Contract
___________________________________________________________________________
Dated
as of April 7, 2008
By and
among
FORD
MOTOR COMPANY, as Issuer,
FORD-UAW
HOLDINGS LLC, as Purchaser, and
0000
XXXXXXXX XXXX COMPANY
FORD
EUROPEAN HOLDINGS LLC
FORD
GLOBAL TECHNOLOGIES, LLC
FORD
HOLDINGS LLC
FORD
INTERNATIONAL CAPITAL LLC
FORD
MEXICO HOLDINGS, INC.
FORD
MOTOR SERVICE COMPANY
FORD
MOTOR VEHICLE ASSURANCE COMPANY, LLC
FORD
SOUTH AMERICA HOLDINGS, LLC
FORD
TRADING COMPANY, LLC
FORD
COMPONENT SALES, L.L.C.
GRUPO
FORD, S. de X.X. de C.V.
LAND
ROVER NORTH AMERICA, INC.
VOLVO
CARS OF NORTH AMERICA, LLC,
as Subsidiary
Guarantors
Relating
to
$3,000,000,000
AGGREGATE PRINCIPAL AMOUNT
9.50%
GUARANTEED SECURED NOTE DUE JANUARY 1, 2018
___________________________________________________________________
Ford-UAW
Holdings LLC
00000
Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx
Xxxxx #0
Xxxxxxxx,
XX 00000
Ladies
and Gentlemen:
The undersigned, FORD MOTOR COMPANY, a Delaware corporation (the “Issuer”), and
each of the entities identified and described in Schedule I hereto (each a
"Subsidiary Guarantor" and collectively, the "Subsidiary Guarantors"), hereby
agree with you (hereinafter referred to as "Purchaser," "you" or "your") as
follows:
SECTION
1
Authorization and Issue of
Notes
Prior to
the Closing Date (as hereinafter defined), the Issuer shall have duly authorized
the issue, sale and delivery of its 9.50% Guaranteed Secured Note due January 1,
2018 in the aggregate principal amount of $3,000,000,000 (the "Note"), to be
dated the date of issue thereof, to bear interest (computed on the basis of a
360-day year of twelve 30-day months) from such date at the rate of 9.50% (the
“Interest Rate”) per annum, payable semi-annually in arrears on the first day of
each January and July through maturity, commencing July 1, 2008, and to bear
interest (so computed) after maturity, whether by acceleration or otherwise, on
any overdue principal and, to the extent permitted by applicable law, on any
overdue interest, until the same shall be paid in full, at a rate per annum
equal to 1% in excess of the Interest Rate, to mature on January 1, 2018 and to
be substantially in the form of Exhibit A. If any day on which a payment is due
in respect of the Note is not a business day, then such payment shall not be
made until the next following business day and no additional principal or
interest or other payment shall result from such delay. For the purposes of this
Agreement, the term “business day” shall mean a day other than a Saturday or a
Sunday or a day on which banks are authorized or obligated by law to close in
either the State of New York or the State of Michigan.
SECTION
2
Issuance of Note, Guaranty
and Security
(a)
Subject to the terms and conditions herein set forth, the Issuer hereby agrees
to sell to you, and you hereby agree to purchase from the Issuer, on the Closing
Date the Note at a price equal to 100% of the principal amount thereof. The Note
shall be endorsed with an unconditional guaranty of payment issued by the
Subsidiary Guarantors (the “Guaranty”), in the form set forth on the reverse
side of Exhibit A hereto.
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(b)
Issuer will designate the Note as Second Priority Additional Debt in accordance
with and subject to the terms of that certain Credit Agreement dated as of
December 15, 2006 among the Issuer, the Subsidiary Borrowers from time to time
parties thereto, the banks and other financial institutions or entities from
time to time parties thereto ("Lenders"), and JPMorgan Chase Bank, N.A., as
Administrative Agent ("Administrative Agent") for the Lenders (the "Credit
Agreement") and the Loan Documents (such term and other capitalized terms used
in this Section 2(b) but not otherwise defined in this Agreement shall have the
meanings assigned to them in the Credit Agreement). As such, payment
of the principal of and interest on the Note will be secured on a second lien
basis with the Collateral pledged by the Issuer and the Subsidiary Guarantors to
the Lenders under and in accordance with the Credit Agreement and the Loan
Documents, including the Collateral Trust Agreement dated as of December 15,
2006 among the Issuer, the Subsidiary Guarantors and Wilmington Trust Company,
as Collateral Trustee ("Collateral Trustee") (the "Collateral Trust Agreement"),
and the Security Agreement dated as of December 15, 2006 made by the Issuer and
the Subsidiary Guarantors in favor of the Collateral Trustee (the "Security
Agreement"). Holders of the Note will be subject to the intercreditor
provisions contained in Section 8 of the Collateral Trust
Agreement. Issuer will provide copies of the Credit Agreement,
Collateral Trust Agreement and Security Agreement to any holder of the Note upon
the request of such holder.
SECTION
3
Closing
The
closing (the “Closing”) of the transaction contemplated hereunder will take
place at the offices of the Issuer at 10:00 a.m., Dearborn, Michigan time, on
April 7, 2008, or such other date or place as shall be mutually agreed upon by
the Subsidiary Guarantors, the Issuer and the Purchaser. The date on which the
Closing takes place is hereinafter referred to as the “Closing
Date”. On the Closing Date the Issuer and the Subsidiary Guarantors
will deliver to you the Note registered in your name or in the name of your
nominee, such Note to be duly executed and dated the Closing Date, together with
the Guaranty completed and duly executed, against your delivery to the Issuer of
the principal amount of the Note by wire transfer of immediately available funds
on behalf of the Issuer to the account of Ford Investment Partnership (Account
No. 00000000) at State Street Bank and Trust Company, 0 Xxxxxx Xx Xxxxxxxxx XXX
0, Xxxxxx, XX 00000-0000 (ABA No. 000000000).
SECTION
4
Representation and
Warranties of the Issuer
The
Issuer represents and warrants to the Purchaser as follows:
4.1 Corporate Existence and
Power. The Issuer has been duly incorporated, and is validly existing as
a corporation in good standing under the laws of the State of
Delaware. The Issuer has corporate power and authority, and has all
licenses, permits, orders and other governmental and regulatory approvals, to
own or lease its properties and conduct its business in the jurisdictions in
which such business is transacted, except for such licenses, permits, orders and
other governmental and regulatory approvals the absence of which would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Issuer and its
subsidiaries considered as a whole ("Material Adverse Effect").
4.2 Corporate Authority;
Binding Effect. The execution, delivery and performance of
this Agreement and the Note are within the corporate powers of the Issuer and
have been duly authorized by all necessary corporate action on the part of the
Issuer; this Agreement has, and as of the Closing the Note will have, been duly
executed and delivered by the Issuer and as of the Closing each will constitute
the legal, valid and binding obligations of the Issuer, enforceable against the
Issuer in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the enforcement of creditors’ rights
generally and by general principles of equity.
-2-
4.3 Consents. Etc. There
is no consent, approval, authorization, order, registration or qualification of
or with any court or any regulatory authority or other governmental body having
jurisdiction over the Issuer which is required for, and the absence of which
would affect, the valid authorization, issuance, sale and delivery of the Note
or the valid execution and delivery by the Issuer of this Agreement, except for
such consents, approvals, authorizations, orders, registrations or
qualifications as have been, or will on the Closing Date have been, obtained or
made and are or will then be in full force and effect.
4.4 No Conflicts with
Agreements. Etc. The Issuer is not in violation of its certificate of
incorporation or by-laws. The Issuer is not in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties are subject, except for defaults
that would not have a Material Adverse Effect. The execution and delivery by the
Issuer of this Agreement, the issuance and delivery of the Note, the
consummation of the transactions contemplated herein and in the Note and
compliance by the Issuer with the terms of this Agreement and the Note (1) do
not and will not result in any violation of the certificate of incorporation or
by-laws of the Issuer, and (2) do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under, or,
except as described in Section 2(b) hereof, result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Issuer
under (A) any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which the Issuer is a party or
by which it is bound or to which any of its properties are subject, (B) any
existing applicable law, rule, regulation or (C) any judgment, order or decree
of any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Issuer or any of its properties, except in the case
of clause (2), for conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect.
4.5 Investment Company. The
Issuer is not and, after the application of the proceeds of the Note and the
Convertible Note will not be, an "investment company” within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"). As
used herein, “Convertible Note” shall mean the 5.75% Senior Convertible Notes
Due 2013 issued pursuant to a Second Supplemental Indenture dated January 1,
2008 by and between the Issuer and The Bank of New York, as
Trustee.
4.6 Use of Proceeds. The
net proceeds from the issuance of the Note will be used by the Issuer for
general corporate purposes.
4.7 No Registration.
Neither the Issuer nor any Person (as hereinafter defined) acting on its behalf
has taken or will take any action to register or that would require registration
of the offering and sale of the Note or the Guaranty under the Securities Act of
1933, as amended (the “Securities Act”).
4.8 No Brokers. The
Issuer has not paid nor will it become obligated to pay any fee or commission to
any broker, finder, investment banker or other intermediary other than The
Blackstone Group in connection with the transactions contemplated by this
Agreement. The Issuer shall, jointly and severally with the Subsidiary
Guarantors, indemnify and hold the Purchaser harmless against any claims made by
The Blackstone Group for any such fees or commissions.
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SECTION
5
Representations and
Warranties of the Subsidiary Guarantors
Each of
the Subsidiary Guarantors represents and warrants to the Purchaser as
follows:
5.1 Existence and Power.
It has been duly organized and is validly existing in good standing under the
laws of the jurisdiction of its organization. It has the power and
authority, and has all licenses, permits, orders and other governmental and
regulatory approvals, to own or lease its properties and conduct its business in
the jurisdictions in which such business is transacted, except for such
licenses, permits, orders and other governmental and regulatory approvals the
absence of which would not have a Material Adverse Effect.
5.2 Authority; Binding Effect.
The execution, delivery and performance of the Guaranty are within its powers
and it has been duly authorized by all necessary corporate or other action on
its part; at the Closing, the Guaranty will have been duly executed and
delivered by it and will constitute its legal, valid and binding obligations,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
enforcement of creditors’ rights generally and by general principles of
equity.
5.3 Consents, Etc. There
is no consent, approval, authorization, order, registration or qualification of
or with any court or any regulatory authority or other governmental body having
jurisdiction over it that is required for, and the absence of which would
affect, the valid execution and delivery by it of the Guaranty, except for such
consents, approvals, authorizations, orders, registrations or qualifications as
have been, or will on the Closing Date have been, obtained or made and are or
will then be in full force and effect.
5.4 No Conflicts with Agreements, Etc.
It is not in violation of its organizational or constituting documents and is
not in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to which it
is a party or by which it is bound or to which any of its properties are
subject, except for defaults that would not have a Material Adverse Effect. The
execution and delivery by it of the Guaranty, the consummation of the
transactions contemplated herein and compliance by it with the terms of the
Guaranty (1) do not and will not result in any violation of its organizational
or constituting documents and (2) do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a default under,
or, except as provided in Section 2(b) hereof, result in the creation or
imposition of any lien, charge or encumbrance upon any of its property or assets
under (A) any contract indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which it is a party or by which it is
bound or to which its properties are subject, (B) any existing applicable law,
rule, regulation or (C) any judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over it or any of its properties, except in the case of clause (2) for
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect.
5.5 Investment Company.
No Subsidiary Guarantor is an "investment company" within the meaning of the
Investment Company Act.
-4-
5.6 No Registration. No
Subsidiary Guarantor or any Person acting on behalf of any Subsidiary Guarantor,
has taken or will take any action to register or that would require the
registration of the offering and sale of the Note or the Guaranty
under the Securities Act.
SECTION
6
Representations
and Warranties and
Covenants
of the Purchaser
The Purchaser hereby represents and warrants to and agrees with the Issuer and
each Subsidiary Guarantor as follows:
6.1 Acquisition of the Note.
The Purchaser is acquiring the Note for its account and not with a view to or
for sale in connection with any distribution of the Note, nor with any present
intention of distributing or selling the Note, but subject nevertheless to any
requirement of law that the disposition of the Purchaser’s property shall at all
times be and remain within its control. The Purchaser is an institutional
“accredited investor” as defined in Section 5.0l(a)(l), (2) or (3) of Regulation
D promulgated under the Securities Act. The Purchaser acknowledges that (i)
neither the Note nor the Guaranty has been registered under the Securities Act,
and that neither the Issuer nor any Subsidiary Guarantor contemplates filing, or
is contractually or legally required to file, any registration statement to
effect such registration; and (ii) it has been advised that the Note and the
Guaranty must be held indefinitely, unless, subject to subsection 6.2 hereof,
the Note and the Guaranty are subsequently registered under the Securities Act
or an exemption from such registration is available.
6.2 Assignments,
Transfers and Participations. (a) Except for a
transfer from the Purchaser to the New VEBA (as defined below), the Purchaser
will not assign or transfer all or any portion of the Note, the Guaranty or this
Agreement (or any right or interest therein) without the prior written consent
of the Issuer, unless each and all of the following conditions have been
satisfied or complied with:
(i) no
assignment or transfer of any portion of the Note having a principal amount of
less than $250,000,000 shall be made, and any assignment or transfer of a
portion of the Note in excess thereof shall be in a principal amount of an
integral multiple of $100,000,000;
(ii) the assignment or transfer
shall not result in a violation of any applicable law, including but not limited
to, the Securities Act, any other applicable securities law or the Employee
Retirement Income Security Act of 1974, as amended ("ERISA");
(iii) the
Issuer and the Guarantor shall have received a written agreement from the
assignee or transferee to undertake on its own behalf the representations,
warranties and covenants in this Section 6, including those in this subsection
6.2; and
(iv) the
Issuer shall have received written notice from you of any such assignment or
transfer at least 10 business days prior to the effective date of such
assignment or transfer, together with drafts of any certificates, opinions and
agreements to be delivered in accordance with the foregoing conditions and such
other evidence as the Issuer and each Subsidiary Guarantor may consider
necessary to establish compliance with the foregoing conditions.
As
used herein, “New VEBA” shall mean the trust fund to be established pursuant to
the terms of the Settlement Agreement dated March 28, 2008, as amended,
supplemented, replaced or otherwise altered from time to time, between the
Issuer, the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, and certain class representatives, on behalf of
the class of plaintiffs as set forth therein.
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(b) The Purchaser will not
sell to one or more Persons any participation in the Note without the express
written consent of the Issuer unless the participation shall not result
in a violation of any applicable law, including but not limited to, the
Securities Act, any other applicable securities laws or ERISA; provided, however, that (A) any
Person to whom the Purchaser sells a participation in the Note shall not be
entitled by virtue of such participation to any rights or benefits under this
Agreement, the Note or the Guaranty, (B) the Purchaser’s obligations under this
Agreement shall remain unchanged, (C) the Purchaser shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(D) the Issuer and the Subsidiary Guarantors shall continue to deal solely and
directly with the Purchaser in connection with the Purchaser’s rights and
obligations under this Agreement, and (E) no later than January 31 of each year,
the Purchaser shall provide the Issuer with a written description of each
participation in the Note sold by Purchaser during the prior year (it being
understood that any failure to provide notice shall not render the participation
invalid).
(c) For purposes of this subsection 6.2 and elsewhere in this Agreement, an
“Affiliate” of any specified Person shall mean any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; “Person” shall mean any individual,
corporation, partnership, joint venture, association, joint-stock company, trust
or unincorporated organization; and “control” when used with respect to any
specified Person shall mean the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
(d) The Guaranty and this Agreement shall be assignable and may be transferred
to the same extent as the Note, as permitted under this Section 6 and Section
12.4(c), and shall not be separable from the Note, and each permitted assignee
or transferee of the Note shall enjoy the full benefits of the Guaranty and this
Agreement.
6.3 Intercreditor
Provisions. The Purchaser and any subsequent holder or owner
of the Note or any portion thereof acknowledge that the Note and the Guaranty
will be subject to, and the Purchaser and any such holder agree to comply with
and abide by, the intercreditor provisions contained in Section 8 of the
Collateral Trust Agreement and any other provision of the Credit Agreement or
Loan Documents (as defined in the Credit Agreement) applicable to or affecting
the Note by virtue of its designation thereunder as Second Priority Additional
Debt.
SECTION
7
Closing
Conditions
Your
obligation to purchase and pay for the Note shall be subject to the performance
by the Issuer and the Subsidiary Guarantors of all of the agreements to be
performed by them under this Agreement, the Note and the Guaranty, as the case
may be, and to the satisfaction of the following further
conditions:
7.1 Opinion of Counsel.
You shall have received at the Closing an opinion of counsel to the Issuer and
the Subsidiary Guarantors (who may be an employee of the Issuer or a Subsidiary
Guarantor) addressed to you and substantially in the form attached hereto as
Schedule II.
-6-
7.2 Representations and
Warranties of the Issuer. The representations and warranties of the
Issuer contained in Section 4 of this Agreement shall be true and correct (to
the extent qualified by materiality or Material Adverse Effect) or true and
correct in all material respects (to the extent not so qualified) on and as of
the Closing Date, except for the representations and warranties set forth in
Section 4.3 of this Agreement, which shall be true and correct on and as of the
Closing Date, and except to the extent such representations and warranties
expressly relate to an earlier date.
7.3 Representations and
Warranties of Subsidiary Guarantors. The representation and warranties of
each Subsidiary Guarantor contained in Section 5 of this Agreement shall be true
and correct (to the extent qualified by materiality or Material Adverse Effect)
or true and correct in all material respects (to the extent not so qualified) on
and as of the Closing Date, except for the representations and warranties set
forth in Section 5.3 of this Agreement, which shall be true and correct on and
as of the Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date.
7.4 No Default. No event
shall have occurred and be continuing on the Closing Date which, with the giving
of notice or lapse of time, or both, would constitute a default under this
Agreement.
7.5 Guaranty. The
Guaranty shall have been duly completed, executed and delivered.
7.6 Designation under Credit
Agreement. (i) The notice required by the definition of "Permitted Second
Lien Debt" in Section 1.1 of the Credit Agreement shall have been timely given
by the Issuer to the Administrative Agent under the Credit Agreement and no
objection thereto shall have been made by the Administrative Agent; (ii) the
certification required by Section 7.2 of the Collateral Trust Agreement
designating the Note as Second Priority Additional Debt, among other things,
shall have been made by the Issuer to the Collateral Trustee; and (iii) copies
of such notice and certification shall have been delivered to you on or prior to
the Closing Date.
7.7
Waiver of
Conditions. If the conditions specified in this Section 7 have not been
fulfilled, you may waive compliance with any such condition to such extent as
you may in your sole discretion determine. Except as so waived by you, nothing
in this Section 7.7 shall operate to relieve either the Issuer or any Subsidiary
Guarantor of any of its respective obligations hereunder or to waive any of your
rights against either of them.
SECTION
8
Additional Covenants of the
Issuer and the Guarantor
Each of
the Issuer and the Subsidiary Guarantors covenant and agree that, commencing on
the Closing Date, and so long as the Note is outstanding, it will comply with
its obligations in this Section 8.
8.1 Payment of Principal and
Interest. The Issuer will duly and punctually pay the principal of and
interest on the Note in accordance with its terms and this
Agreement.
-7-
8.2 Financial Statements. The
Issuer shall deliver to you its audited annual financial statements and
unaudited quarterly financial statements within 15 days after the Issuer is
required to file the same with the SEC pursuant to Section 13 or Section 15(d)
of the Exchange Act (or, if the Issuer is not required to file annual financial
statements or unaudited quarterly financial statements with the SEC pursuant to
Section 13 or Section 15(d) of the Exchange Act, then within 15 days after the
Issuer would be required to file the same with the SEC pursuant to Section 13 or
Section 15(d) of the Exchange Act if it had a security listed and registered on
a national securities exchange); provided, that such
15-day period shall automatically be extended to the earlier of (a) the date
that is five days prior to the date of the occurrence of any event of default
(or any comparable term) under any of the Issuer’s Existing Notes (as defined in
the Credit Agreement) as a result of the Issuer’s failure to provide annual or
quarterly financial statements to the extent required under the related
indenture and (b) in the case of audited annual financial statements, within 240
days after the end of the Issuer’s fiscal year, and, in the case of unaudited
quarterly financial statements, within 220 days after the end of the respective
quarters for each of the first three quarterly periods of each fiscal year;
provided, further, that such
financial statements shall be deemed to be delivered upon the filing with the
SEC of the Issuer's Form 10-K or Form 10-Q for the relevant fiscal
period.
8.3 Credit Agreement Certificates. Promptly after it provides them to the Administrative Agent in accordance with Section 6.3 of the Credit Agreement, the Issuer shall provide you, at your address specified in Section 12.1 hereof, with copies of the compliance and Borrowing Base certificates it is required to deliver pursuant to said Section 6.3.
8.4 Assignment and Assumption. Neither the Issuer nor any Subsidiary Guarantor shall assign, convey or otherwise transfer any of its rights or obligations hereunder, under the Note or the Guaranty, as the case may be, without the express written consent of holders of a majority of the outstanding aggregate principal amount of the Note.
8.5 Consolidations, Mergers and
Conveyances. (a) Each of the Issuer and the Subsidiary Guarantors may
consolidate with, or sell or convey all or substantially all its assets to, or
merge with or into, (1) any entity if the Issuer or such Subsidiary Guarantor or
another Subsidiary Guarantor shall be the continuing entity or (2) any entity
existing under the laws of (i) the United States, any state thereof, or the
District of Columbia, in the case of the Issuer, and (ii) any jurisdiction, in
the case of a Significant Guarantor (as defined in the Credit Agreement) in
connection with an asset sale permitted under Section 7.5 of the Credit
Agreement; provided,
however, that in the case of clause (2) that is not in connection with an
asset sale that is permitted under Section 7.5 of the Credit Agreement, (x) the
successor entity shall expressly assume the due and punctual payment of the
principal of and interest on the Note, in the case of the Issuer, in accordance
with its terms and the due and punctual performance and observance of all the
covenants and conditions of this Agreement and the Note, in the case of the
Issuer, or this Agreement and the Guaranty, in the case of a Subsidiary
Guarantor, by an instrument satisfactory to the Purchaser in its reasonable
judgment, executed and delivered to the Purchaser by such entity, and (y) such
successor entity shall not, immediately after such merger or consolidation or
such sale or conveyance, be in default in the performance of any such covenant
or condition.
(b) Upon
any consolidation by the Issuer or a Subsidiary Guarantor with or merger by the
Issuer or a Subsidiary Guarantor into any other person or any conveyance,
transfer or lease of the properties and assets of the Issuer or a Subsidiary
Guarantor substantially as an entirety in accordance with Section 8.5(a) hereof,
(x) the successor Person formed by such consolidation or into which the Issuer
or Subsidiary Guarantor, as the case may be, is merged or to which such
conveyance, transfer or lease is made, shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer hereunder and under the
Note, or of such Subsidiary Guarantor under the Guaranty, as the case may be,
with the same effect as if such successor had been named as the Issuer or such
Subsidiary Guarantor, as the case may be, and (y) thereafter, the predecessor
entity shall be relieved of all obligations and covenants hereunder and under
the Note.
-8-
(c)
Notwithstanding anything to the contrary contained herein or in the Note, if a
Subsidiary Guarantor is released from its guaranty under the Credit Agreement,
such Subsidiary Guarantor shall automatically be released from the Guaranty
(without requirement of notice to or consent of the Purchaser or any holder of
the Note). If requested by the Issuer, the holders of the Note agree
to take promptly any action reasonably requested by the Issuer to evidence the
release of such Subsidiary Guarantor from its guaranty.
8.6 Limitation on Secured
Debt. Other than Permitted Liens (as defined below), the
Issuer shall not at any time have outstanding more than $20,485,000,000
principal amount of indebtedness for borrowed money secured on a first lien
basis with its assets nor more than $4,000,000,000 principal amount of
indebtedness for borrowed money secured on a second lien basis with its
assets. "Permitted Liens" for purposes hereof shall
mean:
(a) liens for taxes, assessments, governmental charges and utility charges, in
each case that are not yet subject to penalties for non-payment or that are
being contested in good faith by appropriate proceedings; provided that
adequate reserves with respect thereto are maintained on the books of the Issuer
in conformity with United States generally accepted accounting principles
("GAAP");
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
construction or other like liens arising in the ordinary course of
business;
(c) permits, servitudes, licenses, easements, rights-of-way, restrictions
and other similar encumbrances imposed by applicable law or incurred in the
ordinary course of business or minor
imperfections in title to real property that do not in the aggregate materially
interfere with the ordinary conduct of the business of the Issuer and its
subsidiaries taken as a whole;
(d) leases, licenses, subleases or sublicenses of assets (including, without
limitation, real property and intellectual property rights) granted to others
that do not in the aggregate materially interfere with the ordinary conduct of
the business of the Issuer and its subsidiaries taken as a whole and licenses of
trademarks and intellectual property rights in the ordinary course of
business;
(e) pledges or deposits made in the ordinary course of business or statutory
liens imposed in connection with worker’s compensation, unemployment insurance
or other types of social security or pension benefits or liens incurred or
pledges or deposits made to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), statutory
obligations, and surety, appeal, customs or performance bonds and similar
obligations, or deposits as security for contested taxes or import or customs
duties or for the payment of rent, in each case incurred in the ordinary course
of business;
(f) liens arising from UCC financing statement filings (or similar filings)
regarding or otherwise arising under leases entered into by the Issuer or any of
its subsidiaries or in connection with sales of accounts, payment intangibles,
chattel paper or instruments;
(g) purchase money liens on property (other than shares of capital stock or
indebtedness) existing at the time of acquisition (including acquisition through
amalgamation, merger or consolidation) or to secure the payment of any part of
the purchase price thereof or to secure any indebtedness incurred prior to, at
the time of, or within 60 days after, the acquisition of such property for the
purpose of financing all or any part of the purchase price thereof or to secure
indebtedness provided, or guaranteed, by a governmental authority to finance
research and development, limited in each case to the property purchased (or
developed) with the proceeds thereof;
-9-
(h) other than liens existing pursuant to the Credit Agreement and the Loan
Documents (as defined therein), liens in existence on the Closing Date; provided that no such
lien is spread to cover any additional property after the Closing Date and
that the amount of indebtedness for borrowed money secured
thereby is not increased;
(i) liens on property or capital stock of a person at the time such person
becomes a subsidiary of the Issuer; provided however, that such
liens are not created, incurred or assumed in connection with, or in
contemplation of, such other person becoming a subsidiary; provided further, however, that any
such lien may not extend to any other property owned by the Issuer or any
subsidiary of the Issuer;
(j) liens on property at the time the Issuer acquires the property, including
any acquisition by means of a merger or consolidation with or into the Issuer;
provided, however, that such
liens are not created, incurred or assumed in connection with, or in
contemplation of, such acquisition; provided further, however, that such
liens may not extend to any other property owned by the Issuer or any subsidiary
of the Issuer;
(k) any lien securing the renewal, refinancing, replacing, refunding, amendment,
extension or modification, as a whole or in part, of any indebtedness secured by
any lien permitted by clause (g), (h), (i), (j), and (u) of this definition or
this paragraph (k) without any change in the assets subject to such
lien;
(l) any lien arising out of claims under a judgment or award rendered or claim
filed, so long as such judgments, awards or claims do not constitute an event of
default under the Credit Agreement;
(m) any lien consisting of rights reserved to or vested in any governmental
authority by any statutory provision;
(n) liens created in the ordinary course of business in favor of banks and other
financial institutions over credit balances of any bank accounts held at such
banks or financial institutions or over investment property held in a securities
account, as the case may be, to facilitate the operation of cash pooling and/or
interest set-off arrangements in respect of such bank accounts or securities
accounts in the ordinary course of business;
(o) liens in favor of lessors pursuant to sale and leaseback transactions to the
extent the disposition of the asset subject to any such sale and leaseback
transaction is permitted under the Credit Agreement;
(p) liens under industrial revenue, municipal or similar bonds;
(q) liens on securities accounts (other than liens to secure indebtedness for
borrowed money);
(r) statutory liens incurred or pledges or deposits made in favor of a
governmental authority to secure the performance of obligations of the Issuer or
any of its subsidiaries under environmental laws to which any assets of the
Issuer or any such subsidiaries are subject;
(s) liens granted by the Issuer or any of its subsidiaries to a landlord to
secure the payment of arrears of rent in respect of leased properties in the
Province of Quebec leased from such landlord, provided that any such lien is
limited to the assets located at or about such leased
properties;
-10-
(t) servicing agreements, development agreements, site plan agreements and other
agreements with governmental authorities pertaining to the use or development of
any of the property and assets of the Issuer consisting of real property, provided same are
complied with; and
(u) liens not otherwise permitted by the foregoing clauses securing obligations
or other liabilities of the Issuer; provided that the
outstanding amount of all such obligations and liabilities shall not exceed
$500,000,000 at any time.
8.7 Release of Collateral and
Replacement Security. (a) In the event the conditions in
Section 10.15(c) of the Credit Agreement shall be met for the automatic release
of the Collateral pledged under the Credit Agreement and/or Loan Documents (as
defined therein), then such Collateral shall also be concurrently released with
respect to the Note and the Guaranty shall be concurrently
terminated.
(b) In
the event the Credit Agreement and/or Loan Documents (as defined therein) are
amended or terminated such that the Covered Debt thereunder is no longer secured
by any Collateral pledged thereunder for reasons other than the conditions in
Section 10.15(c) of the Credit Agreement having been met, and as a result the
Note is no longer secured on a second lien basis by any Collateral pledged
thereunder, then the Issuer shall promptly provide for replacement security of
the Note in a manner consistent with that provided prior to such amendment or
termination, which replacement security shall be reasonably acceptable to
you. For avoidance of doubt, such replacement security shall be
deemed reasonably acceptable if it constitutes a second lien on collateral
pledged under a new secured credit agreement entered into by
Issuer.
8.8 Further Information.
From time to time, while the Note is outstanding, upon the reasonable request of
the Purchaser, officials of the Issuer will confer with officials of the
Purchaser and advise them as to matters bearing on the Issuer’s and the
Subsidiary Guarantor’s financial condition.
SECTION
9
Default
In case
one or more of the following events of default shall have occurred and be
continuing, that is to say:
(a) default
in the payment of the principal of the Note as and when the same shall become
due and payable, whether at maturity or otherwise; or
(b) default
in payment of any installment of interest upon the Note as and when the same
shall become due and payable and continuance of such default for a period of 5
business days; or
(c) failure
on the part of the Issuer or any Significant Guarantor (as defined in the Credit
Agreement) duly to observe or perform any other of the covenants or agreements
on its respective part contained in the Note, this Agreement or the Guaranty, as
the case may be, for a period of 30 days (or 20 consecutive days in the case of
failure to observe or perform the covenants or agreements described in Section
8.2) after the date on which written notice specifying such failure and
requiring the Issuer or such Significant Guarantor, as the case may be, to
remedy the same shall have been given to the Issuer or such Significant
Guarantor, as the case may be, by the holder of the Note; or
-11-
(d) any
representation or warranty made by the Issuer or any Subsidiary Guarantor in
this Agreement shall prove to have been untrue in any material respect as of the
date on which it was made; or
(e) (i)
the Issuer, any Significant Guarantor, FMCC, a Volvo Group Member or Ford Canada
(as such terms are defined in the Credit Agreement) shall (A) commence any case,
proceeding or other action under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors (1) seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (2) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or (B) make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Issuer, any Significant Guarantor, FMCC, a Volvo Group
Member or Ford Canada any case, proceeding or other action of a nature referred
to in clause (i) above that (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 90 days; or
(f) the
guaranty of any Significant Guarantor contained in the Guaranty shall cease to
be in full force and effect; or
(g) the
Collateral Trust Agreement or any Security Document (as defined in the Credit
Agreement) shall cease to be in full force and effect, or any lien thereunder
shall cease to be enforceable and perfected, with respect to Collateral, such
that it would constitute an event of default under the Credit Agreement;
or
(h) an
Event of Default under the Credit Agreement shall have occurred and be
continuing that has resulted in any outstanding indebtedness or other
obligations thereunder to be declared immediately due and payable;
then,
other than pursuant to clause (e) above, unless the principal of the Note shall
have already become due and payable, the holders of a majority of the
outstanding aggregate principal amount of the Note, by notice in writing to the
Issuer, may declare the principal of the Note to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived. In the case of an event of default
pursuant to clause (e) above with respect to the Issuer, unless the principal of
the Note shall have already become due and payable, the principal of the Note,
plus accrued and unpaid interest, if any, accrued thereon through the occurrence
of such event shall automatically become and be immediately due and
payable. Whenever the entire unpaid principal of the Note shall have
become or been declared to be immediately due and payable the holders of a
majority of the outstanding aggregate principal amount of the Note may, if there
are no First Priority Secured Obligations or commitments in respect thereof then
outstanding and subject to the provisions of the Collateral Trust Agreement,
deliver a Notice of Acceleration to the Collateral Trustee; provided that, by
written notice to the Issuer, such holders may, for such periods and/or subject
to such conditions as may be specified in such notice, withdraw any declaration
of acceleration effected in accordance with this sentence. If a
declaration of acceleration in accordance with the immediately preceding
sentence shall have been withdrawn in accordance with the proviso to the
immediately preceding sentence, the holders of a majority of the outstanding
aggregate principal amount of the Note shall forthwith deliver to the Collateral
Trustee a notice of cancellation of the respective Notice of Acceleration
theretofore delivered to the Collateral Trustee.
-12-
SECTION
10
Method
and Place of Payment
of Principal and
Interest
All
payments of principal, interest and any other amount payable on the Note or
hereunder shall be made in U.S. Dollars by credit of immediately available funds
to your account (Account No. 5186061000; Reference: Further Credit to FORD-UAW
FUW05 /26-93555) at The
Northern Trust Company, 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000 (ABA No.
000000000) or to such other account or such other address, maintained or located
in the United States, as you may designate in writing in the manner provided in
Section 12.1.
SECTION
11
Survival of Representations
and Warranties
All
representations and warranties contained herein or made in writing by or on
behalf of any party to this Agreement or otherwise in connection herewith shall
(1) survive the execution and delivery of this Agreement and the delivery of the
Note to you and the consummation of the transactions contemplated to occur on
the Closing Date, and shall continue in effect as long as any Note is
outstanding, and (ii) be deemed to have been relied upon by the parties,
regardless of any investigation made by the parties or on their
behalf.
SECTION
12
Miscellaneous
12.1 Communications and
Notices. All communications and notices provided for in this Agreement
and the Note shall be in writing and, if to the Issuer, mailed certified mail,
return receipt requested, delivered or transmitted by facsimile to it at Xxx
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Fax No. (000) 000-0000, Confirmation
No. (000) 000-0000, Attention: Treasurer, provided that any notice pursuant to
Section 9 hereof shall also be delivered or transmitted to the Issuer at Xxx
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Fax No. (000) 000-0000, Confirmation
No. (000) 000-0000, Attention: Secretary, and, if to any Subsidiary Guarantor,
mailed certified mail, return receipt requested, delivered or transmitted by
facsimile to it c/o the Issuer at the address and facsimile number specified
above, or at any other address which the Issuer or any Subsidiary Guarantor, as
the case may be, may hereafter designate by written notice to you, and, if to
you, mailed, delivered or transmitted by facsimile to you at 00000 Xxxxxxxx
Xxxxx Xxxxx, Xxxxxxx Xxxxx #0, Xxxxxxxx, XX 00000, Fax No. (000)
000-0000, Confirmation No. (000) 000-0000, Attention: President, or to such
other address and to such attention as you may from time to time designate to
the Issuer in writing.
Except as
specified herein, all notices and other communications shall be deemed to have
been duly given (i) on the date of delivery if delivered personally, (ii) five
days following posting if transmitted by U.S. mail or (iii) on the day of
transmission if transmitted by facsimile (provided receipt of such transmission
is confirmed by the recipient thereof by telephone), whichever shall first
occur.
-13-
12.2 New York Law.
This Agreement shall be construed in accordance with, and governed by, the laws
of the State of New York applicable to contracts made and to be wholly performed
within such State.
12.3 Payment of Certain
Expenses. Whether or not the Closing is consummated, the Issuer
shall:
(a) upon
the occurrence of an event of default, pay all reasonable out-of-pocket expenses
incurred by you (including counsel fees) in connection with such event of
default and collection and other enforcement proceedings resulting therefrom;
and
(b) pay
all stamp and other taxes, if any, which may be determined to be payable in
connection with the execution and delivery of this Agreement, the issuance of
the Note, or in connection with any modification of any of the Note or of this
Agreement or any waiver or consent under or in respect of this Agreement or the
Note, and shall save you and all subsequent holders of the Note harmless against
any loss or liability (including interest and penalties) resulting from
nonpayment or delay in payment of any such taxes; provided, however, that the
Issuer shall not be obligated to pay any taxes on transfers of the Note or
portions thereof or any taxes on or measured by income or capital, or any taxes
on intangibles or other property taxes levied on the Note or portions thereof,
the income therefrom or on the holders of the Note or portions thereof, except
with respect to the transfer of the Note to the New VEBA.
The
obligations of the Issuer under this Section 12.3 shall survive payment of the
Note.
12.4 Form of Notes. Registration. Transfer and
Replacement. (a) The Note initially delivered under this Agreement will
be in the form of a fully registered Note substantially in the form of Exhibit A
attached hereto. The Note or portions thereof are issuable only in fully
registered form and any portion of the Note shall be in a principal amount of at
least $250,000,000 or an integral multiple of $100,000,000 in excess
thereof.
(b) The
Issuer shall cause to be kept at its principal office a register (the “Note
Register”) for the registration and transfer of the Note or portions thereof.
The name and address of the holder or holders of the Note or portions thereof,
the transfer thereof and the names and addresses of the transferees of the Note
or portions thereof shall be registered in the Note Register. The Issuer may
deem and treat the persons in whose name the Note or portions thereof are so
registered as the holders and owners thereof for all purposes and shall not be
affected by any notice to the contrary, until due presentment of such Note or
portion thereof for registration of transfer as provided in this Section
12.4.
(c) Upon
compliance with Section 6.2 hereof and surrender for registration of transfer of
the Note or portion thereof, or upon surrender for registration of exchange of
any Note or portion thereof without transfer, in each case, at the office of the
Issuer designated for notices in Section 12.1 hereof, the Issuer shall execute
and deliver, at its expense, a new Note or Notes of the same aggregate unpaid
principal amount as such surrendered Note or portion thereof (but in no case in
a principal amount of less than $500,000,000 or in a principal amount in excess
thereof that is not an integral multiple of $100,000,000), dated the date to
which interest has been paid on such surrendered Note (or, if no interest has
been paid, the date of such surrendered Note), and registered in the name of
such Person or Persons as shall be designated in writing by the holder of such
surrendered Note. Every Note surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer or exchange duly authorized in writing. The Issuer may
additionally condition its issuance of any new Note or Notes on the payment to
it of a sum sufficient to cover any stamp tax or other governmental charge
imposed in respect of such transfer or exchange, except with respect to the
transfer of the Note to the New VEBA.
-14-
(d) In
case the Note shall become mutilated or be destroyed, lost or stolen, the Issuer
upon request shall execute and deliver a new Note in exchange and substitution
for the mutilated Note, or in lieu of and substitution for the Note so
destroyed, lost or stolen. In every case of destruction, loss or theft, the
applicant for a substituted Note shall furnish to the Issuer such security or
indemnity as may be required by it to save it harmless from all risk, however
remote (it being understood that, if the holder of such destroyed, lost or
stolen Note is the Purchaser, the indemnity agreement of the Purchaser shall be
satisfactory to the Issuer for such purpose), and the applicant shall also
furnish to the Issuer evidence to its satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof. Upon the issuance of any
substituted Note, the Issuer may require the payment of a sum sufficient to
cover any tax or other government charge that may be imposed in relation thereto
and any other expenses connected therewith. In case the Note has matured or is
about to mature and shall become mutilated or be destroyed, lost or stolen, the
Issuer may, instead of issuing a substituted Note, pay the same (without
surrender thereof except in the case of a mutilated Note) if the applicant for
such payment shall furnish the Issuer with such security or indemnity as it may
require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Issuer of the
destruction, loss or theft of such Note and of the ownership thereof. Every
substituted Note issued pursuant to the provisions of this Section 12.4(d) by
virtue of the fact that any Note is destroyed, lost or stolen shall constitute
an additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Note shall be found at any time.
12.5 Changes. Waivers.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an agreement in writing signed by
the Issuer, the Subsidiary Guarantors and holders of a majority of the
outstanding aggregate principal of the Note; provided, however, that no such
change, waiver, discharge or termination shall forgive or reduce any principal
amount of the Note, extend the final date of maturity thereof, reduce the stated
rate of interest thereon or extend any scheduled interest payment date thereon,
adversely affect the validity of the second lien security interest, or lower the
priority or ranking thereof, in each case, without the written consent of each
holder of the Note.
12.6 Severability. If any
provision of this Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the remainder of
this Agreement, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and
enforceable to the extent permitted by law.
12.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
12.8 Counterparts. This
Agreement may be signed in any number of counterparts, by separate parties on
separate counterparts, with the same effect as if the signatures thereto and
hereto were upon the same instrument. Complete sets of counterparts shall be
delivered to the Issuer, the Subsidiary Guarantors and to you.
12.9 Authority. You shall
promptly deliver to the Issuer such documents as the Issuer may reasonably
request demonstrating due authorization, execution and delivery of this
Agreement by you.
-15-
If you agree with the foregoing, please sign the form of acceptance on the
enclosed copy of this Agreement in the space provided under your name and return
such copy to the Issuer, whereupon this Agreement shall become a binding
agreement between you, the Issuer and the Subsidiary Guarantors in accordance
with its terms.
|
Very
truly yours,
|
||
|
FORD
MOTOR COMPANY, as Issuer
|
||
| By: | /S/ Xxxx X. Xxxxxxx | |
| Name: |
Xxxx
X. Xxxxxxx
|
|
| Title: |
Vice
President and Treasurer
|
|
|
0000
XXXXXXXX XXXX COMPANY
|
||
|
FORD
GLOBAL TECHNOLOGIES, LLC
|
||
|
FORD
MOTOR SERVICE COMPANY
|
||
|
FORD
MOTOR VEHICLE ASSURANCE COMPANY, LLC
|
||
|
FORD
TRADING COMPANY, LLC
|
||
|
LAND
ROVER NORTH AMERICA, INC.
|
||
|
VOLVO
CARS OF NORTH AMERICA, LLC, as Subsidiary Guarantors
|
||
| By: |
/S/ Xxxx X.
Xxxxxxx
|
|
| Name: |
Xxxx
X. Xxxxxxx
|
|
| Title: |
Treasurer
or Assistant Treasurer
|
|
|
FORD
EUROPEAN HOLDINGS LLC
|
||
|
FORD
HOLDINGS LLC
|
||
|
FORD
INTERNATIONAL CAPITAL LLC
|
||
|
FORD
MEXICO HOLDINGS, INC.
|
||
|
FORD
COMPONENT SALES, L.L.C., as Subsidiary Guarantors
|
||
| By: |
/S/ Xxxxx X.
Xxxxxx
|
|
| Name: |
Xxxxx
X. Xxxxxx
|
|
| Title: |
Assistant
Treasurer
|
|
-00-
|
XXXX
XXXXX XXXXXXX HOLDINGS, LLC, as Subsidiary Guarantor
|
||
|
By: Ford
Motor Company, as sole member
|
||
|
By:
|
/S/ Xxxx X.
Xxxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
|
Title:
|
Vice
President and Treasurer
|
|
|
GRUPO
FORD, S. de X.X. de C.V., as Subsidiary Guarantor
|
||
|
By:
|
/S/ Xxxxx X. Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
Attorney-in-Fact
|
|
The
foregoing agreement is hereby accepted as of the date first written
above:
FORD-UAW
HOLDINGS LLC
|
By:
|
/S/ Xxxxx X. Xxxxxx |
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
Chairman
and Chief Executive Officer
|
|
-17-
SCHEDULE
I
SUBSIDIARY
GUARANTORS
|
Federal
|
||||||||||
|
Taxpayer
|
||||||||||
|
Organizational
|
Identification
|
State
of
|
Principal Place of
|
|||||||
|
Legal
Name
|
Type
of Entity
|
Number
|
Number
|
Formation
|
Business
|
|||||
|
0000
Xxxxxxxx Xxxx Company
|
Corporation
|
144453
|
38
- 1906301
|
Michigan
|
Michigan
|
|||||
|
Ford
European Holdings LLC
|
Limited
Liability Company
|
2974559
|
38
- 3442908
|
Delaware
|
Michigan
|
|||||
|
Ford
Global Technologies, LLC
|
Limited
Liability Company
|
3593792
|
38
- 6058810
|
Delaware
|
Michigan
|
|||||
|
Ford
Holdings LLC
|
Limited
Liability Company
|
2206682
|
38
- 2890269
|
Delaware
|
Michigan
|
|||||
|
Ford
International Capital LLC*
|
Limited
Liability Company
|
4467134
|
00-0000000
|
Delaware
|
Michigan
|
|||||
|
Ford
Mexico Holdings, Inc.*
|
Corporation
|
3281198
|
38
- 3563830
|
Delaware
|
Michigan
|
|||||
|
Ford
Motor Service Company
|
Corporation
|
486480
|
38
- 3364381
|
Michigan
|
Michigan
|
|||||
|
Ford
Motor Vehicle Assurance Company, LLC
|
Limited
Liability Company
|
4083499
|
38
- 3419908
|
Delaware
|
Michigan
|
|||||
|
Ford
South America Holdings, LLC
|
Limited
Liability Company
|
3080817
|
38
- 0549190
|
Delaware
|
Michigan
|
|||||
|
Ford
Trading Company, LLC
|
Limited
Liability Company
|
2919002
|
38
- 0549190
|
Delaware
|
Michigan
|
|||||
|
Ford
Component Sales, L.L.C.
|
Limited
Liability Company
|
2830472
|
38
- 3384550
|
Delaware
|
Michigan
|
|||||
|
Grupo Ford, S. de X.X. de
C.V.
*
|
Corporation
|
N/A
|
N/A
|
Mexico
|
Mexico
|
|||||
|
Land
Rover North America, Inc.
|
Corporation
|
2075961
|
22
- 2675556
|
Delaware
|
Michigan
|
|||||
|
Volvo
Cars of North America, LLC
|
Limited
Liability Company
|
0906002
|
31
- 1814807
|
Delaware
|
Michigan
|
|
*
|
Guaranty
has limited recourse to the pledged assets of the relevant
entity.
|
SCHEDULE
II
Opinion
of Counsel
1. Each
of the Issuer and Subsidiary Guarantors (collectively, the "Credit Parties") (a)
has been duly incorporated or formed, as the case may be, and is validly
existing and in good standing as a corporation or limited liability company in
the jurisdiction set forth opposite its name on Schedule I to the Agreement, (b)
has the corporate or limited liability company power and authority, as the case
may be, to execute and deliver the Agreement, the Note and the Guaranty (the
"Credit Documents") to which it is a party and to borrow and perform its
obligations thereunder, and to grant the security interests to be granted by it
pursuant to the Credit Agreement and Loan Documents (as defined therein and
collectively referred to herein as the "Security Documents"), and (c) has duly
authorized, executed and delivered each Credit Document to which it is a
party.
2. The
execution and delivery by any Credit Party of the Credit Documents to which it
is a party, its borrowings in accordance with the terms of the Credit Documents,
and performance of its payment obligations thereunder and granting of the
security interests to be granted by it pursuant to the Security Documents (a)
will not result in any violation of (1) the Certificate of Incorporation,
Articles of Incorporation, By-Laws, certificate of formation or limited
liability company operating agreement, as applicable, of such Credit Party, (2)
assuming that proceeds of borrowings will be used in accordance with the terms
of the Agreement, any Federal, Michigan or New York statute or the Delaware
General Corporation Law or the Delaware Limited Liability Company Act or any
rule or regulation issued pursuant to any Federal, Michigan or New York statute
or the Delaware General Corporation Law or the Delaware Limited Liability
Company Act or any order known to me issued by any court or governmental agency
or body and (b) will not breach or result in a default under (in each case
material to the Issuer and its subsidiaries considered as a whole) or, except as
described in Section 2(b) of the Agreement, result in the creation of any lien
upon or security interest (in each case material to the Issuer and its
subsidiaries considered as a whole) in the Credit Parties’ properties pursuant
to the terms of any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or other similar agreement or instrument
known to me under which any Credit Party is a debtor or guarantor.
3. No
consent, approval, authorization, order, filing, registration or qualification
of or with any Federal, Michigan or New York governmental agency or body or any
Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law or the Delaware Limited Liability Company Act is required for
the execution and delivery by any Credit Party of the Credit Documents to which
it is a party, the borrowings by any Credit Party in accordance with the terms
of the Credit Documents or the performance by the Credit Parties of their
respective payment obligations under the Credit Documents or the granting of any
security interests under the Security Documents, except filings and recordings
required for the perfection of security interests granted pursuant to the
Security Documents.
4. I
do not know of any legal or governmental proceeding pending to which any Credit
Party is a party, or to which any property of any Credit Party is subject, and
no such proceedings are known by me to be threatened or contemplated by
governmental authorities or threatened by others, that in either case questions
the validity of the Credit Documents.
| EXHIBIT A |
THE NOTE
EVIDENCED HEREBY HAS NOT BEEN AND WILL
NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED
OR SOLD
UNLESS, SUBJECT TO COMPLIANCE WITH
CERTAIN
RESTRICTIONS ON TRANSFER SET FORTH IN THE
NOTE
PURCHASE AGREEMENT REFERENCED BELOW, SUCH
NOTE IS
SUBSEQUENTLY REGISTERED UNDER SAID SECURITIES ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE
| Dearborn, Michigan |
FORD
MOTOR COMPANY
$3,000,000,000
9.50%
GUARANTEED SECURED NOTE DUE JANUARY 1, 2018
FOR VALUE
RECEIVED, FORD MOTOR COMPANY, a Delaware corporation (the “Issuer”), hereby
promises to pay to FORD-UAW HOLDINGS LLC, or registered assigns, the principal
amount of Three Billion United States Dollars ($3,000,000,000) in two equal
installments on January 1, 2017 and on January 1, 2018, and to pay interest on
the unpaid principal amount hereof (computed on the basis of a 360-day year of
twelve 30-day months) from January 1, 2008 at the rate of 9.50% (the “Interest
Rate”) per annum, payable semi-annually in arrears on the first day of each
January and July through maturity (each an "Interest Payment Date"), commencing
July 1, 2008, to the person or persons in whose name or names this Note is
registered at the close of business on the June 15 or December 15, as the case
may be, immediately preceding the relevant Interest Payment Date. The
Issuer also shall pay interest (so computed) after maturity, whether by
acceleration or otherwise, on any overdue principal and, to the extent permitted
by applicable law, on any overdue interest, until the same shall be paid in
full, at a rate per annum equal to 1% in excess of the Interest
Rate. The unpaid principal hereof may be prepaid in whole at any
time, and in part from time to time, prior to maturity without premium or
penalty, but with accrued and unpaid interest to the date of
prepayment. All such principal and interest shall be payable in such
coin or currency of the United States as at the time of payment shall be legal
tender for the payment of public and private debts, and shall be payable in
Federal funds or other immediately available funds.
This Note
is the Note referred to in the Note Purchase Agreement dated as of April 7, 2008
among the Issuer, the Subsidiary Guarantors listed in Schedule I thereto and
Ford-UAW Holdings LLC (the “Note Agreement”). Terms defined in the Note
Agreement are used herein as therein defined. As provided in the Note Agreement
and subject to the limitations set forth therein, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note, for registration
of transfer at the principal office of the Issuer. The registered holder of this
Note is entitled to the benefits of the Note Agreement and may enforce the
agreements, covenants and representations of the Issuer contained therein and
exercise the remedies provided thereby or otherwise available in respect
thereof.
The
principal of and interest on this Note is guaranteed by the Subsidiary
Guarantors named in the Note Agreement pursuant to the Guaranty endorsed on the
reverse hereof.
This Note
has been designated by the Issuer as Second Priority Additional Debt in
accordance with and subject to the terms of that certain Credit Agreement dated
as of December 15, 2006 among the Issuer, the Subsidiary Borrowers from time to
time parties thereto, the banks and other financial institutions or entities
from time to time parties thereto ("Lenders"), and JPMorgan Chase Bank, as
Administrative Agent for the Lenders (the "Credit Agreement") and the Loan
Documents (such term and other capitalized terms used in this paragraph but not
otherwise defined in this Note or the Note Agreement shall have the meanings
assigned to them in the Credit Agreement). As such, payment of the
principal hereof and interest hereon will be secured on a second lien basis with
the Collateral pledged by the Issuer and the Subsidiary Guarantors to the
Lenders under and in accordance with the Credit Agreement and the Loan
Documents, including the Collateral Trust Agreement dated as of December 15,
2006 among the Issuer, the Subsidiary Guarantors and Wilmington Trust Company,
as Collateral Trustee (the "Collateral Trust Agreement"), and the Security
Agreement dated as of December 15, 2006 made by the Issuer and the Subsidiary
Guarantors in favor of said Collateral Trustee (the "Security
Agreement"). Holders hereof will be subject to the intercreditor
provisions contained in Section 8 of the Collateral Trust
Agreement. The Issuer will provide copies of the Credit Agreement,
Collateral Trust Agreement and Security Agreement to any holder hereof upon the
request of such holder.
This Note
and the Guaranty endorsed hereon shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN
WITNESS WHEREOF, the Issuer has caused this Note to be executed as of the ___
day of April, 2008.
|
FORD
MOTOR COMPANY
|
||
| By: | ||
| Xxxx X. Xxxxxxx | ||
| Vice President and Treasurer | ||
[Reverse
of Note]
GUARANTY
Reference
is made to that Note Purchase Agreement (the “Note Agreement”), dated as of
April 7, 2008 among FORD MOTOR COMPANY, a Delaware corporation (the “Issuer”),
the Subsidiary Guarantors listed in Schedule I thereto (the “Subsidiary
Guarantors”), and FORD-UAW HOLDINGS LLC.
FOR VALUE
RECEIVED, the Subsidiary Guarantors hereby, jointly and severally,
unconditionally guarantee to the holder of the Note (the “Note”) on which this
Guaranty is endorsed the full and punctual payment when due (whether at stated
maturity, by acceleration or otherwise) of any and all sums whether of
principal, interest, fees, costs, expenses or otherwise, due and payable by the
Issuer pursuant to the Note Agreement and the Note (any such payment or
performance obligation being herein called an “Issuer Obligation”); provided,
however, that the liability of Ford International Capital LLC, Ford Mexico
Holdings, Inc. and Grupo Ford, S. de X.X. de C.V. (each a "Non-Recourse Party")
under this Guaranty shall be limited to any property (the "Non-Recourse
Collateral") in which such Non-Recourse Party has granted a Lien to the
Collateral Trustee pursuant to the Collateral Trust Agreement and Security
Agreement and Loan Documents referred to in the Note and that the rights of the
holder of the Note to recover against any such Non-Recourse Party shall be
limited solely to such Non-Recourse Party's Non-Recourse
Collateral.
Upon
failure by the Issuer to pay punctually any Issuer Obligation, each Subsidiary
Guarantor that is not a Non-Recourse Party will forthwith pay, on the day such
sum is due, without notice of demand, the full amount not paid by the Issuer or
any other Subsidiary Guarantor at the place and in the manner specified in the
Note Agreement.
Except as
provided in Section 8.7(a) of the Note Agreement, the obligations of each
Subsidiary Guarantor hereunder will be unconditional and absolute and, without
limiting the generality of the foregoing, will not be released, discharged or
otherwise affected by (i) any extension, renewal, settlement, compromise, waiver
or release in respect of any Issuer Obligation, (ii) any modification or
amendment of or supplement to the Note Agreement or the Note, (iii) any change
in the corporate or other existence, structure or ownership of the Issuer or any
Subsidiary Guarantor, or any insolvency, bankruptcy, reorganization or other
similar proceedings affecting the Issuer, any Subsidiary Guarantor or any of its
or their assets, (iv) the invalidity or unenforceability relating to or against
the Issuer or any Subsidiary Guarantor for any reason of the Note Agreement or
the Note, (v) the existence of any claim, setoff or other rights which any
Subsidiary Guarantor may have at any time against the Issuer, the holder of the
Note or any other person, or (vi) any other act or omission to act or delay of
any kind by the Issuer, any Subsidiary Guarantor or the holder of the Note or
any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Issuer’s obligations
under the Note Agreement or the Note or any Subsidiary Guarantor's obligations
hereunder.
Each
Subsidiary Guarantor hereby waives acceptance hereof, presentment, demand for
payment and protest of any kind whatsoever, as well as any right to require a
proceeding first against the Issuer.
Except as
provided in Section 8.7(a) of the Note Agreement, each Subsidiary Guarantor’s
obligations hereunder will remain in full force and effect until all Issuer
Obligations have been satisfied. If at any time payment or any part
thereof of any amount guaranteed hereby is rescinded or must otherwise be
restored upon the bankruptcy or reorganization of the Issuer, each Subsidiary
Guarantor’s obligations hereunder with respect to such payment will be
reinstated as though such payment had been due but not made at such
time.
Each
Subsidiary Guarantor agrees that, without notice to it and without the necessity
for any additional enforcement, consent or guaranty by it, the liability of the
Issuer hereby guaranteed may, from time to time, be renewed, extended, modified
(with respect to time for payment or the terms of indebtedness or otherwise),
compromised, released or discharged by the holder of the Note without
terminating, affecting or impairing the validity of this Guaranty or the
obligations of such Subsidiary Guarantor hereunder.
Upon a
Subsidiary Guarantor making any payment with respect to any Issuer Obligation,
such Subsidiary Guarantor will be subrogated to the rights of the payee against
the Issuer with respect to such payment; provided that such Subsidiary Guarantor
will not enforce any payment by way of subrogation until all Issuer Obligations
have been paid in full.
IN
WITNESS WHEREOF, each Subsidiary Guarantor has caused this Guaranty to be
executed as of the ___ day of April, 2008.
|
0000
XXXXXXXX XXXX COMPANY
|
||
|
FORD
EUROPEAN HOLDINGS LLC
|
||
|
FORD
GLOBAL TECHNOLOGIES, LLC
|
||
|
FORD
HOLDINGS LLC
|
||
|
FORD
INTERNATIONAL CAPITAL LLC
|
||
|
FORD
MEXICO HOLDINGS, INC.
|
||
|
FORD
MOTOR SERVICE COMPANY
|
||
|
FORD
MOTOR VEHICLE ASSURANCE COMPANY, LLC
|
||
|
FORD
SOUTH AMERICA HOLDINGS, LLC
|
||
|
FORD
TRADING COMPANY, LLC
|
||
|
FORD
COMPONENT SALES, L.L.C.
|
||
|
GRUPO
FORD, S. de X.X. de C.V.
|
||
|
LAND
ROVER NORTH AMERICA, INC.
|
||
|
VOLVO
CARS OF NORTH AMERICA, LLC
|
||
| By: |
|
|
|
Name:
|
||
|
Title:
|
||
