DOE (ATV) FORD MOTOR COMPANY
Exhibit 10.2
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DOE
(ATV)
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FORD
MOTOR COMPANY
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NOTE PURCHASE AGREEMENT
made as of September 16, 2009, by and among the FEDERAL FINANCING BANK
("FFB"),
a body corporate and instrumentality of the United States of America,
FORD MOTOR COMPANY
(the "Borrower"), a
corporation organized and existing under the laws of the State of
Delaware, and the SECRETARY OF ENERGY (the
"Secretary").
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WHEREAS, the Secretary is
authorized, pursuant to the Program Authority (as hereinafter defined), to carry
out a program to provide for loans that meet the requirements of the Program
Authority; and
WHEREAS, FFB is authorized,
pursuant to the Program Authority, to make loans under the Secretary's program;
and
WHEREAS, FFB has entered into
the Program Financing Agreement (as hereinafter defined) with the Secretary
setting forth the commitment of FFB to enter into agreements to purchase notes
issued by entities designated by the Secretary when the Secretary affirms that
(i) the Secretary is obligated to reimburse FFB under circumstances and in
amounts as provided therein in connection with loans evidenced by those notes,
and (ii) such reimbursement obligations are made with the full faith and credit
of the United States, and the commitment of the Secretary to make such
affirmations; and
WHEREAS, pursuant to the
Program Financing Agreement, the Secretary has delivered to FFB and the Borrower
a Designation Notice (as hereinafter defined) designating the Borrower to be a
"Borrower" for purposes of the Program Financing Agreement; and
WHEREAS, FFB is entering into
this Note Purchase Agreement, in fulfillment of its commitment under the Program
Financing Agreement, setting out, among other things, FFB's agreement to
purchase the Notes (as hereinafter defined) to be issued by the Borrower, when
the terms and conditions specified herein have been satisfied, as hereinafter
provided.
NOTE
PURCHASE AGREEMENT - page 1
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DOE
(ATV)
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FORD
MOTOR COMPANY
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NOW, THEREFORE, for and in
consideration of the mutual agreements herein contained and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, FFB, the Secretary, and the Borrower agree as
follows:
ARTICLE
1
DEFINITIONS
AND RULES OF INTERPRETATION
Section
1.1 Definitions.
As used
in this Agreement, the following terms shall have the respective meanings
specified in this section 1.1, unless the context clearly requires
otherwise.
"Advance" shall mean
an advance of funds made by FFB under any Note in accordance with the provisions
of article 7 of this Agreement.
"Advance Identifier"
shall mean, for each Advance, the particular sequence of letters and numbers
constituting the Note Identifier plus the particular sequence of additional
numbers assigned by FFB to the respective Advance in the interest rate
confirmation notice relating to such Advance delivered by FFB in accordance with
section 7.7 of this Agreement.
"Advance Request"
shall mean a letter from the Borrower requesting an Advance under any Note, in
the form of letter attached as Exhibit A to this
Agreement.
"Advance Request Approval
Notice" shall mean the written notice from the Department located at the
end of an Advance Request advising FFB that such Advance Request has been
approved by or on behalf of the Secretary.
"Borrower Instruments"
shall have the meaning specified in section 3.2.1 of this
Agreement.
NOTE PURCHASE AGREEMENT - page
2
"Business Day" shall
mean any day on which FFB and the Federal Reserve Bank of New York are both open
for business.
"Certificate Specifying
Authorized Borrower Officials" shall mean a certificate of the Borrower
specifying the names and titles of those officials of the Borrower who are
authorized to execute and deliver from time to time Advance Requests on behalf
of the Borrower, and containing the original signature of each of those
officials, substantially in the form of the Certificate Specifying Authorized
Borrower Officials attached as Exhibit B to this
Agreement.
"Certificate Specifying
Authorized Department Officials" shall mean a certificate specifying the
names and titles of those officials of the Department who are authorized to
execute and deliver Advance Request Approval Notices from time to time on behalf
of the Secretary and setting out the original signature of each of those
authorized officials, and specifying the name and title of those officials of
the Department who are authorized to confirm telephonically the authenticity of
the Advance Request Approval Notices from time to time on behalf of the
Secretary and setting out the telephone number of each of those authorized
officials, in the form of the Certificate Specifying Authorized Department
Officials attached as Annex 1 to the Program Financing Agreement.
"Department" shall
mean the Department of Energy.
"Designation Notice"
shall mean, generally, a notice from the Secretary to FFB and the particular
entity identified therein as the respective "Borrower," designating that entity
to be a "Borrower" for purposes of the Program Financing Agreement, in the form
of notice that is attached as Annex 2 to the Program Financing Agreement; and
"the
Designation
Notice" shall mean the particular Designation Notice delivered by the
Secretary to FFB and the Borrower designating the Borrower to be a "Borrower"
for purposes of the Program Financing Agreement.
"Governmental
Approval" shall mean any approval, consent, authorization, license,
permit, order, certificate, qualification, waiver, exemption, or variance, or
any other action of a similar nature, of or by a Governmental Authority having
jurisdiction over the Borrower or any of its properties.
NOTE PURCHASE AGREEMENT - page
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"Governmental
Authority" shall mean any federal, state, county, municipal, or regional
authority, or any other entity of a similar nature, exercising any executive,
legislative, judicial, regulatory, or administrative function of
government.
"Governmental
Judgment" shall mean any judgment, order, decision, or decree, or any
action of a similar nature, of or by a Governmental Authority having
jurisdiction over the Borrower or any of its properties.
"Governmental
Registration" shall mean any registration, filing, declaration, or
notice, or any other action of a similar nature, with or to a Governmental
Authority having jurisdiction over the Borrower or any of its
properties.
"Governmental Rule"
shall mean any statute, law, rule, regulation, code, or ordinance of a
Governmental Authority having jurisdiction over the Borrower or any of its
properties.
"Holder" shall mean,
with respect to any Note, FFB, for so long as it shall be the holder of such
Note, and any successor or assignee of FFB, for so long as such successor or
assignee shall be the holder of such Note.
"Loan Commitment
Amount" shall mean $5,937,000,000.
"Material Adverse Effect on
the Borrower" shall mean any material adverse effect on the financial
condition, operations, business or prospects of the Borrower or any affiliated
guarantor of the Borrower or the ability of the Borrower to perform its
obligations under this Agreement or any of the other Borrower
Instruments.
"Note" shall mean any
future advance promissory note issued by the Borrower payable to FFB, in the
form of note that is attached as Exhibit C to this
Agreement, as any such Note may be amended, supplemented, and restated from time
to time in accordance with its terms.
NOTE PURCHASE AGREEMENT - page
4
"Note Identifier"
shall mean, with respect to each Note, the particular sequence of letters and
numbers assigned by FFB to the respective Note in the Principal Instruments
acceptance notice relating to such Note delivered by FFB in accordance with
section 5.1 of this Agreement.
"Opinion of Borrower's
Counsel re: Borrower Instruments" shall mean an opinion of counsel from
counsel to the Borrower, substantially in the form of opinion that is attached
as Exhibit D to
this Agreement.
"Opinion of Secretary's
Counsel re: Secretary's Affirmation" shall mean an opinion of counsel
from counsel to the Secretary, substantially in the form of opinion that is
attached as Exhibit
E to this Agreement.
"Other Debt
Obligation" shall mean any note or any other evidence of an obligation
for borrowed money of a similar nature, made or issued by the Borrower (other
than the Notes purchased by FFB under this Agreement), or any mortgage,
indenture, deed of trust or loan agreement with respect thereto to which the
Borrower is a party or by which the Borrower or any of its properties is bound
(other than this Agreement).
"Person" shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, trust company, unincorporated organization or
Governmental Authority.
"Principal
Instruments" shall have the meaning specified in section 4.2 of this
Agreement.
"Program Authority"
shall mean section 136 of the Energy Independence and Security Act of 2007 (Pub.
L. No. 110-140, 121 Stat. 1492, 1514), as amended from time to time, including
as amended by section 129 of Division A of the Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009 (Pub. L. No. 110-329, 122
Stat. 3574, 3578).
NOTE PURCHASE AGREEMENT - page
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"Program Financing Commitment
Amount" shall have the meaning specified in section 1.1 of the Program
Financing Agreement.
"Program Financing
Agreement" shall mean the Program Financing Agreement dated as of
September 16, 2009, between FFB and the Secretary, as such agreement may be
amended, supplemented, and restated from time to time in accordance with its
terms.
"Requested Advance
Amount" shall have the meaning specified in section 7.3.1(a)(2) of this
Agreement.
"Requested Advance
Date" shall have the meaning specified in section 7.3.1(a)(3) of this
Agreement.
"Secretary's
Affirmation" shall mean the affirmation of the Note issued by the
Secretary, in the form of affirmation that is attached as Exhibit F to this
Agreement.
"Secretary's
Certificate" shall mean the certificate relating to the Secretary's
Affirmation and other matters, in the form of certificate that is attached as
Exhibit G to
this Agreement.
"Secretary's
Instruments" shall have the meaning specified in section 3.3.1 this
Agreement.
"this Agreement" shall
mean this Note Purchase Agreement among FFB, the Secretary, and the
Borrower.
"Uncontrollable Cause"
shall mean an unforeseeable cause beyond the control and without the fault of
FFB, being: act of God, fire, flood, severe weather, epidemic,
quarantine restriction, explosion, sabotage, act of war, act of terrorism, riot,
civil commotion, lapse of the statutory authority of the United States
Department of the Treasury to raise cash through the issuance of Treasury debt
instruments, disruption or failure of the Treasury Financial Communications
System, closure of the Federal Government, or an unforeseen or unscheduled
closure or evacuation of the FFB offices.
NOTE PURCHASE AGREEMENT - page
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Section 1.2 Rules of
Interpretation.
Unless
the context shall otherwise indicate, the terms defined in section 1.1 of this
Agreement shall include the plural as well as the singular and the singular as
well as the plural. The words "herein," "hereof," and "hereto," and
words of similar import, refer to this Agreement as a whole.
ARTICLE
2
FFB
COMMITMENT TO PURCHASE THE NOTE
Subject
to the terms and conditions of this Agreement, FFB agrees to purchase the Notes
that are offered by the Borrower to FFB for purchase under this
Agreement.
ARTICLE
3
COMMITMENT
CONDITIONS
FFB shall
be under no obligation to purchase the Notes under this Agreement unless and
until each of the conditions specified in this article 3 has been
satisfied.
Section
3.1 Commitment Amount
Limits.
3.1.1 Loan Commitment
Amount. The aggregate maximum principal amount of the Notes
that are offered for purchase shall not exceed the Loan Commitment
Amount.
3.1.2 Program Financing Commitment
Amount. At the time that each Note is offered to FFB for
purchase under this Agreement, the aggregate maximum principal amount of the
Notes, when added to the aggregate maximum principal amount of all other notes
that have been issued by entities that have been designated by the Secretary in
Designation Notices to be "Borrowers" for purposes of the Program Financing
Agreement and in connection with which the Secretary has undertaken certain
reimbursement obligations pursuant to the Program Authority, shall not exceed
the Program Financing Commitment Amount.
NOTE PURCHASE AGREEMENT - page
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Section
3.2 Borrower
Instruments.
3.2.1 Borrower
Instruments. FFB shall have received from the Borrower the
following instruments (such instruments being, collectively, the "Borrower
Instruments"):
(a) an
original counterpart of this Agreement, duly executed by the Borrower;
and
(b) each
original Note described in the Designation Notice, with all of the blanks on
page 1 of each Note filled in with information consistent with the information
set out in the Designation Notice, and duly executed by the
Borrower.
3.2.2 Opinion of Borrower's
Counsel re: Borrower Instruments. FFB shall have received from
the Borrower an Opinion of Borrower's Counsel re: Borrower
Instruments.
3.2.3 Certificate Specifying
Authorized Borrower Officials. FFB shall have received from
the Borrower a completed and signed Certificate Specifying Authorized Borrower
Officials.
Section
3.3 Secretary's
Instruments.
3.3.1 Secretary's
Instruments. FFB shall have received from the Secretary the
following instruments (such instruments being, collectively, the "Secretary's
Instruments"):
(a) an
original counterpart of this Agreement, duly executed by or on behalf of the
Secretary;
(b) the
original Secretary's Affirmation relating to the Notes, duly executed by or on
behalf of the Secretary; and
NOTE PURCHASE AGREEMENT - page
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(c) an
original Secretary's Certificate relating to the Secretary's Affirmation and
other matters, duly executed by or on behalf of the Secretary.
3.3.2 Opinion of Secretary's
Counsel re: Secretary's Affirmation. FFB shall have received
an Opinion of Secretary's Counsel re: Secretary's Affirmation.
Section 3.4 Conditions
Specified in Other Agreements.
Each of
the conditions specified in the Program Financing Agreement as being conditions
to purchasing the Note shall have been satisfied, or waived by both FFB and the
Secretary.
ARTICLE
4
OFFER
OF THE NOTES FOR PURCHASE
The Notes
that are to be offered to FFB for purchase under this Agreement shall be offered
in accordance with the procedures described in this article 4.
Section
4.1 Delivery of Borrower
Instruments to the Secretary.
The
Borrower shall deliver to the Secretary, for redelivery to FFB, the
following:
(a) all
of the Borrower Instruments, each duly executed by the Borrower;
(b) an
Opinion of Borrower's Counsel re: Borrower Instruments; and
(c) a
completed and signed Certificate Specifying Authorized Borrower
Officials.
Section
4.2 Delivery of Principal
Instruments by the Secretary to FFB.
The
Secretary shall deliver to FFB all of the following instruments (collectively
being the "Principal
Instruments"):
NOTE PURCHASE AGREEMENT - page
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(ATV)
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FORD
MOTOR COMPANY
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(a) all
of the instruments described in section 4.1;
(b) all
of the Secretary's Instruments, each duly executed by the Secretary;
and
(c) an
Opinion of Secretary's Counsel re: Secretary's Affirmation.
ARTICLE
5
PURCHASE
OF THE NOTES BY FFB
Section 5.1 Acceptance
or Rejection of Principal Instruments.
Within 5
Business Days after delivery to FFB of the Principal Instruments relating to the
Notes that are offered for purchase under this Agreement, FFB shall deliver by
facsimile transmission (fax) to the Department one of the
following:
(a) an
acceptance notice, which notice shall:
(1) state
that the Principal Instruments meet the terms and conditions detailed in article
3 of this Agreement, or are otherwise acceptable to FFB; and
(2)
assign a Note Identifier to each Note for use by the Borrower and the Department
in all communications to FFB making reference to the respective Note;
or
(b) a
rejection notice, which notice shall state that one or more of the Principal
Instruments does not meet the terms and conditions of this Agreement and specify
how such instrument or instruments does not meet the terms and conditions of
this Agreement.
Section 5.2 Purchase.
FFB shall
not be deemed to have accepted the Notes offered for purchase under this
Agreement until such time as FFB shall have delivered an acceptance notice
accepting the Principal Instruments relating to the Notes; provided, however, that in the
event that FFB shall make an Advance under any Note, then FFB shall be deemed to
have accepted such Note offered for purchase.
NOTE PURCHASE AGREEMENT - page
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(ATV)
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MOTOR COMPANY
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ARTICLE
6
CUSTODY
OF NOTE; LOSS OF NOTE, ETC.
Section
6.1 Custody.
FFB shall
have custody of each Note purchased under this Agreement until all amounts owed
under the respective Note have been paid in full.
Section
6.2 Lost,
Stolen, Destroyed, or Mutilated Note.
In the
event that any Note purchased under this Agreement shall become lost, stolen,
destroyed, or mutilated, the Borrower shall, upon the written request of FFB,
execute and deliver, in replacement thereof, a new Note of like tenor, dated and
bearing interest from the date to which interest has been paid on such lost,
stolen, destroyed, or mutilated Note or, if no interest has been paid thereon,
dated the same date as such lost, stolen, destroyed, or mutilated
Note. Upon delivery of such replacement Note, the Borrower shall be
released and discharged from any further liability on account of the lost,
stolen, or destroyed Note. If the Note being replaced has been
mutilated, such mutilated Note shall be surrendered to the Borrower for
cancellation.
ARTICLE
7
ADVANCES
Section 7.1 Commitment.
Subject
to the terms and conditions of this Agreement, FFB agrees to make Advances under
each Note for the account of the Borrower.
NOTE PURCHASE AGREEMENT - page
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MOTOR COMPANY
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Section 7.2 Treasury
Policies Applicable to Advances.
Each of
the Borrower and the Secretary understands and consents to the following
Treasury financial management policy applicable to all Advances under this
Agreement:
each
Advance will be requested by the Borrower, and each Advance Request will be
approved by the Secretary, only to reimburse the Borrower for expenditures that
it has made from its own working capital.
Section
7.3 Conditions to Making
Advances.
FFB shall
be under no obligation to make any Advance under any Note unless and until each
of the conditions specified in this section 7.3 is satisfied.
7.3.1 Advance
Requests. For each Advance under any Note, the Borrower shall
have delivered to the Secretary, for review and approval before being forwarded
to FFB, an Advance Request, which Advance Request:
(a) shall
specify, among other things:
(1) the
particular "Note Identifier" that FFB assigned to the respective Note (as
provided in section 5.1 of this Agreement;
(2) the
particular amount of funds that the Borrower requests to be advanced (such
amount being the "Requested Advance
Amount" for the respective Advance);
(3) the
particular calendar date that the Borrower requests to be the date on which the
respective Advance is to be made (such date being the "Requested Advance
Date" for such Advance), which date:
(A) must
be a Business Day; and
(B) shall
not be earlier than the third Business Day to occur after the date on which FFB
shall have received the respective Advance Request; and
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MOTOR COMPANY
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(4) the
particular bank account to which the Borrower requests that the respective
Advance be made;
(b) shall
have been duly executed by an official of the Borrower whose name and signature
appear on the Certificate Specifying Authorized Borrower Officials delivered by
the Borrower to FFB pursuant to section 3.2.3 of this Agreement;
and
(c) shall
have been received by FFB not later than the third Business Day before the
Requested Advance Date specified in such Advance Request.
7.3.2 Advance Request Approval
Notice. For each Advance, the Secretary shall have delivered
to FFB the Borrower's executed Advance Request, together with the Department's
executed Advance Request Approval Notice, which Advance Request Approval
Notice:
(a) shall
have been duly executed on behalf of the Secretary by an official of the
Department whose name and signature appear on the Certificate Specifying
Authorized Department Officials delivered to FFB pursuant to section 3.1.3 or
section 6.1 of the Program Financing Agreement; and
(b)
shall have been received by FFB not later than the third Business Day before the
Requested Advance Date specified in such Advance Request.
7.3.3 Telephonic Confirmation of
Authenticity of Advance Request Approval Notices. For each
Advance, FFB shall have obtained telephonic confirmation of the authenticity of
the related Advance Request Approval Notice from an official of the Department
(a) whose name, title, and telephone number appear on the Certificate Specifying
Authorized Department Officials that has been delivered by the Secretary to FFB
pursuant to section 3.1.3 or section 6.1 of the Program Financing Agreement; and
(b) who is not the same official of the Department who executed the Advance
Request Approval Notice on behalf of the Secretary.
NOTE PURCHASE AGREEMENT - page
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MOTOR COMPANY
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7.3.4 Note Maximum Principal
Amount Limit. At the time of making any Advance under any
Note, the amount of such Advance, when added to the aggregate amount of all
Advances previously made under such Note, shall not exceed the maximum principal
amount of such Note.
7.3.5 Conditions Specified in
Other Agreements. Each of the conditions specified in the
Program Financing Agreement as being conditions to making Advances under each
Note, shall have been satisfied, or waived by both FFB and the
Secretary.
Section
7.4 Amount
and Timing of Advances.
FFB shall
make each Advance in the Requested Advance Amount specified in the respective
Advance Request and on the Requested Advance Date specified in the respective
Advance Request, subject to satisfaction of the conditions specified in section
7.3 of this Agreement and subject to the following additional
limitations:
(a) in
the event that the Requested Advance Date specified in the respective Advance
Request is not a Business Day, FFB shall make the respective Advance on the
first day thereafter that is a Business Day;
(b) in
the event that FFB receives the respective Advance Request and the related
Advance Request Approval Notice later than the third Business Day before the
Requested Advance Date specified in such Advance Request, FFB shall make the
respective Advance as soon as practicable thereafter, but in any event not later
than the third Business Day after FFB receives such Advance Request, unless the
Borrower delivers to FFB and the Secretary a written cancellation of such
Advance Request or a replacement Advance Request specifying a later Requested
Advance Date;
(c) in
the event that an Uncontrollable Cause prevents FFB from making the respective
Advance on the Requested Advance Date specified in the respective Advance
Request, FFB shall make such Advance as soon as such Uncontrollable Cause ceases
to prevent FFB from making such Advance, unless the Borrower delivers to FFB and
the Secretary a written cancellation of such Advance Request or a replacement
Advance Request specifying a later Requested Advance Date; and
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MOTOR COMPANY
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(d) in
the event that FFB receives, not later than 3:30 p.m. (Washington, DC, time) on
the Business Day immediately before the Requested Advance Date specified in an
Advance Request, a written notice delivered by facsimile transmission of
withdrawal or cancellation of the Advance Request Approval Notice, and
telephonic confirmation of the withdrawal or cancellation, from an official of
the Department whose name, title, and telephone number appear on the Certificate
Specifying Authorized Department Officials that has been delivered by the
Secretary to FFB pursuant to section 3.1.3 or section 6.1 of the Program
Financing Agreement, FFB shall not make the respective Advance.
Section
7.5 Type of
Funds and Means of Advance.
Each
Advance shall be made in immediately available funds by electronic funds
transfer to such bank account(s) as shall have been specified in the respective
Advance Request.
Section 7.6 Interest
Rate Applicable to Advances.
The rate
of interest applicable to each Advance made under any Note shall be established
as provided in paragraph 6 of such Note.
Section
7.7 Interest Rate Confirmation
Notices.
After
making each Advance, FFB shall deliver, by facsimile transmission, to the
Borrower and the Department written confirmation of the making of the respective
Advance, which confirmation shall:
(a) state
the date on which such Advance was made;
(b) state
the interest rate applicable to such Advance; and
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MOTOR COMPANY
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(c)
assign an Advance Identifier to such Advance for use by the Borrower and the
Department in all communications to FFB making reference to such
Advance.
ARTICLE
8
REPRESENTATIONS
AND WARRANTIES BY THE BORROWER
The
Borrower makes the representations and warranties provided in this article 8 to
FFB.
Section 8.1 Organization.
The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of Delaware and is qualified to do business in each of Illinois,
Kentucky, Michigan, Missouri, New York, and Ohio.
Section
8.2 Authority.
The
Borrower has all requisite corporate power and authority to carry on its
business as presently conducted, to execute and deliver this Agreement and each
of the other Borrower Instruments, to consummate the transactions contemplated
hereby and thereby, and to perform its obligations hereunder and
thereunder.
Section 8.3 Due
Authorization.
The
execution and delivery by the Borrower of this Agreement and each of the other
Borrower Instruments, the consummation by the Borrower of the transactions
contemplated hereby and thereby, and the performance by the Borrower of its
obligations hereunder and thereunder have been duly authorized by all necessary
corporate action.
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MOTOR COMPANY
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Section 8.4 Due
Execution.
This
Agreement has been, and each of the other Borrower Instruments will have been at
the respective time of delivery of each thereof, duly executed and delivered by
officials of the Borrower who are duly authorized to execute and deliver such
documents on its behalf.
Section 8.5 Validity
and Enforceability.
This
Agreement constitutes, and each of the other Borrower Instruments will
constitute at the respective time of delivery of each thereof, the legal, valid,
and binding agreement of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
Section
8.6 No
Governmental Actions Required.
No
Governmental Approvals or Governmental Registrations are now, or under existing
Governmental Rules will in the future be, required to be obtained or made, as
the case may be, by the Borrower to authorize the execution and delivery by the
Borrower of this Agreement or any of the other Borrower Instruments, the
consummation by the Borrower of the transactions contemplated hereby or thereby,
or the performance by the Borrower of its obligations hereunder or
thereunder.
Section
8.7 No
Conflicts or Violations.
The
execution and delivery by the Borrower of this Agreement or any of the other
Borrower Instruments, the consummation by the Borrower of the transactions
contemplated hereby or thereby, and the performance by the Borrower of its
obligations hereunder or thereunder do not and will not conflict with or
violate, result in a breach of, or constitute a default under (a) any term or
provision of the charter documents or bylaws of the Borrower; (b) any of the
covenants, conditions or agreements contained in any Other Debt Obligation of
the Borrower; (c) any Governmental Approval or Governmental Registration
obtained or made, as the case may be, by the Borrower; or (d) any Governmental
Judgment or Governmental Rule currently applicable to the Borrower.
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MOTOR COMPANY
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Section 8.8 All
Necessary Governmental Actions.
The
Borrower has not failed to obtain any material Governmental Approval or make any
material Governmental Registration required or necessary to carry on the
business of the Borrower as presently conducted, and the Borrower reasonably
believes that it will not be prevented by any Governmental Authority having
jurisdiction over the Borrower from so carrying on its business as presently
conducted.
Section 8.9 No
Material Litigation.
There are
no lawsuits or judicial or administrative actions, proceedings or investigations
pending or, to the best knowledge of the Borrower, threatened against the
Borrower which, in the reasonable opinion of the Borrower, is likely to have a
Material Adverse Effect on the Borrower.
ARTICLE
9
BILLING
BY FFB
Section
9.1 Billing
Statements to the Borrower and the Department.
FFB shall
prepare a billing statement for the amounts owed to FFB on each Advance that is
made under each Note purchased under this Agreement, and shall deliver each such
billing statement to the Borrower and the Department.
Section
9.2 Failure
to Deliver or Receive Billing Statements No Release.
Failure
on the part of FFB to deliver any billing statement or failure on the part of
the Borrower to receive any billing statement shall not, however, relieve the
Borrower of any of its payment obligations under the Note or this
Agreement.
Section
9.3 FFB
Billing Determinations Conclusive.
9.3.1 Acknowledgment and
Consent. The Borrower acknowledges that FFB has described to
it:
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(a) the
rounding methodology employed by FFB in calculating the amount of accrued
interest owed at any time on each Note; and
(b) the
methodology employed by FFB in calculating the equal principal installments
payment schedule for amounts due and payable on each Note;
and the
Borrower consents to these methodologies.
9.3.2 Agreement. The
Borrower agrees that any and all determinations made by FFB shall, absent
manifest error, be conclusive and binding upon the Borrower with respect
to:
(a) the
amount of accrued interest owed on each Note determined using this rounding
methodology; and
(b) the
amount of any equal principal installments payment due and payable on each Note
determined using this methodology.
ARTICLE 10
PAYMENTS
TO FFB
Each
amount that becomes due and owing on each Note purchased under this Agreement
shall be paid when and as due, as provided in the respective Note.
ARTICLE
11
SECRETARY'S
RIGHT TO PURCHASE ADVANCES OR ANY NOTE
Notwithstanding
the provisions of each of the Notes, the Borrower acknowledges that, under the
terms of the Program Financing Agreement, the Secretary may purchase from FFB
all or any portion of any Advance that has been made under any Note, or may
purchase from FFB any Note in its entirety, in the same manner, at the same
price, and subject to the same limitations as shall be applicable, under the
terms of such Note, to a prepayment by the Borrower of all or any portion of any
Advance made under such Note, or a prepayment by the Borrower of such Note in
its entirety, as the case may be.
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ARTICLE
12
EFFECTIVE
DATE, TERM, SURVIVAL
Section
12.1 Effective
Date.
This
Agreement shall be effective as of the date first above written.
Section
12.2 Term
of Commitment to Make Advances.
The
obligation of FFB under this Agreement to make Advances under each Note issued
by the Borrower shall expire on the "Last Day for an Advance" specified in the
respective Note.
Section
12.3 Survival.
12.3.1 Representations, Warranties,
and Certifications. All representations, warranties, and
certifications made by the Borrower in this Agreement, or in any agreement,
instrument, or certificate delivered pursuant hereto, shall survive the
execution and delivery of this Agreement, the purchasing of the Notes hereunder,
and the making of Advances thereunder.
12.3.2 Remainder of
Agreement. Notwithstanding the occurrence and passage of the
Last Day for an Advance, the remainder of this Agreement shall remain in full
force and effect until all amounts owed under this Agreement and each of the
Notes purchased by FFB under this Agreement have been paid in full.
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ARTICLE
13
MISCELLANEOUS
Section 13.1 Notices.
13.1.1 Addresses of the
Parties. All notices and other communications hereunder or under
any Note to be made to any party shall be in writing and shall be addressed as
follows:
To
FFB:
Federal
Financing Bank
Main
Treasury Building
0000
Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
Attention: Chief
Financial Officer
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Telephone
No.
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(000)
000-0000
|
|
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Facsimile
No.
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(000)
000-0000
|
To the
Borrower:
Ford
Motor Company
Xxx
Xxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention: Treasurer
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|
Telephone:
|
(000)
000-0000
|
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Facsimile:
|
(000)
000-0000
|
To the
Secretary (or the Department):
Director
Advanced
Technology Vehicles Manufacturing Loan Program
CF-1.4
United
States Department of Energy
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0000
Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
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Telephone
No.
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(000)
000-0000
|
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Facsimile
No.
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(000)
000-0000
|
Copies
of all legal notices and correspondence should also be sent to:
Office of
the General Counsel
GC-1
United
States Department of Energy
0000
Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
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Telephone
No.
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(000)
000-0000
|
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Facsimile
No.
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(000)
000-0000
|
The
address, telephone number, or facsimile number for any party may be changed at
any time and from time to time upon written notice given by such changing party
to each of the other parties hereto.
13.1.2 Permitted Means of
Delivery. Advance Requests, notices, and other communications
to FFB may be delivered by facsimile (fax) transmission of the executed
instrument.
13.1.3 Effective Date of
Delivery. A properly addressed notice or other communication
shall be deemed to have been "delivered" for purposes of this
Agreement:
(a) if
made by personal delivery, on the date of such personal delivery;
(b) if
mailed by first class mail, registered or certified mail, express mail, or by
any commercial overnight courier service, on the date that such mailing is
received;
(c) if
sent by facsimile (fax) transmission:
(1) if
the transmission is received and receipt confirmed before 4:00 p.m. (Washington,
DC, time) on any Business Day, on the date of such transmission; and
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(2) if
the transmission is received and receipt confirmed after 4:00 p.m. (Washington,
DC, time) on any Business Day or any day that is not a Business Day, on the next
Business Day.
13.1.4 Notices to FFB to Contain
FFB Identification References. All notices to FFB making any
reference to any Note or any Advance made under such Note shall identify the
respective Note or such Advance by the respective Note Identifier or the
respective Advance Identifier, as the case may be, assigned by FFB to such Note
or such Advance.
Section
13.2 Amendments.
No
provision of this Agreement may be amended, modified, supplemented, waived,
discharged, or terminated orally but only by an instrument in writing duly
executed by each of the parties hereto and consented to in writing by or on
behalf of the Secretary.
Section
13.3 Successors and
Assigns.
This
Agreement shall be binding upon and inure to the benefit of each of FFB, the
Borrower, and the Secretary, and each of their respective successors and
assigns.
Section
13.4 Sale
or Assignment of Note.
13.4.1 Sale or Assignment
Permitted. FFB may sell, assign, or otherwise transfer all or
any part of any Note or any participation share thereof; provided, however, that, notwithstanding the
foregoing, following any such sale, assignment or transfer, FFB shall continue
to be fully liable for its duties and obligations hereunder and under such
Note.
13.4.2 Notice of Sale,
Etc.
(a) Sale,
Etc., to a Federal Entity. In the case of any sale, assignment, or
other transfer by FFB of all or any part of any Note or any participation share
thereof to an agency or instrumentality of the United States or a trust fund or
other government account under the authority or control of the United States or
any officer or officers thereof, FFB will deliver to the Borrower and the
Department written notice of such sale, assignment, or other transfer promptly
after such sale, assignment, or other transfer.
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(b) Sale,
Etc., to Other Than a Federal Entity. In the case of any sale,
assignment, or other transfer by FFB of all or any part of any Note or any
participation share thereof to a purchaser, assignee, or transferee that is not
an agency or instrumentality of the United States or a trust fund or other
government account under the authority or control of the United States or any
officer or officers thereof, FFB will deliver to the Borrower and the Department
written notice of such sale, assignment, or other transfer at least 45 calendar
days in advance of such sale, assignment, or other transfer.
13.4.3 Manner of Payment after
Sale. Any sale, assignment, or other transfer of all or any
part of any Note may provide that, following such sale, assignment, or other
transfer, payments on such Note shall be made in the manner specified by the
respective purchaser, assignee, or transferee, as the case may be.
13.4.4 Replacement
Notes. The Borrower agrees:
(a) to
issue a replacement Note or Notes with the same aggregate principal amount,
interest rate, maturity, and other terms as each respective Note or Notes sold,
assigned, or transferred pursuant to section 13.4.1 of this Agreement; provided, however, that, when
requested by the respective purchaser, assignee, or transferee, such replacement
Note or Notes shall provide that payments thereunder shall be made in the manner
specified by such purchaser, assignee, or transferee; and
(b) to
effect the change in ownership on its records and on the face of each such
replacement Note issued, upon receipt of each Note or Notes so sold, assigned,
or transferred.
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Section
13.5 Forbearance Not a
Waiver.
Any
forbearance on the part of FFB from enforcing any term or condition of this
Agreement shall not be construed to be a waiver of such term or condition or
acquiescence by FFB in any failure on the part of Borrower to comply with or
satisfy such term or condition.
Section
13.6 Rights
Confined to Parties.
Nothing
expressed or implied herein is intended or shall be construed to confer upon, or
to give to, any Person other than FFB, the Borrower, and the Secretary, and
their respective successors and permitted assigns, any right, remedy or claim
under or by reason of this Agreement or of any term, covenant or condition
hereof, and all of the terms, covenants, conditions, promises, and agreements
contained herein shall be for the sole and exclusive benefit of FFB, the
Borrower, and the Secretary, and their respective successors and permitted
assigns.
Section
13.7 Governing
Law.
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by, and construed and interpreted in accordance with, Federal law and
not the law of any state or locality. To the extent that a court
looks to the laws of any state to determine or define the Federal law, it is the
intention of the parties hereto that such court shall look only to the laws of
the State of New York without regard to the rules of conflicts of
laws.
Section
13.8 Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not of itself invalidate or render unenforceable such
provision in any other jurisdiction.
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Section
13.9 Headings.
The
descriptive headings of the various articles, sections, and subsections of this
Agreement were formulated and inserted for convenience only and shall not be
deemed to affect the meaning or construction of the provisions
hereof.
Section 13.10 Counterparts.
This
Agreement may be executed in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, FFB, the
Borrower, and the Secretary have each caused this Agreement to be executed as of
the day and year first above mentioned.
|
FEDERAL
FINANCING BANK
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||||
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("FFB")
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||||
|
By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
|
Xxxxxxx
X. Xxxxx
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Title:
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Vice
President
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FORD
MOTOR COMPANY
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(the
"Borrower")
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||||
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By:
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/s/
Xxxx X.Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Vice
President and Treasurer
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THE
SECRETARY OF ENERGY
|
||||
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(the
"Secretary")
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||||
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acting
through his or her
|
||||
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duly
authorized designate
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
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|||
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Title:
|
Director,
Advanced Technology Vehicles Manufacturing Loan
Program
|
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