1
EXHIBIT 1.1
FORD CREDIT 1995-B GRANTOR TRUST
____% ASSET BACKED CERTIFICATES
FORD CREDIT AUTO RECEIVABLES CORPORATION
(SELLER)
November 8, 1995
UNDERWRITING AGREEMENT
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
As Representatives
(the "Representative") of the
Several Underwriters,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Ford Credit Auto Receivables
Corporation, a Delaware corporation (the "Seller"), proposes to sell
$_______________ principal amount of its ____% Asset Backed Certificates, Class
A (the "Class A Certificates") of the Ford Credit 1995-B Grantor Trust (the
"Trust"). Each Class A Certificate will represent a fractional undivided
interest in the Trust. The assets of the Trust will include, among other
things, a pool of retail installment sale contracts for new and used
automobiles and light trucks (the "Receivables") and certain monies due
thereunder on or after November 1, 1995 (the "Cutoff Date"), such Receivables
to be sold to the Trust and to be serviced for the Trust by Ford Motor Credit
Company, a Delaware corporation (the "Servicer" or "Ford Credit"). The Class A
Certificates will be issued in an aggregate principal amount of
$________________, which is equal to 93.5% of the aggregate principal balance
of the Receivables, as of the Cutoff Date. Simultaneously with the issuance
and sale of the Class A Certificates as contemplated herein, the Trust will
also issue certificates entitled "____% Asset Backed Certificates, Class B"
(the "Class B Certificates," and together with the Class A Certificates, the
"Certificates") evidencing an undivided ownership interest of 6.5% in the
Trust, payments
2
in respect of which are, to the extent specified in the Pooling and Servicing
Agreement (defined below), subordinated to the rights of the holders of the
Class A Certificates. The Certificates will be issued pursuant to a pooling
and servicing agreement (the "Pooling and Servicing Agreement") to be dated as
of November 1, 1995, among the Seller, the Servicer and Chemical Bank, as
trustee (the "Trustee") and as Class A Agent.
Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Seller. The
Seller represents and warrants to and agrees with the several underwriters
named in Schedule I hereto (the "Underwriters") that:
(a) A registration statement (No. 33-63345),
including a prospectus, on Form S-3, in respect of the Class A Certificates has
been filed with the Securities and Exchange Commission (the "Commission") in
the form heretofore delivered to the Underwriters. Such registration statement
in such form, including the exhibits thereto and any material incorporated by
reference therein, is hereinafter referred to as the "Registration Statement,"
and such prospectus, as first filed, or mailed for filing, with the Commission
pursuant to Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as
amended (the "Act") is hereinafter referred to as the "Prospectus." For
purposes of this Agreement, "Effective Time" means the date and time as of
which such Registration Statement is declared effective by the Commission, and
"Effective Date" means the date of the Effective Time.
(b) On the Effective Date, the Registration
Statement will conform, in all material respects to the requirements of the
Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
where applicable, and the rules and regulations of the Commission under the Act
or the Exchange Act, as applicable, and will not, as of the Effective Date,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to
2
3
any statement or omission made in reliance upon and in conformity with
information furnished in writing to the Seller by the Underwriters expressly
for use in the Registration Statement relating to such Class A Certificates.
On the date of this Agreement, the Registration Statement conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"), and, except as aforesaid, neither of
such documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The consummation by the Seller of the
transactions contemplated by this Agreement and the Pooling and Servicing
Agreement, and the fulfillment of the terms thereof, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation of any lien, charge, or encumbrance
upon any of the property or assets of the Seller 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 Seller is a
debtor or guarantor.
3. Purchase, Sale, and Delivery of Certificates. On the
basis of the representations, warranties, and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to sell
to the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, the aggregate principal amounts of the Class A
Certificates set forth opposite the names of the Underwriters in Schedule I
hereto. The Class A Certificates are to be purchased at the purchase price of
______% of the aggregate principal amount thereof plus accrued interest at the
applicable Pass-Through Rate (as defined in the Registration Statement)
calculated from (and including) November 15, 1995 to (but excluding) the
Closing Date.
Against payment of the purchase price in immediately available
funds drawn to the order of the Seller, the Seller will deliver the Class A
Certificates to the Representative, for the account of the Underwriters, at
3
4
the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ on November 15, 1995, at
10:00 a.m., New York time, or at such other time not later than seven full
business days thereafter as the Representative and the Seller determine, such
time being herein referred to as the "Closing Date." The Class A Certificates
to be so delivered will be initially represented by one or more Class A
Certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Class A Certificates will be represented by book entries on the records of DTC
and participating members thereof. Definitive Class A Certificates will be
available only under limited circumstances.
4. Offering by Underwriters. It is understood that,
after the Registration Statement becomes effective, the Underwriters propose to
offer the Class A Certificates for sale to the public (which may include
selected dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and
agrees with the Underwriters:
(a) If required, to file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (3) of the Rule
424(b) not later than the time specified therein. The Seller will advise the
Underwriters promptly of any such filing pursuant to Rule 424(b).
(b) To make no amendment or any supplement to the
Registration Statement or the Prospectus as amended or supplemented prior to
the Closing Date, without furnishing the Representative with a copy of the
proposed form thereof and providing the Representative with a reasonable
opportunity to review the same; and during such same period to advise the
Representative, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of the Class A
Certificates for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the
4
5
amending or supplementing of the Registration Statement or the Prospectus as
amended or supplemented or for additional information; and, in the event of the
issuance of any such stop order or of any order preventing or suspending the
use of any prospectus relating to the Class A Certificates or suspending any
such qualification, to use promptly its best efforts to obtain its withdrawal.
(c) Promptly from time to time to take such
action as the Representative may reasonably request in order to qualify the
Class A Certificates for offering and sale under the securities laws of such
states as the Representative may request and to continue such qualifications in
effect so long as necessary under such laws for the distribution of such Class
A Certificates, provided that in connection therewith the Seller shall not be
required to qualify as a foreign corporation to do business, or to file a
general consent to service of process in any jurisdiction, and provided further
that the expense of maintaining any such qualification more than one year from
the Closing Date with respect to such Class A Certificates shall be at the
Representative's expense.
(d) To furnish the Underwriters with copies of
the Registration Statement (including exhibits) and copies of the Prospectus as
amended or supplemented in such quantities as the Representative may from time
to time reasonably request; and if, before a period of six months shall have
elapsed after the Closing Date and the delivery of a prospectus shall be at
the time required by law in connection with sales of any such Class A
Certificates, either (i) any event shall have occurred as a result of which the
Prospectus would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus as amended or supplemented, to notify the
Representative and to prepare and furnish to the Representative as the
Representative may from time to time reasonably request an amendment or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required by law to
deliver a
5
6
prospectus in connection with sales of any of such Class A Certificates at any
time six months or more after the Closing Date, upon the Representative's
request, but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representative may request of an amended or
supplemented prospectus complying with Section 10(a)(3) of the Act.
(e) To make generally available to Class A
Certificateholders of the Trust as soon as practicable after the Effective Date
of the Registration Statement (as such date is defined in Rule 158(c) under the
Act), an earnings statement of the Seller complying with Rule 158 under the Act
and covering a period of at least twelve consecutive months beginning after
such Effective Date.
(f) To furnish to the Representative copies of
the Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(g) So long as any of the Class A Certificates
are outstanding, to furnish the Representative copies of all reports or other
communications (financial or other) furnished to Class A Certificateholders of
the Trust, and to deliver to the Representative during such same period, (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission and (ii) such additional information
concerning the business and financial condition of the Seller as the
Representative may from time to time reasonably request.
(h) To pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including
any fees charged by the rating agency or rating agencies that initially rate
the Class A Certificates, and the reasonable expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto required within six months from the Closing Date pursuant
to Section 5(d) hereof) it being understood that, except as provided in this
subsection (h) and Section 9 hereof,
6
7
the Underwriters will pay all their own costs and expenses, including, without
limitation, the cost of printing any agreement among underwriters, the fees of
the Underwriters' counsel, transfer taxes on resale of the Class A Certificates
by the Underwriters, and any advertising expenses connected with any offers
that the Underwriters may make.
(i) For a period from the date of this Agreement
until the retirement of the Class A Certificates, or until such time as the
Underwriters shall cease to maintain a secondary market in the Class A
Certificates, whichever occurs first, to deliver to the Representative the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to Article XIII of the
Pooling and Servicing Agreement, as soon as such statements and reports are
furnished to the Trustee.
(j) On or before the Closing Date, the Seller
shall cause Ford Credit's computer records relating to the Receivables to be
marked to show the Trust's absolute ownership of the Receivables, and from and
after the Closing Date neither the Seller nor the Servicer shall take any
action inconsistent with the Trust's ownership of such Receivables, other than
as permitted by the Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating
provided with respect to the Class A Certificates by the rating agency or
agencies that initially rate the Class A Certificates is conditional upon the
furnishing of documents or the taking of any other actions by the Seller, the
Seller shall furnish such documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters.
The obligation of the Underwriters to purchase and pay for the Class A
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Seller herein, to the accuracy of the statements
of officers of the Seller made pursuant to the provisions hereof, to the
performance by the Seller of its obligations hereunder and to the following
additional conditions precedent:
7
8
(a) On or prior to the Closing Date, Coopers &
▇▇▇▇▇▇▇ shall have furnished to the Representative a letter dated as of the
Closing Date substantially in the form and substance of the draft to which the
Representative previously agreed.
(b) The Registration Statement shall have become
effective not later than 5:30 p.m., New York time, on November 7, 1995, or such
later date as shall have been consented to by the Representative; and prior to
the Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Seller, shall be contemplated by
the Commission.
(c) The Representative shall have received as of
the Closing Date an officer's certificate signed by the Chairman of the Board,
the President, the Executive Vice President - Finance or the Treasurer of the
Seller representing and warranting that, as of the Closing Date, the
representations and warranties of the Seller in this Agreement will be true and
correct in all material respects, that the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date in all material respects,
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission.
(d) Since the respective dates as of which
information is given in the Prospectus as amended or supplemented, there shall
not have occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or assets of the Seller, or any material adverse change in the financial
position or results or operations of the Seller, otherwise than as set forth or
contemplated in the Prospectus, which in any such case makes it impracticable
or inadvisable in the Representative's reasonable judgment to proceed with the
public offering or the delivery of the Class A Certificates on the terms and in
the manner contemplated in the Prospectus as amended or supplemented.
8
9
(e) Subsequent to the execution and delivery of
this Agreement, the United States shall not have become engaged in hostilities
which have resulted in the declaration of a national emergency or a declaration
of war, which makes it impracticable or inadvisable in the Representative's
reasonable judgment to proceed with the public offering of the delivery of the
Certificates on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(f) ▇.▇. ▇▇▇▇▇▇▇▇, Esq., Vice President-General
Counsel of Ford Credit and the Seller, or other counsel satisfactory to the
Representative in its reasonable judgment, shall have furnished to the
Representative, his written opinion, dated the Closing Date, in form reasonably
satisfactory to the Representative in its reasonable judgment, to the effect
that:
(i) The Seller has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, and is duly qualified to
transact business and is in good standing in each jurisdiction in the
United States of America in which the conduct of its business or the
ownership of its property requires such qualification.
(ii) This Agreement has been duly
authorized, executed and delivered by the Seller.
(iii) The Pooling and Servicing Agreement and
the Purchase Agreement have been duly authorized, executed and
delivered by, and each constitutes a valid and binding obligation of,
the Seller.
(iv) The consummation of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement
and the Purchase Agreement, and the fulfillment of the terms thereof,
will not conflict with or result in a material breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any material lien, charge or encumbrance
upon any
9
10
of the property or assets of the Seller pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument known to such
counsel under which the Seller is a debtor or guarantor, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Seller.
(v) The Class A Certificates have been
duly authorized; when executed and authenticated by the Trustee in
accordance with the Pooling and Servicing Agreement and delivered and
paid for pursuant to the Underwriting Agreement, the Class A
Certificates will constitute valid and binding obligations entitled to
the benefits provided by the Pooling and Servicing Agreement.
(vi) The Registration Statement has
become effective under the Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission; the
Registration Statement and the Prospectus as amended or supplemented
and any further amendments and supplements thereto made by the Seller
prior to the Closing Date (other than the financial statements and
other accounting information contained in the Registration Statement
or the Prospectus as amended or supplemented or any further amendments
or supplements thereto, or omitted therefrom, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations
thereunder.
(vii) Such counsel believes that neither the
Registration Statement (other than the financial statements and other
accounting information contained therein or omitted therefrom, as to
which such counsel need express no opinion) nor any amendment hereto,
at the time
10
11
the same became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(viii) Such counsel believes that at the
Closing Date the Prospectus as amended or supplemented (other than the
financial statements and the other accounting information contained
therein or omitted therefrom, as to which such counsel need express no
opinion) does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ix) Such counsel does not know of any
contract or other document of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which is not filed or
incorporated by reference or described as required.
(x) Such counsel does not know of any
legal or governmental proceedings pending to which the Seller is a
party or of which any property of the Seller is the subject, and no
such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others,
other than as set forth or contemplated in the Prospectus as amended
or supplemented and other than such proceedings which, in his opinion,
will not have a material adverse effect upon the general affairs,
financial position, net worth or results of operations (on an annual
basis) of the Seller and will not materially and adversely affect the
performance by the Seller of its obligations under, or the validity
and enforceability of, the Pooling and Ser-
11
12
vicing Agreement, the Purchase Agreement or the Class A Certificates.
(xi) The Class A Certificates, the
Pooling and Servicing Agreement, the Purchase Agreement and this
Agreement each conform in all material respects with the descriptions
thereof contained in the Registration Statement and the Prospectus.
Such opinion may be made subject to the qualifications that
the enforceability of the terms of the Pooling and Servicing
Agreement, the Purchase Agreement and the Class A Certificates may be
limited by bankruptcy, insolvency, reorganizations or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(g) ▇.▇. ▇▇▇▇▇▇▇▇, Esq., Vice President-General Counsel
of Ford Credit and the Seller, or other counsel satisfactory to the
Representative in its reasonable judgment, shall have furnished to the
Representative his written opinion, dated as of the Closing Date, in form
satisfactory to the Representative in its reasonable judgment, to the effect
that:
(i) Ford Credit has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, and is duly qualified to
transact business and is in good standing in each jurisdiction in the
United States of America in which the conduct of its business or the
ownership of its property requires such qualification.
(ii) The indemnification agreement (the
"Indemnification Agreement") dated as of November 8, 1995, between
Ford Credit and the Underwriters, has been duly authorized, executed
and delivered by Ford Credit.
12
13
(iii) The Pooling and Servicing Agreement and
the Purchase Agreement have been duly authorized, executed and
delivered by, and each constitutes a valid and binding obligation of,
Ford Credit.
(iv) The consummation of the transactions
contemplated by the Pooling and Servicing Agreement, the Purchase
Agreement and the Indemnification Agreement, and the fulfillment of
the terms thereof, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under (in each
case material to Ford Credit and its subsidiaries considered as a
whole), or result in the creation or imposition of any lien, charge or
encumbrance (in each case material to Ford Credit and its subsidiaries
considered as a whole) upon any of the property or assets of Ford
Credit pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument known to such counsel under which Ford Credit
is a debtor or guarantor, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or the By-Laws
of Ford Credit.
(v) Such counsel does not know of any
legal or governmental proceedings pending to which Ford Credit is a
party or of which any property of Ford Credit is the subject, and no
such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others,
other than as set forth or contemplated in the Prospectus as amended
or supplemented and other than such proceedings which, in his opinion,
will not have a material adverse effect upon the general affairs,
financial position, net worth or results of operations (on an annual
basis) of Ford Credit and its subsidiaries considered as a whole and
will not materially and adversely affect the performance by Ford
Credit of its obligations under, or the validity and enforceability
of, the Pooling and Ser-
13
14
vicing Agreement, the Purchase Agreement or the Indemnification
Agreement.
(vi) Ford Credit has full power and
authority to sell and assign the property to be sold and assigned to
the Seller pursuant to the Purchase Agreement and has duly authorized
such sale and assignment to the Seller by all necessary corporate
action.
(vii) The Seller has full power and authority
to sell and assign the property to be sold and assigned to and
deposited with the Trustee as part of the Trust and has duly
authorized such sale and assignment to the Trustee by all necessary
corporate action.
(viii) The statement in the Prospectus under
the caption "Certain Legal Aspects of the Receivables," to the extent
they constitute matters of law or legal conclusions, are correct in
all material respects.
(ix) Immediately prior to the sale of the
Receivables to the Seller, Ford Credit owned the Receivables free and
clear of any lien, security interest or charge, and immediately prior
to the assignment of the Receivables to the Trustee, the Seller owned
the Receivables free and clear of any lien, security interest or
charge. With respect to each Receivable constituting part of the
Trust, such Receivable is secured by a validly perfected first
priority security interest in the vehicle financed thereby in favor of
Ford Credit as a secured party or Ford Credit has instituted
appropriate procedures that if followed (and such counsel has no
reason to believe that they will not be so followed) will result in
the perfection of a first priority security interest in the vehicle
financed thereby in favor of Ford Credit as a secured party. Each
such Receivable has been duly and validly assigned to the Seller by
Ford Credit and to the Trustee as Trustee of the Trust by the Seller.
14
15
(x) All filings necessary under
applicable law to perfect both the sale of the Receivables by Ford
Credit to the Seller pursuant to the Purchase Agreement and the sale
of the Receivables by the Seller to the Trustee as Trustee of the
Trust pursuant to the Pooling and Servicing Agreement have been made
and, provided that neither Ford Credit nor the Seller relocates its
principal place of business in a state other than Michigan and that
the Trustee maintains the list of Receivables for inspection by
interested parties as described above, no other filings (other than
the filing of continuation statements) need be made to maintain the
perfection of the sale of the Receivables either to the Seller
pursuant to the Purchase Agreement or to the Trustee as Trustee of the
Trust pursuant to the Pooling and Servicing Agreement.
(xi) The Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be registered under
the Investment Company Act of 1940, as amended.
(xii) No consent, approval, authorization or
order of any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in the Pooling
and Servicing Agreement, the Purchase Agreement or the Indemnification
Agreement, except such as may be required under federal or state
securities laws in connection with the acquisition by the Underwriters
of the Class A Certificates, filings with respect to the transfer of
the Receivables to the Seller pursuant to the Purchase Agreement and
to the Trustee pursuant to the Pooling and Servicing Agreement and
such other approvals as have been obtained.
(xiii) Such counsel does not know of any
legal or governmental proceedings pending to which either Ford Credit
or the Seller is a party or of which any property of
15
16
either Ford Credit or the Seller is the subject, and no such
proceedings are known by such counsel to be threatened or contemplated
by governmental authorities or threatened by others (1) seeking to
prevent the issuance of the Class A Certificates or the consummation
of any of the transactions contemplated by this Agreement, the Pooling
and Servicing Agreement, the Purchase Agreement or the Indemnification
Agreement, or (2) seeking adversely to affect the federal income tax
attributes of the Class A Certificates as described in the Prospectus
under the heading "Certain Federal Income Tax Consequences."
(xiv) Neither the issuance or sale of the
Class A Certificates, nor the execution and delivery of the Class A
Certificates, the Pooling and Servicing Agreement, the Purchase
Agreement or Indemnification Agreement, including, without limitation,
this Agreement nor the consummation of any of the other transactions
contemplated herein or in the Pooling and Servicing Agreement, the
Purchase Agreement or Indemnification Agreement by Ford Credit or the
Seller, as the case may be, will contravene the terms of any material
provision of any statute, order, or regulation applicable to Ford
Credit or the Seller, as the case may be, the failure with which to
comply could have a material adverse effect on Ford Credit and its
subsidiaries considered as a whole or the Seller, as the case may be.
(h) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (or such
other counsel satisfactory to the Representative) shall have furnished their
written opinion, dated the Closing Date, with respect to the characterization
of the transfer of the Receivables by Ford Credit to the Seller as a sale, and
with respect to the characterization of the transfer of the Receivables from
the Seller to the Trust, and as to certain matters described in Section
6(g)(iv) above (which opinion shall state that it may be relied upon by the
Trustee) to the Representative and to Ford Credit, and such opinion shall be in
substantially the form previously discussed with the Representative and its
counsel and in any event satisfactory in
16
17
form and in substance to the Representative and its counsel and to Ford Credit.
(i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, special
tax counsel to the Seller, shall have furnished to the Representative their
written opinion, dated as of the Closing Date, in form and in substance
satisfactory to the Representative in its reasonable judgment, to the effect
that:
(i) For New York franchise tax purposes,
the trust fund created by the Pooling and Servicing Agreement will not
be classified as a corporation and, accordingly, will not be subject
to New York franchise taxes, and Class A Certificateholders who are
not residents or otherwise subject to tax in New York will not be
subject to New York income or franchise taxes with respect to interest
from the Class A Certificates or with respect to any of the
Receivables.
(ii) The Trust created by the Pooling and
Servicing Agreement will not be classified as an association taxable
as a corporation for federal income tax purposes and, instead, under
subpart E, part I of subchapter J of the Internal Revenue code of
1986, as amended, the Trust will be treated as a grantor trust and,
subject to recharacterization of certain fees paid by the Trust, each
Class A Certificateholder will be treated as the owner of an undivided
interest in the income and corpus attributable to the trust fund.
(iii) The statements in the Registration
Statement and Prospectus under the headings "Certain Federal Income
Tax Consequences" and "ERISA Considerations," to the extent that they
constitute matters of law or legal conclusions with respect thereto,
have been prepared or reviewed by such counsel and are correct in all
material respects.
(j) The Representative shall have received an
opinion addressed to the Representative of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇, dated the Closing
17
18
Date, with respect to the validity of the Class A Certificates and such other
related matters as the Representative shall require and the Seller shall have
furnished or caused to be furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(k) The Representative shall have received an
opinion addressed to the Representative, the Seller and the Servicer of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Trustee, dated the Closing Date and satisfactory
in form and substance to the Representative and to counsel to the Underwriters,
to the effect that:
(i) The Trustee has been duly
incorporated and is validly existing as a banking corporation in good
standing under the laws of the State of New York with full corporate
trust power and authority to enter into and perform its obligations
under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement
has been duly executed and delivered by the Trustee, and, insofar as
the laws governing the trust powers of the Trustee are concerned and
assuming due authorization, execution and delivery thereof by the
Seller and the Servicer, the Pooling and Servicing Agreement
constitutes a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except
(1) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights, and (2) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iii) The Class A Certificates have been duly
executed, authenticated and delivered by the Trustee.
18
19
(iv) Neither the execution nor delivery
by the Trustee of the Pooling and Servicing Agreement nor the
consummation of any of the transactions by the Trustee contemplated
thereby required the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action with respect
to, any governmental authority or agency under any existing federal or
New York State law governing the trust powers of the Trustee, except
such as have been obtained, made or taken.
(l) The Representative shall have received an
officer's certificate dated the Closing Date of the Chairman of the Board, the
President, the Executive Vice President-Finance or the Treasurer of each of
Ford Credit, the Seller and the Servicer in which such officers shall state
that, to the best of their knowledge after reasonable investigation, the
representations and warranties of the Seller and the Servicer contained in the
Pooling and Servicing Agreement and the representations and warranties of Ford
Credit and the Seller contained in the Purchase Agreement are true and correct
in all material respects, that Ford Credit, the Seller or the Servicer, as the
case may be, has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under such agreements at or prior to the
Closing Date in all material respects.
(m) The Class A Certificates shall have been
rated in the highest rating category by each of ▇▇▇▇▇'▇ Investors Service, Inc.
and Standard & Poor's Corporation.
7. Indemnification and Contribution. (a) The Seller
will indemnify and hold each Underwriter harmless against any losses, claims,
damages, or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state
19
20
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Seller 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 Seller by any Underwriter through the
Representative specifically for use therein; and provided further, that the
Seller shall not be liable to any Underwriter or any person controlling any
Underwriter under the indemnity agreement in this subsection (a) with respect
to any of such documents to the extent that any such loss, claim, damage or
liability of the Underwriters or such controlling person results from the fact
that such Underwriter sold the Class A Certificates to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
the Seller has previously furnished copies thereof to such Underwriter.
The indemnity agreement in this subsection (a) shall be in
addition to any liability which the Seller may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act.
(b) Each Underwriter will indemnify and hold
harmless the Seller against any losses, claims, damages or liabilities to which
the Seller may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not
20
21
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Seller by such Underwriter through the Representative specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred
by the Seller in connection with investigating or defending any such action or
claim.
The indemnity agreement in this subsection (b) shall be in
addition to any liability which each Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Seller within the meaning of the Act.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) of written notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify
the indemnifying party of the commencement thereof, and in the event that such
indemnified party shall not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the
indemnifying party shall have no further liability under such subsection to
such indemnified party unless the indemnifying party shall have received other
notice addressed and delivered in the manner provided in Section 10 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
21
22
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Seller on the one hand and the
Underwriters on the other from the offering of the Class A Certificates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Seller 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
Seller on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Seller bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus as amended or
supplemented with respect to the Class A Certificates. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Seller or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission, including, with respect to any Underwriter, the extent to which such
losses, claims, damages or liabilities (or actions in respect thereof) result
from the fact that such Underwriter sold such Class A Certificates to a person
to whom there was not sent or given, at or prior to the written
22
23
confirmation of such sale, a copy of the Prospectus or the Prospectus as then
supplemented or amended (excluding documents incorporated by reference),
whichever is more recent, if the Seller has previously furnished copies thereof
to such Underwriter. The Seller and the Underwriters, severally and not
jointly, agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages, or liabilities
(or actions in respect thereof) referred to above in this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Class A Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Survival of Certain Representations and
Obligations. The respective indemnities, agreements, representations,
warranties and other statements of the Seller (including, without limitation,
Section 5(k)) or its officers 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 or the Seller or any of their respective representatives,
officers or directors of any controlling person, and will survive delivery of
and payment for the Class A Certificates.
9. Failure to Purchase the Class A Certificates.
If the purchase of the Class A Certificates shall not be consummated by the
Underwriters because the condition set forth in Section 6(e) has not
23
24
been met, then the Seller shall be under no liability to the Underwriters with
respect to the Class A Certificates except as provided in Section 5(h) and
Section 7 hereof; but if for any other reason any Class A Certificates are not
delivered by the Seller as provided herein, the Seller will be liable to
reimburse the Underwriters, through the Representative, for all out-of-pocket
expenses, including counsel fees and disbursements reasonably incurred by the
Underwriters in making preparations for the offering of the Class A
Certificates, but the Seller shall then have no further liability to any
Underwriter with respect to such Class A Certificates except as provided in
Section 5(h) and Section 7 hereof. If any Underwriter or Underwriters default
on their obligations to purchase Class A Certificates hereunder and the
aggregate principal amount of Class A Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of Class A Certificates, the Representative may
make arrangements satisfactory to the Seller for the purchase of such Class A
Certificates 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 shall be obligated, in proportion to
their commitments hereunder, to purchase the Class A Certificates that such
defaulting Underwriter or Underwriters agreed but failed to purchase. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Class A Certificates with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Class A Certificates and
arrangements satisfactory to the non-defaulting Underwriter or Underwriters and
the Seller for the purchase of such Class A Certificates by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Seller,
except as provided in Section 5(h) and Section 7 hereof. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter or Underwriters from liability for its default.
10. Notices. All communications hereunder will
be in writing and, if sent to the Representative or the Underwriters, will be
mailed, delivered or sent by
24
25
facsimile transmission and confirmed to ▇▇▇▇▇▇▇, Sachs & Co. at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Operations -
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; if sent to the Seller, will be mailed,
delivered or sent by facsimile transmission, and confirmed to it at Ford
Credit Auto Receivables Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of the Secretary - facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
11. Successors. This Agreement will inure to the
benefit of and be binding upon the Underwriters and the Seller and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or
obligations hereunder.
12. Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
13. Counterparts. This Agreement may be executed
by each of the parties hereto in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
25
26
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance hereof shall constitute a binding agreement.
Very truly yours,
FORD CREDIT AUTO RECEIVABLES
CORPORATION
By:_________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
Accepted in New York, New York,
as of the date hereof:
▇▇▇▇▇▇▇, SACHS & CO.
______________________________
Acting on behalf of itself and
as the Representatives of the
several Underwriters.
27
ADDENDUM TO UNDERWRITING AGREEMENT
DATED NOVEMBER 8, 1995 RELATING TO
FORD CREDIT 1995-B GRANTOR TRUST
In order to clarify the provisions of Section 5(h) of the
Underwriting Agreement, dated November 8, 1995, among Ford Credit Auto
Receivables Corporation and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as Representatives of the
Several Underwriters, the parties hereto agree as follows:
1. The Underwriters shall pay directly (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 Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇.
2. Ford Credit Auto Receivables Corporation shall pay
(i) the Securities and Exchange Commission the filing fee with respect to the
Class A Certificates; (ii) all fees of any rating agencies rating the Class A
Certificates; (iii) all fees and expenses of the Trustee; (iv) all reasonable
fees and expenses of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Trustee; (v) all
fees and expenses of Coopers & ▇▇▇▇▇▇▇ relating to the letter referred to in
Section 6(a) of the Underwriting Agreement; (vi) all fees and expenses of
accountants incurred in connection with the delivery of any accountant's or
auditor's reports required pursuant to the Pooling and Servicing Agreement;
(vii) the cost of printing any preliminary and final prospectus relating to the
Class A Certificates, and the Registration Statement; and (viii) any other fees
and expenses incurred in connection with the performance of its obligations
under the Underwriting Agreement.
27
28
3. The provisions hereof are subject to the provisions
of Section 9 of the Underwriting Agreement.
Dated: November 8, 1995
FORD CREDIT AUTO RECEIVABLES
CORPORATION
By:______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇, SACHS & CO.
______________________________
Acting on behalf of itself and as
the Representatives of the several
Underwriters.
29
SCHEDULE I
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. . . . . . . . . . . . . . . . $______________
CS First Boston Corporation . . . . . . . . . . . . . . . ______________
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated . . . . . . . . . . . . . . ______________
▇.▇. ▇▇▇▇▇▇ Securities Inc. . . . . . . . . . . . . . . . ______________
Salomon Brothers Inc . . . . . . . . . . . . . . . ______________
______________
Total . . . . . . . . . . . . .
==============