting XXXXX on
the SEC website at xxx.xxx.xxx. Alternatively, the Issuer, any
underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling toll-free
1-8[xx-xxx-xxxx].
25
(i) The Depositor and each Public Note Underwriter agree to retain all
Free Writing Prospectuses that they have used and that are not filed with the
Commission in accordance with Rule 433 under the Act.
(j) Each Public Note Underwriter, severally, represents and agrees (i)
that it did not enter into any contract of sale for any Notes prior to the Time
of Sale and (ii) that it will, at any time that such Public Note Underwriter is
acting as an "underwriter" (as defined in Section 2(a)(11) of the Act) with
respect to the Notes, convey the Preliminary Prospectus to each investor to whom
Notes are sold by it during the period prior to the filing of the final
Prospectus (as notified to the Public Note Underwriters by the Depositor), at or
prior to the applicable time of any such contract of sale with respect to such
investor.
(k) Each Public Note Underwriter covenants with the Depositor and the
Trust that after the final Prospectus is available the Public Note Underwriter
will not distribute any written information concerning the Notes during the
six-month period following the Closing Date to a prospective purchaser of Notes
unless such information is preceded or accompanied by the final Prospectus.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor or the officers of the Depositor and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made by
or on behalf of any Underwriter, the Depositor or any of their respective
representatives, officers or directors of any controlling person, and will
survive delivery of and payment for the Underwritten Notes.
10. Failure to Purchase the Underwritten Notes.
(a) If the purchase of the Underwritten Notes is not consummated
because the circumstances described in Section 6(f) have occurred, then the
Depositor will not have any liability to the Underwriters with respect to the
Underwritten Notes except as provided in Section 5(h) and Section 7; but if for
any other reason but subject to subsection (b) below, the Underwritten Notes are
not delivered to the Underwriters as provided in this Agreement, the Depositor
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
Underwritten Notes, but the Depositor will not then have any further liability
to any Underwriter with respect to the Notes except as provided in Section 5(h)
and Section 7.
(b) If any Underwriter or Underwriters default on their obligations to
purchase Underwritten Notes hereunder and the aggregate principal amount of
Underwritten Notes that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total principal amount of the
Underwritten Notes,
26
the Representatives may make arrangements satisfactory to the Depositor for the
purchase of such Underwritten 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
Underwritten 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 Underwritten Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of the
Underwritten Notes and arrangements satisfactory to the non-defaulting
Underwriter or Underwriters and the Depositor for the purchase of such
Underwritten Notes by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Depositor, except as provided in Section 5(h)
and Section 7 hereof. Nothing herein will relieve a defaulting Underwriter or
Underwriters from liability for its default.
11. No Fiduciary Duty. The Depositor acknowledges that in connection with
the offering of the Underwritten Notes: (a) the Underwriters have acted at arm's
length, are not agents of, and owe no fiduciary duties to, the Depositor or any
other person, (b) the Underwriters owe the Depositor only those duties and
obligations set forth in this Agreement and (c) the Underwriters may have
interests that differ from those of the Depositor. The Depositor waives to the
full extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Underwritten Notes.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Underwritten Notes, represents the entire
agreement between the Depositor and the Underwriters with respect to the
preparation of the Prospectus, and the conduct of the offering, and the purchase
and sale of the Underwritten Notes.
12. Notices. All notices, requests, demands, consents, waivers or other
communications to or from the parties to this Agreement must be in writing and
will be deemed to have been given and made:
(a) upon delivery or, in the case of a letter mailed by registered
first class mail, postage prepaid, 3 days after deposit in the mail,
(b) in the case of a fax, when receipt is confirmed by telephone,
reply email or reply fax from the recipient,
(c) in the case of an email, when receipt is confirmed by telephone or
reply email from the recipient.
Communications to the Exempt Note Underwriters or the Representatives, in
their capacity as Representatives of the Public Note Underwriters or in their
individual capacities will be given to the Representatives at:
27
(i) [___]
(ii) [___]
and
(iii) [___]
Communications to the Depositor will be given to:
c/o Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Ford Credit SPE Management Office
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxx 0000, Xxxxxx 000-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Fax: (000) 000-0000
13. Successors. This Agreement will inure to the benefit of and be binding
upon the Underwriters and the Depositor 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.
14. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Submission to Jurisdiction. The parties submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State Court sitting in New York, New York for
purposes of all legal proceedings arising out of or relating to this Agreement.
The parties irrevocably waive, to the fullest extent they may do so, any
objection that they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
16. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY
28
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
17. Severability. If any of the covenants, agreements or terms of this
Agreement is held invalid, illegal or unenforceable, then it will be deemed
severable from the remaining covenants, agreements or terms of this Agreement
and will in no way affect the validity, legality or enforceability of the
remaining Agreement.
18. Counterparts. This Agreement may be executed in any number of
counterparts. Each counterpart will be an original, and all counterparts will
together constitute one and the same instrument.
29
EXECUTED:
FORD CREDIT AUTO RECEIVABLES TWO LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NAME OF UNDERWRITER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[NAME OF UNDERWRITER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[NAME OF UNDERWRITER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
30
ANNEX A
FORM OF TERMS ANNEX
FORD CREDIT AUTO OWNER TRUST 200[_]-[_]
[_______], 200[_]
PUBLICLY REGISTERED NOTES
Class A-2a Notes
Class A-2b Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
Class C Notes
PUBLIC NOTE UNDERWRITERS
[____________________________________]
[____________________________________]
[____________________________________]
EXEMPT NOTE UNDERWRITERS
[____________________________________]
TERMS OF THE NOTES
Pricing Date: [____________________________________]
Time of Sale: [____________________________________]
Closing Date: [____________________________________]
Required Ratings as of the Closing Date: ___________
A-1
S&P XXXXX'X FITCH
---- ------- -----
Class A-1 Notes A-1+ P-1 F1+
Class A-2a Notes AAA Aaa AAA
Class A-2b Notes AAA Aaa AAA
Class A-3 Notes AAA Aaa AAA
Class A-4 Notes AAA Aaa AAA
Class B Notes A A2 A
Class C Notes BBB Baa2 BBB
A-2
PRICING INFORMATION
PURCHASE PRICE
AGGREGATE (as a % of the
PRINCIPAL INTEREST aggregate FINAL SCHEDULED
NOTES AMOUNT RATE principal amount) PAYMENT DATE
----- --------- -------- ----------------- ---------------
Class A-1 Notes $[_____] [___]% [___]% [_____]
Class A-2a Notes $[_____] [___]% [___]% [_____]
Class A-2b Notes $[_____] [___]% [___]% [_____]
Class A-3 Notes $[_____] [___]% [___]% [_____]
Class A-4 Notes $[_____] [___]% [___]% [_____]
Class B Notes $[_____] [___]% [___]% [_____]
Class C Notes $[_____] [___]% [___]% [_____]
Class D Notes $[_____] [___]% [___]% [_____]
UNDERWRITERS AND ALLOTMENTS
Notes
----------------------------------------------
Initial Initial Initial Initial
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-1 Class A-2a lass A-2b Class A-3
Underwriters Notes Notes Notes Notes
------------ --------- ---------- --------- ---------
[_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____]
Total [_____] [_____] [_____] [_____]
A-3
Initial Initial Initial
Principal Principal Principal
Amount of Amount of Amount of
Class A-4 Class B Class C
Underwriters Notes Notes Notes
------------ --------- --------- ---------
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
Total [_____] [_____] [_____]
PARTIES
Trust: Ford Credit Auto Owner Trust 200[ ]-[ ].
Owner Trustee:
[U.S. Bank Trust National Association].
Indenture Trustee:
[The Bank of New York].
Swap Counterparty [____________________]
DOCUMENTS
Registration Statement Registration Statement (No. 333-131003) filed on
January 12, 2006, as amended by Post-Effective
Amendment No. 1 filed on January 18, 2006.
Indenture: Indenture, to be dated as of Cutoff Date, between
the Trust and the Indenture Trustee.
Trust Agreement: Amended and Restated Trust Agreement, to be dated
as of Cutoff Date, between the Depositor and the
Owner Trustee.
Purchase Agreement: Purchase Agreement, to be dated as of Cutoff Date,
between Ford Credit and the Depositor.
Sale and Servicing Sale and Servicing Agreement, to be dated as of
Agreement: Cutoff Date, among the Depositor, the Servicer and
the Trust.
Administration Agreement: Administration Agreement, to be dated as of Cutoff
Date, among Ford Credit, the Trust and the
Indenture Trustee.
Control Agreement: Account Control Agreement, to be dated as of Cutoff
Date, among the Trust, as debtor,
A-4
the Indenture Trustee and [The Bank of New York],
in its capacity as a securities intermediary.
Interest Rate Swap Interest Rate Swap, dated the Pricing Date between
the Trust and Swap Counterparty.
Indemnification Agreement: Indemnification Agreement, dated the Pricing Date,
among Ford Credit, the Exempt Note Underwriters and
the Representatives.
Address for Notice to Representatives:
[_____________________]
[_____________________]
[_____________________]
[_____________________]
[_____________________]
[_____________________]
[_____________________]
[_____________________]
[_____________________]
TIME OF SALE INFORMATION
Preliminary Prospectus: Preliminary Prospectus, dated [_________], 200[__]
TRUST FREE WRITING PROSPECTUSES
None
A-5
