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EXHIBIT 1
DEALER MANAGER AGREEMENT
September 19, 1995
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1329
XXXX XXXXXX XXXXXXXX INC.
0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. XXXXXXX & SONS, INC.
0 Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX BROTHERS
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Ford Motor Company Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801
et seq.), proposes to issue its Trust Originated Preferred Securities ("TOPrS")
(the "Preferred Securities") in exchange for
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up to 44,600,000 depositary shares (the "Target Securities"), each representing
one two-thousandth of a share of Series B Cumulative Preferred Stock (par value
$1.00 per share) of Ford Motor Company, a Delaware corporation (the "Company").
The Preferred Securities will be guaranteed (the "Guarantee") by the Company to
the extent described in the Prospectus (as hereinafter defined). The exchange
described above is herein referred to as the "Exchange Offer" and any exchange
of Preferred Securities for Target Securities pursuant to the Exchange Offer is
herein referred to as an "Exchange". In connection with the Exchange Offer,
the Company will deposit in the Trust as trust assets its Junior Subordinated
Debentures due December 31, 2025 (the "Debentures") as set forth in the
Prospectus.
Each of the Company and the Trust hereby confirms its agreement with
Xxxxxxx Xxxxx & Co. of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), Xxxx Xxxxxx Xxxxxxxx Inc. ("Xxxx Xxxxxx"), X.X. Xxxxxxx &
Sons, Inc. ("X.X. Xxxxxxx"), Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs"), Xxxxxx
Brothers ("Xxxxxx"), PaineWebber Incorporated ("PaineWebber") and Xxxxx Xxxxxx
Inc. ("Xxxxx Xxxxxx" and, together with Xxxxxxx Xxxxx, Xxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx and PaineWebber, the "Co-Dealer Managers") as
follows:
1. Registration Statement, Prospectus and Offering Materials. The
Company and the Trust have prepared and filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder
(collectively, the "Securities Act"), a registration statement on Form S-4
covering the registration of the Preferred Securities, the Guarantee and the
Debentures, including the related preliminary prospectus, and will prepare and
file, on or prior to the effective date of such registration statement,
amendments to such registration statement, including a final prospectus. Each
prospectus used before the time such registration statement becomes effective
is herein called a "preliminary prospectus". Such registration statement,
including the exhibits thereto and any documents incorporated by reference
therein, as amended at the time it becomes effective or as thereafter amended
or supplemented from time to time, is herein called the "Registration
Statement". The final prospectus included in the Registration Statement
(including any documents incorporated in the prospectus by reference) is herein
called the "Prospectus", except that if the final prospectus furnished to the
Co-Dealer Managers for use in connection with the Exchange Offer differs from
the prospectus set forth in the Registration Statement (whether or not such
prospectus is required to be filed pursuant to Rule 424 (b)), the term
"Prospectus" shall refer to the final prospectus furnished to the Co-Dealer
Managers for such use. The terms "supplement" and "amendment" or "amend" as
used herein with respect to the Prospectus shall include all documents deemed
to be incorporated by reference in the Prospectus that are filed subsequent to
the date of the Prospectus and prior to the termination of the Exchange Offer
by the Company with the Commission pursuant to the Securities
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Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively, the "Exchange Act").
The Registration Statement, Prospectus and the related letters from the
Co-Dealer Managers to securities brokers, dealers, commercial banks, trust
companies and other nominees, letters to beneficial owners of Target
Securities, letters of transmittal (the "Letters of Transmittal"), notices of
guaranteed delivery (the "Notices of Guaranteed Delivery") and any newspaper
announcements, press releases and other offering materials and information the
Company may use or prepare, approve or authorize for use in connection with the
Exchange Offer, as amended or supplemented from time to time are herein
collectively referred to as the "Offering Materials".
2. Exchange Offer; Agreement to Act as Co-Dealer Managers. (a) The
Company and the Trust intend to commence the Exchange Offer as soon as
practicable after the Registration Statement becomes effective under the
Securities Act by publicly announcing its commencement and by mailing, or
causing to be mailed on its behalf, copies of the Prospectus, the related
Letters of Transmittal and such of the other Offering Materials as is required
or as the Company elects to each holder of Target Securities (the date of the
commencement of such distribution being herein called the "Commencement Date").
(b) The Company and the Trust hereby retain the Co-Dealer Managers
to advise them with respect to the terms and timing of the Exchange Offer and
to assist them in the preparation of the Offering Materials and retain and
authorize the Co-Dealer Managers to act as co-dealer managers and to assist the
Company with the solicitation of Exchanges (each a "Solicitation" and
collectively the "Solicitations"). On the basis of the representations and
warranties and agreements of the Company and the Trust herein contained and
subject to and in accordance with the terms and conditions hereof and of the
Offering Materials, the Co-Dealer Managers agree to advise the Company and the
Trust with respect to the terms and timing of the Exchange Offer, to assist
them in the preparation of the Offering Materials and to act as co-dealer
managers in connection with the Exchange Offer and to assist the Company with
the Solicitations. The Co-Dealer Managers agree to use their reasonable best
efforts to solicit Exchanges.
(c) The Company shall furnish the Co-Dealer Managers, or cause the
transfer agent or registrar for the Target Securities (respectively, the
"Transfer Agent" and "Registrar") to furnish the Co-Dealer Managers, as soon as
practicable after the date hereof (to the extent not previously furnished),
with cards or lists in reasonable quantities or copies thereof showing the
names of persons who were the holders of record or, to the extent available to
the Company, the beneficial owners of the Target Securities as of a recent
date, together with their addresses, and the number of shares of Target
Securities held by them. Additionally, the Company shall use its reasonable
best efforts to update, or to cause the Transfer Agent or Registrar to update,
such information from time to time during the term of
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this Agreement as may be reasonably requested by the Co-Dealer Managers.
Except as otherwise provided herein, the Co-Dealer Managers agree to use such
information only in connection with the Solicitations. The Co-Dealer Managers
shall act hereunder as independent contractors and nothing herein contained
shall make the Co-Dealer Managers agents of the Trust, the Company or any of
its subsidiaries in connection with any Solicitation. Nothing contained in
this Agreement shall constitute the Co-Dealer Managers partners of or joint
venturers with the Trust, the Company or any of its subsidiaries.
(d) The Trust and the Company authorize the Co-Dealer Managers to
use the Offering Materials in connection with the Solicitations and for such
period of time as any Offering Materials are required by law to be delivered in
connection therewith. The Co-Dealer Managers shall not have any obligation to
cause any Offering Materials to be transmitted generally to the holders of the
Target Securities. The Co-Dealer Managers agree not to give any written
information and not to make any representations to holders of the Target
Securities in connection with any Solicitation other than as contained in the
Offering Materials.
(e) The Trust and the Company authorize the Co-Dealer Managers to
communicate with any information agent (the "Information Agent") or exchange
agent (the "Exchange Agent") appointed by the Company and/or the Trust to act
in such capacity in connection with the Exchange Offer with respect to matters
relating to the Exchange Offer.
(f) The Trust and the Company agree that any reference to any
Co-Dealer Manager in any Offering Materials or in any newspaper announcement or
press release or other public document or communication is subject to such
Co-Dealer Manager's prior consent, which consent shall not be unreasonably
withheld.
3. Compensation. (a) The Company hereby agrees to pay to the
Co-Dealer Managers for services rendered and to be rendered by them in
connection with the Exchange Offer a fee (the "Management Fee") equal to $0.125
per share of Target Securities validly submitted for exchange and not withdrawn
in connection with the Exchange Offer. The Management Fee shall be paid only
if the Exchange Offer is consummated, and shall be paid within one week of the
consummation of the Exchange Offer. The Management Fee shall be divided 40% to
Xxxxxxx Xxxxx and 60% to the other Co-Dealer Managers, who shall divide their
portion of the Management Fee equally among themselves. In addition, the
Company agrees to reimburse each Co-Dealer Manager directly for all of its
reasonable out-of-pocket expenses incurred in connection with the Exchange
Offer, including, without limitation, the reasonable fees and expenses of the
law firm acting as legal counsel for the Co-Dealer Managers, except in certain
circumstances to be agreed upon by the parties hereto.
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(b) The Company agrees to pay, or cause to be paid to, each
soliciting dealer (including any Co-Dealer Manager acting as a soliciting
dealer) whose name has been inserted in the space provided in the Letter of
Transmittal for that purpose a fee (the "Soliciting Dealer Fee") equal to $0.50
per share of Target Securities validly submitted for exchange and not withdrawn
in connection with the Exchange Offer; provided, however, that no such fee
shall be paid with respect to Target Securities tendered, directly or
indirectly, by soliciting dealers for their own account and such fee shall not
be remitted, in whole or in part, to the beneficial owner of such Target
Securities. The Soliciting Dealer Fee shall be paid only if the Exchange Offer
is consummated and shall be paid to the soliciting dealers within one week of
the consummation of the Exchange Offer.
4. Certain Covenants of the Trust and the Company. Each of the
Company and the Trust jointly and severally covenants with the Co-Dealer
Managers:
(a) To use its best efforts to cause the Registration
Statement, including any post-effective amendment thereto, to become
effective and will notify the Co-Dealer Managers immediately and, if
requested by any Co-Dealer Manager, will confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall have
become effective, or any supplement to the Prospectus or any amended
Prospectus or any amended or additional Offering Materials shall have been
filed, (ii) of the receipt of any comments from the Commission relating to
the Exchange Offer, (iii) of any request by the Commission to amend the
Registration Statement or amend or supplement the Prospectus or the other
Offering Materials or for additional information relating to the Exchange
Offer and (iv) of (A) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or (B) the
issuance by the Commission of any order preventing or suspending the use of
any of the Offering Materials or (C) the suspension of the qualification of
the Preferred Securities for offering or sale in connection with the
Exchange Offer in any jurisdiction, (D) the institution or threatening of
any proceedings for any of such purposes or (E) the occurrence of any event
which could cause the Company to withdraw, rescind, terminate or modify the
Exchange Offer or would permit the Company to exercise any right not to
accept the Target Securities tendered pursuant to the Exchange Offer. The
Company and the Trust will make every reasonable effort to prevent the
issuance of any such stop order, the issuance of any order preventing or
suspending such use and the suspension of any such qualification and, if
any such order is issued or qualification suspended, to obtain the lifting
of such order or suspension at the earliest practicable time.
(b) Prior to the termination of the Exchange Offer, before amending
or supplementing the Registration Statement or the Prospectus, to furnish
copies of drafts to, and consult with, the Co-Dealer Managers and their
counsel within a reasonable time in advance of filing with the Commission
of any amendment or supplement to
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the Registration Statement, the Prospectus or the other Offering
Materials. Neither the Company nor the Trust shall file any such amendment
or supplement to which any Co-Dealer Manager shall reasonably object in
writing; provided, however, that the foregoing shall not apply to any of
the Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which such
filings the Company will cause to be delivered to each Co-Dealer Manager
promptly after being transmitted for filing with the Commission.
(c) To furnish promptly to each Co-Dealer Manager, without charge,
one signed copy of the Registration Statement, all amendments thereto and
any other filing with the Commission in connection with the Exchange Offer,
whether filed before or after the Registration Statement becomes effective.
(d) To furnish promptly to each Co-Dealer Manager, without charge,
from time to time until the effective date of the Registration Statement,
as many copies of each preliminary prospectus as the Co-Dealer Managers may
reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the Securities Act and the Exchange Act.
The Company will furnish promptly to each Co- Dealer Manager, without
charge, as soon as the Registration Statement shall have become effective
and during the period mentioned in the second sentence of paragraph (e)
below such number of copies of the Prospectus and the other Offering
Materials (as supplemented or amended) as such Co-Dealer Manager may
reasonably request and will cause all amendments and supplements filed with
the Commission to be distributed to holders of Target Securities as may be
required by the Securities Act and the Exchange Act.
(e) To comply in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), in connection with the Offering Materials, the Exchange
Offer and the transactions contemplated hereby and thereby, as applicable.
If at any time when the Prospectus is required by the Securities Act or
Exchange Act to be delivered in connection with any Solicitation or
Exchange any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the
Co-Dealer Managers or counsel for the Company and the Trust, to amend the
Registration Statement or amend or supplement the Prospectus or any other
Offering Materials in order that the Prospectus or such other Offering
Materials will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements in the
Prospectus or such other Offering Materials, in the light of the
circumstances under which they were made, not misleading or if, in the
reasonable opinion of either such counsel, it shall be necessary to amend
the Registration Statement or amend or supplement the Prospectus or any
other Offering Materials to comply with the requirements of the Securities
Act
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or Exchange Act, the Company and the Trust will promptly prepare, file
with the Commission, subject to Section 4(b) of this Agreement, and
furnish, at its own expense, to each Co-Dealer Manager and to the dealers
(whose names and addresses will be furnished to the Company by the Co-Dealer
Managers) to which Preferred Securities may have been exchanged, such
amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the
Prospectus or such other Offering Materials comply with such requirements.
(f) To endeavor, in cooperation with the Co-Dealer Managers, to
qualify the Preferred Securities for offering and sale in connection with
the Exchange Offer under the applicable securities or Blue Sky laws of such
jurisdictions as the Company and the Trust may elect and to maintain such
qualifications in effect for such time as may be required for the
consummation of the Exchange Offer; provided, however, that neither the
Company nor the Trust shall be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject; provided further that the
Co-Dealer Managers shall not be obligated to solicit tenders in
jurisdictions where the Preferred Securities are not qualified for offer
and sale. The Company and the Trust will file such statements and reports
as may be required by the laws of each jurisdiction in which the Preferred
Securities have been qualified as above provided.
(g) To make generally available to its security holders and to the
Co-Dealer Managers an earnings statement covering a twelve-month period
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(h) To use its reasonable best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange ("NYSE"), subject to
official notice of issuance, as soon as practicable after the date hereof.
(i) To timely file any report or other document required to be filed
by the Company or the Trust with the Commission pursuant to Section 13, 14
or 15 of the Exchange Act during the period of time referred to in the
second sentence of Section 4(e) hereof.
(j) To pay all costs and expenses incurred in connection with the
performance of its obligations in connection with this Agreement and the
Solicitations including, without limitation, (i) the preparation, printing
and filing of the Registration Statement (including financial statements
and exhibits), as originally filed
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and as amended, the preliminary prospectuses, the Prospectus and the
other Offering Materials and any amendments or supplements to any of the
foregoing, and the cost of furnishing copies thereof to the Co-Dealer
Managers, (ii) the preparation and distribution of this Agreement,
certificates for the Preferred Securities and any Blue Sky surveys and the
printing of certificates for the Preferred Securities, (iii) the
distribution of the Offering Materials to the holders of the Target
Securities, (iv) the fees and disbursements of counsel to the Company and
the Trust, counsel to the Co-Dealer Managers and the Company's and the
Trust's accountants, (v) the qualification of the Preferred Securities
under the applicable securities laws in accordance with Section 4(f) and
any filing for review of the Exchange Offer with the NASD (including filing
fees and fees and disbursements of counsel for the Co-Dealer Managers in
connection with such filing with the NASD), (vi) the fees and expenses of
the Transfer Agent, the Registrar, the Trustees of the Trust (the
"Trustees"), the Indenture Trustee (as defined herein), the Information
Agent and the Exchange Agent and (vii) all other costs and expenses
incident to the Solicitations incurred by the Trust and the Company and its
subsidiaries. The Company agrees to pay all of the aforementioned costs and
expenses whether or not the Exchange Offer is consummated.
(k) To advise or cause the Exchange Agent to advise the Co-Dealer
Managers at 5:00 P.M., New York City time, or as promptly as practicable
thereafter, daily (or more frequently if requested), by telephone or
facsimile transmission, as of 4:00 P.M on such day with respect to Target
Securities tendered as follows:
(i) the number of shares of Target Securities validly tendered
represented by certificates physically held by the Exchange Agent (or
for which the Exchange Agent has received confirmation of receipt of
book-entry transfer of such Target Securities into the Exchange
Agent's account at a Depository Institution (as defined in the
Prospectus) pursuant to the procedures set forth in the Exchange
Offer) on such day; (ii) the number of shares of Target Securities
represented by Notices of Guaranteed Delivery on such day; (iii) the
number of shares of Target Securities properly withdrawn on such day;
and (iv) the cumulative number of shares of Target Securities in
categories (i) through (iii) above.
On the day following such oral communication, the Company shall furnish
or cause the Exchange Agent to furnish to the Co-Dealer Managers a written
report confirming the above information which has been communicated orally.
The Company shall furnish or cause the Exchange Agent to furnish to the
Co-Dealer Managers such reasonable information on the tendering holders of
Targeted Securities as may be requested from time to time.
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(l) To give the Co-Dealer Managers notice of any change of the
expiration time of the Exchange Offer (the "Expiration Time").
5. Representations and Warranties of the Company and the Trust. Each
of the Company and the Trust jointly and severally represents and warrants to
and agrees with each of the Co-Dealer Managers that:
(a) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 of the Securities Act, will
comply when so filed, in all material respects, as to form with the
Securities Act and the Exchange Act; the Registration Statement at the
time it becomes effective and the Prospectus and any other Offering
Materials, on the Commencement Date and on the date on which the
Company commences delivery of the Preferred Securities for exchange of
the Target Securities pursuant to the Exchange Offer (such date, the
"Exchange Date"), will comply, in all material respects, as to form
with the Securities Act and the Exchange Act; each part of the
Registration Statement when such part becomes effective will not
contain, and each such part, as amended, if applicable, will not
contain, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and as of the Commencement Date and
the Exchange Date, none of the Prospectus or the other Offering
Materials or any amendments or supplements to such Offering Materials
will contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth
in this Section 5(a) do not apply (A) to statements or omissions made
based upon and in conformity with information supplied in writing by a
Co-Dealer Manager through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated expressly for use in the Registration Statement,
Prospectus, any other Offering Materials or any amendments or
supplements to any of the foregoing or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility
and Qualification on Form T-1 (the "Forms T-1") under the Trust
Indenture Act of the trustee (the "Indenture Trustee") under the
Indenture (as defined herein), as institutional trustee under the
Declaration (as defined herein) and as trustee under the Guarantee.
(b) The Company has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Declaration, the Indenture and the Guarantee; and this Agreement has
been duly authorized, executed and delivered by the Company. The
Trust has the business trust power and authority to execute, deliver
and perform its obligations under this
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Agreement; and this Agreement has been duly authorized,
executed and delivered by the Trust.
(c) The Preferred Securities to be issued pursuant to the
Exchange Offer will be duly authorized by the Trust's Amended and
Restated Declaration of Trust (the "Declaration") and, when issued in
exchange for Target Securities pursuant to the Exchange Offer, will be
validly issued and (subject to the terms of the Declaration) fully
paid and non-assessable undivided beneficial interests in the assets
of the Trust, not subject to any preemptive or similar rights, and
will conform in all material respects to all statements relating
thereto contained in the Prospectus. Holders of Preferred Securities
will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit.
(d) The Declaration and the Guarantee have been duly
authorized by the Company and, as of the Exchange Date, will have been
duly executed and delivered by the Company. Assuming due
authorization, execution and delivery of the Declaration by the
Trustees, the Declaration will, as of the Exchange Date, be a valid
and binding obligation of the Company and the Trustees, enforceable
against the Company and the Trustees in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights
generally, by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), or
considerations of public policy or the effect of applicable law
relating to fiduciary duties. As of the Exchange Date, the Guarantee
will be a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) The Indenture between the Company and the Indenture
Trustee (including the related supplemental indenture governing the
Debentures to be deposited in the Trust, the "Indenture"), will be
duly qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery of the Indenture by the
Indenture Trustee and upon execution and delivery by the Company, will
be enforceable against the Company in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and by general
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equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(f) The Debentures to be deposited in the Trust as trust
assets in connection with the Exchange Offer have been duly
authorized, and, assuming due authorization, execution and delivery of
the Indenture by the Indenture Trustee, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to the Trust pursuant to the terms of the Exchange Offer
will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company enforceable against the Company
in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and 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 as described in
the Prospectus, with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole.
(h) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act, is and will
be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct
its business as presently conducted and as described in the
Prospectus, and is not required to be authorized to do business in any
other jurisdiction.
(i) Ford Motor Credit Company ("FMCC"), and each of Ford
Holdings, Inc., Associates First Capital Corporation, Associates
Corporation of North America, The American Road Insurance Company, USL
Capital Corporation, The Hertz Corporation and Granite Management
Corporation to the extent then a subsidiary of the Company
(collectively, the "Principal Subsidiaries"), has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, and all of the
issued shares of capital stock of FMCC and of each of the Principal
Subsidiaries have been duly and validly authorized and issued, are
fully paid and non-assessable, and the shares of FMCC and of the
Principal
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Subsidiaries owned by the Company, being at least all the
outstanding shares of common stock of FMCC, are owned by the Company,
directly or indirectly, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind, with only
such exceptions as are not material to the business of the Company and
its subsidiaries considered as a whole.
(j) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the respective
descriptions thereof contained in the Prospectus.
(k) The execution and delivery by the Company and the Trust
of, and the performance by the Company and the Trust of their
obligations under, this Agreement, the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, the Declaration, the Indenture and the Guarantee, the issuance
and delivery by the Trust of the Preferred Securities and the
consummation of the Exchange Offer and the fulfillment of the terms
herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under (in
each case material to the Company and its subsidiaries (including the
Trust) considered as a whole), any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease, financing agreement or other similar
agreement or instrument to which the Company or any of its
subsidiaries (including the Trust) is a party or by which the Company
or any of its subsidiaries (including the Trust) is bound or to which
any of the property or assets of the Company or any of its
subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or the declaration of trust of
the Trust, nor will such actions result in any violation (in each case
material to the Company and its subsidiaries (including the Trust)
considered as a whole) of any statute or any order, rule or regulation
of any court or regulatory authority or other governmental body having
jurisdiction over the Trust or the Company or any of its subsidiaries
or any of their properties; and no consent, approval or authorization
or order of, or qualification with, any governmental body or agency is
required for, and the absence of which would materially affect, the
performance by the Company and the Trust of their obligations under
this Agreement, the issuance and delivery of the Preferred Securities
and the consummation of the Exchange Offer, except such approvals as
will be obtained under the Securities Act, the Exchange Act or the
Trust Indenture Act and as may be required by the securities or Blue
Sky laws of the various states
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or the securities laws of non-U.S jurisdictions in connection
with the Exchange Offer.
(l) There are no legal or governmental proceedings pending to
which the Trust or the Company or any of its subsidiaries is a party
or of which any of the properties of the Trust or the Company or any
of its subsidiaries is the subject other than as disclosed in the
Prospectus and other than such proceedings which will not have a
material adverse effect upon the general affairs, financial position,
net worth or results of operations (on an annual basis) of the Trust
or the Company and its subsidiaries considered as a whole; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(m) Neither the Company nor the Trust is, or after giving
effect to the consummation of the Exchange Offer, will be, and neither
the Company nor the Trust is directly or indirectly controlled by, or
acting on behalf of any person which is, an investment company within
the meaning of the Investment Company Act of 1940, as amended.
(n) Each of the Company and the Trust has complied with all
provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws
of Florida).
(o) Coopers & Xxxxxxx L.L.P., who have certified certain
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented, are, to the best knowledge of
the Company, independent certified public accountants as required by
the Securities Act.
6. Indemnification and Contribution. (a) Each of the Company and the
Trust jointly and severally agrees: (A) to indemnify and hold each Co-Dealer
Manager harmless against any loss, damage, expense, liability or claim (i)
which (1) with respect to the Registration Statement, is caused by any untrue
statement or alleged untrue statement of a material fact contained therein or
which is caused by the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (2) with respect to the Offering Materials or in any
amendment or supplement thereto, is caused by any untrue statement or alleged
untrue statement of a material fact contained in such Offering Materials or
which is caused by the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, in any such
case, as to the Co-Dealer Managers insofar as such loss, damage,
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expense, liability or claim is caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information relating to such
Co-Dealer Manager furnished to the Company or the Trust in writing by any
Co-Dealer Manager through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
expressly for use in such Offering Materials, or (ii) which arises out of or is
based upon a withdrawal, rescission or modification of or a failure to make or
consummate the Exchange Offer; and (B) to indemnify and hold each Co-Dealer
Manager harmless against any other loss, damage, expense, liability or claim
which otherwise arises out of or is related to this Agreement or the Exchange
Offer or the services provided by the Co-Dealer Managers in connection with
this Agreement or the Exchange Offer, except to the extent any such loss,
damage, expense, liability or claim referred to in this clause (B) is found by
a final judgment of a court of competent jurisdiction to have resulted from
such Co-Dealer Manager's gross negligence, bad faith or willful misconduct.
The Company and the Trust each jointly and severally agrees to indemnify and
hold each Co-Dealer Manager harmless against and reimburse each Co-Dealer
Manager for any and all reasonable expenses (including reasonable legal fees
and expenses) as such expenses are incurred by such Co-Dealer Manager in
connection with investigating, preparing for or defending against any such
loss, damage, expense, liability or claim, whether or not resulting in any
liability, whether or not such Co-Dealer Manager is a named party in connection
therewith and whether or not such loss, damage, expense, liability or claim
results from action initiated or brought by or on behalf of the Company or any
of its subsidiaries (including the Trust), and any amount paid in settlement of
any litigation, commenced or threatened, or of any claim whatsoever as set
forth herein if such settlement is effected with the prior written consent of
the Company and the Trust; provided, however, with respect to clause (B) above,
that neither the Company nor the Trust shall be liable for any of the foregoing
expenses and any amounts previously paid shall be promptly repaid to the extent
that any loss, damage, liability or claim is found by a final judgment of a
court of competent jurisdiction to have resulted from such Co-Dealer Manager's
gross negligence, bad faith or willful misconduct. The Company and the Trust
also agree that no Co-Dealer Manager shall have any liability (whether direct
or indirect, in tort, contract or otherwise) to the Company or any of its
subsidiaries (including the Trust) or its or their security holders or
creditors related to or arising out of this Agreement or the Exchange Offer or
the services provided by such Co-Dealer Manager in connection with this
Agreement or the Exchange Offer, except (i) for failure to perform its
obligations under this Agreement, (ii) to the extent such liability is found by
a final judgment of a court of competent jurisdiction to have resulted from
such Co-Dealer Manager's gross negligence, bad faith or willful misconduct or
(iii) as expressly provided in the next succeeding paragraph.
Each Co-Dealer Manager agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Trust to the same extent as the foregoing
indemnity from the Company and the Trust to each Co-Dealer Manager contained in
Section 6(a)(A)(i) above, but only with reference to information relating to
such Co-Dealer Manager furnished
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to the Company in writing by any Co-Dealer Manager through Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated expressly for use in the Offering
Materials.
(b) Promptly after receipt by a person indemnified under this
Section 6 of notice of any suit, action, proceeding or investigation with
respect to which an indemnified party may be entitled to indemnification
hereunder, such indemnified person shall notify the person against whom such
indemnity may be sought in writing of the commencement or the written assertion
thereof; but the omission so to notify such indemnifying person shall not
relieve such indemnifying person from any liability which it may have to such
indemnified person unless the indemnifying person has been materially
prejudiced by such omission. Following such notification, such indemnifying
person may elect in writing to assume the defense of such suit, action,
proceeding or investigation and, upon such election, such indemnifying person
shall not be liable for any legal costs subsequently incurred by such
indemnified person (other than reasonable costs of investigation and providing
evidence) in connection therewith, unless (i) such indemnifying person has
failed to provide counsel reasonably satisfactory to such indemnified person in
a timely manner, (ii) counsel which has been provided by such indemnifying
person reasonably determines that its representation of such indemnified person
would present it with a conflict of interest or (iii) such indemnified person
reasonably determines that there may be legal defenses available to it which
are different from or in addition to those available to such indemnifying
person. In the event of a determination pursuant to clause (i), (ii) or (iii)
above, such indemnified person shall be entitled to retain separate counsel of
their choice and the fees and expenses of such separate counsel shall be borne
by such indemnifying person. Such indemnifying person shall not in any event
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all Co- Dealer Managers in any one
action or group of related actions, except as provided in the immediately
preceding sentence. Whether or not such indemnifying person shall have assumed
the defense of any suit, action, proceeding or investigation, the Company, the
Trust and the Co-Dealer Managers agree to cooperate in the defense thereof and
shall furnish such records, information, testimony, and attend such
conferences, discovery proceedings, hearings, trials and appeals, as may be
reasonably requested in connection therewith.
(c) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified person to the
extent provided under subsection (a) above in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then the indemnifying
person shall contribute to the amount paid or payable by such indemnified
person as a result of such losses, damages, expenses, liabilities or claims (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and its subsidiaries (including the Trust) on the one hand and
such Co-Dealer Manager on the other from the Exchange Offer or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and its
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subsidiaries (including the Trust) on the one hand and such Co-Dealer Manager
on the other in connection with any statements or omissions or any other
matters which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company and its subsidiaries (including the Trust) on
the one hand and such Co-Dealer Manager on the other shall be deemed to be in
the same proportion as the maximum aggregate liquidation preference of
Preferred Securities issuable pursuant to the Exchange Offer (less registration
fees of the Exchange Offer) bears to the maximum amount of fees payable to such
Co-Dealer Manager pursuant to Section 3 hereof. The relative fault of the
Company and its subsidiaries (including the Trust) on the one hand and such
Co-Dealer Manager on the other (i) in the case of any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact, shall be determined by reference to, among other things, whether
such statement or omission relates to information supplied by the Company or
any of its subsidiaries (including the Trust) or their affiliates or such
Co-Dealer Manager, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission
and (ii) in the case of any other action or omission, shall be determined by
reference to, among other things, whether such action or omission was taken or
omitted to be taken by the Company or any of its subsidiaries (including the
Trust) or their affiliates or by such Co-Dealer Manager, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action or omission The Company and each Co-Dealer Manager agree
that it would not be just and equitable if contribution pursuant to this
subsection (c) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this subsection (c). Notwithstanding the provisions of this Section
6(c), no Co-Dealer Manager shall be required to contribute any amount in excess
of the fee paid to such Co-Dealer Manager as provided in Section 3 hereof. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act of 1933, as amended) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. Conditions to Co-Dealer Managers' Obligations. The obligations of
the Co-Dealer Managers hereunder are subject as of the Commencement Date and as
of the Exchange Date to the accuracy of the representations and warranties of
the Company and the Trust contained herein or in certificates of any officer of
the Company or the Trust delivered pursuant to the provisions hereof, to the
performance, in all material respects, by the Company and the Trust of their
obligations hereunder to be performed, and the following additional conditions:
(a) On the Commencement Date and the Exchange Date, the Registration
Statement shall have become effective under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement shall be
in effect, and no
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proceedings for such purpose shall be pending before or, to the
Company's or the Trust's knowledge, threatened by the Commission.
(b) On the Commencement Date and the Exchange Date, since the
respective dates as of which information is given in the Prospectus as
amended or supplemented, there shall not have occurred any material adverse
change, or any development involving a prospective material adverse change,
in or affecting particularly the business or assets of the Company and its
subsidiaries considered as a whole, or any material adverse change in the
financial position or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented.
(c) The Co-Dealer Managers shall have received on the Commencement
Date and the Exchange Date a certificate, dated such date and signed by an
executive officer of the Company, to the effect set forth in clause (b)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct in all material
respects as of such date and that the Company has complied in all material
respects with all of the agreements and satisfied in all material respects
all of the conditions on its part to be performed or satisfied on or before
such date. The officer signing and delivering such certificate may rely
upon the best of such officer's knowledge as to proceedings threatened.
(d) On the Commencement Date and the Exchange Date, there shall not
have been since the respective dates as of which information is given in
the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in the financial condition
or results of operations of the Trust.
(e) The Co-Dealer Managers shall have received on the Commencement
Date and the Exchange Date a certificate, dated such date and signed by a
trustee of the Trust, to the effect set forth in clause (d) above and to
the effect that the representations and warranties of the Trust contained
in this Agreement are true and correct in all material respects as of such
date and that the Trust has complied in all material respects with all of
the agreements and satisfied in all material respects all of the conditions
on its part to be performed or satisfied on or before such date. The
trustee signing and delivering such certificate may rely upon the best of
his or her knowledge as to proceedings threatened.
(f) On the Exchange Date and, except with respect to paragraph (iv)
of this Section 7(f), on the Commencement Date, the Co-Dealer Managers
shall have received a signed opinion of Morris, Nichols, Arsht & Xxxxxxx,
Delaware counsel for the Company, dated as of such date, to the effect
that:
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(i) the Trust has been duly organized and is validly existing in good
standing as a business trust under the Delaware Act and has the business
trust power and authority to conduct its business as described in the
Prospectus;
(ii) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a legal,
valid and binding agreement of the Company and the Trustees, enforceable
against the Company and the Trustees in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, moratorium and other similar laws affecting the
rights and remedies of creditors generally as from time to time in effect,
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), or considerations of
public policy or the effect of applicable law relating to fiduciary duties;
(iii) under the Declaration and the Delaware Act, the execution and
delivery of this Agreement by the Trust, and the performance by the Trust
of its obligations hereunder, have been duly authorized by all requisite
business trust action on the part of the Trust;
(iv) the Preferred Securities have been duly authorized by the
Declaration and are duly and validly issued and, subject to the terms of
the Declaration, fully paid and non-assessable beneficial interests in the
Trust. The holders of Preferred Securities will be, subject to the terms
of the Declaration, entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; and
(v) under the Declaration and the Delaware Act, the issuance of the
Preferred Securities is not subject to preemptive rights.
(g) On the Exchange Date and, except with respect to paragraphs (vi),
(vii) and (viii) of this Section 7(g), on the Commencement Date, the Co-Dealer
Managers shall have received a signed opinion of X.X. Xxxxxxxxx, an Assistant
General Counsel and Secretary of the Company, or if the Company desires, other
counsel satisfactory to the Co-Dealer Managers in their reasonable judgment,
dated as of such date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power under the laws of such State to own its properties and
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conduct its business as described in the Prospectus as amended or
supplemented;
(ii) the Company is duly qualified to do business and is in good
standing in the jurisdictions in which such business is transacted, with
only such exceptions as will not have a material adverse effect upon the
general affairs, financial position, net worth or results of operations (on
an annual basis) of the Company and its subsidiaries considered as a whole;
(iii) FMCC and each of the Principal Subsidiaries have been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, and all of the
issued shares of capital stock of FMCC and each of the Principal
Subsidiaries have been duly and validly authorized and issued, are fully
paid and non-assessable, and the shares of FMCC and of the Principal
Subsidiaries owned by the Company, being at least all the outstanding
shares of common stock of FMCC, are owned by the Company, directly or
indirectly, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind, with only such exceptions as are
not material to the business of the Company and its subsidiaries considered
as a whole;
(iv) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly authorized and issued and are fully paid and non-assessable;
(v) this Agreement and the Declaration have been duly authorized,
executed and delivered by the Company;
(vi) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms, except as the same may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(vii) the Debentures have been duly authorized, executed and delivered
by the Company and, when authenticated in accordance with the provisions of
the Indenture and delivered pursuant to the terms of the Exchange Offer,
will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company enforceable in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency,
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reorganization, receivership, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(viii) the Guarantee has been duly authorized, executed and delivered
by the Company, and constitutes a valid and binding agreement of the
Company enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium
or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles, regardless
of whether such enforceability is considered in a proceeding in equity or
at law;
(ix) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Declaration,
the Indenture, the Debentures and the Guarantee, and the consummation of
the Exchange Offer and the fulfillment of the terms herein contemplated
(including the issuance of the Preferred Securities by the Trust) will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole), any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or other similar agreement or instrument known to such counsel
under which the Company or any of its subsidiaries (including the Trust) is
bound or to which any of the property or assets of the Company or any of
its subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or the declaration of trust of the
Trust, nor will such actions result in any violation (in each case material
to the Company and its subsidiaries (including the Trust) considered as a
whole) of any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Trust or the Company or any of its subsidiaries or any of their
properties;
(x) such counsel does not know of any legal or governmental proceeding
pending to which the Trust, the Company or any of the Principal
Subsidiaries is a party or of which any property of the Trust, the Company
or any of such subsidiaries is the subject, and no such proceedings are
known by such counsel to be threatened or contemplated by governmental
authorities or threatened by others, other than as set forth or
contemplated in the Prospectus or any further amendment or supplement
thereto and other than such proceedings which, in such counsel's opinion,
will not have a material adverse
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effect upon the general affairs, financial position, net worth
or results of operations (on an annual basis) of the Trust or the
Company and its subsidiaries considered as a whole;
(xi) such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which is not filed or incorporated by
reference or described as required;
(xii) the Indenture has been duly qualified under the Trust
Indenture Act;
(xiii) the statements made in the Prospectus under the
captions "Description of the Preferred Securities," "Description of
the Preferred Securities Guarantee," "Description of the Junior
Subordinated Debentures" and "Description of the Series B Preferred
and Depositary Shares," insofar as such statements constitute
summaries of the legal matters or documents referred to therein are
accurate in all material respects;
(xiv) neither the Company nor the Trust is, or after
giving effect to the consummation of the Exchange Offer, will be, and
neither the Company nor the Trust is directly or indirectly controlled
by, or acting on behalf of any person which is, an investment company
within the meaning of the Investment Company Act of 1940, as amended.
(xv) the documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company or
the Trust prior to the Exchange Date (other than the financial
statements and other accounting information contained or incorporated
by reference therein or omitted therefrom, as to which such counsel
need not express any opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act;
(xvi) the Registration Statement has become effective under
the Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been instituted
or threatened by the Commission; the Registration Statement and the
Prospectus and any further amendments and supplements thereto made by
the Company or the Trust prior to the Exchange Date (other than
Exhibit 12 to the Registration Statement and the financial statements
and other accounting information contained in the
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Registration Statement or the Prospectus or any further
amendments or supplements thereto, or omitted therefrom, and other
than that part of the Registration Statement that constitutes the
Forms T-1, as to which such counsel need not express any opinion)
comply as to form in all material respects with the requirements of
the Securities Act;
(xvii) such counsel believes that (i) neither the
Registration Statement (other than Exhibit 12 thereto and the
financial statements and other accounting information contained
therein or omitted therefrom, and other than that part of the
Registration Statement that constitutes the Forms T-1, as to which
such counsel need not express any belief) nor any amendment thereto,
at the time the same became effective, contained any untrue statement
of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and (ii) on the date of the Prospectus or any further
amendment or supplement thereto made by the Company or the Trust prior
to the Exchange Date, and on the Exchange Date, the Prospectus or any
further amendment or supplement thereto made by the Company or the
Trust prior to the Exchange Date (other than the financial statements
and other accounting information contained therein or omitted
therefrom, as to which such counsel need not express any belief), did
not and does not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
With respect to paragraph (xvii) above, counsel for the Company may
state that such counsel's belief is based upon such counsel's participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified.
(h) On the Commencement Date and on the Exchange Date, the Co-Dealer
Managers shall have received a signed opinion of Xxxxxx X. Xxxx, Chief Tax
Officer of the Company and tax counsel to the Trust, confirming his opinion
under the caption "Taxation" in the Prospectus.
(i) The Co-Dealer Managers shall have received the favorable opinion
of Shearman & Sterling, counsel for the Co-Dealer Managers, dated as of the
Commencement Date and the Exchange Date, covering the incorporation and
legal existence of the Company, the issuance and delivery of the Preferred
Securities (on the Exchange Date only), this Agreement, the Registration
Statement, the Prospectus and such other related matters as the Co-Dealer
Managers may require. In giving
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such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, and the federal
law of the United States and the corporate law of the State of Delaware, upon
the opinions of counsel satisfactory to the Co- Dealer Managers. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates
of officers of the Company and certificates of public officials.
(j) On the Commencement Date, the Co-Dealer Managers shall have
received from the Company's independent public accountants, in form and
substance reasonably satisfactory to the Co-Dealer Managers and dated as of
such date, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(k) At the Exchange Date, the Co-Dealer Managers shall have received
from the Company's independent public accountants, in form and substance
reasonably satisfactory to the Co-Dealer managers and dated as of such
dates, to the effect that such accountants reaffirm the statements made in
the letter furnished pursuant to Section 7(j).
(l) At the Exchange Date, the Preferred Securities shall have been
duly listed, subject to official notice of issuance, on the NYSE.
(m) By the Exchange Date, the Company shall have entered into
appropriate agreements with the Information Agent and the Exchange Agent
for purposes of the Exchange Offer.
8. Termination. (a) This Agreement shall terminate upon the earliest
to occur of (i) the Exchange Date, (ii) the date on which the Co-Dealer
Managers give notice to the Company and the Trust that any of the conditions
specified in Section 7 have not been fulfilled as of any date such conditions
are required to be fulfilled pursuant to Section 7 or (iii) the date on which
the Company terminates or withdraws the Exchange Offer for any reason (the
earliest to occur of clauses (i), (ii) or (iii) being referred to as the
"Termination Date").
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) of this Section 8, the obligations of the Company to compensate
and/or reimburse, as applicable, the Co-Dealer Managers pursuant to Section 3
or 4, the representations and warranties contained in Section 5 and the
provisions of Section 6 shall survive any termination of this Agreement.
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9. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication. Notices to the
Co-Dealer Managers shall be directed to Xxxxxxx Xxxxx & Co., World Financial
Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention Syndicate
Operations, with a copy to Xxxxx X. Xxxxxxxxx, Esq., Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and notices to the Company and the
Trust shall be directed to either of them c/o Ford Motor Company, The Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention of the Secretary. Any notice under
Section 6 hereof may be made by telex or telephone, but if so made, shall be
subsequently confirmed promptly in writing.
10. Tombstone. The Company and the Trust acknowledge that the
Co-Dealer Managers may, with the prior review and approval of the Company,
which approval shall not be unreasonably withheld, place an announcement in
such newspapers and periodicals as the Co-Dealer Managers may choose, stating
that the Co-Dealer Managers are or were acting as co-dealer managers and
financial advisors to the Company and the Trust in connection with the Exchange
Offer. The costs relating to any such tombstone shall be borne by the Co-Dealer
Managers.
11. Survival of Certain Provisions. The representations, warranties,
indemnities and agreements of the Company and the Trust will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Co-Dealer Manager or any affiliate or controlling person thereof
and, subject to Section 8(b), will survive the consummation of the Exchange
Offer.
12. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York.
13. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one
and the same Agreement.
14. Successors. This Agreement is made solely for the benefit of the
Co-Dealer Managers, the Company and the Trust and, to the extent expressed, the
parties indemnified pursuant to Section 6, and no other persons shall acquire
or have any right under or by virtue of this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, and, to the
extent expressly set forth herein, the parties indemnified pursuant to Section
6 hereof, any rights or remedies under or by reason of this Agreement. Without
limiting the generality of the foregoing, the parties acknowledge that nothing
in this Agreement, expressed or implied, is intended to confer on holders of
the securities of the Trust, the Company or any of its subsidiaries or
creditors of the Trust or the Company or any of its subsidiaries or the
respective successors and assigns of such creditors, any rights or remedies
under or by reason of this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Trust and the
Co-Dealer Managers in accordance with its terms.
Very truly yours,
FORD MOTOR COMPANY
By:________________________
FORD MOTOR COMPANY CAPITAL
TRUST I
By: Ford Motor Company,
as sponsor
By:________________________
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
By:___________________________
