Exhibit 1.1
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [___]
SERIES _____
[FLOATING RATE] ASSET BACKED NOTES
[FORD CREDIT AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC]
(TRANSFEROR[S])
______, 200_
UNDERWRITING AGREEMENT
[NAME OF UNDERWRITER]
As Representative of the
Several Underwriters,
[Address]
________________________
________________________
Dear Sirs:
1. Introductory. [Ford Credit Auto Receivables Corporation, a Delaware
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corporation,][and][Ford Credit Auto Receivables LLC, a Delaware limited
liability company] (the "Transferor[s]"[and individually, a "Transferor"]),
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propose[s] to sell $_______ principal amount of Series 200[ ]-[_] [Floating
Rate] Asset Backed Notes (the "Notes") of Ford Credit Floorplan Master Owner
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Trust [__] (the "Issuer"). The Issuer is a Delaware statutory business trust
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formed pursuant to a trust agreement (the "Trust Agreement") dated as of
[____] between the Transferor[s] and _______ [___], as Owner Trustee (the
"Owner Trustee"). Each Note will represent an obligation of the Issuer and
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will be secured by assets of the Issuer (as hereinafter described). The assets
of the Issuer include, among other things, a pool of dealer floorplan
receivables (the "Receivables") arising from time to time in connection with
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the purchase and financing by various retail motor vehicle dealers of their
new and used automobile and light-duty truck inventory and the Related
Security and certain monies due thereunder on or after __________, 200_ (the
"Cutoff Date"). The Receivables arising from the purchase by dealers of
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Ford-manufactured or -distributed vehicles ("In-Transit Receivables") will be
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or have been sold by Ford Motor Company, a Delaware corporation ("Ford"), to
Ford Motor Credit Company, a Delaware corporation ("Ford Credit"), pursuant to
an amended and restated sale and assignment agreement between Ford and Ford
Credit dated as of ____, 200_ (the "Sale and Assignment Agreement"). All
Receivables will be or have been sold by Ford Credit to [each][the] Transferor
pursuant to a receivables purchase agreement between Ford Credit and the
[applicable] Transferor dated as of _________, 200_ (the "Receivables Purchase
Agreement[s]"), and in turn transferred by [each][the] Transferor to the
Issuer and serviced for the Issuer by Ford Credit (in such capacity, the
"Servicer") pursuant to a transfer and servicing agreement dated as of
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__________, 200_ among the [applicable] Transferor, the Servicer and the
Issuer (the "Transfer and Servicing Agreement[s]"). The Notes will be issued
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in an aggregate principal amount of $________ which is approximately equal to
__% of the aggregate principal balance of the Receivables, as of the Cutoff
Date. The Notes will be issued pursuant to an indenture dated as of [_____]
(the "200[ ]-[_] Indenture"), between the Issuer and ____, as indenture trustee
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(the "Indenture Trustee"), as supplemented by the Series 200[ ]-[_] supplement
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to the 200[ ]-[_] Indenture, to be dated as of _________, 200_ (the "Indenture
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Supplement"), between the Issuer and the Indenture Trustee. The 200[ ]-[_]
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Indenture and the Indenture Supplement are collectively referred to as the
"Indenture." Ford Credit has agreed to provide notices and perform on behalf
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of the Issuer certain other administrative obligations required of the Issuer
by the Transfer and Servicing Agreement, the 200[ ]-[_] Indenture and each
indenture supplement for each series of Notes issued by the Issuer pursuant to
an administration agreement dated as of [____ __, 200[ ]] (the "Administration
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Agreement"), between Ford Credit, as administrator (in such capacity, the
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"Administrator"), and the Issuer. The Sale and Assignment Agreement, the
Receivables Purchase Agreement[s], the Transfer and Servicing Agreement[s],
the Indenture, the Trust Agreement and the Administration Agreement are
referred to herein, collectively, as the "Transaction Documents". In
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connection with the issuance of the Notes the Issuer and [____] will enter
into an interest rate swap agreement to be dated as of [________] (the
"Interest Rate Swap Agreement").
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Capitalized terms used herein and not otherwise defined have the meanings
given them in the Transaction Documents.
2. Representations and Warranties of the Transferor[s]. [The][Each]
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Transferor represents and warrants to and agrees with the several underwriters
named in Schedule I hereto (the "Underwriters") (if there is only one
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Underwriter listed in Schedule I, then "Representative" and "Underwriters"
will each refer to such Underwriter) that:
(a) A registration statement on Form S-3 (File No. 333-60756/
333-60756-01), including a form of prospectus and such amendments thereto as
may have been required to the date hereof, relating to the Notes and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has been declared effective by the Commission. Such
registration statement, as amended at the Effective Time, including the
exhibits thereto (but excluding Form T-1) and any material incorporated by
reference therein, is hereinafter referred to as the "Registration Statement,"
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and such forms of prospectus and prospectus supplement, as then amended, and
last filed, or mailed for filing, with the Commission pursuant to Rule 424(b)
("Rule 424(b)") under the Act are hereinafter referred to together as a
"Prospectus". For purposes of this Agreement, "Effective Time" means the most
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recent date and time as of which such Registration Statement is declared
effective by the Commission, and "Effective Date" means the date of the
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Effective Time.
(b) On the Effective Date, the Registration Statement conformed or
will conform, as applicable, in all material respects to the requirements of
the Securities Act of 1933, as amended (the "Act"), the Securities Exchange
---
Act of 1934, as amended (the "Exchange Act"), where applicable, and the rules
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and regulations of the Commission under the Act or the Exchange Act, as
applicable, and did not or will not as of the Effective Date, contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty does not
apply to any statement or omission made in reliance upon and in conformity
with information furnished in writing to the Transferor[s] by the Underwriters
expressly for use in the Registration Statement relating to the Notes. On the
date of this Agreement, the Registration Statement conforms, and at the time
of the last filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"), and, except as aforesaid, neither of
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such documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The consummation by [the][such] Transferor of the transactions
contemplated by this Agreement, the Receivables Purchase Agreement and the
[related]Transfer and Servicing Agreement, and the fulfillment of the terms
thereof, will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation of any
lien, charge, or encumbrance upon any of the property or assets of [the][such]
Transferor pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement, or similar agreement or
instrument under which [the][such] Transferor is a debtor or guarantor.
(d) This Agreement has been duly authorized, executed and delivered
by [the][such] Transferor.
3. Purchase, Sale, and Delivery of Notes. On the basis of the
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representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Transferor[s] agree[s] to sell
to the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Transferor[s], the aggregate principal amounts of the Notes
set forth opposite the names of the Underwriters in Schedule I hereto. The
Notes are to be purchased at the purchase price of [________%] of their
aggregate principal amount.
Against payment of the purchase price in immediately available funds
drawn to the order of the Transferor[s], the Transferor[s] will deliver the
Notes to the Representative, for the account of the Underwriters, at the
office of Sidley Xxxxxx Xxxxx & Xxxx LLP on [___] at 10:00 a.m., New York
time, or at such other time not later than seven full business days thereafter
as the Representative and the Transferor[s] determine, such time being herein
referred to as the "Closing Date." The Notes to be so delivered will be
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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
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beneficial owners of the Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive Notes will be
available only under limited circumstances.
4. Offering by Underwriters. It is understood that, after the
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Registration Statement becomes effective, the Underwriters propose to offer
the Notes for sale to the public (which may include selected dealers), as set
forth in the Prospectus.
5. Covenants of the Transferor[s]. [The][Each] Transferor covenants and
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agrees with the Underwriters:
(a) If required, to file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (1) of Rule 424(b) under the Act not
later than the time specified therein. [The][such] Transferor will advise the
Underwriters promptly of any such filing pursuant to Rule 424(b).
(b) To make no amendment or any supplement to the Registration
Statement or to the Prospectus as amended or supplemented prior to the Closing
Date, without furnishing the Representative with a copy of the proposed form
thereof and providing the Representative with a reasonable opportunity to
review the same; and during such same period to advise the Representative,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective, or any
supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the Prospectus
as amended or supplemented or for additional information; and, in the event of
the issuance of any such stop order or of any order preventing or suspending
the use of any prospectus relating to the Notes or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(c) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the Notes for
offering and sale under the securities laws of such states as the
Representative may request and to continue such qualifications in effect so
long as necessary under such laws for the distribution of such Notes, provided
that in connection therewith [the][such] Transferor will not be required to
qualify as a foreign [corporation] [company] to do business, or to file a
general consent to service of process in any jurisdiction, and provided
further that the expense of maintaining any such qualification more than one
year from the Closing Date with respect to such Notes shall be at the
Representative's expense.
(d) To furnish the Underwriters with copies of the Registration
Statement (including exhibits) and copies of the Prospectus as amended or
supplemented in such quantities as the Representative may from time to time
reasonably request; and if, before a period of six months has elapsed after
the Effective Date and the delivery of a prospectus will be at the time
required by law in connection with sales of any such Notes, either (i) any
event occurs as a result of which the Prospectus would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it becomes
necessary during such same period to amend or supplement the Prospectus as
amended or supplemented, to notify the Representative and to prepare and
furnish to the Representative as the Representative may from time to time
reasonably request an amendment or a supplement to the Prospectus that
corrects such statement or omission or effect such compliance; and if any
Underwriter is required by law to deliver a prospectus in connection with
sales of any of such Notes at any time six months or more after the Closing
Date, upon the Representative's request, but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as the
Representative may reasonably request of an amended or supplemented prospectus
complying with Section 10(a)(3) of the Act.
(e) To make generally available to Noteholders of the Issuer as soon
as practicable after the Effective Date of the Registration Statement (as such
date is defined in Rule 158(c) under the Act), an earnings statement of
[the][such] Transferor complying with Rule 158 under the Act and covering a
period of at least twelve consecutive months beginning from such Effective
Date.
(f) To furnish to the Representative copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
form of preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representative may reasonably request.
(g) So long as any of the Notes are outstanding, to furnish the
Representative copies of all reports or other communications (financial or
other) furnished to Noteholders of the Issuer, and to deliver to the
Representative during such same period, (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission, (ii) such additional information concerning the business and
financial condition of [the][such] Transferor or the Trust as the
Representative may from time to time reasonably request, and (iii) executed
versions of the Transaction Documents.
(h) To pay or cause to be paid all costs and expenses incident to
the performance of its obligations hereunder, including any fees charged by
the rating agency or rating agencies that initially rate the Notes, and the
reasonable expenses incurred in distributing the preliminary prospectus and
the Prospectus (including any amendments and supplements thereto required
within six months from the Effective Date pursuant to Section 5(d) hereof) it
being understood that, except as provided in this subsection (h) and Section 9
hereof, the Underwriters will pay all their own costs and expenses, including,
without limitation, the cost of printing any agreement among underwriters,
transfer taxes on resale of the Notes by the Underwriters, and any advertising
expenses connected with any offers that the Underwriters may make.
Notwithstanding anything to the contrary contained in the foregoing, (i) the
Underwriters will pay directly (A) all Blue Sky fees and expenses as well as
reasonable fees and expenses of counsel in connection with state securities
law qualifications and any legal investment surveys; and (B) the reasonable
fees and expenses of Sidley Xxxxxx Xxxxx & Xxxx LLP, Underwriters' counsel,
including fees related to the development of the transaction structure
described in the Registration Statement, and (ii) the Transferor[s] will pay
(A) the Commission the filing fee with respect to the Notes; (B) all fees of
any rating agencies rating the Notes; (C) all fees and expenses of the
Indenture Trustee, and all reasonable fees and expenses of [________], counsel
to the Indenture Trustee; (D) all fees and expenses of the Owner Trustee, and
all reasonable fees and expenses of ______, counsel to the Owner Trustee; (E)
all fees and expenses of [_______] relating to the letter referred to in
Section 6(a) of the Underwriting Agreement; (F) all fees and expenses of
accountants incurred in connection with the delivery of any accountants' or
auditors' reports required pursuant to the Transfer and Servicing
Agreement[s]; (G) the cost of printing any preliminary and final prospectus
relating to the Notes, and the Registration Statement; and (H) any other fees
and expenses incurred in connection with the performance of its obligations
under the Underwriting Agreement.
(i) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters cease to
maintain a secondary market in the Notes, whichever occurs first, to deliver
to the Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Indenture
Trustee pursuant to Article III of [the][each] Transfer and Servicing
Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee.
(j) On or before the Closing Date, the Transferor[s] will cause Ford
Credit's computer records relating to the Receivables contained in any
Accounts to be marked to show the Issuer's absolute ownership of the
Receivables, and from and after the Closing Date neither the Transferor[s] nor
the Servicer will take any action inconsistent with the Issuer's ownership of
such Receivables other than as permitted by the Transfer and Servicing
Agreement[s].
(k) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other
actions by [the][such] Transferor, [the][such] Transferor will furnish such
documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters. The obligation of
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the Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties on the part of [the][each]
Transferor herein, to the accuracy of the statements of officers of
[the][each] Transferor made pursuant to the provisions hereof, to the
performance by [the][each] Transferor of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the Closing Date, PriceWaterhouseCoopers LLP will
furnish to the Representative a letter dated as of the Closing Date
substantially in the form and substance of the draft to which the
Representative previously agreed.
(b) The Registration Statement will have become effective not later
than 4:00 p.m., New York time, on the day following the date of this Agreement
or such later date as to which the Representative will have consented; and
prior to the Closing Date no stop order suspending the effectiveness of the
Registration Statement will have been issued and no proceedings for that
purpose will have been instituted or, to the knowledge of [the][either]
Transferor, are contemplated by the Commission.
(c) The Representative will have received as of the Closing Date an
officer's certificate signed by the Chairman of the Board, the President, the
Executive Vice President Finance or the Treasurer of [the][each] Transferor
representing and warranting that, as of the Closing Date (except to the extent
such certificate relates expressly to another date, they will be true and
correct as of such date on the Closing Date), the representations and
warranties of [the][such] Transferor in this Agreement will be true and
correct in all material respects, that [the][such] Transferor has complied
with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date in all material
respects, that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(d) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented, there will not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of the
Issuer or the Transferor[s], or any material adverse change in the financial
position or results or operations of the Issuer or the Transferor[s],
otherwise than as set forth or contemplated in the Prospectus, that in any
such case makes it impracticable or inadvisable in the Representative's
reasonable judgment to proceed with the public offering or the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus as amended
or supplemented.
(e) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented, there will not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of Ford
Credit and its subsidiaries or Ford Motor Company and its subsidiaries, in
each case considered as a whole, or any material adverse change in the
financial position or results or operations of Ford Credit and its
subsidiaries or Ford Motor Company and its subsidiaries, in each case
considered as a whole, otherwise than as set forth or contemplated in the
Prospectus, that in any such case makes it impracticable or inadvisable in the
Representative's reasonable judgment to proceed with the public offering or
the delivery of the Notes on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(f) Subsequent to the execution and delivery of this Agreement, the
United States will not have become engaged in hostilities which have resulted
in the declaration of a national emergency or a declaration of war which makes
it impracticable or inadvisable in the Representative's reasonable judgment to
proceed with the public offering of the delivery of the Notes on the terms and
in the manner contemplated in the Prospectus as amended or supplemented.
(g) Xxxxx X. Xxxxxx, counsel to the Transferor[s], or other counsel
satisfactory to the Representative in their reasonable judgment, will have
furnished to the Representative, her written opinion, dated the Closing Date,
in form reasonably satisfactory to the Representative in its reasonable
judgment, to the effect that:
(i) [The][Each] Transferor has been duly [incorporated]
[organized] and is validly existing as a [corporation][limited liability
company] in good standing under the laws of the State of Delaware, and is
duly qualified to transact business and is in good standing in each
jurisdiction in the United States of America in which the conduct of its
business or the ownership of its property requires such qualification.
(ii) This Underwriting Agreement has been duly authorized,
executed and delivered by [the][each] Transferor.
(iii) The Transfer and Servicing Agreement[s], the Receivables
Purchase Agreement [to which each Transferor is a party], the Trust
Agreement and the Administration Agreement have been duly authorized,
executed and delivered by, and each constitutes a valid and binding
obligation of, [the][each] Transferor.
(iv) The consummation of the transactions contemplated by this
Underwriting Agreement, the Transaction Documents and the Interest Rate
Swap Agreement, and the fulfillment of the terms hereof and thereof, will
not conflict with or result in a material breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any material lien, charge or encumbrance upon any of the
property or assets of [the][either] Transferor pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument known to such
counsel under which [the][either] Transferor is a debtor or guarantor,
nor will such action result in any violation of the provisions of the
[Certificate of Incorporation][Amended and Restated Limited Liability
Company Agreement ] [or the By-Laws] [or other organizational documents]
of [the][either] Transferor.
(v) The Notes have been duly authorized and executed by the
Issuer; when authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for by the purchasers thereof, the
Notes will constitute valid and binding obligations entitled to the
benefits provided by the Indenture.
(vi) The Registration Statement has become effective under the
Act and, to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission; and the Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Transferor[s] prior to the Closing Date (other than the financial
statements and other accounting information contained in the Registration
Statement or the Prospectus as amended or supplemented or any further
amendments or supplements thereto, or omitted therefrom, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Rules and Regulations.
(vii) Such counsel believes that neither the Registration
Statement (other than the financial statements and other accounting
information contained therein or omitted therefrom, as to which such
counsel need express no opinion) nor any amendment thereto, at the time
the same became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(viii) Such counsel believes that at the Closing Date the
Prospectus as amended or supplemented (other than the financial
statements and the other accounting information contained therein or
omitted therefrom, as to which such counsel need express no opinion)
contains no untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(ix) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or supplemented
which is not filed or incorporated by reference or described as required.
(x) Such counsel does not know of any legal or governmental
proceedings pending to which [the][either] Transferor is a party or of
which any property of [the][either] Transferor is the subject, and no
such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others, other
than as set forth or contemplated in the Prospectus as amended or
supplemented and other than such proceedings which, in her opinion, will
not have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of
[the][either] Transferor and will not materially and adversely affect the
performance by [the][either] Transferor of its obligations under, or the
validity and enforceability of, any of the Transaction Documents or the
Notes.
(xi) The Notes, the Transaction Documents and this Agreement
each conform in all material respects with the descriptions thereof
contained in the Registration Statement and the Prospectus.
(xii) [The][Each] Transferor has full power and authority to
sell and assign the property sold or to be sold and assigned to and
deposited with the Owner Trustee as part of the Issuer and has duly
authorized such sale and assignment to the Owner Trustee by all necessary
corporate action.
(xiii) Prior to any sale or assignment thereof by [the][each]
Transferor to the Issuer, [the][such] Transferor owned the Receivables
and the Collateral Security free and clear of any lien, security interest
or charge. The assignment of the Receivables and the Collateral Security,
all documents and instruments relating thereto and all proceeds thereof
to the Owner Trustee, pursuant to [the][each] Transfer and Servicing
Agreement, vest in the Owner Trustee all interests which were purported
to be conveyed thereby, free and clear of any lien, security interest or
charge except as specifically permitted pursuant to [the][such] Transfer
and Servicing Agreement.
(xiv) Immediately prior to the transfer of the Receivables to
the Issuer, the Transferor['s] [s'] interest in the Receivables, the
Collateral Security, the security interests in the Vehicles securing the
Receivables and the proceeds of each of the foregoing was perfected upon
the filing of the UCC-1 financing statement with the appropriate
authority in the applicable jurisdiction and constituted a perfected
first priority interest therein. No filing or other action, other than
the filing of the UCC-1 financing statements referred to above, is
necessary to perfect and maintain the interest or the security interest
of the Owner Trustee in the Receivables, the Collateral Security, the
security interests in the Vehicles securing the Receivables and the
proceeds of each of the foregoing against third parties.
(xv) The Transferor[s] [is][are] not, and will not as a result
of the offer and sale of the Notes as contemplated by this Agreement
become, [an] "investment compan[y][ies]" as defined in the Investment
Company Act of 1940, as amended.
Such opinion may be made subject to the qualifications that the enforceability
of the terms of the Transaction Documents and the Notes may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(h) Xxxxx X. Xxxxxx, Secretary of Ford Credit, or other counsel
satisfactory to the Representative in its reasonable judgment, will have
furnished to the Representative her written opinion, dated as of the Closing
Date, in form satisfactory to the Representative in its reasonable judgment,
to the effect that:
(i) Ford Credit has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, and is duly qualified to transact business and is in good
standing in each jurisdiction in the United States of America in which
the conduct of its business or the ownership of its property requires
such qualification, with only such exceptions as are not material to the
business of Ford Credit and its subsidiaries, considered as a whole.
(ii) The indemnification agreement (the "Indemnification
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Agreement") dated as of the date hereof, between Ford Credit and the
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Underwriters, has been duly authorized, executed and delivered by Ford
Credit.
(iii) The Sale and Assignment Agreement, the Receivables
Purchase Agreement[s], the Transfer and Servicing Agreement[s], [and] the
Administration Agreement [and the Interest Rate Swap Agreement/*/] have
been duly authorized, executed and delivered by, and each constitutes a
valid and binding obligation of, Ford Credit.
(iv) The consummation of the transactions contemplated by the
Sale and Assignment Agreement, Receivables Purchase Agreement[s], the
Transfer and Servicing Agreement[s], the Administration Agreement, [the
Interest Rate Swap Agreement/*/] and the Indemnification Agreement, and the
fulfillment of the terms thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under (in each case material to Ford Credit and its subsidiaries
considered as a whole), or result in the creation or imposition of any
lien, charge or encumbrance (in each case material to Ford Credit and its
subsidiaries considered as a whole) upon any of the property or assets of
Ford Credit pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument known to such counsel under which Ford Credit is
a debtor or guarantor, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or the By-Laws of Ford
Credit.
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/*/ Insert only if Ford Credit is swap counterparty
(v) Such counsel does not know of any legal or governmental
proceedings pending to which Ford Credit is a party or of which any
property of Ford Credit is the subject, and no such proceedings are known
by such counsel to be threatened or contemplated by governmental
authorities or threatened by others, other than as set forth or
contemplated in the Prospectus as amended or supplemented and other than
such proceedings which, in her opinion, will not have a material adverse
effect upon the general affairs, financial position, net worth or results
of operations (on an annual basis) of Ford Credit and its subsidiaries
considered as a whole and will not materially and adversely affect the
performance Ford Credit of its obligations under, or the validity and
enforceability of, the Sale and Assignment Agreement, the Receivables
Purchase Agreement[s], the Transfer and Servicing Agreement[s], the
Administration Agreement, [the Interest Rate Swap Agreement/*/] or the
Indemnification Agreement.
______________
/*/ Insert only if Ford Credit is swap counterparty
(vi) Ford Credit had and has full power and authority to sell
and assign the property sold and assigned or to be sold and assigned to
the Transferor[s] pursuant to the Receivables Purchase Agreement[s] and
duly authorized such sale and assignment to the Transferor[s] by all
necessary corporate action.
(vii) The statements in the Prospectus under the caption
"Material Legal Aspects of the Receivables" to the extent they constitute
matters of law or legal conclusions, are correct in all material
respects.
(viii) The Receivables are either "chattel paper," "accounts,"
"general intangibles" or "payment intangibles" under the Uniform
Commercial Code.
(ix) Immediately prior to the sale of the Receivables to the
Transferor[s], Ford Credit owned the Receivables free and clear of any
lien, security interest or charge. With respect to each Receivable
constituting part of the Trust Assets, such Receivable is secured by a
validly perfected first priority security interest in the vehicle
financed thereby in favor of Ford Credit as a secured party or Ford
Credit has instituted appropriate procedures that, if followed (and such
counsel has no reason to believe that they will not be so followed), will
result in the perfection of a first priority security interest in the
vehicle financed thereby in favor of Ford Credit as a secured party. Each
such Receivable has been duly and validly assigned to the [applicable]
Transferor by Ford Credit.
(x) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
(xi) The Issuer is not, and will not be as a result of the offer
and sale of the Notes contemplated by this Agreement, required to be
registered under the Investment Company Act of 1940, as amended.
(xii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein or in the Sale and Assignment Agreement,
the Receivables Purchase Agreement[s], the Transfer and Servicing
Agreement[s], the Administration Agreement, [the Interest Rate Swap
Agreement]/*/ or the Indemnification Agreement, except such as may be
required under federal or state securities laws, filings with respect the
transfer of the Receivables to the Transferor[s] pursuant to the
Receivables Purchase Agreement[s] and to the Issuer pursuant to the
Transfer and Servicing Agreement[s] and such other approvals as have been
obtained.
(xiii) Such counsel does not know of any legal or governmental
proceedings pending to which either Ford Credit or [the][either]
Transferor is a party or of which any property of either Ford Credit or
[the][such] Transferor is the subject, and no such proceedings are known
by such counsel to be threatened or contemplated by governmental
authorities or threatened by others (i) seeking to prevent the issuance
of the Notes or the consummation of any of the transactions contemplated
by this Agreement, the Sale and Assignment Agreement, the Receivables
Purchase Agreement[s], the Transfer and Servicing Agreement[s], [or] the
Administration Agreement, [or the Interest Rate Swap Agreement]/*/, or (ii)
seeking adversely to affect the federal income tax attributes of the
Notes as described in the Prospectus under the heading "Material Federal
Income Tax Consequences."
(xiv) Neither the execution, nor the issuance or sale of the
Notes and delivery of the Notes, the Sale and Assignment Agreement, the
Receivables Purchase Agreement[s], the Transfer and Servicing
Agreement[s], [or] the Administration Agreement, [or the Interest Rate
Swap Agreement]/*/, including, without limitation, this Agreement nor the
consummation of any of the other transactions contemplated herein or in
the Sale and Assignment Agreement, Receivables Purchase Agreement[s], the
Transfer and Servicing Agreement[s], [the Interest Rate Swap Agreement]/*/
or Indemnification Agreement by Ford Credit or the Transferor[s], as the
case may be, contravenes or will contravene the terms of any material
provision of any statute, order, or regulation applicable to Ford Credit
or [the][either] Transferor, as the case may be, the failure to comply
with which could have a material adverse effect on Ford Credit and its
subsidiaries considered as a whole or [the][such] Transferor, as the case
may be.
______________
/*/ Insert only if Ford Credit is swap counterparty
(i) ___________________________, Secretary of Ford, or other counsel
satisfactory to the Representative in its reasonable judgment, will have
furnished to the Representative a written opinion, dated as of the Closing
Date, in form satisfactory to the Representative in its reasonable judgment,
to the effect that:
(i) Ford has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and
is duly qualified to transact business and is in good standing in each
jurisdiction in the United States of America in which the conduct of its
business or the ownership of its property requires such qualification,
with only such exceptions as are not material to the business of Ford and
its subsidiaries, considered as a whole.
(ii) The Sale and Assignment Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding obligation
of, Ford.
(iii) The consummation of the transactions contemplated by the
Sale and Assignment Agreement, and the fulfillment of the terms thereof,
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under (in each case material to
Ford and its subsidiaries considered as a whole), or result in the
creation or imposition of any lien, charge or encumbrance (in each case
material to Ford and its subsidiaries considered as a whole) upon any of
the property or assets of Ford pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument known to such counsel under
which Ford is a debtor or guarantor, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of Ford.
(iv) Such counsel does not know of any legal or governmental
proceedings pending to which Ford is a party or of which any property of
Ford Credit is the subject, and no such proceedings are known by such
counsel to be threatened or contemplated by governmental authorities or
threatened by others, other than as set forth or contemplated in the
Prospectus as amended or supplemented and other than such proceedings
which, in her opinion, will not have a material adverse effect upon the
general affairs, financial position, net worth or results of operations
(on an annual basis) of Ford and its subsidiaries considered as a whole
and will not materially and adversely affect the performance by Ford of
its obligations under, or the validity and enforceability of, the Sale
and Assignment Agreement.
(v) Ford had and has full power and authority to sell and assign
the property sold and assigned or to be sold and assigned to Ford Credit
pursuant to the Sale and Assignment Agreement and duly authorized such
sale and assignment to Ford Credit by all necessary corporate action.
(vi) Immediately prior to the sale of the In-Transit Receivables
to Ford Credit, Ford owned the In-Transit Receivables free and clear of
any lien, security interest or charge. With respect to each In-Transit
Receivable constituting part of the Trust Assets, such In-Transit
Receivable is secured by a validly perfected first priority security
interest in the amounts payable by the related Dealers from time to time
in respect of such Dealers' purchases of New Vehicles manufactured or
distributed by Ford, in favor of Ford Credit as a secured party or Ford
Credit has instituted appropriate procedures that, if followed (and such
counsel has no reason to believe that they will not be so followed), will
result in the perfection of a first priority security interest in such
amounts payable in favor of Ford Credit as a secured party. Each
In-Transit Receivable has been duly and validly assigned to Ford Credit
by Ford.
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated in the Sale and Assignment Agreement, except
such as may be required under federal or state securities laws and
filings with respect to the transfer of the In-Transit Receivables to
Ford Credit pursuant to the Sale and Assignment Agreement and such other
approvals as have been obtained.
(viii) Such counsel does not know of any legal or governmental
proceedings pending to which Ford is a party or of which any property of
Ford is the subject, and no such proceedings are known by such counsel to
be threatened or contemplated by governmental authorities or threatened
by others (i) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by Transaction
Agreements, or (ii) seeking adversely to affect the federal income tax
attributes of the Notes as described in the Prospectus under the heading
"Material Federal Income Tax Consequences."
(ix) Neither the execution and delivery of the Sale and
Assignment Agreement by Ford nor the consummation of any of the other
transactions contemplated herein or therein, contravenes or will
contravene the terms of any material provision of any statute, order or
regulation applicable to Ford, the failure to comply with which could
have a material adverse effect on Ford and its subsidiaries considered as
a whole.
(j) Sidley Xxxxxx Xxxxx & Xxxx LLP (or such other counsel
satisfactory to the Representative) will have furnished their written opinion,
dated the Closing Date, with respect to the characterization of the transfer
of the In-Transit Receivables by Ford to Ford Credit as a sale, the transfer
of all Receivables by Ford Credit to the Transferor[s] as a sale, and with
respect to the characterization of the transfer of the Receivables from the
Transferor[s] to the Issuer, as well as certain related matters, and such
opinion will be in substantially the form previously discussed with the
Representative and Ford Credit and in any event satisfactory in form and in
substance to the Representative and to Ford Credit.
(k) _____________________________, counsel to the Trust, will have
furnished an opinion, dated the Closing Date, addressing such matters as the
Representative and its counsel reasonably request regarding the Trust and
related matters.
(l) _____________________________, special Delaware counsel, will
have furnished an opinion, dated the Closing Date, addressing such matters as
the Representative and its counsel may reasonably request regarding various
Delaware U.C.C. matters.
(m) Sidley Xxxxxx Xxxxx & Xxxx LLP, special federal tax counsel to
the Transferor[s], will have furnished their written opinion, dated as of the
Closing Date, in form and in substance satisfactory to the Representative in
its reasonable judgment, to the effect that the statements in the Registration
Statement and the Prospectus under the headings "Material Federal Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
matters of law or legal conclusions with respect thereto, have been prepared
or reviewed by such counsel and are correct in all material respects.
(n) [ ] [Secretary and Corporate Counsel of Ford
Credit], or such other counsel satisfactory to the Representative in its
reasonable judgment, shall have furnished a written opinion, dated as of the
Closing Date, in form satisfactory to the Representative in its reasonable
judgment, to the effect that, assuming the Trust will not be classified as an
association taxable as a corporation for federal income tax purposes and the
Notes will be characterized as debt for federal income tax purposes:
(i) The Trust should have no Michigan single business tax
liability.
(ii) The Notes will be characterized as debt for Michigan income
and single business tax purposes.
(iii) Note Owners not otherwise subject to tax in Michigan
should not be subject to tax in Michigan solely because of a Note Owner's
ownership of the Notes.
(iv) The statements in the Registration Statement and Prospectus
under the heading "Summary--Tax Status" as they relate to Michigan tax
matters and under the heading "Certain State Tax Consequences," to the
extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(o) The Representative will have received an opinion of Sidley Xxxxxx
Xxxxx & Xxxx LLP, addressed to the Representative, dated the Closing Date,
with respect to the validity of the Notes and such other related matters as
the Representative will require and the Transferor[s] shall have furnished or
caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(p) The Representative will have received an opinion addressed to the
Representative, the Transferor[s] and the Servicer of [________], counsel to
the Owner Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and to counsel to the Underwriters, to the
effect that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a [banking corporation] [bank and trust company] in good
standing under the laws of [_____].
(ii) The Owner Trustee has all necessary power and authority to
execute and deliver the Trust Agreement and the Certificate of Trust and
to execute and deliver, on behalf of the Issuer, each of the Transfer and
Servicing Agreement[s], the Indenture, the Administration Agreement and
the Interest Rate Swap Agreement. The Owner Trustee has all necessary
power and authority to execute the Notes on behalf of the Issuer.
(iii) Each of the Trust Agreement and the Certificate of Trust
has been duly executed and delivered by the Owner Trustee and each of the
Transfer and Servicing Agreement[s], the Indenture, the Administration
Agreement and the Interest Rate Swap Agreement has been duly executed and
delivered by the Owner Trustee on behalf of the Issuer. Each of the Notes
has been duly executed and delivered by the Owner Trustee on behalf of
the Issuer.
(iv) Neither the execution and delivery of the Trust Agreement
and the Certificate of Trust by the Owner Trustee nor the execution and
delivery of the Transfer and Servicing Agreement[s], the Indenture, the
Administration Agreement and the Interest Rate Swap Agreement conflicts
with or results in a breach of or constitutes a default under the Owner
Trustee's organizational certificate or by-laws, any federal or [______]
law, rule or regulation governing its banking or trust powers or, to the
best of such counsel's knowledge, without independent investigation, any
judgment or order applicable to the Owner Trustee or its acts or any
indenture mortgage, contract or other agreement or instrument to which
the Owner Trustee in its respective capacities is a party or by which it
is bound.
(v) Neither the execution and delivery by the Owner Trustee, on
behalf of the Issuer, of the Transfer and Servicing Agreement[s], the
Indenture, the Administration Agreement, the Interest Rate Swap Agreement
or the Notes nor the execution and delivery by the Owner Trustee of the
Trust Agreement or the Certificate of Trust 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 ______ or the federal
laws of the United States governing the banking or trust powers of the
Owner Trustee.
(vi) To the best of such counsel's knowledge, without
independent investigation, there are no actions or proceedings pending or
threatened against the Owner Trustee in any court or before any
governmental authority, arbitration board or tribunal of _______ which
involve the Trust Agreement, the Certificate of Trust, the Transfer and
Servicing Agreement[s], the Indenture, the Administration Agreement, the
Interest Rate Swap Agreement or the Notes or would question the right,
power or authority of the Owner Trustee to enter into or perform its
obligations under the Trust Agreement or the Certificate of Trust or to
execute and deliver, on behalf of the Issuer, the Transfer and Servicing
Agreement[s], the Indenture, the Administration Agreement, the Interest
Rate Swap Agreement or the Notes.
(q) The Representative will have received an opinion addressed to the
Representative, the Transferor[s] and the Servicer of [________], counsel to
the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and to counsel to the Underwriters, to the
effect that:
(i) The Indenture Trustee has been duly incorporated and is
validly existing as a _________________ in good standing under the laws
of [_____] with full corporate trust power and authority to enter into
and perform its obligations under the Indenture.
(ii) The Indenture has been duly executed and delivered by the
Indenture Trustee, and, insofar as the laws governing the trust powers of
the Indenture Trustee are concerned and assuming due authorization,
execution and delivery thereof by the Owner Trustee, the Indenture
constitutes a legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with its
terms, except (1) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, and (2) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) Neither the execution nor delivery by the Indenture
Trustee of the Indenture nor the consummation of any of the transactions
by the Indenture Trustee contemplated thereby required the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action with respect to, any governmental authority or
agency under any existing federal or [__________] law governing the trust
powers of the Indenture Trustee, except such as have been obtained, made
or taken.
(iv) The Notes have been duly authenticated and delivered by the
Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the
Indenture and the performance by the Indenture Trustee of its obligations
thereunder do not conflict with or result in a breach or violation of any
of the terms, conditions or provisions of any law, governmental rule or
regulations of the United States or the State of __________ governing the
banking or trust powers of the Indenture Trustee or the Certificate of
Incorporation or By-Laws of the Indenture Trustee or, to such counsel's
knowledge, any order, writ, injunction or decree of any court or
governmental authority against the Indenture Trustee or by which it or
any of its properties is bound or, to such counsel's knowledge, any
indenture, mortgage or contract or other agreement or instrument to which
the Indenture Trustee is a party or by which it or any of its properties
is bound, or constitute a default thereunder.
(r) The Representative will have received an officer's certificate
dated the Closing Date of the Chairman of the Board, the President, the
Executive Vice President-Finance, the Treasurer of each of Xxxx, Xxxx Credit,
[the][each] Transferor and the Servicer in which such officers shall state
that, to the best of their knowledge after reasonable investigation, the
representations and warranties of Ford and Ford Credit contained in the Sale
and Assignment Agreement, the representations and warranties of Ford Credit
and the Transferor[s] contained in the Receivables Purchase Agreement, the
representations and warranties of the Transferor[s] and the Servicer contained
in the Transfer and Servicing Agreement[s] and the representations and
warranties of the Transferor[s] contained in the Trust Agreement, as the case
may be, are true and correct in all material respects, that Xxxx, Xxxx Credit,
[the][each] Transferor or the Servicer, as the case may be, has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date in all
material respects.
(s) The Interest Rate Swap will have been duly authorized, executed
and delivered by each party thereto and all fees due and payable to [____]
thereunder will have been paid in full on or prior to the Closing Date.
(t) The Notes will have been rated in one of the four highest rating
categories by at least one nationally recognized rating organization.
7. Indemnification and Contribution.
--------------------------------
(a) [The][Each] Transferor will indemnify and hold each Underwriter
harmless against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that [the][such]
Transferor will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon 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][such] Transferor by any Underwriter through the
Representative specifically for use therein; and provided, further, that
[the][such] Transferor not be liable to any Underwriter or any Person
controlling any Underwriter under the indemnity agreement in this subsection
(a) with respect to any of such documents to the extent that any such loss,
claim, damage or liability of the Underwriters or such controlling Person
results from the fact that such Underwriter sold the Notes to a Person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the related Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
the Transferor[s] [has][have] previously furnished copies thereof to such
Underwriter.
The indemnity agreement in this subsection (a) is in addition to any
liability which the Transferor[s] 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 will indemnify and hold harmless [the][each]
Transferor against any losses, claims, damages or liabilities to which
[the][such] Transferor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to [the][such] Transferor by
such Underwriter through the Representative specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by [the][such]
Transferor in connection with investigating or defending any such action or
claim.
The indemnity agreement in this subsection (b) is in addition to any
liability which each Underwriter may otherwise have and extends, upon the same
terms and conditions, to each Person, if any, who controls [the][either]
Transferor 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 this Section to such
indemnified party unless the indemnifying party receives other notice
addressed and delivered in the manner provided in Section 10 hereof of the
commencement of such actions but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under such 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 this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
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 Transferor[s] on the one hand
and the Underwriters on the other from the offering of the Notes. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party will contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Transferor[s] on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims,
damages, or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative benefits received by the
Transferor[s] on the one hand and the Underwriters 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 Transferor[s] bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the related Prospectus as
amended or supplemented with respect to the Notes. The relative fault is
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Transferor[s] or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission, including, with respect to any Underwriter, the extent to which such
losses, claims, damages or liabilities (or actions in respect thereof) result
from the fact that such Underwriter sold such Notes to a Person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the related Prospectus as then supplemented or amended (excluding
documents incorporated by reference), whichever is more recent, if the
Transferor[s] [has][have] previously furnished copies thereof to such
Underwriter. The Transferor[s] and the Underwriters, severally and not
jointly, agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d) are
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim. Notwithstanding the provisions of this subsection (d), no Underwriter
will be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
8. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements of
the Transferor[s] (including, without limitation, Section 5(k)) or its
officers and of the Underwriters set forth in or made pursuant to this
Underwriting Agreement will remain in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
any Underwriter or [the] Transferor or any of their respective
representatives, officers or directors of any controlling Person, and will
survive delivery of and payment for the Notes.
9. Failure to Purchase the Notes. If the purchase of the Notes is not
-----------------------------
consummated by the Underwriters because the condition set forth in Section
6(e) has occurred, then the Transferor[s] will not have any liability to the
Underwriters with respect to the Notes except as provided in Section 5(h) and
Section 7 hereof; but if for any other reason any Notes are not delivered by
the Transferor[s] as provided herein, the Transferor[s] will be liable to
reimburse the Underwriters, through the Representative, for all out-of-pocket
expenses, including counsel fees and disbursements reasonably incurred by the
Underwriters in making preparations for the offering of the Notes, but the
Transferor[s] will then have no further liability to any Underwriter with
respect to the Notes except as provided in Section 5(h) and Section 7 hereof.
If any Underwriter or Underwriters default on their obligations to purchase
Notes hereunder and the aggregate principal amount of Notes that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Notes, the Representative may make
arrangements satisfactory to the Transferor[s] for the purchase of such Notes
by other Persons, including the non-defaulting Underwriter or Underwriters,
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriter or Underwriters will be obligated, in proportion to their
commitments hereunder, to purchase the Notes that such defaulting Underwriter
or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Notes and arrangements satisfactory to the non-defaulting
Underwriter or Underwriters and the Transferor[s] for the purchase of such
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 or the Transferor[s], except as provided in Section 8. As used in
this Underwriting Agreement, the term "Underwriter" includes any Person
substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter or Underwriters from liability for its default.
10. Notices. All communications hereunder will be in writing and, if sent
-------
to the Representative or the Underwriters, will be mailed, delivered or sent
by facsimile transmission or other electronic means and confirmed to
_________, ___________ Attention: ____, facsimile number (___) ___-____, if
sent to the Transferor[s], will be mailed, delivered or sent by facsimile
transmission, and confirmed to [it][them] at Ford Credit Auto Receivables
Corporation, Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention of the
Secretary - facsimile number [(313) _________].
11. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the Underwriters and the ------------------- Transferor[s] and
their respective successors and the officers and directors and controlling
Persons referred to in Section 7, and no other Person will have any right or
obligations hereunder.
12. GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED IN
-------------
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER ARE TO BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
13. Counterparts. This Agreement may be executed by each of the parties
------------
hereto in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, will be deemed to be an original, but all such counterparts will
together constitute but one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, whereupon this letter and your
acceptance hereof will constitute a binding agreement.
Very truly yours,
[FORD CREDIT AUTO RECEIVABLES
CORPORATION]
By:__________________________________
Name:
Title:
[FORD CREDIT AUTO RECEIVABLES LLC]
By:________________________________
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
[___________________]
Acting on its own behalf and
as Representative of the
several Underwriters
By:_________________________________
Name:
Title:
SCHEDULE I
Series 200[ ]-[_] Notes
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Series 200[ ]-[_] Note Total..........................................[$______]
