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 (such Agreement, 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") through the representative or representatives (in
either case, the "Representatives") of the underwriters signing this Agreement
(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 motor vehicle retail installment
sale contracts for new and used automobiles and 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") by and 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 may 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 Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (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
Notes that are required to be registered with the Commission (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 ("Exempt Notes", and the Exempt Notes together
with the Publicly Registered Notes, the "Underwritten Notes"). Any reference in
this Agreement to the Registration Statement, any preliminary prospectus used in
connection 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.
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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 Underwriting 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; 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
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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 under "Time of Sale Information" in the Terms Annex and other
written communication approved by the Representatives. 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 the Exempt Notes under the Act is not required in connection
with their offer, issuance, sale or delivery.
(e) Documents Incorporated by Reference. Other than with respect to
any Derived Information (as to which the Depositor makes no representation) 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
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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 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 Depositor enforceable against the
Depositor, except as may be limited by insolvency, bankruptcy, reorganization or
other laws relating to the enforcement of creditors' rights 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.
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(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.
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 Ford
Financial Services, Inc. ("Ford Financial") at the office of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 the Underwriters, at the office of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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
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 Ford Financial
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intends 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 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 underwriter of
the Exempt Notes.
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(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 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
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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 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 on the part 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) Accountants' 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.
(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 suspending the
effectiveness of the Registration Statement will be in effect, 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
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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 the Underwriting 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 the Underwriting 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 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
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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. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 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
11
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 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
12
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 Basic 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.
(xii) Assuming the Notes will be treated as debt for federal
income tax purposes, the Notes will be characterized as debt for purposes
of the Michigan income tax (which is levied upon individuals and trusts or
estates subject to subchapter J of the Internal Revenue Code) and the
Michigan Single Business Tax ("SBT").
(xiii) [So long as the Trust is not treated as an entity separate
from its owner (such as a corporation, partnership or certain subchapter J
trusts) for U.S. federal income tax purposes, the Trust will not be treated
as an entity separate from its owner for Michigan income tax and SBT
purposes and the Trust will therefore have no SBT liability. However, if
the Trust were treated as an entity separate from its owners (e.g., a
partnership) for Michigan income tax and SBT purposes, the Trust would be
subject to the SBT. If the Trust were subject to the SBT, the Trust would
not be characterized as a financial organization for purposes of the SBT
and, as a result, would not be taxable on interest income, but would be
taxable on any other income (at the present rate of [ ]%) as reduced by
allowable deductions.]
(xiv) [The statements in the Prospectus under the heading
"Summary-Tax Status" as they relate to Michigan tax matters and under the
heading "State Tax Matters", to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been prepared, reviewed
or caused to be reviewed by such counsel and are correct in all material
respects.]
13
(xv) [Noteholders not otherwise subject to tax in Michigan should
not be subject to tax in Michigan solely because of a Noteholder's
ownership of the Notes.]
(h) Bankruptcy Opinion. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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.
(i) Corporate Opinion. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or
such other counsel satisfactory to the Representatives in their reasonable
judgment) will have furnished their 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 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.
14
(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 Transaction
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.
(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 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 Ford
Financial 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.
15
(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.
(j) Tax Opinion. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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:
(i) The Trust will not be classified as an association taxable as
a 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).
(ii) The statements in the Registration Statement and the
Prospectus under the heading "Summary- Tax Status" as they relate to
federal income tax matters and under the heading "Tax Matters - Federal
Income Tax Matters," 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.
(k) Negative Assurances. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (or
such other counsel satisfactory to the Representatives in their reasonable
judgment), special counsel to the Depositor and Ford Credit, will have stated
that they have participated in conferences with representatives of the Depositor
and Ford Credit and with Ford Credit's in-house counsel, and with the
Representatives and their counsel, concerning the Registration Statement, the
Prospectus and the Offering Materials and, and although such counsel is not
independently verifying the accuracy, completeness or fairness of such
documents, confirms that on the basis of such information:
(i) Each of the Registration Statement, as of its Effective Date,
and the Prospectus, as of its date and the Closing Date, appeared on its
face to be appropriately responsive in all material respects to the Act and
the Rules and Regulations (except that such counsel does not express any
view as to financial statements, schedules or other financial or
statistical information included or incorporated by reference therein or
excluded therefrom or to the exhibits to the Registration Statement).
16
(ii) No facts have come to such counsel's attention to cause such
counsel to believe that the Time of Sale Information, considered as a
whole, as of the Time of Sale, considered together with the statements in
the Prospectus with respect to items dependent upon the pricing terms and
delivery date of the Notes, contained an untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that
the Prospectus or the Offering Memorandum, as last amended or supplemented,
as of their respective dates and as of the Closing date, contained or
contains an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading (except
that such counsel does not express any view as to financial statements,
schedules or other financial or statistical information included or
incorporated by reference therein or excluded therefrom).
(iii) The Notes, the Indenture, the Underwriting Agreement and
the other Basic Documents conform in all material respects with their
descriptions in the Prospectus.
(iv) The statements in the Prospectus under the heading "ERISA
Considerations" and the statements in the Offering Memorandum under the
heading "Eligible Purchasers", to the extent that they constitute matters
of law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and fairly summarize the matters referred to
therein in all material respects.
(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
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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.
17
(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 Servicing Agreement, the Administration Agreement 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
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,
Control Agreement, 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, 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 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, Control Agreement or the Notes.
18
(n) Delaware Trust Opinion. The Representatives will have received an
opinion addressed to the Representatives, the Depositor and Ford Credit of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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 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 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 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 agreement, indenture,
19
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 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ (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.
20
(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, 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
21
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 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 not misleading 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 or the Time of Sale Information, 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 Prospectus attached thereto) and if more recent, the Time of Sale
Information, 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 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 not misleading
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 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
prepared by such Underwriter and is not Trust
22
Information, 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 the Underwriters
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 the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Depositor 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 Depositor bear to the total underwriting discounts and
commissions received by the Underwriters, in each
23
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 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 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 or the Time of
Sale Information, 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 Prospectus attached
thereto) and if more recent, the Time of Sale Information, 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.
8. Free Writing Prospectuses; Delivery of Preliminary Prospectus
(a) The Depositor and each Underwriter represents that it has not and
will not use (i) any Free Writing Prospectus except as specified in the Terms
Annex and
24
(ii) any "ABS informational and computational material," as defined in Item
1101(a) of Regulation AB under the Act ("ABS Informational and Computational
Material") in reliance upon Rules 167 and 426 under the Act.
(b) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, no Underwriter will convey or deliver
any written communication to any person in connection with the initial offering
of the 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.
(c) Each Underwriter will deliver to the Depositor and Ford Credit, no
later than two Business Days prior to the date of first use thereof, any Free
Writing Prospectus prepared by or on behalf of the Underwriter, including any
Free Writing Prospectus that contains any "issuer information", as defined in
Rule 433(h) under the Act ("Trust Information"), (any Free Writing Prospectus
prepared by an Underwriter is referred to as an "Underwriter Free Writing
Prospectus").
(d) Each Underwriter represents and warrants to the Depositor and Ford
Credit that each Underwriter Free Writing Prospectus did 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 the 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 Underwriter, which
information was not corrected by Corrective Information subsequently supplied by
the Depositor or Ford Credit to the Representatives or such 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) Any Trust Free Writing Prospectus;
(ii) Any Underwriter Free Writing Prospectus at the time required
to be filed; and
(iii) Any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized or 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) Notwithstanding the provisions of Section 8(e), the Depositor will
not 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.
25
(g) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it will contain 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 ▇▇▇▇▇ on
the SEC website at ▇▇▇.▇▇▇.▇▇▇. 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]
(h) The Depositor and the Underwriters each 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.
(i) If any Underwriter becomes aware that, as of the Time of Sale, any
Underwriter Free Writing Prospectus delivered to a purchaser of a Note contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (such Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter will notify
the Depositor and Ford Credit thereof within one Business Day after discovery.
(ii) Provided that the Defective Free Writing Prospectus was a Trust
Free Writing Prospectus or contained Trust Information, the Underwriter
will, if requested by the Depositor:
(1) Prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective Free
Writing Prospectus (such corrected Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2) Deliver the Corrected Free Writing Prospectus to each
purchaser of a Note which received the Defective Free Writing
Prospectus prior to entering into an agreement to purchase any
Notes;
(3) Reform the contract of purchase with such purchaser by
notifying such purchaser in a prominent fashion that the prior
agreement to purchase Notes has been terminated, and of such
purchaser's rights as a result of termination of such agreement;
and
(4) Provide such purchaser with an opportunity to
affirmatively agree to purchase such Notes on the terms described
in the Corrected Free Writing Prospectus.
26
(j) Each 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 Underwriter is acting as an
"underwriter" (as defined in Section 2(a)(11) of the Act) with respect to the
Notes, convey 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 Underwriters by
the Depositor), at or prior to the applicable time of any such contract of sale
with respect to such investor, the Preliminary Prospectus.
(k) Each Underwriter covenants with the Depositor and the Trust that
after the final Prospectus is available the Underwriter will not distribute any
written information concerning the Notes 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 are not be consummated
because the circumstances described in Section 6(e) 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(i) and Section 7; but if for
any other reason 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(i) 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, 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
27
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(i)
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 Company 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 Representatives or the Underwriters will be given to
the Representatives at:
(i) [________________],
(ii) [________________], and
(iii) [________________].
Communications to the Depositor will be given to:
Ford Motor Credit Company
28
c/o Ford Motor Company
World Headquarters
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ford Credit SPE Management Office
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Ford Motor Credit Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 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
29
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.
30
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:
-----------------------------
[NAME OF UNDERWRITER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
31
[NAME OF UNDERWRITER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[NAME OF UNDERWRITER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[NAME OF UNDERWRITER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[NAME OF UNDERWRITER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[NAME OF UNDERWRITER]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
32
ANNEX A
FORM OF TERMS ANNEX
FORD CREDIT AUTO RECEIVABLES TWO LLC
(DEPOSITOR)
[__________], 2006
[NAMES OF REPRESENTATIVES]
On behalf of themselves and as representatives
(the "Representatives") of the other Underwriters
TERMS OF THE NOTES
Pricing Date: [_______]
Time of Sale: [_______]
Closing Date: [_______]
Exempt Notes: Class A-1 Notes
Publicly Registered Notes: Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
Class C Notes
Required Ratings as of the Closing Date:
S&P ▇▇▇▇▇'▇ FITCH
---- ------- -----
Class A-1 Notes A-1+ P-1 F1+
Class A-2 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-1
PURCHASE PRICE
(as a % of the
AGGREGATE INTEREST aggregate FINAL SCHEDULED
NOTES PRINCIPAL AMOUNT RATE principal amount) PAYMENT DATE
----- ---------------- -------- ----------------- ---------------
Class A-1 Notes $[____] [__]% [__]% [__]
Class A-2 Notes $[____] [__]% [__]% [__]
Class A-3 Notes $[____] [__]% [__]% [__]
Class A-4 Notes $[____] [__]% [__]% [__]
Class B Notes $[____] [__]% [__]% [__]
Class C Notes $[____] [__]% [__]% [__]
Class D Notes $[____] [__]% [__]% [__]
UNDERWRITERS AND ALLOTMENTS
Underwriters Notes
------------ ---------------------------------------------
Initial Initial Initial Initial
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
--------- --------- --------- ---------
[__________] [____] [____] [____] [____]
[__________] [____] [____] [____] [____]
[__________] [____] [____] [____] [____]
[__________] [____] [____] [____] [____]
[__________] [____] [____] [____] [____]
[__________] [____] [____] [____] [____]
[Ford Financial Services, Inc.] [____] [____] [____] [____]
====== ====== ====== ======
Total.......................... [____] [____] [____] [____]
A-2
Initial Initial
Principal Principal
Amount of Amount of
Class B Class C
Underwriters Notes Notes
------------ --------- ---------
[__________] [____] [____]
[__________] [____] [____]
[__________] [____] [____]
[__________] [____] [____]
[__________] [____] [____]
[__________] [____] [____]
[Ford Financial Services, Inc.] [____] [____]
====== ======
Total [____] [____]
PARTIES
Trust: Ford Credit Auto Owner Trust [________].
Owner Trustee: [U.S. Bank Trust, National Association].
Indenture Trustee: [The Bank of New York].
DOCUMENTS
Indenture: Indenture, to be dated as of Cutoff
Date, by and between the Trust and the
Indenture Trustee.
Trust Agreement: Amended and Restated Trust Agreement,
to be dated as of Cutoff Date, between
the Depositor, as 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 Agreement: Sale and Servicing Agreement, to be
dated as of Cutoff Date, among the
Depositor, the Servicer and the Trust.
A-3
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, the Indenture Trustee and [The
Bank of New York], in its capacity as a
securities intermediary.
Indemnification Agreement: Indemnification Agreement, dated the
Pricing Date, among Ford Credit and the
Representatives.
Address for Notice to Representatives:
[__________________]
[__________________]
TIME OF SALE INFORMATION
Preliminary Prospectus: Preliminary Prospectus, dated as of
[___________], 200[_].
TRUST FREE WRITING PROSPECTUSES
- None
A-4